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PubMed1994

Medicolegal analysis of the delayed diagnosis of cancer in 338 cases in the United States.

OBJECTIVE: To define the frequency, clinical characteristics, and legal outcomes of the delayed diagnosis of cancer leading to negligence litigation. DESIGN: Retrospective review of 338 jury verdict reports from 42 states in the United States. SETTING: State and federal civil court decisions, as reported to litigation survey services, in a 5-year interval from 1985 to 1990. RESULTS: Of 338 cancers divided into 13 major organ sites, breast (38%, n = 127), gastrointestinal (15%, n = 51), lung (15%, n = 50), and head and neck cancers (10%, n = 33) accounted for 80% (270/338) of lawsuits. The average diagnostic delay for 212 cases was 17 months. The median age of patients with delays was 15 years younger than the age of patients presenting with cancer in the general population. For cancers in nine major organ sites, the ratio of mortality for patients filing lawsuits to that for patients with cancer in the general population averaged 3.4:1. The total known indemnity payout was $140.2 million, with an average payout per case of $64,600. At 1 to 3 months of diagnostic delay, jury verdicts largely favored the defense (seven of 11 [65%] defense verdicts); after 6 months of delay, jury verdicts were almost evenly divided between defense verdicts, plaintiff verdicts, and out-of-court settlements. CONCLUSIONS: The delayed diagnosis of cancer leading to negligence litigation is associated with significant indemnity payments, often involves middle-aged patients far younger than the expected age in the general cancer population, and is defensible only in the minority after 6 months of diagnostic delay.

Adolescent↗
PubMed1999

[Medico-legal aspects of thyroid surgery].

The frequency of medico-legal issues after surgery is rising. Knowledge of the character and frequency of such problems following surgery of the thyroid gland is scant. Analysis of 21,515 cases of adverse effects after medical treatment from 1975 through 1998 identified 222 cases (1 %) of litigation following surgery for thyroid diseases. The frequency of litigation problems rose exponentially during this interval. Malpractice was confirmed in 36 cases (16 %). The litigation was directed against the surgeon in 95 % of cases, the anesthesiologist in 2 %, both of them in 3 % and the ear-nose-throat surgeon in one case. Eighty-nine percent of the 222 cases occurred after routine thyroid surgery. Typical complications such as recurrent nerve palsy (50 %), hypoparathyroidism (14 %), bleeding (3 %), and late goiter recurrence (1 %) accounted for 63 % of the presumed but for only 31 % of ascertained malpractice cases. Atypical complications such as other neurologic deficits (10 %), infections (5 %), residual nodules (4 %), scar problems (5 %) accounted for 37 % of the suspected but for 70 % of confirmed malpractice cases. Deficiencies in obtaining informed consent were present in only 11 %. Malpractice was more frequently judged to be present, if a second operation was necessary (P < 0.001), if the goal of the operation had been missed (P < 0.001), or if any kind of complication was followed by a fault in postoperative care (P < 0. 001).

Expert Testimony↗
PubMedDate not supplied

Expert testimony regarding child sexual abuse.

Expert testimony plays an important role in child sexual abuse litigation in criminal, juvenile, and family courts. This article discusses legal issues relating to expert testimony, including: (a) when expert testimony is permitted, (b) qualifications of expert witnesses on child sexual abuse, (c) permissible bases supporting expert testimony, (d) expert testimony on ultimate factual and legal issues, (e) the reasonable certainty standard of expert testimony, (f) the inappropriateness of equating clinical decision making with the legal degrees of proof, and (g) application of the doctrine of res judicata in litigation regarding child sexual abuse in family court. The article also provides a summary of contemporary case law regarding expert testimony offered in child sexual abuse litigation.

Battered Child Syndrome↗
PubMed1996

Correlates of depression in chronic pain patients: a comprehensive examination.

This study examined the relations between depression and demographic, pain-related, and work-related variables in 254 chronic pain patients. Regression analyses were conducted, initially by category (i.e., demographic, pain-related, and work-related), and finally a comprehensive regression analysis was performed, containing the significant independent variables from each category. Among the demographic variables, education level and marital status were related to depression, and an interaction between age and gender was associated with depression, with younger women and older men reporting more depression. Among the pain-related variables, longer duration of pain was associated with increased depression. Among the work-related variables, unemployment was associated with depression, and there was an interaction between work status and litigation status, with working and litigating being associated with depression and not working and not litigating being associated with depression. In the comprehensive analysis, work status, education level, and marital status accounted for a significant amount of the variance in depression scores. These findings, together with future research directions, are discussed.

Adult↗
PubMed1995

What to do if called upon to testify.

