Medical Malpractice System Research Articles

Medical malpractice system in the Republic of Moldova

In this paper is discussed medical malpractice management system from the Republic of Moldova. In the Republic of Moldova is adopted the “fault system” which represents a tort litigation system. The Moldovan medical malpractice management system is analyzed from legal and normative framework, institutional framework, administrative issues, deterrence, fi nancing, compensation, costs occur to parties involved in malpractice cases, error reporting, etc. The Moldovan tort liability system is a “social insurance of a market society” where patients are compensated when the negligence of the healthcare providers is proved to be the cause of the injury. The results of the medical malpractice management system assessment demonstrated deficiencies in system organization and functioning, namely: lack of specifi c legislation to defi ne and regulate medical malpractice and medical civil liability, the concept of medical malpractice does not meet the requirements and standards of international doctrine, the approach of medical civil liability is incoherent from theoretical point of view and in consequence from the practical one, compulsoriness to follow the judicial track in order to establish medical malpractice and obtain compensation, existence of enormous fi nancial risks for the health care providers in the conditions of absence of medical malpractice insurance, lack of monitoring and evaluation system of medical errors.

State medical malpractice laws and utilization of surgical treatment for rotator cuff tear and proximal humerus fracture: an observational cohort study

BackgroundHow much does the medical malpractice system affect treatment decisions in orthopaedics? To further this inquiry, we sought to assess whether malpractice liability is associated with differences in surgery rates among elderly orthopaedic patients.MethodsMedicare data were obtained for patients with a rotator cuff tear or proximal humerus fracture in 2011. Multivariate regressions were used to assess whether the probability of surgery is associated with various state-level rules that increase or decrease malpractice liability risks.ResultsStudy results indicate that lower liability is associated with higher surgery rates. States with joint and several liability, caps on punitive damages, and punitive evidence rule had surgery rates that were respectively 5%-, 1%-, and 1%-point higher for rotator cuff tears, and 2%-, 2%- and 1%-point higher for proximal humerus fractures. Conversely, greater liability is associated with lower surgery rates, respectively 6%- and 9%-points lower for rotator cuff patients in states with comparative negligence and pure comparative negligence.ConclusionsMedical malpractice liability is associated with orthopaedic treatment choices. Future research should investigate whether treatment differences result in health outcome changes to assess the costs and benefits of the medical liability system.

Medical Malpractice System in the United States of America: Lesson to Learn for Indonesia

A system that serves the liability and settlement of medical malpractice disputes or commonly referred to as medical malpractice system has been established in many countries to respond the rise of medical malpractice claims against doctors. Medical malpractice system in the United States of America (the USA) has been relatively well developed as compared to other countries. Beside adopting pretrial screening process in medical malpractice litigation, various methods of alternative to litigation have been developed in the USA. This paper aims to explore the development of the medical malpractice system in the USA and to see the possibility for Indonesia to learn. This normative legal research relies on the secondary data especially which were collected from online sources. It is found that there are some initiatives in the USA that can be adopted by Indonesia for improving its medical malpractice system, especially the establishment of pretrial screening panel. It is expected that pretrial screening process can eliminate meritless claims which later may reduce unnecessary legal actions against doctors.

Medical Malpractice and Physician Discipline: The Good, The Bad and The Ugly

We study the overlap between the medical malpractice (med mal) and medical disciplinary systems using the records of almost 90,000 Illinois physicians who held an active license at any point from 1990–2016. We quantify the specialty‐specific risk of having a paid med mal claim or a disciplinary action; how many physicians have both; and the extent to which physicians with two or more paid claims or two or more disciplinary actions account for a disproportionate share of the activity of both systems. We also examine which factors are associated with paid claims and disciplinary actions, and whether physicians with multiple paid claims or disciplinary actions are concentrated at particular hospitals. Physicians with two or more paid claims account for only 2.37 percent of all licensed physicians, but they account for 53 percent of paid claims and payouts. Physicians with two or more disciplinary actions account for only 0.47 percent of physicians but 28 percent of all disciplinary actions. The risk of paid claims and disciplinary actions varies greatly by specialty. Physicians who attended non‐U.S. medical schools are more likely to have paid claims but (except for high‐disciplinary‐risk specialties) are not more likely to be subject to disciplinary action. Physicians with prior paid claims are more likely to be the target of disciplinary action—but not vice versa. A small number of Illinois hospitals are staffed by physicians with unusually high numbers of paid med mal claims, disciplinary actions, or both.

