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In Europe the Council Directive of the European Community relating to product liability was enacted in 1985. The Directive allows the producer to use six defences. One of these is particularly interesting: 'that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered'.
The recent medical malpractice "crisis" has seen skyrocketing liability premiums and increasing fear of liability. Primary care physicians, especially family medicine and internal medicine physicians, have historically experienced low rates of malpractice claims, both in number and amount of payment. This can be attributed to several factors: the esteem held by internal medicine and family medicine physicians in their communities, relatively low numbers of invasive procedures, reluctance of patients to include "their" primary care physician in any potential litigation, and, probably most importantly, the atmosphere of mutual trust and communication between the internist or family physician and the patient. Recent years have seen this trend erased, as insurance industry data suggest primary care physicians presently face significant potential exposure for medical malpractice claims. It is imperative that primary care physicians take steps to insure they are adequately covered in case of a malpractice claim and that they practice aggressive but appropriate risk management to lessen the likelihood of a claim.
The high cost of medical professional liability is a source of growing concern among policymakers, health care consumers, and the medical profession. While the concern is widespread, to date there has been little quantitative evidence on the overall economic impact of the problem. Utilizing data from the American Medical Association's Socioeconomic Monitoring System, the impact of medical professional liability (PL) on the cost of physicians' services has been estimated employing two different methods. Both estimates indicate that the costs of PL are substantial. In particular, the two methods yield estimates of the total cost of PL in 1984 of $13.7 and $12.1 billion, respectively--or approximately 15% of the total expenditures on physicians' services. Furthermore, increased costs associated with PL from 1983 to 1984 alone are estimated under the two methods to have accounted for 63% and 57%, respectively, of the increase in expenditures on physicians' services. These costs include PL insurance premiums, costs of practice changes made in response to increasing PL risk, and costs of incurring claims that are not covered by PL insurance.
The U.S. system for determining liability for environmental disease requires plaintiffs to demonstrate that the defendant was the legal cause of their illnesses. The determination of cause takes place in an adversary setting. Both sides in the dispute present evidence about causation to a lay judge or jury, who is responsible for deciding whether the defendant is legally responsible. In injury cases this generally means providing evidence of a specific, concrete event or condition that gave rise to the plaintiff's harm. Environmental disease usually presents a very different picture, one in which there is considerable uncertainty about the relationship between exposure to toxic substances and the plaintiff's disease. Scientific evidence about this uncertain link is often an essential part of the case. The reliance on scientific evidence appears to present almost insurmountable problems of proof of causation to the plaintiff. The law requires the plaintiff to demonstrate that, without the defendant's action, the harm would not have occurred. This strict requirement appears incompatible with the substantial scientific uncertainty about the cause of many environmental diseases. A second attribute of legal causation is that it is based on common experience, and is easily understood by lay citizens who are likely to be the final arbiters of causation. Scientific explanations of environmental disease causation, on the other hand, may not draw on common experience and may not have the intuitive appeal necessary to convince a lay decision-maker. Because scientific evidence of causation is difficult for a lay judge or jury to understand, and because of the adversary use of experts with very different opinions about causation, it might be expected that plaintiffs would have a great deal of difficulty demonstrating causation in environmental liability cases. However, the U.S. legal system appears to have accommodated to the plaintiff's difficulty in meeting the formal burden of persuasion. The courts allow juries considerable leeway in using their own experience and beliefs to determine causation, as long as there is some scientific evidence to support the plaintiff's contention. The U.S. environmental disease liability system has been criticized by some for plaintiffs' difficulty in proving causation and by others because plaintiffs can win cases without evidence that would be convincing to a scientist.(ABSTRACT TRUNCATED AT 400 WORDS)
The national office of the American College of Nurse-Midwives (ACNM) is the center of day-to-day administration for the professional organization. Staff members respond to requests for information and assistance from certified nurse-midwives or certified midwives and facilitate the work of the Board, Divisions, and Committees. This article reviews the questions most frequently asked of the Professional Services department about risk management and professional liability issues and summarizes the most important lessons learned from the calls received. The focus is on 5 topic areas: 1) collaboration confusion, 2) systems needed to implement and effectively track diagnostic tests and referrals, 3) expansion of services beyond the core competencies, 4) patient satisfaction and patient complaints, and 5) maintaining medical malpractice coverage.
