Shifts in Medical Liability in the Macau SAR

Addressing the malpractice problem: the Robert Wood Johnson Foundation's programs.

THE main purpose of this paper is to present empirical estimates of a model of the disposition of claims through the courts. Landes, Gould, Posner, and others have developed a theoretical model of the disposition process, in which the decision to settle and the size of settlement depend on the defendant's maximum offer (expected award at verdict plus litigation costs) relative to the plaintiff's minimum ask (expected award at verdict minus litigation costs).' Variants of this model have been applied in several contexts, but so far it has not been tested empirically with data on individual claims.2 The obstacles to estimation by standard econometric techniques are twofold. First, the hypothesized determinants of the outcome-the potential verdict, ask, offer, and litigation costs-are all unobserved in the data available. Second, if the theory is correct, claims closed at each stage of disposition are not random samples but are "selfselected" on the basis of those case characteristics whose effect we wish to measure. Therefore, analysis of the observed outcome-size and probability of payment to the plaintiff, at verdict and in out-of-court settlement-cannot be generalized to the universe of claims as a whole. Param-

The Medicolegal Sidebar column addresses issues that orthopaedic surgeons may face at the intersection of law and medicine. One of the goals of the column is to assist orthopaedic surgeons in making legally sound clinical and business decisions. In doing so, the column focuses on legal issues, avoiding the public debate on whether our current malpractice system favors providers or patients. Accordingly, our column will periodically publish articles by distinguished guest commentators to express their personal opinions on the current status of our malpractice system. The goal of these commentaries is to stimulate discussion among our readers and others who have an interest in malpractice litigation. Our first distinguished commentator is attorney Christopher Stombaugh. Mr. Stombaugh is an accomplished trial attorney, a faculty member of The Gerry Spence Trial Lawyers College and Past President of The Wisconsin Association of Justice. —B. Sonny Bal MD, JD, MBA, Lawrence H. Brenner JD While physicians and trial lawyers in the medical liability system may speak the same language, they really misunderstand each other. Physicians and lawyers, like the United States and Great Britain, are ‘‘[t]wo nations divided by a common language’’ [5]. A clear example of this disconnect is when we discuss medical negligence claims and medical liability reform. The common impression among many physicians is that a claim for medical negligence is, in essence, a claim that a physician is a ‘‘bad doctor.’’ Worse yet, verdicts against physicians can result in those physicians being reported to the national databank, and even unsuccessful claims have to be reported to future hospitals when one seeks employment. Litigation, therefore, can adversely affect a physician’s reputation and livelihood. Trial lawyers in the medical liability system, however, would submit that the issue should not be the fear of litigation, rather the fear of carelessly injuring patients. The latest statistics (August 2015) from the New York Law School’s Center for Justice and Democracy reveals that medical negligence cases made up Note from the Editor-in-Chief: We are pleased to publish the next installment of ‘‘Medicolegal Sidebar’’ in Clinical Orthopaedics and Related Research. The goal of this quarterly column is to encourage thoughtful debate about how the law and medicine interact, and how this interaction affects the practice of orthopaedic surgery. We welcome reader feedback on all of our columns and articles; please send your comments to eic@clinorthop.org. The author certifies that he, or any member of his immediate family, has no funding or commercial associations (eg, consultancies, stock ownership, equity interest, patent/ licensing arrangements, etc) that might pose a conflict of interest in connection with the submitted article. All ICMJE Conflict of Interest Forms for authors and Clinical Orthopaedics and Related Research editors and board members are on file with the publication and can be viewed on request. The opinions expressed are those of the writers and do not reflect the opinion or policy of CORR or The Association of Bone and Joint Surgeons. C. D. Stombaugh JD (&) Stombaugh, Smith & Co., 600 Washington Ave., Towson, MD 21204, USA e-mail: chris@stombaughsmith.com Medicolegal Sidebar Published online: 28 October 2015 The Association of Bone and Joint Surgeons1 2015

THE early seventies witnessed a rapid increase in the frequency and severity of medical malpractice claims.' In California, for example, both frequency and severity increased at an average rate of almost 20 percent per annum, cumulating to yield an increase in total claim costs per physician of roughly 40 percent per annum.2 As striking as the growth over time is the variation among states. For example, in 1976 there was an 18-fold range in malpractice claim frequency, per capita or per physician, and a 30-fold range in severity. At the time of the 1975 medical malpractice "crisis," the explosion of claims was attributed to many factors, including growth in the number and complexity of medical treatments; pro-plaintiff trends in common law in general, and in particular the demise of traditional malpractice defenses such as charitable immunity and the locality rule; an increase in the number of lawyers and passage of no-fault automobile legislation in some states; and such intangible factors as the erosion of physician-patient relationships. In response to the crisis, tort "reforms" were enacted in most states during 1975 and 1976. These measures vary in detail from state to state, but their common purpose is to control claim costs by limiting the size of

