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Medical malpractice

 

   

       
                                       

 

Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals are required to maintain professional liability insurance to offset the risk and costs of lawsuits based on medical malpractice.

A doctor would be liable for (depending on the circumstances) such things as prescribing experimental drugs and performing cosmetic surgery.

 

The medical malpractice claim

The party

The plaintiff is or was the patient, or a legally designated party acting on behalf of the patient, or – in the case of a wrongful-death suit – the executor or administrator of a deceased patient’s estate.

The defendant is the health care provider. Although a ‘health care provider’ usually refers to a physician, the term includes any medical care provider, including dentists, nurses, and therapists. As illustrated in Columbia Medical Center of Las Colinas v Bush, 122 S.W. 3d 835 (Tex. 2003), “following orders” may not protect nurses and other non-physicians from liability when committing negligent acts. Relying on negligence or direct corporate negligence, which was found in the case of Dany Decell, CEO, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees.

Elements of the case

A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim.

  1. A duty was owed: a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
  2. A duty was breached: the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors (the doctrine of or the thing speaks for itself).
  3. The breach caused an injury: The breach of duty was a proximate cause of the injury.
  4. Damages: Without damages (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damages can occur without negligence, for example, when someone dies from a fatal disease.

The trial

Like all other tort cases, the plaintiff or their attorney files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties are required to share information through discovery. Such information includes interrogatories, requests for documents and depositions. If both parties agree, the case may be settled pre-trial on negotiated terms. If the parties cannot agree, the case will proceed to trial.

The plaintiff has the burden of proof to prove all the elements by a preponderance (>50%) of evidence. At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues. The fact-finder (judge or jury) must then weigh all the evidence and determine which side is the most credible.

The fact-finder will render a verdict for the prevailing party. If the plaintiff prevails, the fact-finder will assess damages within the parameters of the judge’s instructions. The verdict is then reduced to the judgment of the court. The losing party may move for a new trial. In a few jurisdictions, a plaintiff who is dissatisfied by a small judgment may move for additur. In most jurisdictions, a defendant who is dissatisfied with a large judgment may move for remittitur. Either side may take an appeal from the judgment.

Expert testimony

Expert witnesses must be qualified by the Court, based on the prospective experts qualifications and the standards set from legal precedent. To be qualified as an expert in a medical malpractice case, a person must have a sufficient knowledge, education, training, or experience regarding the specific issue before the court to qualify the expert to give a reliable opinion on a relevant issue. The qualifications of the expert are not the deciding factors as to whether the individual will be qualified, although they are certainly important considerations. Expert testimony is not qualified “just because somebody with a diploma says it is so” (United States v. Ingham, 42 M.J. 218, 226 [A.C.M.R. 1995]). In addition to appropriate qualifications of the expert, the proposed testimony must meet certain criteria for reliability. In the United States, two models for evaluating the proposed testimony are used:

The Daubert hearing considers 4 questions about the testimony the prospective expert proposes:

Some state courts still use the Frye test that relies on scientific consensus to assess the admissibility of novel scientific evidence. Daubert expressly rejected the earlier federal rule’s incorporation of the Frye test. (Daubert, 509 U.S. at 593-594) Expert testimony that would have passed the Frye test is now excluded under the more stringent requirements of Federal Rules of Evidence as construed by Daubert.

Many states also require that a certifcate of merit before a malpractice lawsuit is filed which requires a report from a medical doctor that the doctor accused of negligence breached the standard of care and caused injury to the Plaintiff.

Damages

The plaintiff’s damages may include compensatory and punitive damages. Compensatory damages are both economic and non-economic. Economic damages include financial losses such as lost wages (sometimes called lost earning capacity), medical expenses and life care expenses. These damages may be assessed for past and future losses. Non-economic damages are assessed for the injury itself: physical and psychological harm, such as loss of vision, loss of a limb or organ, the reduced enjoyment of life due to a disability or loss of a loved one, severe pain and emotional distress. Punitive damages are only awarded in the event of wanton and reckless conduct.

