Today, one in three babies in the United States comes into the world by cesarean section. The cesarean section has become the most commonly performed operating room procedure in the United States. Conventional wisdom holds that malpractice liability bears primary responsibility for the cesarean-section epidemic and that tort reform, which caps physician liability, holds the key to its reduction. This Article presents new aggregate empirical data that debunks this view. For the first time, it provides a national cesarean rate for births subject to damage caps and a national cesarean rate for births without damage caps. This data shows that a woman is not less likely to give birth by cesarean section in a state with damage caps than in one without. Thus, either damage caps are insufficient to address physicians’ concerns or other explanations better account for the overuse of the procedure. The empirical analysis will assist policy-makers and advocates seeking to reduce the cesarean rate as well as contribute to consideration of the efficacy of medical malpractice reform as a means to reduce the broader problem of medical overtreatment.
The Article then outlines three policy initiatives to reduce the
cesarean-section rate. First, it suggests upending the current payment practice for deliveries. Contrary to the present norm, it proposes that obstetricians receive more, rather than less, to deliver vaginally to compensate them for the extra time that vaginal delivery takes compared to cesarean delivery. Second, rather than looking to tort reform to reduce cesarean-section rates, the Article explores whether malpractice insurance providers themselves are contributing to the cesarean-section epidemic and advocates for two novel medical malpractice insurance reforms to address this problem. Third, it advocates for public disclosure of hospital and physician cesarean-section rates so that women can make informed decisions when selecting their healthcare providers and when determining whether to have a cesarean section.
The full text of this Article is available to download as a PDF.