Risk Of Malpractice Liability Research Articles

Shifting Liability with Licensing: An Empirical Analysis of Medical Malpractice and Scope-of-Practice Laws

Abstract Medical malpractice liability plays an important role in the healthcare system, as evidenced by the many studies finding that changes in malpractice liability risk induce changes in the delivery and consumption of care. Importantly, the effect of malpractice liability depends on who is held liable, and recent developments in the healthcare system have clouded which providers face the risk of liability in certain situations. In particular, as the United States continues to face a physician shortage, nurse practitioners (NPs) have assumed greater roles within the healthcare system. Their ability to provide care, however, depends on state scope-of-practice (SOP) laws which often mandate that physicians supervise NPs’ practices. These mandatory supervision laws can facilitate the ability of injured patients to use various familiar doctrines, e. g. respondeat superior and negligent supervision, to hold supervising physicians liable based on the acts of NPs. As healthcare becomes increasingly team-based and as NPs deliver more care traditionally provided by physicians, understanding the interaction between malpractice liability and SOP laws will become critical. This Article reports novel empirical evidence on the interplay between malpractice liability and SOP laws. Examining a unique dataset of the malpractice premiums charged to physicians in various specialties, I analyze the extent to which SOP laws requiring that physicians supervise the practices of NPs impact the malpractice liability risk faced by physicians. In general, eliminating physician supervision requirements reduce the malpractice risk faced by physicians (as measured by the premiums paid to insure against this risk) by 7.5 %. In addition to elucidating a previously unappreciated interaction between tort law and state SOP laws, this evidence suggests that the imposition of physician supervision requirements may blunt the role of tort law in deterring the provision of unsafe or low-quality care. If SOP laws facilitate the shifting of liability risk from NPs to physicians through various tort doctrines, then neither NPs nor physicians will be appropriately deterred. Indeed, reaching optimal deterrence for one group would necessarily imply suboptimality for the other. This Article reviews several options to address this problem and recommends removing physician supervision requirements from state SOP laws.

IMPACT OF MEDICAL LIABILITY REFORM ON CORONARY ARTERY DISEASE TESTING AND INTERVENTION

Background: Physicians often report practicing “defensive medicine,” including ordering marginally beneficial tests and interventions to reduce their malpractice liability risk. Yet, most economic studies find no decrease in spending after malpractice reform. Methods: This study uses a random 5

Sorry is Never Enough: The Effect of State Apology Laws on Medical Malpractice Liability Risk

Based on case studies indicating that apologies from physicians to patients can promote healing, understanding, and dispute resolution, thirty-nine states (and the District of Columbia) have sought to reduce litigation and medical malpractice liability by enacting apology laws. Apology laws facilitate apologies by making them inadmissible as evidence in subsequent malpractice trials. The underlying assumption of these laws is that after receiving an apology, patients will be less likely to pursue malpractice claims and will be more likely to settle claims that are filed. However, once a patient has been made aware that the physician has committed a medical error, the patient’s incentive to pursue a claim may increase even though the apology itself cannot be introduced as evidence. Thus, apology laws could lead to either increases or decreases in overall medical malpractice liability risk. Despite apology laws' status as one of the most widespread tort reforms in the country, there is little evidence that they achieve their goal of reducing litigation. This Article provides critical new evidence on the role of apology laws by examining a dataset of malpractice claims obtained directly from a large national malpractice insurer. This dataset includes substantially more information than is publicly available, and thus presents a unique opportunity to understand the effect of apology laws on the entire litigation landscape in ways that are not possible using only publicly available data. Decomposing medical malpractice liability risk into the frequency of claims and the magnitude of those claims, we examine the malpractice claims against 90% of physicians in the country who practice within a particular specialty over an eight-year period.

Abstract 18: Impact of Malpractice Damage Caps on Cardiac Stress Testing and Medicare Spending

