Medical Error and Medical Error and Malpractice LiabilityMalpractice Liability

Clayton L. Thomason, J.D., M.Div.Clayton L. Thomason, J.D., M.Div.

Asst. Professor, Dept. of Family Practice & Center for EthicsAsst. Professor, Dept. of Family Practice & Center for Ethics

College of Human MedicineCollege of Human Medicine

Adjunct Professor, MSU-DCL College of LawAdjunct Professor, MSU-DCL College of Law

Michigan State UniversityMichigan State University

thomaso5@msu.eduthomaso5@msu.edu

http://www.msu.edu/~thomaso5http://www.msu.edu/~thomaso5

Tort LawTort Law

Tort = a civil wrongTort = a civil wrong Sometimes also considered crimes (intent)Sometimes also considered crimes (intent) Governed by state law, common law doctrinesGoverned by state law, common law doctrines

Designed to prevent harm or compensate Designed to prevent harm or compensate for harm to a personfor harm to a person

Primary aim = to provide relief through Primary aim = to provide relief through compensation to injured parties for the compensation to injured parties for the damages incurreddamages incurred

Medical MalpracticeMedical Malpractice

Professional liability for personal injuryProfessional liability for personal injury When physician agrees to diagnose & treat a When physician agrees to diagnose & treat a

patient, assumes a duty of care toward that patient, assumes a duty of care toward that patientpatient

Medical Negligence: failure to meet that duty of Medical Negligence: failure to meet that duty of carecare To provide the standard of care To provide the standard of care

May include criminal negligence, malicious May include criminal negligence, malicious intent, or strict liabilityintent, or strict liability

May also be subject to May also be subject to disciplinary sanctionsdisciplinary sanctions By State Medical BoardsBy State Medical Boards

Elements of a Cause of Action Elements of a Cause of Action in Negligence (Malpractice)in Negligence (Malpractice)

1.1. Duty of CareDuty of Care

2.2. Negligent Breach of DutyNegligent Breach of Duty

3.3. CausationCausation

4.4. DamagesDamages

1. Standard of Care1. Standard of Care

What is the applicable standard of care in medical What is the applicable standard of care in medical malpractice cases?malpractice cases?

Professionals are held to a standard of care, Professionals are held to a standard of care, judged by:judged by: Professional Standard: a reasonable & prudent Professional Standard: a reasonable & prudent

physician of ordinary skill (majority of states)physician of ordinary skill (majority of states) MI: “minimum acceptable standard of care”MI: “minimum acceptable standard of care”

Reasonable Patient Standard: what a reasonable Reasonable Patient Standard: what a reasonable patient in similar situation would expectpatient in similar situation would expect

Individual Patient Standard: what Individual Patient Standard: what thisthis patient expects patient expects Usually determined by court using expert Usually determined by court using expert

testimonytestimony

2. Breach of Duty2. Breach of Duty

Was there a breach of this standard of care?Was there a breach of this standard of care? Negligent breach of the standard of careNegligent breach of the standard of care Negligence can occur at different stages:Negligence can occur at different stages:

MisdiagnosisMisdiagnosis Failure to properly treatFailure to properly treat Administering wrong medicationAdministering wrong medication Failure of informed consentFailure of informed consent

Failure to inform patient about risks, alternative treatments, Failure to inform patient about risks, alternative treatments, e.g.e.g.

Negligence is usually established by expert witnessesNegligence is usually established by expert witnesses

3. Causation3. Causation

Once it has been shown that a physician Once it has been shown that a physician (hospital, other professional) has been negligent(hospital, other professional) has been negligent

Plaintiff must prove that this negligence Plaintiff must prove that this negligence causedcaused (or worsened) the harm/injury(or worsened) the harm/injury

The negligent act must be directly responsible The negligent act must be directly responsible for the harm (proximate cause) for the harm (proximate cause) or at least have contributed to it (cause-in-fact)or at least have contributed to it (cause-in-fact)

4. Damages4. Damages If plaintiff establishes negligence & liability, they are If plaintiff establishes negligence & liability, they are

entitled to damages (financial compensation) for:entitled to damages (financial compensation) for: Compensatory damages: Past/future medical bills, lost wagesCompensatory damages: Past/future medical bills, lost wages Non-economic Damages: Pain & SufferingNon-economic Damages: Pain & Suffering

