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Tort Reform

This document discusses ethical issues related to tort reform and medical malpractice. It provides an overview of fiduciary duty in healthcare as outlined in oaths like the Hippocratic and Osteopathic oaths. It also examines elements of negligence and malpractice liability, including standards of care, causation, and types of damages like compensatory and punitive damages. The document argues that proposed tort reforms aimed at reducing "frivolous lawsuits" will mainly reduce legitimate malpractice claims, as frivolous suits rarely make it to jury verdicts. Overall it presents perspectives from lawyers, doctors and ethics on the heated debate around balancing patient safety, access to compensation, and litigation costs.

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ETHICAL ISSUES IN TORTETHICAL ISSUES IN TORT REFORM AND MEDICALREFORM AND MEDICAL MALPRACTICEMALPRACTICE Paul D. Friedman, M.A., J.D.Paul D. Friedman, M.A., J.D. 300 W. Clarendon, Suite 400300 W. Clarendon, Suite 400 Phoenix, Arizona 85013Phoenix, Arizona 85013--34243424 (602) 252(602) 252--88888888 (800) 883(800) 883--88888888 bioethics@cox.netbioethics@cox.net 2005 Western States Osteopathic Convention2005 Western States Osteopathic Convention
Paul D. Friedman, M.A., J.D. 2005 Western States Osteopathic Conference
A HEATED ISSUEA HEATED ISSUE Lawyers Weigh InLawyers Weigh In
A HEATED ISSUEA HEATED ISSUE Physicians Weigh InPhysicians Weigh In
A HEATED ISSUEA HEATED ISSUE Lawyers Weigh In AgainLawyers Weigh In Again
PURPOSE OF TORTPURPOSE OF TORT SYSTEMSYSTEM TO PROVIDE INCENTIVESTO PROVIDE INCENTIVES FOR SAFETYFOR SAFETY TO PROVIDE COMPENSATIONTO PROVIDE COMPENSATION FOR VICTIMSFOR VICTIMS
MALPRACTICEMALPRACTICE LIABILITYLIABILITY Legal Liability for Injuries:Legal Liability for Injuries: StatuteStatute Common LawCommon Law Types of Liability:Types of Liability: NegligenceNegligence Provable FaultProvable Fault Res Ipsa LoquitorRes Ipsa Loquitor Strict LiabilityStrict Liability
ELEMENTS OFELEMENTS OF MALPRACTICEMALPRACTICE LEGAL DUTYLEGAL DUTY Fiduciary DutyFiduciary Duty BREACH OF DUTYBREACH OF DUTY CAUSATIONCAUSATION DAMAGESDAMAGES
FIDUCIARY DUTYFIDUCIARY DUTY Legally Duty Explained As:Legally Duty Explained As: (COLAN)(COLAN) CC areare OO bediencebedience LL oyaltyoyalty AA ccountingccounting NN oticeotice
FIDUCIARY DUTYFIDUCIARY DUTY Medically Explained As:Medically Explained As: Osteopathic OathOsteopathic Oath Hippocratic OathHippocratic Oath--AncientAncient Hippocratic OathHippocratic Oath--ModernModern Medical Ethics PrinciplesMedical Ethics Principles
OSTEOPATHIC OATHOSTEOPATHIC OATH I do hereby affirm my loyalty to the profession I am about to enter. I will be mindful always of my great responsibility to preserve the health and the life of my patients, to retain their confidence and respect both as a physician and a friend who will guard their secrets with scrupulous honor and fidelity, to perform faithfully my professional duties, to employ only those recognized methods of treatment consistent with good judgment and with my skill and ability, keeping in mind always nature's laws and the body's inherent capacity for recovery.
OSTEOPATHIC OATHOSTEOPATHIC OATH I will be ever vigilant in aiding in the general welfare of the community, sustaining its laws and institutions, not engaging in those practices, which will in any way, bring shame or discredit upon my profession or myself. I will give no drugs for deadly purposes to any person, though it may be asked of me.
OSTEOPATHIC OATHOSTEOPATHIC OATH I will endeavor to work in accord with my colleagues in a spirit of progressive cooperation and never by word or by act cast imputations upon them or their rightful practices.
OSTEOPATHIC OATHOSTEOPATHIC OATH I will look with respect and esteem upon all those who have taught me my art. To my college I will be loyal and strive always for its best interests and for the interests of the students who will come after me. I will be ever alert to further the application of basic biologic truths to the healing arts and to develop the principles of osteopathy, which were first enunciated by Andrew Taylor Still.
HIPPOCRATIC OATHHIPPOCRATIC OATH (Ancient(Ancient--400 B.C.)400 B.C.) Swear by Apollo Physician and Asclepius and Hygieia and Panaceia and all the gods and goddesses, making them my witnesses, that I will fulfil according to my ability and judgment this oath and this covenant:
HIPPOCRATIC OATHHIPPOCRATIC OATH (Ancient(Ancient--400 B.C.)400 B.C.) To hold him who has taught me this art as equal to my parents and to live my life in partnership with him, and if he is in need of money to give him a share of mine, and to regard his offspring as equal to my brothers in male lineage and to teach them this art - if they desire to learn it - without fee and covenant; to give a share of precepts and oral instruction and all the other learning to my sons and to the sons of him who has instructed me and to pupils who have signed the covenant and have taken an oath according to the medical law, but no one else.
HIPPOCRATIC OATHHIPPOCRATIC OATH (Ancient(Ancient--400 B.C.)400 B.C.) I will apply dietetic measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice. I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art. I will not use the knife, not even on sufferers from stone, but will withdraw in favor of such men as are engaged in this work.
HIPPOCRATIC OATHHIPPOCRATIC OATH (Ancient(Ancient--400 B.C.)400 B.C.) Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves. What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things shameful to be spoken about.
HIPPOCRATIC OATHHIPPOCRATIC OATH (Ancient(Ancient--400 B.C.)400 B.C.) If I fulfil this oath and do not violate it, may it be granted to me to enjoy life and art, being honored with fame among all men for all time to come; if I transgress it and swear falsely, may the opposite of all this be my lot.