In one particular circumstance, physicians, particularly psychiatrists are held to a different standard than other defendants in a tort claim. Suicide is legally viewed as an act which terminates a chain of causality. Although the defendant may be held negligent for another’s suicide, he /she is not responsible for damages which occur after the act. An exception is made for physicians. Although there exists no protocol or algorithm for predicting suicidality with any level of certainty, courts throughout the United States have found physicians to be negligent. Furthermore, damages are routinely assessed based on losses which would hypothetically accrue after the act of suicide.

Statute of limitations

Main article: Statute of Limitations

There is only a limited time during which a medical malpractice lawsuit can be filed. These time limits are set by statute in a common law legal system. In civil law systems, similar provisions are usually part of the civil code or criminal code and are often known collectively as “periods of prescription” or “prescriptive periods.” The length of the time period and when that period begins vary per jurisdiction and type of malpractice. For a full list of statute of limitations, see the article Medical Malpractice Statutes of Limitation.

Studies of malpractice

Main article: Medical error

A 2004 study of medical malpractice claims in the United States examining primary care malpractice found that though incidence of negligence in hospitals produced a greater proportion of severe outcomes, the total number of errors and deaths due to errors were greater for outpatient settings. No single medical condition was associated with more than five percent of all negligence claims, and one-third of all claims were the result of misdiagnosis.

A recent study by Healthgrades found that an average of 195,000 hospital deaths in each of the years 2000, 2001 and 2002 in the U.S. were due to potentially preventable medical errors. Researchers examined 37 million patient records and applied the mortality and economic impact models developed by Dr. Chunliu Zhan and Dr. Marlene R. Miller in a study published in the Journal of the American Medical Association (JAMA) in October 2003. The Zhan and Miller study supported the Institute of Medicine’s (IOM) 1999 report conclusion, which found that medical errors caused up to 98,000 deaths annually and should be considered a national epidemic. Some researchers questioned the accuracy of the 1999 IOM study, reporting both significant subjectivity in determining which deaths were “avoidable” or due to medical error and an erroneous assumption that 100% of patients would have survived if optimal care had been provided. A 2001 study in JAMA estimated that only 1 in 10,000 patients admitted to the hospital would have lived for 3 months or more had “optimal” care been provided.

A 2006 follow-up to the 1999 Institute of Medicine study found that medication errors are among the most common medical mistakes, harming at least 1.5 million people every year. According to the study, 400,000 preventable drug-related injuries occur each year in hospitals, 800,000 in long-term care settings, and roughly 530,000 among Medicare recipients in outpatient clinics. The report stated that these are likely to be conservative estimates. In 2000 alone, the extra medical costs incurred by preventable drug related injuries approximated $887 million – and the study looked only at injuries sustained by Medicare recipients, a subset of clinic visitors. None of these figures take into account lost wages and productivity or other costs.

Most (73%) settled malpractice claims involve medical error. A 2006 study published in the New England Journal of Medicine concluded that claims without evidence of error “are not uncommon, but most [72%] are denied compensation. The vast majority of expenditures [54%] go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant.” Physicians examined the records of 1452 closed malpractice claims. Ninety-seven percent were associated with injury; of them, 73% got compensation. Three percent of the claims were not associated with injuries; of them, 16% got compensation. 63% were associated with errors; of them, 73% got compensation (average $521,560). Thirty-seven percent were not associated with errors; of them, 28% got compensation (average $313,205). Claims not associated with errors accounted for 13 to 16% percent of the total costs. For every dollar spent on compensation, 54 cents went to administrative expenses (including lawyers, experts, and courts). Claims involving errors accounted for 78 percent of administrative costs.

Arguments about the medical liability system

Main article: Tort reform

Doctors’ groups, patients, and insurance companies have criticized medical malpractice litigation as expensive, adversarial, unpredictable, and inefficient. They claim that the cost of medical malpractice litigation in the United States has steadily increased at almost 12 percent annually since 1975. Jury Verdict Research, a database of plaintiff and defense verdicts, says awards in medical liability cases increased 43 percent in 1999, from $700,000 to $1,000,000.

These critics assert that these rate increases are causing doctors to go out of business or move to states with more favorable tort systems. Not everyone agrees, though, that medical malpractice lawsuits are solely causing these rate increases. A 2003 report from the General Accounting Office found multiple reasons for these rate increases, with medical malpractice lawsuits being the primary driver. Despite noting multiple reasons for rate increases, the report goes on to state that the “GAO found that losses on medical malpractice claims-which make up the largest part of insurers’ costs-appear to be the primary driver of rate increases in the long run.”

