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PubMed1987

Medical malpractice in perspective. I--The American experience.

Concern over the possibility of an American style medical malpractice "crisis" in the United Kingdom has recently been voiced by members of both medical and legal professions. The validity of such fears is examined by reviewing the conditions that have given rise to the current American difficulties. It is argued that the rise in malpractice insurance premiums and associated restrictions in availability should be seen against the background of underwriting problems specific to medical liability in conjunction with a general decline in reinsurance cover. The evidence in relation to the clinical and resource implications of malpractice is analysed. In particular, arguments that increased litigation has influenced the practice of "defensive" medicine and the choice of specialty are critically examined. Medical malpractice claims and insurance are only part of a professional environment which is undergoing dramatic social and economic changes, many of which seem more plausible candidates to be treated as important influences on the nature and organisation of health care in the United States.

Costs and Cost Analysis↗

PubMed1978

Medical malpractice insurance. Part II. Some proposed solutions.

Organized groups of physicians should be considered potential initiators of any concerted effort to solve the medical malpractice problem. This may occur by a number of means, among them (a) establishment of malpractice review panels, (b) a patient's compensation board, (c) no-fault malpractice insurance, (d) substitution of claims-made insurance policies for the present-occurrence system now in use, and (e) malpractice insurance funds supported by insurance premiums and administered by panels composed in part of insured physicians. Cooperation between the insurance industry and the legal and medical professions might make it unnecessary for external agencies to impose regulations and policies at some future date.

Clinical Competence↗

PubMed2003

Malpractice in oncology.

In oncology, as in all other medical disciplines, medical malpractice is assumed when the physician has not taken sufficient care in his treatment, and when he has not met the required standards of medical care. The physician is liable for damages when distinct harm has arisen from this. In oncology, accusations of malpractice arise especially when suspicion of a malignancy is not based on unequivocal substantive diagnostic criteria (for example, the appropriate appraisal of routine x-rays or screening scans), or in terms of organizational mistakes. Stringent safeguards in oncological diagnostics and therapy are usually based on approved and generally recognized guidelines. From the time that the malignancy is suspected, there is therefore little concrete danger that malpractice will be attested provided these guidelines are complied with. The tolerance accorded by experts in respect of intraoperative complications in oncological operations appears to be great amongst medical expert witnesses. If a malpractice is attested, the distinct damage resulting from this can only be appraised approximately, e.g. by comparing the statistical probability of survival in various tumor stages.

Expert Testimony↗

PubMed2004

Physicians and strikes: can a walkout over the malpractice crisis be ethically justified?

Malpractice insurance rates have created a crisis in American medicine. Rates are rising and reimbursements are not keeping pace. In response, physicians in the states hardest hit by this crisis are feeling compelled to take political action, and the current action of choice seems to be physician strikes. While the malpractice insurance crisis is acknowledged to be severe, does it justify the extreme action of a physician walkout? Should physicians engage in this type of collective action, and what are the costs to patients and the profession when such action is taken? I will offer three related arguments against physician strikes that constitute a prima facie prohibition against such action: first, strikes are intended to cause harm to patients; second, strikes are an affront to the physician-patient relationship; and, third, strikes risk decreasing the public's respect for the medical profession. As with any prima facie obligation, there are justifying conditions that may override the moral prohibition, but I will argue that the current malpractice crisis does not rise to the level of such a justifying condition. While the malpractice crisis demands and justifies a political response on the part of the nation's physicians, strikes and slow-downs are not an ethically justified means to the legitimate end of controlling insurance costs.

American Medical Association↗

PubMed2004

Do anesthesia information systems increase malpractice exposure? Results of a survey.

Anesthesia information systems (AIS) record data from patient monitors and create a detailed electronic anesthesia record. Because the anesthesia record is a primary piece of evidence used in court during a malpractice proceeding, the ability to create an anesthesia record has fostered considerable debate concerning the impact of this method of record keeping on malpractice exposure. Fifty-five departments using AIS were surveyed to document their medicolegal experience with electronic anesthesia records. Twenty-four departments responded to the survey, 18 of which had more than 5 yr experience with the technology. Respondents reported 41 malpractice cases filed since adopting AIS technology. Of the cases filed, 30 were dropped, and 11 went on to settlement or litigation. There were no reported cases in which the automated record hindered the defense process. Eighteen respondents viewed this technology as valuable for risk management, and three more viewed it as essential. The experience reported by these departments indicates that AIS are useful for managing malpractice risk.

