The malpractice suit: American medicine's latest garment.
With the malpractice suit reaching the height of fashion for American surgeons, the author presents a sardonic inside view of the disturbed physician-patient-lawyer relationship.
Malpractice↗
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Tort reform and medical malpractice: a risk management leader's analysis.
In summary, the United States Tort System, with malpractice actions based upon the law of negligence, remains a driving force in affecting health care delivery costs. The reforms and attempted reforms under consideration by legislative branches nationwide also play a key role in this endeavor. Yet, tort reform alone is not the answer. Reducing the initial occurrence of medical injury remains the ultimate method of easing the current liability crisis. Health care providers must assure the delivery of quality care to their patients or face consequences in areas of licensure qualifications, license renewal, professional discipline, suspensions, probations and fines. An effective quality assurance program that provides measurable results should be a priority for all health care providers. Administration, medical staffs and all departments within a health provider's facility must work together to achieve quality patient care. Proven risk management programs, combined with similar cooperative efforts by health care companies, physicians, attorneys, insurance companies, state regulatory agencies and the federal government, will prove extremely effective in controlling future health care delivery costs.
Hospitals, Proprietary↗
Medical malpractice statutes of limitation: a review of the law and its application.
A medical malpractice statute of limitation fixes the period within which a lawsuit must be filed. In recent year exceptions have been made to these proscribed limitations. States now allow a patient to file suit when he or she discovers the injury even if this occurs after the statutory time period. Similarly, many courts have held that this period does not even begin until treatment is terminated or the physician-patient relationship ends. Likewise, a patient will not be barred from bringing suit if there is evidence of deceit or fraud by the health care provider. Finally, some states are attempting to revise the traditional rule that the limitations period does not begin to run with respect to a minor until he or she reaches the age of majority regardless of when the injury occurred.
Data Collection↗
Reducing the malpractice threat through patient communications.
The majority of malpractice claims do not result from fatalities or even severe disabilities, but occur because the patient is angered when his or her often exaggerated expectations are not met. Three out of four of these claims arise primarily from a breakdown in patient communications. Understanding four major types of communication breakdowns can help administrators formulate more effective loss prevention programs. Administrators need to remedy problems such as inadequate discharge instructions, lack of informed consent, lack of courtesy and respect, and inadequate handling of angry patients. Administrators would do well to assess their institution's patient communications. To gain the patient's perspective--to experience the hospital as if he or she were stretched out helpless on a gurney--an outside specialist should conduct a "gurney survey," looking at the communication skills in the departments and activities most crucial for communications. An institution-wide patient education program needs to be led by one coordinator, to involve all departments, to be adequately funded, and to have an identifiable quality assurance component.
Child↗
Preparing a medical malpractice defense.
This article examines the preparation of a medical malpractice case and outlines, for the benefit of the physician, the various stages involved. The authors believe that a physician familiar with the basic elements involved in preparing a defense is in a better position to deal with the case dispassionately, and can more effectively aid in his or her own defense.
Malpractice↗
Medical malpractice and the transformation in health care delivery.
The author present a discussion of the expansion of liability for medical malpractice through the erosion of traditional fault concepts. Tensions are noted between this expansion of liability and the increasing emphasis on cost containment in both the public and private sectors. Various approaches to tort reform are surveyed and analyzed with particular attention directed to comprehensive reforms recently adopted in Florida. Increased emphasis on risk management is suggested as a plausible alternative to tort reform. Finally, the employment of contractual solutions is suggested as appropriate in light of the increasingly competitive health care environment.
Insurance, Liability↗
Decision protects hospitals from some malpractice claims.
A recent Texas ruling offers hospitals new protection from claims of strict liability, breach of warranty and deceptive trade practices in some medical malpractice cases.
Commerce↗
[Judicial judgements on anesthesia malpractice in Japan].
