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PubMed1998

[Revision of the medical malpractice law? Malpractice in an international comparison].

An international comparison shows that the German criminal law is severe on physicians. In the majority of the other countries the doctor is just liable for criminal or gross negligence. There are some countries where lack of informed consent leads to a special criminal action. The comparative law shows us that it is better to keep the current criminal law.

Cross-Cultural Comparison↗
PubMed2006

Medical malpractice liability in clinical urology: a survey of practicing urologists.

PURPOSE: The current medical malpractice environment is in crisis. Costs associated with litigation as well as medical malpractice insurance premiums have increased during the last decade. In fact as of March 2004 the American Medical Association has identified 19 states as crisis states. We investigated the way in which the medical malpractice environment has affected urologists and the manner in which they practice medicine. MATERIALS AND METHODS: A survey of 31 questions was electronically mailed to the American Urological Association's database of practicing urologists in the United States. Data were gathered on each urologist's malpractice history as well as their clinical practice. A total of 5,919 surveys were mailed and 683 (12%) were returned. Urologists from 47 states responded. RESULTS: The mean medical malpractice premium in 2003 was 30,665 dollars (median 22,500 dollars, range 6,000 dollars to 120,000 dollars). Of responding urologists 63% report being named in a medical malpractice lawsuit a mean of 2.1 times. Mean length of time practicing urology was 19 years. Of the lawsuits 28% involved urological oncology, 12% involved endourology and 10% involved female urology. All other urological specialties individually generated less than 10% of the lawsuits. In only 3.5% of the cases was the patient successful at trial, compared to 13.2% of the cases where the urologist was successful at trial. The case was dropped or dismissed without financial settlement 46.9% of the time. However, 36.3% of the time the case was settled with a pretrial financial settlement. The mean amount awarded to a patient at trial was 213,855 dollars (median 100,000 dollars, range 2,400 dollars to 1,000,000 dollars). When a patient was awarded pain and suffering at trial, the mean amount awarded was 270,000 dollars (median 85,000 dollars, range 30,000 dollars to 900,000 dollars). The mean amount given to the patient as pretrial settlement was 196,706 dollars (median 70,000 dollars, range 1,500 dollars to 5,000,000). The mean time a urologist spent defending their first lawsuit was 21.8 days. Given the current medical malpractice environment, 58% of responding urologists are considering referring difficult cases, 60% are considering limiting the scope of their practice, 26% are considering changing the state in which they practice and 41% are considering leaving the practice of medicine. CONCLUSIONS: Our experience has shown that the medical malpractice crisis has had a profound and real effect on the urological community. When the data are stratified according to those urologists who practice in a crisis state, we consistently see a pattern whereby the crisis state urologists are carrying a larger proportion of the malpractice burden. Most concerning is how the malpractice environment has changed the way in which urologists approach their practice. A larger percentage of urologists from crisis states are reporting that they are considering limiting the scope of their practice, moving their practice to a state with a more favorable malpractice environment and considering leaving the practice of urology altogether. Clearly the urologist is not immune from the current malpractice environment.

Liability, Legal↗
PubMed1997

Distribution of orthopaedic surgeons, lawyers, and malpractice claims in New York.

The New York State Department of Health Medical Malpractice Insurance Database was used to determine the number and location of malpractice claims filed by residents of New York State against board certified orthopaedic surgeons between 1979 and 1993. The numbers of board certified orthopaedic surgeons, lawyers, law firms doing medical malpractice work, and malpractice claims per capita for each county were calculated. Stepwise linear regression analysis was used to determine whether the per capita rate of malpractice claims was predicted by the population density of board certified orthopaedic surgeons, law firms filing malpractice claims, or total population of lawyers. Three thousand one hundred eighty-two malpractice claims were filed during the period of interest. The per capita rate of malpractice claims did not correlate with the population density of board certified orthopaedic surgeons. The per capita malpractice claim rate, however, was significantly correlated with the population density of law firms filing malpractice claims and with the overall population density of lawyers. Orthopaedic practices located in areas with high concentrations of lawyers involved in medical malpractice litigation appear to have a higher risk of having malpractice claims filed against them than practices located in other areas.

Humans↗
PubMed1997

Physicians' experience with allegations of medical malpractice in the neonatal intensive care unit.

