Malpractice Law Research Articles

Evaluating the medical malpractice system and options for reform.

The U.S. medical malpractice liability system has two principal objectives: to compensate patients who are injured through the negligence of healthcare providers and to deter providers from practicing negligently. In practice, however, the system is slow and costly to administer. It both fails to compensate patients who have suffered from bad medical care and compensates those who haven't. According to opinion surveys of physicians, the system creates incentives to undertake cost-ineffective treatments based on fear of legal liability--to practice "defensive medicine." The failures of the liability system and the high cost of health care in the United States have led to an important debate over tort policy. How well does malpractice law achieve its intended goals? How large of a problem is defensive medicine and can reforms to malpractice law reduce its impact on healthcare spending? The flaws of the existing system have led a number of states to change their laws in a way that would reduce malpractice liability--to adopt "tort reforms." Evidence from several studies suggests that wisely chosen reforms have the potential to reduce healthcare spending significantly with no adverse impact on patient health outcomes.

Improve Medical Malpractice Law by Letting Health Care Insurers Take Charge

This essay discusses unlimited insurance subrogation (UIS) as a means of improving the deterrence and compensation results of medical malpractice law. Under UIS, health care insureds could assign their entire potential medical malpractice claims to their first-party commercial and government insurers. UIS should improve deterrence by establishing first-party insurers as plaintiffs to confront liability insurers on the defense side, leading to more effective prosecution of meritorious claims and reducing meritless and unnecessary litigation. UIS should improve compensation outcomes by converting litigation cost- and risk- laden "tort insurance" into cheaper and enhanced first-party insurance. UIS also promises dynamic benefits through further reforms by contract between the first-party and liability insurers that would take charge of system. No UIS-related costs are apparent that would outweigh these benefits.

Health Care Reform 2010: A Fresh View on Tort Reform

We reviewed the state of medical malpractice tort reform in the context of a new political climate and the current debate over comprehensive health care reform. Specifically we asked whether medical malpractice tort reform is necessary, and evaluated the strengths and weaknesses of contemporary reform proposals. The medical, legal and public policy literature related to medical malpractice tort reform was reviewed and synthesized. We include a primer for understanding the current structure of medical malpractice law, identify the goals of the current system and analyze whether these goals are presently being met. Finally, we describe and evaluate the strengths and weaknesses of the current reform proposals including caps on damages, safe harbors and health care courts. Medical malpractice tort law is designed to improve health care quality and appropriately compensate patients for medical malpractice injuries, but is failing on both fronts. Of the 3 proposed remedies, caps on damages do little to advance the quality and compensatory goals, while safe harbors and health care courts represent important advancements in tort reform. Tort reform should be included in the current health policy debate because the current medical malpractice system is not adequately achieving the basic goals of tort law. While safe harbors and health care courts both represent reasonable remedies, health care courts may be preferred because they do not rely on jury determination in the absence of strong medical evidence.

Lower Costs Will Follow Reform of Malpractice Laws, AMA Says

Psychiatrists are the physicians least likely to face malpractice claims during their careers, and younger psychiatrists are much less likely to have faced a medical liability claim than their older colleagues.

Physicians’ Fears Of Malpractice Lawsuits Are Not Assuaged By Tort Reforms

Physicians contend that the threat of malpractice lawsuits forces them to practice defensive medicine, which in turn raises the cost of health care. This argument underlies efforts to change malpractice laws through legislative tort reform. We evaluated physicians' perceptions about malpractice claims in states where more objective indicators of malpractice risk, such as malpractice premiums, varied considerably. We found high levels of malpractice concern among both generalists and specialists in states where objective measures of malpractice risk were low. We also found relatively modest differences in physicians' concerns across states with and without common tort reforms. These results suggest that many policies aimed at controlling malpractice costs may have a limited effect on physicians' malpractice concerns.

