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Physicians and health care systems, both hard hit by the current malpractice crisis, must work together to minimize the effects of this crisis. Outlined here is Evangelical Health System's response that it helping reduce their malpractice risk and creating greater public awareness of this problem.
Numerous economic, legal, and human variables are entangled in the current malpractice crisis. To help governing boards gain perspective on the malpractice situation, James Orlikoff, program director in the American Hospital Association's division of hospital governance, recently spoke with four experts who are familiar with the different areas involved in the crisis: Dixie Arthur, vice-president, Health Providers Insurance Corp.; Richard Epstein, senior vice-president and general counsel, American Hospital Association; James Hughes, partner, Bricker and Eckler, Columbus, OH, and general counsel to the Ohio Hospital Insurance Co.; and William Robinson, AHA senior vice-president and president, Health Provider Insurance Co.
Professional liability insurance is not the trivial matter it was once. Premium costs are significant, the threat of malpractice litigation is tangible, sources of coverage are diverse, and there has been a proliferation of insurance carriers of different genres. Such changes have elevated the choice of malpractice insurance policy to the status of a major decision about which practitioners must be well informed. Differences between claims-made and occurrence coverage are clarified, and the advantages and disadvantages of each type of coverage are canvassed. The benefits of insuring with a commercial carrier versus a physician-owned company are also discussed in the light of trends in the structure of the liability insurance industry.
Over the course of the past quarter century, technological developments in medical science have made it possible for physicians to save the lives and preserve the health of countless patients. Unfortunately, it must be remembered that medicine is still as much an art as it is a science. As such, due to this human element, there is always the risk of occasional errors or failures in treatment. When these problems occur in bunches, the stage is set for a medical malpractice crisis. In an attempt to minimize the rising tort litigation and settlement costs associated with this crisis, eight states have responded with a variety of measures designed to limit the doctrine of joint and several liability, noneconomic damages, punitive damages, the collateral source rule, attorney's fees, and the number of complaints. Since the measures in these subject states apply to different areas of law, it is not the purpose of the authors to catalogue and explain in detail all of these changes, much less their impact on litigation and settlement costs. Rather, the intent of this article is to provide a general description and comparison of legislation in these eight states, a discussion of the specific changes that appear most important, and a description of the effect these changes are expected to have upon the costs of defending medical malpractice claims.
This Notice of Proposed Rulemaking (NPRM) proposes amendments to the existing regulations implementing the Health Care Quality Improvement Act of 1986, establishing the National Practitioner Data Bank for Adverse Information on Physicians and Other Health Care Practitioners (the Data Bank). The proposed regulations would amend the existing reporting requirements regarding payments on medical malpractice claims or actions in order to include reports on payments made on behalf of those practitioners who provided the medical care that is the subject of the claim or action, whether or not they were named as defendants in the claim or action. These amendments are designed to prevent the evasion of Data Bank medical malpractice payments reporting requirements.
We conduct an analysis of the jurisdictional dispute over the management of medical malpractice lawsuits, focusing on the process through which liability is defined. We utilize a North Carolina sample of physicians who have been sued, their defense counsel, and counsel for the plaintiff in the case. A comparison of the perspectives of these three parties reveals that over half of the physicians who settle perceive themselves as not liable. Defense counsel are more adept at predicting both negotiated resolutions and whether or not money will be paid than either plaintiffs' counsel or physicians. Almost two-thirds of physicians who thought they were not liable expressed a desire for vindication. Almost half the time when the physicians denied liability money was nonetheless paid to resolve the claim. Physician responses to the outcome of their cases focus on the need for reform, especially in terms of a call for peer or expert review. We identify and discuss culture conflict between law and medicine. For lawyers "settlement" is not a negative thing, but for physicians it implies fault. We challenge existing literature which analyzes the settlement of medical malpractice claims solely in terms of rational economic models, and we argue that social psychological variables are equally important.