The Florida Legislature recently adopted a medical liability tort reform package, a step toward what physicians hope is an eventual solution to the medical malpractice problem. In the August issue, Dr. Coleman chronicled the Florida Medical Association's efforts to pass a statewide constitutional amendment to accomplish similar reforms. Here, FMA's immediate past president tells how the previously unsuccessful efforts led to a promising legislative victory.
According to one business adage, 20 percent of one's activity reflects 80 percent of one's success. Although few managers in small hospitals spend more than 20 percent of their time on credentialing and peer review, those activities are likely to have the most impact on preventing claims in small hospitals. Other strategies that may enhance these activities include redefining the types of services offered when professional staff, resources for new services, and staff education are scarce. Help with developing sound peer review and credentialing practices can be found through networking within professional organizations, in documents published by national organizations, and by using professional risk management services available through liability carriers. Devoting time to improving providers' documentation skills, monitoring key technical skills of health care providers, and analyzing patient flows from provider to provider and service to service are also likely to have an impact on losses in small hospitals.
BACKGROUND: The current legal system for prosecuting medical malpractice claims has bred widespread discontent. It has increased costs, jeopardized the delivery of necessary medical services, and corroded the physician-patient relationship with mistrust and poor morale. METHODS: Analysis of fairness of compensation awards and deterrence of substandard medical services under the current system. RESULTS: Compensation awards are inconsistent and unfairly contingent on irrational, adventitious factors. The current system does not seem to have had a significant effect on detering poor medical practice or on improving medical practice in general. CONCLUSIONS: An alternative to the current litigation-oriented medical malpractice system should be established and centered around a four-member Medical Malpractice Tribunal composed of a general physician, an expert physician in the specialty area of the claim, an attorney, and a lay person. This tribunal would be empowered to investigate malpractice claims by gathering evidence and taking testimony from parties, experts, and witnesses. The tribunal could employ a table of treatment-related injuries in making findings as to physician liability and victim compensation. Such a system, through predictability, would likely increase malpractice prevention while decreasing legal costs and also costs associated with defensive medicine. Deterrence could be served by giving the tribunal power to recommend sanctions against substandard providers to appropriate licensing and disciplinary bodies and by requiring those found guilty of malpractice to contribute subsidies to a compensation fund.
The determinants of the frequency of Canadian malpractice claims, the proportion of claims that result in payment, and the severity of these claims are examined. Inter-specialty variation in the frequency of malpractice claims is almost entirely related to the differential performance of major surgery. Various legal doctrines concerning both compensation and liability appear responsible for approximately half of the upward trend in the propensity to initiate malpractice litigation. We believe that the remaining explanations for growth in claims frequency are changes in social attitudes toward risk-bearing, increasing social distance between patients and physicians, and innovations in medical technology.
Since 1975, professional liability claims against health care providers in the state of Louisiana have been screened by medical review panels, which are composed of three physicians and one attorney. The purpose of the panels is to weed out frivolous lawsuits and aid the prompt settlement of meritorious claims. In this article, the procedures, controversies, and findings of Louisiana's medical review panels are summarized.
Malpractice and medical liability have been introduced into Greek reality over the last decade. Forensic sciences hold a key role in the investigation of medical liability cases. Along these lines, the medical examiner stands between colleagues and lawyers, who have divergent intentions in the investigation of such cases. This article offers an overview of the rapidly changing reality in Greece and approaches medical liability from the doctor's viewpoint. The role of forensic science and the medical examiner is portrayed, along with the emerging difficulties in the investigation of medical liability cases. Also attempted is an interpretation of the crisis phenomena that are very often seen between doctors and lawyers. However, the intent of this article is to search for ways to turn competition and tension between medical and law professionals into cooperation and understanding for the best interest for both professions and, more importantly, for the community.
Existing tort reform has produced moderating effects on some states, particularly California. Continued escalation of claims frequency, however, and average paid-claim costs mean that other remedies will have to be sought if the professional liability problem is to be solved. Many sources, including the American Medical Association, have proffered radical changes, but most of these changes will cost more than physicians and hospitals can afford. Therefore, the availability of additional funds will determine the next stage of reform. In the meantime, physicians must become more expert in medical staff peer review if they expect to successfully affect future developments.