Medical Malpractice/Expert Testimony/Disclosure of Errors

1. Jonathan M. Fanaroff, MD, JD* 1. *Rainbow Center for Pediatric Ethics, Rainbow Babies & Children's Hospital; Department of Pediatrics, Case Western Reserve University School of Medicine, Cleveland, Ohio. After completing this article, readers should be able to: 1. List common conditions involved in pediatric malpractice lawsuits. 2. Describe the four elements needed to prove medical negligence. 3. Understand the role of the expert witness in medical malpractice. 4. Discuss a general approach to disclosing medical errors. Nearly one in three pediatricians will be sued during their careers. Compared with other specialties, pediatrics ranks fourth in highest average indemnity, trailing only neurology, neurosurgery, and obstetrics/gynecology. For this reason, practicing clinicians must understand their rights, duties, and liabilities as physicians. Training programs are expected to educate residents on medicolegal issues. According to a recent survey, however, fewer than 50% of graduating pediatric residents received instruction on medical malpractice litigation, and fewer than 33% learned about expert witness testimony. (1) This article focuses on error disclosure, malpractice litigation, and the provision of expert testimony. Medical malpractice law arises from the broader legal area known as torts. A tort, which means “wrong” in French, is a “civil wrong in which a person has breached a legal duty with harm caused to another.” (2) Physicians are expected to adhere to a level of conduct. If their behavior is found to be substandard and a patient is harmed as a result, the physician can be sued for malpractice. The most common basis for a malpractice suit is an allegation of medical negligence. Pediatricians are sued most commonly for errors in diagnosis related to several conditions (Table 1). (3) View this table: Table 1. Common Conditions Involved in Malpractice Lawsuits To win a malpractice case for negligence, the plaintiff must prove four separate elements: duty, breach, causation, and damages. ### Duty Plaintiffs first must show that the physician …

The Multiple Common Law Roots of Charitable Immunity: An Essay in Honor of Richard Epstein's Contributions to Tort Law Scholarship

Professor Epstein has long promoted replacing tort-based malpractice law with a new regime based on contracts. In Mortal Peril, he grounded his normative arguments in favor of such a shift in the positive, doctrinal history of charitable immunity law. In this essay, in three parts, I critique Professor Epstein’s suggestion that a faulty set of interpretations in charitable immunity law led to our current reliance on tort for malpractice claims. First, I offer an alternative interpretation to Professor Epstein’s claim that one group of 19 and early 20 century cases demonstrates a misguided effort to protect donor wishes. Rather, I maintain that these cases make more sense when understood in the context of trust law. Second, I argue that another group of cases — cases based on indigent patients’ implied waivers of tort rights in exchange for charitable services — is not best understood as being based on implied contracts, as Professor Epstein claims. Rather, these cases are better understood as enforcing tort privileges that arise from the charitable status of the defendant. Finally, I critique Professor Epstein’s contention that a charity’s ability to waive immunity for some or all plaintiffs reveals that immunity doctrine more comfortably fits with contract theories than tort theories. ∗Jill R. Horwitz is Louis and Myrtle Moskowitz Research Professor of Business and Law, University of Michigan Law School. The author thanks Marion Fremont-Smith, Bruce Frier, Don Herzog, participants at the AALS Torts Group Section Meeting, and panel members (Jules Coleman, Joshua Getzler, John Goldberg, and Ben Zipursky) for helpful discussions and comments; Lia Ernst for excellent research assistance and editing; and, of course, Richard Epstein for his work. Brought to you by | University of Michigan Law School Authenticated | 141.211.57.203 Download Date | 12/11/13 5:06 PM

Law & Psychiatry: Liability Issues Associated With Referrals to Self-Help Groups

Law & Psychiatry: Liability Issues Associated With Referrals to Self-Help Groups

Effective laboratory quality management towards preventing medical liability cases.

