Medical Litigation Research Articles

Seeking Answers through the Right Questions: “Evidence Presentation and Response in Medical Civil Litigation”

Seeking Answers through the Right Questions: “Evidence Presentation and Response in Medical Civil Litigation”

The evolution of informed consent in gastroenterology.

With medical litigation on the rise, physicians require a nuanced understanding of the legalities of consenting patients to reduce their liability while practising evidence-based medicine. This study aims to a) clarify the legal duties of gastroenterologists in the UK and USA when gaining informed consent and b) provide recommendations at the international and physician level to improve the consent process and reduce liability.A bibliometric analysis of the Web of Science database with the MeSH terms "gastroenterology" and "informed consent" yielded 383 articles, of which 228 were excluded due to not meeting the inclusion criteria. Of the top 50 articles, 48% were from American institutions and 16% were from the UK. Thematic analysis showed 72% of the articles discussed informed consent in relation to diagnostic procedures, 14% regarding treatment, and 14% regarding research participation.Both the USA and the UK have progressed from previously paternalistic Natanson case (1960) and Bolam test (1957), respectively, where physicians were held to the standard of a "reasonable and prudent medical doctor". The American Canterbury case (1972) and the British Montgomery case (2015) radically shifted the standard of disclosure during the consent process by requiring physicians to explain all information pertinent to a "reasonable patient".It is our recommendation that a two-pronged approach be taken; a) creation of international guidelines for consenting patients for invasive procedures in gastroenterology, and b) development of internationally standardised endoscopy consent forms containing all the details pertinent to a "reasonable patient".

AN ANALYSIS OF UNDERTRIAGE AT HOSPITAL SULTAN ABDUL HALIM, SUNGAI PETANI, KEDAH, MALAYSIA


 
 
 Undertriage may lead to serious outcomes such as mortality, morbidity, and medical litigations. This study aimed to determine the rate, outcomes, and predictive factors of undertriage among red zone patients at Hospital Sultan Abdul Halim, Kedah. A retrospective study was conducted from January 2018 until December 2019 involving 393 patients, with 131 and 262 patients categorized as undertriaged and appropriately triaged, respectively. Undertriage patients were identified as patients who fulfilled the red zone category based on the Malaysian Triage Category but were mistriaged to green. The numerator was the number of red zone patients who were mistriaged to green, and the denominator consisted of all red zone patients. Patient characteristics (demography, comorbidities, chief complaints, vital signs, Glasgow Coma Scale), environmental factors (working shift, weekend, public holiday), and staff factors (paramedic and nurses’ working experience) were obtained from electronic medical records and proforma forms. Logistic regression was employed to analyse the data. The rate of undertriage was 1.2% (131/10,867 cases), slightly higher than the 0.5% set by the Health Ministry of Malaysia. The predictors of undertriage were comorbidity of asthma (AOR= 3.791; p=0.008), Glasgow Coma Scale (AOR=2.110; p=0.002), and patients with specific chief complaints of cardiovascular (AOR=0.189; p value <0.001), respiratory (AOR = 0.262; p value<0.0001), neurological (AOR = 0.081; p value<0.0001) and trauma (AOR = 0.129; p value<0.0001). Asthmatic and higher GCS patients were more likely to be undertriaged, while patients with specific chief complaints were less likely to be undertriaged.
 
 