Healthcare-associated infections are the main reported adverse event in healthcare, with significant economic costs that include those caused by medical malpractice claims. In Italy, there is a fault-based compensation system, but in this specific field, the burden of proof on the hospitals is particularly heavy. Hence, we aimed to verify the economic impact of the inclusion of experts in hospital infection surveillance into internal committees for claims assessment and to evaluate what would have been the economic impact of a mandatory no-fault system rather than the current system. We compared two 4-year periods (T1: 2015-2018 and T2: 2019-2022), investigating the medical malpractice claims related to healthcare-associated infections in a large tertiary public hospital in Florence, Italy. Decisions of the internal committee, evolutions of the claims after the decision, and conclusions of the claims were registered. No-fault system simulations were used to evaluate the cost-effectiveness of the model. We observed a decrease in the number of claims after the implementation of infection prevention and control (IPC) experts into the committee (a 24% decrease in rejections and a 19% increase in admissions). We found a 6806.98 euros difference (not statistically significant) in compensations in T1 and T2. Moreover, our simulations found that a no-fault compensation system - if alternative to the traditional fault-based approach - could lead to gains or losses for the plaintiffs depending on the approach chosen. (We observed a 52% mean decrease in compensations with a 150000 euros maximal indemnity and a 134% mean increase with an indemnity tailored considering also life expectancy). Introducing experts in IPC into hospital committees for medico-legal claims management has proven to be cost-effective, offering a no-fault compensation system as an alternative to the traditional fault-based approach, supported by a properly evaluated maximal indemnity. Due to the limitations of our models, multicentric studies are recommended to verify our results.

ObjectivesThe study analysed medical malpractice claims to assess patient safety in hospitals. The information derived from malpractice claims reflects potential risks and could help lead to reducing medical errors and...

Quantifying the Economics of Medical Malpractice - A View from a Civil Law Perspective

Medical malpractice is a subject which most physicians, at least in the United States, will have to deal with at least once in their career. In this issue of Clinical Orthopaedics and Related Research, several authors present their perspectives on the subject of medical malpractice litigation. Such litigation is a pervasive phenomenon, both in the United States and overseas. Once a lawsuit is filed, the defendant physician must negotiate an unfamiliar landscape that can appear hostile and adversarial, and in which the familiar rules and standards of the medical profession no longer apply. Information is a key resource in dealing with the unknown; to that end, this symposium presents the foundations of how medical malpractice claims are adjudicated, along with the perspectives of several physician and lawyer authors concerning evolving issues that continue to impact and shape medical malpractice litigation in the United States and overseas. The symposium editors hope the eclectic mix of articles and divergent perspectives presented here provide the reader with an insight to the legal system charged with handling medical malpractice claims. The opening article in this symposium is an introduction and overview of the medical malpractice system in the United States; specifically, how allegations of medical malpractice are adjudicated by the law. Many unique characteristics make the American judicial system different from those of other countries. Among these is the reliance on extensive discovery of underlying facts in the litigation by respective counsel, who adopt an adversarial stance on behalf of the represented parties. In contrast to the judicial systems of many other countries, the role of judges in the American system is minimal when compared to the important function of jurors in evaluating the evidence presented and reaching a verdict. Also, importantly, and unlike some other nations, medical malpractice in the United States is litigated under civil liability laws rather than criminal statutes. Practically, this means that remedies are usually limited to monetary damages and related disciplinary sanctions, rather than a jail sentence for the doctor. There is concern that the number of medical malpractice claims in the United States has grown, thereby creating a serious burden on health care delivery. Reforms have been attempted at the state legislature level, and there have been efforts to legislate reforms at the federal level. Some physicians claim there is a medical liability crisis in the United States, driven in part by fear of disproportionately large jury awards that make obtaining medical malpractice insurance prohibitively expensive, compelling physicians to relocate their practices to other states. The concern among health care professionals is that lay jurors may not be effective in adjudicating medical malpractice litigation; specifically, that jurors untrained in medical science may reach erroneous verdicts. Several studies address these concerns in the symposium; from an examination of the medical malpractice crisis, to a study about the outcomes of malpractice litigation, and an assessment of jury verdicts in medical malpractice court trials. Related to the subject of jurors in medical malpractice litigation is the role of the expert witness in litigation concerning professional negligence. American law specifies that in cases alleging professional negligence, such as medical malpractice, an expert from the profession must educate and inform jurors about the applicable standard of care in the case. In recent years, there have been serious concerns that some self-proclaimed medical experts may be willing to deliver misleading and erroneous testimony during litigation, in return for monetary reward. In response, state medical boards and professional medical associations have instituted guidelines for expert witnesses, and begun monitoring expert testimony delivered by their member physicians. Physicians who deliver false testimony under oath may be subject to serious professional sanctions, and even lawsuits, filed by the party injured by the defective testimony. This emerging area of law is explored in the symposium as well. The subject of medical malpractice as experienced in specific orthopaedic specialties, such as adult reconstruction and sports medicine, is presented along with strategies to reduce the risk of a negligence claim. Among these strategies are proposals to have patients sign contracts as a defense to medical malpractice; timely apology for adverse events; examination of the relationship between surgeon age and malpractice risk, and institution of an alternative no-fault system to resolve negligence claims. The guest editors hope you find this symposium informative, controversial, and thought-provoking; the subject addressed is a complex one that involves many stakeholders with competing interests, and one that defies any easy answers.

