From delivery room to courtroom

STATEN ISLAND, N.Y. -- Ten years from now, Staten Island babies could be delivered by doctors who are total strangers to their mothers.

The way Dr. David Herzog sees it, medical malpractice insurance for obstetricians and gynecologists will become so expensive that only hospitals -- and doctors covered under their umbrellas -- could afford coverage for birthings.

For expectant moms it means their gynecologists, after shepherding them through nine months, would hand them over to a "laborist" -- a hospital staff doctor specializing in delivering babies.

Dr. Herzog, a Bulls Head-based obstetrician-gynecologist, has by his count delivered thousands of babies since 1990.

"I think it's going to compromise the care," insisted Dr. Herzog during a recent interview at Richmond University Medical Center, West Brighton, where he is an attending physician and also teaches. "[A baby's birth is] going to be made into a sterile procedure instead of a beautiful experience. It's inevitable if the current system continues as is."

Dr. Herzog survived a scare last month. A jury in state Supreme Court, St. George, found him not liable in a multi-million-dollar medical malpractice lawsuit, accusing him of causing a premature baby to be born with cerebral palsy eight years ago.

But Dr. Herzog, who is considered one of the Island's top ob-gyns, has two other pending cases on Staten Island and at least one in Brooklyn, state court records show. Years ago, he settled a medical malpractice case on Staten Island. He has never been disciplined by the state Office of Professional Medical Conduct.

Even if he wins the pending cases -- which he feels confident of doing -- Dr. Herzog said they already have taken a toll.

He and other Island ob-gyns say that sky-high medical malpractice premiums -- typically between $160,000 and $200,000 a year -- and the possibility of those rates doubling or tripling if they lose a major malpractice case, have caused his colleagues in increasing numbers to rethink their practice or leave the field. The annual medical malpractice premium for Dr. Herzog's practice, which includes three other physicians, is $700,000, he said.

"You could have 10 lawsuits against you and not one could make it to trial, but by virtue of the volume, you could be dropped by your insurance carrier ... and you can't practice medicine," said Dr. Herzog. "It's always on your mind."

Even cases that don't go to trial could cost tens of thousands of dollars, if not hundreds of thousands of dollars, to defend, lawyers said.

Obstetricians and neurosurgeons are among the most-often sued doctors in the country because of their high-risk practices. Injuries, particularly of the brain, are sometimes lethal or can disable a person for life. Damage awards can run to the millions of dollars.

According to the Web site of the American College of Obstetricians and Gynecologists (ACOG), ob-gyn practitioners, on average, have nearly three claims filed against them during their careers.

"All too often, doctors are held liable for less-than-perfect outcomes," said Dr. Ralph W. Hale, ACOG's executive vice president in a statement on the group's Web site.

Yet some of those injuries -- cerebral palsy, brain damage or other afflictions -- can be caused by circumstances beyond the doctor's control, such as congenital or genetic abnormalities, or intrauterine strokes, said Dr. Herzog.

Dr. Mitchell Maiman, chairman of obstetrics and gynecology at Staten Island University Hospital, estimates that over the last seven to eight years, 12 or 13 ob-gyns -- or about half of those associated with University Hospital -- have limited their practices or left them.

In increasing numbers, obstetricians refuse to do Caesarean sections, in hopes of lowering their medical malpractice premiums, Dr. Maiman said.

"When you don't have good, quality obstetricians to deliver babies, it will become a major issue," said Dr. Michael Moretti, chairman of obstetrics and gynecology at RUMC, adding that Staten Island could be headed in that direction. "Many of the graduating medical students aren't going into obstetrics and gynecology because of medical malpractice premiums."

Dr. Herzog said patients injured by doctors have every right to sue. But, he said, it's troubling to know his professional fate could be determined by a jury of laymen who likely have limited medical knowledge.

"Your whole life is in the hands of six jurors, who, although they're well-intentioned and giving great effort to the case, really aren't qualified to decipher the facts and make a decision," he said. "If you have a case that has complicated medical facts, these decisions should be made by a jury of your peers."

Specifically, a panel of medical experts, Dr. Herzog contends.

Attorney John T. Evans of the Manhattan law firm of Belair & Evans represented Dr. Herzog in the recent court case and is representing him in the pending matters on Staten Island, on which he declined to comment.

He agreed that complicated medical malpractice cases should be decided by medical experts. However, he believes changing the current jury system would require a Constitutional amendment. That's something others say is unlikely to happen.

"In a sense, it's a crazy, crazy system," said Evans. "It's teaching lay people very complicated medicine in a short period of time."

Critics say doctors have been singing the same one-note tune for years.

Citing a 2006 study, a Manhattan-based consumer group contends that less than 10 percent of an estimated 1 million people injured annually by medical errors in various disciplines file malpractice lawsuits.

That means most people hurt by doctors' or hospitals' errors aren't being compensated, according to that group, the Center for Justice & Democracy.

"I've never met a doctor who said that any case against them wasn't frivolous," said Joanne Doroshow, the group's executive director.

Instead of griping about medical malpractice suits or proposing that such cases be decided by a potentially biased medical panel, doctors and the state need to do a better job of getting rid of bad physicians, said Ms. Doroshow. According to a 2003 study by Public Citizen, a national nonprofit consumer watchdog, 7 percent of the state's 80,000 doctors account for 68 percent of medical malpractice payouts.

"If the state would simply weed out the small number of bad doctors that are responsible for most payments, it would be a win-win situation for everyone," she said. "They need to crack down on bad doctors. Preventing injuries and deaths has to be the priority."

Ms. Doroshow also disputes the notion that obstetricians are fleeing the state in droves.

A 2004 study by the New York Public Interest Research Group showed that New York has the fourth-highest number of ob-gyns per capita in the country, she said. If anything, baby doctors are limiting or dropping their hectic round-the-clock practice for other, more settled specialties, she said.

"The dominant issue is much more about lifestyle and age than any other factor," said Ms. Doroshow, adding that she doesn't foresee ob-gyns handing off all deliveries to laborists.

Dr. Herzog, the Bulls Head ob-gyn, readily admits his hours are crazy. But, he says, he knew that when he chose his profession. What he couldn't predict was all the legal and insurance headaches.

There are times, Dr. Herzog said, when he wonders what he got himself into. However, those dark moments pass quickly when he gets back into the delivery room.

"After catching a few babies, I can understand why I do this stuff," he said, brightening. "Hopefully, I'll never be forced to stop."

Frank Donnelly is a news reporter for the Advance. He may be reached at fdonnelly@siadvance.com.

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