Transcript Medical Malpractice James G. Anderson, Ph.D. Department of Sociology & Anthropology

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 MALPRACTICE
Claims/100 MDs
1981
3.2
1985
10.1
1988
12.6
1994
14.1
SPECIALTIES 1991
Claims/100 MDs
Family Practitioners
Internists
Pediatricians
OBGYN
Surgeons
5.7
5.5
6.4
11.6
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)
$700
$620
$591
$600
$500
$437
$330
$400
$357
1985-89
1990-94
$226
$300
$200
$100
$0
Medical
Auto/Personal
Injury
All Forms of
Litigation
Tort Liability Lawsuits Resulting
in a Jury Verdict
Civil Litigation
Business
% Resulting in
Jury Award
66%
Auto/Personal Injury
66%
Landowner Liability
55%
Product Liability
44%
Medical Malpractice
33%
Overall Plaintiff Win Rate
57%
Tort Cost Increases
1990-1995
70.00%
60.00%
48.60%
50.00%
40.00%
%
30.00%
16.60%
20.00%
10.00%
0.00%
Medical
Overall Torts
Malpractice Insurance Premiums
OB-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 Severity
Damage Caps
Punitive Damage Limits
Collateral Source Offsets
Periodic Payment of Damages
First Generation Reforms
Curtail Claim Frequency
Alternative Dispute Resolution (ADR)
Statutes of Limitations
Attorney Fee Control
Certificate of Merit
First Generation Reforms
Insurance Reform
Patient 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
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
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
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?