Medical malpractice: a case study in medical and legal decision making

The conference was organized in part to dispel some of the misinformation that interferes with cooperative efforts of attorneys and physicians to redress the malpractice situation. During discussion of the hypothetical case, participants identified how medical decision-making responsibilities were allocated among health care providers caring for the patient. Panel members suggested ways in which medical decision making might be affected by non-medical factors such as third-party reimbursement (e.g., selection of inpatient or outpatient setting, the opportunity to discuss issues related to informed consent prior to the day of a procedure) and potential malpractice litigation (e.g., documentation in charts, use of diagnostic procedures). The characterization of decision-making roles and responsibilities differed somewhat for purposes of malpractice litigation; that is, which caregivers might be named as defendants. Panel members reconstructed the development of the medical incident into a legal case. Plaintiff's attorney commented that it is often a hospital employee who advises the family to consult an attorney and described some of the constraints on information gathering (e.g., the rule of "discovery" requiring that suit be filed before defendants can be forced to give statements about what happened, insurance contract provisions prohibiting physicians from talking without legal counsel present to persons who indicate that they plan to file suit). He also briefly explained the rationale for the contingency fee arrangement in these cases. Describing the role of the medical expert witness and the need to review the medical record, he outlined the process of deciding whether to pursue a malpractice case. In making this decision, plaintiff's attorney evaluates the facts to identify issues in the case, to determine if there are deviations from the standard of care, and to try to predict jury reaction. If a suit is filed, defense attorneys employed by the hospital, insurance company, or individual defendants will decide, based on facts including coverage limits, possible publicity, and likelihood of successful prosecution, whether the case should be settled and for what amount. Interests represented by the defense attorneys differ and may affect settlement strategies. Physician feelings of concern for the patient/family or desire for vindication will, to varying degrees, be factors in the decision to try or settle a case. Panel members explored several important policy issues. Among these were the effect of malpractice cases on doctor-patient communications and ethical issues concerning expert witnesses.(ABSTRACT TRUNCATED AT 400 WORDS)     

Trends in malpractice litigation.

Physicians who make mistakes are not necessarily negligent, contrary to prevailing opinion in the medical community. The article discusses the legal concepts of "standard of care" and "proximate cause." The incidence of favorable jury verdicts in those cases in which malpractice suits are litigated is quite high. The effects of insurance company policies in decisions about settlements on the incidence of claims is discussed and alternatives are suggested. The prevailing belief that a consent form with a patient''s signature on it is sufficient to prevent a malpractice suit is also discussed.     

Expert systems in treating substance abuse.

Computer programs can assist humans in solving complex problems that cannot be solved by traditional computational techniques using mathematic formulas. These programs, or "expert systems," are commonly used in finance, engineering, and computer design. Although not routinely used in medicine at present, medical expert systems have been developed to assist physicians in solving many kinds of medical problems that traditionally require consultation from a physician specialist. No expert systems are available specifically for drug abuse treatment, but at least one is under development. Where access to a physician specialist in substance abuse is not available for consultation, this expert system will extend specialized substance abuse treatment expertise to nonspecialists. Medical expert systems are a developing technologic tool that can assist physicians in practicing better medicine.     

Medical malpractice in perspective. I--The American experience.

Concern over the possibility of an American style medical malpractice "crisis" in the United Kingdom has recently been voiced by members of both medical and legal professions. The validity of such fears is examined by reviewing the conditions that have given rise to the current American difficulties. It is argued that the rise in malpractice insurance premiums and associated restrictions in availability should be seen against the background of underwriting problems specific to medical liability in conjunction with a general decline in reinsurance cover. The evidence in relation to the clinical and resource implications of malpractice is analysed. In particular, arguments that increased litigation has influenced the practice of "defensive" medicine and the choice of specialty are critically examined. Medical malpractice claims and insurance are only part of a professional environment which is undergoing dramatic social and economic changes, many of which seem more plausible candidates to be treated as important influences on the nature and organisation of health care in the United States.     

Work injury: a second look at the doctor's first report

Injured employees require medical care and, if disabled, compensation payments for subsistence. The law requires that the employer or insurance carrier supply these benefits promptly. In the absence of prompt and adequate information from the attending physician, these benefits are withheld. The necessary information required to process employee's claim is that called for on the standard accident report form, commonly called the "pink slip." Not to supply this minimum information may constitute a hardship on the employee. By supplying more elaborate information than that called for, the physician may be increasing his load of "paper work" immeasurably.     