Objective: Physicians report that they often order tests to reduce medical malpractice liability risk. We test the hypothesis that caps on non-economic damages (the most stringent commonly adopted reform) will decrease cardiac testing rates, or healthcare spending more generally, using patient-level data for the Medicare population. Methods: We fit a difference-in-differences model on a 5% random sample of Medicare claims between 1999 and 2012. Treatment states (n=9) were those that introduced damage caps during the “third wave” of medical malpractice reform between 2002 and 2005. The remaining states were controls. We compared rates of cardiovascular stress testing and overall spending per enrollee before and after damage caps were adopted. Our model incorporates extensive covariates: individual and zip-code fixed effects; calendar quarter dummies; patient age; the 17 elements of the Charlson comorbidity index, and county-level demographic, socioeconomic, and health care characteristics. Results: Damage caps did not significantly affect total Medicare spending per enrollee (coefficient +0.31%, 95% confidence interval [CI] [-0.44%, 1.06%]); part A (Inpatient) spending (coefficient +0.79%, 95% CI [-0.05%, 1.64%]) or part B (Outpatient) spending (coefficient +0.02%, 95% CI [-0.64%, 0.67%]). Damage caps predict a statistically significant but clinically modest rise in stress testing rates (annual increase = 0.31%, 95% CI [0.04%, 0.58 %]). This is a 2.5% increase in the likelihood that an individual will receive a cardiac test in a given year. Conclusions: We find no evidence that introduction of damage caps in 9 states in the 2000s decreased either cardiac testing or overall healthcare spending when compared with states without these reforms. Indeed, we find a modest increase in cardiac testing rates, and point estimates for overall spending are also positive. We thus provide evidence against the hypothesis that damage caps reduce overtesting or overall spending.

Targeting Vascular Risk Factors in Older Adults

For many years vascular disease prevention strategies have been focused on reducing undertreatment, often using a “one-size-fits-all” approach to increase patient adherence. The paradigm of this approach has been the proposal of a polypill targeting multiple vascular risk factors, a standard treatment aimed at maximizing vascular protection. Conversely, during recent years an increasing emphasis has been placed on the issue of potential overtreatment, frequently resulting from the same treatment approach in all patients despite significant individual differences in comorbidity and life expectancy. In type 2 diabetes mellitus (T2DM), data from randomized clinical tr ials1 have shown uncertain or negative benefit-risk trade-offs associated with aggressive treatment of hypertension and hyperglycemia. These results, added to the well-known exclusion of elderly individuals with multiple morbidities from nearly all clinical trials, have informed recent guidelines, which now recommend more moderate targets for treatment of T2DM and hypertension in older participants, especially those considered frail or affected by important comorbidities.1 These treatment recommendations raise thepossible strategyof treatmentdeintensification forhighbloodpressure and hyperglycemia inpatientswithvaluespreviously identified as optimal and now labeled as low. This issue was addressed by Sussman and colleagues2 in a large retrospective sample of older individuals with T2DM (mean age, 78 years) from the Veterans Health Administration actively treated for T2DM or high blood pressure. They found that treatment deintensification (ie, dosage reduction or drug withdrawal) was performed in one-quarter or less of participants with low blood pressure (systolicbloodpressure<130mmHgordiastolicblood pressure <65 mm Hg) or a low hemoglobin A1c (HbA1c) level (<6.5%) (to convert to a proportion of total hemoglobin,multiply by 0.01). Moreover, whether treatment reduction occurredwasonlyweakly associatedwith apatient’s bloodpressure or HbA1c level and predicted life expectancy, suggesting that physicians are generally reluctant to deintensify treatment even in conditions that make benefits of therapy limited in comparison with potential harms. This interpretation is confirmed by a further study from theDepartmentofVeteransAffairs in thepresent issueofJAMA Internal Medicine. Caverly et al3 surveyed a national sample of health care professionals providing primary care, showing that almost half of themwouldnotworry aboutharmsof tight glycometabolic control obtained with an insulin secretagogue in an older patient at high risk for hypoglycemia. This approach to therapy was largely explained by the concern of making the patient’s HbA1c level fall out of Department of VeteransAffairs performancemeasures,which, as the authors point out, have never targeted values less than 7.0%. Nearly one-quarterof thehealthcareprofessionals interviewedwould even be concerned about malpractice liability risk with deintensification of hypoglycemic medications. In keepingwith these data, Sussman and colleagues2 call for a change in guidelines, qualitymeasures, and clinical performance management that should include recommendations and incentives to avoid overtreatment. This statement is alsoconsistentwitha recentanalysisofoutpatientandemergencydepartmentperformancemeasures in theUnitedStates that shows a lack of measures addressing overuse, especially regarding treatments.4 Yet, somecaveats shouldbe raised.Although studies ofmore aggressive control of risk factors have generally failed to show a reduction of cardiovascular events inT2DM, fewdataexist regarding theprognostic effectofdeintensification, especially in patients with good treatment tolerance. Conversely, more stringent targets are still recommended, although with a low level of evidence, for younger patients with a low risk for adverse events.1 In addition, incentives for treatmentwithdrawalmight carry a risk of avoiding potentially useful preventive strategies, especially in the present time of resource constraints. Less is not alwaysmore, andweshouldnot riskeliminating thebenefitsof therapywhile attempting to lower the risk. A proposed stratification of antihypertensive and antidiabetic treatment strategies according to patient vulnerability is described in the Figure, including issues that should be further clarified andpossible solutions. A first step is represented bytheneedforsimplebutclear indicatorsofvulnerability,which Related articles pages 1942 and 1994 Treatment Deintensification in Older Patients With Diabetes Mellitus Original Investigation Research

