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Negligence and malpractice are two of the most dreaded words to a veterinarian. This article defines the law of negligence and malpractice. Case results are used to explain some of the problems that have arisen in practice. Ideas and methods that the practitioner can use to avoid lawsuits for malpractice and negligence are included.
STUDY PURPOSE: To describe the characteristics of malpractice claims against emergency physicians and to identify causes and potential preventability of such claims. POPULATION: Malpractice claims closed in 1988, 1989, and 1990 against emergency physicians insured by the Massachusetts Joint Underwriters Association were compared with claims closed from 1980 to 1987 as investigated in our previous study. METHODS: Retrospective review of malpractice claim files by board-certified emergency physicians. RESULTS: The average indemnity and expense per claim were higher in the current study population than in our previous study population (P = .05). Claims in eight high-risk diagnostic areas (chest pain, abdominal pain, fractures, wounds, pediatric fever/meningitis, subarachnoid hemorrhage, aortic aneurysm, and epiglottitis) accounted for 50.8% of claims in this study and 55.5% of total monetary losses. Four claims in this study were related to two instances of failure of an emergency department radiograph follow-up system. The evaluation of patients who were intoxicated contributed to major monetary losses, especially in cases of fractures and head injury. CONCLUSION: Emergency physicians must have a particular awareness of their great risk exposure for missed myocardial infarction. Addition of dictation or voice-activated record generation systems, departmental protocols for radiograph follow-ups, and holding and re-evaluation of the intoxicated patient will help provide systems supports for reducing the liability of individual emergency physicians.
In recent years, changes in the organization of healthcare institutions and the increased number of medical malpractice claims have revealed the need to study the concept of medical responsibility and the repercussion of these changes on healthcare provision. To date, discussion has focussed on legal aspects and economic implications have been largely ignored.The present article reviews studies that have performed an economic analysis the subject. Firstly, we examine studies that gradually introduce the concepts of uncertainty, risk aversion and moral hazard. Secondly, in the healthcare environment, we pay particular attention to models that include new arguments on professionals' objective duties or to bargaining models when there is asymmetric information. Finally, we consider the medical malpractice insurance market and investigate how reputation and the possibilities of exercising defensive medicine influence healthcare provision. Our analysis suggests that, due to the characteristics of the healthcare market, the models proposed by the economy of information are very useful for performing economic analyses of liability in medical malpractice. However, alternative hypotheses also need to be formulated so that these models can be adapted to the specific characteristics of different health systems.
The malpractice tort system functions upon the assumption that the medical profession defines its own standard of care. Hence, clinical assessments should theoretically mirror legal ones. However, if there is a conflict between the two, this conflict may reflect a perceived bias of the system either for or against a party. This exploratory study attempts to determine whether such a bias could exist. Physicians and layperson jury pool members were asked to review 10 jury verdict case scenarios. Respondents were asked first to assess whether the defendant physician provided clinically appropriate care; they were then asked to predict what the jury in the case actually decided. Laypersons showed significantly better agreement with actual jury verdicts on clinical assessment and success in jury verdict prediction than physicians. Both physicians and laypersons switched the favored party from clinical assessment to verdict prediction, with a vast majority of these changes being made from defendant to plaintiff. These results were consistent overall and when parsing assessments by case verdicts. Thus, laypersons and physicians may perceive a similar bias toward plaintiffs in the malpractice system. If these results can be generalized, the malpractice system may be inducing behavior that has a negative impact on patient safety.
Over the past 40 years, malpractice suits in child and adolescent psychiatry have gone from almost nonexistent to a source of major concern. Suits that involve child and adolescent patients remain fairly uncommon, and no damages are paid in six out of seven cases. The two cardinal principles for the clinician in avoiding and defending malpractice suits are to practice in accordance with his or her best clinical judgment and to document care, particularly in areas in which an unexpected adverse result may lead to a lawsuit. The most common areas that give rise to suit are failure to protect a child inpatient from assault or sexual interaction with another inpatient, adolescent suicide, medication errors, and issues related to child abuse. Evolving areas of malpractice law derive from incipient patient's rights legislation, development of the "direct victim" test in cases brought by third-party parents against therapists who have diagnosed children as sexually abused, implementation of new federal rules regarding privacy of records, and provision of medical information or treatment over the Internet.
