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PubMed1997

Medical malpractice arbitration: a primer for Texas physicians.

The medical malpractice crises and ensuing tort reform efforts, including methods of alternative dispute resolution (ADR), are generally reviewed. Arbitration in the context of medical malpractice is examined from the perspective of other states' experiences. Michigan has one of the nation's oldest medical malpractice arbitration programs, but it suffers from underutilization. California's experience derives from the use of arbitration in the managed care setting. While Texas has statutory provisions for medical malpractice arbitration, in light of public policy favoring ADR, the statute could be perceived as antipublic policy, resulting in underuse. The National Practitioner Data Bank also serves to discourage physician participation. Policy options are offered to address these concerns.

Humans↗
PubMed1991

How profitable is medical malpractice insurance?

High medical malpractice insurance premiums charged to physicians have created the perception of a crisis. Some researchers have expressed the concern that medical malpractice insurance companies are making excessive profits. In this paper I compute the actual and allowable normal underwriting profit rates in medical malpractice, as well as in other liability lines, for six large insurance companies. These allowable, normal profit rates are then compared with actual profit rates to evaluate the relative profitability of each line of insurance. Data from 1978 through 1986 show that medical malpractice insurance ranked medium in underwriting profitability compared with other lines of insurance, and during 1985-86 it was the least profitable insurance business.

Actuarial Analysis↗
PubMed1998

Medical malpractice implications of alternative medicine.

Although use of alternative therapies in the United States is widespread and growing, little is known about the malpractice experience of practitioners who deliver these therapies or about the legal principles that govern the relationship between conventional and alternative medicine. Using data from malpractice insurers, we analyzed the claims experience of chiropractors, massage therapists, and acupuncturists for 1990 through 1996. We found that claims against these practitioners occurred less frequently and typically involved injury that was less severe than claims against physicians during the same period. Physicians who may be concerned about their own exposure to liability for referral of patients for alternative treatments can draw some comfort from these findings. However, liability for referral is possible in certain situations and should be taken seriously. Therefore, we review relevant legal principles and case law to understand how malpractice law is likely to develop in this area. We conclude by suggesting some questions for physicians to ask themselves before referring their patients to alternative medicine practitioners.

Complementary Therapies↗
PubMedDate not supplied

Statistical models of outcome in malpractice lawsuits involving death or neurologically impaired infants.

The objective was to determine whether factors could be identified in medical and legal records that are associated with the successful defense of obstetrical malpractice cases involving the death or neurological impairment of infants. Obstetrical claims (169) closed by PROMUTUAL between January 1, 1990, and December 31, 1994, were retrospectively abstracted and analyzed to identify associations between medical and legal factors, and the medicolegal outcome. Multivariable analysis identifies that the use of pitocin, diagnosis of asphyxia, a delay in delivery, and the use of multiple defense expert witnesses decreased the chances of a successful defense. Two statistical models explaining indemnity payment were developed. The first, based on medical outcome, showed an increased indemnity payment when a case involved major neurological deficits, diagnosis of asphyxia, newborn seizures, later year of delivery, and participation of a particular defense firm. Perinatal or childhood death and the use of pitocin were indicators of a decrease in payment. The second model was based on long-term care requirements. In this model, indicators of increased indemnity payment were: nonreassuring intrapartum fetal heart rate tracing, later year of delivery, intensity of long-term care required, and participation of a particular defense law firm. Perinatal or childhood death, the use of pitocin, and settlement date increasingly removed from the occurrence date were the determinants of decreased payments in this model. Finally, the presence of major neurological deficits, the prolongation of a case, and the involvement of multiple law firms and defense witnesses increased the expense charged to and paid by the insurance company. Using the medical, legal, and financial data relevant to 169 obstetrical cases closed by one malpractice insurance carrier between 1990 and 1994, statistical models with potential predictive values for future malpractice claims involving neurologically impaired infants were constructed. These models may help determine in advance the chance a future case has for successful defense and the likely amount of expense and indemnity dollars that will be paid out to settle and defend it.

Adolescent↗
PubMedDate not supplied

Solo versus group practice in the medical profession: the influence of malpractice risk.