Capped (1994) in MI: $280,000Capped (1994) in MI: $280,000 Except for paralysis, cognitive impairment or loss of reproductive Except for paralysis, cognitive impairment or loss of reproductive

capacities = $500,000capacities = $500,000 Attorney FeesAttorney Fees

MI: In personal injury & wrongful death cases = limited to 1/3 of MI: In personal injury & wrongful death cases = limited to 1/3 of award to plaintiffaward to plaintiff

Damages reduced byDamages reduced by Contributory negligence (of plaintiff)Contributory negligence (of plaintiff) Joint and Several liability (of other parties)Joint and Several liability (of other parties)

Assessing Risks . . .Assessing Risks . . .

Not all patients sue over adverse outcomes Not all patients sue over adverse outcomes (approx 1 in 8)(approx 1 in 8) NEJM 1991 324;370NEJM 1991 324;370 Not all who can sue want to sueNot all who can sue want to sue Reduced by how physicians communicate with Reduced by how physicians communicate with

patientspatients Trial attorneys are highly selective in which Trial attorneys are highly selective in which

cases they acceptcases they accept Disincentives lead plaintiffs attorneys to reject 7 of 8 Disincentives lead plaintiffs attorneys to reject 7 of 8

potential malpractice cases (Bovjerg RR, Law & potential malpractice cases (Bovjerg RR, Law & Contemp Probs 1991;54:5)Contemp Probs 1991;54:5)

. . . Assessing Risks. . . Assessing Risks

Chance of successChance of success Approx 10 claims/100 physicians (1995)Approx 10 claims/100 physicians (1995)

But based on multiple claims for a few physiciansBut based on multiple claims for a few physicians 85% of payments were for 3-6% of physicians charged in one 85% of payments were for 3-6% of physicians charged in one

FL studyFL study Plaintiffs receive some monetary award in approx. Plaintiffs receive some monetary award in approx.

50% of cases50% of cases Varies by region, specific merit of cases, defensibility of Varies by region, specific merit of cases, defensibility of

claim.claim.

Settlement = more frequent than jury trialSettlement = more frequent than jury trial Frequently $5-10K (nuisance suits), but inflated by a Frequently $5-10K (nuisance suits), but inflated by a

few big awards (44% below $30K in Physician’s Data few big awards (44% below $30K in Physician’s Data Bank in 1998)Bank in 1998)

Mistake or Negligence?Mistake or Negligence?

Medical Error = “preventable adverse Medical Error = “preventable adverse medical events”medical events” Errors of omission or commissionErrors of omission or commission Honest Mistakes Honest Mistakes

Negligent Actions = preventable, harmful Negligent Actions = preventable, harmful actions that fall below the standard of careactions that fall below the standard of care

Hebert PC, Levin AV, Robertson G. Bioethics for clinicians: 23. Disclosure of medical error. CMAJ 2001:164(4);509.

Tort Reforms . . .Tort Reforms . . .

State Reforms (go-slow approach)State Reforms (go-slow approach) ArbitrationArbitration

MI: Before malpractice cases can go to trial, subjected to MI: Before malpractice cases can go to trial, subjected to mandatory mediation panel.mandatory mediation panel.

Evaluation of plaintiff/defendant’s casesEvaluation of plaintiff/defendant’s cases Either party can object and proceed to trialEither party can object and proceed to trial Party who rejects findings and loses at trial is required to pay Party who rejects findings and loses at trial is required to pay

other party’s court costsother party’s court costs Parties can agree to Binding Arbitration for claims < $75,000Parties can agree to Binding Arbitration for claims < $75,000

Caps on damages (45 states)Caps on damages (45 states) MI: $280K for non-economic damagesMI: $280K for non-economic damages

Imposing procedural barriers to discourage suitsImposing procedural barriers to discourage suits CA: MICRA (1975)CA: MICRA (1975)

