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This paper reviews the legal principles involved in tort litigation and covers the evolution of case law regarding recovery of damages for psychic trauma. Concepts of zone of danger, foreseeability, and proximate cause are discussed. Issues for both plaintiff and expert witness are discussed. Case examples are provided, and recommendations are made regarding the child psychiatrist's involvement in these cases.
Most major health reform proposals include reform of medical malpractice. A major objective of the current medical malpractice system is to improve quality of care. The authors examine the effect of variations in the threat of medical malpractice, measured by claims frequency and payments per exposure year, on various indicators of birth outcomes, fetal deaths, low Apgar score, death within 5 days of birth, infant death, and death or permanent impairment at 5 years of age. Data came from 2 sources: a Survey of Obstetrical Care of 963 women in Florida in 1992 who delivered 5 years previously; and a fetal death and a linked birth-death file obtained from Florida Vital Statistics for 1987. Among the outcomes considered, only fetal deaths decreased in response to an increased threat of being sued, and this relationship was only obtained from one of the data sets. Overall, no systematic improvement in birth outcomes in response to an increased threat of medical malpractice litigation was obtained.
The legal aspects of caring for patients and the fear of disciplinary actions or malpractice suits understandably are matters of great concern for infusion specialists. This article is intended to be a broad overview of some of the legal causes of action that may arise through the rendering of professional nursing care, as well as an introduction to patients' rights to self-determination, informed consent, and informed refusal as a special area of litigation risk for the infusion specialist.
Obstetric care in the United States, as judged by maternal mortality, neonatal mortality, stillbirth rates, or any other metric, has never been better. Despite this, litigation over "bad outcomes" is threatening the specialty, not only now, but into the future. Despite damage to our specialty, the injured party often benefits little, if at all, from the process. Potential solutions include an emphasis on evidence-based medicine, a qualification and review process for medical experts, and a more rational and fair health court system.
Over the past 15 years, I have reviewed the records of six patients whose physicians were alleged to have failed to diagnose a pituitary tumor before it bled ("apoplexy") or failed to recognize apoplexy after it had occurred. These cases were referred by attorneys involved in lawsuits alleging medical negligence. Their histories are summarized here from available clinical records, depositions, and other legal documents. None of these cases is still in litigation. The purpose of this commentary is to show how such legal case material is useful in alerting the medical community to pitfalls in diagnosis.
A litigation crisis can be not only a costly jolt to a company's financial health but a disruptive force to company personnel and markets. Here is a blueprint for formulating a contingency plan for dealing with such a crisis.
Explores the relationship between doctors, lawyers and the government in the context of the explosion in clinical negligence litigation, clinical governance and the introduction of the Human Rights Act 1998. Examines these issues from a legal perspective. Concludes that successful risk management, careful monitoring and the implementation of authoritative guidelines hold the key to legal change.
The extent of the liability in obstetric litigation is discussed. Arguments between experts reveal the lack of agreed standards in cardiotocography. This paper discusses the problems which need to be addressed when defining what constitutes an abnormal cardiotocogram (CTG), how long it needs to abnormal before it is significant, the contribution made by inadequate equipment and the question of whether it is defensible to decide positively not to monitor. Records need to be archived for a minimum of 25 years.
Using excerpts from actual lawsuits that allege malpractice and name obstetric nurses as defendants, this article explores the process and some possible outcomes of malpractice litigation. It discusses the duty of the nurse, the concept of reasonably prudent practice, and the role of the expert. In addition, it identifies some institutional standards that can mitigate potential damages in malpractice claims.
So-called "off label" and unlicensed prescribing refers to the use of medicines outside of the indications for which they are licensed by national regulatory bodies. Off label prescribing is quite common in children, as most drugs are developed only on the basis of trials with adults. Nevertheless, physicians and hospitals can be wary of using medicines in this way for fear of litigation if adverse events occur. Given this unsatisfactory state of affairs, regulatory bodies are beginning to request robust data from pharmaceutical companies with regard to the use of their products in children. In the meantime, off label prescribing remains acceptable if there is no suitable alternative and physicians are confident that they are using agents in accordance with the body of respected medical opinion.
Recent debates about redress mechanisms for medical accident victims have been sidetracked by fears of an American-style medical malpractice crisis. What is required is a framework within which the debate can resume. This paper proposes such a framework by focusing on the compensation and deterrence objectives and placing them in the wider context of the social costs of providing medical services. The framework is then used to assess and compare the effectiveness of differing approaches. In particular, the American and British experiences of litigation, including the concept of 'defensive medicine', are evaluated. Also discussed briefly are alternatives to court-based complaints procedures including 'no-fault' schemes, professional ethics and internal complaints mechanisms.