While Partnerships are a significant form of business organization in many sectors of the economy, relatively little is known about the incentives which lead to their formation. This paper explores the formation of partnerships among office based physicians when facing some risk of malpractice litigation. Theoretical results indicate that malpractice exposure can increase the incentives to shirk within a partnership, and so exert a significant influence on the decision to form a partnership. Empirical results find that malpractice risk has the expected negative effect on some partnership formation.

Appointments and Schedules↗
PubMed1994

Measuring physician attitudes toward cost, uncertainty, malpractice, and utilization review.

OBJECTIVE: To develop a reliable measure of physician attitudes postulated to influence resource utilization. DESIGN: Statements related to attitudes that may influence resource use were culled from the literature and informal discussions with physicians. SETTING: Academic medical center. PARTICIPANTS: All faculty and housestaff in internal medicine, pediatrics, family medicine, and surgery at an academic medical center were surveyed. The response rate was 59% (n = 428). RESULTS: Exploratory factor analysis of all internal medicine surveys revealed four prominent domains. These closely corresponded with our a-priori hypothesized domains and were interpreted as cost-consciousness, discomfort with uncertainty, fear of malpractice, and annoyance with utilization review. A replication of the analysis using 25 survey items and conducted on the remainder of the data (surgeons, pediatricians, and family practitioners) revealed a similar four-factor solution. Scales were constructed for each of the four domains. Cronbach's alpha ranged from 0.66 to 0.88. Discomfort from uncertainty and fear of malpractice were moderately correlated (r = 0.42); other scale-scale correlations were modest. Of the four attitude measures, only cost-consciousness was associated with lower self-estimates of resource use. Both annoyance with utilization review and fear of malpractice increased as the proportion of time spent in patient care increased. CONCLUSIONS: Although various physician attitudes and beliefs have been hypothesized to influence health services resource use, reliable and valid measures for most of these have not been developed. The authors developed a 19-item survey instrument designed to measure these attitudes reliably. The four scales developed in this study may help identify physician attitudes that are important determinants of physician decision making and help foster a better understanding of physicians' reactions and acculturation to different practice environments.

Academic Medical Centers↗
PubMed2004

[Accusations of malpractice in chirotherapeutic treatment].

BACKGROUND: Little is known about the incidence of adverse effects after chiropractic manipulation. Over representation of severe and under representation of less severe complications has to be assumed. MATERIAL AND METHODS: A total of 57 expert opinions from the malpractice advisory board of the North Rhine General Medical Council (Nordrheinische Arztekammer), as well as judgments from German courts since 1949, were analyzed. RESULTS AND CONCLUSIONS: A total of 16 of 57 cases of chiropractic manipulation (since 1975) were attested as malpractice by expert opinion, seven of which had significant negative consequences. In nine cases, the judgments of German courts refer to manual therapy. Of these, five deal with informed consent. Observance of the "Bingen Declaration" would have avoided all cases of malpractice found by the advisory board over 29 years.

Adult↗
PubMed1992

Physician demographics and the risk of medical malpractice.

PURPOSE: This study was undertaken to clarify which, if any, physician demographic characteristics are associated with an increased rate of medical malpractice claims. METHODS: We analyzed the malpractice experience of 9,250 physicians insured for at least 2 years from 1977 to 1987 in the state of New Jersey. After adjusting for years at risk, physician claims per year was categorized into low, medium, and high. RESULTS: Male physicians were three times as likely to be in the high-claims group as female physicians, even after adjusting for other demographic variables (relative risk, 3.1; 99% confidence interval, 2.2 to 4.4). Specialty was strongly associated with claims rate, with neurosurgery, orthopedics, and obstetrics/gynecology having 7 to 12 times the number of claims per year as psychiatry, the specialty with the fewest claims. The rate of claims varied with age (p < 0.001) and peaked at approximately age 40. No association was evident between claims rate and a physician's site of training or type of degree. CONCLUSION: Male physicians are three times as likely to be in a high-claims category as female physicians. We suspect that the most likely explanation for this finding is that women interact more effectively with patients. Understanding the reasons for the variation in claim rates between physicians may lead to the development of methods to reduce the overall rate of malpractice claims.