Anesthesiology↗

PubMed1989

No-fault cerebral palsy insurance: an alternative to the obstetrical malpractice lottery.

Sixty percent of malpractice premiums paid by obstetricians go to cover suits for alleged birth-related cerebral palsy (CP). Yet substantially less than half of that money goes to CP victims, and less than 10 percent of children with CP receive any compensation at all from tort suits. This paper proposes a system that would compensate all children born with CP for most handicap-related expenses, in exchange for which the children would be foreclosed from bringing suits alleging birth-related malpractice. Malpractice would be policed by a state board, which would investigate all CP cases. This proposal would be more equitable than current systems. It would also be less expensive, since it would avoid costly litigation and decrease the cost of obstetrical malpractice insurance.

Birth Injuries↗

PubMed1995

Malpractice reform in the 1990s: past disappointments, future success?

State governments, the federal government, interest groups, and researchers have proposed various approaches to reform the malpractice system. Malpractice reforms fall into two generations. First-generation reforms are those adopted by states beginning in the 1970s chiefly to reduce claim frequency and severity and thereby improve the malpractice system primarily from the perspective of providers and insurers. Scholars and interested constituencies developed second-generation reforms, such as use of medical practice guidelines to set the standard of care, various no-fault approaches, enterprise liability, mandated alternative dispute resolution, and scheduling damages, to streamline the adjudication and compensation system from the perspective of claimants and providers. Research indicates that first-generation reforms have not been very effective in achieving the compensation and deterrence goals of tort, whereas second-generation reforms hold greater promise of doing so. This analysis of state and federal legislation indicates that states, and more recently Congress, have been reluctant to adopt second-generation reforms but continue to promote and/or adopt first-generation reforms. The strength of the provider lobby, concerns of health care reformers about the relationship between defensive medicine and health system costs, and lack of an organized consumer force for second-generation malpractice reform are important explanations of why the states and Congress have not embraced second-generation reforms. Furthermore, federal and state legislative interest in second-generation reforms, although never high, is waning in the current health care reform debate.

Consumer Advocacy↗

PubMed1996

Medical practice guidelines in malpractice litigation: an early retrospective.

The role of practice guidelines in malpractice litigation has been discussed in some theoretical detail. Little information is available, however, on how courts use guidelines or on the effort of state legislatures to explicitly link guideline compliance with malpractice defenses. We review all relevant case law and legislative enactments to shed light on the influence of medical malpractice on guidelines. We also use data from a nationwide survey of malpractice attorneys to supplement our legal analysis. Although guidelines are being used for both inculpatory and exculpatory purposes in common-law litigation (a two-way street), legislatures are interested in applying them only for exculpatory purposes (a one-way street).

Expert Testimony↗

PubMedDate not supplied

The forgotten third: liability insurance and the medical malpractice crisis.

Although the most visible manifestations of medical malpractice involve patient safety and the legal process, the availability and affordability of liability insurance largely determine the direction of medical malpractice policy. Scientific and industrial developments since the first modern malpractice crisis in the 1970s reveal major problems with the structure and regulation of liability insurance. Comprehensive reforms that approach medical malpractice insurance as a health policy problem are needed, and the Medicare program may have a major role to play.

Cost Control↗

PubMed2006

The impact of state laws limiting malpractice damage awards on health care expenditures.

Twenty-eight states have laws that limit payments in malpractice cases, and several studies indicate that these laws reduce the frequency and severity of malpractice claims and lower premiums. Moreover, proponents believe that such laws reduce health care expenditures by reducing the practice of defensive medicine. However, there is a dearth of empirical evidence about the impact of these laws on the cost of health care. We used multivariate models and relatively recent data to estimate the impact of state tort reform laws that directly limit malpractice damage payments on health care expenditures. Estimates from these models suggest that laws limiting malpractice payments lower state health care expenditures by between 3% and 4%.

Compensation and Redress↗

PubMedDate not supplied

Aviation model cognitive risk factors applied to medical malpractice cases.