There are fundamental differences in the healthcare delivery systems, cultural ideologies, and legal procedures for malpractice litigation among the US, UK and Australia. Nursing malpractice litigation is definitely on the increase in the US. Evidence shows that this same trend is beginning in Australia and the UK. This article addresses some of the reasons for this increase in litigation, and identifies actions that a nurse can undertake to prepare for a deposition or court testimony if called upon to do so.

Australia↗
PubMed1991

Risk control and prevention of spinal cord damage due to surgery of thoracoabdominal aneurysms: medicolegal aspects.

Surgery of thoracoabdominal aneurysms is accompanied by many complications of which spinal cord damage is the most serious. Such a complication tends to be the subject of litigation and medicolegal assessment. This report presents a risk control concept focussed on the reduction of spinal cord damage after surgery for a thoracoabdominal aneurysm. This concept may provide a basis for a risk management program in major surgery. Apart from sparing the patient a serious complication, improvement of the quality of care and anticipation of a medicolegal assessment were considered valuable benefits of such an effort. It is described how the threat of litigation--also in Europe--may affect clinical practice. A definition of surgical failure is described related to the five elements of risk homeostasis: complexity, linkage, cascade, human factor and safety margins. Limitations of risk control in the surgery of thoracoabdominal aneurysms are described. Finally the role of perception of risks by patient and doctor as well as the importance of informed consent and adequate disclosure are described in respect of medical quality improvement and litigation.

Aorta, Abdominal↗
PubMed2004

Detecting malingering: a survey of experts' practices.

A survey addressing practices of 'expert' neuropsychologists in handling financial compensation claim or personal injury litigation cases was carried out. Potential participants were identified by publication history. Responses were obtained from 24 out of the 39 neuropsychologists who were surveyed. Approximately 79% of the respondents reported using at least one specialized technique for detecting malingering in every litigant assessment. Half stated that they always give specialized tests at the beginning of the assessment. The Rey 15-Item test and the Test of Memory Malingering were the most frequently reported measures. Respondents also reported frequent use of 'malingering' indexes from standard neuropsychological tests. Reported base-rates varied, but the majority of respondents indicated that at least 10% of the litigants they assessed in the last year were definitely malingering. Respondents were split on the practice of routinely giving warnings at the outset of assessments that suboptimal performance may be detected. However, when the client's motivational status was suspect, more than half (58.3%) altered their assessment routine at least on some occasions, by encouraging good effort (70.8%) or administering additional SVTs. A minority directly confronted or warned clients (25%), terminated the examination earlier than planned (16.6%), or contacted the referring attorney immediately (29.2%). Respondents almost always stated some opinion regarding indicators of invalidity in written reports (95%). However, 41.7% rarely used the term 'malingering' and 12.5% never used the term. Most respondents (>80%) instead stated that the test results are invalid, inconsistent with the severity of the injury or indicative of exaggeration.

Disability Evaluation↗
PubMed2004

Performance profiles and cut-off scores on the Memory Assessment Scales.

The increased role of neuropsychologists in the courtroom has led to an increased effort in the detection of possible symptom exaggeration/malingering. Whereas domain specific measures of malingering have traditionally been used in this detection process, the identification of performance profiles and cut-off scores on standard neuropsychological assessment instruments may provide an alternate strategy. The present study evaluated the effectiveness of performance profiles and cut-off scores in discriminating traumatic brain injury (TBI) litigants suspected of malingering from those not suspected of malingering on the Memory Assessment Scales (MAS). Results suggest that TBI litigants suspected of poor effort will perform globally at a lower level than TBI litigants not suspected of poor effort on nearly all MAS indices, however, the performance profiles of each group was similar. Cut-off scores, especially when used in combination, were also effective in correctly classifying individuals in the two groups. The present findings warrant further research examining the utility of the proposed cut-off scores separately and concomitantly. Such research will aid the clinical neuropsychological practitioner in interpreting aberrant performance profiles on the MAS in forensic situations.

Adult↗
PubMedDate not supplied

Medical malpractice in the age of technology: how specialty societies can make a difference.

In the United States, medical malpractice litigation, and the rising cost of malpractice insurance, is a crisis that threatens to restrict patient access to high-risk services, especially obstetrics and certain surgical procedures. Radiation Oncology, though a small specialty, is very technologically oriented. Because the history of product liability and malpractice litigation in this country parallels the technologic revolution, practitioners of this specialty are clearly at risk for litigation. Because legislative relief is unlikely to be forthcoming in the near future, many specialty societies have assumed the responsibility for devising means to protect members from frivolous law suits, without compromising a patient's right to due process. To date, Radiation Oncology societies have not taken a leadership role in this movement, preferring instead to cede this responsibility to the American College of Radiology. Opportunities exist for specialty societies to define standards of care and establish guidelines for expert witness testimony. To date, the courts have been supportive of these efforts. Herein, we summarize some of the salient issues of the malpractice crisis facing Radiation Oncology and offer suggestions for change within the specialty to better address the malpractice problem.

