AN INTRODUCTION TO MEDICAL MALPRACTICE - by Joseph J. Brophy

WHAT IS MEDICAL MALPRACTICE ?

Medical malpractice is a catch-all term for negligence, that is, lack of care, in the course of rendering health services.

WHO MAY BE LIABLE FOR MEDICAL MALPRACTICE?

Although most malpractice claims arise from services rendered by physicians, any health service provider may be held liable for injuries to patients, and in rare cases, injuries to non-patients. Hospitals are generally not responsible if a private physician should harm a patient being treated in the hospital. Hospitals may be may be held liable to injured patients if their employed doctors or other staff are negligent, if the hospital permits unqualified doctors to practice in the hospital, or if the hospital provides doctors for the patients, even if the doctors are not employees.

WHAT IS THE LEGAL DEFINITION OF MEDICAL MALPRACTICE?

Medical malpractice is defined as a departure from accepted standards of care, causing an injury to a person to whom the health care provider owes a duty of care. The health service provider obviously owes a duty of care to the patient, but also owes a duty to a person in contact with the patient who is at risk to be harmed, for example an unborn child, or a person who may contract an illness if the health care provider does not take proper precautions.

WHAT IS INFORMED CONSENT?

Every health service provider who recommends a course of treatment to a patient has a legal obligation to explain the reasons for the recommendation, including the expected benefits, the reasonably foreseeable risks, and the risks and benefits of generally recognized alternative courses of treatment. If the patient is not so informed and should sustain an injury from the procedure, the health service provider can be liable. Most, but not all, physicians and hospitals, have patients sign consent forms for procedures, to prove that the patient has been properly informed. But, the form is not the consent, it is only some proof that the patient was in fact informed. It is so difficult to prove that a patient was not properly informed, that lawsuits alleging lack of informed consent are rarely filed, and very rarely are successful.

HOW COMMON IS MEDICAL MALPRACTICE?

A Harvard University study evaluated thousands of medical records from New York State hospitals and concluded that in 1984 in New York State, alone, there were more than 27,000 negligent "adverse events" including nearly 7,000 deaths and 900 cases of permanent disability. These cases only involved hospital treatment. Cases involving office treatment were not studied. More recent published studies suggest that many more people die each year as a result of medical malpractice than from auto accidents or violent crime.

HOW COMMON ARE MEDICAL MALPRACTICE LAWSUITS?

Only a small fraction of "adverse events" ever result in court cases being filed. There are about 8000 medical malpractice filings in the New York State Supreme Court each year, about 2% of all filings. Studies that have randomly examined medical records to look for malpractice incidents have found that less than one person in seven injured as a result of malpractice ever files a lawsuit. Of the lawsuits that are filed, the majority do not result in any payment to the plaintiff. Most cases in which plaintiffs receive payment are settled; the large majority of cases that are tried to a conclusion result in verdicts in favor of the health service providers.

IS THERE A MEDICAL MALPRACTICE CRISIS?

There may be a crisis of poor medical care, but medical malpractice filings have not increased faster than the growth of the population. The medical and insurance industries have claimed that medical malpractice claims drive up the cost of medical care. The fact is that medical malpractice insurance costs amount to less than one percent of the nation's health care budget. This is a small fraction of the costs of administering health insurance plans, which amount to close to 30% of the money spent on health care in the United States. Individual doctors in certain specialties that are sued the most and have the highest payouts for claims, such as obstetrics, orthopedics, and neurosurgery, pay very high premiums for malpractice insurance. At the same time, payments to doctors and hospitals by health insurance companies often fail to cover the health service providers’ costs. Highly compensated doctors who perform expensive operations can absorb the cost of malpractice insurance. Primary care doctors such as internists and pediatricians often experience financial hardship, and medical malpractice premiums certainly contribute to their problems. Some doctors have claimed to be forced out of practice by malpractice premiums, but this expense is only one component of a trend toward higher expenses and lower income for most health service providers. Those who profit the most from high health care costs are private health insurance companies, for-profit hospital and health maintenance companies, the drug and medical equipment industries.

WHAT IS DEFENSIVE MEDICINE?

Defensive medicine is the practice of ordering unnecessary tests in order to avoid being found at fault later if the patient does not do well. Defensive medicine is frequently blamed for inflating health care costs. Undoubtedly some doctors order tests just to be on the safe side, but it is essentially impossible to prove how frequently doctors order tests to protect themselves from liability.

