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PubMed2006

What pediatricians should know about child-related malpractice payments in the United States.

OBJECTIVE: The purpose of this study was to examine child-related National Practitioner Data Bank data. METHODS: Data were obtained from the National Practitioner Data Bank. RESULTS: the period from February 1, 2004, through December 31, 2005, a total of 30195 malpractice payments were made on behalf of practitioners in the United States; 14% of those payments (4107 of 30,195 payments) were child related. During the period analyzed, $1.73 billion were paid for malpractice cases involving children. More than 95% of all payments were the result of settlements and only approximately 5% the result of judgments. The average child-related malpractice payment was significantly greater than an adult-related malpractice payment ($422,000 vs $247,000); however, child-related malpractice payments were only one half as likely to occur, compared with adult-related malpractice payments. Significant geographic variability was found in the numbers and sizes of child-related malpractice payments. Failure to diagnose was the leading reason for child-related payments (18%), followed by improper performance (9%), delay in diagnosis (9%), and improper management (6%). Finally, we found that approximately 40% of all malpractice awards were the result of surgical or obstetrical issues. CONCLUSIONS: Practicing pediatricians should be aware of the existence of a mandatory electronic depository that documents all malpractice settlements and judgments involving practitioners.

Adolescent↗
PubMedDate not supplied

A descriptive study of medical malpractice cases in Turkey.

BACKGROUND: Medical malpractice claims in Turkey have increased. We evaluated the problem by describing medical malpractice cases assessed by the Higher Health Council between 1993 and 1998. Our recommendations should help to improve care and decrease medical malpractice claims. METHODS: We reviewed 997 medical malpractice cases reported to the Higher Health Council between 1993 and 1998 and examined the decisions made by the Higher Health Council. We collected data on demographic characteristics, such as the type of the institution where the defendants worked, type of medical malpractice, and medical outcome. RESULTS: There were 997 medical malpractice cases reported to the Higher Health Council in the six years between 1993 and 1998. The Higher Health Council decided that 47.7% of the physicians were liable. Malpractice cases were mostly seen in state hospitals (42.4%). Fifty-nine percent of the cases resulted in death. Among actions that led to malpractice lawsuits against all health care workers, including physicians, the most common were negligence, inappropriate treatment, and diagnostic failure. CONCLUSION: We think it is necessary to revise the health system and working conditions in hospitals and to develop clinical practice guidelines. We are of the opinion that an emphasis on the use of diagnosis and therapy protocols, standards, post-graduation education, clear and informed patient consent, and improved communication with patients will drastically decrease medical malpractice claims.

Diagnostic Errors↗
PubMed1997

Malpractice, defensive medicine, and obstetric behavior.

OBJECTIVES: The authors examine 58,441 obstetric deliveries in New York State outside New York City to test for the existence of defensive medicine in obstetrics. METHODS: The data consist of merged vital statistics and hospital discharge records from the New York State Department of Health, together with other merged variables. Physician fear of malpractice is proxied by cumulative obstetric malpractice suits by county for 1975 through 1986. A generalized probit analysis is used. RESULTS: Malpractice exposure is shown to influence slightly the use of the electronic fetal monitor (EFM), a major diagnostic tool. Use of the EFM is shown to influence the diagnosis of fetal distress; fear of malpractice influences this diagnosis both directly and through the EFM. The diagnosis of fetal distress significantly affects the choice of cesarean section (c-section) as a method of delivery; hence, fear of malpractice influences the choice of a c-section both directly and through the diagnosis of fetal distress. Failure to include indirect effects via diagnostic procedures and diagnosis would result in an underestimate of the effect of fear of malpractice. Of an overall c-section rate of 27.6% in the data set, fear of malpractice accounts for an estimated 6.6 percentage points, of which 4.4 percentage points reflect a direct effect, and the remaining 2.2 percentage points reflect the effect of malpractice exposure on the use of the EFM and, directly and indirectly, the diagnosis of fetal distress. CONCLUSIONS: The results appear to confirm the existence of defensive medicine in obstetrics. Whether this is a desirable or undesirable effect remains ambiguous, but it is costly.

Cesarean Section↗
PubMed2000

Negligent care and malpractice claiming behavior in Utah and Colorado.

