Medical malpractice

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Medical malpractice is the "failure of a professional person, a physician or lawyer, to render proper services through reprehensible ignorance or negligence or through criminal intent, especially when injury or loss follows".^[1]

Medical care in federal versus private sector[edit]

Malpractice occurring in the United States Veterans Health Administration is regulated by the Federal Tort Claims Act (28 U.S.C. SS 2671-2680).^[2]

Epidemiology[edit]

Medical malpractice is common^[3] and can occur in the inpatient setting, outpatient setting^[4], and with telephone medicine.^[5] Among inpatients, surgery is the most common cause while among outpatients, diagnostic error is the most common cause.^[6]

In the United States, the number of cases is dropping.^[6]

Relationship to medical error[edit]

For more information, see: medical error.

According to the Harvard Medical Practice Study, "medical-malpractice litigation infrequently compensates patients injured by medical negligence and rarely identifies, and holds providers accountable for, substandard care."^[7] In one study, one third of claims did not involve medical error.^[8]

Relationship to physician communication style[edit]

Among non-surgeons, physicians are more likely to have claims of malpractice is:^[9]

• "used more statements of orientation (educating patients about what to expect and the flow of a visit)"
• "laughed and used humor more"
• "tended to use more facilitation (soliciting patients' opinions, checking understanding, and encouraging patients to talk)"
• "spent more time with their patients (mean, 18.3 vs 15.0 minutes)"

Expert testimony and standard of care[edit]

In the United States of America, most states now try to determine what is the best medical practice. Originally, efforts focused on assessing the quality of the expert who interprets evidence for the court rather than the quality of the evidence itself. The Frye test helped determine who was expert. More recently, the Daubert standard is used to assess the quality of evidence.^[10][11] Occasionally, courts have used "Daubert panels" to assess evidence in large tort claims.^[12]

Some states also use a locality rule, or local standards of care despite ethical problems with this standard.^[13] The locality rule "may inhibit the incorporation of scientific progress into practice standards."^[13] A well-publicized malpractice case of screening for prostate cancer was determined in this way.^[14] This specific case has been associated with an increase in screening for prostate cancer.^[15]

Decision analysis has been proposed to improve the reliability of expert testimony.^[16]

States vary in their implementation of apology laws.^[17] Some states have laws that protect voluntary expressions of "sympathy, regret, and condolence" whereas other states protect "admissions of fault as well as expressions of sympathy."^[17]

Problems[edit]

One study found that "For every dollar spent on compensation, 54 cents went to administrative expenses (including those involving lawyers, experts, and courts)."^[8]

The relationship between quality of care and rate of malpractice claims is not strong.^[18]

Malpractice reform[edit]

Malpractice reform is proposed to:

• decrease health care costs via reduction in defensive medicine^[19]
• increase physician supply^[20]

Various reforms have been proposed including:^[19]

• caps on noneconomic damage awards
• disclosure and offer programs^[21]
• administrative or specialized tribunals
• safe harbors for adherence to evidence-based practices
• enterprise liability^{[22][23][24][25]}

The Institute of Medicine has encouraged the use of demonstration projects to test specific ideas for reform.^[26]

Enterprise liability[edit]

The Clinton reforms of 1993 included a proposal for demonstration projects of enterprise liability.^[27][28] The American College of Physicians has suggested demonstration projects test the feasibility of enterprise liability.^[29][30] Enterprise liability that shifts liability to health care providers such as hospitals maybe preferable to shifting to health care payers such as insurance companies.^[31]

Disclosure and offer[edit]

One type of reform is disclosure and offer compensation.^[19][21]

This can be designed with or without admission of fault and with or without relinquishing the right to sue.

Safe harbors for adherence to evidence-based practices[edit]

One type of reform is to provide safe harbors for adherence to evidence-based practices.^[19]

Tribunals[edit]

One type of reform is the use of tribunals rather than courts to determine liability.^[19]

References[edit]