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Documentation and log keeping: ensuring your work does what you intend it to do.

Maintaining regular documentation, such as a log-book, can be an organization's most important asset when dealing with radiation protection issues, both normal and abnormal. When an organization is faced with litigation, proper documentation of events can ensure that a record is acceptable and, by extension, that the data itself is acceptable. A record of events will not preclude litigation, nor will it guarantee that an organization will prevail in a court of law, but it will provide evidence and credibility that could favorably affect the outcome of litigation. An organization can ensure that the documents it creates and maintains are as effective as possible by being aware of the legal consequences of documenting events and taking appropriate steps to conform to standards for admission of documentation. Misconceptions about log keeping such as recording only events that are likely to result in litigation, rather than recording all events, can prevent a record from being admissible as evidence. Because of the amount of effort and time put into documentation, and the reliance placed on its contents, it is important for an organization to ensure that a record will do what it is intended to do, namely to accurately record activities. Issues discussed in this article include the legal basis of documentary evidence, what and what not to record, when and how to record it, and how to strengthen the records kept.

Documentation↗

Outcomes after injury: a comparison of workplace and nonworkplace injury.

BACKGROUND: Factors affecting recovery from injury are investigated comparing male emergency department patients involved in work-related and non-work-related accidents. METHODS: This was a prospective cohort study of 154 injured employed male emergency department patients recording demographic and accident details, return to work information, and involvement in litigation. Standardized questionnaires measured psychological, physical, and social responses. Evaluations were at admission, and at 6 weeks, 6 months, and 18 months after injury. RESULTS: Work-related injuries were less severe than non-work-related injuries (p = 0.006), and more patients became involved in litigation (p = 0.02) and suffered symptoms of posttraumatic stress disorder (p = 0.04). Psychosocial symptoms increased with nonreturn to work (p < 0.05). Factors predicting return to work include injury severity, blaming others, involvement in litigation, and subsequent physical and social functioning. CONCLUSION: Patients injured at work are more likely to commence litigation and develop symptoms consistent with posttraumatic stress disorder. Nonreturn to work is associated with higher psychosocial morbidity. Return to work is predicted from event and recovery period variables.

Absenteeism↗

Medical malpractice and cancer of the larynx.

OBJECTIVE: To analyze the frequency, clinical characteristics, and legal outcomes of malpractice litigation initiated by patients with cancer of the larynx. STUDY DESIGN: Retrospective review of 23 jury verdict reports from 11 states. METHOD: Jury verdict reviews from 1976 to 1997 were obtained from a computerized legal database compiled from all state and federal civil court decisions. Reviews compile pertinent data on defendants, plaintiffs, verdict outcomes, indemnity payments, allegations of wrongdoing, and provide case summaries. RESULTS: Delays in diagnosis were alleged in 19 of 23 (83%) suits. Hoarseness was present in 10 of 19 (53%), a neck mass in 3 of 19 (16%), and no biopsy was taken in 11 of 19 (58%) of those delayed. Mean age was 47 years, with a peak incidence in the general population of 70 to 74 years. Laryngectomy was alleged to be a result or complication of delay in 12 of 19 (63%). Over half of the patients delayed received compensation, and over half of the defendants were in general practice. Outcome was poor with a 35% mortality and a total of 47% either dead of disease or alive with disease. Complications, incorrect diagnosis, and informed consent did not play a significant role in initiating litigation. CONCLUSIONS: The delayed diagnosis of cancer of the larynx associated with litigation is frequently seen in younger patients presenting with hoarseness or neck masses. These patients frequently have poor outcomes. Patients with symptoms of cancer of the larynx must be aggressively evaluated regardless of age. Risk management goals to prevent delays in diagnosis may help prevent subsequent litigation.

Age Factors↗

Medical malpractice experiences of vitreoretinal specialists: risk prevention strategies.