BACKGROUND: Previous studies relating the incidence of negligent medical care to malpractice lawsuits in the United States may not be generalizable. These studies are based on data from 2 of the most populous states (California and New York), collected more than a decade ago, during volatile periods in the history of malpractice litigation. OBJECTIVES: The study objectives were (1) to calculate how frequently negligent and nonnegligent management of patients in Utah and Colorado in 1992 led to malpractice claims and (2) to understand the characteristics of victims of negligent care who do not or cannot obtain compensation for their injuries from the medical malpractice system. DESIGN: We linked medical malpractice claims data from Utah and Colorado with clinical data from a review of 14,700 medical records. We then analyzed characteristics of claimants and nonclaimants using evidence from their medical records about whether they had experienced a negligent adverse event. MEASURES: The study measures were negligent adverse events and medical malpractice claims. RESULTS: Eighteen patients from our study sample filed claims: 14 were made in the absence of discernible negligence and 10 were made in the absence of any adverse event. Of the patients who suffered negligent injury in our study sample, 97% did not sue. Compared with patients who did sue for negligence occurring in 1992, these nonclaimants were more likely to be Medicare recipients (odds ratio [OR], 3.5; 95% CI [CI], 1.3 to 9.6), Medicaid recipients (OR, 3.6; 95% CI, 1.4 to 9.0), > or =75 years of age (OR, 7.0; 95% CI, 1.7 to 29.6), and low income earners (OR, 1.9; 95% CI, 0.9 to 4.2) and to have suffered minor disability as a result of their injury (OR, 6.3; 95% CI, 2.7 to 14.9). CONCLUSIONS: The poor correlation between medical negligence and malpractice claims that was present in New York in 1984 is also present in Utah and Colorado in 1992. Paradoxically, the incidence of negligent adverse events exceeds the incidence of malpractice claims but when a physician is sued, there is a high probability that it will be for rendering nonnegligent care. The elderly and the poor are particularly likely to be among those who suffer negligence and do not sue, perhaps because their socioeconomic status inhibits opportunities to secure legal representation.

Adolescent↗
PubMed1996

Physicians' personal malpractice experiences are not related to defensive clinical practices.

Whether personal malpractice experience is part of a tort signal prompting physicians to practice defensively is unclear. To explore this issue further, we assessed how physicians' malpractice experiences affect clinical decision making. We surveyed 1,540 physicians from four specialty groups (cardiologists, surgeons, obstetrician-gynecologists, and internists) using specialty-specific clinical scenarios. Physicians were in active private practice, were covered by a single malpractice insurer for five or more years, and worked in an eastern state. The net response rate was 54 percent (835 of 1,540) but measurable bias, based on practice characteristics, was negligible. Physicians evaluated clinical scenarios that were designed to maximize potential for finding positive defensive practices (extra tests and procedures). Then they rated how various factors influenced their decisions and answered questions on practice attitudes. The study compared management and testing recommendations among physicians with varying levels of malpractice exposure, which we defined in three separate ways. Participants were unaware of the study hypotheses. Physicians with greater malpractice experience showed no systematic differences in initial management choice or subsequent test recommendations. For example, similar percentages of internists in the top and bottom claims rate quartiles admitted a patient with syncope (78 percent versus 73 percent; p = 42), discharged a patient with nonspecific chest pain (80 percent versus 80 percent; p = .88), and delayed surgery in a patient with nonspecific changes on a electrocardiograph (58 percent versus 68 percent; p = .18). Attitudes about malpractice also did not differ with varying malpractice experience. Personal malpractice experience is not a predominant factor in the tort signal that prompts physicians to engage in defensive practices, to the extent that such practices exist.

Cardiology↗
PubMed1995

Practice guidelines and malpractice litigation: a two-way street.