No-Fault Malpractice Insurance: Proximate Cause and the Quality of Medical Care

No-fault medical malpractice insurance has been proposed as an alternative to the present tort liability approach. Statistical examination of the concept of proximate cause reveals not only that the question of acceptable care, and therefore of fault, is unavoidable in identifying patients deserving compensation, but also that specifying fault in an individual case is scientifically untenable. A simple formula for a Coefficient of Causality clarifies the question of proximate cause in existing trial practices and suggests that many of the threats associated with malpractice suits arise from the structure of the tort-insurance system rather than from professional responsibility for medical injury. The concepts could provide the basis for a revised claims and compensation procedure.     

Analysis of Your Professional Liability Insurance Policy

The most important lessons for the physician to learn in regard to his professional liability insurance coverage are the following:1. The physician should carefully read his professional liability policy and should secure the educated aid of his attorney and his insurance broker, if they are conversant with this field.2. He should particularly read the definition of coverage and carefully survey the exclusion clauses which may deny him coverage under certain circumstances.3. If the physician is in partnership or in a group, he should be certain that he has contingent partnership coverage.4. The physician should accept coverage only from an insurance carrier of sufficient size and stability that he can be sure his coverage will be guaranteed for “latent liability” claims as the years go along—certainly for his lifetime.5. The insurance carrier offering the professional liability policy should be prepared to offer coverages up to at least $100,000/$300,000.6. The physician should be assured that the insurance carrier has claims-handling personnel and legal counsel who are experienced and expert in the professional liability field and who are locally available for service.7. The physician is best protected by a local or state group program, next best by a national group program, and last, by individual coverage.8. The physician should look with suspicion on a cancellation clause in which his policy may be summarily cancelled on brief notice.9. The physician should not buy professional liability insurance on the basis of price alone; adequacy of coverage and service and a good insurance company for his protection should be the deciding factors.     

Hypertension and Cerebral Hemorrhage: A Malpractice Controversy: Efficacy of Drug Therapy,Epidemiology, Neurological Aspects and Pathology

The plaintiff alleged that failure of the attending physician to manage her husband''s hypertension properly resulted in his death from intracerebral hemorrhage. Four lines of evidence supported the defendant: (1) In 1970 to 1971 there was uncertainty in the medical community whether mild hypertension should be treated with drugs; this uncertainty still existed at the time of the trial. (2) Severe hypertension and advanced age are the two most important predisposing factors leading to intracerebral hemorrhage; the deceased patient had neither. (3) Hemorrhage into the cerebral cortex and underlying white matter is not typical of hypertensive intracerebral bleeding; more likely, rupture of an arteriovenous malformation occurred. (4) A diagnosis of hypertensive intracerebral hemorrhage is not one of exclusion but requires objective evidence of vascular change in the brain, heart and kidney; these changes were not found in the deceased patient. In conclusion, an expert witness should testify objectively rather than be the advocate of a lawyer''s theory of liability.     

Where Is the Malpractice Crisis Taking Us?

There have been several approaches taken to solve the malpractice insurance problem in this country. However, since the cost of malpractice insurance continues to climb, the changes so far have not solved the problem, and more changes seem inevitable. A major change could be the development of a patient insurance plan that would provide compensation for certain injuries related to medical care. The insurance coverage would be centered on hospital care. If certain requirements are met, the plan may not be more expensive than the current tort liability system, and would offer several advantages. In addition to the patient injury insurance, there could be federal assumption of liability for national immunization programs.     

Arbitration Agreements and Your Malpractice Coverage

With new legislation and favorable case law developments, many providers of health care services are turning to binding arbitration agreements as a partial solution to the medical malpractice crisis. Existing data indicate tremendous advantages can be gained from the use of such agreements, if they are carefully drawn to comply with new law, tailored to the particular situation in which they will be used and coupled with appropriate procedures to secure the intended benefits.Arbitration is not a substitute for insurance, but if a provider has taken the calculated risk of forgoing insurance he should not be without a carefully drawn binding arbitration agreement.     

Legal Liability to Volunteers in Testing New Drugs

Scientists test new drugs by giving them to volunteers. In spite of every precaution, the drug may harm the volunteer. Under Canadian law, can he recover damages against any of the persons connected with the test? He cannot succeed against the scientist if the latter had made complete disclosure of the risks and had then obtained the volunteer''s free consent. Where the subject of a test is a child or one of unsound mind, the guardian''s consent probably does not protect the scientist from a possible claim by the subject. Where a married woman is a volunteer, her husband''s consent is unnecessary. The volunteer cannot succeed against his family physician who referred him to the scientist unless the physician took an active part in an experiment that was conducted negligently or without a proper consent. The volunteer cannot succeed against the maker unless he has negligently prepared the drug or given misleading information.     