PURPOSE: To provide ophthalmologists treating patients with vitreoretinal diseases the means by which to improve patient care and risk management. METHOD: The members of the Macula, Retina, and Vitreous Societies were mailed questionnaires regarding their malpractice litigation experience, and the responses were analyzed. RESULTS: Rhegmatogenous retinal detachment was the most common presenting diagnosis in these lawsuits. The most frequent modality of management was pars plana vitrectomy (40%). Negligent treatment (surgical or medical) (63%) was alleged more than negligent diagnosis (10%). Decreased vision after treatment (40%), failed surgery (13%), and no improvement in vision (10%) were the most common medical misadventures. CONCLUSION: Vitreoretinal specialists are at risk for malpractice litigation because a high percentage of the diseases they manage have significant potential for severe visual impairment or blindness and because most vitreoretinal surgery is more complex in nature than general ophthalmic surgery. Rhegmatogenous retinal detachment is the most common presenting diagnosis in most studies on ophthalmic malpractice litigation, and most of these patients are treated by vitreoretinal specialists. Many vitreoretinal patients present for treatment of trauma or failed treatment by another practitioner and may be more prone to litigation. As consultants, vitreoretinal specialists are at risk for being included in lawsuits primarily directed toward other physicians. These risks are a strong indication for a thorough discussion of informed consent and the development of a good physician-patient relationship.

Eye Diseases↗

Legal problems related to obstetrical ultrasound.

Malpractice suits related to fetal anomalies are now the most common type of litigation involving ultrasound, surpassing ectopic pregnancy. Missing an anomaly on a sonogram performed for a standard indication, such as dating, is the most frequent type of litigation. Other causes of litigation include invented anomalies and unrecognized anomalies that are visible in retrospect on the ultrasonic images. Rarer causes of malpractice problems relate to failure to communicate the results of a sonogram in a timely fashion, failure to inform the patient of the findings about the sonogram at the time the patient is seen, and failure to perform ultrasound studies for anomalies when there is clinical indication to do so, such as elevated alpha-fetoprotein or polyhydramnios. The level of protection given by the obstetrical guidelines are discussed. Particular areas of concern relate to litigation involving missed fetal heart malformations, spina bifida, absent distal limbs, and twins.

Congenital Abnormalities↗

Workers' compensation in the United States: high costs, low benefits.

Studies suggest that income replacement is low for many workers with serious occupational injuries and illnesses. This review discusses three areas that hold promise for raising benefits to workers while reducing workers' compensation costs to employers: improving safety, containing medical costs, and reducing litigation. In theory, workers' compensation increases the costs to employers of injuries and so provides incentives to improve safety. Yet, taken as a whole, research does not provide convincing evidence that workers' compensation reduces injury rates. Moreover, unlike safety and health regulation, workers' compensation focuses the attention of employers on individual workers. High costs may lead employers to discourage claims and litigate when claims are filed. Controlling medical costs can reduce workers' compensation costs. Most studies, however, have focused on costs and have not addressed the effectiveness of medical care or patient satisfaction. Research also has shown that workers' compensation systems can reduce the need for litigation. Without litigation, benefits can be delivered more quickly and at lower costs.

Health Care Costs↗

Tardive dyskinesia: legal and preventive aspects.

Tardive dyskinesia is a complication associated with long term neuroleptic drug treatment that can be the object of litigation. Such litigation has occurred recently in the United States, where awards of considerable value have been granted to plaintiffs. Circumstances that can lead to TD litigation are presented as well as guidelines for the prescription of neuroleptics, the prevention of litigation and of the syndrome itself. Five lawsuits associated with TD serve as a backdrop for the discussion.

Antipsychotic Agents↗

Assessment of malingering in chronic pain patients using neuropsychological tests.