Adult↗
PubMed1991

Analysis of 500 obstetric and gynecologic malpractice claims: causes and prevention.

Five hundred obstetric and gynecologic malpractice litigation claims were analyzed to determine the incidence of claims that could not be defended because of breach of standards of care, problems with documentation, or both. Of the 500 claims, 294 were obstetric and 206 were gynecologic. Of the obstetric claims, 79 (27%) were indefensible because of breaches of standards of care (71%), problems with documentation (5%), or both (24%). Of the 206 gynecologic claims, 45 (22%) were indefensible because of breaches of standards of care (62%), problems with documentation (24%), or both (13%). The incidence of indefensible obstetric and gynecologic claims was 25%. Indefensible claims were analyzed to determine the common medical and surgical problems that instigated the malpractice suits. Recommendations are made that should reduce the incidence of indefensible malpractice suits.

Documentation↗
PubMed1989

Trauma malpractice claims related to trauma level designation.

The purpose of the present study was to review a one-state experience (Arizona) with trauma malpractice claims as a function of hospital trauma level designation. A total of 191 cases covering 7 years was reviewed and analyzed. Three categories of treatment facilities were compared: American College of Surgeons-categorized Level I hospitals, all other hospitals, and outpatient treatment facilities. Only 22 percent of the malpractice claims were found in Level I facilities, whereas 58 percent were found in other hospitals and 20 percent came from outpatient facilities. Not surprisingly, the indemnity awards were more than two times higher in other hospitals than in Level I hospitals. However, the legal dollars spent in defense per claim were two times higher in Level I than either outpatient hospitals or outpatient treatment facilities, suggesting that Level I malpractice claims are more defensible. We have identified six areas of high potential liability and have made some suggestions for the reduction of risk management in those areas.

Arizona↗
PubMed1991

Canadian medical malpractice liability: an empirical analysis of recent trends.

The determinants of the frequency of Canadian malpractice claims, the proportion of claims that result in payment, and the severity of these claims are examined. Inter-specialty variation in the frequency of malpractice claims is almost entirely related to the differential performance of major surgery. Various legal doctrines concerning both compensation and liability appear responsible for approximately half of the upward trend in the propensity to initiate malpractice litigation. We believe that the remaining explanations for growth in claims frequency are changes in social attitudes toward risk-bearing, increasing social distance between patients and physicians, and innovations in medical technology.

Canada↗
PubMed2005

A descriptive review of malpractice claims for health care-acquired infections in Philadelphia.

BACKGROUND: Philadelphia's rate of malpractice filings per population is just over double the national median. Plaintiffs prevail in 44% of verdicts in Philadelphia compared with 20% for all US jury verdicts, with 24% of awarded verdicts in excess of $1 million. OBJECTIVE: To determine patient and procedure demographic data for malpractice claims involving health care-acquired infections (HAIs) in Philadelphia. METHODS: Risk managers representing 60 acute care hospitals, members of Pennsylvania Trial Lawyers Association, and a random sample of 560 lawyers representing plaintiff and defense cases obtained from the Philadelphia Court of Common Pleas database (1996-2002) were surveyed. The survey included the following: number of HAI cases by specialty, body site, isolate, and outcome. RESULTS: Overall response rate was 25% (n = 154 cases). The highest numbers of cases were in the specialties of orthopedics (69), general surgery (20), and cardiothoracic (20). Sites infected most often were as follows: knees (26), back (26), sternum (18), and harvest site (10). Methicillin-resistant Staphylococcus aureus (MRSA) was responsible for 45 of cases, S epidermidis for 27, methicillin-susceptible S aureus (MSSA) for 14, and Pseudomonas for 16. Twenty-seven of the cases were withdrawn, 27 settled, 11 pending, 9 plaintiff verdict, and 5 defense verdict. CONCLUSIONS: Although 72% of HAI malpractice cases in Philadelphia were either withdrawn or settled, when brought to trial, the plaintiff was more likely to succeed with a verdict. Our findings also suggest that the most frequent type of infection (class I-surgical site) and isolate (MRSA) are more likely to be seen as preventable HAIs because of National Nosocomial Infection Surveillance data showing lower infection rates for this class of surgery and therefore seen as easier for the plaintiff to show that the defendant failed to adhere to the standard of care for infection control.