Canadian legal cases in ophthalmology: a closer look at 40 years’ worth of data

ObjectifÉvaluer les caractéristiques des poursuites pour faute professionnelle engagées contre des ophtalmologistes canadiens et les facteurs qui prédisposent à de telles poursuites. NatureÉtude rétrospective d'une série de cas. MéthodesOn a procédé à une recherche systématique dans les deux plus importantes bases de données juridiques en ligne au Canada, LexisNexis Canada et Westlaw Canada, afin de recenser les dossiers judiciaires mettant en cause des ophtalmologistes dans des tribunaux canadiens de 1977 à 2021. RésultatsNotre étude a retenu 68 dossiers judiciaires, dont 52 poursuites, 14 cas dont l'appel a été interjeté 1 fois et 2 cas dont l'appel a été interjeté 2 fois. La plupart des poursuites portaient sur des interventions chirurgicales (46,2 %), le tiers, sur des erreurs de diagnostic ou sur une absence de diagnostic (32,7 %) et le cinquième, sur des interventions non chirurgicales (21,2 %). La moitié des poursuites (n = 26) ont immédiatement été rejetées par le juge en faveur de l'ophtalmologiste; en revanche, la majorité des autres poursuites pour lesquelles on a tenu un procès ont été gagnées par les patients (88,5 %). Toutes les demandes d'appel par les patients ont été rejetées par le juge. La valeur pécuniaire médiane des dommages versés se chiffrait à 308 202 $. ConclusionsNotre étude est la première à recenser les poursuites pour faute professionnelle engagées contre des ophtalmologistes au Canada. Dans la plupart des cas, le juge a tranché en faveur de l'ophtalmologiste; par contre, dans la majeure partie des cas où le juge n'a pas rejeté d'emblée la poursuite, c'est le plaignant qui a eu gain de cause. Fait à noter, bon nombre des poursuites portaient sur l'absence du consentement éclairé du patient. Or, dans tous les cas où le plaignant a réussi à démontrer l'absence de consentement, c'est ce dernier qui a eu gain de cause, ce qui souligne clairement l'importance d'obtenir le consentement éclairé en bonne et due forme. Les résultats de la présente étude donnent aux ophtalmologistes canadiens un aperçu des aspects de leur profession qui mènent souvent à une poursuite, et peuvent les aider à améliorer leur pratique clinique de même que la prise en charge des risques à cet égard.

Defensive medicine and its related risk factors: evidence from a sample of Iranian surgeons

ABSTRACT Objectives Defensive medicine (DM) is the deviation of a physician from normal behavior or what is a good practice and is aimed at reducing or avoiding the risk of legal litigation from patients or their families. Therefore, this study aimed to determine DM-related behaviors and associated risk factors among Iranian surgeons. Methods In this cross-sectional study, 235 surgeons were selected using convenience sampling. The data gathering tool was a researcher-made questionnaire confirmed as a reliable and valid tool. Factors associated with DM-related behaviors were identified using logistic regression analysis. Results DM-related behaviors ranged from 14.9% to 88.9%. The most common positive DM-related behaviors, including unnecessary biopsy (78.7%), imaging and laboratory tests (72.4% and 70.6%), and refusing high-risk patients (61.7%), was the most common negative DM-related behavior. The likelihood of DM-related behaviors was more in younger and less experienced surgeons. Other variables, such as gender, specialty, and lawsuit history, positively affected some DM-related behaviors (p < 0.05). Conclusion This study showed that the proportion of surgeons who frequently performed DM-related behaviors was higher than those who rarely performed it. Therefore, strategies including reforming the rules and regulations for medical errors and litigations, developing and implementing medical guidelines and evidence-based medicine, and improving the medical liability insurance system can reduce DM-related behaviors.

To find fault is easy, to find no-fault is fair

The inequity of medical negligence-based adversarial litigation in the USA, UK and Australia is a recognised target for reform. Plaintiff autonomy is weakened by a dispute resolution system that has evolved around lawyers, opposed experts and indemnity insurers; the need to prove breach and causation excludes compensation for other categories of medical injury; and patient access to the system is restricted by high entry costs. Two strategies towards reform are raised here. A short-term approach involves routine initial use of a single court-appointed medical expert for assessment of errors and liabilities, thus improving access while relegating fault-finding to a reserve role. In the longer term, adversarial litigation could be replaced in part by a no-fault compensation scheme - such as in Scandinavia, France and New Zealand - funded by taxation and by re-directed medical indemnity fees. Reforms such as these would be challenging to implement, but are achievable, so it is not premature for relevant bodies to consider a timetable for action.