INTRODUCTION Much legislative endeavour has been made to build a credible medical malpractice liability system in China. The system is very young. It was formally established in the second half of the 1980s, and has been drastically reformed twice since then. Voluminous literature regarding the Chinese medical malpractice liability reforms is currently available, most of which has attempted to evaluate the old and/or the current medical malpractice liability system from the perspective of legal doctrine. Some have focused on the medical malpractice law in action and tried to explain why medical dispute resolution in China is often associated with violent malpractice mobs. However, none of these studies can tell us whether the Chinese medical malpractice liability system is efficient at preventing medical errors and compensating victims of medical malpractice or not. Be that as it may, a minority of studies have touched upon the medical malpractice issues in China from the perspective of law and economics. Several journal articles in Chinese have briefly introduced the classic model of tort liability and made some comments on how to improve the Chinese medical malpractice liability law. Two theses have explained the classic model of tort law in detail, applied the model to evaluate the sub-rules of Chinese medical malpractice law systematically and made some recommendations on how the current law might be improved. However, all these studies have only examined the medical malpractice law in the books without paying attention to the law in action. As was presented in Chapter 4, there are marked variations between the law in books and the law in action in the context of Chinese medical malpractice law. Hence, it is insufficient to evaluate the medical malpractice liability system without looking at the empirical evidence. One article published in English has attempted to evaluate the new Chinese medical malpractice law provided for in the Tort Law 2009 on the basis of some empirical evidence. This article deserves serious attention because its author Kearney strongly argued as follows, China's new law is unlikely to cause any substantial decrease in the level of malpractice in the country. The Tort Liability Law is an inefficient model, the burden of which will be borne by under-funded hospitals and patients who are already under-served.

As summarized in several previous Circulation Mini-Reviews1–3 and elsewhere,4 the United States is experiencing a growing deficit in cardiovascular physicians that is made worse as cardiovascular diseases become more prevalent. Important contributors to this deficit in the cardiovascular workforce and other specialty workforces are the high and rising costs of malpractice premiums in the majority of our states.5 As cardiovascular specialists in Florida (cardiothoracic surgery and cardiology), we are at the center of this crisis. In the present review, we will examine the problem along with recent activities related to this crisis in Florida and discuss their implications. The American Medical Association stated in June 2002, that the majority (>40) of our states had major problems in that members of high-risk specialties were leaving or considering leaving their practices. Then–AMA President, Richard F. Corlin, MD, stated, “doctors are disappearing from American communities on a regular basis because of skyrocketing medical liability insurance premiums and an out-of-control legal system. As insurance becomes unaffordable or unavailable, and the legal system produces multi-million dollar jury awards on a regular basis, physicians are forced to limit services, leave practices, or relocate—all of which seriously impede patient access to high quality health care.” Florida (along with Georgia, Mississippi, Nevada, New Jersey, New York, Ohio, Oregon, Pennsylvania, Texas, Washington, and West Virginia) was among the 12 states considered to be at crisis level. According to the Department of Insurance in Florida, in 1975, total indemnity payments for professional liability cases were $10 271 090. By 2001, this had increased 3074% to a total indemnity payout of $326 052 228. A survey of comparative 2002 malpractice insurance premiums revealed that an invasive cardiologist in Los Angeles paid $16 148 for $1 000 000 coverage, whereas the same specialist in Miami paid $106 497, highest …