The last decade has seen a rapid expansion of the various branches of health care services in India. This has seen a corresponding increase in consumer knowledge, which has resulted in (a) increased demand for high quality services and (b) these services to be provided in a timely manner. Medical laboratory plays a central role in the delivery of these services as over 70% of clinical decisions are taken based on laboratory reports (1). An important component in the whole process is laboratory error and an expectation to get error free services. With growing awareness amongst customers, in this case largely patients, and increasing cost, medico- legal litigations are on the rise. Court cases are often filed against doctors by patients for real or perceived reasons of dissatisfaction. Medical malpractice law suits against medical laboratories are also on the rise. This has placed a significant onus and urgency on clinical laboratories to ensure that quality and error free work practices are maintained. There has been a steady improvement in the quality of tests due to improved technology. Laboratory automation has also taken on a new level of importance in improving quality. We have the ability now to get instruments interfaced to various laboratory information systems. Information technology has consequently taken a giant leap in the field of biomedical equipment to drastically reduce manual intervention during the analytical procedure without compromising on established levels of care.

The Impact of Medical Liability Standards on Regional Variations in Physician Behavior: Evidence from the Adoption of National-Standard Rules

I explore the association between regional variations in physician behavior and the geographical scope of malpractice standards of care. I estimate a 30–50 percent reduction in the gap between state and national utilization rates of various treatments and diagnostic procedures following the adoption of a rule requiring physicians to follow national, as opposed to local, standards. These findings suggest that standardization in malpractice law may lead to greater standardization in practices and, more generally, that physicians may indeed adhere to specific liability standards. In connection with the estimated convergence in practices, I observe no associated changes in patient health. (JEL I11, I18, J44, K13)

Private Conflict and Policy Passage: Interest‐Group Conflict and State Medical Malpractice Reform

James Madison argued in Federalist 10 that “rival political factions” work against the public good. In contrast to Madison's pessimistic account, I suggest that factional conflict can lead to more representative public policy, and thus further the will of the people. I theorize that elected officials often seek a safe political position—one that corresponds to the preferences of the public at large—during periods of high conflict. I assess this theory in one, salient policy area, medical malpractice. I measure conflict with contributions for state candidates given by (i) the health and insurance industries, which generally support malpractice laws, and (ii) lawyers, who frequently oppose the laws. I find that group conflict matters to policy outcomes. I also find evidence that, under conditions of elevated conflict, adopted policies are more likely to move toward the general ideological preferences of the public at large. These results suggest that group conflict affects both the quantity and character of policy in the American states.

Professional Liability Issues for Librarians and Information Professionals (review)