내시경 시술에 관한 판례의 분석과 법적 고찰

Endoscopic examinations and procedures are widely used to identify and treat digestive-oriented diseases, and are also essential items for the national cancer screening project, making it a familiar and frequently used medical area for the public and patients, and it is a very frequent medical area.&#x0D; Endoscopy and treatment play a key role in the prevention and treatment of diseases such as cancer. On the other hand, endoscopy and procedures, which are responsible for preventing and treating diseases, are invasive medical practices, and the risk of adverse consequences such as death and severe disability remains as surgical surgery, but public understanding and awareness may appear differently. In this regard, it is true that medical and legal reviews and approaches have been made to prevent medical accidents related to endoscopic procedures and reduce damage. However, previous studies have focused on considering some cases or cases, and despite their significance, systematic and analytical studies on endoscopic procedures have not been sufficiently conducted, and policy implications from an integrated legal and medical perspective have not been sufficiently derived.&#x0D; While the general standards and standards of medical practice such as endoscopic procedures are standard, the individual circumstances of the people and patients who are treated are different and difficult to unify. In addition to these individual characteristics of medical behavior, considering the essential characteristics of medical care such as invasion, risk, difficulty in predicting results, and irreversibility, we will derive empirical implications for preventing medical accidents through a specific and comprehensive view of precedents in medical civil litigation for endoscopy.&#x0D; Therefore, this paper examines major issues and results of various civil cases related to endoscopy procedures in various ways, and suggests measures to prevent medical accidents and guarantee patients' treatment options to improve national health and reduce disputes.

Medical Jousting: Going for the kill!

Medical Jousting: Going for the kill!

Analysis of Legal Regulations on Evidence Spoliation in Medical Tort Litigation

Analysis of Legal Regulations on Evidence Spoliation in Medical Tort Litigation

Defensive medicine and medical liability: A Cross-sectional study in Kasr Alainy Obstetrics and Gynecology hospital

Background and Aims: Defensive medicine is medicine practiced in such a way primarily to avoid or defend against the threat of malpractice litigation. The rate of practice of defensive medicine has been increasing in recent years across the world. High percentages of defensive medicine have a significant economic cost through affecting doctors’ decisions. The problem is compounded in Egypt as it currently lacks a medical litigation law, and doctors in Egypt are tried by the criminal law instead. This study aims to identify the practice of defensive medicine in light of such conditions, as well as highlight some of its causes. Methods: This is a cross-sectional study conducted by a self-administered questionnaire among obstetricians and gynecologists of Kasr Alainy University OBGYN Hospital. It included 160 doctors from a total of 250 doctors. Binary logistic regression and Chi square tests were used to calculate the predictors of practice of defensive medicine and its forms. Results: (81%) of the doctors practiced at least one form of defensive medicine. Many predictors were significant including duration of practice, gender (male), witnessing a colleague getting sued or personally getting sued, and feeling limited in practice due to the current state of the law. Conclusions: The practice of Defensive medicine in Kasr Alainy OBGYN Hospital is considerably high but still in line with other countries. The lack of medical law is a significant factor, but there are other factors affecting the practice of defensive medicine. Efforts to reduce defensive medicine must start with enacting a medical law.

Secrecy and Transparency in Substantive Due Process Litigation

A few years before the recomposed Court rejected abortion rights in Dobbs, it sustained several healthcare providers’ challenge to Louisiana abortion restrictions in June Medical. History will remember that 5–4 decision mostly as one of the last major cases to interpret and apply the Casey framework. But in the little-noticed background of the June Medical litigation, a significant dispute over sealed court records boiled over. On one side, plaintiff physicians sought anonymity and confidentiality in light of potential threats to their physical safety and patient privacy. On the other side, Louisiana asserted the public’s longstanding right to access court records and its own right to include information from June Medical companion cases in its Supreme Court briefing. Ultimately, the Fifth Circuit agreed with Louisiana, vacating the sealing order. June Medical evokes a larger dispute simmering in federal and state courts over public access to litigation information. Modern commerce and contemporary life generate an unprecedented volume of data. American civil discovery provides litigants with tools to discover and collect much of it. And courts have long recognized the public’s First Amendment and common law rights to inspect and copy public court files. Moreover, the internet and advent of electronic filing have transformed once obscure paper court files into easily accessible databases. Proponents of expanded sealing and secrecy contend that this status quo threatens litigants’ privacy and intellectual property. Proponents of more transparency posit that public access to the evidence underlying court action is essential to the integrity and proper functioning of the judiciary, as well as to public health and safety. This Article examines a largely unexplored angle of this debate: How should courts treat the unique privacy interests of litigants asserting substantive due process claims in the context of the public’s right to access litigation information? Part II explains the public’s court-access rights. Part III first considers whether forced identity revelation might infringe substantive due process rights. After concluding that infringement is possible, but recognizing that courts will often avoid the constitutional privacy questions posed by these scenarios, Part III goes on to consider the use and effects of subconstitutional privacy and access principles in rights cases where parties seek to proceed pseudonymously.