OBJECTIVE: To understand how practice guidelines are used in malpractice litigation. DESIGN: Review of the open and closed malpractice claims of two medical malpractice insurance companies, and a mailed survey of attorneys who litigate malpractice claims. SETTING: United States. PARTICIPANTS: Two insurance companies and 960 randomly selected malpractice attorneys. MEASUREMENTS: Frequency and nature of the use of practice guidelines in litigation; understanding and frequency of the use of practice guidelines by attorneys in malpractice cases. RESULTS: 259 claims opened in 1990-1992 at two insurance companies, including all obstetrics and anesthesia claims and a random sample of other claims, were reviewed. Seventeen of these claims involved practice guidelines, which were used as exculpatory evidence (exonerating the defendant physician) in 4 cases and as inculpatory evidence (implicating the defendant physician) in 12 cases. The only physician or patient factors associated with use of a guideline was a longer physician-patient relationship (P = 0.021). Nine hundred and sixty surveys were mailed and 578 were returned (response rate, 60.1%). Attorneys reported that once a suit is initiated, practice guidelines are likely to be used for inculpatory purposes (inculpatory in 54% of cases; exculpatory in 22.7% of cases). However, guidelines that seem to offer exculpatory value induce attorneys not to bring suits. The only attorney factor associated with increased use of guidelines was a practice in which more than 50% of business was in medical malpractice. CONCLUSIONS: Guidelines are used both by plaintiffs' and defendants' attorneys in malpractice cases. The emphasis in health reform proposals on guidelines as exculpatory evidence should be carefully considered.

Humans↗
PubMed1991

Characteristics of physicians with obstetric malpractice claims experience.

This study compared the demographic and practice characteristics of physicians with and without obstetric malpractice experience. The sample consisted of 387 family physicians and 204 obstetricians in Washington state who were insured for obstetrics by a major malpractice carrier between January 1982 and June 1988. Fifty-three physicians (9%) had an obstetric malpractice claim during the study period. The approximate overall rate of obstetric malpractice claims was low: 0.32 per 1000 deliveries. The higher the total delivery volume (exposure), the greater the chance of having malpractice experience. Although physicians with practices of over 200 deliveries per year were more likely to have had malpractice experience, their risk of malpractice experience per delivery was lower than that of providers doing fewer than 200 deliveries per year. Our work suggests that insurers might consider basing obstetric malpractice premiums on numbers of deliveries rather than specialty.

Female↗
PubMed1985

Medicare program; payment for the costs of malpractice insurance for hospitals and skilled nursing facilities--HCFA. Proposed rule.

We propose to amend the method we use to determine reasonable cost reimbursement for the costs of malpractice insurance incurred by hospitals and skilled nursing facilities (SNFs). Under this proposed rule, we would retain the claims-paid formula whereby a hospital or SNF would be reimbursed according to the ratio of its malpractice claims paid to Medicare patients compared to its malpractice claims paid to all patients. A hospital or SNF with no malpractice claims-paid experience would be reimbursed an amount equal to a national ratio of malpractice claims paid to Medicare patients compared to malpractice claims paid to all patients. In addition, we would update the national ratio used to determine the amount payable to hospitals with no less experience. The current malpractice insurance rule was promulgated on June 1, 1979 (44 FR 31641) and made applicable to cost reporting periods beginning on or after July 1, 1979. Since that time a number of hospitals have brought court actions challenging the policy. As a result, we have reviewed actual hospital cost report data to ascertain whether the underlying bases for the existing methodology continue to be supported. We have concluded that these data independently establish and confirm that our prior determination to directly apportion malpractice costs was correct. Accordingly, we propose to have this regulation take effect for cost reporting periods beginning on or after July 1, 1979, subject to our rules of administrative finality and reopening.

Centers for Medicare and Medicaid Services, U.S.↗
PubMed2000

American medical malpractice litigation in historical perspective.

Medical malpractice and the problems associated with it remain an important issue in the US medical community. Yet relatively little information regarding the long-term history of malpractice litigation can be found in the literature. This article addresses 2 questions: (1) when and why did medical malpractice litigation originate in the United States and (2) what historical factors best explain its subsequent perpetuation and growth? Medical malpractice litigation appeared in the United States around 1840 for reasons specific to that period. Those reasons are discussed in the context of marketplace professionalism, an environment that provided few quality controls over medical practitioners. Medical malpractice litigation has since been sustained for a century and a half by an interacting combination of 6 principal factors. Three of these factors are medical: the innovative pressures on American medicine, the spread of uniform standards, and the advent of medical malpractice liability insurance. Three are legal factors: contingent fees, citizen juries, and the nature of tort pleading in the United States. Knowledge of these historical factors may prove useful to those seeking to reform the current medical malpractice litigation system.