The major tort reform proposals have been:

  1. Special medical malpractice courts
  2. Limits on noneconomic damages
  3. Reduction in the statute of limitations of action

At the same time, studies of these claims have found that there is no problem of increasing malpractice verdicts and insurance costs driving doctors out of business.

The case for medical liability reform

Proponents of medical liability reform argue that medical malpractice lawsuits restrict patient access to health care by driving physicians out of business or encouraging them to limit high-risk procedures. One in 12 obstetricians who have reported changes in their practice as a result of the risk or fear of professional liability claims have stopped delivering babies.

Medical Liability reform took place in Texas in 2003. This alone convinced physicians from all over the country to consider moving to the Lone Star State. According to the Texas Medical Board, “Medical license applications jumped 58% from 2,561 in 2003 to 4,041, an unprecedented number, according to the Texas Medical Board. The state saw a 7.2% growth in the number of ob-gyns between May 2003 and May 2008. Similar increases were observed in other specialties.” And according to the Texas Insurance Department, physicians in TX have seen a 25% overall drop in medical liability insurance rates since 2003. One provision of the Texas reform makes emergency room doctors immune for negligence unless it was “willful and wanton,” which plaintiff’s lawyers argue is almost impossible to meet. In the case of Jennifer McCreedy, who was seen by a physician’s assistant in the emergency room, the supervising doctor testified he should have seen McCreedy himself, called an orthopedic surgeon, and read the charts more carefully, but the jury found that he didn’t meet the willful and wanton standard. Malpractice claims declined 60% from 2003 to 2007, and payments per claim fell by one-third.

Physician advocacy groups say 60% of liability claims against doctors are dropped, withdrawn, or dismissed without payment. However even those cases have a price, costing an average of more than $22,000 to defend in 2008 ($18,000 in 2007). Physicians are found not negligent in over 90% of cases that go to trial – yet more than $110,000 (2008 estimate, $100,000 in 2007) per case is spent defending those claims.

Malpractice has both direct and indirect costs, including “defensive medicine.” According to the American Medical Association, defensive medicine increases health systems costs by between $84 and $151 billion each year. Studies place the direct and indirect costs of malpractice between 5% and 10% of total U.S. medical costs, as described below:

“About 10 percent of the cost of medical services is linked to malpractice lawsuits and more intensive diagnostic testing due to defensive medicine, according to a January 2006 report prepared by PricewaterhouseCoopers LLP for the insurers’ group America’s Health Insurance Plans. The figures were taken from a March 2003 study by the U.S. Department of Health and Human Services that estimated the direct cost of medical malpractice was 2 percent of the nation’s health-care spending and said defensive medical practices accounted for 5 percent to 9 percent of the overall expense.”

In one study of defensive medicine, Daniel P. Kessler and Mark McClellan found that, in treatment of heart disease, malpractice reforms reduced costs by 5% to 9% without affecting deaths or complications.

Other estimates conclude that the cost of the medical liability system, including defensive medicine, is up to 3%. Uwe E. Reinhard wrote that many analyses of the costs of the malpractice system don’t consider the benefits, such as compensating injured patients and motivating improvements. Proposed reforms would only reduce national health spending by 0.5%, according to the Congressional Budget Office.

Many supporters of medical liability reform believe that laws modeled after California’s Medical Injury Compensation Reform Act (MICRA) should be passed at the federal level. “California is the perfect model for federal medical malpractice reform”, said Lisa Maas, executive director of Californians Allied for Patient Protection. “MICRA is considered the gold standard in terms of what other states look to in tort reform in the medical liability area.”

MICRA was passed in the midst of a medical liability crisis in 1975, as premiums soared and some California physicians were unable to find liability coverage. The law limits non-economic damages in medical malpractice cases to $250,000. It also imposes a sliding scale on plaintiffs’ attorney fees that prohibits them from charging more than 40% on any recovery.

MICRA advocates say the law has stabilized liability costs and preserved access to thousands of physicians, nurses, hospitals and other healthcare providers. In particular, MICRA is said to protect specialty and high-risk services, including women’s services, community clinics and rural providers that can least afford skyrocketing insurance costs. In addition, supporters say MICRA has saved healthcare consumers tens of billions of dollars by protecting against runaway damage awards.