Reviewed by: Professional Liability Issues for Librarians and Information Professionals Bryan M. Carson Professional Liability Issues for Librarians and Information Professionals, Paul D. Healey. New York: Neal-Schuman Publishers, 2008. 236p. $85 softcover (ISBN 978-1-55570-609-8) Professional liability is an important legal issue for the information disciplines. Several important works on information law have been published in recent years, including the Library’s Legal Answer Book by Mary Minnow (Chicago: American Library Association, 2003), Navigating Legal Issues in Archives by Menzi Behrnd-Klodt (Chicago: Society of American Archivists, 2008), and my own book The Law of Libraries and Archives (Lanham, MD: Scarecrow Press, 2007). However, a book entirely devoted to this topic is a welcomed contribution. Professional Liability Issues for Librarians and Information Professionals by Paul Healey— part of the Legal Advisor for Librarians, Educators, & Information Professionals Series—fills a vital need by providing an extended and detailed look at this important topic of professional practice. Well-written and interesting, the book is a quick read. As a librarian with a legal background, Healey has been writing about liability issues for many years. The book is written in non-technical language that is accessible to non-attorneys but contains in-depth examples and definitions grounded in the law of torts and liability. Healey’s expanded definition of the information field includes librarians, information brokers, archivists, and museum curators. He notes ways in which the laws apply differently to each of these groups. The book begins with an overview of the law of torts, malpractice, and liability. Although the book touches upon other areas of liability as necessary (such as contracts), readers who are interested in more details on these topics are directed to other relevant works. [End Page 290] It is important to note that legal reasoning is not about learning the rules, as one does in a cataloging class. There is no equivalent in law to the Anglo-American Cataloging Rules. Rather, American law is based upon a process of analysis. This distinction is even more important because there has never been a single published case in the United States dealing with liability issues for the information field. With no case law for guidance, it is possible for two lawyers to analyze the situation and come to different conclusions. Healey spends a fair amount of time grappling with the legal distinction between professionals, who are personally liable for their work if they do not follow the standards of their profession, and workers in an occupation, who are not personally liable for work performed within the scope of their employment. The status of the information field is not settled in either law or sociology. Although his analysis is slightly different than mine, this is a matter of quibbling over details. We certainly agree that information workers who adhere to the scope of their duties and the standards of their fields are probably, for the most part, exempt from personal liability. Some of the analysis in this book is nothing short of brilliant. The concept of sovereign immunity has rarely been discussed with regard to government-owned information organizations. Although discussion of patron status is common in legal and medical libraries, Healey brings these distinctions to other settings. Finally, Healey does an excellent job distinguishing the fiduciary and consulting roles of professionals, making a compelling argument that information professionals should stick to consulting roles. Each chapter is divided into logical subsections. Important information and examples are highlighted in sidebars, and endnotes are at the end of each chapter. Healey uses the expanded table of contents format common in law, along with a separate table of cases at the rear of the book. The two-level index is well constructed and contains cross-references. The only deficiency is that the author has chosen to repeat certain sections that could have been combined or cross-referenced. The rights of privacy and publicity are first mentioned in the chapter on torts, then repeated almost word for word in the chapter on laws specific to archivists and curators. Similarly, the chapters on proactive approaches to liability, training suggestions, policy suggestions, and liability audits are very repetitive; the reader would have been better...

Criminal judgments to medical malpractice in Taiwan

Our society is the only country that punishes physicians with medical malpractice by using criminal law as a routine, while most countries in this planet settle almost all medical disputes with civil action. In Taiwan, criminal suits account 79% of all medical malpractice law suits. The purpose of this trial is to investigate the reasons for the overruled criminal judgment by empirical approach. In this study, 15 overruled judgments out of 615 criminal prosecutions were collected from February 1st, 2002 to January 31st, 2005. The judgments of these cases are analyzed by using “the content analytic method”. It is found that in these 15 criminal prosecutions, 16 doctors out of 18 defendants lost their trials, which indicates, statistically, one doctor was sentenced to be guilty per every 3 months. Out of these unlucky ones, two-thirds of the criminals were surgeons, one-fifth internists, and the rests are gynecologists and pediatricians. The average of the terms of imprisonment was 6.6 months and, fortunately, all of them obtained probation or replacement with forfeit. In these cases, most of the doctors came from local hospitals or clinics, while only two were from the medical centers. Concerning the disputes, five cases were involved with delayed or missed diagnoses of the illness and the other ten in the surgical complications. In the first 4 years of the 21st century, there was one physician in Taiwan sentenced guilty per every 3 months, which is a unique phenomenon in the world. The criminal rate of physicians in Taiwan is the highest in all professionals in the world. Most of these criminal doctors were the laborious, mind-dependent, life-saving surgeons, internists, pediatricians, and gynecologists. According to the causes of the disputes, the difference between the expectation of the doctors and that of the patients should be treated by informed consent doctrine to avoid the very expensive defensive medicine.

An Introduction to Medical Malpractice in the United States

Medical malpractice law in the United States is derived from English common law, and was developed by rulings in various state courts. Medical malpractice lawsuits are a relatively common occurrence in the United States. The legal system is designed to encourage extensive discovery and negotiations between adversarial parties with the goal of resolving the dispute without going to jury trial. The injured patient must show that the physician acted negligently in rendering care, and that such negligence resulted in injury. To do so, four legal elements must be proven: (1) a professional duty owed to the patient; (2) breach of such duty; (3) injury caused by the breach; and (4) resulting damages. Money damages, if awarded, typically take into account both actual economic loss and noneconomic loss, such as pain and suffering.