Medical Malpractice and Physician Discipline: The Good, The Bad and The Ugly

We study the overlap between the medical malpractice (“med mal”) and medical disciplinary systems, using the records of Illinois physicians who held an active license at any point from 1990-2012. We quantify the specialty-specific risk of having a paid med mal claim or a disciplinary action; how many physicians have both; and the extent to which physicians with 2+ paid claims or 2+ disciplinary actions account for a disproportionate share of the activity of both systems. We also examine which factors are associated with paid claims and disciplinary actions, and whether physicians with multiple paid claims or disciplinary actions are concentrated at particular hospitals. Physicians with 2+ paid claims account for 2.6% of all licensed physicians, 54% of paid claims and 52% of payouts. Physicians with 2+ disciplinary actions account for 0.5% of physicians and 38% of all disciplinary actions. The risk of paid claims and disciplinary actions varies greatly by specialty. Physicians who attended non-U.S. medical schools are more likely to have paid claims but (except for high-disciplinary risk specialties) are not more likely to be subject to disciplinary action. Physicians with prior paid claims are more likely to be the target of disciplinary action – but not vice versa. A small number of Illinois hospitals are staffed by physicians with unusually high numbers of paid med mal claims, disciplinary actions, or both.

No-fault Law on Medical Accidents in Belgium: An Evaluation after Six Years

AbstractAfter many years of criticism of the medical malpractice system based on negligence, Belgium introduced a law on medical accidents in March 2010. This law created a Medical Accidents Fund. Under this two-track system the victim of a medical accident has the choice to file a claim before the court or to seek compensation from the Fund. The Law on Medical Accidents has four objectives: (1) to create a Fund with a simple and fast procedure that is cost-free to access, (2) to channel and centralise all medical accident claims to the Fund, and to develop a prevention strategy, (3) to compensate more victims by introducing a personal right to compensation for medical accident victims without the need to consider liability, and finally, (4) to achieve a balanced budget. A medical accident without liability can be defined as an accident caused by healthcare which does not lead to the liability of a caregiver, does not result from the patient’s health condition and causes abnormal damage to the patient. The damage is abnormal if it was not supposed to occur given the current state of scientific knowledge, the patient’s health condition and its objectively predictable evolution. Following analysis of the new law, this study shows that it has created a single, central point of contact that is easily accessible and generally understood by medical accident victims. On average fifty new cases a month are submitted to the Fund. In a reasonable number of cases to date, liability of the caregiver has been accepted by the Fund. However, the Fund is rather strict in awarding no-fault compensation for medical accidents without liability. It remains to be seen whether this interpretation can resist the test of judicial review.

Physician Licensing and Disciplining: Lessons from Indiana

State medical boards use professional licensing and discipline to enforce minimum performance standards. Using forty-four years of data (1972-2015) on physician licensing and discipline obtained from the Indiana Professional Licensing Agency, we identify factors associated with a higher likelihood of being discipline. Only 1.3% of the sixty-three thousand licensed physicians in our dataset were disciplined. The most common reasons for disciplinary action were drug-diversion (25%); incompetence (18%); drug abuse (17%), alcohol-abuse (10%), and sexual misconduct (9%). The most common disciplinary sanctions were probation (26%); suspension (25%); and revocation (17%). Regression analyses indicated that the following factors were associated with a higher likelihood of being disciplined: male gender; earlier license year; holding more Controlled Substance Registrations; and specializing in family medicine/general practice, psychiatry, and obstetrics and gynecology. Psychiatrists, obstetricians and gynecologists are especially likely to be sanctioned for sexual offenses; family physicians or general practitioners for drug-diversion; and anesthesiologists for substance abuse. Negligence or incompetence cases are less likely to be severely sanctioned. Research continues on the degree of overlap between the medical malpractice and disciplinary systems.

