Medical Malpractice

Sheldon F. KurtzUniversity of Iowa

Percy Bordwell Professor of Law

Professor of Medicine (Department of Surgery)

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?

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?

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?

Extent of Suits

28% for diagnostic errors

27% for surgical errors

26% for improper medical treatment

Who Gets Sued Most

Surgeons

Anesthesiologists

Obstetricians

Emergency Medical Docs

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.

How the Law Effects Quality of Care

Medical malpractice

Licensure

Certification

Medical Malpractice Defined

Medical malpractice occurs when a physician fails to act as a reasonable physician would have acted under the circumstances

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

Proof of Malpractice-Experts

Generally, expert witnesses requiredBattle of expertsLocal 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

Proof of Malpractice-Experts

Generally, expert witnesses requiredBattle of expertsLocal 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

Proof of Malpractice-Experts

Generally, expert witnesses requiredBattle of expertsLocal 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

Proof of Malpractice-No Experts

Common knowledge exception

Res ipsa loquitur

Malpractice Defenses

Conformed to the standard of care

Alternative methods of treatment

Clinical innovation

Contributory Fault

Assumption of the risk

Waiver

Malpractice Defenses

Conformed to the standard of care

Alternative methods of treatment

Clinical innovation

Contributory Fault

Assumption of the risk

Waiver

Malpractice Defenses

Conformed to the standard of care

Alternative methods of treatment

Clinical innovation

Contributory Fault

Assumption of the risk

Waiver

Liability for acts of Others

Vicarious liability

Captain of the Ship Doctrine Particularly for surgeons

Borrowed servant doctrine

Referring physicians

Covering docs

Physician assistants

Liability for acts of Others

Vicarious liability

Captain of the Ship Doctrine Particularly for surgeons

Borrowed servant doctrine

Referring physicians

Covering docs

Physician assistants

Liability for acts of Others

Vicarious liability

Captain of the Ship Doctrine Particularly for surgeons

Borrowed servant doctrine

Referring physicians

Covering docs

Physician assistants

Hospital Liability for Acts of Doctors

Employee DoctorsSovereign and Charitable immunityMedical 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

Statute of Limitations

Date of occurrence

Date of discovery

Continuous treatment doctrine

Statute of Limitations

Date of occurrence

Date of discovery

Continuous treatment doctrine

Information about Malpractice

Boards of Medical Examiners

National Practitioner Data Bank

Operational Oversight

Who reports

Who has access

Who does not have access

Information about Malpractice

Boards of Medical Examiners

National Practitioner Data Bank

Operational Oversight

Who reports

Who has access

Who does not have access