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 physician’s breach cause the patient’s 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 (HMO’s 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