Targeting Bad Doctors: Lessons from Indiana, 1975–2015

For physicians, quality of care is regulated through the medical malpractice and professional licensing/disciplinary systems. The medical malpractice (med mal) system acts through ex post private litigation; the licensing system acts through ex ante permission to practice (i.e., licensure), coupled with ex post disciplinary action against physicians who engage in “bad” behavior. How often do these separate mechanisms for ensuring quality control take action against the same doctors? With what result? We study these questions using 41 years of data (1975–2015) from Indiana, covering almost 30,000 physicians. Disciplinary sanctions are much less common than med mal claims—whether paid or unpaid. Only a small number of physicians are “tagged” by both systems. Disciplinary risk increases with the number of past med mal claims. Paid claims have a greater impact than unpaid claims, and large payouts (≥100 k, 2015$) have a slightly greater impact than small payouts on disciplinary risk. The risk of a paid claim increases with more severe disciplinary sanctions (i.e., revocation and suspension). Our findings suggest an obvious model for the interaction of these two systems.

Targeting Bad Doctors: Lessons from Indiana, 1975-2015

For physicians, quality of care is regulated through the medical malpractice and professional licensing/disciplinary systems. The medical malpractice (med mal) system acts through ex post private litigation; the licensing system acts through ex ante permission to practice (i.e., licensure), coupled with ex post disciplinary action against physicians that engage in bad behavior. How often do these separate mechanisms for ensuring quality control take action against the same doctors? With what result? We study these questions using forty years of data (1975-2015) from Indiana, covering almost 30,000 physicians. Disciplinary sanctions are much less common than med mal claims - whether paid or unpaid. Only a small number of physicians are tagged by both systems. Disciplinary risk increases with the number of past med mal claims. Paid claims have a greater impact than unpaid claims, and large payouts (≥ 100k, 2015$) have a slightly greater impact than small payouts on disciplinary risk. The risk of a paid med mal claim increases with more severe disciplinary sanctions (i.e., revocation and suspension). Our findings suggest an obvious model for the interaction of these two systems.

Editor's Note

Editor's Note

Maintaining the Punitive Element of Tort through Social Sanctions in Malpractice Reform

In this piece, I focus on the limitations of moving medical malpractice from a tort to contracts basis, particularly in the loss of the punishment aspect of punitive damages. In doing so, I present the way in which medical malpractice is currently implemented in the United States under tort law. I then briefly review current malpractice reform efforts, focusing more so on the idea of “no-fault” administrative systems. Here, I also explore the fundamental legal differences between contracts and tort. I then discuss the ethics of blame-shielding and whether or not we are losing something by failing to blame bad actors. In doing so, I focus on the ethical implications of punishment. Operating under the assumption that the current tort-based medical malpractice system is driving up health care costs, I conclude by proposing a hybrid system that combines contract theory with noneconomic punitive sanctions: a “no-fault fault system.”