HIPPOCRATIC OATHHIPPOCRATIC OATH (Modern(Modern--1995)1995) I swear to fulfill, to the best of my ability and judgment, this covenant: I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow. I will apply, for the benefit of the sick, all measures which are required, avoiding those twin traps of over-treatment and therapeutic nihilism.
HIPPOCRATIC OATHHIPPOCRATIC OATH (Modern(Modern--1995)1995) I will remember that there is art to medicine as well as science, and that warmth, sympathy, and understanding may outweigh the surgeon's knife or the chemist's drug. I will not be ashamed to say "I know not," nor will I fail to call in my colleagues when the skills of another are needed for a patient's recovery.
HIPPOCRATIC OATHHIPPOCRATIC OATH (Modern(Modern--1995)1995) I will respect the privacy of my patients, for their problems are not disclosed to me that the world may know. Most especially must I tread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.
HIPPOCRATIC OATHHIPPOCRATIC OATH (Modern(Modern--1995)1995) I will remember that I do not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person's family and economic stability. My responsibility includes these related problems, if I am to care adequately for the sick. I will prevent disease whenever I can, for prevention is preferable to cure.
HIPPOCRATIC OATHHIPPOCRATIC OATH (Modern(Modern--1995)1995) I will remember that I remain a member of society, with special obligations to all my fellow human beings, those sound of mind and body as well as the infirm. If I do not violate this oath, may I enjoy life and art, respected while I live and remembered with affection thereafter. May I always act so as to preserve the finest traditions of my calling and may I long experience the joy of healing those who seek my help.
PRINCIPLES OFPRINCIPLES OF MEDICAL ETHICSMEDICAL ETHICS BENEFICENCE Acting For The Benefit Of The patient NON-MALEFICENCE Do No Harm AUTONOMY Informed Consent Decision Making Capacity JUSTICE Benefit Society
ELEMENTS OFELEMENTS OF NEGLIGENCENEGLIGENCE LEGAL DUTYLEGAL DUTY Fiduciary DutyFiduciary Duty BREACH OF DUTYBREACH OF DUTY Minimum Standard of Care in theMinimum Standard of Care in the CommunityCommunity Certification: National Standard of CareCertification: National Standard of Care CAUSATIONCAUSATION DAMAGESDAMAGES
ELEMENTS OFELEMENTS OF NEGLIGENCENEGLIGENCE LEGAL DUTYLEGAL DUTY Fiduciary DutyFiduciary Duty BREACH OF DUTYBREACH OF DUTY Minimum Standard of Care in the CommunityMinimum Standard of Care in the Community Certification: National Standard of CareCertification: National Standard of Care CAUSATIONCAUSATION Joint and Several vs. Joint And Not SeveralJoint and Several vs. Joint And Not Several DAMAGESDAMAGES
CAUSATIONCAUSATION Joint And Several Liability:Joint And Several Liability: Multiple Parties Combine to Cause LossMultiple Parties Combine to Cause Loss Each Defendant Is Responsible Only For His/HerEach Defendant Is Responsible Only For His/Her Percentage of FaultPercentage of Fault ClaimantClaimant’’s Settlement Amounts Not Factored Intos Settlement Amounts Not Factored Into Trial JudgmentTrial Judgment Joint But Not Several Liability:Joint But Not Several Liability: Multiple Parties Combine to Cause LossMultiple Parties Combine to Cause Loss Each Defendant Is Responsible For Entire AmountEach Defendant Is Responsible For Entire Amount Claimant Can Only Recover OnceClaimant Can Only Recover Once
ELEMENTS OFELEMENTS OF NEGLIGENCENEGLIGENCE LEGAL DUTYLEGAL DUTY Fiduciary DutyFiduciary Duty BREACH OF DUTYBREACH OF DUTY Minimum Standard of Care in the CommunityMinimum Standard of Care in the Community Certification: National Standard of CareCertification: National Standard of Care CAUSATIONCAUSATION Joint and Several vs. Joint And Not SeveralJoint and Several vs. Joint And Not Several DAMAGESDAMAGES CompensatoryCompensatory PunitivePunitive
TYPES OF DAMAGESTYPES OF DAMAGES CompensatoryCompensatory SpecialSpecial Medical Bills, Lost Wages,Medical Bills, Lost Wages, Etc.Etc. GeneralGeneral Pain & SufferingPain & Suffering PunitivePunitive Meant to Punish and DeterMeant to Punish and Deter Higher Culpability of WrongdoerHigher Culpability of Wrongdoer Higher Standard of ProofHigher Standard of Proof
PUNITIVE DAMAGESPUNITIVE DAMAGES 10:1 ?? 145:1 500:1 0 100 200 300 400 500 1996 2003 The Future? RatioofPunitiveAwardtoCompensator
PUNITIVE DAMAGESPUNITIVE DAMAGES 10:1 ?? 145:1 500:1 0 100 200 300 400 500 1996 2003 The Future? RatioofPunitiveAwardtoCompensator In BMW of North America v. Gore, the Supreme Court ruled in an Alabama case that punitive awards that were 500 to 1 were excessive (actual damages in the case, which involved the repainting of a car, were $4,000 but the jury awarded the plaintiff $2 million)
PUNITIVE DAMAGESPUNITIVE DAMAGES 10:1 ?? 145:1 500:1 0 100 200 300 400 500 1996 2003 The Future? RatioofPunitiveAwardtoCompensator In Campbell v. State Farm, the Supreme Court ruled in a 22- year old Utah case that punitive awards that were 145 to 1 were excessive (actual damages in the case, which involved insurer bad faith were $1 million)
