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PubMed1989

Health care litigation: understanding and explaining causation.

This is the fourth in a series of articles on health care litigation. This article focuses on the substantive aspects of causation, one of the most difficult and controversial issues in health care litigation. The article identifies the differing perspectives of the medical and legal professions on the concept of cause and proposes an approach to clarify the concept for juries, judges, and arbitrators. An analysis of the procedural aspects of causation will appear in the next issue of The Medical Staff Counselor.

Health Services↗
PubMed1989

Health care litigation: proving--and disproving--causation.

This article, the fifth in a series, focuses on procedural issues concerning the causation element in health care litigation. The fourth article in the series identified the different perspectives of the medical and legal professions on the concept of cause and proposed an approach to clarify the concept for juries, judges, and arbitrators. This article analyzes the procedural aspects of proving causation or--as most health care providers in litigation often find it necessary to do--disproving causation.

Expert Testimony↗
PubMed2000

Risk management: how doctors, hospitals and MDOs can limit the costs of malpractice litigation.

The concerns of doctors regarding their risk of malpractice litigation and the costs of indemnity premiums are resulting in calls for legal reforms to limit their liability. We do not believe these returns will be successful either practically or politically. Medical defence organisations often attempt to vindicate the doctor rather than settle the dispute--a strategy that might be morally satisfying to doctors but which is also more expensive than the approach taken by commercial insurers. Risk management--the activities required to minimise financial loss for hospitals and the doctors who work in them--is disorganised or absent in most hospitals. Hospital managers lack incentives for risk management because the costs of litigation do not come out of their budgets. The five mainstays of effective risk management are credentialling of medical staff, incident monitoring and tracking, complaints monitoring and tracking, infection control, and documentation in the medical record. The implementation of risk management activities in hospitals is the immediate responsibility of hospital management, not doctors.

Australia↗
PubMed2002

Litigation: a threat to obstetric practice?

Claims that the practice of obstetrics is in crisis appear regularly in the media, but evidence for the claims is scarce. This article examines a range of evidence from Australia and overseas and explores the relationship between obstetric practice and litigation. While anecdotal evidence abounds, there is no hard evidence to confirm that litigation is the threat to obstetric practice that many practitioners strongly believe it is. It is likely that such practitioners respond by practising defensive medicine but this is very difficult to measure.

Attitude of Health Personnel↗
PubMed2001

Loss of a chance in medical malpractice litigation: expanding liability of health professionals versus providing justice to those who have lost.

The loss of a chance doctrine in medical malpractice litigation is essentially based on the perceived unfairness of denying recovery to a patient when a health provider's malpractice has reduced the patient's chance of a better outcome. It is the thesis of the article that loss of a chance must the recognised at law, notwithstanding that the chance is less than even or not subject to the benefit of statistical and/or scientific proof and that each lost chance should be assessed according to the value of that chance. Varying approaches to allocating value to the chance lost are examined both historically and internationally. The author contends that the policy arguments--which include potential for increased medical malpractice litigation, tainted reputations and an increase in professional indemnity policies--are insignificant when compared to the value and quality of human life and therefore cannot be supported.

Australia↗
PubMed2002

Factitious disorders in civil litigation: twenty cases illustrating the spectrum of abnormal illness-affirming behavior.

Physical symptoms are commonly alleged in civil litigation. In some instances these symptoms are originally produced by psychological factors and antedate the alleged injury being claimed as a tort. These cases reflect abnormal illness-affirming behavior. Factitious physical disorders represent a special category of these individuals because they produce their signs and symptoms consciously. This article reviews common features of 20 cases of factitious disorder in which the patients were involved in civil litigation. Attention to these factors can facilitate differential diagnosis, which can lead to improved understanding of causation and appropriate clinical interventions. The authors discuss how the actions of such individuals often shift along the entire spectrum of abnormal illness-affirming behavior over time.

Adult↗
PubMed1992

Attitudes of physicians to medical malpractice litigation in Canada.

This article reports the results of a survey of the attitudes of medical practitioners in the Sudbury and Manitoulin Health District of Northern Ontario with respect to their experience of litigation alleging medical malpractice. The survey is part of a research project, funded by the Foundation for Legal Research, Montreal, investigating the extent to which the very high incidence of medical litigation in the United States of America is likely to spread to Canada.

Adult↗
PubMed1996

Recommendation for test administration in litigation: never administer the category test to a blindfolded subject.

Fox (1994) purports to determine the appropriateness of the normative data for the Logical Memory subtest of the Wechsler Memory Scale-Revised for individuals in litigation and suggests that "...many of these people would have been incorrectly diagnosed as having a neuropsychological problem that did not exist." His data do not support such a conclusion, but rather appear simply to demonstrate that patients in litigation concerning potentially painful orthopedic and/or emotional injuries can, as a group, perform slightly below average levels on memory tests.