SOME EXAMPLES OF MALPRACTICE CLAIMS

Medicine is such a complicated field that it is impossible to list all of the possible types of malpractice claims. By way of example, some types of malpractice claims include:

Birth injuries account for some of the largest awards, and are among the most difficult types of claims to prove:

· Cerebral palsy includes a variety of disabling brain disorders. It may be associated with prematurity, genetic disorders, infections during pregnancy, lack of oxygen to the brain during fetal life during difficult deliveries, and in rare instances, illnesses such as severe dehydration in infancy. Lawsuits alleging that brain damage to infants was caused by medical negligence are very difficult to prove because brain damage can have many possible causes.

· Erb’s palsy is an injury to the nerves that exit the brachial plexus in the neck, causing a paralyzed arm. It was proven over a century ago that these injuries may be caused by pulling on the baby’s head during delivery, but recent research has suggested that there may be other causes in some cases.

Delayed diagnosis of cancer, or failure to diagnose cancer can have terrible consequences:

· Given public concern about breast cancer, it is surprising that failure to diagnose breast cancer is the single most common allegation leading to medical malpractice claims. Doctors may fail to order biopsy of a breast lump. Radiologists may fail to see or report an abnormality on a mammogram. Sometimes a report of an abnormal mammogram may be ignored by the doctor who receives it.

· Coughing blood is a warning sign of possible lung cancer, and almost always requires an immediate chest x-ray. Chest x-rays may be misinterpreted, or follow up studies such as a CT scan may not be done. Some people assume that because most cases of lung cancer are caused by smoking, that smokers cannot win cases for misdiagnosis of lung cancer. This is simply not true. The fact that a patient is a smoker is all the more reason why doctors should be concerned about possible lung cancer.

· Colon cancer is one of the most curable forms of cancer, if it is found early enough. Colonoscopy can find colon cancer in its early stages and sometimes can cure it without surgery. Failure to perform a colonoscopy, or failing to perform a thorough colonoscopy can result in colon cancer going undiagnosed and untreated.

· Skin cancer is increasingly common. Malignant melanoma is a dangerous type of skin cancer that must be treated aggressively, and can be cured if it is caught early. Any suspicious mole or skin growth should be biopsied. Sometimes the biopsy is misread, or the biopsy report is ignored.

Emergency rooms are busy places, and account for many malpractice claims. Emergency room doctors may be inadequately trained, or may fail to appreciate the seriousness of their patients’ problems. As a result, claims against emergency rooms may arise from:

· Failure to recognize serious illnesses such as heart attacks, strokes, aneurysms or meningitis.

· Improper treatment of heart attacks or strokes, resulting in death or serious disability.

· Failure to diagnose and properly treat injuries. In extreme cases, injured patients may be sent home and later die or become paralyzed due to brain injuries or spinal cord injuries.

Errors in prescribing drugs or dispensing prescriptions are very common and sometimes have very serious consequences:

· Patients are often given drugs to which they are allergic.

· Patients may be given the right drugs in the wrong dosages.

· Drug interactions are always a danger, especially if the doctor fails to learn all the drugs the patient is taking before prescribing a new one.

· Drugs have side effects. Doctors must be aware of side effects, and warn their patients about them. Sometimes they fail to warn about serious side effects, or ignore patients’ complaints of side effects until serious injury results.

· Sometimes patients are given others’ prescriptions.

Surgery has become so commonplace that many people are unaware of the dangers until complications strike. Sometimes bad results are unavoidable. But, malpractice on the part of surgeons, anesthesiologists, and even nurses may cause serious injuries or death. Some dangers of surgery and the postoperative period occur in:

· Anesthesia or sedation, even when given for “minor” procedures, requires careful attention to drug dosages, and careful monitoring.

· Bariatric surgery, intended to promote weight loss, has become increasingly common in recent years. It may involved re-routing parts of the digestive system, of reducing the size of the stomach by banding or stapling. Bariatric surgery may result in serious injuries, infections, and other complications.

· Laparoscopic or minimally invasive surgery is a great advance, especially for gallbladder surgery, but can lead to grave injury or death if proper precautions are disregarded, or complications are not recognized and dealt with promptly.

· Complications in the post-operative period, particularly breathing problems, may go unattended by overworked nurses.

MEDICAL MALPRACTICE “REFORM” LEGISLATION

Most efforts to control medical malpractice have been directed toward controlling lawsuits, not reducing the frequency of medical malpractice. Many state legislatures have attempted to control the cost of medical malpractice insurance. Common “reforms” include reducing the recoveries injured persons can receive, setting up pre-suit screening procedures, and reducing the fees attorneys may charge for such cases. Such legislation has also been introduced into Congress on numerous occasions, but no national medical malpractice “reform” legislation has yet been enacted, or seems likely to be enacted any time soon.