Shock therapy has developed over the years into an accepted form.of psychiatric treatment for relieving the symptoms of certain mental illnesses. The development of shock therapy did and still does take place in a legal environment which leaves the reasonable psychiatrist free to experiment. The discovery of muscle-relaxing drugs and their introduction into the treatment procedure were undoubtedly encouraged by the possibility of malpractice suits arising from bone fracture caused by rapidly contracting muscles. Today the incidence of malpractie suits involving shock therapy has been reduced, and a reasonable psychiatrist exercising care remains free to treat without concern over the possibility of a successful malpractice action.
Generally available national guidelines are the only way to guarantee that the clinically active doctor will consider the same rules as the doctor as an expert within a malpractice procedure. Especially the following question has to be ruled out by national guidelines: From what time on is an innovation to be considered as "normal"--as "standard"? The same is true for continued expert discussions and for the "medical-economic balance". Without national guidelines recognized as well-known rules, the doctor accused in a malpractice procedure will find himself in an unacceptable position of legal uncertainity.
A statistical survey of malpractice claims asserted against dermatologists was made. The subject matter of the claims was divided into eight major categories: (1) drug reactions, (2) x-ray burns, (3) poor cosmetic result following surgery, (4) poor cosmetic result following medication, (5) failure to diagnose cancer, (6) improper diagnosis, (7) infection from treatment, and (8) miscellaneous. The study showed that a group of "serious" damage cases, which accounted for 34% of total claims, generated 94% of total dollar losses. The problem areas for malpractice claims appeared to be drug reactions, cosmetic chemosurgery, and failure to diagnose cancer.
Medical malpractice suits in obstetrics comprise about 10% of all claims against medical institutions in Israel. A significant proportion are due to failures relating to fetal monitoring. We studied the characteristics of 102 of 4125 obstetrical cases reported to the Medical Risk Management Co. as being at risk for a malpractice suit. The cases were divided into those with medical management failures (misinterpretation of fetal monitor tracing, failure to respond promptly to fetal monitoring indicating distress, etc.) and technical failures (loss of monitor tracings, interruption in the tracing at a critical time, unreadable tracings, etc.). The monetary quantum in fetal monitoring failures exceeded $30,000,000. The majority of these failures could have been avoided by using central electronic fetal monitoring systems with alerting and archival capabilities.
The recent increase in lawsuits against health care personnel makes it advisable that dietitians recognize the potential for legal liability as they practice their profession. Whatever the exact nature of a dietitian's daily duties, an awareness and understanding of the concepts governing the law of malpractice will enable him/her to minimize exposure to liability. To accomplish this, the dietitian should exercise at least a standard of care accepted as competence for the profession. By so doing, the dietitian can insure not only less exposure to malpractice suits, but also attainment of an important goal: delivery of high-quality care to patients.
Nine per cent of all of the Aetna Life and Casualty Company's closed malpractice cases during an eleven and a half-year period were orthopaedic. Two hundred and eleven orthopaedists (164 Board-certified), twelve general surgeons (eight Board-certified), and nineteen general practitioner-general surgeons were involved. Allegations of improper treatment (seventy cases), poor results (severty-four cases), postoperative infection including seven cases of gas gangrene (thirty-one cases), diagnostic error (twenty-six cases), back-surgery complications (twenty-six cases), miscellaneous complications (sixteen cases), and cardiac arrest (seven cases) were the grounds for these malpractice cases. When there was evidence of careful clinical appraisal, good clinical judgment, impeccable surgical technique, good doctor-patient rapport, and well documented records, the defense was successful.