Research on Presumption of Fault in Medical Litigation in China

The legal presumption of medical fault in Chinese law has been controversial since its promulgation. The focus of academic debate focuses on whether the behavior that violates the legal norms and diagnostic and therapeutic norms is the standard of fault identification or the precondition of fault presumption. To solve the dispute, we must first clarify the applicable premise of the legal presumption of medical fault. According to the logic of law application, medical fault is not a fact that can be directly proved by evidence, but a legal evaluation. The existence of medical fault elements should be independently evaluated by the judge. However, the problem in China's medical litigation is that the application of the legal presumption of medical fault deviates from the applicable logic that should be followed. The problem at the legislative level is that medical fault should not be regulated by legal presumption, and the legal presumption and fault presumption were confused at the beginning of legislation.&#x0D; Based on this, in China's medical litigation, it is necessary to distinguish between the medical fault of medical institutions and the fault that hinders the investigation of facts. If the medical institution forges medical records and refuses to provide medical records, which makes it difficult for the court to find out whether the medical institution's diagnosis and treatment activities, diagnosis and treatment behaviors cause damage and the size of the damage, then the medical institution should be directly made to bear the adverse consequences of proving the obstruction, that is, bear the responsibility commensurate with the degree of fault that hinders the investigation of the facts. As for the medical fault, it should be judged by the judge according to the diagnosis and treatment activities of the medical institution. The behavior of medical institutions in violation of diagnosis and treatment norms and legal norms is the basis and factor for judges to comprehensively judge whether there is medical fault. The fact based on which to evaluate whether the fault exists or not is the object of the parties' proof.

Interpretation of low-risk neoplasms in the 5th edition of WHO classification of thyroid tumors

The fifth edition of World Health Organization (WHO) classification of thyroid tumors replaced the "borderline tumors" in the fourth edition with "low-risk tumors", including noninvasive follicular thyroid neoplasms with papillary-like nuclear features, uncertain malignant potential and hyalinizing trabecular tumors. All of them are thyroid tumors with follicular epithelial cell origin, capsule/clear boundary, no lymph node and distant metastasis (EX0, N0, M0). The spread probability of "low-risk tumor" is extremely low, and this new classification can protect the pathologists from medical litigation when encountering rare and special metastatic cases. Based on the interpretation of the thyroid tumor classification, this paper further discussed several low-risk tumors, which were not listed in the current WHO classification.

The Government as Plaintiff: An Analysis of Medical Litigation Against Healthcare Providers in the Eastern Province of the Kingdom of Saudi Arabia.