OBJECTIVE: To assess the personal experience of all practitioners of neonatal intensive care unit (NICU) medicine in the United States with the medical malpractice system; in particular, to assess the circumstances of malpractice allegations in which they themselves had personal experience, and to extrapolate from their individual experiences to the field of neonatology in general. DESIGN: Written survey of all MDs practicing NICU medicine in the US. PARTICIPANTS: Two thousand four hundred ninety-eight NICU physicians as determined from three sources: a) the American Board of Medical Specialists; b) the American Academy of Pediatrics Section of Neonatal/Perinatal Medicine; and c) a listing of neonatologists provided by Ross Laboratories. MAIN OUTCOME MEASURES: Responses to survey questions. RESULTS: We received 1813 responses, representing approximately 75% of all physicians practicing NICU medicine in the US. Overall, 43% of respondents had experienced at least one claim of malpractice against them. The probability of a malpractice allegation increased with years in practice, from approximately 20% for NICU physicians in practice </=5 years (65/337), to approximately 60% for NICU physicians in practice >15 years (276/469). Men and women were equally likely to have been sued, accounting for years in practice. Physicians practicing in community NICUs were more likely to be sued than those in university settings. On a scale of 1 to 4 (4 being most reasonable) the median assessment of the reasonableness of malpractice allegations was 1, mean 1.2. On a scale of 1 to 4 (4 being the highest) the median assessment of effectiveness of the current system in identifying true malpractice was 1, mean 1.4. The respondents believed that approximately 80% of malpractice allegations were inappropriate; conversely, they believed that approximately 80% of true medical malpractice escaped detection. On a scale of 1 to 4 (4 being the highest), the median assessment of the detrimental effect of the present malpractice system on health care was 4, mean 3.4. CONCLUSIONS: Most NICU physicians will be sued if they practice long enough. In this context, efforts to use malpractice claims to seek out evildoers (such as underlie the National Practitioners Data Bank) appear ill-conceived. Similarly, exhortations for physicians to become either more educated or more sensitive are unlikely to reduce malpractice claims. Our data suggest that malpractice in the NICU appears to function more like a lottery than like a mechanism for either quality assurance or just retribution.

Community Health Services↗
PubMed1993

Statutory caps: an involuntary contribution to the medical malpractice insurance crisis or a reasonable mechanism for obtaining affordable health care?

A medical malpractice insurance crisis occurred in the mid-1970s and mid-1980s evidenced by escalating malpractice insurance rates and increasing numbers of malpractice claims. Insurance companies maintained that the increase in insurance rates was necessary because of the sharp rise in the number of malpractice lawsuits, astronomical damage awards, and ineffective mechanisms to prevent and to eliminate nonmeritorious claims. Physicians responded by forming their own insurance companies, cancelling high-risk procedures, and orchestrating intensive legislative lobbying for tort reform. Insurance companies, physicians, and the legislature collaborated efforts to resolve this medical malpractice crisis. A national debate erupted regarding the proper way to address the medical malpractice insurance crisis. Insurance companies and physicians pressured state legislatures to reform liability laws that, in their opinion, permitted recovery of excessive damage awards by plaintiffs. Consumer groups and lawyers suggested tighter regulation of the insurance industry. State legislatures, in an attempt to remedy the perception that injured plaintiffs were overcompensated for their injuries, enacted "tort reform legislation," which included statutory caps on damages recoverable in medical malpractice actions. As a result of the extensive lobbying effort by physicians and insurance companies, twenty-seven states enacted statutes limiting recovery of damages in medical malpractice lawsuits. Lawyers responded by challenging state malpractice legislation on constitutional grounds, alleging violations of federal and state equal protection and due process clauses and the Seventh Amendment right to a jury trial. Opponents of the cap also asserted violations of state constitution provisions such as the "open courts" provision or the "special legislation" clause. To date, the state courts have held that statutory caps are unconstitutional. Statutory caps and other tort reform measures are extremely important in light of proposed health care legislation entitled the Health Care Liability Reform and Quality of Care Improvement Act of 1992 [the "Health Care Bill"]. This Comment critically examines the constitutionality of statutory caps on damages in medical malpractice actions. It focuses on the public policy behind the caps and the constitutional issues embodied in limiting an individual's recovery. It also analyzes the impact of the Health Care Bill on statutory caps. Part I outlines the medical malpractice insurance crisis, describes the statutory reforms and discusses the public policy behind tort reform. Part II examines the constitutionality of statutory caps and summarizes the arguments of the proponents and the opponents of these caps. Part III discusses the Health Care Bill and its impact on medical malpractice legislation with respect to statutory caps. This Comment concludes that a compromise must be reached that addresses both the growing health care insurance crisis and the protection of individual rights. The Health Care Liability Reform and Quality of Care Improvement Act of 1992 attempts to achieve this compromise.

