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Medical Malpractice
James G. Anderson, Ph.D.
Department of Sociology & Anthropology
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
MEDICAL MALPRACTICEClaims/100 MDs
1981 3.2
198510.1
198812.6
1994 14.1
SPECIALTIES 1991Claims/100 MDs
Family Practitioners 5.7
Internists 5.5
Pediatricians 6.4
OBGYN 11.6
Surgeons 14.0
MEDICAL MALPRACTICE CLAIMS
Improper Performance
Improper Treatment
Failure to Diagnose Cancer
Improper Choice of Treatment
Improper Management of Delivery
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
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)
Average Award Amounts (in $1000)
$437
$591
$226
$330 $357
$620
$0
$100
$200
$300
$400
$500
$600
$700
Medical Auto/PersonalInjury
All Forms ofLitigation
1985-891990-94
Tort Liability Lawsuits Resulting in a Jury Verdict
Civil Litigation % Resulting in Jury Award
Business 66%
Auto/Personal Injury 66%
Landowner Liability 55%
Product Liability 44%
Medical Malpractice 33%
Overall Plaintiff Win Rate 57%
Tort Cost Increases1990-1995
48.60%
16.60%
0.00%
10.00%
20.00%
30.00%
40.00%
50.00%
60.00%
70.00%
Medical Overall Torts
%
Malpractice Insurance PremiumsOB-GYNs 1989
City Annual Premium
Indianapolis $8,398
Cincinnati $19,474
Detroit $71,577
PERSPECTIVES
Physicians judge medical outcomes in terms of accepted medical practice
Patients judge medical outcomes in terms of how their lives are changed
CONSEQUENCES
Higher costs
Mistrust between doctors and patients
Changes in practice patterns
(defensive medicine)
Changes in profession
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."
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.
First Generation Reforms
Curtail Claim SeverityDamage Caps
Punitive Damage Limits
Collateral Source Offsets
Periodic Payment of Damages
First Generation Reforms
Curtail Claim FrequencyAlternative Dispute Resolution (ADR)
Statutes of Limitations
Attorney Fee Control
Certificate of Merit
First Generation Reforms
Insurance ReformPatient Compensation Funds
Limits on Insurance Cancellation
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
Advantages of First Generation Reforms
AdvantagesCurbed Malpractice Claims
Reduced Costs for Medical Providers and Insurers
Paid Claims in States with Caps Averaged 40% lower than in Non-Cap States
Disadvantages of First Generation Reforms
DisadvantagesDiscouraged 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
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).
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.
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).
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
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
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 injury
Source: WhiteHouse.gov
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.
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?
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?