Suits And Suitability

Suits And Suitability

Reproductive disruptions: gender, technology and biopolitics in the new millennium

This edited book has a social anthropological approach to what the editor and chapter authors call ‘reproductive disruption’ (i.e. the ‘norm’ not being followed for whatever reason). Within this title they include infertility, pregnancy loss, childbirth and beyond. There are eight chapters, in two parts, and an introduction that defines women's health and is divided into 12 themes, called ‘messages'. The underlying national approach is American (US) and, therefore, practices are not necessarily comparative with the UK. In fact, the underlying research is from Chicago; it is ethnographic, using participant observation, interviews and visits to medical facilities. However, what has been used in this book is mainly what has been published in two magazines: Fit Pregnancy and Mothering, plus one issue of Awake (a Jehovah's Witness pamphlet), the New York Times and a textbook on medical malpractice law. Formal interviews were undertaken with doctors and midwives and, additionally, informal interviews were undertaken with men, women and nurses. Despite the overall US perspective, pages 51–54 in Chapter 1 contain some international comparisons between developed and developing countries.

The Aging Radiologist: “You Are Old, Dr Williams”

HomeRadioGraphicsVol. 28, No. 4 PreviousNext IlluminationsFree AccessThe Aging Radiologist: “You Are Old, Dr Williams”Donald M. BachmanDonald M. BachmanAuthor Affiliations1From the Department of Radiology, Metrowest Medical Center, Framingham/Natick, Mass. Received December 5, 2007; accepted January 29, 2008.Address correspondence to the author, 11 Bridle Path, Wayland, MA 01778 (e-mail: [email protected]).Donald M. BachmanPublished Online:Jul 1 2008https://doi.org/10.1148/rg.284075750MoreSectionsPDF ToolsImage ViewerAdd to favoritesCiteTrack CitationsPermissionsReprints ShareShare onFacebookTwitterLinked InEmail The following poem was written as a clinical vignette to accompany a talk I gave at the 2007 Annual Meeting of the Radiological Society of North America on the aging physician, as part of a refresher course, entitled “When the Physician is the Problem,” given by the RSNA’s Professionalism Committee. I freely adapted the poem from “You Are Old, Father William” by Lewis Carroll (1832–1898), which appeared in Alice’s Adventures in Wonderland, published in 1865 with illustrations by John Tenniel (one of which I also adapted). Carroll’s poem parodied an older work by Robert Southey (1774–1843) entitled “The Old Man’s Comforts, and How He Gained Them.” The Dr Williams of my poem is not intended as a portrayal of any radiologists of my acquaintance who share the same name; they are all splendid and youthful fellows.Download as PowerPointOpen in Image Viewer You Are Old, Dr Williams“You are old, Dr Williams,” the department head said, “And your hair has become very white. And yet you incessantly read mammograms. Do you think, at your age, it is right?”“In my youth,” Dr Williams replied to his chair, “I feared it might injure the brain; But, now that I’m perfectly sure I have none, Why I read them again and again!”“You are old,” said the youth, “as I mentioned before, And you have grown most uncommonly fat; Yet you do barium enemas all by the score… Pray what is the reason for that?”“In my youth,” said the sage, as he shook his locks gray, “I kept all my organs most supple, With this special lead apron to fend off the rays. Allow me to sell you a couple?”“You are old,” said the chief, “and your jaws are too weak For anything tougher than suet, Yet you dictate your cases, week after week… Pray how do you manage to do it?”“In my youth, I testified malpractice law And argued each case with my wife; And the muscular strength which it gave to my jaw, Has lasted the rest of my life.”“You are old.” Said the lad, “one hardly would think That your eye was as steady as ever; Yet you threaded a catheter quick as a wink. What made you so awfully clever?”“I have answered three questions, and that is enough,” Said the old man, “Desist I do pray. Do you think I can listen all day to such stuff? I’m off to the RSNA!”Article HistoryPublished in print: July 2008 FiguresReferencesRelatedDetailsRecommended Articles Customer Service in Radiology: Satisfying Your Patients and ReferrersRadioGraphics2018Volume: 38Issue: 6pp. 1872-1887In MemoriamRadiology2021Volume: 299Issue: 2pp. E260-E261Lessons on LeadershipRadioGraphics2018Volume: 38Issue: 6pp. 1688-16932017: A Look BackRadiology2017Volume: 285Issue: 3pp. 702-704Neurocristopathies: Enigmatic Appearances of Neural Crest Cell–derived AbnormalitiesRadioGraphics2019Volume: 39Issue: 7pp. 2085-2102See More RSNA Education Exhibits Single and Double-Contrast Barium Enema in Modern Radiology: Do They Have a Role?Digital Posters2019Reading Between the Guidelines: Techniques and Pitfalls in the Assessment of Resting Perfusion Defects on Dual Energy CT Coronary AngiographyDigital Posters2018Anorectal Manometry: A Complete Elimination of the Radiologist’s QuestionsDigital Posters2020 RSNA Case Collection Intussusception air enema reductionRSNA Case Collection2020Autosomal recessive polycystic kidney diseaseRSNA Case Collection2021Lipoid proteinosisRSNA Case Collection2020 Vol. 28, No. 4 Metrics Downloaded 1,846 times Altmetric Score