Canine atopic dermatitis: validation of recorded diagnosis against practice records in 335 insured Swedish dogs

A cross-sectional study of insured Swedish dogs with a recorded diagnosis of canine atopic dermatitis (CAD) was performed. In order to validate the correctness of this specific diagnosis in the insurance database, medical records were requested by mail from the attending veterinarians. All dogs with a reimbursed claim for the disease during 2002 were included in the original study sample (n = 373). Medical records were available for 335 individuals (response rate: 89.8%). By scrutinizing the submitted records it was determined that all dogs had been treated for dermatologic disease, and that 327 (97.6%) could be considered to have some allergic skin disease. However, as information regarding dietary trial testing was missing in many dogs the number that were truly atopic could not be determined. The clinical presentation and nature of test diet for dogs with or without response to dietary trial testing was compared for a subset of 109 individuals that had undergone such testing. The only significant difference between these two groups was that the proportion of dogs with reported gastrointestinal signs was higher in the group that subsequently responded to a diet trial. In conclusion, the agreement between the recorded diagnosis in the insurance database and the clinical manifestations recorded in the submitted medical records was considered acceptable. The concern was raised that many attending veterinarians did not exclude cutaneous adverse food reactions before making the diagnosis of CAD.     

The Practice of Cranial Neurosurgery and the Malpractice Liability Environment in the United States

Object

The potential imbalance between malpractice liability cost and quality of care has been an issue of debate. We investigated the association of malpractice liability with unfavorable outcomes and increased hospitalization charges in cranial neurosurgery.

Methods

We performed a retrospective cohort study involving patients who underwent cranial neurosurgical procedures from 2005-2010, and were registered in the National Inpatient Sample (NIS) database. We used data from the National Practitioner Data Bank (NPDB) from 2005 to 2010 to create measures of volume and size of malpractice claim payments. The association of the latter with the state-level mortality, length of stay (LOS), unfavorable discharge, and hospitalization charges for cranial neurosurgery was investigated.

Results

During the study period, there were 189,103 patients (mean age 46.4 years, with 48.3% females) who underwent cranial neurosurgical procedures, and were registered in NIS. In a multivariable regression, higher number of claims per physician in a state was associated with increased ln-transformed hospitalization charges (beta 0.18; 95% CI, 0.17 to 0.19). On the contrary, there was no association with mortality (OR 1.00; 95% CI, 0.94 to 1.06). We observed a small association with unfavorable discharge (OR 1.09; 95% CI, 1.06 to 1.13), and LOS (beta 0.01; 95% CI, 0.002 to 0.03). The size of the awarded claims demonstrated similar relationships. The average claims payment size (ln-transformed) (Pearson’s rho=0.435, P=0.01) demonstrated a positive correlation with the risk-adjusted hospitalization charges but did not demonstrate a correlation with mortality, unfavorable discharge, or LOS.

Conclusions

In the present national study, aggressive malpractice environment was not correlated with mortality but was associated with higher hospitalization charges after cranial neurosurgery. In view of the association of malpractice with the economics of healthcare, further research on its impact is necessary.     

Pheo or not a pheo,that is the question.

The current fault-based tort system assumes that claims made against physicians are inversely related to the quality of care they provide. In this study we identified physician characteristics associated with elements of medical care that make physicians vulnerable to malpractice claims. A sample of physicians (n = 248) thought to be at high or low risk for claims was surveyed on various personal and professional characteristics. Statistical analysis showed that 9 characteristics predicted risk group. High risk was associated with increased age, surgical specialty, emergency department coverage, increased days away from practice, and the feeling that the litigation climate was "unfair." Low risk was associated with scheduling enough time to talk with patients, answering patients'' telephone calls directly, feeling "satisfied" with practice arrangements, and acknowledging greater emotional distress. Prediction was more accurate for physicians in practice 15 years or less. We conclude that a relationship exists between a history of malpractice claims and selected physician characteristics.     

我国目前妥善处理医疗纠纷面临的三个关键问题

通过分析我国目前医疗纠纷的实际状况,得出妥善处理医疗纠纷面临的3个关键问题：法律体系的科学统一;执法过程的公平公正;建立健全医疗损害责任保险制度并纳入法制管理轨道。     

Accuracy of administrative claims data for polypectomy

Background:

The frequency of polypectomy is an important indicator of quality assurance for population-based colorectal cancer screening programs. Although administrative databases of physician claims provide population-level data on the performance of polypectomy, the accuracy of the procedure codes has not been examined. We determined the level of agreement between physician claims for polypectomy and documentation of the procedure in endoscopy reports.