PUNITIVE DAMAGESPUNITIVE DAMAGES 10:1 ?? 145:1 500:1 0 100 200 300 400 500 1996 2003 The Future? RatioofPunitiveAwardtoCompensator In Campbell v. State Farm, the Court added that “…few awards exceeding a single- digit ratio between punitive and compensatory damages will satisfy due process…Single digit multipliers are more likely to comport with due process, still achieving the State’s deterrence and retribution goals…”
TORT DOLLARTORT DOLLAR DISTRIBUTIONDISTRIBUTION Administration Fees = 25% Awards For Non-Economic Loss = 22% Awards For Economic Loss = 20% Attorneys Fees = 17% Defense Costs = 16%
TORT DOLLARTORT DOLLAR DISTRIBUTIONDISTRIBUTION Administration 25% Awardsfor Non- EconomicLoss 22% AwardsFor EconomicLoss 20% AttorneysFees 17% DefenseCosts 16%
EXPRESSED REASONSEXPRESSED REASONS FOR TORT REFORMFOR TORT REFORM STOPSTOP ““FRIVOLOUSFRIVOLOUS”” LAWSUITSLAWSUITS
REASONS TO STOPREASONS TO STOP ““FRIVILOUSFRIVILOUS”” LAWSUITSLAWSUITS To Make Medical MalpracticeTo Make Medical Malpractice Insurance More AffordableInsurance More Affordable To Allow Physicians To PracticeTo Allow Physicians To Practice ““MedicineMedicine”” As Opposed ToAs Opposed To ““DefensiveDefensive”” MedicineMedicine So Patients Do Not ReceiveSo Patients Do Not Receive ““RewardsRewards”” From LawsuitsFrom Lawsuits
SPECIFIC TORTSPECIFIC TORT REFORM PROPOSALREFORM PROPOSAL Cap NonCap Non--Economic Damages AtEconomic Damages At $250,000$250,000 Reduce AttorneyReduce Attorney’’s Feess Fees Inform The Jury Of CollateralInform The Jury Of Collateral SourcesSources Joint And Several LiabilityJoint And Several Liability Stricter Statute of LimitationsStricter Statute of Limitations
THE BIG QUESTIONTHE BIG QUESTION QUESTION:QUESTION: Will The ProposedWill The Proposed Tort Reform ReduceTort Reform Reduce FrivolousFrivolous Lawsuits?Lawsuits? ANSWER:ANSWER: The Proposed TortThe Proposed Tort Reform Will OnlyReform Will Only ReduceReduce LegitimateLegitimate Lawsuits.Lawsuits.
WHY?WHY? The Proposed Tort Reform WillThe Proposed Tort Reform Will Reduce OnlyReduce Only LegitimateLegitimate LawsuitsLawsuits BecauseBecause FrivolousFrivolous Lawsuits DoLawsuits Do Not Result In Jury Verdicts.Not Result In Jury Verdicts. Therefore, Caps Do Not Have TheTherefore, Caps Do Not Have The Intended Effect.Intended Effect.
FRIVOLOUSFRIVOLOUS LAWSUITSLAWSUITS Federal Rule Of Civil Procedure,Federal Rule Of Civil Procedure, Rule 11 And The State StatutoryRule 11 And The State Statutory Counterparts Prohibit The FilingCounterparts Prohibit The Filing Of A Lawsuit Without Merit By AOf A Lawsuit Without Merit By A Licensed Attorney.Licensed Attorney.
FACTSFACTS 98,000 Americans Die Each Year From Medical98,000 Americans Die Each Year From Medical MistakesMistakes 12,000 Deaths From Unnecessary Surgeries12,000 Deaths From Unnecessary Surgeries 7,000 Deaths From Medication Errors7,000 Deaths From Medication Errors 1,000,000 Americans Are Injured Each Year From1,000,000 Americans Are Injured Each Year From Medical MistakesMedical Mistakes Only 1 In 8 Injured Patients Files A LawsuitOnly 1 In 8 Injured Patients Files A Lawsuit Medication Mistakes Alone In Hospital Settings CostMedication Mistakes Alone In Hospital Settings Cost $2,000,000,000 Per Year$2,000,000,000 Per Year
FACTSFACTS The Median Payout (Settlement and Judgment) ForThe Median Payout (Settlement and Judgment) For Patients Who Receive Money In A Malpractice Case isPatients Who Receive Money In A Malpractice Case is $125,000$125,000 The Median Jury Judgment For Patients Who AreThe Median Jury Judgment For Patients Who Are Successful In A Malpractice Lawsuit Is ApproximatelySuccessful In A Malpractice Lawsuit Is Approximately $1,000,000$1,000,000 Punitive Damages Were Awarded In Less Than 1% OfPunitive Damages Were Awarded In Less Than 1% Of CasesCases The Median Of Jury Verdicts In All Tort ClaimsThe Median Of Jury Verdicts In All Tort Claims Dropped By 33% to $30,000 Since 2000Dropped By 33% to $30,000 Since 2000
FACTSFACTS Only 6.5 Of Every 1,000 Physicians Will Be Sued InOnly 6.5 Of Every 1,000 Physicians Will Be Sued In Any Given YearAny Given Year 5% Of Physicians Are Responsible For 54% Of All5% Of Physicians Are Responsible For 54% Of All MalpracticeMalpractice Only 17% Of Physicians Who Have Paid On 5 Or MoreOnly 17% Of Physicians Who Have Paid On 5 Or More Lawsuits Has Been Disciplined By Their State BoardLawsuits Has Been Disciplined By Their State Board Healthcare Providers Are Successful In Jury TrialsHealthcare Providers Are Successful In Jury Trials Over 60% Of The TimeOver 60% Of The Time
FACTSFACTS The Number Of Medical Malpractice LawsuitsThe Number Of Medical Malpractice Lawsuits Has Not Increased In The Last 10 YearsHas Not Increased In The Last 10 Years Federal Lawsuits Have Not Increased Since 1970Federal Lawsuits Have Not Increased Since 1970 State Lawsuits Have Continued To DecreaseState Lawsuits Have Continued To Decrease Since 1989Since 1989 The Total Number Of Medical MalpracticeThe Total Number Of Medical Malpractice Claims Decreased By 4% From 1995 To 2000Claims Decreased By 4% From 1995 To 2000