Cross Infection↗
PubMed2005

Dermatology's malpractice experience: clinical settings for risk management.

BACKGROUND: Dermatologists need objective information that will help them make rational risk management decisions. OBJECTIVE: We asked, "What can be learned from the limited sources available regarding the clinical situations associated with malpractice litigation against dermatologists?" METHODS: We searched 2 legal databases, one jury verdict and settlement reporter, and reviewed and analyzed a major report from an association of physician insurers. RESULTS: A wide variety of clinical circumstances give rise to malpractice claims. Melanoma is still associated with high risk, and common conditions are associated with relative claim frequency. The clinical details currently available do not encourage optimal responses to reports of malpractice cases. CONCLUSION: Information that clinicians can use in their own risk management efforts can be derived from available sources, but more reliable objective data is needed.

Dermatology↗
PubMed2006

Case for tort reform in medical malpractice.

Under tort law, injured parties have the basic right to seek indemnity for wrongful injury, including injury from medical malpractice. Unfortunately, the present system is associated with many undesirable secondary effects, including problems of patient access to care, excessive testing or overtreatment, and undertreatment due to doctors' fear of malpractice. Nationwide, there are innumerable cases of doctors abandoning obstetrical or other high risk practices, or migrating away from states with less friendly tort laws. The California MICRA legislation of 1976 is often cited as a model for tort reform, but even this model legislation may be insufficient to restore a beleaguered trust between medical providers and their patients. Several key research studies suggest that the jury system fails to fairly and reliably compensate injured patients, and fails to deter or discipline errant doctors. To adequately meet the common needs of patients and health care providers, there must be an appropriate emphasis on aggressive risk management, quality improvement, patient safety, professional oversight, and responsible insurance underwriting. Moreover, there must be a systemic improvement of the current tort system as it pertains to medical malpractice. Although incremental reforms at the state level are slowly occurring and should certainly be supported, a greater reward may ultimately stem from more radical restructuring to a system of medical tribunals.

Humans↗
PubMed2003

Medical malpractice predictors and risk factors for ophthalmologists performing LASIK and photorefractive keratectomy surgery.

PURPOSE: To identify physician predictors in LASIK and photorefractive keratectomy (PRK) surgery that correlate with a higher risk for malpractice liability claims and lawsuits. DESIGN: Retrospective, longitudinal, cohort study. PARTICIPANTS AND METHODS: A comparison of physician demographic and practice pattern data of 100 consecutive Ophthalmic Mutual Insurance Company (OMIC) LASIK and PRK claims and lawsuits with demographic and practice pattern data for all active refractive surgeons insured by OMIC between 1996 to 2002 was made. Background information and data were obtained from OMIC underwriting applications, a physician practice pattern survey, and claims file records. Using an outcome of whether or not a physician had a history of a claim or lawsuit, logistic regression analyses were used separately for each predictor as well as controlling for refractive surgery volume. MAIN OUTCOME MEASURE: Malpractice claim or lawsuit for performance of PRK or LASIK surgery. RESULTS: Logistic regression analysis demonstrated that the most important predictor of filing a claim was surgical volume, with those performing more surgery having a greater risk of incurring a claim (odds ratio [OR] = 31.4 for >1000 surgeries/year versus 0-20 surgeries/year, 95% confidence interval [CI] = 7.9-125, P = 0.0001). Having one or more prior claim was the only other predictor examined that remained statistically significant after controlling for patient volume (OR = 6.4, 95% CI = 2.5-16.4, P = 0.0001). Physician gender, advertising use, preoperative time spent with patient, and comanagement seemed to be strong predictors in multivariate analyses when surgical volume was greater than 100 cases per year. CONCLUSION: The chances for incurring a malpractice claim or lawsuit for PRK or LASIK correlate significantly with higher surgical volume and a history of a claim or lawsuit. Additional risk factors that increase in importance with higher surgical volume include physician gender, advertising use, preoperative time spent with the patient, and comanagement with optometrists. These findings may be used in the future to help improve the quality of care for patients undergoing refractive surgery and to provide data for underwriting criteria and risk management protocols to manage proactively and perhaps reduce the risk for claims and lawsuits against refractive surgeons.

