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Medical malpractice

malpracticeMedical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury to the patient. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals are required to maintain professional liability insurance to offset the risk and costs of lawsuits based on medical malpractice.

The parties

The plaintiff is or was the patient, or a legally designated party acting on behalf of the patient, or - in the case of a wrongful-death suit - the executor or administrator of a deceased patient’s estate.

The defendant is the health care provider. Although a ‘health care provider’ usually refers to a physician, the term includes any medical care provider, including dentists, nurses, and therapists. As illustrated in Columbia Medical Center of Las Colinas v Bush (122 S.W. 3d 835, Texas, 2003), “following orders” may not protect nurses and other non-physicians from liability when committing negligent acts. Relying on vicarious liability or direct corporate negligence, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees.

Elements of the case

A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim.[1]

A duty was owed - a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
A duty was breached - the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors (the doctrine of res ipsa loquitur or ‘the thing speaks for itself’).
The breach caused an injury - The breach of duty was a proximate cause of the injury.
Damages - Without damages (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent.

The trial

Like all other tort cases, the plaintiff or their attorney files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties required to share information through discovery. Such information includes interrogatories, requests for documents and depositions. If both parties agree, the case may be settled early on negotiated terms. If the parties cannot agree, the case will proceed to trial.

The plaintiff has the burden of proof to prove all the elements by a preponderance (51%) of evidence. At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues during trial. The fact-finder (judge or jury) must then weigh all the evidence and determine which is the most credible.

The factfinder will render a verdict for the prevailing party, and assesses the compensatory and punitive damages, within the parameters of the judge’s instructions. The verdict is then reduced to the judgment of the court. The losing party may move for a new trial. In a few jurisdictions, a plaintiff who is dissatisfied by a small judgment may move for additur. In most jurisdictions, a defendant who is dissatisfied with a large judgment may move for remittitur. Either side may take an appeal from the judgment.

Expert testimony

Expert witnesses must be qualified by the Court, based on the prospective experts qualifications and the standards set from legal precedent. To be qualified as an expert in a medical malpractice case, a person must have a sufficient knowledge, education, training, or experience regarding the specific issue before the court to qualify the expert to give a reliable opinion on a relevant issue. The qualifications of the expert are not the deciding factors as to whether the individual will be qualified, although they are certainly important considerations. Expert testimony is not qualified “just because somebody with a diploma says it is so” (United States v. Ingham, 42 M.J. 218, 226 [A.C.M.R. 1995]). In addition to appropriate qualifications of the expert, the proposed testimony must meet certain criteria for reliability. In the United States, two models for evaluating the proposed testimony are used:

The more common (and some believe more reliable) approach used by all federal courts and most state courts is the ‘gatekeeper’ model, which is a test formulated from the US Supreme Court cases Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 [1993]), General Electric Co. v. Joiner (522 U.S. 136 [1997]), and Kumho Tire Co. v. Carmichael (526 U.S. 137 [1999]. Before the trial, a Daubert hearing[2] will take place before the judge (without the jury). The trial court judge must consider evidence presented to determine whether an expert’s “testimony rests on a reliable foundation and is relevant to the task at hand.” (Daubert, 509 U.S. at 597). The Daubert hearing considers 4 questions about the testimony the prospective expert proposes:

• Whether a “theory or technique . . . can be (and has been) tested”
• Whether it “has been subjected to peer review and publication”.
• Whether, in respect to a particular technique, there is a high “known or potential rate of error”
• Whether there are “standards controlling the technique’s operation”.

Some state courts still use the Frye test that relies on scientific consensus to assess the admissibility of novel scientific evidence. Daubert expressly rejected the earlier federal rule’s incorporation of the Frye test. (Daubert, 509 U.S. at 593-594) Expert testimony that would have passed the Frye test is now excluded under the more stringent requirements of Federal Rules of Evidence as construed by Daubert.