WHY HAVE MALPRACTICEWHY HAVE MALPRACTICE PREMIUMS INCREASEDPREMIUMS INCREASED A Price War Started By St. Paul Led To InadequateA Price War Started By St. Paul Led To Inadequate Premiums In The 1990sPremiums In The 1990s St. Paul Had $1,100,000,000 In OverSt. Paul Had $1,100,000,000 In Over--Reserves Which ItReserves Which It Converted OverConverted Over This Mistakenly Appeared As ProfitThis Mistakenly Appeared As Profit Other Malpractice Carriers Slashed Prices In An AttemptOther Malpractice Carriers Slashed Prices In An Attempt to Attract Physicians Because They Mistakenly Believedto Attract Physicians Because They Mistakenly Believed There Were Huge ProfitsThere Were Huge Profits A Large Number Of Malpractice Insurers BecameA Large Number Of Malpractice Insurers Became UnderUnder--Capitalized And Went Into ReceivershipCapitalized And Went Into Receivership
WHY HAVE MALPRACTICEWHY HAVE MALPRACTICE PREMIUMS INCREASEDPREMIUMS INCREASED Insurance Carriers Invest A Portion Of Premiums InInsurance Carriers Invest A Portion Of Premiums In The Stock MarketThe Stock Market The Stock Market Was Strong In The 1990s And InsurersThe Stock Market Was Strong In The 1990s And Insurers Were Able To Maintain Profitability Through GainsWere Able To Maintain Profitability Through Gains The Stock Market Decline Began In 2000 And InsurersThe Stock Market Decline Began In 2000 And Insurers Were Left With Limited Premiums Which Needed ToWere Left With Limited Premiums Which Needed To Increase To Make Up For The Loss Of ProfitabilityIncrease To Make Up For The Loss Of Profitability September 11, 2001, Cost Over $8,000,000,000 InSeptember 11, 2001, Cost Over $8,000,000,000 In Claims To ReClaims To Re--Insurers Which In Turn Raised TheInsurers Which In Turn Raised The Rates To Malpractice InsurersRates To Malpractice Insurers
WILL CAPPING AWARDSWILL CAPPING AWARDS DECREASE MALPRACTICEDECREASE MALPRACTICE PREMIUMSPREMIUMS Capping Awards Did Not Correlate To LoweringCapping Awards Did Not Correlate To Lowering Malpractice Premiums From 1991 To 2002Malpractice Premiums From 1991 To 2002 The Median Payout In States With Caps Was 15.7%The Median Payout In States With Caps Was 15.7% Lower Than In States With CapsLower Than In States With Caps Payouts Increased By 83.3% In States With Caps WhilePayouts Increased By 83.3% In States With Caps While States Without Caps Increases Were 127.9%States Without Caps Increases Were 127.9% The Median Annual Premium Increase For States WithThe Median Annual Premium Increase For States With Caps Was 48.2% While The Median Annual PremiumCaps Was 48.2% While The Median Annual Premium Increase For States Without Caps Was 35.9%Increase For States Without Caps Was 35.9% States With Caps Experienced 10.5% Stagnant OrStates With Caps Experienced 10.5% Stagnant Or Decline In Medical Malpractice Premiums While StatesDecline In Medical Malpractice Premiums While States Without A Cap Showed A Stagnant Or Decline MedicalWithout A Cap Showed A Stagnant Or Decline Medical Malpractice Premium Rate Of 18.7%Malpractice Premium Rate Of 18.7%
WILL CAPPING AWARDSWILL CAPPING AWARDS DECREASE MALPRACTICEDECREASE MALPRACTICE PREMIUMSPREMIUMS 0% Payout Increases Median Annual Premium Flat or Decline Premiums Medical Malpractice Caps CAPS NOCAPS
WILL CAPPING AWARDSWILL CAPPING AWARDS DECREASE MALPRACTICEDECREASE MALPRACTICE PREMIUMSPREMIUMS CaliforniaCalifornia’’s Medical Injury Compensations Medical Injury Compensation Reform Act (MICRA)Reform Act (MICRA) NonNon--Economic Damages Are Limited ToEconomic Damages Are Limited To $250,000$250,000 Medical Malpractice Premiums In California AreMedical Malpractice Premiums In California Are 8% Higher Than Non8% Higher Than Non--Cap StatesCap States Medical Malpractice Premiums Rose 450%Medical Malpractice Premiums Rose 450% During The First 12 Years (1975During The First 12 Years (1975--1987) Until1987) Until Proposition 103Proposition 103 Proposition 103 (1988) Mandated A 20% DropProposition 103 (1988) Mandated A 20% Drop In Medical Malpractice PremiumsIn Medical Malpractice Premiums
SOLUTIONS?SOLUTIONS? Remember The Medical PrinciplesRemember The Medical Principles Try Not To Commit MistakesTry Not To Commit Mistakes BeneficenceBeneficence NonNon--MaleficenceMaleficence Admit MistakesAdmit Mistakes AutonomyAutonomy--Respect For Patients As PeopleRespect For Patients As People JusticeJustice--Statutes Not Allowing Evidence OfStatutes Not Allowing Evidence Of ““AdmissionsAdmissions”” Change of AttitudeChange of Attitude Not A Physician Versus Attorney IssueNot A Physician Versus Attorney Issue Caps Hurt Legitimate Patients And Do Not AffectCaps Hurt Legitimate Patients And Do Not Affect ““FrivolousFrivolous”” LawsuitsLawsuits ““LegitimateLegitimate”” Lawsuits Correct Bad BehaviorLawsuits Correct Bad Behavior
SOLUTIONS!SOLUTIONS! HonestyHonesty Better State Regulation Of Bad DoctorsBetter State Regulation Of Bad Doctors Stiffer Penalties For Frivolous LawsuitsStiffer Penalties For Frivolous Lawsuits Award Sanctions Against Attorneys And PlaintiffsAward Sanctions Against Attorneys And Plaintiffs CostsCosts Attorneys FeesAttorneys Fees Better State Regulation By Bar Against Offending AttorneysBetter State Regulation By Bar Against Offending Attorneys Mandate Qualified Experts Who Comply With Their OathsMandate Qualified Experts Who Comply With Their Oaths Establish Databases With Previous Forensic ExperienceEstablish Databases With Previous Forensic Experience Joint And Several LiabilityJoint And Several Liability No Collateral Source RuleNo Collateral Source Rule

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Tort Reform

  • 1.