An improperly healed fracture was the most common reason for the medical malpractice crisis between the 1830s and 1860s in the United States. As a practicing lawyer in Illinois, Abraham Lincoln defended physicians in medical malpractice law suits. One of these was Dr. Powers Ritchey, who was sued for malpractice in 1855. Lincoln agreed to represent Dr. Ritchey in 1858 as the case was appealed to the supreme court of Illinois. In the interim, Lincoln defended two indicted murderers and won acquittals for both. Between the two murder trials, Lincoln debated Stephen A. Douglas while running for U.S. Senator from Illinois. Lincoln believed that Ritchey's case was poorly represented in the lower court. Ritchey's prior attorneys did not file a bill of exceptions to the testimony of the plaintiff's expert medical witnesses. Lincoln attempted to rebut the allegation of a lack of reasonable medical care and diligence by Ritchey, and he sought to secure a new trial for his client. In its decision, the supreme court of Illinois did not find any error and affirmed the lower court's judgment.
In case of a possible or certain lethal case of medical malpractice the following procedure is recommended: 1. Scrutinize every death of a patient during or after a medical treatment. Address the following questions: "Did everything proceed correctly?", "Could death have been prevented?", "This should not have been happened". 2. Report to the head physician, to the hospital management and administration in order to coordinate the further procedures. 3. Save all the evidence: Perfusions, empty phials, opened drug packages. Leave all catheters, tubes, drainages on the body! Leave any technical equipment, for example anesthetic machines untouched. Save all prior blood and urine samples taken from the patient. Seal medical history and documentations. 4. Order a memory protocol of the events by all involved persons. 5. Refrain from clinical autopsy. Forensic autopsy, indicated in these circumstances, can only be authorized by the district attorney (see point 7). If in doubt, seek counseling from an institute of forensic medicine by telephone (if requested: anonymously). 6. Put "non natural death" on the death certificate in case of a certain and unclear death in case of a possible medical malpractice. 7. Report any possible or certain case of lethal medical malpractice to the district attorney (obligation to report). The district attorney will authorize a 8. Inform the relatives of the deceased. Apologize, show regret and concern but do not address the question of guilt. 9. Inform your third party insurance (this does not mean an admission of guilt).
INTRODUCTION: An arbitration board had to decide whether or not there had been a causal connection between an adenoidectomy or resp. a tonsillectomy and an atlanto-axial dislocation and if so whether this was to be considered a case of malpractice. CASE HISTORIES: In two young girls aged 6 and 11 a torticollis had developed 3 resp. 4 days after the operation. In both cases the proper diagnosis was made only after extensive diagnostic procedures including radiology, neurology, neurosurgery and orthopaedics. The findings are presented in detail. In both cases there was a rotary subluxation between cervical vertebrae C1 and C2 due to a retropharyngeal inflammation. Normal function could only be achieved by surgical reposition and the application of a fixateur externe for quite a long period. DISCUSSION: A non-traumatic torticollis is a very rare complication of an adenoidectomy or tonsillectomy, two of the most common surgical interventions in oto-rhino-laryngology. It is known as Grisel's disease because Grisel in 1930 was the first to describe this sequel following nasopharyngitis and tonsillectomy. A detailed review of the literature and a discussion of the underlying pathology is presented. Predisposing factors might be additional local anaesthesia and electro-haemostatis. CONCLUSIONS: : In both cases evidence for malpractice could not be found, neither concerning the intervention itself nor the handling in the postoperative period. The latency of several days between the operation and the manifestation of the torticollis is regarded as proof that intraoperatively there was no malpractice. In cases where the torticollis is present immediately after the intervention, as has been reported in the literature, a traumatic luxation during the operation or positioning of the patient may be taken into consideration. Because of the extreme rareness of the complication it does not seem compulsory to make it part of the preoperative informed consent.