De Clérambault's Syndrome or Erotomania was originally described as a delusional disorder in which a woman believes that an older man of higher social status is passionately in love with her. The patient's relentless pursuit of the delusional love object, often with escalating intrusiveness, may eventually involve threats or overt acts of retaliation, in response to repeated rejection, unrequited love, or alleged betrayal. Cases from the literature are reviewed in which the delusional romantic attachment involves the patient's psychiatrist or another medical specialist. The authors present a case involving a patient suffering from erotomania who develops a delusional fixation on her psychiatrist and, after her advances are repeatedly rejected, sues him for malpractice, alleging she had a sexual relationship with him in the course of treatment. The implications of the litigious paranoid, who uses the legal system to act out delusional concerns and retaliatory fantasies, are discussed. This is the first known case of an erotomanic patient claiming malpractice on the grounds that her psychiatrist had a sexual relationship with her.
Five states not experiencing crushing malpractice premium increases. As daily headlines across the nation advertise the plight of physicians, medical practices and hospitals struggling to cope with soaring medical malpractice costs, five states--California, Colorado, Indiana, New Mexico and Wisconsin--have established countermeasures that are keeping them on the sidelines of the crisis.
The current fault-based tort system assumes that claims made against physicians are inversely related to the quality of care they provide. In this study we identified physician characteristics associated with elements of medical care that make physicians vulnerable to malpractice claims. A sample of physicians (n = 248) thought to be at high or low risk for claims was surveyed on various personal and professional characteristics. Statistical analysis showed that 9 characteristics predicted risk group. High risk was associated with increased age, surgical specialty, emergency department coverage, increased days away from practice, and the feeling that the litigation climate was "unfair." Low risk was associated with scheduling enough time to talk with patients, answering patients' telephone calls directly, feeling "satisfied" with practice arrangements, and acknowledging greater emotional distress. Prediction was more accurate for physicians in practice 15 years or less. We conclude that a relationship exists between a history of malpractice claims and selected physician characteristics.
PURPOSE: To identify physician predictors in laser-assisted in-situ keratomileusis (LASIK) and photorefractive keratectomy (PRK) surgery that correlate with a higher risk for malpractice liability claims and lawsuits. METHODOLOGY: A retrospective, longitudinal, cohort study comparing physician characteristics of 100 consecutive Ophthalmic Mutual Insurance Company (OMIC) LASIK and PRK claims and suits to demographic and practice pattern data for all active refractive surgeons insured by OMIC between 1996 and 2002. 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 prior history of a claim or suit, logistic regression analyses were used separately for each predictor as well as controlling for refractive surgery volume. 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 >1,000/year versus 0 to 20/year; 95% confidence interval [CI], 7.9 - 125; P = .0001). Having one or more prior claims 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 = .0001). Physician gender, advertising, preoperative time spent with patient, and comanagement appeared to be strong predictors in multivariate analyses when surgical volume was greater than 100 cases per year. CONCLUSION: The chances of incurring a malpractice claim or suit for PRK or LASIK correlates significantly with higher surgical volume and a history of a prior claim or suit. Additional risk factors that increase in importance with higher surgical volume include gender, advertising, preoperative time spent with 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 provide data for underwriting criteria and risk management protocols to proactively manage and reduce the risk of claims and lawsuits against refractive surgeons.
Practice administrators often find that an unwritten part of their job descriptions is running interference when one of the group's physicians faces a malpractice lawsuit. Supporting the doctor in the work environment and encouraging open discussion about malpractice long before lawsuits occur is a key part of running an effective organization.
Two sets of federal regulations, the "Common Rule" and Food and Drug Administration (FDA) regulations, govern human subject research that is either federally-funded or involves FDA regulated products. These regulations require, inter alia, that: (1) researchers obtain informed consent from human subjects, and (2) that an Institutional Review Board (IRB) independently review and approve the research protocol. Although the federal regulations do not provide an express cause of action against researchers, research subjects should be able to bring informed consent and malpractice actions against researchers by establishing a duty of care and standard of care. Researchers owe human subjects a duty of care analogous to the special relationship between physicians and patients. The federal regulations should provide the minimum standard of care for informed consent in human subject research, and complying with them should be a partial defense. In contrast, expert testimony should establish the standard of care for researcher malpractice, and IRB approval should be a partial defense.