Availability of Doctors or Hospitals Willing to Perform VBACs in New York
Letter to Editor of Journal News
The article about the claimed unavailability of doctors or hospitals willing to perform VBACs (vaginal birth after cesarian section) due to a fear of lawsuits relies upon faulty premises and proven contradictions. First, the article itself states that there are hospital which perform VBACs but, as if it were a bad thing, the hospitals require the contemporaneous use of a fetal monitor. This life saving device simply monitors the fetal heart rate for the known complication of uterine rupture, and it is not the least bit invasive.
So where’s the problem?
The truth is that proving a malpractice case is dependent upon a doctor violating the standards his/her own profession has promulgated. The American College of Obstetricians & Gynecologists has definitively stated that attempting a VBAC is entirely proper and, accordingly, standing by itself, allowing the procedure cannot be evidence of malpractice. Rather, it is the failure to properly monitor the high risk attempt that leads to liability, which is necessarily established by in-court testimony of a fellow physician. So if obstetricians are squeamish about potential liability, perhaps they should be more squeamish about the permanent, irreversible brain damage infants experience due to established negligence throughout this country, which has been scrutinized by juries as well as trial and appellate courts.
Indeed, despite the of deaths per year from medical errors, costs associated with the medical malpractice civil justice system account for less than one half of one percent of the nations health care costs. The insurance industry has admitted before Congress that placing caps on damages will not have the effect of lowering malpractice premiums, and it has been established that the recent increase in premiums is due to poor investment practices by the insurance industry, as well as artificially frozen premiums for over a decade.
In April, 2003, just three months before your article first appeared, Westchester residents assembled to perform the noble task of jury duty and decided that a local obstetrician had negligently caused permanent brain damage to a little boy now living in Yonkers. I was the attorney for this boy. Your newspaper covered the $14.7 million dollar verdict, which was stated to be especially significant in this day and age, when movement is afoot to limit such awards. The power of the jury to decide justice in medical malpractice lawsuits must not be taken away, and if the medical industry is squeamish about performing procedures it knows is being carried out negligently, the victims with cerebral palsey, brain damage and misshaped bodies cry out, “physicians, heal thyselves.”