Medical Malpractice

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Medical Malpractice

• James G. Anderson, Ph.D.
• Department of Sociology Anthropology

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Tort Liability System

• Compensation for patients who have received poor
  or negligent medical care
• Prevention of medical injuries through deterrence
  due to the threat of liability and disciplinary
  action

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MEDICAL MALPRACTICEClaims/100 MDs

• 1981 3.2
• 1985 10.1
• 1988 12.6
• 1994 14.1

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SPECIALTIES 1991Claims/100 MDs

• Family Practitioners 5.7
• Internists 5.5
• Pediatricians 6.4
• OBGYN 11.6
• Surgeons 14.0

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MEDICAL MALPRACTICE CLAIMS

• Improper Performance
• Improper Treatment
• Failure to Diagnose Cancer
• Improper Choice of Treatment
• Improper Management of Delivery

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COSTS

• Medical malpractice premiums account for 1 of
  national health care expenditures (1.4b/yr)
• Mean duration of malpractice claims is 7 years
• 50 of claims are settled out of court
• Less than 10 of claims are appealed
• 1 out of 16 injured patients receive any form of
  compensation

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Costs

• AMA estimated that 17.6 of the total
  expenditures for physician services is due to
  liability premiums and defensive medicine
• 8 of diagnostic procedures are due to defensive
  medicine (2-15b/yr)

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Average Award Amounts (in 1000)
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Tort Liability Lawsuits Resulting in a Jury
Verdict
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Tort Cost Increases1990-1995
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Malpractice Insurance PremiumsOB-GYNs 1989
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PERSPECTIVES

• Physicians judge medical outcomes in terms of
  accepted medical practice
• Patients judge medical outcomes in terms of how
  their lives are changed

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CONSEQUENCES

• Higher costs
• Mistrust between doctors and patients
• Changes in practice patterns
• (defensive medicine)
• Changes in profession

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Defensive Medicine?

• Daniel Kessler and Mark McClellan of Stanford won
  the Kenneth Arrow Award in Health Economics in
  1997 for their article "Do Doctors Practice
  Defensive Medicine?", which "found that when
  states reformed malpractice laws to put caps on
  damages for pain and suffering, or to eliminate
  punitive damages, hospital expenditures for heart
  disease patients were reduced by about 5 percent,
  yet did not leave the patients with worse health
  outcomes." 

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AMA Comment To NYT 2005

• 73 percent of the lawsuits filed against
  physicians are closed without payment.
• Of those that do go to court, juries find the
  physician innocent of negligence 86 percent of
  the time.
• That's astounding, but it's little solace to a
  physician who has spent countless hours in the
  courtroom instead of caring for patients. Even
  when a physician "wins," the cost to defend such
  a case is about 90,000.
• The average obstetrician is sued 2 to 3 times in
  a career.

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First Generation Reforms

• Curtail Claim Severity
• Damage Caps
• Punitive Damage Limits
• Collateral Source Offsets
• Periodic Payment of Damages

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First Generation Reforms

• Curtail Claim Frequency
• Alternative Dispute Resolution (ADR)
• Statutes of Limitations
• Attorney Fee Control
• Certificate of Merit

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First Generation Reforms

• Insurance Reform
• Patient Compensation Funds
• Limits on Insurance Cancellation

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Second Generation Reforms

• Medical Practice Guidelines
• Damage Schedules
• Mandated Use of ADR in lieu of trial
• Administrative Fault-based Systems
• No-Fault Systems
• Enterprise Liability

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Advantages of First Generation Reforms

• Advantages
• Curbed Malpractice Claims
• Reduced Costs for Medical Providers and Insurers
• Paid Claims in States with Caps Averaged 40
  lower than in Non-Cap States

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Disadvantages of First Generation Reforms

• Disadvantages
• Discouraged Attorneys from Accepting Smaller
  Claims
• Do not adequately compensate persons with
  significant injuries for medical costs and
  financial losses
• Reduce Deterrence of Malpractice
• Reduce Compensation Goals of the Traditional Tort
  System

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Indiana Law

• The caps on recoveries in medical malpractice
  claims against qualified providers have increased
  substantially under new legislation scheduled to
  take effect in cases arising out of acts of
  malpractice that occur on or after July 1, 1999.
• For claims accruing prior to January 1, 1990, the
  amount recoverable against a single qualified
  provider may not exceed 100,000, and the total
  amount recoverable against all qualified
  providers and the Patient Compensation Fund may
  not exceed 500,000. Ind. Code Ann.  34-18-14-3
  (West Supp. 1998).

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Indiana Law Cont.

• As of January 1, 1990, the maximum recoverable
  from all qualified providers and the Fund was
  increased to 750,000. Id. For claims accruing on
  or after July 1, 1999, the limit for each
  qualified provider is 50,000,
• Tthe total cap on damages against all qualified
  providers and the Fund is 1,250,000.

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Indiana Law Cont.

• All claims for more than 15,000 against
  qualified providers under the Indiana Medical
  Malpractice Act must be heard by a medical review
  panel (unless each party executes a written
  waiver). Ind. Code Ann.  34-18-8-4 to 34-18-8-6
  (West Supp. 1998). A medical review panel
  consists of one lawyer and three health care
  providers. Ind. Code Ann.  34-18-10-3 (West
  Supp. 1998).

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Indiana Comprehensive Tort Reform Legislation

• Comprehensive cap of 750,000 on all damage
  awards
• Patient compensation fund which pays awards or
  settlements in excess of 100,000 up to the cap
• Mandated medical review before a claim above
  15,000 can proceed to trial
• A two year statute of limitations

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Indiana Comprehensive Tort Reform Legislation

• Attorney Fee Caps 15
• All claims must be reported to Dept. of Insurance
  and the professional licensing authority
• Collateral Source Rules
• Periodic Payment of Damages

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Proposed Reforms

• BUSH MALPRACTICE REFORM POINTS Allow injured
  patients quicker, unlimited compensation for
  their economic losses, including provisions
  for unpaid services like care for children or
  parents Cap non-economic damages at
  250,000 Cap punitive damages at two times
  economic damages or 250,000, whichever is
  greater Provide for payments of judgments over
  time rather than in a single lump sum
  Establish limits on how long cases can be brought
  after an event Notify juries if a plaintiff
  has other sources of reimbursement for an
  injurySource WhiteHouse.gov

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Case Study

• Thursday, September 14, 21007, Dawn Jeffers, a
  newborn at Methodist Hospital In Indianapolis,
  died from an accidental overdose of a blood
  thinner. Three other infants died from internal
  bleeding as a result of an overdose of the same
  drug. An investigation found that a staff
  member, probably from the pharmacy department,
  placed a vial of the anticoagulant drug heparin
  in a drawer of a drug cabinet located at the
  nurses station on the neonatal unit.
  Subsequently, a nurse or several nurses removed
  the vial from the computer-controlled cabinet and
  did not double check to make sure the vial
  matched the concentration listed on the cabinet
  drawer before withdrawing the liquid drug into a
  syringe. The babies were given the overdose.

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Questions

• Who is at fault in this case (e..g., the
  pharmacist technician, the nurse, the hospital,
  etc.)?
• What actions if any should be taken against the
  party at fault in this case?
• What could be done to prevent this type of
  medical error from happening in the future?

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Questions

• If the family of one of these infants who died
  sues for malpractice, whom should be named in the
  suit (e.g., the pharmacy technician, the nurse,
  the hospital, all of the above, none of the
  above)?
• If you were a member of the jury how would you
  vote in assigning blame for the error?
• How much monetary compensation should be provided
  to the family for the death of the infant?