Medical Error and Malpractice Liability

1. Medical Error and Malpractice Liability Clayton L. Thomason, J.D., M.Div. Asst. Professor, Dept. of Family Practice & Center for Ethics College of Human Medicine Adjunct Professor, MSU-DCL College of Law Michigan State University thomaso5@msu.edu http://www.msu.edu/~thomaso5

2. Tort Law • Tort = a civil wrong • Sometimes also considered crimes (intent) • Governed by state law, common law doctrines • Designed to prevent harm or compensate for harm to a person • Primary aim = to provide relief through compensation to injured parties for the damages incurred

3. Medical Malpractice • Professional liability for personal injury • When physician agrees to diagnose & treat a patient, assumes a duty of care toward that patient • Medical Negligence: failure to meet that duty of care • To provide the standard of care • May include criminal negligence, malicious intent, or strict liability • May also be subject to disciplinary sanctions • By State Medical Boards

4. Elements of a Cause of Action in Negligence (Malpractice) • Duty of Care • Negligent Breach of Duty • Causation • Damages

5. 1. Standard of Care • What is the applicable standard of care in medical malpractice cases? • Professionals are held to a standard of care, judged by: • Professional Standard: a reasonable & prudent physician of ordinary skill (majority of states) • MI: “minimum acceptable standard of care” • Reasonable Patient Standard: what a reasonable patient in similar situation would expect • Individual Patient Standard: what this patient expects • Usually determined by court using expert testimony

6. 2. Breach of Duty • Was there a breach of this standard of care? • Negligent breach of the standard of care • Negligence can occur at different stages: • Misdiagnosis • Failure to properly treat • Administering wrong medication • Failure of informed consent • Failure to inform patient about risks, alternative treatments, e.g. • Negligence is usually established by expert witnesses

7. 3. Causation • Once it has been shown that a physician (hospital, other professional) has been negligent • Plaintiff must prove that this negligence caused (or worsened) the harm/injury • The negligent act must be directly responsible for the harm (proximate cause) • or at least have contributed to it (cause-in-fact)

8. 4. Damages • If plaintiff establishes negligence & liability, they are entitled to damages (financial compensation) for: • Compensatory damages: Past/future medical bills, lost wages • Non-economic Damages: Pain & Suffering • Capped (1994) in MI: $280,000 • Except for paralysis, cognitive impairment or loss of reproductive capacities = $500,000 • Attorney Fees • MI: In personal injury & wrongful death cases = limited to 1/3 of award to plaintiff • Damages reduced by • Contributory negligence (of plaintiff) • Joint and Several liability (of other parties)

9. Assessing Risks . . . • Not all patients sue over adverse outcomes (approx 1 in 8) • NEJM 1991 324;370 • Not all who can sue want to sue • Reduced by how physicians communicate with patients • Trial attorneys are highly selective in which cases they accept • Disincentives lead plaintiffs attorneys to reject 7 of 8 potential malpractice cases (Bovjerg RR, Law & Contemp Probs 1991;54:5)

10. . . . Assessing Risks • Chance of success • Approx 10 claims/100 physicians (1995) • But based on multiple claims for a few physicians • 85% of payments were for 3-6% of physicians charged in one FL study • Plaintiffs receive some monetary award in approx. 50% of cases • Varies by region, specific merit of cases, defensibility of claim. • Settlement = more frequent than jury trial • Frequently $5-10K (nuisance suits), but inflated by a few big awards (44% below $30K in Physician’s Data Bank in 1998)

11. Mistake or Negligence? • Medical Error = “preventable adverse medical events” • Errors of omission or commission • Honest Mistakes • Negligent Actions = preventable, harmful actions 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.

12. Tort Reforms . . . • State Reforms (go-slow approach) • Arbitration • MI: Before malpractice cases can go to trial, subjected to mandatory mediation panel. • Evaluation of plaintiff/defendant’s cases • Either party can object and proceed to trial • Party who rejects findings and loses at trial is required to pay other party’s court costs • Parties can agree to Binding Arbitration for claims < $75,000 • Caps on damages (45 states) • MI: $280K for non-economic damages • Imposing procedural barriers to discourage suits • CA: MICRA (1975)

13. . . . Tort Reforms • Federal Proposals: federalize tort reform through national standards (H.R. 5 (2003) HEALTH Act) • Limit frequency of litigation • Limit size of non-economic damages • But does not address long-term health care quality improvement in malpractice reform context • Because limited short-term effect on insurance rates • No-Fault Approach • Eliminate need to [prove negligence • As in Worker’s Compensation, auto insurance, e.g. • “Enterprise Rating” systems, such as Sweden, e.g.

14. Defensive Medicine • AMA (1985): • “performance of diagnostic tests and treatments which, but for the threat of a malpractice action would not have been done.” • A clinical decision or action motivated in whole or in part by the desire to protect oneself from a malpractice suit or to serve as a reliable defense is such as suit 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.

15. Ethics of Defensive Medicine • A range of practices that subject the patient to: • No additional physical or emotional risk; financial costs minimal or offset by benefits of the practice • Virtually no risk or pain, but impose additional financial costs, increase patient’s anxiety, or other harms • Significantly increased physical, psychological, and financial risks, or infringe on important personal rights. Deville, supra, at 577.

16. Avoiding Inappropriate Defensive Practice • Make a clinically sound treatment decision. • Accurately identify the legal risk in the case. • Evaluate the risk by estimating potential costs of the claim in time, anxiety, money. • Discount that risk calculation by the unlikelihood of its occurrence and the potential claim’s defensibility. • Evaluate that cost to the patient and society of potential defensive measures. Deville, supra, at 582.

17. Approaches to Disclosing Error in Practice . . . • Report/Resolve conflicts as “close to the bedside” as possible. • Keep accurate, contemporaneous records of all clinical activities. • Notify insurer and seek assistance from others who can help (e.g., risk manager). • Take the lead in disclosure; don’t wait for patient to ask. • Outline a plan of care to rectify the harm and prevent recurrence. • Offer to get prompt second opinions where appropriate.

18. . . . in Practice • Offer the option of family meetings, get professional help to conduct them. • Offer the option of follow-up meetings. • Document important discussions. • Be prepared for strong emotions. • Accept responsibility for outcomes, but avoid attribution of blame. • Apologies and expressions of sorrow are appropriate. Cf., Hebert, et al., supra, CMAJ 2001:164(4);509