Journal Article↗
PubMed1994

Normative problems for the Wechsler Memory Scale-revised logical memory test when used in litigation.

A sample of 100 neuropsychologically normal worker's compensation claimants was evaluated with the Trail Making Test, the Logical Memory Test of the Wechsler Memory Scale-Revised (WMS-R) (immediate and delayed) and the (MMPI) to determine the appropriateness of the Logical Memory norms for individuals in litigation. Results indicate these claimants performed below normal, possibly due to depression or poor motivation while age and education were not important factors. The danger of using such norms uncritically in litigation cases is discussed.

Journal Article↗
PubMed2003

Quantitative measures of memory malingering on the Wechsler Memory Scale--Third edition in mild head injury litigants.

Wechsler Memory Scale-Third edition (WMS-III) performance in 25 mild traumatic brain injury (TBI) litigants who met the criteria for probable malingered neurocognitive dysfunction (MND) was compared with 50 nonmalingering subjects. The base rate for probable MND in the population studied was 27%. Overall, malingerers showed globally depressed memory function. They returned significantly poorer scores than nonmalingerers on all WMS-III indexes and subtests, and on selected WMS-III index difference scores and intelligence-memory difference scores. Using the minimum score returned in the nonmalingerers as the cut-off for malingering, the delayed auditory recognition memory tasks were highly effective in detecting malingering. Raw scores below 43 on the auditory recognition-delayed (AR-D) subtest or below 18 on word list II-recognition, identified around 80% of the malingerers. In a group of 50 severe TBI litigants, only a very small proportion (i.e., <10%) returned scores below the cut-offs for malingering for the mild TBI subjects.

Adolescent↗
PubMedDate not supplied

Medical malpractice litigation raises health-care cost, reduces access, and lowers quality of care.

This article examines the impact of medical malpractice litigation on health-care cost, the availability of employer-sponsored health insurance, and the quality of health-care services. Among the findings are that unlimited, uncapped medical malpractice litigation added as much as 97.5 billion dollars annually to the cost of hospital and physician services; increased the annual cost of employer-provided health insurance by as much as 12.7 percent; decreased by 2.7 million the number of workers and their families covered by employer-provided health insurance; caused a 6 percent decline in physicians in the U.S., many of whom work in critical specialty areas; lost access to critical medical services for up to 14.4 million people; resulted in malpractice underwriting losses of 8.6 billion dollars in 2001, double that of 10 years earlier; and had a low predictive value in identifying whether medical malpractice had occurred.

Compensation and Redress↗
PubMed2004

Medical litigation in cosmetic plastic surgery.

AIM: This article aims to highlight issues related to malpractice in plastic surgery and to point out the importance of good understanding of the law and the value of a patient's written informed consent as measures of professional protection. METHODS AND MATERIAL: Search of relevant literature from PubMed. RESULTS: The demand for cosmetic plastic surgery increases despite the increasing cost, in contrast to other traditional goods for which demand typically declines as price increases. Cosmetic plastic surgery has moved beyond the stage of being an exclusive privilege of the rich and famous. Nevertheless, cosmetic plastic surgery is one of the medical specialties exposed to a substantially high risk of malpractice claims. Most malpractice claims in cosmetic plastic surgery are not consequences of technical faults but because of inadequate patient selection criteria and lack of adequate communication between patient and surgeon. Proven efficient training, careful utilization of computer imaging techniques in association with the adoption of simple precautions and guidelines and adequate communication along with a completed patient's consent form are important essentials in case of medical litigation. CONCLUSIONS: In today's litigious society, maintenance of high standards in daily practice with continuous training and appropriate documentation of every procedure are all a sufficient defense of the plastic surgeon in case of medical litigation. Written patient's informed consent remains an integral part of the communication between physicians and patients, and importantly is facilitating professional protection.

Communication↗
PubMed2005

Damages in medical litigation in New South Wales.

In the period 2001 to 2003, the New South Wales legislature enacted four Acts that impinge on the assessment of damages in litigation against health professionals. They are the Health Care Liability Act 2001 (NSW), the Civil Liability Act 2002 (NSW) (as originally enacted), the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) and the Civil Liability Amendment Act 2003 (NSW). This article considers the principles on which damages are assessed in medical litigation and how those principles have been affected by these four enactments. It points out that each piece of legislation was retrospective in applying to events that occurred both before and after its commencement. However, proceedings already issued before a particular date were excluded in each case from the retrospective operation of the legislation. The article provides details of the relevant dates of operation of each of the statutes.

Compensation and Redress↗
PubMed2004

The use of Food and Drug Administration 510(k) notifications in patent litigation.