Civil Rights↗
PubMed2001

Urological medical malpractice.

PURPOSE: Like all other medical and surgical practitioners, urologists are occasionally confronted with the unpleasant realization that they are being sued for medical malpractice. These suits are generated through any number of acts or failures to act during innumerable circumstances. We reviewed all urological claims presented to 1 representative insurance company and delineated the types of acts, settings, expenses and disposition of these claims. This review was performed to understand better the claims confronting urologists and provide future guidance to urologists in the medical malpractice setting. METHODS AND MATERIALS: Working with The St. Paul Companies 259 medical malpractice claims against urologists consecutively closed from 1995 to 1999 were reviewed. Claims were defined as urological malpractice when the insured-defendant in a malpractice claim was a urologist. Each claim was reviewed in terms of disposition, patient age, geographic location, office-hospital setting, purported negligent act, procedure if applicable, litigation status and expenses incurred. Data ascertained were then compared to national practice statistics provided by the American Urological Association (AUA) and American Medical Association. In addition, a literature search with the key words urology and malpractice was performed. Related pertinent documents were reviewed and incorporated into this analysis. RESULTS: We reviewed 259 urological medical malpractice claims closed between 1995 and 1999. During this period The St. Paul Companies insured various numbers of private practice urologists. In the years ending 1995 to 1999, 489, 492, 438, 377 and 426 individual urologists, respectively, were insured with respective premiums paid in the amounts of $6.27, $6.23, $5.80, $5.15 and $3.87 million. Claims were analyzed by AUA section. The greatest incidence of claims occurred in the Southeastern section, followed by the North Central, South Central, Mid-Atlantic, New England, Western and New York sections. According to AUA statistics the greatest number of practicing urologists are in the Southeastern section, followed by the Western, North Central, South Central, Mid-Atlantic, New York, New England and Northeastern sections. When analyzing average expenses, the New England section had the most costly claims, followed by the Mid-Atlantic, North Central, Southeastern, South Central, Western and New York sections with respective mean expenses of $266,887, $145,031, $47,667, $41,843, $38,365, $30,037 and $1,065 per claim, respectively. The greatest percent of claims arose from the categories of inpatient, adult and surgical procedures. Endourological procedures resulted in the greatest incidence of surgical claims. However, claims related to prostatectomy involved the most expensive claims with a mean cost of $185,345. Of the surgical procedures incidents defined as postoperative complications were the most common acts of negligence generating a malpractice claim. The majority of malpractice claims were filed in court but subsequently voluntarily dismissed by the plaintiff. CONCLUSIONS: Medical malpractice persists as an issue confronting urologists. Urologists must strive to maintain open, honest, in-depth communications with their patients when occurrences with potential malpractice overtones arise.

Humans↗
PubMed1993

Do the poor sue more? A case-control study of malpractice claims and socioeconomic status.

