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Medical Malpractice
Sheldon F. KurtzUniversity of Iowa
Percy Bordwell Professor of Law
Professor of Medicine (Department of Surgery)
The Nature and Extent of Medical Error
How rampant is medical error? 3-jumbo jet crashes a day
Is there too much medical litigation?
Does the data suggest reasons for physicians to be frustrated over malpractice litigation?
The Nature and Extent of Medical Error
How rampant is medical error? 3-jumbo jet crashes a day
Does the data make your nervous about your doctor?Is there too much medical litigation?Does the data suggest reasons for physicians to be frustrated over malpractice litigation?
The Nature and Extent of Medical Error
How rampant is medical error? 3-jumbo jet crashes a day
Does the data make your nervous about your doctor?Is there too much medical litigation?Does the data suggest reasons for physicians to be frustrated over malpractice litigation?
Extent of Suits
28% for diagnostic errors
27% for surgical errors
26% for improper medical treatment
Who Gets Sued Most
Surgeons
Anesthesiologists
Obstetricians
Emergency Medical Docs
Saks Study
A negligent doctor who causes injury has a 3 out of 100 chance of being sued
A non-negligent doctor has a probability of being sued for a non-negligent injury of 13 out of 10,000.
Thus, for every malpractice claim in response to a negligent injury there are 15-30 malpractice victims who bring no suit but there are 4-5 claims brought by non-negligently injured patients.
How the Law Effects Quality of Care
Medical malpractice
Licensure
Certification
Medical Malpractice Defined
Medical malpractice occurs when a physician fails to act as a reasonable physician would have acted under the circumstances
The Liability Formula
Duty (Did a physician-patient relationship exist) +Breach of duty (Did the physician fail to meet the required
standard of care) +Causation (Did the physician’s breach cause the patient’s
injury) +Damages (Did the patient incur medical expenses, pain,
suffering, lost wages as a result of the breach) =LIABILITY
Proof of Malpractice-Experts
Generally, expert witnesses requiredBattle of expertsLocal vs. National standard Locality rule:
Historic Unfair to patients if “conspiracy of silence” Fails to recognition “nationalization” of medicine
National Literature Professional organizations
Local standard (same locality or community of similar nature) still applicable for GPs, residents
Proof of Malpractice-Experts
Generally, expert witnesses requiredBattle of expertsLocal vs. National standard Locality rule:
Historic Unfair to patients if “conspiracy of silence” Fails to recognition “nationalization” of medicine
National Literature Professional organizations
Local standard (same locality or community of similar nature) still applicable for GPs, residents
Proof of Malpractice-Experts
Generally, expert witnesses requiredBattle of expertsLocal vs. National standard Locality rule:
Historic Unfair to patients if “conspiracy of silence” Fails to recognition “nationalization” of medicine
National Literature Professional organizations
Local standard (same locality or community of similar nature) still applicable for GPs, residents
Proof of Malpractice-No Experts
Common knowledge exception
Res ipsa loquitur
Malpractice Defenses
Conformed to the standard of care
Alternative methods of treatment
Clinical innovation
Contributory Fault
Assumption of the risk
Waiver
Malpractice Defenses
Conformed to the standard of care
Alternative methods of treatment
Clinical innovation
Contributory Fault
Assumption of the risk
Waiver
Malpractice Defenses
Conformed to the standard of care
Alternative methods of treatment
Clinical innovation
Contributory Fault
Assumption of the risk
Waiver
Liability for acts of Others
Vicarious liability
Captain of the Ship Doctrine Particularly for surgeons
Borrowed servant doctrine
Referring physicians
Covering docs
Physician assistants
Liability for acts of Others
Vicarious liability
Captain of the Ship Doctrine Particularly for surgeons
Borrowed servant doctrine
Referring physicians
Covering docs
Physician assistants
Liability for acts of Others
Vicarious liability
Captain of the Ship Doctrine Particularly for surgeons
Borrowed servant doctrine
Referring physicians
Covering docs
Physician assistants
Hospital Liability for Acts of Doctors
Employee DoctorsSovereign and Charitable immunityMedical Staff Doctors (non-employees) Ostensible agency
Typically emergency room doctors Implied agency (HMO’s watch out)
Control test Negligence in granting privileges Oversight
Inherent or essential functions doctrine Emergency room; pathology; anesthesia
Statute of Limitations
Date of occurrence
Date of discovery
Continuous treatment doctrine
Statute of Limitations
Date of occurrence
Date of discovery
Continuous treatment doctrine
Information about Malpractice
Boards of Medical Examiners
National Practitioner Data Bank
Operational Oversight
Who reports
Who has access
Who does not have access
Information about Malpractice
Boards of Medical Examiners
National Practitioner Data Bank
Operational Oversight
Who reports
Who has access
Who does not have access