Adult↗
PubMed2006

Analysis of surgical errors in closed malpractice claims at 4 liability insurers.

BACKGROUND: The relative importance of the different factors that cause surgical error is unknown. Malpractice claim file analysis may help to identify leading causes of surgical error and identify opportunities for prevention. METHODS: We retrospectively reviewed 444 closed malpractice claims, from 4 malpractice liability insurers, in which patients alleged a surgical error. Surgeon-reviewers examined the litigation file and medical record to determine whether an injury attributable to surgical error had occurred and, if so, what factors contributed. Detailed descriptive information concerning etiology and outcome was recorded. RESULTS: Reviewers identified surgical errors that resulted in patient injury in 258 of the 444 (58%) claims. Sixty-five percent of these cases involved significant or major injury; 23% involved death. In most cases (75%), errors occurred in intraoperative care; 25% in preoperative care; 35% in postoperative care. Thirty-one percent of the cases had errors occurring during multiple phases of care; in 62%, more than 1 clinician played a contributory role. Systems factors contributed to error in 82% of cases. The leading system factors were inexperience/lack of technical competence (41%) and communication breakdown (24%). Cases with technical errors (54%) were more likely than those without technical errors to involve errors in multiple phases of care (36% vs 24%, P = .03), multiple personnel (83% vs 63%, P < .001), lack of technical competence/knowledge (51% vs 29%, P < .001) and patient-related factors (54% vs 33%, P = .001). CONCLUSIONS: Systems factors play a critical role in most surgical errors, including technical errors. Closed claims analysis can help to identify priority areas for intervening to reduce errors.

Adolescent↗
PubMed2006

Malpractice issues in neurological surgery.

BACKGROUND: Malpractice litigation continues to be a serious problem in neurosurgery despite many suggestions to contain liability, including proposed federal legislation. METHODS: A current study of 275 malpractice claims has been compared with a prior study of 300 cases of liability and potential liability reported in 1985. Twenty years later, the results are surprisingly similar. Spinal surgery continues to dominate neurosurgical malpractice claims with 42% of the total, most from lumbar spine operations. As in the previous study, trauma and intracranial surgery account for the next largest groups. Of particular significance in terms of improved diagnostic methodology were spinal operations at the wrong level as well as failure to diagnose sentinel bleeds, aneurysms, arteriovenous malformation, and other cerebral lesions. RESULTS: Although many cases believed defensible were settled often because of significant neurological deficit, a number were dropped or dismissed after review, reports, or depositions, and defense verdicts were achieved in a similar number that went to trial. CONCLUSIONS: Most plaintiff claims that had merit were settled. Although hope continues for tort reform, uniform capitation of noneconomic awards, and contingency fees, it should be noted that 119 claims, more than 40%, were considered either not defensible by defendants or had merit for the plaintiff.

Craniocerebral Trauma↗
PubMedDate not supplied

Malpractice claims in gastrointestinal endoscopy: analysis of an insurance industry data base.

We investigated 610 endoscopy-associated and 486 gastroenterology-associated malpractice claim files of the Physicians Insurers Association of America data-sharing project. We determined the relative malpractice claim risk for each of the major types of endoscopic procedures by comparing claim frequencies with Medicare performance frequencies. Relative malpractice risks were 1.0 for sigmoidoscopy, 1.2 for esophagogastroduodenoscopy, 1.6 for endoscopic retrograde cholangiopancreatography, and 1.7 for colonoscopy. "Improper performance" was alleged in 54% of claims and "diagnosis error" in 24% of claims. Of 121 claim files alleging a diagnostic error, 74 (61%) pertained to missed malignancies, of which 69% were colorectal. Of 147 claims alleging iatrogenic injury, 140 (95%) involved perforation or similar direct injury to the gastrointestinal tract. Problems with consent were alleged in 44% of 158 endoscopy-related claim files alleging additional associated issues.

Databases, Factual↗