OBJECTIVE: To evaluate whether socioeconomic status is associated with risk of malpractice claims, particularly among those who have suffered medical injury. DESIGN: Case-control study. SETTING: Fifty-one hospitals in New York State. METHODS: The presence and severity of medical injury, defined as disability at the time of discharge or prolongation of the hospitalization caused by medical treatment as opposed to the disease process, were assessed through review of approximately 31,000 hospital records in New York in 1984. These sampled records were then linked to formal malpractice claims. To estimate the risk of malpractice claims by age, gender, race, insurance status, and income, we conducted a case-control study of claimant cases matched with nonclaimant controls. The cases were all those patients who filed malpractice claims referring to alleged malpractice during a sampled hospitalization. Physician reviewers had previously judged the level of disability that resulted from the medical injury. Claimants (n = 51) were each matched with five nonclaimant controls on the basis of injury. Noninjured cases were matched with noninjured controls and injured cases were matched with injured controls. RESULTS: We found that poor patients (odds ratio [OR], 0.2; 95% confidence interval [CI], 0.03 to 0.8) and uninsured patients (OR, 0.1; 95% CI, 0.005 to 0.9) were significantly less likely to file malpractice claims, after controlling for the severity of medical injury. Among patients who suffered medical injury, the elderly (OR, 0.2; 95% CI, 0.03 to 0.9) were also less likely to file claims. Gender and race were not independently associated with risk of malpractice claims. CONCLUSIONS: Poor and uninsured patients are significantly less likely to sue for malpractice, even after controlling for the presence of medical injury. Fear of malpractice risk should not be a significant factor in the decision to serve the poor. Tort reforms that would protect physicians who serve the medically indigent from malpractice suits may not be warranted.

Case-Control Studies↗
PubMed2005

Does litigation influence medical practice? The influence of community radiologists' medical malpractice perceptions and experience on screening mammography.

PURPOSE: To assess the relationship between radiologists' perception of and experience with medical malpractice and their patient-recall rates in actual community-based clinical settings. MATERIALS AND METHODS: All study activities were approved by the institutional review boards of the involved institutions, and patient and radiologist informed consent was obtained where necessary. This study was performed in three regions of the United States (Washington, Colorado, and New Hampshire). Radiologists who routinely interpret mammograms completed a mailed survey that included questions on demographic data, practice environment, and medical malpractice. Survey responses were linked to interpretive performance for all screening mammography examinations performed between January 1, 1996, and December 31, 2001. The odds of recall were modeled by using logistic regression analysis based on generalized estimating equations that adjust for study region. RESULTS: Of 181 eligible radiologists, 139 (76.8%) returned the survey with full consent. The analysis included 124 radiologists who had interpreted a total of 557 143 screening mammograms. Approximately half (64 of 122 [52.4%]) of the radiologists reported a prior malpractice claim, with 18 (14.8%) reporting mammography-related claims. The majority (n = 51 [81.0%]) of the 63 radiologists who responded to a question regarding the degree of stress caused by a medical malpractice claim described the experience as very or extremely stressful. More than three of every four radiologists (ie, 94 [76.4%] of 123) expressed concern about the impact medical malpractice has on mammography practice, with over half (72 [58.5%] of 123) indicating that their concern moderately to greatly increased the number of their recommendations for breast biopsies. Radiologists' estimates of their future malpractice risk were substantially higher than the actual historical risk. Almost one of every three radiologists (43 of 122 [35.3%]) had considered withdrawing from mammogram interpretation because of malpractice concerns. No significant association was found between recall rates and radiologists' experiences or perceptions of medical malpractice. CONCLUSION: U.S. radiologists are extremely concerned about medical malpractice and report that this concern affects their recall rates and biopsy recommendations. However, medical malpractice experience and concerns were not associated with recall or false-positive rates. Heightened concern of almost all radiologists may be a key reason that recall rates are higher in the United States than in other countries, but this hypothesis requires further study.

Adult↗
PubMed1977

PSRO and the dissolution of the malpractice suit.

The effect of PSRO on the practice of defensive medicine and the effect of the civil immunity provision on the numbers of malpractice suits may well be substantial. Cost savings in terms of control of overutilization and of the potential for patient injury engendered by that overutilization will ensue. While substantial, those effects will be small compared to the effect of PSRO on the present medical malpractice system. As a social system, malpractice has two positive purposes. It serves as a measure of quality control on outcomes of medical care, and it serves to compensate people for injuries received in medically related situations. How well it serves these purposes is unknown, but what few data exist indicate that it does not significantly enhance the quality of care nor provide an efficient method of compensation. It exists in theory because it is the final check and balance on physician practice--the only existing control on the outcomes of care. Until some system other than malpractice could be conceived which was at least as efficient in outcomes control, malpractice was destined to continue, and no other method of patient compensation could be considered seriously since the compensation and quality control aspects of malpractice were so inextricably bound. With the advent of PSRO, another means of outcomes control came into existence, and as PSRO becomes operational nationwide, that system will prove an efficient and effective system of control over the quality of outcomes of medical care. Within the environment of PSRO, malpractice as a system of outcomes control has little reason to exist, and its worth as a system of patient compensation can be reexamined. It is within the framework of PSRO that other systems of compensation of the injured patient can be considered and developed--systems hopefully more just and more efficient than malpractice. This is the greatest impact PSRO will have on malpractice. It is, of course, a long-term process, and one which will not produce immediate results. In fact, the role of PSRO in effecting a change in patient compensation may never be recognized directly. It is only within the existence of a working system controlling the quality of outcomes of medical care that the injustices of the malpractice system can be righted and alternatives to that system can be considered.