미국의 의료과오소송 제도에 관한 고찰

환자가 입원 중에 의사의 의료상 과오(예컨대 수술상의 과오)로 사망 한 경우에 대한 우리나라와 미국의 법적 처리는 상당히 다르며 이에 따라 그 결과도 다르다. 이는 의사의 환자에 대한 의료행위에 대한 양 국의 해석상의 차이에 기인하는 것이다. 그러나 미국의 의료과오소송 제도와 현재의 운용 상황 등을 살펴보면 향후 우리나라에서 발생하는 의료과 오소송 제도의 운용에 있어서 참고로 삼아야 할 부분이 적지 않은 것으로 보인다. 그리하여 본고에서는 우선 해석론 차원에서 양국의 의료과오 소송 제도에 대한 접근방식이 어떻게 다른지를 살펴봄으로써 미국의 의료과오소송의 일반적 해석론에 대한 이해를 시도하였다. 그리고 이를 기초로 미국의 의료과오소송 제도의 현재 상황과 이에 대한 학자들의 다양한 시각을 살펴보았다. 이를 통하여 본고에서는 향후에 우리나라의 의료 과오소송 제도의 해석론 전개에 있어서 유용한 참고자료가 될 수 있는 부분을 소개함과 아울러 보다 합리적이고 효율적인 제도의 운영을 위한 시사점을 제시하고자 하였다. 그 결과는 다음과 같다. 첫째, 미국에서 의료과오소송은 많은 학자들에 의하여 의료에 대한 접근 ․ 의료의 질 ․ 의료비용 중 어느 관점에서 보더라도 미국의 의료를 쇠퇴시키는 악역이 된다고 강하게 비판받아 왔다. 그러나 이에 대해서는 의료과오소송은 오히려 의료에 대한 접근 ․ 의료의 질 ․ 의료비용 등의 관점에서 중요한 사회적 역할을 담당하고 있다는 내용의 Barry R. Furrow로 대표되는 반대 시각도 유력하게 존재한다. 둘째, 미국에서는 의료과오의 현재 상황을 밝히는 데에 효과를 거두고 있는지, 나아가 그에 대처하는 과정에서 의료과오를 감소시키는 데에 이바지하고 있는지 여부를 중심으로 논의되어 왔다. 거기에서는 의료과오 소송에도 역시 사회적인 이익을 증진하기 위한 수단이어야 한다는 전제가 있었다. 셋째, 미국의 의료과오소송에 대한 논의 상황은 우리나라의 의료과오 소송에 대한 논의의 방향성 내지 범위 확정에 있어서 참고할 만하다. 즉 오늘날 의료과오소송이 의료의 안전 확보나 그 개선에 이바지하고 있는지 여부를 중심으로 미국에서는 많은 논의가 이루어졌는데, 이는 가까운 장래에 초고령사회를 맞이하게 되는 우리나라의 경우에도 법정책과 결부 되어 의료과오소송에 대한 논의를 진행함에 있어서 중요한 논의의 방향성을 제시하고 있다고 생각한다. 넷째, 미국의 경우에는 우리나라에 비해서 의료과오소송의 건수가 많고 이에 따라 법정책 마련을 위한 통계적 분석도 정밀하고 활발하게 이 루어지고 있는데, 이는 우리나라의 의료과오소송의 현황을 파악함에 있어서도 법정책 마련을 위한 통계적 분석이 향후에 보다 치밀하고 적극적으로 이루어질 필요가 있음을 시사한다고 생각한다.

A study on Judgement of Medical malpractice and Compensation system about the Neonatal hospital acquired infection

A study on Judgement of Medical malpractice and Compensation system about the Neonatal hospital acquired infection

Relationship Between State Malpractice Environment and Quality of Health Care in the United States

One major intent of the medical malpractice system in the United States is to deter negligent care and to create incentives for delivering high-quality health care. A study was conducted to assess whether state-level measures of malpractice risk were associated with hospital quality and patient safety. In an observational study of short-term, acute-care general hospitals in the United States that publicly reported in the Centers for Medicaid & Medicare Services Hospital Compare in 2011, hierarchical regression models were used to estimate associations between state-specific malpractice environment measures (rates of paid claims, average Medicare Malpractice Geographic Practice Cost Index [MGPCI], absence of tort reform laws, and a composite measure) and measures of hospital quality (processes of care, imaging utilization, 30-day mortality and readmission, Agency for Healthcare Research and Quality Patient Safety Indicators, and patient experience from the Hospital Consumer Assessment of Healthcare Providers and Systems [HCAHPS]). No consistent association between malpractice environment and hospital process-of-care measures was found. Hospitals in areas with a higher MGPCI were associated with lower adjusted odds of magnetic resonance imaging overutilization for lower back pain but greater adjusted odds of overutilization of cardiac stress testing and brain/sinus computed tomography (CT) scans. The MGPCI was negatively associated with 30-day mortality measures but positively associated with 30-day readmission measures. Measures of malpractice risk were also negatively associated with HCAHPS measures of patient experience. Overall, little evidence was found that greater malpractice risk improves adherence to recommended clinical standards of care, but some evidence was found that malpractice risk may encourage defensive medicine.

Medical Liability Reform in a New Political Environment

Many physicians, patients, and other interested parties do not consider the current medical malpractice system to be optimal. For example, it has been estimated that only 2% to 3% of patients who experience a medical error file a malpractice claim (although it is unclear how serious those medical errors were and if they would result in an adjudicated malpractice claim), the mean time from claim initiation to closure is more than 5 years, and nearly 50% of all compensation awarded to patients is consumed by attorney fees and administrative charges.1 With respect to clinicians, the annual risk of having an open malpractice claim has been reported to be 7.4%, and, by age 65 years, most physicians will have been involved in a malpractice claim.1 In addition, the adversarial nature of the current system makes it difficult to improve patient safety and also creates stress for clinicians.