BACKGROUND: The tobacco industry uses claims of state preemption or violations of the US Constitution in litigation to overturn local tobacco control ordinances. METHODS: Collection of lawsuits filed or threatened against local governments in the USA; review of previously secret tobacco industry documents; interviews with key informants. RESULTS: The industry is most likely to prevail when a court holds that there is explicit preemption language by the state legislature to exclusively regulate tobacco. The industry has a much weaker record on claims of implied preemption and has lost all challenges brought under equal protection claims in the cases we located. Although the tobacco industry is willing to spend substantial amounts of money on these lawsuits, it never won on constitutional equal protection grounds and lost or dropped 60% (16/27) of the cases it brought claiming implied state preemption. CONCLUSIONS: Municipalities should continue to pass ordinances and be prepared to defend them against claims of implied preemption or on constitutional grounds. If the ordinance is properly prepared they will likely prevail. Health advocates should be prepared to assist in this process.
A qualitative analysis of the trial and deposition testimony of professional historians who have testified on behalf of the tobacco industry shows that defence historians present a view of past knowledge about tobacco in which the public was frequently warned that cigarettes were both deadly and addictive over the broad historical period. While defence historians testify to conducting significant levels of independent research, they also draw upon a common body of research conducted by industry counsel to support its litigation efforts. Defence historians unduly limit their research materials, ignoring industry records and, therefore, critically undermine their ability to evaluate industry activity in the smoking and health controversy as it unfolded in historical time. A consequence is that defence historians present a skewed history of the cigarette in which the tobacco industry all but ceases to exist.
OBJECTIVES: To identify key themes related to tobacco advertising and promotion in testimony provided by tobacco industry-affiliated witnesses in tobacco litigation, and to present countervailing evidence and arguments. METHODS: Themes in industry testimony were identified by review of transcripts of testimony in the Tobacco Deposition and Trial Testimony Archive (http://tobaccodocuments.org/datta) from a sample of defence witnesses, including three academic expert witnesses, six senior executives of tobacco companies, and one industry advertising consultant. Counterarguments to the themes embodied in defence testimony were based on information from peer-reviewed literature, advertising trade publications, government reports, tobacco industry documents, and testimony provided by expert witnesses testifying for plaintiffs. RESULTS: Five major themes employed by defence witnesses were identified: (1) tobacco advertising has a relatively weak "share of voice" in the marketing environment and is a weak force in affecting smoking behaviour; (2) tobacco advertising and promotion do not create new smokers, expand markets, or increase total tobacco consumption; (3) the tobacco industry does not target, study, or track youth smoking; (4) tobacco advertising and promotion do not cause smoking initiation by youth; and (5) tobacco companies and the industry adhere closely to relevant laws, regulations, and industry voluntary codes. Substantial evidence exists in rebuttal to these arguments. CONCLUSIONS: Tobacco industry-affiliated witnesses have marshalled many arguments to deny the adverse effects of tobacco marketing activities and to portray tobacco companies as responsible corporate citizens. Effective rebuttals to these arguments exist, and plaintiffs' attorneys have, with varying degrees of success, presented them to judges and juries.
The author considers the effect of recent mental health litigation involving involuntary confinement, the right to refuse treatment, the least restrictive alternative, and the right to treatment on the role of the psychiatrist and the provision of mental health care. His thesis is that the implicit analogies between psychiatrists and agents of the criminal justice system and between patients and criminal defendants are misleading and that the recent changes in the law based on these analogies adversely affect the provision of mental health care.
Repeated psychiatric examinations of 42 litigants were compared to determine reasons for differences in findings by experts hired by the defendant and by the plaintiffs. The lawsuit resulted from the collapse of a coal slag heap in Buffalo Creek, W. Va., in 1972. All psychiatric reports prepared for the trial were screened. Experts for the two sides differed systematically over the extent of recovery from psychiatric symptoms and in other areas. Changes in the plaintiffs' mental statuses over time are shown not to be the cause. Extraneous factors, such as "forensic identification," the subtle influence of adversarial proceedings on initially neutral witnesses, are shown to play a part.
Litigation may be a viable means to change mental health systems for the chronically mentally ill. Court orders achieved in the 1970s have been ignored or proven inefficient over the years. However, in Arizona, a strategy was designed by a team of lawyers and psychiatrists to deal with failures seen elsewhere in court actions seeking adequate services for chronically mentally ill patients. This novel approach produced a favorable court outcome and triggered a chain reaction at the executive and legislative levels to reform radically the system of care for the chronically mentally ill in Arizona.
The authors review the legal principles that a psychiatrist must understand in assessing the emotional and psychiatric sequelae of a personal injury leading to a litigation claim. The principles of the establishment of fault or liability, the assessment of pain and suffering, causal connection, the credibility of the plaintiff, the credibility of the expert witness, the determination of prognosis, the award of damages, and the adversarial system are discussed. An appreciation of these principles will enable psychiatrists to provide assessments that will be useful to the legal system in arriving at a fair and accurate determination of the compensation to which a victim is entitled.