BACKGROUND: In the current debate over tort reform, critics of the medical malpractice system charge that frivolous litigation--claims that lack evidence of injury, substandard care, or both--is common and costly. METHODS: Trained physicians reviewed a random sample of 1452 closed malpractice claims from five liability insurers to determine whether a medical injury had occurred and, if so, whether it was due to medical error. We analyzed the prevalence, characteristics, litigation outcomes, and costs of claims that lacked evidence of error. RESULTS: For 3 percent of the claims, there were no verifiable medical injuries, and 37 percent did not involve errors. Most of the claims that were not associated with errors (370 of 515 [72 percent]) or injuries (31 of 37 [84 percent]) did not result in compensation; most that involved injuries due to error did (653 of 889 [73 percent]). Payment of claims not involving errors occurred less frequently than did the converse form of inaccuracy--nonpayment of claims associated with errors. When claims not involving errors were compensated, payments were significantly lower on average than were payments for claims involving errors (313,205 dollars vs. 521,560 dollars, P=0.004). Overall, claims not involving errors accounted for 13 to 16 percent of the system's total monetary costs. For every dollar spent on compensation, 54 cents went to administrative expenses (including those involving lawyers, experts, and courts). Claims involving errors accounted for 78 percent of total administrative costs. CONCLUSIONS: Claims that lack evidence of error are not uncommon, but most are denied compensation. The vast majority of expenditures go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant.
BACKGROUND: Expert opinion in medical malpractice is a form of implicit assessment, based on unstated individual opinion. This contrasts with explicit assessment processes, which are characterized by criteria specified and stated before the assessment. Although sources of bias that might hinder the objectivity of expert witnesses have been identified, the effect of the implicit nature of expert review has not been firmly established. METHODS: Pairs of anesthesiologist-reviewers independently assessed the appropriateness of care in anesthesia malpractice claims. With potential sources of bias eliminated or held constant, the level of agreement was measured. RESULTS: Thirty anesthesiologists reviewed 103 claims. Reviewers agreed on 62% of claims and disagreed on 38%. They agreed that care was appropriate in 27% and less than appropriate in 32%. Chance-corrected levels of agreement were in the poor-good range (kappa = 0.37; 95% CI = 0.23 to 0.51). CONCLUSIONS: Divergent opinion stemming from the implicit nature of expert review may be common among objective medical experts reviewing malpractice claims.
The Hippocratic oath commands doctors to be the patient's supreme advocate. Coupling this command with a well-trained physician is the sine qua non of orthopaedic risk management. A favorable doctor and patient relationship also is essential. Avoiding a malpractice lawsuit involves the physician's ability to anticipate and remedy adverse occurrences in diagnosis and treatment, and knowing the essence of informed consent and awareness of the standard of care. Documentation is the common denominator in the defense of malpractice claims and for the surgeons, the perioperative notes are paramount. The occurrence of a malpractice lawsuit is more often the result of the failure to practice the art of medicine by the orthopaedist rather than a failure to apply the science of orthopaedics.
A national survey was conducted to investigate malpractice litigation at United States child and adolescent psychiatry residency programs between 1981 and 1991. Fourteen percent of the directors of child and adolescent psychiatry reported at least one malpractice claim during this period. The highest percentage of lawsuits reported was in the northeast. Suicide and sexual abuse of latency age patients by other patients accounted for the most litigation. The mean monetary award was $167,000, and the largest award was $500,000 for discharge of a patient who killed his mother. There has been an increase in malpractice litigation during the past 10 years. Risk management strategies should be implemented to address areas of liability in child and adolescent psychiatry training programs.
PURPOSE: To provide ophthalmologists treating patients with vitreoretinal diseases the means by which to improve patient care and risk management. METHOD: The members of the Macula, Retina, and Vitreous Societies were mailed questionnaires regarding their malpractice litigation experience, and the responses were analyzed. RESULTS: Rhegmatogenous retinal detachment was the most common presenting diagnosis in these lawsuits. The most frequent modality of management was pars plana vitrectomy (40%). Negligent treatment (surgical or medical) (63%) was alleged more than negligent diagnosis (10%). Decreased vision after treatment (40%), failed surgery (13%), and no improvement in vision (10%) were the most common medical misadventures. CONCLUSION: Vitreoretinal specialists are at risk for malpractice litigation because a high percentage of the diseases they manage have significant potential for severe visual impairment or blindness and because most vitreoretinal surgery is more complex in nature than general ophthalmic surgery. Rhegmatogenous retinal detachment is the most common presenting diagnosis in most studies on ophthalmic malpractice litigation, and most of these patients are treated by vitreoretinal specialists. Many vitreoretinal patients present for treatment of trauma or failed treatment by another practitioner and may be more prone to litigation. As consultants, vitreoretinal specialists are at risk for being included in lawsuits primarily directed toward other physicians. These risks are a strong indication for a thorough discussion of informed consent and the development of a good physician-patient relationship.