    ETHICAL ISSUES INTORTETHICAL ISSUES IN TORT REFORM AND MEDICALREFORM AND MEDICAL MALPRACTICEMALPRACTICE Paul D. Friedman, M.A., J.D.Paul D. Friedman, M.A., J.D. 300 W. Clarendon, Suite 400300 W. Clarendon, Suite 400 Phoenix, Arizona 85013Phoenix, Arizona 85013--34243424 (602) 252(602) 252--88888888 (800) 883(800) 883--88888888 bioethics@cox.netbioethics@cox.net 2005 Western States Osteopathic Convention2005 Western States Osteopathic Convention
  • 2.
    Paul D. Friedman,M.A., J.D. 2005 Western States Osteopathic Conference
  • 3.
    A HEATED ISSUEAHEATED ISSUE Lawyers Weigh InLawyers Weigh In
  • 4.
    A HEATED ISSUEAHEATED ISSUE Physicians Weigh InPhysicians Weigh In
  • 5.
    A HEATED ISSUEAHEATED ISSUE Lawyers Weigh In AgainLawyers Weigh In Again
  • 6.
    PURPOSE OF TORTPURPOSEOF TORT SYSTEMSYSTEM TO PROVIDE INCENTIVESTO PROVIDE INCENTIVES FOR SAFETYFOR SAFETY TO PROVIDE COMPENSATIONTO PROVIDE COMPENSATION FOR VICTIMSFOR VICTIMS
  • 7.
    MALPRACTICEMALPRACTICE LIABILITYLIABILITY Legal Liability forInjuries:Legal Liability for Injuries: StatuteStatute Common LawCommon Law Types of Liability:Types of Liability: NegligenceNegligence Provable FaultProvable Fault Res Ipsa LoquitorRes Ipsa Loquitor Strict LiabilityStrict Liability
  • 8.
    ELEMENTS OFELEMENTS OF MALPRACTICEMALPRACTICE LEGALDUTYLEGAL DUTY Fiduciary DutyFiduciary Duty BREACH OF DUTYBREACH OF DUTY CAUSATIONCAUSATION DAMAGESDAMAGES
  • 9.
    FIDUCIARY DUTYFIDUCIARY DUTY LegallyDuty Explained As:Legally Duty Explained As: (COLAN)(COLAN) CC areare OO bediencebedience LL oyaltyoyalty AA ccountingccounting NN oticeotice
  • 10.
    FIDUCIARY DUTYFIDUCIARY DUTY MedicallyExplained As:Medically Explained As: Osteopathic OathOsteopathic Oath Hippocratic OathHippocratic Oath--AncientAncient Hippocratic OathHippocratic Oath--ModernModern Medical Ethics PrinciplesMedical Ethics Principles
  • 11.
    OSTEOPATHIC OATHOSTEOPATHIC OATH Ido hereby affirm my loyalty to the profession I am about to enter. I will be mindful always of my great responsibility to preserve the health and the life of my patients, to retain their confidence and respect both as a physician and a friend who will guard their secrets with scrupulous honor and fidelity, to perform faithfully my professional duties, to employ only those recognized methods of treatment consistent with good judgment and with my skill and ability, keeping in mind always nature's laws and the body's inherent capacity for recovery.
  • 12.
    OSTEOPATHIC OATHOSTEOPATHIC OATH Iwill be ever vigilant in aiding in the general welfare of the community, sustaining its laws and institutions, not engaging in those practices, which will in any way, bring shame or discredit upon my profession or myself. I will give no drugs for deadly purposes to any person, though it may be asked of me.
  • 13.
    OSTEOPATHIC OATHOSTEOPATHIC OATH Iwill endeavor to work in accord with my colleagues in a spirit of progressive cooperation and never by word or by act cast imputations upon them or their rightful practices.
  • 14.
    OSTEOPATHIC OATHOSTEOPATHIC OATH Iwill look with respect and esteem upon all those who have taught me my art. To my college I will be loyal and strive always for its best interests and for the interests of the students who will come after me. I will be ever alert to further the application of basic biologic truths to the healing arts and to develop the principles of osteopathy, which were first enunciated by Andrew Taylor Still.
  • 15.
    HIPPOCRATIC OATHHIPPOCRATIC OATH (Ancient(Ancient--400B.C.)400 B.C.) Swear by Apollo Physician and Asclepius and Hygieia and Panaceia and all the gods and goddesses, making them my witnesses, that I will fulfil according to my ability and judgment this oath and this covenant:
  • 16.
    HIPPOCRATIC OATHHIPPOCRATIC OATH (Ancient(Ancient--400B.C.)400 B.C.) To hold him who has taught me this art as equal to my parents and to live my life in partnership with him, and if he is in need of money to give him a share of mine, and to regard his offspring as equal to my brothers in male lineage and to teach them this art - if they desire to learn it - without fee and covenant; to give a share of precepts and oral instruction and all the other learning to my sons and to the sons of him who has instructed me and to pupils who have signed the covenant and have taken an oath according to the medical law, but no one else.
  • 17.
    HIPPOCRATIC OATHHIPPOCRATIC OATH (Ancient(Ancient--400B.C.)400 B.C.) I will apply dietetic measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice. I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art. I will not use the knife, not even on sufferers from stone, but will withdraw in favor of such men as are engaged in this work.
  • 18.
    HIPPOCRATIC OATHHIPPOCRATIC OATH (Ancient(Ancient--400B.C.)400 B.C.) Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves. What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things shameful to be spoken about.
  • 19.
    HIPPOCRATIC OATHHIPPOCRATIC OATH (Ancient(Ancient--400B.C.)400 B.C.) If I fulfil this oath and do not violate it, may it be granted to me to enjoy life and art, being honored with fame among all men for all time to come; if I transgress it and swear falsely, may the opposite of all this be my lot.
  • 20.
    HIPPOCRATIC OATHHIPPOCRATIC OATH (Modern(Modern--1995)1995) Iswear to fulfill, to the best of my ability and judgment, this covenant: I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow. I will apply, for the benefit of the sick, all measures which are required, avoiding those twin traps of over-treatment and therapeutic nihilism.
  • 21.
