Medical Malpractice

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

2. 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

3. MEDICAL MALPRACTICEClaims/100 MDs • 1981 3.2 • 1985 10.1 • 1988 12.6 • 1994 14.1

4. SPECIALTIES 1991Claims/100 MDs • Family Practitioners 5.7 • Internists 5.5 • Pediatricians 6.4 • OBGYN 11.6 • Surgeons 14.0

5. MEDICAL MALPRACTICE CLAIMS • Improper Performance • Improper Treatment • Failure to Diagnose Cancer • Improper Choice of Treatment • Improper Management of Delivery

6. 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 patientsreceive any form of compensation

7. 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)

8. Average Award Amounts (in $1000)

9. Tort Liability Lawsuits Resulting in a Jury Verdict

10. Tort Cost Increases1990-1995

11. Malpractice Insurance PremiumsOB-GYNs 1989

12. PERSPECTIVES • Physicians judge medical outcomes in terms of accepted medical practice • Patients judge medical outcomes in terms of how their lives are changed

13. CONSEQUENCES • Higher costs • Mistrust between doctors and patients • Changes in practice patterns (defensive medicine) • Changes in profession

14. 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." 

15. 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.

17. First Generation Reforms • Curtail Claim Severity • Damage Caps • Punitive Damage Limits • Collateral Source Offsets • Periodic Payment of Damages

18. First Generation Reforms • Curtail Claim Frequency • Alternative Dispute Resolution (ADR) • Statutes of Limitations • Attorney Fee Control • Certificate of Merit

19. First Generation Reforms • Insurance Reform • Patient Compensation Funds • Limits on Insurance Cancellation

20. 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

21. 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

22. 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

23. 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).

24. 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.

25. 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).

26. 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

27. 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

30. 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 injurySource: WhiteHouse.gov

31. 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.

32. 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?

33. 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?