No-fault, no difference: no-fault compensation for medical injury and healthcare ethics and practice

Overuse of medicines and medical interventions, patient safety, and rising costs are among the greatest challenges facing modern health care. Because medical malpractice systems are thought to be a driving factor, it is logical to consider alternative medical regulatory structures.1 New Zealand’s experience with no-fault compensation for medical injury and separate medical professional accountability processes may provide insights. Now that the no-fault system has been fully in place for a decade, it is timely to reflect critically on potential lessons for health systems around the world. The three main functions of a medical regulatory system are to provide compensation for injury, accountability, and deterrence, and mechanisms that enable learning. In 1974 New Zealand introduced a publicly-funded accident compensation scheme with the goals of minimising the incidence and impact of injury. The scheme provides assistance with the cost of treatment and rehabilitation for all personal injuries, regardless of fault, and in exchange bans suing for compensatory damages. Medical injury has always been covered under the scheme. Consequently, in New Zealand there is no culture of suing doctors for damages and doctors pay comparatively low medical indemnity fees of around £790 per annum. Doctors are held to account under separate processes including the Medical Council of New Zealand’s competence and fitness to practise processes, an independent patient complaints system, and a separate disciplinary process. The patient complaints system was introduced in 1994 on recommendation of a 1988 government report that found wanting the prior accountability processes in an environment where patients were unable to sue.2 In …

Association Between State Medical Malpractice Environment and Postoperative Outcomes in the United States

The US medical malpractice system assumes that the threat of liability should deter negligence, but it is unclear whether malpractice environment affects health care quality. We sought to explore the association between state malpractice environment and postoperative complication rates. This observational study included Medicare fee-for-service beneficiaries undergoing one of the following operations in 2010: colorectal, lung, esophageal, or pancreatic resection, total knee arthroplasty, craniotomy, gastric bypass, abdominal aortic aneurysm repair, coronary artery bypass grafting, or cystectomy. The state-specific malpractice environment was measured by 2010 medical malpractice insurance premiums, state average award size, paid malpractice claims/100 physicians, and a composite malpractice measure. Outcomes of interest included 30-day readmission, mortality, and postoperative complications (eg sepsis, myocardial infarction [MI], pneumonia). Using Medicare administrative claims data, associations between malpractice environment and postoperative outcomes were estimated using hierarchical logistic regression models with hospital random-intercepts. Measures of malpractice environment did not have significant, consistent associations with postoperative outcomes. No individual tort reform law was consistently associated with improved postoperative outcomes. Higher-risk state malpractice environment, based on the composite measure, was associated with higher likelihood of sepsis (odds ratio [OR] 1.22; 95% CI 1.07 to 1.39), MI (OR 1.14; 95% CI 1.06 to 1.23), pneumonia (OR 1.09; 95% CI 1.03 to 1.16), acute renal failure (OR 1.15; 95% CI 1.08 to 1.22), deep vein thrombosis/pulmonary embolism (OR 1.22; 95% CI 1.13 to 1.32), and gastrointestinal bleed (OR 1.18; 95% CI 1.08 to 1.30). Higher risk malpractice environments were not consistently associated with a lower likelihood of surgical postoperative complications, bringing into question the ability of malpractice lawsuits to promote health care quality.

Association Between State Medical Malpractice Environment and Surgical Quality and Cost in the United States.

