Medical Malpractice

1
Medical Malpractice

• Sheldon F. Kurtz
• University of Iowa
• Percy Bordwell Professor of Law
• Professor of Medicine (Department of Surgery)

2
The Nature and Extent of Medical Error

• How rampant is medical error?
• 3-jumbo jet crashes a day
• Is there too much medical litigation?
• Does the data suggest reasons for physicians to
  be frustrated over malpractice litigation?

3
The Nature and Extent of Medical Error

• How rampant is medical error?
• 3-jumbo jet crashes a day
• Does the data make your nervous about your
  doctor?
• Is there too much medical litigation?
• Does the data suggest reasons for physicians to
  be frustrated over malpractice litigation?

4
The Nature and Extent of Medical Error

• How rampant is medical error?
• 3-jumbo jet crashes a day
• Does the data make your nervous about your
  doctor?
• Is there too much medical litigation?
• Does the data suggest reasons for physicians to
  be frustrated over malpractice litigation?

5
Extent of Suits

• 28 for diagnostic errors
• 27 for surgical errors
• 26 for improper medical treatment

6
Who Gets Sued Most

• Surgeons
• Anesthesiologists
• Obstetricians
• Emergency Medical Docs

7
Saks Study

• A negligent doctor who causes injury has a 3 out
  of 100 chance of being sued
• A non-negligent doctor has a probability of being
  sued for a non-negligent injury of 13 out of
  10,000.
• Thus, for every malpractice claim in response to
  a negligent injury there are 15-30 malpractice
  victims who bring no suit but there are 4-5
  claims brought by non-negligently injured
  patients.

8
How the Law Effects Quality of Care

• Medical malpractice
• Licensure
• Certification

9
Medical Malpractice Defined

• Medical malpractice occurs when a physician fails
  to act as a reasonable physician would have acted
  under the circumstances

10
The Liability Formula

• Duty (Did a physician-patient relationship exist)
  
• Breach of duty (Did the physician fail to meet
  the required standard of care)
• Causation (Did the physicians breach cause the
  patients injury)
• Damages (Did the patient incur medical expenses,
  pain, suffering, lost wages as a result of the
  breach)
• LIABILITY

11
Proof of Malpractice-Experts

• Generally, expert witnesses required
• Battle of experts
• Local vs. National standard
• Locality rule
• Historic
• Unfair to patients if conspiracy of silence
• Fails to recognition nationalization of
  medicine
• National
• Literature
• Professional organizations
• Local standard (same locality or community of
  similar nature) still applicable for GPs,
  residents

12
Proof of Malpractice-Experts

• Generally, expert witnesses required
• Battle of experts
• Local vs. National standard
• Locality rule
• Historic
• Unfair to patients if conspiracy of silence
• Fails to recognition nationalization of
  medicine
• National
• Literature
• Professional organizations
• Local standard (same locality or community of
  similar nature) still applicable for GPs,
  residents

13
Proof of Malpractice-Experts

• Generally, expert witnesses required
• Battle of experts
• Local vs. National standard
• Locality rule
• Historic
• Unfair to patients if conspiracy of silence
• Fails to recognition nationalization of
  medicine
• National
• Literature
• Professional organizations
• Local standard (same locality or community of
  similar nature) still applicable for GPs,
  residents

14
Proof of Malpractice-No Experts

• Common knowledge exception
• Res ipsa loquitur

15
Malpractice Defenses

• Conformed to the standard of care
• Alternative methods of treatment
• Clinical innovation
• Contributory Fault
• Assumption of the risk
• Waiver

16
Malpractice Defenses

• Conformed to the standard of care
• Alternative methods of treatment
• Clinical innovation
• Contributory Fault
• Assumption of the risk
• Waiver

17
Malpractice Defenses

• Conformed to the standard of care
• Alternative methods of treatment
• Clinical innovation
• Contributory Fault
• Assumption of the risk
• Waiver

18
Liability for acts of Others

• Vicarious liability
• Captain of the Ship Doctrine
• Particularly for surgeons
• Borrowed servant doctrine
• Referring physicians
• Covering docs
• Physician assistants

19
Liability for acts of Others

• Vicarious liability
• Captain of the Ship Doctrine
• Particularly for surgeons
• Borrowed servant doctrine
• Referring physicians
• Covering docs
• Physician assistants

20
Liability for acts of Others

• Vicarious liability
• Captain of the Ship Doctrine
• Particularly for surgeons
• Borrowed servant doctrine
• Referring physicians
• Covering docs
• Physician assistants

21
Hospital Liability for Acts of Doctors

• Employee Doctors
• Sovereign and Charitable immunity
• Medical Staff Doctors (non-employees)
• Ostensible agency
• Typically emergency room doctors
• Implied agency (HMOs watch out)
• Control test
• Negligence in granting privileges
• Oversight
• Inherent or essential functions doctrine
• Emergency room pathology anesthesia

22
Statute of Limitations

• Date of occurrence
• Date of discovery
• Continuous treatment doctrine

23
Statute of Limitations

• Date of occurrence
• Date of discovery
• Continuous treatment doctrine

24
Information about Malpractice

• Boards of Medical Examiners
• National Practitioner Data Bank
• Operational Oversight
• Who reports
• Who has access
• Who does not have access

25
Information about Malpractice

• Boards of Medical Examiners
• National Practitioner Data Bank
• Operational Oversight
• Who reports
• Who has access
• Who does not have access