Bad Results or Medical Malpractice in Pain Medicine: Ways to Prevent a Suit and What to Do Once a Suit Is Inevitable: Table 1

An unfortunate reality of medical practice is that many clinicians will be a target of malpractice litigation during their career. This article describes the critical issues involved in understanding malpractice law. We examine the differences between a malpractice suit and a bad outcome. The article also examines the actions a physician can take to improve their litigation risks and outcomes. The critical factors needed to defend a physician in a medical malpractice suit are also detailed. Conclusion. This article discusses how to prevent malpractice litigation against an interventional pain physician and the appropriate actions once a bad result has occurred.

Psychotropic Medications and Informed Consent: A Review

There is increasing concern about the safety of various psychotropic medications within the scientific community, as evidenced by the number of black-box warnings issued by the Food and Drug Administration (FDA), and "Dear Doctor" letters sent by pharmaceutical companies. Health-care providers need to be mindful of the increasing ethical, legal, and financial risks associated with prescribing these medications. The English language literature was searched using Medline and the Internet using relevant terms such as "black-box warning," "malpractice," "off-label prescribing," "informed consent," "medications and pregnancy," and with specific medication names, and appropriate articles and information were selected. Essential elements of obtaining informed consent when prescribing psychotropic medications to patients who are presumed to have capacity to make decisions regarding their health care are reviewed. In addition, specific concerns vis-a-vis use of psychotropics during pregnancy, off-lable use, and combining medications are discussed. Finally, ten essentials of informed consent are noted, with a focus on practicing good medicine and avoiding malpractice law suits. There are an ever increasing number of special interest groups and legal firms lining up against psychiatry and psychiatrists, especially when it comes to prescribing "powerful, potentially dangerous, mind-altering, psychotropic medications." Obtaining informed consent has always been important, but never more so than now.

Unsicherheit in der Pädiatrie durch Off-Label-Use von Arzneimitteln

The off-label use of drugs in paediatrics is a common practice casting doubts on the adequate safety of drug therapy. Regulatory initiatives of European and national legislators aim to address this paucity of clinical drug trials in paediatrics through clarifying regulations and incentives in pharmaceutical law, thereby promoting an increase in the approval of paediatric drugs, the improvement of drug and thus treatment safety. This paper describes the present situation in paediatrics and the legal status of off-label use in pharmaceutical law, medical malpractice law and statutory health insurance law.