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Medical malpractice
 

Medical malpractice

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Medical malpractice Medical malpractice Presentation Transcript

  • Medical Malpractice Sheldon F. Kurtz University 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 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
  • 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
  • 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
  • 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 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
  • 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