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As the Bush administration pushes Congress to place a $250,000 cap on pain and suffering awards in medical malpractice lawsuits, other moves quietly afoot by state medical boards, state medical associations, and specialty societies may reduce liability insurance premiums by limiting the number of suits.
Many questions exist surrounding the origins of the escalating cost of medical malpractice coverage. Insurers and health providers claim excessive litigation and overly generous jury awards have hardened the market. The American Trial Lawyers Association and consumer advocacy groups claim insurance premium rates have not tracked medical inflation or the payouts of jury awards over the last 30 years. State efforts have been hampered by the lack of conclusive data as to the cause . However, the potential impact is very clear, limited health care access as result of a loss in the health care workforce.
Malpractice lawsuits come with a high price tag--both in their financial and psychological costs. The most effective way to deal with them is to learn the reasons for the most common claims and take the preventative route.
At some time or other, every doctor may be confronted by a claim for damages, and he/she should be familiar with the most important rules on how to react. Of relevance with regard to liability are improper treatment and the provision of inadequate information to the patient. The essential basis for a defense against the charge of malpractice is proper patient documentation. Since this latter is accepted by the court as evidence, the physician should take great care to ensure complete and accurate records. Before court proceedings are initiated, it is recommended that arbitration or an expert opinion be sought, which in many cases may result in an out-of-court settlement. Criminal and civil proceedings are separate, and may lead to different outcomes. In the case of the latter, the patient may be awarded compensation and damages for pain and suffering.
In this two-part series, learn the basis of malpractice, the areas where your nurses' risk is greatest, and how you can help safeguard your employees. Test your knowledge with the questions below, then check your answers at http://www.nursingmanagement.com.
This article proposes that the legal standard of care in malpractice cases should be established through empirical methods rather than only with experts'subjective opinions. The authors outline and critique two approaches for doing so and explain the legal advantages and barriers to implementing these legal reforms. Basing the legal standard of care on evidence of actual physician behaviors and views would help to improve medical practice by reducing the need to engage in defensive medicine and by making it safer to institute quality improvement measures.
This article discusses the merits of no-fault insurance as compared to tortious liability in medical malpractice cases. The implications of adopting the Swedish model in Israel are considered.
More than ever, malpractice is one of the biggest concerns in the medical community. High premiums have caused providers to reduce services and even close shop in some areas or specialties, where premiums have increased by 100 to 200 percent. At this writing, the federal government is stymied in its efforts to provide relief. So what is a health-care organization to do? This article presents seven steps that may not lower premiums, but will help an organization decrease the likelihood of being entangled in a long, drawn-out lawsuit that has little or no medical basis.
A lot of attention and energy has been spent over the past several years on reducing the amount of settlements and awards in malpractice cases. Of course these are important issues, but the best situation for physicians is not to be sued at all. Therefore, the medical community needs to start focusing on ways to prevent lawsuits from being filed in the first place. Recent studies and publications indicate that physicians may have more control over the lawsuit lottery than they realize. An article that appeared on the front page of the May 18, 2004 edition of the Wall Street Journal is reprinted below with permission. This article supports the proposition that the best tool to minimize the possibility of being sued may be as simple as expressing condolence and empathy when there is a bad outcome. The lawsuit reform bill that recently passed the Oklahoma legislature, H.B. 2661, contains an "I'm Sorry Law" that permits physicians to express condolence without those statements being used against them in court. For more information regarding the power of an apology, physicians may want to obtain the book by Michael S. Woods, M.D. (a speaker at the OSMA Physician Survival Summit) titled: "Healing Words: The Power of Apology in Medicine." The book can be obtained from: Doctors in Touch, 708.697.6447 or info@doctorsintouch.com.
Here are the 10 most common causes of malpractice lawsuits against hospitals and a range of potential solutions suggested by risk managers and patient safety experts.