Brachytherapy↗
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↗
PubMed1997

Legal and policy considerations in using clinical practice guidelines.

The increased use of clinical practice guidelines has implications for both public policy and for litigation. Physicians are concerned that the introduction of practice guidelines will reduce their clinical decision-making authority and that the failure to follow clinical practice guidelines will lead to medical liability. Although practice guidelines are an increasing part of medical practice, there has been only limited litigation to determine the extent to which guidelines will be used to set the applicable standard of care. This article discusses the potential legal and public policy issues raised by the introduction and use of clinical practice guidelines. From a legal perspective, the primary issue is whether guidelines will be used to set the "standard of care" or will be one piece of evidence that a jury would use to determine the outcome of medical liability litigation. Based on an assessment of the applicable legal and policy considerations, the article concludes that courts should admit guidelines into evidence, but that they should not be used as the sole determinant of the standard of care. Instead, guidelines should be treated as one piece of evidence to be weighed by the jury. This approach will facilitate physician acceptance of guidelines by not imposing liability for the failure to follow guidelines without additional evidence to determine the standard of care.

Clinical Medicine↗
PubMed1994

Medicolegal analysis of bile duct injury during open cholecystectomy and abdominal surgery.

To understand the medicolegal impact of bile duct injury, we analyzed 68 cases of biliary injury resulting from open cholecystectomy and abdominal surgery. Cases were litigated within the US civil justice system between 1970 and 1991. Operations resulting in bile duct complications included cholecystectomy for cholelithiasis in 49 patients (72%), common bile duct exploration in 5 patients (7%), and other abdominal operations in 7 patients (10%); 7 operations were of unknown type. The average delay in recognition of injury was 16 days (range 3 to 42). The mortality rate was 18% (12 of 68). Median jury verdict awards in successfully litigated cases were twice that of out-of-court settlements ($500,000 versus $250,000, P = 0.01). Bile duct injury after open cholecystectomy and abdominal surgery has a high mortality rate when diagnosed late, and is expensive to litigate. This review may be useful in defining the medicolegal outcome of similar injuries from laparoscopic cholecystectomy.

Adult↗
PubMed2002

Obstetrician-gynecologists and the intrauterine device: a survey of attitudes and practice.

OBJECTIVE: To assess obstetrician-gynecologists' clinical use of the intrauterine device (IUD), their attitudes toward the IUD and how they select IUD candidates, and to test the hypotheses that limited residency training in IUDs, fear of litigation, and a belief that IUDs cause pelvic inflammatory disease decrease IUD use. METHODS: We performed a national mailed survey of 811 practicing obstetrician-gynecologists obtained from systematic sampling of ACOG membership listings to assess use of and attitudes toward the IUD. RESULTS: The survey response rate was 50%. Most respondents agreed that the copper IUD is safe (95%) and effective (98%). However, 20% of respondents had not inserted an IUD in the past year, and of those who had, most (79%) reported inserting 10 or fewer. Fear of litigation and a belief that IUDs cause pelvic inflammatory disease were associated with lower IUD use; the number of IUDs inserted during residency was not. In selecting IUD candidates, respondents were most restrictive about patient monogamy. Having less conservative criteria for selecting IUD candidates was associated with greater IUD use. Respondents with liberal criteria inserted a mean of nine IUDs in the past year, whereas those with conservative criteria inserted four. CONCLUSIONS: Because most obstetrician-gynecologists are inserting few IUDs, educational programs should target these physicians to expand their IUD use. Such programs should highlight modern IUD safety and the rarity of litigation. The number of IUDs inserted in residency may be less important than the development of less restrictive, more evidence-based criteria for selecting IUD candidates.

Adult↗
PubMed2000

Ireland: breakdown of trust between doctor and patient.

By European standards Ireland experiences a very high level of medical litigation. The possible reasons for this are numerous but not yet determined with any certainty. The consequences are quite clear with negative effects on medical practice, on the psychological health of doctors and patients alike, and on finances of the state. There are different patterns of medical litigation throughout Europe. Ireland may be merely anticipating the emerging increase in such actions elsewhere in the region. The present adversarial basis for medical litigation is not wholly without merit and has contributed to professional accountability. Nevertheless, a change in the present system ensuring accountability and fair compensation is required, together with a striving to ensure that trust is rebuilt between doctors and patients.