The US medical malpractice system is designed to deter negligence and encourage quality of care through threat of liability. To examine whether state-level malpractice environment is associated with outcomes and costs of colorectal surgery. Observational study of 116,977 Medicare fee-for-service beneficiaries who underwent colorectal surgery using administrative claims data. State-level malpractice risk was measured using mean general surgery malpractice insurance premiums; paid claims per surgeon; state tort reforms; and a composite measure. Associations between malpractice environment and postoperative outcomes and price-standardized Medicare payments were estimated using hierarchical logistic regression and generalized linear models. thirty-day postoperative mortality; complications (pneumonia, myocardial infarction, venous thromboembolism, acute renal failure, surgical site infection, postoperative sepsis, any complication); readmission; total price-standardized Medicare payments for index hospitalization and 30-day postdischarge episode-of-care. Few associations between measures of state malpractice risk environment and outcomes were identified. However, analyses using the composite measure showed that patients treated in states with greatest malpractice risk were more likely than those in lowest risk states to experience any complication (OR: 1.31; 95% CI: 1.22-1.41), pneumonia (OR: 1.36; 95%: CI, 1.16-1.60), myocardial infarction (OR: 1.44; 95% CI: 1.22-1.70), venous thromboembolism (OR:2.11; 95% CI: 1.70-2.61), acute renal failure (OR: 1.34; 95% CI; 1.22-1.47), and sepsis (OR: 1.38; 95% CI: 1.24-1.53; all P < 0.001). There were no consistent associations between malpractice environment and Medicare payments. There were no consistent associations between state-level malpractice risk and higher quality of care or Medicare payments for colorectal surgery.

Medical negligence: Alternative claims resolution an answer to the epidemic?

The price paid by society because of unreasonable medical neg­ ligence claims cannot be ignored. While medical malpractice systems in the country are exorbitantly costly, they are also inefficient. This impacts directly on access to healthcare, a basic human right in the country as enshrined in section 27 of the Bill of Rights of the Constitution of South Africa (SA). [1] Practising defensive medicine, irrespective of the sector in which healthcare is delivered, has now become the norm, with the focus being not just patient health and best interests, but also that of safeguarding against possible medical malpractice liability, thereby increasing unnecessary clinical and diagnostic procedures. The unequivocal situation is that currently the fear of lawsuits holds hostage practitioners’ options and preferences for delivery of ethically exercised care to their patients, leading to frustration and dissatisfaction both to practitioners and patients. [2]

Is It Time to Adopt a No-Fault Scheme to Compensate Injured Patients?

The tort system is roundly indicted for its inadequacies in providing compensation in response to injury. More egregious is its response to injuries incurred due to negligence in the provision of healthcare services specifically. Despite numerous calls for reform, tort-based compensation has persisted as the norm to date. However, recent developments regarding physician malpractice lead to consideration of the possibility of a move to “no-fault” compensation for healthcare-related injuries. In this paper, I explore these developments, examine programs in various foreign jurisdictions which have adopted no-fault compensation for medical injury, and discuss the wisdom and feasibility of adopting an administratively-based compensation system for healthcare-related injury in Canada.A number of jurisdictions around the world have created administrative bodies whose role is to assess and allocate appropriate compensation in response to healthcare-related injuries. The primary motivation has been either to accomplish greater justice or to deal with burgeoning costs of the medical malpractice system (often accompanied by threatened collapse of the major insurer). The administrative scheme adopted may replace tort completely vis-a-vis claims within its purview, or it may permit the claimant to select either to pursue the administrative route or to launch a civil lawsuit. The scheme may be comprehensive, i.e., attempting to cover all healthcare-related injury, or may be limited to a particular type or extent of injury. For example, three jurisdictions have adopted programs exclusively focused on serious neurological injury surrounding birth trauma.Under these administrative schemes, an injured claimant must establish that the claimant fits within the program criteria, and therefore is entitled to compensation. The claimant is aided in the process by program administrative staff, and often by the complainant’s health care provider. Thus, the adversarial relationship between plaintiff and defendant is replaced by a system wherein the care provider may provide assistance to the injured person in seeking compensation.Numerous prominent individuals have argued in favour of reform of the Canadian tort-based medical malpractice, but governments have not been highly motivated to take action. However, the Canadian Medical Protective Association has recently sharply hiked the premiums paid for the defence of physicians and residents, in some cases an increase of close to 100 percent from 2014-15 to 2015-16. The lion’s share of these premiums is funded by provincial governments, whose budgets are straining as a result. The question to be addressed in this paper is: Are events now such that governments will indeed be motivated to take on reform, perhaps radical reform? These recent price increases, combined with an enhanced focus on patient safety, may provide the stimulus for revision of our system’s response to healthcare-related injury.