There is evidence that induction of labor and Cesarean sections have been overused in the United States. This overuse has been driven by nonmedical factors such as fear of legal liability, physician and patient convenience, and reimbursement policies that encourage medical procedures. Unlike most other forms of defensive medicine, however, there is a rational basis for the perception that performing a Cesarean section makes it easier to defend a potential birth injury case. It is easier for a plaintiff’s attorney to attack a physician’s decision to do nothing or to operate too late than it is to prove technical errors in the performance of the Cesarean section.

More fundamentally, whereas a medically unnecessary Cesarean section subjects the mother to operative risks and increased morbidity, these risks are inherent in the procedure. If a proper informed consent is obtained or the jury does not believe that the patient would have refused the operation had she been properly informed, it is difficult to convince a jury that a patient should recover for the consequences of a properly performed but unnecessary operation. Paradoxically, efforts to reduce unnecessary medical interventions may exacerbate this problem.

As patients become more reticent to consent to Cesarean sections and induction of labor, and insurance companies increase financial incentives not to perform these interventions, the probability increases that necessary interventions will be delayed or omitted. There is no evidence, however, that juries will accept cost containment as a defense. Juries are also skeptical about a patient’s refusal to consent to needed treatment. When the question is refusal of necessary care, juries tend to believe that physicians ultimately can convince patients to consent. These factors require that decisions not to use medical interventions be well documented and the patient carefully educated.