In view of Daubert and Kuhmo, the pre trial preparation of expert witnesses is critical.[3] A problem with Daubert is that the presiding judge may admit testimony which derives from highly contested data. The judge may expand the limits contained in the “school of thought” precedent. Papers that are self-published may be admiited as the basis for expert testimony. Non-peer reviewed journals may also be admitted in similar fashion. The only criterion is the opinion of a single judge who, in all likelihood, has no relevant scientific or medical training.[4]

Damages

The plaintiff’s damages may include compensatory and punitive damages. Compensatory damages are both economic and non-economic. Economic damages include financial losses such as lost wages (sometimes called lost earning capacity), medical expenses and life care expenses. These damages may be assessed for past and future losses. Non-economic damages are assessed for the injury itself: physical and psychological harm, such as loss of vision, loss of a limb or organ, the reduced enjoyment of life due to a disability or loss of a loved one, severe pain and emotional distress. Punitive damages are only awarded in the event of wanton and reckless conduct.

In one particular circumstance, physicians, particularly psychiatrists are held to a different standard than other defendants in a tort claim. Suicide is legally viewed as an act which terminates a chain of causality. Although the defendant may be held negligent for another’s suicide, he /she is not responsible for damages which occur after the act. An exception is made for physicians. Although there exists no protocol or algorithm for predicting suicidality with any level of certainty, courts throughout the United States have found physicians to be negligent. Furthermore, damages are routinely assessed based on losses which would hypothetically accrue after the act of suicide. [5]

Statistics

A 2004 study of medical malpractice claims in the United States examining primary care malpractice found that though incidence of negligence in hospitals produced a greater proportion of severe outcomes, the total number of errors and deaths due to errors were greater for outpatient settings. No single medical condition was associated with more than five percent of all negligence claims, and one-third of all claims were the result of misdiagnosis.[6]

A recent study by Healthgrades found that an average of 195,000 hospital deaths in each of the years 2000, 2001 and 2002 in the U.S. were due to potentially preventable medical errors. Researchers examined 37 million patient records and applied the mortality and economic impact models developed by Dr. Chunliu Zhan and Dr. Marlene R. Miller in a study published in the Journal of the American Medical Association (JAMA) in October 2003. The Zhan and Miller study supported the Institute of Medicine’s (IOM) 1999 report conclusion, which found that medical errors caused up to 98,000 deaths annually and should be considered a national epidemic.[7]Some researchers questioned the accuracy of the 1999 IOM study, reporting both significant subjectivity in determining which deaths were “avoidable” or due to medical error and an erroneous assumption that 100% of patients would have survived if optimal care had been provided. A 2001 study in JAMA estimated that only 1 in 10,000 patients admitted to the hospital would have lived for 3 months or more had “optimal” care been provided.[8]

A 2006 follow-up to the 1999 Institute of Medicine of the National Academies study found that medication errors are among the most common medical mistakes, harming at least 1.5 million people every year. According to the study, 400,000 preventable drug-related injuries occur each year in hospitals, 800,000 in long-term care settings, and roughly 530,000 among Medicare recipients in outpatient clinics. The report stated that these are likely to be conservative estimates. In 2000 alone, the extra medical costs incurred by preventable drug related injuries approximated $887 million - and the study looked only at injuries sustained by Medicare recipients, a subset of clinic visitors. None of these figures take into account lost wages and productivity or other costs.[9]

Criticism of medical malpractice lawsuits

Doctors’ groups, patients, and insurance companies have criticized medical malpractice litigation as expensive, adversarial, unpredictable, and inefficient. They claim that the cost of medical malpractice litigation in the United States has steadily increased at almost 12 percent annually since 1975.[10] Jury Verdict Research, a database of plaintiff and defense verdicts, says awards in medical liability cases increased 43 percent in 1999, from $700,000 to $1,000,000.

These critics assert that these rate increases are causing doctors to go out of business or move to states with more favorable tort systems.[11] Not everyone agrees, though, that medical malpractice lawsuits are solely causing these rate increases. A 2003 report from the General Accounting Office found multiple reasons for these rate increases, only one of which was medical malpractice lawsuits.[12] Despite noting multiple reasons for rate increases, the report goes on to state that the “GAO found that losses on medical malpractice claims-which make up the largest part of insurers’ costs-appear to be the primary driver of rate increases in the long run.”