Methods:

We conducted a retrospective cohort study involving patients aged 50–80 years who underwent colonoscopy at seven study sites in Montréal, Que., between January and March 2007. We obtained data on physician claims for polypectomy from the Régie de l’Assurance Maladie du Québec (RAMQ) database. We evaluated the accuracy of the RAMQ data against information in the endoscopy reports.

Results:

We collected data on 689 patients who underwent colonoscopy during the study period. The sensitivity of physician claims for polypectomy in the administrative database was 84.7% (95% confidence interval [CI] 78.6%–89.4%), the specificity was 99.0% (95% CI 97.5%–99.6%), concordance was 95.1% (95% CI 93.1%–96.5%), and the kappa value was 0.87 (95% CI 0.83–0.91).

Interpretation:

Despite providing a reasonably accurate estimate of the frequency of polypectomy, physician claims underestimated the number of procedures performed by more than 15%. Such differences could affect conclusions regarding quality assurance if used to evaluate population-based screening programs for colorectal cancer. Even when a high level of accuracy is anticipated, validating physician claims data from administrative databases is recommended.Population-based screening programs for colorectal cancer rely heavily on the performance of colonoscopy as either the initial examination or as the follow-up to a positive screening by virtual colonography, double-contrast barium enema or fecal occult blood testing. Colonoscopy is the only screening examination accepted at 10-year intervals among people at average risk without significant polyps found. It allows direct visualization of the entire colon and rectum and permits removal of adenomatous polyps, precursors of colorectal cancer. The frequency of polypectomy is an important indicator of quality assurance for colorectal cancer screening programs.In the province of Quebec, physicians are reimbursed for medical services by the Régie de l’Assurance Maladie du Québec (RAMQ), the government agency responsible for administering the provincial health insurance plan. Physicians receive additional remuneration for performing a polypectomy if they include the procedure code in their claim.Data from physician claims databases are commonly used in health services research,^1–7 even though the data are collected for administrative purposes and physician reimbursement. Procedure codes in physician claims databases are presumed to have a very high level of agreement with data in medical charts.⁸ A physician making a claim will need to submit the diagnostic code and, when applicable, the procedure code. Studies that rely on physician claims databases can be divided into those that examine the diagnostic codes entered and those that examine the procedure codes entered. Few studies have attempted to validate procedure codes, and often not as the primary study objective.^9–14We conducted a study to determine the level of agreement between physician claims for polypectomy and documentation of the procedure in endoscopy reports.     

WORK INJURY—A Second Look at the Doctor's First Report

Injured employees require medical care and, if disabled, compensation payments for subsistence. The law requires that the employer or insurance carrier supply these benefits promptly. In the absence of prompt and adequate information from the attending physician, these benefits are withheld. The necessary information required to process employee''s claim is that called for on the standard accident report form, commonly called the “pink slip.” Not to supply this minimum information may constitute a hardship on the employee. By supplying more elaborate information than that called for, the physician may be increasing his load of “paper work” immeasurably.     

Effect of Supervised Students' Involvement on Diagnostic Accuracy in Hospitalized Medical Patients �� A Prospective Controlled Study

Background

During internships most medical students engage in history taking and physical examination during evaluation of hospitalized patients. However, the students'' ability for pattern recognition is not as developed as in medical experts and complete history taking is often not repeated by an expert, so important clues may be missed. On the other hand, students'' history taking is usually more extensive than experts'' history taking and medical students discuss their findings with a Supervisor. Thus the effect of student involvement on diagnostic accuracy is unclear. We therefore compared the diagnostic accuracy for patients in the medical emergency department with and without student involvement in the evaluation process.

Methodology/Principal Findings

Patients in the medical emergency department were assigned to evaluation by either a supervised medical student or an emergency department physician. We only included patients who were admitted to our hospital and subsequently cared for by another medical team on the ward. We compared the working diagnosis from the emergency department with the discharge diagnosis. A total of 310 patients included in the study were cared for by 41 medical students and 21 emergency department physicians. The working diagnosis was changed in 22% of the patients evaluated by physicians evaluation and in 10% of the patients evaluated by supervised medical students (p = .006). There was no difference in the expenditures for diagnostic procedures, length of stay in the emergency department or patient comorbidity complexity level.

Conclusion/Significance

Involvement of closely supervised medical students in the evaluation process of hospitalized medical patients leads to an improved diagnostic accuracy compared to evaluation by an emergency department physician alone.     

Contingent Fees in Medical Malpractice Litigation—A Qualitative Assessment

The medical profession has experienced high liability insurance premiums accompanied by widespread use of contingent fees in medical malpractice litigation. It is worthwhile, therefore, to assess qualitatively the merits of contingent fees, the evidence suggesting that they are associated with unjustified litigation and their implications for the medical and legal professions.