The Saudi healthcare and medicolegal systems have seen several developments to improve quality of services and ensure patient safety. However, violation claims have seen an upward trend in the past few years. Several studies have analyzed medical litigation to better understand violations within healthcare sectors and address them accordingly. Such studies have focused extensively on medical litigations filed by patients against healthcare providers, overlooking other plaintiffs, such as governments. In this study, we examined violation claims filed by governmental entities against healthcare providers in the Eastern Province of the Kingdom of Saudi Arabia. From 2016 to 2019, 718 healthcare providers were involved in violation claims that were referred to the Medical Offenses Committee. Two logistic regression analyses were performed to identify significant predictors of receiving a guilty verdict and the verdict type (for guilty verdicts), given defendant-related factors. Eighty-two percent of healthcare providers received a guilty verdict. Guilty verdicts were prevalent among non-Saudis and healthcare providers in the private sector. Healthcare providers working in the private sector were significantly more likely to receive a guilty verdict than healthcare providers working in the public sector. Nurses were significantly less likely to receive a guilty verdict than physicians. Being involved in violation claims with 5 or more codefendants decreased the likelihood of receiving a guilty verdict. In addition, non-Saudis being involved in violation claims with multiple defendants, working in the private sector, and working in pharmacies and medical complexes were significant predictors of the verdict type. Results of the study extend the extant literature by analyzing medical litigation including plaintiffs other than patients. In addition, the study introduces implications for the government and policymakers as well as areas for future research The study's findings emphasized the importance of employment sector and number of defendants as significant predictors of violation claims' verdicts. Policymakers should take into consideration significant predictors to ensure healthcare providers' compliance with respective rules and regulations. Tailored attention toward these predictors could minimize the prevalence of medical violation claims, ensure patient safety, and avoid associated negative consequences.

Healthcare professionals’ perception of safety culture and the Operating Room (OR) Black Box technology before clinical implementation: a cross-sectional survey

IntroductionComprehensive data capture systems such as the Operating Room Black Box (OR Black Box) are becoming more widely implemented to access quality data in the complex environment of the OR....

Endodontic malpractice litigations in the United States from 2000 to 2021

Background/purposeLittle is known regarding the outcomes and distinguishing characteristics of lawsuits related to endodontic procedures. This study used a verdict-based data from United States of America to analyze the factors associated with endodontic malpractice lawsuits and mitigate the risk of litigation. Materials and methodsThe LexisNexis legal database was used to search for endodontic malpractice cases from January 1, 2000 to December 31, 2021 using the terms “medical malpractice” and (I) “endodontist” (II) “endodontics” (III) “root canal” (IV) “dental pulp.” Each case was reviewed for reported medical characteristics and litigation outcomes. ResultsA total of 650 cases were initially identified, and 97 cases were included in the final analysis. Eighty-four (86.6%) of the 97 defendants were general practitioners; 42 cases favored the plaintiff, 53 (54.6%) favored the defendant, 1 was partial win/loss, and 1 was settled. The annual case mean was 4.41 ± 2.17 (Mean ± SD). The major allegations favored for the patients involving paresthesia, root perforation, rubber dam not use, wrong tooth therapy, and infections. Plaintiffs who claimed with post-procedural reasons had a significantly higher winning rate than non-post-procedural reasons (P < 0.05). ConclusionIn the present study, 54.6% of endodontic litigation favored the dentists in the US. The authors recommend that general practitioners refer complicated cases to endodontists and treat carefully to avoid paresthesia, canal perforation and infections. Clinicians should always diagnose and treat correctly, shared decision making with the patient, use rubber dam routinely, and timely management to prevent malpractice claims.

Impact of the medical care act amendment on the medical malpractice litigation in Taiwan.

Medical malpractice leads to medical criminal liability and claims. The national data of medical criminal liabilities across various specializations, before and after the Medical Care Act amendment, was lacking in Taiwan. The aim of this study is to clarify the impact of the law amendment. A comprehensive retrospective analysis of medical crimes was conducted from January 2001 to December 2020 in Taiwan. The number of medical criminal litigation, defendants, people who plead guilty, conviction rate, and punishment sentences were analyzed. Additionally, the number of practicing physicians in the year was used as the baseline to determine the rate of the accused and guilty rate per 10,000 physician-years, respectively. From 2001 to 2020, there were 249 criminal litigations of medical professionals, which gave rise to 335 defendants. The proportion of defendants by specialization was 19.1% in internal medicine, 26.3% in surgery and orthopedics, 11.9% in obstetrics and gynecology, 3.3% in pediatrics, 25.7% in physicians (who were not related to the aforementioned 4 specializations), and 13.7% in non-physician staff. After the amendment to the Medical Care Act in 2017, the accused rates per 10,000 physician-years decreased significantly in aggregate and by specialization between 2016 and 2020; the guilty rate per 10,000 physician-years during 2016 to 2020 was the minimum, compared to the past. The amendment to the Medical Care Act in 2017 reduced the number of vexatious criminal proceedings. The amendment also reduced criminal liabilities by reducing the guilty rate during 2016 to 2020, compared to the previous period.