    HIPPOCRATIC OATHHIPPOCRATIC OATH (Modern(Modern--1995)1995) Iwill remember that there is art to medicine as well as science, and that warmth, sympathy, and understanding may outweigh the surgeon's knife or the chemist's drug. I will not be ashamed to say "I know not," nor will I fail to call in my colleagues when the skills of another are needed for a patient's recovery.
  • 22.
    HIPPOCRATIC OATHHIPPOCRATIC OATH (Modern(Modern--1995)1995) Iwill respect the privacy of my patients, for their problems are not disclosed to me that the world may know. Most especially must I tread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.
  • 23.
    HIPPOCRATIC OATHHIPPOCRATIC OATH (Modern(Modern--1995)1995) Iwill remember that I do not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person's family and economic stability. My responsibility includes these related problems, if I am to care adequately for the sick. I will prevent disease whenever I can, for prevention is preferable to cure.
  • 24.
    HIPPOCRATIC OATHHIPPOCRATIC OATH (Modern(Modern--1995)1995) Iwill remember that I remain a member of society, with special obligations to all my fellow human beings, those sound of mind and body as well as the infirm. If I do not violate this oath, may I enjoy life and art, respected while I live and remembered with affection thereafter. May I always act so as to preserve the finest traditions of my calling and may I long experience the joy of healing those who seek my help.
  • 25.
    PRINCIPLES OFPRINCIPLES OF MEDICALETHICSMEDICAL ETHICS BENEFICENCE Acting For The Benefit Of The patient NON-MALEFICENCE Do No Harm AUTONOMY Informed Consent Decision Making Capacity JUSTICE Benefit Society
  • 26.
    ELEMENTS OFELEMENTS OF NEGLIGENCENEGLIGENCE LEGALDUTYLEGAL DUTY Fiduciary DutyFiduciary Duty BREACH OF DUTYBREACH OF DUTY Minimum Standard of Care in theMinimum Standard of Care in the CommunityCommunity Certification: National Standard of CareCertification: National Standard of Care CAUSATIONCAUSATION DAMAGESDAMAGES
  • 27.
    ELEMENTS OFELEMENTS OF NEGLIGENCENEGLIGENCE LEGALDUTYLEGAL DUTY Fiduciary DutyFiduciary Duty BREACH OF DUTYBREACH OF DUTY Minimum Standard of Care in the CommunityMinimum Standard of Care in the Community Certification: National Standard of CareCertification: National Standard of Care CAUSATIONCAUSATION Joint and Several vs. Joint And Not SeveralJoint and Several vs. Joint And Not Several DAMAGESDAMAGES
  • 28.
    CAUSATIONCAUSATION Joint And SeveralLiability:Joint And Several Liability: Multiple Parties Combine to Cause LossMultiple Parties Combine to Cause Loss Each Defendant Is Responsible Only For His/HerEach Defendant Is Responsible Only For His/Her Percentage of FaultPercentage of Fault ClaimantClaimant’’s Settlement Amounts Not Factored Intos Settlement Amounts Not Factored Into Trial JudgmentTrial Judgment Joint But Not Several Liability:Joint But Not Several Liability: Multiple Parties Combine to Cause LossMultiple Parties Combine to Cause Loss Each Defendant Is Responsible For Entire AmountEach Defendant Is Responsible For Entire Amount Claimant Can Only Recover OnceClaimant Can Only Recover Once
  • 29.
    ELEMENTS OFELEMENTS OF NEGLIGENCENEGLIGENCE LEGALDUTYLEGAL DUTY Fiduciary DutyFiduciary Duty BREACH OF DUTYBREACH OF DUTY Minimum Standard of Care in the CommunityMinimum Standard of Care in the Community Certification: National Standard of CareCertification: National Standard of Care CAUSATIONCAUSATION Joint and Several vs. Joint And Not SeveralJoint and Several vs. Joint And Not Several DAMAGESDAMAGES CompensatoryCompensatory PunitivePunitive
  • 30.
    TYPES OF DAMAGESTYPESOF DAMAGES CompensatoryCompensatory SpecialSpecial Medical Bills, Lost Wages,Medical Bills, Lost Wages, Etc.Etc. GeneralGeneral Pain & SufferingPain & Suffering PunitivePunitive Meant to Punish and DeterMeant to Punish and Deter Higher Culpability of WrongdoerHigher Culpability of Wrongdoer Higher Standard of ProofHigher Standard of Proof
  • 31.
    PUNITIVE DAMAGESPUNITIVE DAMAGES 10:1?? 145:1 500:1 0 100 200 300 400 500 1996 2003 The Future? RatioofPunitiveAwardtoCompensator
  • 32.
    PUNITIVE DAMAGESPUNITIVE DAMAGES 10:1?? 145:1 500:1 0 100 200 300 400 500 1996 2003 The Future? RatioofPunitiveAwardtoCompensator In BMW of North America v. Gore, the Supreme Court ruled in an Alabama case that punitive awards that were 500 to 1 were excessive (actual damages in the case, which involved the repainting of a car, were $4,000 but the jury awarded the plaintiff $2 million)
  • 33.
    PUNITIVE DAMAGESPUNITIVE DAMAGES 10:1?? 145:1 500:1 0 100 200 300 400 500 1996 2003 The Future? RatioofPunitiveAwardtoCompensator In Campbell v. State Farm, the Supreme Court ruled in a 22- year old Utah case that punitive awards that were 145 to 1 were excessive (actual damages in the case, which involved insurer bad faith were $1 million)
  • 34.
    PUNITIVE DAMAGESPUNITIVE DAMAGES 10:1?? 145:1 500:1 0 100 200 300 400 500 1996 2003 The Future? RatioofPunitiveAwardtoCompensator In Campbell v. State Farm, the Court added that “…few awards exceeding a single- digit ratio between punitive and compensatory damages will satisfy due process…Single digit multipliers are more likely to comport with due process, still achieving the State’s deterrence and retribution goals…”
  • 35.
    TORT DOLLARTORT DOLLAR DISTRIBUTIONDISTRIBUTION AdministrationFees = 25% Awards For Non-Economic Loss = 22% Awards For Economic Loss = 20% Attorneys Fees = 17% Defense Costs = 16%
  • 36.