History, 19th Century↗
PubMed2005

Evaluation of surgical malpractice in Turkey.

The aim of this retrospective study was to differentiate complications from malpractices in surgical cases and to help specialists who work as court experts in malpractice litigations. We reviewed 366 malpractice cases notified to The Higher Health Council by Criminal Courts between 1995 and 2000. Of these, 93 had General surgical malpractice cases. The data showed that a large proportion of malpractice litigations against surgeons resulted from deviations of the surgeons from their own field of study. The surgeons did not obtain informed consent from patients in the majority of the cases. The rate of autopsy in deaths from malpractices was 79.6%. Fifty percent of malpractice litigations were groundless. It can be suggested that incessant exposure to criticisms and complaints may make innocent surgeons less willing to take risks for patients.

Autopsy↗
PubMed1999

Clinical assessment of malpractice case scenarios in an anesthesiology department.

STUDY OBJECTIVE: To determine whether anesthesiologists agree with each other when assessing actual malpractice clinical scenarios, whether their assessments comport with the actual malpractice verdicts, and whether they can accurately guess jury verdicts. DESIGN: Survey study requesting anesthesiologists to review 12 malpractice case scenarios, administered twice. SETTING: Academic medical center department of anesthesiology. MEASUREMENTS AND MAIN RESULTS: Mean interphysician agreement, mean Likert values assessing relative negligence, mean agreement with jury verdicts, mean success at predicting actual jury verdicts for 12 actual jury verdict case scenarios. Respondent anesthesiologists appeared homogeneous by training and years of experience. They showed high (> 80%) agreement among themselves in their assessments of the malpractice case scenarios over the two administrations (p = 0.13). In addition, mean Likert values as to relative negligence assessments by respondent anesthesiologists were not significantly different between administrations by case (p = 0.09 to 1.00). However, of the eight cases with complete or virtually complete agreement between respondent anesthesiologists, three (37.5%) disagreed with the verdict rendered by the actual juries. In addition, anesthesiologists showed significant disagreement (> 30%) among themselves in four of the case scenarios, indicating there may not be agreement regarding the standard of care in these clinical circumstances. Finally, anesthesiologists predicted jury verdicts poorly, with success rates of 50% or less in seven of the 12 case scenarios. CONCLUSIONS: For this sample of homogeneous anesthesiologists who demonstrated high clinical agreement, it appears that the malpractice system may not be able to function on its own terms in adjudicating malpractice claims. Although there was agreement among respondent anesthesiologists, these assessments were in direct opposition to actual verdicts, a significant percentage of cases resulted in disagreements as to the appropriate standard of care, and anesthesiologists could not successfully predict jury verdicts. The malpractice system appears to be operating far from its theoretical ideal if these results could be applied more generally. Thus, in practice, the legal system, which is to provide an optimal level of injury deterrence, may be a poor method to limit patient injury, improve patient safety, and provide compensation to negligently injured patients in the health delivery system.

Academic Medical Centers↗
PubMed1996

Relation between negligent adverse events and the outcomes of medical-malpractice litigation.

BACKGROUND: We have previously shown that in New York State the initiation of malpractice suits correlates poorly with the actual occurrence of adverse events (injuries resulting from medical treatment) and negligence. There is little information on the outcome of such lawsuits, however. To assess the ability of malpractice litigation to make accurate determinations, we studied 51 malpractice suits to identify factors that predict payment to plaintiffs. METHODS: Among malpractice claims that we reviewed independently in an earlier study, we identified 51 litigated claims and followed them over a 10-year period to determine whether the malpractice insurer had closed the case. We obtained detailed summaries of the cases from the insurers and reviewed the litigation files if the outcome of a case differed from the outcome predicted in our original review. RESULTS: Of the 51 malpractice cases, 46 had been closed as of December 31, 1995. Among these cases, 10 of 24 that we originally identified as involving no adverse event were settled for the plaintiffs (mean payment, $28,760), as were 6 of 13 cases classified as involving adverse events but no negligence (mean payment, $98,192) and 5 of 9 cases in which adverse events due to negligence were found in our assessment (mean payment, $66,944). Seven of eight claims involving permanent disability were settled for the plaintiffs (mean payment, $201,250). In a multivariate analysis, disability (permanent vs. temporary or none) was the only significant predictor of payment (P=0.03). There was no association between the occurrence of an adverse event due to negligence (P = 0.32) or an adverse event of any type (P=0.79) and payment. CONCLUSIONS: Among the malpractice claims we studied, the severity of the patient's disability, not the occurrence of an adverse event or an adverse event due to negligence, was predictive of payment to the plaintiff.

