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 5.7Internists 5.5Pediatricians 6.4OBGYN 11.6Surgeons 14.0

MEDICAL MALPRACTICE CLAIMS

Improper PerformanceImproper TreatmentFailure to Diagnose CancerImproper Choice of TreatmentImproper 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 years50% of claims are settled out of courtLess than 10% of claims are appealed1 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 medicine8% 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 costsMistrust between doctors and patientsChanges 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 CapsPunitive Damage LimitsCollateral Source OffsetsPeriodic Payment of Damages

First Generation Reforms

Curtail Claim FrequencyAlternative Dispute Resolution (ADR)Statutes of LimitationsAttorney Fee ControlCertificate of Merit

First Generation Reforms

Insurance ReformPatient Compensation FundsLimits on Insurance Cancellation

Second Generation Reforms

Medical Practice GuidelinesDamage SchedulesMandated Use of ADR in lieu of trialAdministrative Fault-based SystemsNo-Fault SystemsEnterprise Liability

Advantages of First Generation Reforms

AdvantagesCurbed Malpractice ClaimsReduced Costs for Medical Providers and InsurersPaid Claims in States with Caps Averaged 40% lower than in Non-Cap States

Disadvantages of First Generation Reforms

DisadvantagesDiscouraged Attorneys from Accepting Smaller ClaimsDo not adequately compensate persons with significant injuries for medical costs and financial lossesReduce Deterrence of MalpracticeReduce 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 awardsPatient compensation fund which pays awards or settlements in excess of $100,000 up to the capMandated medical review before a claim above $15,000 can proceed to trialA 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 RulesPeriodic 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?