OBJECTIVE: Aviation accidents have been reduced substantially by training pilots to avoid high-risk behaviors caused by cognitive errors. To determine whether similar cognitive cause factors or errors are involved in medical malpractice cases, and to evaluate the reliability of identifying such factors, physicians reviewed state and federal malpractice cases in a legal database. METHOD: Reviewing physicians evaluated 30 cases meeting inclusion criteria from state and federal malpractice cases for the year 2004 in the 8th US Circuit Court of Appeals region, using criteria for cognitive factors derived from aviation. The cases were categorized into three classes based on the degree of agreement between the reviewers. The results as to prevalence of the factors and reliability of identifying the factors were then analyzed statistically. RESULTS: Fifty-nine percent of the cases met criteria for strong and good correlation with the factors. Cognitive factors involving IMSAFE (illness, medications, stress, alcohol, physiogical (f), and emotional) and medical team management/leadership can be reliably identified. Other factors, such as hazardous attitudes and loss of situational awareness, were identified with minimal reliability. CONCLUSION: The aeronautical cognitive causative approach can be translated into a medical approach to reliably identify cognitive causes of errors in a significant proportion of medical malpractice cases from a legal database.

Accidents, Aviation↗

PubMed2005

Evidence-based approaches to minimizing malpractice risk in orthopedic surgery.

The malpractice crisis continues unabated in the United States. However, there are many strategies with foundations in scientific study that physicians can use to reduce their malpractice risk. Studies have shown technical error has little relationship with malpractice claims. Patients with higher education levels and socioeconomic status are more likely to file lawsuits. Surgeons should be aware of how to respond in the event a claim is filed. Improving physician-patient communication is the cornerstone of any strategy to reduce malpractice claims.

Appointments and Schedules↗

PubMed2006

Tort law and medical malpractice insurance premiums.

This paper estimated the effects of tort law and insurer investment returns on physician malpractice insurance premiums. Data were collected on tort law from 1991 through 2004, and multivariate regression models, including fixed effects for state and year, were used to estimate the effect of changes in tort law on medical malpractice premiums. The premium consequences of national policy changes were simulated. The analysis found that the introduction of a new damage cap lowered malpractice premiums for internal medicine, general surgery, and obstetrics/gynecology by 17.3%, 20.7%, and 25.5%, respectively. Lowering damage caps by dollar 100,000 reduced premiums by 4%. Statutes of repose also resulted in lower premiums. No other tort law changes had the effect of lowering premiums. Simulation results indicate that a national cap of dollar 250,000 on awards for noneconomic damages in all states would imply premium savings of dollar 16.9 billion. Extending a dollar 250,000 cap to all states that do not currently have them would save dollar 1.4 billion annually, or about 8% of the total. A negative effect on malpractice premiums was found for the Dow Jones industrial average, but not for bond prices; effects of the Nasdaq index were not significant for internal medicine, but were marginally significant for surgery and obstetrics premiums.

Economics, Medical↗

PubMed2002

The role of the autopsy in medical malpractice cases, I: a review of 99 appeals court decisions.

CONTEXT: Fear that damaging information from autopsy may be introduced as evidence in lawsuits alleging medical malpractice is often cited as one factor contributing to the decline in autopsy rates. OBJECTIVE: To determine how autopsy information influences the outcome of medical malpractice litigation. DESIGN: We studied state court records in 99 cases of medical malpractice adjudicated from 1970 to the present to assess the role of information from autopsies in the outcomes. RESULTS: The 3 largest groups defined by cause of death at autopsy were acute pulmonary embolism, acute cardiovascular disease, and drug overdose/interaction. Findings for defendant physicians outnumbered medical negligence in the original trial proceedings by a 3:1 margin. The appellate courts affirmed 51 acquittals and 19 findings of negligence, and reversed the original trial court decision in 29 cases for technical reasons. We found no significant relationship between accuracy of clinical diagnosis (using the autopsy standard) and outcome of a suit charging medical negligence. Even when a major discrepancy existed between the autopsy diagnosis and the clinical diagnosis, and the unrecognized condition was deemed treatable, defendant physicians were usually exonerated. Moreover, major diagnostic discrepancies were relatively uncommon in suits in which a physician was found to be negligent. Conversely, in about 20% of cases, autopsy findings were helpful to defendant physicians. CONCLUSIONS: Our study confirms that a finding of medical negligence is based on standard-of-care issues rather than accuracy of clinical diagnosis. Autopsy findings may appear to be neutral or favorable to either the plaintiff or the defendant, but are typically not the crux of a successful legal argument for either side in a malpractice action. We conclude that fear of autopsy findings has no rational basis and is an important obstacle to uninhibited outcomes analysis.