Validity checks into neuropsychological tests have been successful at detecting malingering in litigant patients with mild brain injury in recent years. This study expanded on these findings and examined whether 6 neuropsychological tests could be used to detect malingering in litigant (n = 55) and nonlitigant (n = 53) patients claiming cognitive deficits due to chronic pain. Encouraging findings were found. When patients were matched on age, gender, racial or ethnic background, years of education, and time postinjury, almost one third (29%) of patients in the litigant group failed 2 or more validity checks in these 6 neuropsychological tests versus none (0%) of the patients in the nonlitigant group. This result challenges the validity of some litigant patients who complain of cognitive deficits due to chronic pain. Furthermore, the findings suggest that neuropsychological assessments can be used as part of the assessment of chronic pain complainants. Further investigation of the validity markers in these 6 neuropsychological tests is recommended.

Adult↗

Medical malpractice, mistake prevention, and compensation.

Clinicians' fear of malpractice litigation is the most significant obstacle to the open reporting of medical mistakes. Without open reporting of medical mistakes, however, root cause analysis of mistakes cannot be done, thus undermining efforts to implement safeguards to minimize the occurrence of future mistakes. Efforts to prevent medical mistakes, therefore, must first directly address clinicians' fear of malpractice litigation. In this paper, we explore the relationship between the current malpractice system and clinicians' fear of litigation. Ultimately, we argue that both the prevention of medical mistakes and the goals of malpractice litigation itself will be better served if substantial malpractice reform is undertaken.

Attitude of Health Personnel↗

The McLawsuit: the fast-food industry and legal accountability for obesity.

Recent litigation brought by a group of overweight children against the McDonald's Corporation that seeks compensation for obesity-related health problems has provoked an intense public response. Many have derided this lawsuit as representing the worst excesses of the tort liability system, while others have drawn parallels to tobacco litigation. Fast-food litigation raises the question of where accountability for the economic and public health consequences of obesity properly rests. In this paper we consider the reasonableness of the claims against fast-food companies and discuss several social effects that the litigation may have irrespective of its outcome in court.

Causality↗

Why do physicians who treat lung cancer get sued?

BACKGROUND: Minimal information exists on why malpractice actions are filed against physicians who treat lung cancer. OBJECTIVE: To review currently available data on lung cancer malpractice litigation to develop litigation-avoidance strategies. DESIGN: A retrospective review of a publicly available database containing verdicts and settlements of malpractice cases. Data were then compared to the Physician Insurers Association of America (PIAA) Lung Cancer Study, which was published in 1992. The PIAA report is considered the best available data on malpractice and lung cancer. RESULTS: There were 89 patients in the current study and 213 patients in the PIAA study. Physicians are most often sued by patients in their 50s (mean age, 58.9 years; range, 34 to 80 years [current study]; vs 55 years; range, 17 to 75 years [PIAA study]). Primary care physicians (60% cases in the current study vs 33% cases in the PIAA study) and radiologists (20% cases in the current study vs 55% cases in the PIAA study) were named as defendants in > 75% of suits. Failure to diagnosis lung cancer was the most common reason physicians were sued (80% case in the current study vs 23.3% cases in the PIAA series). Despite the similarity in litigation profiles, the mean award to plaintiffs, in constant dollars, increased from $172,271 in the PIAA study to $632,261 in the current study. CONCLUSIONS: (1) Recommended strategies to avoid litigation depend on physician subspecialties. While primary care physicians would benefit most from setting up a chest radiograph tracking system, radiologists would benefit most from initiating a continuous quality improvement system to substantially decrease the misinterpretation rate of chest radiographs. (2) Over the past 12 years, there appears to have been a substantial increase in awards to patients with lung cancer who sue their physicians. However, this finding may be artificial because of differing study design. Further investigation on this subject is recommended.

Adult↗

Five ways to keep disputes out of court.