Limitations on recoveries, or “caps,” typically limit recoveries for pain and suffering. Some states put absolute limits on all recoveries in medical malpractice cases, regardless of the severity of the injuries. New York has never limited recoveries to injured parties, but has enacted legislation to require successful plaintiffs to be paid a portion of their compensation over time, which often reduces the cost to the insurance companies.

Screening or arbitration panels for lawsuits have been tried in many states. New York had a procedure for many years in which a panel consisting of a doctor, a lawyer, and a judge would review each case before trial and make recommendations whether the case had merit. The theory was that the panels’ recommendations would encourage good cases to be settled, and weak cases to be dropped . That system failed miserably and was abandoned after about twelve years. Other states still have such systems in place.

Many states, including New York, have limited attorneys’ fees in medical malpractice cases. Lawyers generally undertake these cases on a contingency basis, advance the expenses, and are paid a percentage of what they recover. In regular accident cases, attorneys typically charge up to 1/3 of what they recover. In medical malpractice cases in New York, they are allowed to charge a much lower percentage. Lower fees serve to discourage lawyers from accepting cases that appear hard to prove, or expensive to handle. In the first two years after the fee limitations were enacted, medical malpractice filings in New York dropped substantially.

WHAT CAN BE DONE TO MAKE HEALTH CARE SAFER?

Efforts of the health care professions to reduce injuries to patients have included tougher investigations of health service providers suspected of providing low quality care. Most doctors are not sued more than once in their career, and many not at all, even in the so-called high-risk specialties. It is a fact that a small proportion of doctors account for a large proportion of malpractice claims. In theory, if such doctors could be identified and supervised more closely, or even removed from practice, the frequency of injuries to patients would decrease. Efforts of individual states to police doctors have been generally unsuccessful due to budgetary problems and resistance on the part of the doctors. New York’s Department of Health has been more aggressive than most states in investigating and disciplining doctors, but the system is still overwhelmed and slow.

In the past, doctors disciplined in one state, have been able to practice in another state, or even another country, and no one the wiser. A particularly horrible recent example was a doctor in Australia known as “Dr. Death,”, who had lost his license in the U.S. Nobody in Australia bothered to check his references until many of his patients were injured or died. Now, there is a federal database to which medical malpractice payments and physician disciplinary actions must be reported. Hospitals and agencies can use this database to identify doctors who have been disciplined, or who have had unusual numbers of claims against them. However, the Federal database is not available to the public. New York is one state that reports some information on malpractice and physician discipline to the public on the State’s website. This can aid consumers in deciding which doctors they want to use, although most patients are probably unaware that such information is available.

Technology has been promoted as a way to reduce injuries to patients. It has been suggested that computerization of medical records makes health care safer by making information more easily available to health care providers, and avoiding confusion that may arise from badly written orders and prescriptions. Some medical devices have undoubtedly made health care safer. For example, after the introduction of the pulse oximeter, a device to detect the concentration of oxygen in the blood, the death rate in anesthesia plummeted, along with anesthesiologists’ insurance premiums. But patients still die every year as a result of anesthesiologists’ carelessness; monitors only safeguard patients if the health care providers pay careful attention to the information that is available to them. Also, almost every advance in medicine represents something new for doctors to learn, and new risks to patients. Drug and medical equipment makers are under pressure to make profits on new equipment. Pressure from consumers for the latest new “cure” may also encourage companies to release new medicines and new technologies before they are fully tested to determine their risks. An early example of a drug that was released with inadequate testing was thalidomide, which caused thousands of babies to be born with severe deformities. Most of those babies were born in Europe, where there was no medical malpractice system, and few received any compensation. More recent examples of dangerous drugs and medical devices are easy to find. In the past few months, studies published that suggest that drug-coated stents, which are used to keep open arteries that supply the heart with blood, may actually cause more heart attacks than they prevent.

CONCLUSION

It is inevitable that a field as complex as health care should lead to complex legal and public policy questions. The law of medical malpractice is only a small piece of the health care puzzle. For all the problems of this system, patients have nowhere else to turn for compensation when they are injured due to medical treatment. The relative weakness of government oversight of health services also means that, whatever its faults, the medical malpractice system is the most effective existing mechanism to promote safe delivery of health care services.