OVERVIEW U.S. Medical Malpractice

1. OVERVIEWU.S. Medical Malpractice Janice F. Mulligan , Esq. MULLIGAN & BANHAM Harvey C. Berger, Esq. POPE,BERGER & WILLIAMS

2. But First….Who Are We?

4. The Pets

5. How to communicate Available before, After class Email: jfmulliganesq @gmail.com

6. Where do we live?

7. Where We Live : San Diego, California, USA

9. San Diego, California Population of 1,359,132 (Jan 2010) Land area of 372.1 square miles (963.7 km )

10. Where I went to School University of San Diego . 7000 students includes undergraduate college , a law school

12. What to we do?

13. Why are we here?

14. Our job: • SPEAK ENGLISH YOU CAN UNDERSTAND • GIVE YOU BASIC OVERVIEW U.S. MEDICAL MALPRACTICE • WE ARE AVAILABLE AFTER CLASS FOR QUESTIONS ABOUT LAW, AMERICAN LIFE ….

15. Your job: • ASK & ANSWER QUESTIONS • LET US KNOW IF YOU DON’T UNDERSTAND US , PLEASE • RAISE YOUR HAND SPEAK UP

16. What is “Malpractice?” … a difference of ideas as to what it means

17. What is your personal view of medical malpractice?

18. Doctors’ View :

19. Lawyer’s View: A malpractice suit is usually about a health care provider running aprofessional red light.

20. An Avoidable Accident • As with running a red light • There is liability for professionalnegligence if it causes unintended, yet horrific results

21. Standard of Care:Success NOT Required “A physician is not negligent just because their efforts are unsuccessful or an error is made that was reasonable under the circumstances.

22. What is “professional negligence”?

23. To Prove Medical Malpractice or Professional Negligence…. Another Physician Must Testify : Defendant Doctor Failed to Exercise the Level of Skill, Knowledge or Care That Other Reasonably Careful Medical Practitioners Would Have Under Similar Circumstances And….

24. The Doctor’s Negligence Must be a “Substantial Factor “In Causing the Patient’s Injury

25. Hospitals Are Negligent if They Fail Any One of the Following Duties: • A duty to provide procedures, policies, facilities, supplies, and qualified personnel reasonably necessary for treatment of its patients. • A duty to use reasonable care to select and periodically evaluate its medical staff so that its patients are provided adequate medical care. • A duty to reasonably know a patient would likely harm himself/ herself/another, then hospital has to use reasonable care to prevent such harm.

26. How Widespread is U.S. Malpractice?

27. The Big Picture…A Look at the Gold Standard of Medical LiteratureRegarding Medical Negligence and Adverse Events

28. The Harvard Medical Practice Study The Harvard Medical Practice Study (HMPS)established the standard by which adverse events aremeasured and laid the groundwork for policy discussions on patientsafety . • Brennan TA, Leape LL, Laird NM, et al. Incidence of Adverse Events and Negligence in Hospitalized Patients: Results of the Harvard Medical Practice Study, N Engl J Med 1991;324:370–7

29. The Harvard Study considered the medical histories of over 30,000 randomly selected New York City patients who had had "adverse events" during the course of their treatment. “Adverse events” were defined as injuries caused by medical management, and a subgroup of these injuries that resulted from “negligent or substandard care.”

30. The Harvard Study found : • Adverse events occurred in 3.7 percent of the hospitalizations(95 percent confidence interval, 3.2 to 4.2), . • 27.6 percent of the adverse events were due to negligence /substandard care.(95 percent confidence interval, 22.5 to 32.6).

31. 13.6 of the adverse events lead to death and 2.6% caused permanently disabling injuries. The percentage of adverse events attributable to negligence increased with the severity of the injuries.

32. The Harvard Study Further Concluded: • The vast majority of people injured as a result of substandard care do not file a claim. • A substantial majority of malpractice claims filed are not based on provider carelessness or even iatrogenic injury.

33. Despite the considerable weight of its findings, the full impactof the HMPS was not felt until the release of the Instituteof Medicine (IOM) report, To Err is Human,* in late 1999. * To Err is Human,Building a Safer Health SystemInstitute of Medicine, National Academy Press, (1999) www.nap.edu./books/0309068371/html

34. To Err is Human Concluded: • Preventable adverse events are a leading cause of death in the United States. • As many as 98,000 Americans die in hospitals each year as a result of medical errors.

35. Deaths due to medical malpractice exceed annualdeaths from : • Motor vehicle accidents (43,458), • Breast cancer (42,297) or • Aids (16,516). • To Err is Human,Building a Safer Health System Institute of Medicine, National Academy Press, (1999)

36. The report concluded that “health care is a decade or more behind other high-risk industries in its attention to ensuring basic safety.” • This report finally brought the federal government and private industry together to create systems that make it harder to make an error.

37. Over twenty years have passed since the Harvard Study. How Has U.S.PatientSafety/ Medical Malpractice Changed Since then ?

38. Updating the Harvard and IOM Studies: • Tom Baker, Professor of Law and Director of the Insurance Law Center at the University of Connecticut, recently released a book, The Medical Malpractice Myth.

39. According to Prof.Baker,studies conclude that: “most malpractice claims are reasonably related to medical management injuries and provider negligence.”

40. Based on additional research including a review of claims filed, Prof.Baker confirmed : • Less than 4 percent of patients who suffer from negligence file a claim. • This conclusion is well supported and confirmed by other studies using both similar and very different research methods.

41. But, has Patient Safety Improved?

42. The report card on health care is mixed: • In 2006, another Institute of Medicine study disclosed that medication errors harm at least 1.5 million people and cost some $3.5 billion per year. Preventing Medication Errors,http://fermat.nap.edu/openbook.php?record_id=11623&page=95

43. The greatest success in patient safety programs has been with anesthesiologists. • An organized effort to improve anesthesia for patients has succeeded in decreasing the risk of death from anesthesia from 1 in 5,000 to 1 in 250,000. • As a consequence, the malpractice insurance rates for anesthesiologists, once the highest in medicine, is now among the lowest. Cheney FW: The American Society of Anesthesiologists closed claims project. What have we learned, how has it affected practice, and how will it affect practice in the future? Anesthesiology;1999.91:552-6.

44. Could it be… • That what is best for the patients is actually best for the doctors too? • By working to improve patient safety, we can also reduce malpractice insurance premiums and health care costs.

45. What Kind of Mistakes are Commonly Made? Deconstructing Negligence: The Role of Individual and System Factors in Causing Medical Injuries, MICHELLE M. MELLO & DAVID M. STUDDERT, (2008)Vol. 96:599-629

49. Statistics @15,000-19,000 medical malpractice suits year in U.S.

50. Why Do Patients Sue?