Malpractice Liability Risk and Use of Diagnostic Imaging Services: A Systematic Review of the Literature

PurposeA widespread concern among physicians is that fear of medical malpractice liability may affect their decisions for diagnostic imaging orders. The purpose of this article is to synthesize evidence regarding the defensive use of imaging services. MethodsA literature search was conducted using a number of databases. The review included peer-reviewed publications that studied the link between physician orders of imaging tests and malpractice liability pressure. ResultsWe identified 13 peer-reviewed studies conducted in the United States. Five of the studies reported physician assessments of the role of defensive medicine in imaging-order decisions; five assessed the association between physicians’ liability risk and imaging ordering, and three assessed the impact of liability risk on imaging ordering at the state level. Although the belief that medical liability risk could influence decisions is highly prevalent among physicians, findings are mixed regarding the impact of liability risk on imaging orders at both the state and physician level. ConclusionsInconclusive evidence suggests that physician ordering of imaging tests is affected by malpractice liability risk. Further research is needed to disentangle defensive medicine from other reasons for inefficient use of imaging.

Defensive medicine and diagnostic testing.

Defensive medicine often involves the excessive ordering of diagnostic tests. Constantly aware of the risk of malpractice liability, physicians turn to diagnostic tests with the goal of reducing the likelihood of error. Findings reported in literature suggest that medical malpractice contributes significantly to the increased use of diagnostic testing and related costs. It has also been demonstrated that defensive testing not only increases costs but harms patients to a degree that depends on the risk incurred by the test itself, its false-positive and false-negative rates, the benefits and risks of available therapies, and the prior probability of disease. Several solutions have been proposed in the attempt to address this issue, but the physician's competence and training appear to be key factors, data from clinical trials showing that education and feedback for improving test-ordering tendencies have a prolonged effect. Particularly in the field of laboratory medicine, increasing attention is being paid to improving demand management in order to minimize inappropriate testing.

Complementary and Alternative Medicine in Child and Adolescent Psychiatry

The rising popularity of complementary and alternative medicine (CAM) in child and adolescent psychiatry raises unique ethical and legal concerns for psychiatrists and other conventional health care providers. This article explores these concerns and provides clinical advice for promoting patient health and safety while minimizing the psychiatrist's risk. Although any departure from the conventional standard of care is a potential risk, the risk of malpractice liability for practicing integrative medicine in child and adolescent psychiatry is low. CAM is most safely recommended from a legal standpoint when there is some published evidence of safety and efficacy.

Does Tort Law Improve the Health of Newborns, or Miscarry? A Longitudinal Analysis of the Effect of Liability Pressure on Birth Outcomes

Previous research has identified an association between malpractice liability risk levels in a state and greater use of cesarean sections in obstetrical care. However, it is unclear whether such practice changes are associated with better birth outcomes. Using a mixed‐effects model, we investigate the impact of malpractice risk, as measured by malpractice insurance premiums and various state tort reforms, on four adverse birth outcomes. We use a longitudinal research design to examine millions of individual births from 51 jurisdictions over 12 years (1991–2002). We find that the odds of adverse birth outcomes are not associated with premium levels or tort reforms. Our results suggest that rather than having a socially desirable deterrent effect on substandard care, liability pressure may produce a level of precaution taking in obstetrics that is higher than socially optimal. By the same token, the results also suggest that the adoption of liability‐limiting reforms is unlikely to have an adverse impact on outcomes.

Do Physicians’ Legal Duties to Patients Conflict with Public Health Values? The Case of Antibiotic Overprescription

Among the many explanations for antibiotic overprescription, some doctors cite the risk of malpractice liability if they deny a patient's request for an antibiotic and the patient's condition worsens. In this paper, I examine the merits of this concern—i.e., whether physicians could, in fact, face malpractice liability for refusing to prescribe an antibiotic when, from a public health perspective, the use of the antibiotic would be considered inappropriate. I conclude that the potential for liability cannot be dismissed entirely, but the risk is remote—even in cases where there is a chance that the antibiotic might have benefited the patient.

The Doctor-Patient Relationship

(Reprinted with permission from Simon RI, Shuman DW: The doctor-patient relationship, in Clinical Manual of Psychiatry and Law. Arlington VA, American Psychiatric Publishing Inc. 2007; 17–36)

The Use of Mid-Level Providers in Dermatology: A Liability Risk?

