Medical Malpractice

Question 1

describe medical malpractice

Answer 1

• breach of any duty owed as a physician is malpractice
• elements of respect for persons:
  
  • commitment (do not abandon patient)
  • autonomy (informed consent)
  • fidelity (promise keeping and confidentiality)
  • veracity (truth telling)
  • competence (standard of care)

Question 2

list common reasons for malpractice claims

Answer 2

• inpatient: surgical errors accounted for about 34% of medical malpractice claims
• outpaitent: diagnostic errors made up about 46%

Question 3

describe malpractice compensation

Answer 3

• the average compensation for medical malpractice:
  
  • inpatient setting: $363,000
  • outpatient setting: $290,000
• 93% of all medical malpractice cases are resolved before trial while 7% end in a jury verdict
  
  • of medical malpractice cases that make it to court trial, plaintiffs prevailed in 21% of verdicts
  • of medical malpractice cases that were settled without trial, settlements favored the plaintiff in 61% of cases

Question 4

describe high risk vs. low risk in predicting medical malpractice

Answer 4

• high risk:
  
  • increased age
  • surgical specialty
  • emergency department coverage
  • increased days away from practice
  • previous malpractice suit
• low risk
  
  • scheduling enough time to talk to patients
  • answering phone calls directly
  • satisfactory practice arrangements
  • acknowledge one’s own emotional distress

Question 5

describe behaviors that lead to a lower malpractice suit risk

Answer 5

• spent 3+ minutes longer with each patient than those who had been sued
• more likely to make “orienting” comments
  
  • “first I’ll examine you, and then we will talk the problem over”
  • “I will leave time for your questions”
• more likely to engage in active listening
• more likely to laugh and be funny during the visit

Question 6

list the 4 reasons patients sue

Answer 6

• concern with standards of care
  
  • patients and relative wanted to prevent similar incidents in the future
• the need for an explanation
  
  • to know how the injury happened and why
• compensation
  
  • for actual losses, pain and suffering, or to provide care in the future for an injured person
• accountability
  
  • a belief that the staff or org. should have to account for their actions

Question 7

describe the 4 elements of malpractice litigation

Answer 7

• duty
• breach of duty
• causation
• damages

Question 8

describe duty (malpractice litigation)

Answer 8

• patient must prove that the physician owed a legal duty of care (i.e. treatment relationship)
• doctors are generally charged with a duty to abide by a certain level of care
• the standard is the amount of variety of care that a reasonably competent, prudent physician–in good standing and of same or similar educational background and geographic location–would administer under the same or similar circumstances

Question 9

describe breach of duty (malpractice litigation)

Answer 9

• if the physician fails to abide by the standard of care, he breached his duty to a patient
• failure to disclose information to patients is also a breach of duty
• breaches of the standard of care usually require some type of sworn statement to be considered by a court or jury
• virtually every medical malpractice case must have expert support

Question 10

list the 3 sub-elements of breach of duty

Answer 10

1. had disclosure been made, the patient would not have consented
2. had disclosure been made, a reasonable person in the patient’s circumstances would not have consented
3. the materialized risk must have been caused (etiologically) by the intervention

Question 11

describe causation (malpractice litigation)

Answer 11

• doctor’s breach of duty caused the patient harm
• not enough that the doctor’s action increased the risk of harm; must be the most likely cause of the harm
  
  • 50+% chance that harm came from physician negligence = 100% damages
  • <49% chance that harm came from physician negligence = 0% damages

Question 12

give the equation on assessing the doctor’s risk increase due to negligence

Answer 12

the increase in chance of death from baseline / the chance of death with negligence

Question 13

describe damages (malpractice litigation)

Answer 13

• physician’s breach of the standard of care actually resulted in some kind of harm: physical, psychological, financial or other
• difficult in cases where the true damage can take a long time to manifest

Question 14

describe Good Samaritan laws

Answer 14

• protect volunteers from civil liability for acts or omissions that cause injury to another while providing assistance in an emergency

Question 15

list the requirements for protection against liability (Good Samaritan laws)

Answer 15

• outside medical setting (e.g. accident, natural disaster, choking in restaurant)
• no pre-existing duty to provide care
• no expectation of remuneration of any sort
• recipient does not object