Defensive Medicine↗
PubMed1998

The incentive effects of malpractice liability rules on dental practice behavior.

OBJECTIVES: The impact of malpractice liability rules on dental practice behavior was estimated using data from a 1992 nationwide survey of US general dentists. The study examined the premise that malpractice liability rules can affect quality of care and related resource allocation decisions by dentists, but that market features, such as relatively complete and "non-experience rated" malpractice insurance, are likely to weaken the incentive effects of malpractice liability. METHODS: General practice dentists in the United States were selected randomly, and 3,048 dentists were studied by mail survey. Secondary data on county-level characteristics were used to measure market area factors. Quality-of-care measures were derived from the survey about self-reported practice policies and behavior and participation in continuing education. Legal measures were assembled from state statutes and appellate court decisions. Ordinary least squares was used to assess the relation between legal variables and dependent variables of quality of care, continuing education, and the rate of dental output. RESULTS: Hypotheses about the effects of malpractice law on practice quality and participation in continuing education were not supported. The relation between pro-dentist law and output was supported. A number of legal provisions related to differences in practice behavior, but often in ways opposite to the expected direction. CONCLUSIONS: The direct effects of specific malpractice liability rules on dentist practice behavior often failed to point in the direction predicted by theory and were economically insignificant. It is possible that relatively complete malpractice liability insurance, coupled with "noisy" liability rules, substantially dulls the deterrent effect of malpractice liability. Other forces, such as the dentist's past malpractice claims experience, were more significant in shaping dentist behavior.

Education, Dental, Continuing↗
PubMed2005

Trauma surgery malpractice risk: perception versus reality.

OBJECTIVE: We set out to compare the malpractice lawsuit risk and incidence in trauma surgery, emergency surgery, and elective surgery at a single academic medical center. SUMMARY AND BACKGROUND DATA: The perceived increased malpractice risk attributed to trauma patients discourages participation in trauma call panels and may influence career choice of surgeons. When questioned, surgeons cite malpractice risk as a rationale for not providing trauma care. Little data substantiate or refute the perceived high trauma malpractice risk. We hypothesized that the malpractice risk was equivalent between an elective surgical practice and a trauma/emergency practice. METHODS: Three prospectively maintained institutional databases were used to calculate and characterize malpractice incidence and risk: a surgical operation database, a trauma registry, and a risk management/malpractice database. Risk groups were divided into elective general surgery (ELECTIVE), urgent/emergent, nontrauma general surgery (URGENT), and trauma surgery (TRAUMA). Malpractice claims incidence was calculated by dividing the total number of filed lawsuits by the total number of operative procedures over a 12-year period. RESULTS: Over the study period, 62,350 operations were performed. A total of 21 lawsuits were served. Seven were dismissed. Three were granted summary judgments to the defendants. Ten were settled with payments to the plaintiffs. One went to trial and resulted in a jury verdict in favor of the defendants. Total paid liability was 4.7 million dollars(391,667 dollars/year). Total legal defense costs were 1.3 million dollars(108,333 dollars/year). The ratio of lawsuits filed/operations performed and incidence in the 3 groups is as follows: ELECTIVE 14/39,080 (3.0 lawsuits/100,000 procedures/year), URGENT 5/17,958, (2.3 lawsuits/100,000 procedures/year), and TRAUMA 2/5312 (3.1/100,000 procedures/year). During the study period, there were an estimated 49,435 trauma patients evaluated. The incidence of malpractice lawsuits using this denominator is 0.34 lawsuits/100,000 patients/year. CONCLUSIONS: These data demonstrate no increased risk of lawsuit when caring for trauma patients, and the actual risk of a malpractice lawsuit was low.

Databases, Factual↗