    TORT DOLLARTORT DOLLAR DISTRIBUTIONDISTRIBUTION Administration 25% AwardsforNon- EconomicLoss 22% AwardsFor EconomicLoss 20% AttorneysFees 17% DefenseCosts 16%
  • 37.
    EXPRESSED REASONSEXPRESSED REASONS FORTORT REFORMFOR TORT REFORM STOPSTOP ““FRIVOLOUSFRIVOLOUS”” LAWSUITSLAWSUITS
  • 38.
    REASONS TO STOPREASONSTO STOP ““FRIVILOUSFRIVILOUS”” LAWSUITSLAWSUITS To Make Medical MalpracticeTo Make Medical Malpractice Insurance More AffordableInsurance More Affordable To Allow Physicians To PracticeTo Allow Physicians To Practice ““MedicineMedicine”” As Opposed ToAs Opposed To ““DefensiveDefensive”” MedicineMedicine So Patients Do Not ReceiveSo Patients Do Not Receive ““RewardsRewards”” From LawsuitsFrom Lawsuits
  • 39.
    SPECIFIC TORTSPECIFIC TORT REFORMPROPOSALREFORM PROPOSAL Cap NonCap Non--Economic Damages AtEconomic Damages At $250,000$250,000 Reduce AttorneyReduce Attorney’’s Feess Fees Inform The Jury Of CollateralInform The Jury Of Collateral SourcesSources Joint And Several LiabilityJoint And Several Liability Stricter Statute of LimitationsStricter Statute of Limitations
  • 40.
    THE BIG QUESTIONTHEBIG QUESTION QUESTION:QUESTION: Will The ProposedWill The Proposed Tort Reform ReduceTort Reform Reduce FrivolousFrivolous Lawsuits?Lawsuits? ANSWER:ANSWER: The Proposed TortThe Proposed Tort Reform Will OnlyReform Will Only ReduceReduce LegitimateLegitimate Lawsuits.Lawsuits.
  • 41.
    WHY?WHY? The Proposed TortReform WillThe Proposed Tort Reform Will Reduce OnlyReduce Only LegitimateLegitimate LawsuitsLawsuits BecauseBecause FrivolousFrivolous Lawsuits DoLawsuits Do Not Result In Jury Verdicts.Not Result In Jury Verdicts. Therefore, Caps Do Not Have TheTherefore, Caps Do Not Have The Intended Effect.Intended Effect.
  • 42.
    FRIVOLOUSFRIVOLOUS LAWSUITSLAWSUITS Federal RuleOf Civil Procedure,Federal Rule Of Civil Procedure, Rule 11 And The State StatutoryRule 11 And The State Statutory Counterparts Prohibit The FilingCounterparts Prohibit The Filing Of A Lawsuit Without Merit By AOf A Lawsuit Without Merit By A Licensed Attorney.Licensed Attorney.
  • 43.
    FACTSFACTS 98,000 Americans DieEach Year From Medical98,000 Americans Die Each Year From Medical MistakesMistakes 12,000 Deaths From Unnecessary Surgeries12,000 Deaths From Unnecessary Surgeries 7,000 Deaths From Medication Errors7,000 Deaths From Medication Errors 1,000,000 Americans Are Injured Each Year From1,000,000 Americans Are Injured Each Year From Medical MistakesMedical Mistakes Only 1 In 8 Injured Patients Files A LawsuitOnly 1 In 8 Injured Patients Files A Lawsuit Medication Mistakes Alone In Hospital Settings CostMedication Mistakes Alone In Hospital Settings Cost $2,000,000,000 Per Year$2,000,000,000 Per Year
  • 44.
    FACTSFACTS The Median Payout(Settlement and Judgment) ForThe Median Payout (Settlement and Judgment) For Patients Who Receive Money In A Malpractice Case isPatients Who Receive Money In A Malpractice Case is $125,000$125,000 The Median Jury Judgment For Patients Who AreThe Median Jury Judgment For Patients Who Are Successful In A Malpractice Lawsuit Is ApproximatelySuccessful In A Malpractice Lawsuit Is Approximately $1,000,000$1,000,000 Punitive Damages Were Awarded In Less Than 1% OfPunitive Damages Were Awarded In Less Than 1% Of CasesCases The Median Of Jury Verdicts In All Tort ClaimsThe Median Of Jury Verdicts In All Tort Claims Dropped By 33% to $30,000 Since 2000Dropped By 33% to $30,000 Since 2000
  • 45.
    FACTSFACTS Only 6.5 OfEvery 1,000 Physicians Will Be Sued InOnly 6.5 Of Every 1,000 Physicians Will Be Sued In Any Given YearAny Given Year 5% Of Physicians Are Responsible For 54% Of All5% Of Physicians Are Responsible For 54% Of All MalpracticeMalpractice Only 17% Of Physicians Who Have Paid On 5 Or MoreOnly 17% Of Physicians Who Have Paid On 5 Or More Lawsuits Has Been Disciplined By Their State BoardLawsuits Has Been Disciplined By Their State Board Healthcare Providers Are Successful In Jury TrialsHealthcare Providers Are Successful In Jury Trials Over 60% Of The TimeOver 60% Of The Time
  • 46.
    FACTSFACTS The Number OfMedical Malpractice LawsuitsThe Number Of Medical Malpractice Lawsuits Has Not Increased In The Last 10 YearsHas Not Increased In The Last 10 Years Federal Lawsuits Have Not Increased Since 1970Federal Lawsuits Have Not Increased Since 1970 State Lawsuits Have Continued To DecreaseState Lawsuits Have Continued To Decrease Since 1989Since 1989 The Total Number Of Medical MalpracticeThe Total Number Of Medical Malpractice Claims Decreased By 4% From 1995 To 2000Claims Decreased By 4% From 1995 To 2000
  • 47.