Neuromuscular blocking drugs are often used in anaesthesia; in some types of surgery, their continuous infusion is indicated to limit the otherwise high incidence of movement. A large amount of postoperative residual curarisation is found after a single bolus, but more especially when continuous infusions are used in healthy patients and even more so in those with organ dysfunction or undergoing special types of surgery. Therefore, one should always optimise the dose requirements over time using neuromuscular transmission monitoring. Such monitoring should also help the clinician to antagonise selectively the neuromuscular block at the end of surgery. One should probably avoid routine antagonisation, especially in certain subgroups of patients, until a selective and safe reversal agent has been developed. At present, then, the only objective and reliable guide to facilitating the decision for selective antagonisation is the neuromuscular transmission monitor. Recent data and editorials warning about postoperative residual curarisation after boluses and infusions of neuromuscular blocking drugs have made residual curarisation one of the most feared complications in anaesthesia. There may be a consequent issue of malpractice if neuromuscular transmission monitoring is not used and/or pharmacological antagonisation is not performed.
There are some subjects which cannot be reviewed often enough; and malpractice prophylaxis is one such subject. In spite of numerous articles which appear in our professional literature, the problem still haunts us.
Medical malpractice charges from 1989 to 2002 were evaluated. A rising number of cases during this period is evident. The charges of practice falling below the standard of care (n = 285) were surveyed to determine who informed the prosecution, which clinical subjects are involved, what kind of charges can be found and whether such allegations can be appropriately assessed by means of a forensic autopsy. Forensic pathologists were found to be useful for ascertainment and interpretation of autopsy findings. If special questions arise, an additional expert opinion should be suggested by the forensic pathologist. There was no relevant shift in the range of subjects involved compared to former studies. The investigated charges might represent only a small fraction of cases of medical practice falling below the standard of care.
A patient who required a revision of a six-year-old hip prosthesis five months following root canal therapy and removal of a root tip subsequently sued his dentist for malpractice. The alleged torts were the presence of a positive culture for lactobacillus--presumably an "oral organism" from the infected hip site one week following the dental procedures--and improper use of antibiotics by the dentist. This case underscores the need for the medical and dental communities to agree on what constitutes proper treatment for dental infections. In addition, the arbitrary use of antibiotics, which has led to increasing numbers of bacterial-resistant organisms and other side effects, needs to be addressed. The guidelines for prophylactic antibiotic administration prior to dental treatment in orthopedic implant patients must be revised significantly, based upon risk-to-benefit ratio, documented research, and the literature.
Today's unduly erratic and expensive payment system for medical malpractice undercuts its own goal of compensating victims. Its lack of scientific legitimacy hampers its other main goal of deterring injury. Reform is needed, but most "tort reform" fails to make fundamental changes and does not promote quality of care. Alternative systems using "Accelerated Compensation Events" (ACEs) offer a better way to replace or improve judicial resolution of liability claims as well as independent, quality-oriented reform. ACEs do not cover all injuries, just classes of adverse outcomes that are normally avoidable, given good care. This article explains the scientific methodology of ACE development and the benefits of ACE-based reforms.
You can't eliminate malpractice suits, but you can help make your physicians feel a little less threatened by doing all you can to ensure patient safety. Consider adding a chest pain observation unit, where patients can be monitored for a longer period of time in the ED. Use computerized decision aids that can predict more accurately who will develop signs of ischemia or who has true ischemia. Create a culture of safety where staff feel comfortable enough to voice concerns about potential safety problems.
Medical errors do not necessarily represent negligence. Even when a mental health professional deviates from the standard of care, minor injury to a patient is unlikely to result in a lawsuit. The standard of care is not the same as the quality of care. Quality of care refers to the total care a patient receives, the patient's health care decisions, and the available mental health services. As defined by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), "sentinel events," such as a patient's suicide, do not necessarily imply that a deviation in the standard of care occurred. Psychiatrists and hospital staff are held to an "ordinarily employed" standard of practice. The Institute of Medicine (IOM) guidelines recommend evidence-based care related to patient needs and values. Both JCAHO and IOM promote best practices. Experts err when they testify to a best practice standard in malpractice cases.
Physician executives need to lead the charge and actually reduce harm to patients. Simply capping malpractice awards or changing the rules of litigation is not enough.