Tort reform advocate Common Good has proposed creating specialized medical courts (similar to distinct tax courts) where medically-trained judges would evaluate cases and subsequently render precedent-setting decisions. Proponents believe that giving up jury trials and scheduling noneconomic damages such as pain and suffering would lead to more people being compensated, and to their receiving their money sooner. This approach has been criticized for treating medical malpractice differently from other areas of tort law and for depriving Americans of their right to a trial by jury. Still, a number of groups and individuals have supported this proposal.[13]

Other tort reform proposals, some of which have been enacted in various states, include placing limits on noneconomic damages and collecting lawsuit claim data from malpractice insurance companies and courts in order to assess any connection between malpractice settlements and premium rates.[14]

Most (73%) settled malpractice claims involve medical error. A 2006 study published in the New England Journal of Medicine concluded that claims without evidence of error “are not uncommon, but most [72%] are denied compensation. The vast majority of expenditures [54%] go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant.” Physicians examined the records of 1452 closed malpractice claims. Ninety-seven percent were associated with injury; of them, 73% got compensation. Three percent of the claims were not associated with injuries; of them, 16% got compensation. 63% were associated with errors; of them, 73% got compensation (average $521,560). Thirty-seven percent were not associated with errors; of them, 28% got compensation (average $313,205). Claims not associated with errors accounted for 13 to 16% percent of the total costs. For every dollar spent on compensation, 54 cents went to administrative expenses (including lawyers, experts, and courts). Claims involving errors accounted for 78 percent of administrative costs.[15][16]

References

1. “The Four Elements of Medical Malpractice”. Yale New Haven Medical Center: Issues in Risk Management (1997).
2. Reeg and Bebout (1993). “What’s It All About, Daubert?”. Journal of the Missouri Bar.
3. Preparing Plaintiff’s Expert in the Post Kuhmo Era, Anthony H. Gair, New York State Bar Association, 1999
4. Tancredi LR, Giannini AJ (December 1994). “The admissibility of scientific evidence in psychiatric malpractice: junk science and the Daubert case”. Journal of clinical forensic medicine 1 (3): 145-8. PMID 16371283. 
5. AJ Giannini, MC Giannini, AE Slaby.Sucide--The medical-legal implications. Psychiatric Forum. 14(2):6-10, 1989.
6. Phillips RL, Bartholomew LA, Dovey SM, Fryer GE, Miyoshi TJ, Green LA (April 2004). “Learning from malpractice claims about negligent, adverse events in primary care in the United States”. Qual 777
Saf Health Care 13 (2): 121-6. PMID 15069219. PMC: 1743812, http://qhc.bmjjournals.com/cgi/pmidlookup?view=long&pmid=15069219. ; lay-summary
7. “In Hospital Deaths from Medical Errors at 195,000 per Year in USA”. Medical News Today (2004).
8. Hayward R, Hofer T (2001). “Estimating hospital deaths due to medical errors: preventability is in the eye of the reviewer”. JAMA 286 (4): 415-20. doi:10.1001/jama.286.4.415. PMID 11466119. 
9. “Medication Errors Injure 1.5 Million People and Cost Billions of Dollars Annually”. The National Academy of Science (2006).
10. Towers Perrin, Tillinghast, U.S. Tort Costs and Cross-Border Perspectives: 2005 Update, (New York, NY: Towers Perrin, March 2006). Tillinghast/Towers Perrin is an interested party in the politics of tort reform with its operations as a major consultant to the insurance industry and as an insurance company itself with its reinsurance business. Previous studies by Tillinghast/Towers Perrin study have been criticized by the Economic Policy Institute as unverifiable: “Although TTP’s estimate is widely cited by journalists, politicians, and business lobbyists, it is impossible to know what the company is actually measuring in its calculation of tort costs, and impossible to verify its figures, because TTP will not share its data or its methodology, which it claims are ‘proprietary.’”
11. Medical Malpractice Insurance Roundtable: Doctors Prescribe Remedies for Crisis. The Business Journal, Jun 11, 2004, accessed August 3, 2006.
12. GAO-03-702 Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates General Accounting Office, June 2003, accessed August 3, 2006.
13. National Law Journal, ‘Health courts’ offer cure USA Today, July 4, 2005, accessed Aug. 3, 2006; and Health Courts Endorsed in Wall Street Journal by Betsy McCaughey The Wall Street Journal, August 24, 2005, accessed Aug. 2, 2006.
14. Medical Malpractice Tort Reform, National Conference of State Legislatures, May 1, 2006, accessed Aug. 3, 2006.
15. Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, New England Journal of Medicine,May 11, 2006.
16. Medical Malpractice Study, Disproving Frivolous Myth , Jeffrey B. Bloom, Gair, Gair, Conason, Steigman & Mackauf, The National Law Journal, July 3, 2006

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