The use of mid-level providers, nurse practitioners, and physician assistants is growing in the practice of dermatology, fueled by a perceived shortage of dermatologists and the promise of practice enhancement. Exactly how the physician extender is used in the dermatology practice can either increase or decrease the risk of malpractice liability and ultimately may be a factor in whether the dermatologist prevails in a malpractice case. Although dermatologists can delegate care to physician extenders, they cannot delegate the liability risk. It is up to the dermatologist to embrace those principles and practices that enhance patient care, decrease medical errors, and improve physician/practice patient relationships to ultimately decrease the risk of malpractice liability.

Physician Liability and Managed Care: A Philosophical Perspective

Despite the emergence of managed health care and the resulting dramatic change in the role of the third-party payer in the physician-patient relationship, the liability standards applied to physicians largely have remained unchanged. This has created a tension between physicians' legal and ethical obligations, and the requirements imposed on the physician by managed health care. Specifically, the issue confronts the physician in the context of malpractice liability. Managed Care Organizations impose a significant amount of control over the way physicians practice medicine, often forcing physicians to ration care. Notwithstanding any beneficial cost savings that might result, this approach subjects the physician to the risk of malpractice liability. Current malpractice law enhances this risk, because courts frequently speak of physicians having a duty to resist the pressures of managed care. This presents a significant policy problem, not just for physicians and their patients, but for society at large, as the current legal framework does not further, but in fact undermines, society's overall goal of containing health care costs. Professor Fine examines the policy problem through a philosophical lens, and maintains that the law's failure to account for the change to a managed care model and the resulting change in the way the physician practices medicine has created a situation that is fundamentally unfair to physicians. More importantly, it is argued that the continued adherence to outdated principles of liability is deficient from a utilitarian perspective, as the current framework hinders society's overall goal of lowering health care costs. Finally, Professor Fine evaluates proposed solutions to this problem, and concludes that the best approach is one that relies on the medical profession to take the initiative and institute reforms in the way medicine is practiced so that considerations of cost can be responsibly and effectively incorporated into treatment decisions. This would make the standard of care more reflective of the current state of health care, and better promote the goal of cost containment.

Is the defensive use of diagnostic tests good for patients, or bad?

Physicians sometimes order diagnostic tests to reduce the risk of malpractice liability. The authors develop an expected-utility model that links a rational physician's concerns about malpractice liability to increases in the use of diagnostic tests and use this model to assess the effects of defensive testing on patients' interests. To do so, they adapt the threshold approach to clinical decision making to incorporate the physician's interests, focusing on 1) the effect of the physician's expected liability risks and 2) the effect of any expected liability reduction due to diagnostic testing. Surprisingly, the mere existence of liability risks is often sufficient to widen the range of disease probabilities for which diagnostic testing is the preferred clinical strategy. If testing reduces the physician's expected liability risks, the testing range is widened further. For some disease probabilities, testing is preferred by the physician even though it is not in the patient's best interests. When tests are performed in such instances, utility is transferred from the patient to the physician and the physician's insurer. Although the defensive use of diagnostic tests improves clinical outcomes for some patients, it worsens clinical outcomes for others. Moreover, defensive testing worsens the expected outcomes of all patients whose clinical strategies are changed. Physicians should realize that defensive testing necessarily reduces the overall quality of patient care.

A New Resource for Managing Malpractice Risks in Managed Care

The risk of malpractice liability faced by physicians is exacerbated by third-party intrusions such as those encountered in today's managed care environment. The likelihood that a malpractice action will be brought is increased by the interaction among patients, families, or physicians who are at high risk for litigation and situations (eg, denial of treatment benefits by the managed care organization) that create adversity. To prevent the ready translation of resource adversity into an adversarial physician-patient-family relationship, a forensic psychiatric consultation is recommended.

Strategies to limit CNS malpractice liability exposure.

The number of nurses named as defendants in medical malpractice cases is increasing. The CNS may be especially vulnerable in this legal climate. The complexity and diversity of the CNS role expose the CNS to an increased risk of malpractice liability in a variety of situations. Malpractice judgments and verdicts are used to describe the legal milieu that the CNS practicing in the various roles may encounter. The CNS roles examined are that of: clinician, educator, consultant, and researcher. The liabilities inherent in each of the CNS roles are defined, as well as strategies to limit malpractice liability exposure.