A questionnaire investigating the psychologic sequelae of malpractice litigation was administered to sued and nonsued physicians through a major malpractice insurer in a rural southern state. Factor analysis showed clusters of symptoms, including psychologic trauma, job strain, shame/doubt, and active coping. Psychologic stress decreased with time (but did not return to baseline after 2 years), with winning a case, and with increased age. Stress was increased among those with cases pending or multiple suits. Female physicians used more active coping strategies, and being in a high-risk specialty led to greater job strain and active coping, regardless of litigation experience. Malpractice litigation is a major life trauma that should be dealt with as any other trauma, including use of positive coping strategies such as knowledge of the psychologic sequelae, cognitive reframing, and collegial and personal support systems.
We address four major issues related to physicians' fear of litigation: What are physicians' attitudes and beliefs toward malpractice? To whom or what do they attribute the "malpractice crisis"? Is fear of litigation associated with demographic and practice variables? What measures do physicians take to reduce risk? Hospital physicians in a southeastern health science center were surveyed (N = 356). Physicians attributed the malpractice crisis to circumstances outside medicine and beyond their control, perceived some patients as suitprone, and reported altering their practice to avoid being sued. Litigation fear was associated with physicians who were female, younger, not board certified, less clinically experienced, more clinically active, defendants in prior lawsuits, and in high-risk specialties. Physicians who were especially fearful of litigation placed less value in risk-management techniques. The findings are important in understanding how the prospect of litigation is perceived by physicians and how that perception may affect medical practice.
Patient confusion and anger resulting from poor provider-patient communication are major factors giving rise to malpractice claims. This article uses the true story of Patient X to explore how communication issues contribute to claims. It also studies the motives of malpractice plaintiffs within the context of the scholarly literature. The article concludes that critical paths can play a positive role in ensuring timeliness, consistency, thoroughness, and patient comprehension of key communication. If used correctly, critical paths can address some of the root causes of malpractice suits.
The learning objectives of this paper are to study the actual extent of medical malpractice, the medical acts at risk, and their impact on mortality. The number of suits filed against physicians for deaths resulting from alleged malpractice and autopsies ordered by the Judicial Authority in cases of possible therapeutic misadventures are rising. A major factor pushing this trend is public mistrust of healthcare providers and public and facilities. This mistrust is partly fueled by the mass media which, often to gain larger audience shares, sensationalizes single cases of real or alleged iatrogenic injury. Further, the potential for astronomic settlements, either from the single doctor or from the healthcare institution, has increased the number of legal proceedings that start on the basis of mere suspicion. In this context, the autopsy becomes an important instrument for shedding light on the situation, and it must be carried out by highly qualified and experienced professionals capable of ascertaining the cause of death, identifying any possible misconduct, and assessing its consequences. We reviewed the data regarding autopsies performed at the Forensic Medicine Section of the Department of Internal and Public Medicine of the University of Bari over 1991 to 2000. We culled the cases alleged malpractice and, from these, identified those in which the death had truly been caused by medical error. This study also allowed us to understand the incidence of lethal therapeutic misadventures and to identify the medical and surgical branches more frequently involved.
BACKGROUND: Physician experts hired and prepared by litigants provide most of the information on standard of care for medical malpractice cases. Since this information may not be objective or accurate, the authors examined the feasibility and potential value of surveying peer physicians to assess standard of care. METHODS: The survey method for assessing standard of care was evaluated for a medical malpractice case involving an abdominoplasty that had a poor cosmetic result. An abstract of the case that included the patient's characteristics and physician's decisions that were most likely to influence patient outcome was created from the transcribed testimony of the plaintiff's expert witness. This abstract and a survey that included questions about four decisions made by the defendant were sent to 28 plastic surgeons in the Midwest who were identified by searches of public documents. RESULTS: Eleven plastic surgeons experienced in abdominoplasty completed the survey. Their responses in all four areas contrasted sharply with those of the highly credentialed medical expert for the plaintiff. CONCLUSIONS: These results suggest that physician surveys are feasible and may provide very different results than those from expert witnesses about standard of care in medical malpractice cases.