We reviewed 75 judicial precedents on anesthetic malpractice during surgical procedure which had appeared in legal journals in the period between 1963 and 1997. Anesthetic techniques employed were: general anesthesia (35 cases), spinal anesthesia (19 cases), local anesthesia (12 cases), and others (9 cases). Anesthesiologists were involved in 16 lawsuits, of which anesthesiologists lost 6 suits between 1986 and 1995. There were 8 cases classified as to be caused by respiratory problems including 2 cases of wrong gas supply. The defendants lost all the 8 cases. On the other hand, the plaintiff lost all the cases of malignant hyperthermia (n = 7). There is a tendency of increase in law suit with general anesthesia. Recent judgments suggested the importance of anesthetic managements, correct recording and appropriate monitoring by anesthesiologist during and immediately after surgery. Spinal anesthesia should be performed by anesthesiologist, and the frequency of anesthetic accident should be decreased. Japan is still in short of anesthesiologists and efforts should be paid to increase the number of anesthesia specialists.
Anesthesia↗
[The role of intuition in medical malpractice].
In a retrospective analysis of 502 surgical malpractice claims, the contribution of intuition was assessed. It was found that intuition, as a logical and directed intellectual approach, had an overall positive effect; this was not the case with an attitude of autistic intuition. However, judgement based on the physicians intuition alone did never result it negligence or misconduct.
General Surgery↗
Twenty strategies to reduce the risk of a malpractice claim.
The provision of health care services is not exempt from either human error or clinical misjudgments. However, many malpractice claims arise from neither of those sources but from poor communication systems, faulty office practices, or inadequate documentation. This article describes 20 practical risk management strategies a physician practice can implement to strengthen aspects of the care delivery process and reduce potential liability exposure. Some of the subjects addressed in this article include the importance of documenting telephone advice to patients; determining when and how to terminate patients; improving communication and listening styles; how to effectively obtain the patient's informed consent; and implementing careful oversight mechanisms with the receipt of outside diagnostic test results.
Documentation↗
Risk management: how doctors, hospitals and MDOs can limit the costs of malpractice litigation.
The concerns of doctors regarding their risk of malpractice litigation and the costs of indemnity premiums are resulting in calls for legal reforms to limit their liability. We do not believe these returns will be successful either practically or politically. Medical defence organisations often attempt to vindicate the doctor rather than settle the dispute--a strategy that might be morally satisfying to doctors but which is also more expensive than the approach taken by commercial insurers. Risk management--the activities required to minimise financial loss for hospitals and the doctors who work in them--is disorganised or absent in most hospitals. Hospital managers lack incentives for risk management because the costs of litigation do not come out of their budgets. The five mainstays of effective risk management are credentialling of medical staff, incident monitoring and tracking, complaints monitoring and tracking, infection control, and documentation in the medical record. The implementation of risk management activities in hospitals is the immediate responsibility of hospital management, not doctors.
Australia↗
HMO malpractice: have the floodgates opened?
The U.S. Supreme Court's holding in Pegram v. Herdrich--that decisions by an HMO's physician employees in which eligibility issues and reasonable medical treatment are inextricably mixed are not fiduciary acts under the Employee Retirement Income Security Act (ERISA)--was applauded by the managed care industry. By delineating issues on which it was not ruling, however, the Court's decision may have given a boost to additional lawsuits against managed care plans on both ERISA and malpractice grounds.
Employee Retirement Income Security Act↗
The reasonable physician standard: the new malpractice standard of care?
We are in the midst of a tremendous, but essentially unacknowledged, shift in the standard applicable in medical malpractice cases across the United States. The author provides a preliminary survey of this fluid area of the law, and provides rationales for the changes. At the same time, it is not yet clear whether the net impact of these changes will be for the better or for the worse--particularly in light of the simultaneous increase in societal emphasis of cost-conscious care.
Humans↗
Mediation sans litigation in malpractice.
Malpractice litigation is felt to provide a standard for practice. It can be costly both in terms of settlement awards and detrimental impact on the physician. Mediation offers opportunities to bypass that stringent legal process yet allows a resolution of disputes and allows proper redress of grievances. This article reviews the various factors that prevent its widespread application.
Humans↗
[Analysis of expert reports from a general practice expert in disciplinary cases and malpractice claims against family practitioners (1994-2000): a lesson for clinical practice].