    WHY HAVE MALPRACTICEWHYHAVE MALPRACTICE PREMIUMS INCREASEDPREMIUMS INCREASED A Price War Started By St. Paul Led To InadequateA Price War Started By St. Paul Led To Inadequate Premiums In The 1990sPremiums In The 1990s St. Paul Had $1,100,000,000 In OverSt. Paul Had $1,100,000,000 In Over--Reserves Which ItReserves Which It Converted OverConverted Over This Mistakenly Appeared As ProfitThis Mistakenly Appeared As Profit Other Malpractice Carriers Slashed Prices In An AttemptOther Malpractice Carriers Slashed Prices In An Attempt to Attract Physicians Because They Mistakenly Believedto Attract Physicians Because They Mistakenly Believed There Were Huge ProfitsThere Were Huge Profits A Large Number Of Malpractice Insurers BecameA Large Number Of Malpractice Insurers Became UnderUnder--Capitalized And Went Into ReceivershipCapitalized And Went Into Receivership
  • 48.
    WHY HAVE MALPRACTICEWHYHAVE MALPRACTICE PREMIUMS INCREASEDPREMIUMS INCREASED Insurance Carriers Invest A Portion Of Premiums InInsurance Carriers Invest A Portion Of Premiums In The Stock MarketThe Stock Market The Stock Market Was Strong In The 1990s And InsurersThe Stock Market Was Strong In The 1990s And Insurers Were Able To Maintain Profitability Through GainsWere Able To Maintain Profitability Through Gains The Stock Market Decline Began In 2000 And InsurersThe Stock Market Decline Began In 2000 And Insurers Were Left With Limited Premiums Which Needed ToWere Left With Limited Premiums Which Needed To Increase To Make Up For The Loss Of ProfitabilityIncrease To Make Up For The Loss Of Profitability September 11, 2001, Cost Over $8,000,000,000 InSeptember 11, 2001, Cost Over $8,000,000,000 In Claims To ReClaims To Re--Insurers Which In Turn Raised TheInsurers Which In Turn Raised The Rates To Malpractice InsurersRates To Malpractice Insurers
  • 49.
    WILL CAPPING AWARDSWILLCAPPING AWARDS DECREASE MALPRACTICEDECREASE MALPRACTICE PREMIUMSPREMIUMS Capping Awards Did Not Correlate To LoweringCapping Awards Did Not Correlate To Lowering Malpractice Premiums From 1991 To 2002Malpractice Premiums From 1991 To 2002 The Median Payout In States With Caps Was 15.7%The Median Payout In States With Caps Was 15.7% Lower Than In States With CapsLower Than In States With Caps Payouts Increased By 83.3% In States With Caps WhilePayouts Increased By 83.3% In States With Caps While States Without Caps Increases Were 127.9%States Without Caps Increases Were 127.9% The Median Annual Premium Increase For States WithThe Median Annual Premium Increase For States With Caps Was 48.2% While The Median Annual PremiumCaps Was 48.2% While The Median Annual Premium Increase For States Without Caps Was 35.9%Increase For States Without Caps Was 35.9% States With Caps Experienced 10.5% Stagnant OrStates With Caps Experienced 10.5% Stagnant Or Decline In Medical Malpractice Premiums While StatesDecline In Medical Malpractice Premiums While States Without A Cap Showed A Stagnant Or Decline MedicalWithout A Cap Showed A Stagnant Or Decline Medical Malpractice Premium Rate Of 18.7%Malpractice Premium Rate Of 18.7%
  • 50.
    WILL CAPPING AWARDSWILLCAPPING AWARDS DECREASE MALPRACTICEDECREASE MALPRACTICE PREMIUMSPREMIUMS 0% Payout Increases Median Annual Premium Flat or Decline Premiums Medical Malpractice Caps CAPS NOCAPS
  • 51.
    WILL CAPPING AWARDSWILLCAPPING AWARDS DECREASE MALPRACTICEDECREASE MALPRACTICE PREMIUMSPREMIUMS CaliforniaCalifornia’’s Medical Injury Compensations Medical Injury Compensation Reform Act (MICRA)Reform Act (MICRA) NonNon--Economic Damages Are Limited ToEconomic Damages Are Limited To $250,000$250,000 Medical Malpractice Premiums In California AreMedical Malpractice Premiums In California Are 8% Higher Than Non8% Higher Than Non--Cap StatesCap States Medical Malpractice Premiums Rose 450%Medical Malpractice Premiums Rose 450% During The First 12 Years (1975During The First 12 Years (1975--1987) Until1987) Until Proposition 103Proposition 103 Proposition 103 (1988) Mandated A 20% DropProposition 103 (1988) Mandated A 20% Drop In Medical Malpractice PremiumsIn Medical Malpractice Premiums
  • 52.
    SOLUTIONS?SOLUTIONS? Remember The MedicalPrinciplesRemember The Medical Principles Try Not To Commit MistakesTry Not To Commit Mistakes BeneficenceBeneficence NonNon--MaleficenceMaleficence Admit MistakesAdmit Mistakes AutonomyAutonomy--Respect For Patients As PeopleRespect For Patients As People JusticeJustice--Statutes Not Allowing Evidence OfStatutes Not Allowing Evidence Of ““AdmissionsAdmissions”” Change of AttitudeChange of Attitude Not A Physician Versus Attorney IssueNot A Physician Versus Attorney Issue Caps Hurt Legitimate Patients And Do Not AffectCaps Hurt Legitimate Patients And Do Not Affect ““FrivolousFrivolous”” LawsuitsLawsuits ““LegitimateLegitimate”” Lawsuits Correct Bad BehaviorLawsuits Correct Bad Behavior
  • 53.
    SOLUTIONS!SOLUTIONS! HonestyHonesty Better State RegulationOf Bad DoctorsBetter State Regulation Of Bad Doctors Stiffer Penalties For Frivolous LawsuitsStiffer Penalties For Frivolous Lawsuits Award Sanctions Against Attorneys And PlaintiffsAward Sanctions Against Attorneys And Plaintiffs CostsCosts Attorneys FeesAttorneys Fees Better State Regulation By Bar Against Offending AttorneysBetter State Regulation By Bar Against Offending Attorneys Mandate Qualified Experts Who Comply With Their OathsMandate Qualified Experts Who Comply With Their Oaths Establish Databases With Previous Forensic ExperienceEstablish Databases With Previous Forensic Experience Joint And Several LiabilityJoint And Several Liability No Collateral Source RuleNo Collateral Source Rule