Even if you win, a lawsuit can be a disaster. Attorney fees eat up $20 billion a year in the United States alone, and that doesn't count the cost of diverting key personnel from productive work or of damaging profitable business relationships. But more and more managers are discovering that litigation can be avoided with inventive use of alternative dispute resolution, or ADR. All forms of ADR are designed to do two things: save time and money and soften the sharp edges of the adversarial system. In the majority of cases, disputants settle their differences quickly and to the satisfaction of both parties. In the best of cases, opponents resolve their disputes cooperatively and forge new ties. Arbitration, the oldest and most adversarial form of ADR, is now a compulsory prerequisite to litigation in about 20 states. Mediation, perhaps the most versatile and the least coercive, depends greatly on the skill and personality of the mediator. Other methods include the rent-a-judge program, summary jury trial, and minitrial, all of which simulate real litigation to one degree or another but with greater speed, more privacy, and less expense. (The last two have settled several bitter disputes in weeks-after years of litigation.) Variations and hybrids of ADR methods are limitless. In picking the ADR method best suited to your circumstances, factors to consider include: the extent to which both disputants are committed to ADR, the closeness of the business relationship between the two parties, the need for privacy, the urgency of reaching a settlement, the absolute and relative financial health of both parties, the importance of the principles involved, the complexity of the case, the size of the stakes, and the ability and willingness of company executives to get involved.

Commerce↗

Medical-legal considerations in the practice of allergy: personal reflections on lessons learned from an immunotherapy fatality.

Fatalities after administration of specific allergen immunotherapy are rare occurrences in a general allergy practice, as is medical negligence litigation. The author has experienced both and now relates his personal reflections on the lessons that were learned from the experiences. The twelve lessons that are reviewed encompass observations that are relevant not only to immunotherapy litigation but also to any general medical negligence litigation that one might encounter. Three principles of practice that are specific for allergen immunotherapy administration and that were closely scrutinized during the litigation are also reviewed.

Adult↗

Physicians' liability in obstetric and gynecology practice.

PURPOSE: Litigation in obstetric and gynecologic practice has arisen as an important issue. This article aims to highlight issues related to malpractice in obstetrics and gynecology in order to point out several important aspects of medical practice, which may offer adequate professional protection. METHODS AND MATERIAL: Search of the current relevant literature. RESULTS: The four most common clinical causes of medical litigation in obstetrics and gynecology are cases involving fetal distress, uterine rupture after a vaginal birth in a woman with a previous Cesarean section, shoulder dystocia, and misdiagnosis of breast cancer. Litigation raised in most of the cases is driven by bad outcomes and not by malpractice. Additionally, both juries and the public often expect perfection as the natural result of pregnancy and any deviation from this expectation has to be the result of someone's negligence. For this reason it has become mandatory for doctors in hospitals and private practices to acquire a sufficient knowledge relating to modem management, to document carefully in writing their procedural and management plans and to become familiar with the legal aspects of medical practice. Adequate communication and a written patient's consent form are of paramount importance. CONCLUSION: Maintenance of high standards in daily practice with continuous training, clear communication and a signed Patient's Informed Consent Form along with the appropriate documentation of any procedure carried out may provide professional safety to practicing obstetricians and gynecologists in case of medical litigation.

Europe↗

A prospective evaluation of health-related quality of life in Hong Kong Chinese patients with chronic non-cancer pain.