Adolescent↗
PubMed2002

It is easier to confuse a jury than convince a judge: the crisis in medical malpractice.

STUDY DESIGN: A study of cervical spine malpractice cases was conducted. Identifying tort reform models may help to resolve a crisis in medical malpractice. OBJECTIVE: To identify tort reform models that may help to resolve a crisis in medical malpractice. SUMMARY OF BACKGROUND DATA: Medical malpractice faces a crisis. Insurance rates are exorbitant, yet many injured patients go uncompensated. Physicians practice defensive medicine for fear of suits, and society pays the price. METHODS: Using, 36 malpractice cases involving cervical spine surgery were identified: 20 from California ($250,000 cap on pain and suffering) and 16 from New York ("the sky's the limit"). Queries included who sued, who was sued, who won, who lost, and why? Six different tort reform models also were identified and explored. RESULTS: Common bases for suits included failure to diagnose and treatment (56%), lack of informed consent (64%), new neurologic deficits (64%), and pain and suffering (72%). All of the six plaintiff verdicts (average, $4.42 million) and four of the nine settlements (average, $1.6 million) involving surgery that resulted in new postoperative quadriplegia appeared to be appropriate. However, the author could discern "no fault" in cases five defendants had settled, and the surgeons did not deserve to lose. On the other hand, the author found "fault" in five defense verdicts rendered to three newly quadriplegic patients and two with new postoperative root injuries. These patients deserved monetary awards, but received no compensation whatsoever. There currently are two models that would work better than the system in place in most states. These include the American Medical Association National Specialty Societies Medical Liability Project with the Alternative Dispute Resolution Model (SSMLP), and the Selective No Fault Models. Among the advantages shared by one or more of these models is their ability to reimburse injured patients while eliminating physician liability, to use malpractice panels rather than trials, and to put a cap on damages. CONCLUSIONS: To solve the medical malpractice crisis, Congress, the individual states, or both should adopt tort reform. Two tort reform models compensating injured patients and eliminating physician liability appear to be not only effective but also fair to all concerned parties.

California↗
PubMed2004

Relationship between malpractice claims and medical care quality.

The purpose of this paper was to examine the relationship between medical malpractice claims and medical care quality in Taiwan. The Delphi technique with an expert panel was used to determine the relationship between malpractice and medical quality. A total of 371 medical malpractice claims were analyzed. Main measures included the rate and strength of malpractice cases associated with quality and the identification of the quality factors influencing the occurrence of malpractice. Results showed that malpractice claims were associated with internal medicine cases, surgery cases, pediatric cases, obstetricc and gynecological cases, physicians' professional competence, nonacceptable outcomes, complications, and poor communication. Concludes that medical malpractice cases could be avoided by increasing physicians' professional knowledge, practical skills, and communication.

Clinical Competence↗
PubMed2006

Malpractice in pathology: what to do when you are sued.

A malpractice suit arises when a patient brings legal charges against a physician for suffering that the patient claims to have endured because the physician failed to provide appropriate care. Suffering usually encompasses a measure of misdiagnosis and of rude treatment of the patient by medical staff. Polite treatment of all patients by all laboratory staff will prevent some disputes from ever forming, thus preventing some charges of malpractice. Even if a patient is treated rudely, that rudeness alone is insufficient to justify a charge of malpractice. Attorneys must follow legal guidelines to determine whether the physician's actions caused actual damage. As soon as a physician is served notice of a lawsuit, the physician must notify the office that insures him or her against claims of malpractice (eg, the office of risk management or the physician's malpractice insurance carrier). Being sued creates an overwhelming urge to talk about the case, but a physician who has been sued must not talk to anyone about the lawsuit or the case involved. Conversations about the lawsuit may only safely be had with the attorney who will defend the physician against the charge of malpractice. Despite any frustrations with the legal system, the physician must work with and even trust the attorney handling the defense. It is possible to overcome a charge of malpractice, but not if the physician creates an indefensible situation by committing fraud. Examples of fraud are changing the medical record or destroying the pertinent microscope slide.