. . . Tort Reforms. . . Tort Reforms

Federal Proposals: federalize tort reform through Federal Proposals: federalize tort reform through national standards (H.R. 5 (2003) HEALTH Act)national standards (H.R. 5 (2003) HEALTH Act) Limit frequency of litigationLimit frequency of litigation Limit size of non-economic damagesLimit size of non-economic damages But does not address long-term health care quality But does not address long-term health care quality

improvement in malpractice reform contextimprovement in malpractice reform context Because limited short-term effect on insurance ratesBecause limited short-term effect on insurance rates

No-Fault ApproachNo-Fault Approach Eliminate need to [prove negligenceEliminate need to [prove negligence As in Worker’s Compensation, auto insurance, e.g.As in Worker’s Compensation, auto insurance, e.g. ““Enterprise Rating” systems, such as Sweden, e.g.Enterprise Rating” systems, such as Sweden, e.g.

Defensive MedicineDefensive Medicine

AMA (1985):AMA (1985): ““performance of diagnostic tests and performance of diagnostic tests and

treatments which, but for the threat of a treatments which, but for the threat of a malpractice action would not have been malpractice action would not have been done.”done.”

A clinical decision or action motivated in A clinical decision or action motivated in whole or in part by the desire to protect whole or in part by the desire to protect oneself from a malpractice suit or to serve oneself from a malpractice suit or to serve as a reliable defense is such as suit as a reliable defense is such as suit occurs.occurs.

Deville K. Act first and look up the law afterward?: Medical malpractice and the ethics of defensive medicine. Th Med & Bioethics 1998; 19:569-589.

Ethics of Defensive MedicineEthics of Defensive Medicine

A range of practices that subject the patient to:A range of practices that subject the patient to: No additional physical or emotional risk; financial No additional physical or emotional risk; financial

costs minimal or offset by benefits of the practicecosts minimal or offset by benefits of the practice Virtually no risk or pain, but impose additional Virtually no risk or pain, but impose additional

financial costs, increase patient’s anxiety, or other financial costs, increase patient’s anxiety, or other harmsharms

Significantly increased physical, psychological, and Significantly increased physical, psychological, and financial risks, or infringe on important personal rights.financial risks, or infringe on important personal rights.

Deville, supra, at 577.

Avoiding Inappropriate Avoiding Inappropriate Defensive PracticeDefensive Practice

1.1. Make a clinically sound treatment decision.Make a clinically sound treatment decision.

2.2. Accurately identify the legal risk in the case.Accurately identify the legal risk in the case.

3.3. Evaluate the risk by estimating potential costs Evaluate the risk by estimating potential costs of the claim in time, anxiety, money.of the claim in time, anxiety, money.

4.4. Discount that risk calculation by the Discount that risk calculation by the unlikelihood of its occurrence and the potential unlikelihood of its occurrence and the potential claim’s defensibility.claim’s defensibility.

5.5. Evaluate that cost to the patient and society of Evaluate that cost to the patient and society of potential defensive measures.potential defensive measures.

Deville, supra, at 582.

Approaches to Disclosing Approaches to Disclosing Error in Practice . . .Error in Practice . . .

Report/Resolve conflicts as “close to the bedside” as Report/Resolve conflicts as “close to the bedside” as possible.possible.

Keep accurate, contemporaneous records of all Keep accurate, contemporaneous records of all clinical activities.clinical activities.

Notify insurer and seek assistance from others who Notify insurer and seek assistance from others who can help (e.g., risk manager).can help (e.g., risk manager).

Take the lead in disclosure; don’t wait for patient to Take the lead in disclosure; don’t wait for patient to ask.ask.

Outline a plan of care to rectify the harm and prevent Outline a plan of care to rectify the harm and prevent recurrence.recurrence.

Offer to get prompt second opinions where Offer to get prompt second opinions where appropriate.appropriate.

. . . in Practice. . . in Practice

Offer the option of family meetings, get Offer the option of family meetings, get professional help to conduct them.professional help to conduct them.

Offer the option of follow-up meetings.Offer the option of follow-up meetings. Document important discussions.Document important discussions. Be prepared for strong emotions.Be prepared for strong emotions. Accept responsibility for outcomes, but Accept responsibility for outcomes, but

avoid attribution of blame.avoid attribution of blame. Apologies and expressions of sorrow are Apologies and expressions of sorrow are

appropriate.appropriate.Cf., Hebert, et al., supra, CMAJ 2001:164(4);509