Adult↗

PubMed1994

Constitutional rights versus malpractice insurance settlements.

The increasing costs and complexity of malpractice litigation have created an statutory right that allows malpractice insurance companies to settle malpractice claims regardless of the desires of the defendant physician. In the past, the consequences of settling a malpractice claim out of court were not as important as they are today. The Health Care Quality Improvement Act of 1986 mandates that any settlement in behalf of a physician be documented in the National Practitioner Data Bank (NPDB), which must be consulted every time the physician is credentialed. This NPDB requirement denies due process to health care providers and thus becomes a violation of the federal and many state constitutions. Physician executives and medical leaders must bring these issues to the table and negotiate solutions before damage to practicing physicians and the U.S. health care delivery system caused by this legal paradox become too severe.

Civil Rights↗

PubMed1997

The unrealized potential of malpractice arbitration.

Although the use of arbitration in the commercial arena has increased tremendously in recent years, there has been a reluctance to adopt arbitration of medical malpractice claims in place of litigation. After discussing the benefits of arbitration in medical malpractice cases, Professor Metzloff examines why the use of arbitration has not become predominant, discussing such factors as judicial hostility, failure of state statutes designed to encourage arbitration, and lack of hard evidence that arbitration works. Professor Metzloff then explores the future of arbitration in medical malpractice cases, citing examples from his own work experience with Duke Law School's Private Adjudication Center, and discusses attributes which would make malpractice arbitration successful in the future.

American Medical Association↗

PubMed1979

Escalating malpractice costs: what's behind them...what preventive procedures can be taken to reduce claims.

Medical malpractice actions are increasing at an alarming rate. Within the past five years, the incidence of such claims has escalated to such an extent that many physicians in hospitals are finding it difficult to obtain insurance. When insurance has been obtained, its cost has approached the prohibitive. To understand what's behind this increase in actions and costs, a review of the law of negligence, the law that most affects medical malpractice, is in order. With such understanding, those most affected financially by the escalation in malpractice costs (notably the health facility and the physician) can consider what preventive procedures can be taken to eliminate a substantial percentage of potential lawsuits. Without taking such preventive action, none of the current methods of confronting malpractice costs--private carriers, co-insurance, group policies, self-insurance, or going bare--will be effective for any period of time in keeping those costs in check.

Cost Control↗

PubMed2000

Malpractice risk assessment among different approaches for informed consent.

INTRODUCTION: The standards for obtaining informed consent, set forth by the Hawaii Revised Statutes, establish that it is the physician's duty to disclose what a reasonable person objectively needs to hear in order to make an informed decision. It is the purpose of this study to report the opinions of medical malpractice attorneys to survey their opinion whether full or limited disclosure of alternative treatments in informed consent is viewed as having a lower malpractice risk. METHODS: Hawaii medical malpractice attorneys viewed a compilation of arguments for and against both full and limited disclosure, and completed an opinion survey after reading samples of disclosure statements in two different case scenarios: 1) a pediatric emergency department case involving a febrile child at risk for occult bacteremia, and 2) an obstetrics case involving a woman with a postdate pregnancy. RESULTS: A vast majority of respondents believe that, in general and in the obstetrics case, full disclosure results in less liability. In the pediatrics ED case, 46% chose full disclosure as having less liability, 38% believe that the same liability exists with both full and limited disclosure, and 15% believe that limited disclosure is associated with less liability in this case. CONCLUSIONS: Hawaii attorneys with medical malpractice experience overwhelmingly agree that, in general, full disclosure is associated will less medical legal liability. Full disclosure was also the option selected as associated with less liability by a majority of attorneys in a sample obstetrical case. Opinions were more diverse in the pediatrics ED case. Many attorneys stressed that judging the risk of liability in general is difficult, and should be done on a case by case basis.

Adult↗