Humans↗
PubMed1999

[Malpractice in laparoscopic cholecystectomy. Results of cases recently considered by the Expert Commission].

The Expert Commission for medical malpractice which is part of the Medical Chamber of Nordrhein received about 60 applications in connection with laparoscopic cholecystectomy; as of August 1998 5 complaints were let off and 11 of them are still being considered. So far 44 complaints have been considered and in 25 of them medical malpractice has been established. The medical malpractice detected laparoscopic cholecystectomy cases were mainly bile duct injuries of which 13 required a biliodigestive anastomosis for reconstruction, four cases required and end-to-end anastomosis and in one case a T-tube drainage was needed. The youngest one of these patients was 21 years old, the oldest one was 61 years old. Four times the bile duct injury was not considered as malpractice, because it could be intraoperatively made out and immediately treated. Trocar injuries were twice a cause for malpractice and once it was not. Each of the following cases was also recognized as a malpractice. One lost gallstone one dislocated Roedersnare, one electric injury, one delayed reintervention and one insufficient information. The following cases were decided as non-malpractice: in two cases a slipped clip, in five cases subhepatical hematoma/abscess, in three cases a secondary bleeding, once a lesion of the splenic capsule and finally a running sore with subsequent incisional hernia. Three courses of treatment with consequence of death also contained mistakes: one electric injury of the bowel, one bile duct lesion and one information rebuke. The bile duct injury is the most considerable risk for laparoscopic cholecystectomy and implies also a high risk for the future health. The experienced surgeon distinguishes himself by the fact that he is right about the situation and converts sooner that later to conventional cholecystectomy if there's any doubt. In open surgery the principle is applied that structures may be only divided when they are clearly identified. The same goes even on a wider scale for laparoscopic surgery too.

Adult↗
PubMed2004

Association between civil procedure and medical malpractice litigation in Japan.

The effect of shortcomings in the system of civil procedure in Japan, such as excessive delay and possible mistaken judgment on the existence of negligence, on medical malpractice litigation and legal outcomes has not been examined. Using data on judgments and the decisions in medical malpractice litigation by the Tokyo and Osaka District Courts, we examined the association between civil procedure and medical malpractice litigation, and predictors of the decisions of medical malpractice litigation. The basis of the civil procedure to secure quick decisions was related to the amount of medical malpractice litigation, but not to the decisions in medical malpractice litigation. Negligence and a factor other than negligence were related to the rate of decisions in favor of the plaintiff. Although the study implies that shortcomings in civil procedure negatively influence medical malpractice litigation, it was not determined whether decisions were made based on mistaken judgment concerning the existence of negligence. Since there are methodological limitations to this study, further studies are necessary to verify these findings.

Compensation and Redress↗
PubMed2004

The "new" medical malpractice crisis--part 1.

It is important to put the current medical malpractice crisis into the historical context of the past several decades. Doing so provides an important perspective from which to understand the current iteration. One may reasonably conclude that the present medical malpractice situation is only the latest outbreak of a continuing, chronic condition, rather than a distinct, unusual event. In this regard, it is analogous to a chronic disease that occasionally flares up. Chronicity suggests the presence of major underlying problems, which may be linked to insurance carriers' business cycles as much as reflecting increases in either medical malpractice or the numbers and value of claims. It is useful to bear in mind that the fact of a claim may or may not indicate actual medical malpractice, and increased claims could well correlate more closely with patients' disgruntlement with the medical delivery system, access to it, and the way they were treated by staff than with significant injuries for which compensation should be paid. Regulatory and public policy efforts to date have only affected the problem of medical malpractice at the margin. Apparently, the core of the problem has not been addressed; in fact, it seems as yet to be unidentified. Solutions that focus on the economic dimensions only address the symptoms-claims for medical malpractice-and apparently have done nothing to correct the root cause(s). Part 2 of this two-part series considers and analyzes the current medical malpractice insurance crisis. Its evolution and analysis of specific aspects may provide guidance in understanding how to predict its future course. More important, the analysis will suggest guidance as to how organizations may reduce the potential for the problem and protect themselves from the negative aspects, should it occur.

Humans↗