Medical law defines the rules of healthcare by specifying the rights of healthcare consumers while at the same time defining the obligations of healthcare providers. When clinicians fail to provide the standard of care, medical malpractice claims arise, leading to medical liability. While many malpractice claims allege deviation from the lex artis, a substantial proportion do not ultimately establish negligence and are dismissed or settled without a finding of fault. Due to the significant impact of medical negligence on the quality of medical care, as well as on the domestic and global economy, different countries adopt different systems for managing these disputes. Finally, the mandatory or non-mandatory medical malpractice insurance makes doctors carry out their medical work without the fear of medical liability. In fact, in most countries today, doctors are given the opportunity to choose between claims-made and occurrence-based policies of medical malpractice insurance. The study is a narrative review of scientific and legal works from different countries. For the comparison of medical liability systems and insurance policies a comprehensive review of databases and legal texts was conducted. This study compares medical liability and malpractice insurance systems across countries, examining variations in the handling of malpractice claims and their implications. The system is adversarial in many countries, especially in the United States, to allow for a substantial compensation, while other countries, such as the United Kingdom and Germany, focus on mediation and structured compensation processes. Notably, France, Japan and other countries follow a no-fault system, of reasoning that the system is more efficient in the sense that it reduces the patient's burden of proving negligence and thus expedites the compensation. These findings reveal how each country negotiates the balance between patient rights and healthcare provider protections, and, in turn, how these negotiations affect malpractice insurance costs and legal reforms. The analysis contrasts fault-based systems which offer large compensation awards with no-fault systems which focus on quick compensation but may lack accountability. Countries with high litigation rates like the US and Brazil have higher insurance costs, while countries like Canada and Australia have stabilized their systems through reforms. Medical liability insurance options, claims-made versus occurrence-based, raise different economic and legal concerns. Occurrence-based policies are more expensive for younger professionals, but they provide longer-term coverage than claims-made policies. Global medical liability frameworks vary considerably, reflecting cultural, economic and legal contexts. However, the comparison reveals that no system is perfect and that there is something to learn from each.

Medical malpractice is a form of professional negligence and such a negligence forms part of the law of tort. As an alternative to the tort or fault-based system in medical malpractice, a no-fault compensation system has been viewed as having the potential to overcome problems inherent in the tort system. This is through the provision of fair, speedy and adequate compensation for medically injured victims. A no-fault compensation system allows patients to be compensated without proof of provider’s fault or negligence. Similar to no-fault schemes, the strict liability system is not fault-based although it belongs to tort law. Successful claims are paid in a uniform manner using a fixed benefits schedule and include compensation for both economic and non-economic (pain and suffering losses) without the necessity of proving negligence through a tort claim. This study focuses on the comparison of no-fault compensation systems versus strict liability systems between Vietnam to Belgium, France, and England. The distinctions in Belgium, France, and England can be the lessons for the development of a no-fault compensation system as well as strict liability system in Vietnam.

A Comparison of Formal and Informal Dispute Resolution in Medical Malpractice

The objective of this study was to take a closer look at defense-related expenses for medical malpractice cases over time. We conducted a retrospective review of medical malpractice claims reported to the Physician Insurers Association of America's Data Sharing Project with a closing date between January 1, 1985 and December 31, 2008. On average a medical malpractice claim costs more than $27,000 to defend. Claims that go to trial are much more costly to defend than are those that are dropped, withdrawn, or dismissed. However, since the overwhelming majority of claims are dropped, withdrawn, or dismissed, the total amount spent to defend them surpasses that spent on claims that go to trial. Defense attorney expenses account for the majority of defense-related expenses (74%), while expert witness expenses and other expenses split the remaining 26%. A strong association was also found between the average indemnity payment and the amount it costs to defend individual claims by specialty. Our study found that defense-related expenses for medical malpractice claims are not an insignificant cost. As state and federal governments debate how to repair the malpractice system, addressing the high cost of defending claims should not be ignored.

Medical malpractice in South Africa, has gained significant momentum over the years. Healthcare professionals have had to ensure that their practices are insured for indemnification for significant amounts, in lieu of medical malpractice claims. This has resulted in healthcare professionals over insuring for medical malpractice and negligence claims, to ensure that they get suitably allocated legal representatives as well as cover in certain instances for the quantum sued by the aggrieved party. The burden of proof is that the plaintiff bears the duty to discharge on a balance of probabilities. This means that the version that was presented is more probable than the Defendant’s version, however, it does not end there, as the healthcare professional must have committed negligence, in that the reasonable medical practitioner would not have shown in the circumstances presented by the plaintiff. The paper navigates the procedural perspective of discharging the onus of proof in medical malpractice and negligence claims.