The American Medical Association is leading a campaign to pass medical liability reform and protect patient access to health care. AMA Leaders are working with state medical associations to enact and defend strong tort reform laws. They continue to advocate for federal reforms based on solutions such as the MICRA laws.

References

  1. . Yale New Haven Medical Center: Issues in Risk Management. 1997. . 
  2. Reeg and Bebout (1993). . Journal of the Missouri Bar. . 
  3. Preparing Plaintiff’s Expert in the Post Kuhmo Era, , , 1999
  4. Tancredi LR, Giannini AJ (December 1994). “The admissibility of scientific evidence in psychiatric malpractice: junk science and the Daubert case”. Journal of clinical forensic medicine 1 (3): 145–8. :. PMID . 
  5. AJ Giannini, MC Giannini, AE Slaby.Sucide–The medical-legal implications. Psychiatric Forum. 14(2):6-10, 1989.
  6. Phillips RL, Bartholomew LA, Dovey SM, Fryer GE, Miyoshi TJ, Green LA (April 2004). . Qual Saf Health Care 13 (2): 121–6. :. PMID .  . . ;
  7. . Medical News Today. 2004. . Retrieved 2006. 
  8. Hayward R, Hofer T (2001). “Estimating hospital deaths due to medical errors: preventability is in the eye of the reviewer”. JAMA 286 (4): 415–20. :. PMID . 
  9. . The National Academy of Science. 2006. . Retrieved 2006. 
  10. , New England Journal of Medicine,May 11, 2006.
  11. , Jeffrey B. Bloom, Gair, Gair, Conason, Steigman & Mackauf, , July 3, 2006
  12. First hand experience of an Orthopaedic surgeon who suffered a medical malpractice litigation
  13. Towers Perrin, Tillinghast, U.S. Tort Costs and Cross-Border Perspectives: 2005 Update, (New York, NY: Towers Perrin, March 2006).
  14. . The Business Journal, Jun 11, 2004, accessed August 3, 2006.
  15. General Accounting Office, June 2003, accessed August 3, 2006.
  16. Tom Baker, . University of Chicago Press, 2005. 222 pages. Page 3, “First, we know from the California study, as confirmed by more recent, better publicized studies, that the real problem is too much medical malpractice, not too much litigation.”
  17. William M. Sage, M.D., Margaret Thompson, Cynthia Gorman, Melissa King. [ The Jury's Still Out: A Critical Look at Malpractice Reform], Center for American Progress, June 12, 2008. From the study, “There is no nationwide crisis [...] Malpractice is wrongly blamed for rising health care costs in the United States…Experts have found little correlation between malpractice claim increases and malpractice premium increases. “
  18. , Lewis L. Laska, J.D., Ph.D. and Katherine Forrest, M.D., M.P.H. , October 6, 2004. From the report, “The premise that medical malpractice awards have been rising dramatically in the United States in recent years, driving up the cost of healthcare and forcing physicians out of practice, is not supported by relevant evidence.”
  19. . From the article describing the study, “Despite assertions that high malpractice rates are driving them out of the state, Massachusetts doctors are paying less than they were in 1990, after adjusting for inflation, according to a Suffolk University Law School study.”
  20. ^ , American Medical Association
  21. By Amy Lynn Sorrel, amednews staff. Sept. 8, 2008.
  22. By EMILY RAMSHAW, New York Times, December 18, 2010
  23. Daniel P. Kessler and Mark McClellan. Quarterly Journal of Economics, 1996, v111(2,May), 353-390.
  24. By DAVID LEONHARDT, New York Times, September 22, 2009
  25. [Health Care Wastefulness Is Detailed in Studies], By KEVIN SACK, New York Times, September 7, 2010
  26. , By UWE E. REINHARDT, New York Times, October 1, 2010
  27. “California’s landmark med-mal law called a national model”, Legal NewsLine
  28. “RAND study finds California medical malpractice award caps have cut payments by 30 percent to those who win lawsuits”, RAND Corporation
  29. “Preserving Healthcare Access and Affordability”, Californians Allied for Patient Protection
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