OBJECTIVE: To investigate specialist physicians' practice decisions in response to liability concerns and their perceptions of the impact of the malpractice environment on patient access to care. SUMMARY BACKGROUND DATA: A perennial concern during "malpractice crises" is that liability costs will drive physicians in high-risk specialties out of practice, creating specialist shortages and access-to-care problems. METHODS: Mail survey of 824 Pennsylvania physicians in general surgery, neurosurgery, orthopedic surgery, obstetrics/gynecology, emergency medicine, and radiology eliciting information on practice decisions made in response to rising liability costs. RESULTS: Strong majorities of specialists reported increases over the last 3 years in patients' driving distances (58%) and waiting times (83%) for specialist care or surgery, waiting times for emergency department care (82%), and the number of patients forced to switch physicians (89%). Professional liability costs and managed care were both considered important contributing factors. Small proportions of specialists reported that they would definitely retire (7%) or relocate their practice out of state (4%) within the next 2 years; another third (32% and 29%, respectively) said they would likely do so. Forty-two percent of specialists have reduced or eliminated high-risk aspects of their practice, and 50% are likely to do so over the next 2 years. CONCLUSIONS: Our data suggest that claims of a "physician exodus" from Pennsylvania due to rising liability costs are overstated, but the malpractice situation is having demonstrable effects on the supply of specialist physicians in affected areas and their scope of practice, which likely impinges upon patients' access to care.
The Cost of Risk Initiative, jointly sponsored by HFMA and MMI Companies, Inc., is designed to identify the cost of risk in health care organizations and to gather case study examples of best practices in the management of the cost of risk. The first phase of the ongoing initiative, a pilot study, was completed in 1995. Although response to the pilot study was low, and the findings therefore are not statistically significant, the study provides initial insight into the cost of risk and the extent to which the cost of each component of risk contributes to the total cost of risk in various types of healthcare organizations. The total cost of risk ranged from 1 percent to 12.5 percent of net patient revenues among study participants. The organizations with the greatest average cost of risk were medical group practices. Costs for employee benefits, professional and general liability, workers' compensation, and risk management administration contributed the most to the total cost of risk. Baseline studies that will be conducted later this year and longitudinal data to be collected over the next five years will provide more reliable data that healthcare financial managers can use to assess and improve risk management in their organizations.
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.
Jurors in negligence cases are supposed to judge a defendant by the reasonableness of his or her conduct and not by the consequences of that conduct. But several studies have shown that a cognitive heuristic known as hindsight bias can skew post hoc judgments of some prior behavior. Thus, jurors who must evaluate the actions of a defendant may be influenced inappropriately by the consequences of those actions. A complementary problem arises when jurors must evaluate the injuries incurred by the plaintiff. Here, jurors' knowledge about the defendant's allegedly negligent conduct can proactively influence their assessment of the plaintiff's injuries and determination of damages. The purpose of the present study was to examine the effectiveness of two procedural techniques intended to reduce or eliminate the impact of hindsight bias in negligence cases--multiple admonitions from a judge about the proper use of evidence--and bifurcation (actually withholding irrelevant evidence from jurors). We presented a re-enacted automobile negligence trial to 355 jury-eligible adults drawn from the community, varied the evidence and instructions that they heard, and measured liability judgments and damage awards from individual jurors both before and after deliberating, and from juries. Results showed that admonitions were generally ineffective in guiding jurors to the proper use of evidence but that bifurcation was relatively more effective. Deliberations had no curative effect on jurors' misapplication of evidence.
Studies on humans are carried out in all nations with scientific trials. These studies are concerned with all kinds of goals, i.e. pharmacological treatment procedures. This necessitates clinical and pharmaceutical testing on healthy volunteers or patients. Lawyers watch over the activities of the clinical drug testing. The participation on human tests requires voluntariness and information. The documentation of the voluntariness and the information about goals, methods, and risks are very important.
The so-called malpractice crisis of the mid-1970s alerted physicians to the need for legislative involvement in order to achieve needed malpractice tort reform. There has been a positive effort to modify the medical liability situation in each of our 50 states. A review of this legislative activity from 1975 through 1977 is presented. It is anticipated that a new malpractice crisis may develop during the early 1980s. Actuarial data now being collected plus the effects of such innovations as arbitration, pretrial screening panels, collateral source rules, and periodic funding of malpractice claims may provide an equitable approach to any future malpractice tort reform.