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Current Legal and Ethical Controversies in American Health Care

Current Legal and Ethical Controversies in American Health Care. Strengths and Shortcomings of the Medical Malpractice System. Goals of the Legal System Regarding Patients and Their Medical Care?. Compensate [some] injured patients

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Current Legal and Ethical Controversies in American Health Care

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  1. Current Legal and Ethical Controversies in American Health Care Strengths and Shortcomings of the Medical Malpractice System

  2. Goals of the Legal System Regarding Patients and Their Medical Care? • Compensate [some] injured patients • Improve quality of care, by deterring (punishing) undesirable conduct • Efficiency • Sensitivity • Specificity • Does system “overdeter” physicians to overtreat or undertreat patients? Defensive medicine? • Fairness

  3. The Current Malpractice System • Based on individual civil lawsuits for $$ damages • Main theory is Negligence. Elements: • Duty of due care owed, based on a relationship • Unintentional breach/violation of duty • Causation • Damage/Injury

  4. Process • Complaint filed • Answer to the complaint • Discovery process • Written interrogatories, with document requests • Request for admissions • Depositions • Settlement attempts

  5. Trial • Post-trial motions • Appeal(s)

  6. Supplements to the Current System • Criminal prosecutions • Professional discipline apparatus

  7. Defensive Medicine • Good defensive medicine • Bad defensive medicine • Assurance behavior • Avoidance behavior

  8. “Reforms”/Alternatives • Tinkering • Damage caps • Shorter statutes of limitations • Affidavit requirement • Limits on who can be an expert witness • Limits on attorneys’ fees • Early offer plans

  9. “Reforms”/Alternatives (cont.) • More radical • Health courts • Enterprise liability • Administrative compensation system (like Workers’ Compensation) • Florida NICA system • Better first party insurance • Social • Private

  10. Impediments to Change • Political • Economic • Legal • Federalist system—50+ different jurisdictions • Constitutional right to a jury trial • Equal Protection

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