Myth and Reality: The Threat of Medical Malpractice Claims by Low Income Women

Physician reluctance to treat poor and minority women is often attributed to three factors-rate of reimbursement, health status of the patient and perception of increased malpractice liability'-which intertwine in a vicious cycle that contributes to the exclusion of low income and minority women from health care. The prospect and reality of insufficient or non-existent reimbursement for provider services produces an unwillingness to accept poor or poorly insured patients. This reluctance is reinforced by rising medical malpractice premiums' and the perception that the reduced rate of reimbursement received for low income patients does not justify the increased risk of malpractice liability. 3 The belief that the poor are likely to sue is a misperception that urgently needs to be corrected. Many physicians view low income patients as more litigious4 than middle cia~; or wealthy patients, despite mounting evidence to the contrary. 5 In fact, over the last few years providers have successfully argued before state legislatures that they should be immunized from liability for damages for injury or death resulting from negligence when Karen H. Rothenberg

Evaluating STAT Testing Alternatives by Calculating Annual Laboratory Costs

Until 1984, when the Deficit Reduction Act (DRA) was passed, hospitals and their clinical laboratories were fully reimbursed for nearly all test analyses that were performed. The DRA established a Medicare system that indirectly pays for laboratory tests as part of a total-care reimbursement fee based on the diagnosis-related group (DRG) that classifies the patient’s clinical condition. Under this system, a hospital makes money if its actual patient care costs are less than the DRG reimbursement, or it loses money if its costs exceed the predefined DRG level. Two-thirds of health care reimbursements are now paid by Medicare or similar prospective payment programs. In addition to the prospective payment environment, several emerging trends impact the financial management of a hospital laboratory service: (1) Competition for Resources-Laboratories now must compete with other hospital departments for available resources. More than 70 percent of operating laboratories have experienced budget reductions.’ (2) Increased Costs-The cost of operating laboratories has increased faster than the general inflation rate, primarily due to an increased volume of testing caused by advances in technology, worry over malpractice liability risk, easier access to testing, and an increase in the acuity of illness in our aging population.23 (3) Higher Standard of Care Demands-Clinicians expect laboratories to quickly deliver reliable results to help them make immediate patient management decisions. The American Heart Association and the Emergency Care Research Institute recommend, for example, that blood gas and electrolyte results in open heart surgery be available within five minutes.4’5 The expected required turnaround time for these same tests in other critical care settings varies, but it is generally in the range of five to 15 minutes. These standards are

Recent developments in antitrust: Challenges to medical autonomy

Once exemptions from antitrust scrutiny were removed, economic arguments have proved effective in dissolving the hegemony formerly held by psychiatrists over the provision of mental health services. A growing number of courts, legislatures, and insurance companies have been persuaded by psychologists that they can provide at least comparable services at lower costs than psychiatrists. The fact that psychotherapy is less obviously a "medical" procedure than surgery or other physical treatments has facilitated the establishment of the psychologists' position. After these gains, there are indications that other mental health providers will follow the paths established by psychologists. Cost-containment efforts in the mental health care industry, particularly through health maintenance organizations, have already led to increased utilization of nondoctoral providers for initial screening services, and psychiatrists have even filed countersuits alleging restraint of their trade through the exclusive use of lower-cost providers (State Medical Society of Wisconsin v. Schweiker et al., 1982). With the clear message from many courts and legislatures that profession will no longer serve to distinguish among mental health providers, it appears that the validity of psychiatrists' assertions that independent practice by nonmedical mental health professionals will result in lower quality of care for patients will be tested in the marketplace, with peer review and tort litigation serving as the barometer by which that quality will be measured. And, as other nonmedical professionals establish their credentials through licensure and recognition by consumers, we can expect that they will also seek recognition of their capacities to provide (and be reimbursed for) professional services through the courts. With this greater access to consumers of mental health care will also come, of course, greater public scrutiny and greater risk of malpractice liability.

Malpractice Claims for Urogenital Injuries

Precise information regarding patient injuries, claims and compensation in medical malpractice cases is scarce. This dearth is especially evident among cases citing injury to the genitourinary system. In an effort to explore the topic of iatrogenic urogenital damage 3,454 malpractice claims were reviewed and an analysis of 122 cases involving urogenital injury is presented. The 2 types of claims that predominated were negligent surgery, and failure to diagnose and treat urogenital disease. Nonurological practitioners were the focus of allegations of negligence in two-thirds of each type of claim. Certain surgical procedures and clinical shortcomings in a wide range of specialties were identified as being prevalent causes of malpractice claims for urogenital injuries. The correlation between money paid to claimants and specific types of injury also was examined. Suggestions are offered regarding ways to reduce the risk of malpractice liability.