OBJECTIVE: To evaluate the health-related quality of life in Hong Kong Chinese patients with chronic non-cancer pain. DESIGN: Prospective cross-sectional survey. SETTING: Regional public hospitals, Hong Kong. PATIENTS: Patients attending out-patient pain management clinics between 1 July 2002 and 28 February 2003 were approached to complete a set of standardised questionnaires. MAIN OUTCOME MEASURES: Demographic profiles, treatment modality, litigation, compensation, social welfare status, Hospital Anxiety Depression Scale, and Medical Outcomes Survey short-form health survey (SF36). RESULTS: Data from 166 patients were analysed. The median numeric pain rating score was 6 (interquartile range, 2-10). Work-related injury occurred in 34.3% of patients, while another 34% were involved in pain-related litigation and 32% were receiving disability or unemployment benefit. Sixty-four percent of patients were managed by three or more disciplines, while 54.8% were also receiving complimentary alternative medical treatment, mainly traditional Chinese medicine (49.7%). The Hospital Anxiety Depression Score indicated clinical anxiety or depression in 71.1% of patients. All SF36 subscale scores were lower than the local population norm. Unemployed patients had higher depression scores (P = 0.005), while students or retirees had lower physical functioning scores (P = 0.004). Patients who were single had higher role emotion scores than those who were married or separated/widowed (P = 0.011). Logistic regression analysis showed that younger age (odds ratio = 0.95), being married (6.62), work-related injury (15.63) or higher general scores (1.03) were more likely to be associated with litigation. Social welfare benefit was associated with unemployment (3.39) and a lower level of physical functioning (0.98). CONCLUSION: There was a high prevalence of clinical anxiety, depression, and severe impairment in the health-related quality of life in Hong Kong Chinese patients with chronic non-cancer pain. Specific factors affected the health-related quality of life, likelihood of litigation, and social benefit.

Adult↗

Alternative dispute resolution of medical-legal issues.

Even the most casual observer of medical-legal litigation knows that such disputes take a long time to resolve, cost too much, and often leave parties no better off than before. Litigation also has deleterious effects where the parties have an ongoing relationship outside the courtroom. Such problems plague all litigation, however, and have prompted courts and legislatures to explore alternatives to the traditional means of solving private disputes through the filing and trial of lawsuits. In Texas, this effort resulted in the 1989 passage of the Texas Alternative Dispute Resolution Act (Texas ADR Act), which declares a state policy encouraging "the peaceable resolution of disputes....and the early settlement of pending litigation through voluntary settlement procedures" (1). This article examines alternative dispute resolution methods and explores their application to medical-legal issues.

Confidentiality↗

A survey of sued and nonsued physicians and suing patients.

To systematically assess the impact of malpractice litigation on the doctor-patient relationship and to collect data that might suggest effective tort reform, we surveyed 642 sued physicians, nonsued physicians, and suing patients in Wisconsin. Parallel forms of survey instruments obtained information regarding changes in physicians' practices, changes in attitudes toward patients or physicians, and changes in physical and emotional well-being as a result of malpractice litigation or the threat of the same. In addition, opinions regarding causes and deterrents of malpractice litigation were obtained. Results suggested that claims or threats of malpractice suits had a negative impact on physicians' practices and emotional well-being; that this negative impact was more pronounced when the sued physician had been more personally involved with his patient prior to the malpractice claim; and that suing patients' and sued physicians' understanding of their relationship before the malpractice claim significantly differed. All respondents viewed improved physician-patient communication as the most effective method of preventing malpractice claims. Informal, alternative dispute resolution mechanisms in hospitals and clinics and improved peer review may decrease litigation and its deleterious effects.

Adult↗

Medicolegal perspectives on laparoscopic bile duct injuries.

Information from medical litigation serves as an important educational tool for surgeons. We believe that clinicians should be actively involved in a medico-legal analysis of bile duct injuries because it is the clinical expert witness who is called on to educate the lay jury regarding the standards of care in laparoscopic surgery. Ultimately, the strengths or weaknesses of the experts' arguments, as interpreted by the injury, determine the legal outcome of malpractice claims. Although the civil justice system proscribes the method by which litigation is adjudicated, it does not dictate the medical standards serving as benchmarks for treatment. Indeed, clinicians themselves dictate standards of medical care in surgical injuries accompanied by litigation. For this reason, clinicians are justified in their intense interest in the medicolegal aspects of these cases. At the same time, the reader is forewarned that this review focuses on medical factors of bile duct injury and on ideas that are empirically derived from analysis of past negligence litigation. As befits the role of an interested clinician only, no attempt is made to be advisory or complete on matters of case law.

Bile Ducts↗