Monday, March 05, 2007

Doula Liability and Insurance

A comment in my last post asked about doulas and liability insurance. I just spent the last 15 minutes trying to find my post on this topic at the DONA discussion board. It was several years ago, however, and long gone. I've written on the topic less directly in this blog here and here. But as to a full-blown post, none yet. So here are my thoughts on doulas and liability insurance:

Get it.

One of the meta-themes in law school is how the legal system -- at least the common law legal system we use here in North America -- does not always (often?) have true justice as its aim.

Strike that. Another thing I learned in law school is the breadth of "gray areas" in the world and the narrowness of black and white ones. "True justice" depends on your ultimate goal. Making the guilty party pay? Law doesn't work so well. Bringing a sense of compensation to the wronged party? Slightly better results.

[Four paragraphs and I'm still stuck in philosophical rambling...cut to the chase already]

If you are a doula and practice long enough/active enough, you will likely be named in a lawsuit. It's that simple. Bad things happen at births. Bad things happen to newborn babies. Bereaved families or families facing lifetime expenses they can't meet have little recourse other than litigation.

In malpractice suits, anyone who might have some money or who might be responsible (though the former is more valuable than the latter) is named as a defendant. If you are in the room at the hospital when a baby dies, you may be named in a malpractice suit. If you arrive at the hospital with a couple in labor and the baby is found to have no heartbeat, you may be named in the malpractice suit. If you are providing postpartum care to a family whose baby dies of malnourishment you may be sued.

This does not mean you were guilty. It does not mean you were in any way responsible for the bad thing that happened. But until you are named as a defendant, no one knows how much money you're worth. Could be you have hundreds of thousands of dollars in personal wealth (stop laughing, doulas...some of us may be wealthy!). The way to see is to sue you.

[Note, my cynicism here -- and I fear it is coming across in my tone -- is directed at the legal system, not at the families who sue. Compensation under the present tort system in the US is difficult and I don't know what I would do if faced with a malpractice situation. Probably sue.]

Now chances are, if you were being a diligent doula and following DONA's Code of Ethics and Standards of Practice (and you don't have to be a certified doula to do this either), you will be dismissed from the lawsuit. Nothing helps your case like having followed the pre-existing behavioral guidelines of your profession. Incidentally, THIS is why doctors/hospitals won't let women do many of the things they'd like in labor. If a doctor allows a woman to try a VBA3C outside the OR and she dies from a ruptured uterus, a malpractice attorney can say, "This doctor was in clear violation of the standards of practice at X hospital (or ACOG); she put her patient at unreasonable risk and was negligent in letting the patient attempt to birth vaginally in the low risk wing of the hospital." Even if the patient insisted on laboring in the low-risk wing; even if the patient signed consent and waiver forms.

But I digress. You are likely to be dismissed from the lawsuit. No harm, no foul. Except that you will want a lawyer handling your motion to dismiss. The stakes are too high to try this on your own. And even if all the lawyer does is meet with you for a few hours and show up in court, you could easily face several thousand dollars in legal bills. And that's if it's uncomplicated.

Liability insurance through CM&F costs about $60/year. That and adherence to the DONA guidelines should provide enough protection to let you sleep easy at night.



Anonymous Anonymous said...

I also have my clients sign a release from liability waiver. I know its not foolproof but I figure it can't hurt.

7:45 PM  
Blogger doulicia said...

Good point! I actually have one, too. The value of a signed release is not in protecting you from being sued but in reminding the clients what is under your conrol and what isn't!

12:06 PM  
Anonymous Anonymous said...

My name is Shannon. I am a CD DONA, cbe and p/p doula up here in Canada, Hamilton, ON. I really appresiate your blog entry;we do not have an insureer up here yet that offers us insurance. Because midwifery is aRgistered Profession,(province pays)we would have to be insured with them for Pro. Liability....OUCH!!! (sigh) In my contract though, I do have a disclaimer. It gets me thinking however, that maybe I should have a seperate Waiver of Liability.

5:00 PM  
Anonymous Anonymous said...

You Rock! Thanks for responding to my question!! ;)

Now, for those of us employed in a hospital and working in the hospital I hear from fellow staff that to carry an additional policy will actually attract lawsuits, but how?
Should I do something to protect my assets, like my home etc?
Not to get you into the realm of providing legal advice, but I would be more than happy to make a donation to your not-for-profit instead of just making random searches on the net! I just can't seem to understand how a private policy would attract a lawsuit for a workplace related would seem to be further protection.

Can you tell I don't often use an attorney? Feel free to disregard too, I appreciate your comments so far!

11:42 PM  
Blogger Rebecca said...

This is wonderful food for thought. I am a new doula (I have just been hired by my first client!!!) so probably don't need this yet, but it is good to think about. Thanks!

1:38 PM  
Blogger Real said...

One thing that I have done to help in this area is to have my doula/childbirth ed business set up formally as a legal business entity. I don't keep any assets in the business, I hold all the assets personally. That way if anything were to happen, someone could sue the business, but not me personally.

4:44 PM  
Blogger Joanna said...

Just getting started as a pp doula. You answered some good questions I had. Can you give an example of a well written liability waiver? Also, your link to the liability insurance isn't working...

7:39 PM  
Blogger doulicia said...

Joanna, send me an e-mail (doulicia at gmail) and I can attach the one I use.

7:38 AM  
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5:20 PM  
Anonymous Anonymous said...

I appreciate the discussion here as I am also looking to create a liability form for my clients.
Thanks for all the wonderful thoughts.

9:51 PM  
Anonymous Nana Doula said...

Interesting information. I was just looking to get liability insurance. I would like to see a copy of your waiver also. I will email you if that's alright. I am a postpartum doula and also a lactation couselor. Do you know if I would need two seperate policies?

11:53 PM  

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