Expert witness reform

The legal system depends on the medical expert for evidence. Doctors readily complain about frivolous cases that go to trial, yet a lawyer cannot bring a frivolous claim to trial without a physician expert witness stating that the claim is not frivolous. An insurance company cannot raise premiums without medical expert witnesses servicing the increasing litigation against the insured. Physicians must look to themselves as a major contributor to rising malpractice insurance costs. For without the physician expert witness, no medical malpractice lawsuit can take place. It is the expert physician, not the attorneys or insurance companies, who defines "meritless" and "frivolous" and who ultimately controls the courts' medical malpractice caseload.     

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.     

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.     

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。     

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.     

The plaintiff's attorney and obstetrics

This paper was presented before a meeting of plaintiffs' attorneys, including those who specialize in malpractice actions against physicians-the National Association of Claimants' Compensation Attorneys (NACCA). Doctor Eastman is known internationally for his contribution in the field of obstetrics. In recent years his interests have led him into the field of forensic obstetrics, a complex and difficult subject. Some of these problems are explored by Dr. Eastman in this paper and his comments will be of interest to physicians and attorneys. It is to be hoped that NACCA members benefited by this accurate and scientific presentation.     

The Plaintiff's Attorney and Obstetrics

This paper was presented before a meeting of plaintiffs'' attorneys, including those who specialize in malpractice actions against physicians—the National Association of Claimants'' Compensation Attorneys (NACCA).Doctor Eastman is known internationally for his contribution in the field of obstetrics. In recent years his interests have led him into the field of forensic obstetrics, a complex and difficult subject. Some of these problems are explored by Dr. Eastman in this paper and his comments will be of interest to physicians and attorneys.It is to be hoped that NACCA members benefited by this accurate and scientific presentation.     

Vaccination-induced syphilis and the Hübner malpractice litigation

This article examines smallpox vaccination in the 19th century as background for a notorious medical malpractice case that occupied Bavarian courts from April 1853 until May 1854. Dr. Georg Hübner, the defendant, was accused of having initiated a small epidemic of syphilis by using the lymph of a syphilitic infant to vaccinate 13 infants. The litigation and its published contemporaneous discussion demonstrate conflicts in the understanding of syphilis, the hazards of having to make a purely clinical diagnosis, the effect of obsolete legal wording in medical litigation, and the attitude of leading physicians to a guilty colleague. This case ultimately led to efforts to make arm-to-arm smallpox vaccination safer, and by 1898 to abandon the technique in favor of bovine sources that were sterilized and stabilized by various methods.     

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.     

Are the costs of employer-sponsored health insurance passed on to workers at the individual level?

Because employer-sponsored health insurance (ESI) is experience rated, employers have an incentive to try to offset its cost by paying lower wages to employees who have greater medical expenditures. The existing evidence on this topic, however, illustrates only that ESI is associated with lower wages for groups of workers who are costlier to cover. In contrast, I use the variation provided by the Affordable Care Act's employer mandate to examine if differences in medical expenditures are passed on to workers at the individual level. My estimates rely on Medical Expenditure Panel Survey data in a dose response difference-in-difference framework that examines how wages change for workers with varying medical expenditures when they must soon be offered ESI. I find that each $1 difference in medical expenditures is associated with a $0.35 to $0.51 wage offset after the employer mandate's announcement wherever ESI must soon be offered to workers. Placebo analyses, focusing on workers whose employers are not affected by the mandate, provide support for a causal interpretation. I also show that my findings are not sensitive to sample selection or data reliability issues and that they cannot be explained by the effects of the Great Recession, demographic characteristics that correlate with medical expenditures, or location- or industry-specific idiosyncratic shocks.     

Cost of malpractice protection on rise in UK,too

As in Canada, medical malpractice premiums in the United Kingdom are on the rise. In recent years there has been a 15%-20% annual rise in the cost of claims, and litigation costs for the National Health Service are soaring. Now, reports Caroline Richmond, another surge of litigation may be on the horizon because a 1996 change makes it possible for lawyers to take cases on a contingency basis.     

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.     

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.     

254例医疗纠纷鉴定结果分析

目的 通过对某市过去的医疗事故鉴定结果分析,找出预防医疗纠纷的工作重点和防范机制。方法 对254例鉴定案件统计分析,从涉及医院的等级和科室构成、委托来源、医院所负责任、事故级别构成等指标观察寻找医疗纠纷的预防重点。结果 涉及医院以区域性医疗中心为主,涉及科室以骨科、妇产科为主,委托来源以行政调解单位为主,医疗事故鉴定率为60.7%,医院负完全责任的占8.8%。 结论 某市医疗纠纷防范的重点单位是三级甲等医院和县医院,重点科室是骨科、妇产科等手术科室,重点预防措施应该放在加强沟通、注重人文关怀、构建和谐医患关系方面,以此来降低医疗纠纷的发生和非司法诉讼途径的解决。     

Prenatal wrongful death

In Tebbutt v. Virostek (1985), the New York Court of Appeals dismissed a suit for emotional distress caused by the stillbirth of an infant allegedly resulting from medical malpractice. Steinbock argues that parents should be able to recover for emotional anguish in cases like Tebbutt. Some states currently allow them to do so by recognizing prenatal wrongful death suits, which focus on the unborn. Steinbock maintains that a better legal approach would be to allow recovery for the negligent infliction of emotional distress upon the parent(s). She presents a six-part argument that discusses: (1) the facts of Tebbutt; (2) wrongful death actions and their extension to the unborn; (3) prenatal torts and prenatal wrongful death; (4) the recognition of harms or wrongs to nonviable fetuses; (5) the legal implications of recognizing fetal personhood; and (6) recognizing parental rights in cases like Tebbutt without recognizing the fetus as a person.     