The U.S. Food and Drug Administration (FDA) 510(k) approval process provides medical device companies with the ability to market a device after the company establishes that the device to the marketed is "substantially equivalent" to one or more predicate devices. Companies that submit 510(k) notifications should be aware, however, that a 510(k) notification is a public document that may later reappear as evidence in patent litigation. Courts have considered 510(k) notifications to be relevant evidence in determining direct and contributory infringement, patent invalidity, and patent unenforceability due to inequitable conduct before the U.S. Patent and Trademark Office (USPTO). In one case, the court held that a substantial equivalence determination by FDA constituted evidence that can be "construed as an admission of infringement." The court also has relied on a 510(k) notification to support a finding of personal liability for a corporate officer who signed the 510(k) notification to be evidence of willful and deliberate conduct, and have awarded treble damages and reasonable attorney's fees to the prevailing party. The potential for increased risk in patent litigation is important for practitioners in the medical device industry, because more than seventy-five percent of medical devices are approved for marketing through the 510(k) process. This article reviews a number of patent cases in which a court has admitted a 510(k) notification as relevant evidence, and proposes general strategies for avoiding these situations.

Device Approval↗
PubMed1992

Tobacco litigation--purpose, performance, and prospects.

Product liability litigation can dramatize the dangers of tobacco use, stymie industry propaganda efforts, reveal nefarious industry behavior, and force price increases. Recent recognition of nicotine addiction, "discovery" documenting the industry's stonewalling campaign of more than 35 years, and favorable legal developments make future success likely. Litigation can also be used to pressure employers to provide smoke-free working environments, force retailers to obey laws prohibiting sales to minors, require tobacco companies to abandon "colonialist" Third World marketing practices, publicize the falsity of pseudoscientific industry assertions, and prevent television stations from broadcasting tobacco advertising masquerading as sports events. Even defending against harassing legal actions brought by the industry can embarrass the industry and publicly vindicate pro-health groups that oppose it.

Humans↗
PubMedDate not supplied

Minimizing medical litigation, Part 1.

The global rise in medical litigation has led to defensive medical practices and rising malpractice insurance premiums. There is a need to review all possible factors influencing litigiousness of the society and to develop strategies to control such factors. Some of the contributory causes of rising litigiousness include higher patients' expectations, poor provider-patient communication, and adversarial legalism of the society. A good combination of system, professional, and legislative strategies may keep medical litigation in check. Part 2 of this article will address the development of a dispute resolution framework.

Humans↗
PubMed2006

McTear v Imperial Tobacco: understanding the role and limitations of expert epidemiological evidence in scientific litigation.

The use of epidemiological evidence in litigation presents a range of challenges for both litigants and the courts. Given the complex statistical basis of epidemiology itself, it is possible that the technical and factual constraints associated with such evidence may fail to be properly considered by a trier of fact. The recent Scottish decision in McTear v Imperial Tobacco Ltd [2005] Scots CSOH 69 sets a high standard for the future use of epidemiological evidence and thoroughly evaluates the strengths and weaknesses of epidemiology generally. While epidemiological evidence remains controversial, and cannot in itself prove direct causation (nor causation in the individual), it is likely it will continue to be adduced as indirect evidence of general causation. It is also likely, however, that both the subjective and objective processes involved in epidemiological study design and reporting will be questioned by courts more thoroughly than has historically been the case. Further, failure by a party to adduce primary evidence (ie original data sets and interpretation thereof) of an epidemiological study which it seeks to rely on at trial will most likely undermine the value of adducing such evidence in the first place.

Causality↗
PubMed1991

The demographic and psychiatric characteristics of 110 personal injury litigants.

One hundred ten litigants who were suing for emotional damages were assessed by the author for medical-legal reasons. Most of the plaintiffs were involved in motor vehicle accidents and suffered from "whiplash" injuries. Semi-structured interviews were used to reach criteria based on DSM-III-R diagnoses. Requests for consultation, on average, came 25 months after the patient's accident. Approximately 70 percent of patients had evidence for continuing physical injuries to account for the physical and emotional symptoms. The most common DSM-III-R diagnoses were psychiatric condition affecting physical illness (N = 56), major depression (N = 27), and somatoform disorder (N = 12). Alternative diagnoses relating the effect of the accident on the patient's life included: emotional reaction to physical condition (N = 29), difficulty coping with developmental tasks (N = 20), severe depression (N = 20), aggravation of normal premorbid personality (N = 18), aggravation of abnormal premorbid personality (N = 14), phobia (N = 7), no permanent effect (N = 12), and independent illness (N = 2). Severe emotional problems and disability are common among litigants. The causes of their suffering are more complex and less poorly understood than is assumed from the pejorative labels that are sometimes applied. Lawyers and the courts need the help of psychiatrists to understand this suffering. Empirical data such as these may lead to better classification systems and improve our understanding and treatment of these patients.

Accidents, Traffic↗