Ethics, Medical↗
PubMed1994

Why do people sue doctors? A study of patients and relatives taking legal action.

To examine the reasons patients and their relatives take legal action, we surveyed 227 patients and relatives who were taking legal action through five firms of plaintiff medical negligence solicitors. Over 70% of respondents were seriously affected by incidents that gave rise to litigation with long-term effects on work, social life, and family relationships. Intense emotions were aroused and continued to be felt for a long time. The decision to take legal action was determined not only by the original injury, but also by insensitive handling and poor communication after the original incident. Where explanations were given, less than 15% were considered satisfactory. Four main themes emerged from the analysis of reasons for litigation: concern with standards of care--both patients and relatives wanted to prevent similar incidents in the future; the need for an explanation--to know how the injury happened and why; compensation--for actual losses, pain and suffering or to provide care in the future for an injured person; and accountability--a belief that the staff or organisation should have to account for their actions. Patients taking legal action wanted greater honesty, an appreciation of the severity of the trauma they had suffered, and assurances that lessons had been learnt from their experiences. A no-fault compensation system, however well intended, would not address all patients' concerns. If litigation is viewed solely as a legal and financial problem, many fundamental issues will not be addressed or resolved.

Adolescent↗
PubMed2003

Physicians' liability in interventional radiology and endovascular therapy.

INTRODUCTION/OBJECTIVE: Modern practice in Radiology has rapidly changed over the last decades incorporating invasive techniques. Additionally, litigation in medical practice has arisen as an important issue. This article aims to highlight issues related to malpractice in interventional radiology and endovascular therapy in order to point out the importance of the written informed consent. METHODS AND MATERIAL: Search of relevant literature from the Pubmed. RESULTS: The role of radiologist has been greatly transformed over the last decades. He is not only entitled to participate in the diagnosis but also he undertakes therapeutic procedures, either alone or as a member of a team. Thus the radiologist is now more exposed to actions that maximize litigation risk. Adequate communication and a written consent form seem to be mandatory before any invasive radiological procedure. Patient should know in detail the benefits and the risks of the scheduled procedure and whether the proposed therapy is a new form of treatment or part of a randomized trial. DISCUSSIONS AND CONCLUSION: Interventional radiologist or physician is exposed to high litigation risk. This certainly requires an urgent adaptation of his practice and attitude to the new reality. Written patient's informed consent remains an integral part of the communication between physicians and patients, and importantly is offering professional protection along these lines.

Attitude of Health Personnel↗
PubMed2003

[Medical responsibility in hand traumatology].

The apparently benign nature of many hand injuries may lead one to underestimate the potentially serious consequences of these injuries. In case of significant residuals, patients may consider themselves victims of inadequate treatment. The traumatic lesions may be classified into three groups of increasing severity (mild, moderate and severe emergencies) which require the services of increasingly sophisticated treatment teams: Services d'Accueil des Urgences (SAU) (general emergency care facilities) for minor injuries, general surgery emergency services for more severe injuries, and specialized teams such as the centers of the "Fédération Européenne des Services Urgences Mains" (FESUM) for serious complicated injuries. This differentiation is correlated to the level of expertise of the treatment team and the quality of the technical support at their disposition. Proper match of the severity of injury with the level of expertise of the treatment team can minimize the incidence of poor results and resultant litigation. Personalized treatment given with the informed consent of the patient, and his understanding that all necessary resources will be utilized, will lessen the tendency for the patient to consider some less than perfect results as the consequence of inadequate care, and therefore, lessen the likelihood of litigation against the physician or hospital. The evaluation of the permanent impairment should be analyzed as the difference between the actual result and similar, if not strictly identical cases given the appropriate level of treatment. In order to limit the frequency of litigation, including unjustified lawsuits, it is necessary, as a preventive measure, to integrate these precautions into the plan for provision of care for hand injuries.

Hand Injuries↗
PubMed2001

The pediatric neurologist as expert witness with particular reference to perinatal asphyxia.

The frequency of litigation related to alleged medical malpractice is increasing in Canada. For the neurologist, involvement in such litigation most often takes place in the context of acting as an expert witness and, for the pediatric neurologist, the most common clinical situation for which expertise is requested is that of possible perinatal asphyxia. The medical expert's primary role is to provide necessary guidance and assistance to the court, which may permit the rendering of decisions that are scientifically valid. This article will review the attributes of the medical expert witness. Aspects of perinatal asphyxia cases under litigation that commonly require the assistance of pediatric neurology expertise such as etiology, timing, extent of disability and life expectancy will also be reviewed in detail. The aim is to provide for the neurologist a clearer understanding of the responsibilities inherent in this increasing professional role.

Asphyxia Neonatorum↗