Ostracism on trial: The limits of individual rights

In 1947, a case of ostracism was tried in the Common Pleas Court of Wooster, county seat of Wayne County, Ohio. The plaintiff, Andrew J. Yoder, filed suit against an old Order Amish Bishop and two preachers asking for $40,000 in damages and a court injunction against a “boycott” that he alleged had been organized against hin throughout the Amish Church. The verdict was based on a concept of justice embodied inthe “reasonable man” doctrine. The jury intended to remedy severe“injustice” inflicted on the petitioner, a former member of the Old Order Amish Church, represented by the bishop and the preachers. The defendants, on the other hand, were steadfast in their belief that their actions were in compliance with the commandments of God— God's justice could not be questioned. This “Meidung” case, a public dispute between Amish mores and American Civil Law, could not solve the underlying issue of conflicting values. The trial led to results that were distasteful to the contesting parties, as well as to the jury, the presiding judge, the officials involved in executing the verdict, and the general public.     

Physicians and the minefield surrounding informed consent.

Most of the legal cases that follow the informed-consent standard set in recent court cases have involved surgical procedures. However, issues concerning a pregnant British Columbia mother who contracted chicken pox and whose child was subsequently born with severe medical complications demonstrate the complexity of medical decision making and the inadequacy of established legal requirements, especially when consent has dimensions beyond technical considerations usually associated with medical procedures. The problem physicians face, says lawyer Karen Capen, is to find a way to balance a range of professional responsibilities and the overriding fiduciary obligation to patients in matters associated with informed decision making and consent.     

Genetic testing and insurance. The Ad Hoc Committee on Genetic Testing/Insurance Issues.

The rapid expansion of opportunities for genetic testing has been accompanied by complex questions about the appropriate relationships between providers, patients, and insurers. Some of these questions involve large public-policy decisions, such as whether the government should guarantee access to health care for all citizens. Universal access to health care, without regard to past, present, or future risk of disease, could eliminate risk-oriented underwriting in health-care coverage. A positive response to that question will ameliorate other problems. Until universal access is reality, genetic testing and genetic diagnosis will raise important issues for the practicing geneticist. How much does a client need to know about insurance implications before consenting to a genetic test? Should patients be counseled to purchase insurance before being tested? Should genetic information be excluded from medical records before their release to insurance companies for routine reimbursements or underwriting? What are the ethical and legal responsibilities of the geneticist?     

The lone inventor: low success rates and common errors associated with pro-se patent applications

A pro-se patent applicant is an inventor who chooses to represent himself while pursuing ("prosecuting") a patent application. To the author's knowledge, this paper is the first empirical study addressing how applications filed by pro-se inventors fare compared to applications in which inventors were represented by patent attorneys or agents. The prosecution history of 500 patent applications filed at the United States Patent and Trademark Office were analyzed: inventors were represented by a patent professional for 250 of the applications ("represented applications") but not in the other 250 ("pro-se applications"). 76% of the pro-se applications became abandoned (not issuing as a patent), as compared to 35% of the represented applications. Further, among applications that issued as patents, pro-se patents' claims appear to be narrower and therefore of less value than claims in the represented patent set. Case-specific data suggests that a substantial portion of pro-se applicants unintentionally abandon their applications, terminate the examination process relatively early, and/or fail to take advantage of interview opportunities that may resolve issues stalling allowance of the application.     

部队医院实行军人持卡就医的问题与对策

目的:随着我国医疗卫生事业的迅速发展,医疗保障体系也在不断完善,医疗保障卡的应用就是医疗保障制度实现管理信息化、规范化的一种表现形式。本文针对部队医院军人在持卡就医中出现的问题进行分析,并提出相应的解决对策,以更好地发挥军人保障卡的的作用。方法:随机选取2010年8月至2012年7月在我院接受诊治的军人、家属、医院保障卡管理人员及医务人员共计852人,采取问卷调查和现场访谈的形式对军人保障卡在就医环节中存在的问题进行统计分析。结果:军人持卡就医环节存在的主要问题:持卡就医率低、保障卡的功能设置不合理、宣传不到位、保管与维护不便捷。结论:为改善部队医院军人保障卡应用中的问题,医院相关管理部门应加强宣传,倡导军人及家属持卡就医,提高保障卡的使用率。医疗保障卡的管理模式还需进一步改进,应充分体现便捷性。