Of the reports issued by a general practice expert for disciplinary and malpractice cases in the period 1994 to August 2000, 76 were analysed, with the emphasis on the more serious cases. Infectious diseases and cardiovascular diseases together formed 42% of the cases judged. The starting point of the analysis was the practice of an 'average general practitioner'. On the basis of jurisprudence and general practice literature, failure to diagnose a rare illness was not automatically regarded as reproachable but failing to estimate the seriousness of a situation was. In the first place it was checked whether or not general practitioner had adequately estimated the seriousness of the situation by paying due attention to the alarm signals and risk factors and in the case of diagnostic doubts by ensuring adequate follow-up. According to the analysis, 41% of the cases clearly exhibited reproachable conduct. This figure was twice as high when a locum was working at a practice. Two-thirds of the primary errors were due to the seriousness of the situation not being adequately estimated as a result of too little attention being paid to alarm signals and risk factors as well as a failure to ensure adequate follow-up. On the basis of the analysis it is advised that the use of a locum should be regarded as a risk situation: better information can be made available by means of an electronic patient file and unequivocal agreements for drawing up reports. For each consultation, the GP must systematically check whether there are alarm signals or risk factors. In the case of diagnostic doubts the clinical picture should be actively followed up by means of clear follow-up appointments at definite times. In the guidelines of the Netherlands Society for General Practitioners, explicit attention should be given to alarm signals and risk factors. In medical training and ongoing professional education, systematic training should be provided in the recognition of serious situations and rare diseases/complications.
Adult↗
[International malpractice law].
According to German Civil Law the liability of a physician in telemedicine can be based on the breach of contractual duties or tort. In telemedicine doctor and patient are separated by distance. In the case of cross border telemedicine Medical Malpractice Law becomes an international issue with many new questions arising. The rules and regulations of "private international law" determine which law has to be applied. The German private international law allows the patient to choose either the law of the state in which the doctor acts or that state in which the therapeutical damage is being suffered. Another important question arises in determining the jurisdiction (of a court). The European agreements give the patient the right to choose. A "choice of jurisdiction clause" or a "choice of law clause" can help to decide with binding force which law and what jurisdiction has to be applied. However, various regulations concerned with consumer protection restrict the permission of such agreements.
Germany↗
Data-driven practice improvement: the AANA Foundation closed malpractice claims study.
Research in anesthesia risk management has focused primarily on adverse patient outcomes. Most risk management studies have evaluated the practices of the physician anesthesiologist, while minimal research has been conducted to examine anesthesia care provided by Certified Registered Nurse Anesthetists (CRNAs). For this reason, the American Association of Nurse Anesthetists Foundation supported an examination of closed malpractice claim files from St Paul Fire and Marine Insurance Company that involved insured CRNAs. A team of 8 CRNA researchers investigated 223 closed claim files that involved incidents from 1989 to 1997. The results indicated that preoperative physical status, patient age, surgical procedure, type of anesthetic, age of anesthesia provider, and the type of anesthesia providers, (e.g., CRNA alone vs CRNA and anesthesiologist working together) did not have a statistically significant relationship with adverse anesthetic outcomes. However, providing appropriate care, being vigilant, encountering a less severe adverse outcome, and not being able to prevent the outcome were associated with smaller monetary awards. The findings of this study support those of similar studies.
Adolescent↗
Preinduction activities: a closed malpractice claims perspective.
The American Association of Nurse Anesthetists Foundation conducts an ongoing study of closed malpractice claims that involve nurse anesthetists. A team of 8 CRNA researchers has to date investigated 223 closed claim files from the St Paul Fire and Marine Insurance Company. Research findings have demonstrated that failure to provide appropriate anesthesia care relative to the Scope and Standards for Nurse Anesthesia Practice was significantly associated with adverse anesthetic outcomes. Claims that involved inadequate preinduction activities (n = 22) were analyzed in the context of their compliance with published standards of care. The largest group of claims in this analysis (59%) involved damaging respiratory events, 28% entailed damaging cardiovascular events, and the principal issue in 13% of these claims involved failure to seek available information such as laboratory studies on the medical record. The most prevalent occurrence with damaging respiratory events was undocumented airway assessment in 27% of the claims. In 55% of these claims, the medical history was not completely documented. The surgical procedure categories were general surgical (32%), obstetrical (27%), otolaryngogical (23%), orthopedic (14%), and gynecologic (5%). The involved standards of care are reviewed, and recommendations are made regarding consistent completion of preinduction activities.
Anesthesia↗