Assessment of the informed consent process in the provision of dental care in Mulago hospital, Uganda

BackgroundInformed consent is grounded in the principle of autonomy and represents patients’ right to participate in clinical decisions regarding their treatment. It is equally an ethical and legal requirement in dental care. The dental practitioner must offer appropriate information about all aspects of the treatment and ensure that a patient understands and makes an informed decision. There is limited literature on informed consent for dental care in Uganda. This study assessed patients’ comprehension of the informed consent process and dental practitioners’ practices in obtaining informed consent.MethodsThis was a cross-sectional descriptive study conducted in the Dental Outpatient Department of Mulago Hospital. Two separate questionnaires were employed to collect data from dental patients and dental practitioners, respectively. Data were entered into Epi-data, coded, and imported into STATA 14 for statistical analysis.ResultsOverall, the level of patients’ comprehension of the informed consent process was 91.1%, with 96.3% who felt the dental practitioners satisfactorily explained to them the treatment received and, 65.1% understood very well the information given to them. About 93.5% of the patients confessed that they were given other options of treatment while 98.5% consented before the dental practitioners started treatment.Most dental practitioners 94.7% followed good clinical practices in obtaining informed consent and 98.7% gave information before initiation of treatment while 85.3% obtained consent from patients before starting any procedures. However, only 5.3% of the dental practitioners obtained written informed consent from patients.ConclusionThere is a need to devise ways of improving patients’ understanding of the treatment information given to them to support them make better and informed decisions regarding their care. Dental practitioners need to put more emphasis on the use of written consent in dental care because documentation helps in providing accountability and protects dentists from medical litigation in case the patients were to sue them for any treatment-related complications.

The Application of Graph Theoretical Analysis to Complex Networks in Medical Malpractice in China: Qualitative Study.

Studies have shown that hospitals or physicians with multiple malpractice claims are more likely to be involved in new claims. This finding indicates that medical malpractice may be clustered by institutions. We aimed to identify the underlying mechanisms of medical malpractice that, in the long term, may contribute to developing interventions to reduce future claims and patient harm. This study extracted the semantic network in 6610 medical litigation records (unstructured data) obtained from a public judicial database in China. They represented the most serious cases of malpractice in the country. The medical malpractice network of China was presented as a knowledge graph based on the complex network theory; it uses the International Classification of Patient Safety from the World Health Organization as a reference. We found that the medical malpractice network of China was a scale-free network-the occurrence of medical malpractice in litigation cases was not random, but traceable. The results of the hub nodes revealed that orthopedics, obstetrics and gynecology, and the emergency department were the 3 most frequent specialties that incurred malpractice; inadequate informed consent work constituted the most errors. Nontechnical errors (eg, inadequate informed consent) showed a higher centrality than technical errors. Hospitals and medical boards could apply our approach to detect hub nodes that are likely to benefit from interventions; doing so could effectively control medical risks.

Plaintiff aims in medical negligence disputes: limitations of an adversarial system.

The adversarial nature of medical negligence litigation is subject to frequent criticism by the media, patient advocates, and scholars. In Ireland, reform of the medical negligence dynamic is often mooted, particularly in response to the high financial costs of this type of litigation; however, change in this area has been slow. Recently, the Irish courts have dealt with a number of high-profile, medical negligence disputes, including claims for those affected by the CervicalCheck controversy, which involved the failure to disclose the results of a retrospective audit to women who had developed cervical cancer. These cases have again highlighted the shortcomings of an adversarial system. This article explores the limitations of the tort system in the context of plaintiff aims in medical negligence disputes, drawing on empirical findings (qualitative interviews with patient support groups and barristers), and the literature. In doing so, the article argues that while financial compensation is necessary and appropriate in cases of medical negligence, the current system fails to recognise the often emotional nature of these claims, and the wider needs and aims of litigants involved in these disputes.