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To avoid medical malpractice, it is important to
understand what malpractice is. The following primer gives the
law of medical malpractice in a nutshell.
Donald J. Palmisano, M.D., J.D., in addition to his medical and legal
background, has had extensive experience in the medical malpractice
arena including the review of over 3000 claims as a founding member of
a physician's captive insurance company where he served on it's board
and as Secretary and Vice President of Claims from 1982 until September
1989. Presently, he is President of Intrepid Resources/The
Medical Risk Manager Company, 5000 West Esplanade Ave., #432, Metairie,
LA, 70006 (504/455-5895) which has done risk management and claims
review for physicians, clinics, and hospitals nationwide.
Remember, the primer below attempts to explain the terminology of the
law. Dr. Palmisano advocates that all physicians practice ethical
science-based Medicine and always do what is in the patient's best
interest. (See his May 2002 Commencement Address to LSU HSC graduates.)
To avoid medical malpractice, it is important to understand what malpractice is.
The following primer gives the law of medical malpractice in a nutshell.
Overview Of Law
A PRIMER
EVERYTHING YOU NEED TO KNOW, BUT DIDN'T KNOW WHO TO ASK
A. MALPRACTICE
1. Definition
ABCD rule
A: Accept
If someone is not your patient, that individual cannot sue you and win
for negligent medical care. Physicians, in most circumstances, still
have a right to decide whether or not an individual will be accepted as
a patient. There are exceptions, such as the emergency room physician
who has contracted to treat all individuals presenting to that
emergency room department.
B: Breach
A breach or violation of the standard of care is a necessary element to
constitute malpractice. See discussion of standard of care below.
C: Cause
The breach of the standard of care must directly cause injury to the patient. The law calls this "proximate cause".
D: Damage
There must be injury to the patient that can be proven and this injury
must have directly resulted from substandard care given to the patient.
One sentence definition: Malpractice is a violated duty causing harm.
One word definition: Unreasonableness
This is my one word definition of malpractice if you are asked to distill malpractice to its essence.
2. Standard of care
Definition: To do what a reasonable physician would do with the same or similar patient under the same or similar circumstances.
Need for an expert:
To determine the standard of care; to determine if the duty was
breached in the B part of the ABCD rule. A physician is required to
give reasonable care. The expert determines if the treating physician
met the standard or failed to meet it.
Exceptions to the need for an expert to determine standard of care
a. Res ipsa loquitur: "The thing speaks for itself"
Criteria
- When it is common knowledge among laymen that the accident is the
sort that does not ordinarily occur in the absence of negligence
- The injury producing instrumentality or conduct must have been at some significant time within the control of the defendant
- It must not be an injury that the plaintiff (patient) voluntarily assumed
- Sometimes there is a fourth element: that the evidence is more accessible to the defendant rather than to the plaintiff
Examples
- Sponge or instrument left in the patient after operation
- Operating on the wrong patient or removing the wrong organ or limb
- Putting biopsies from multiple sites in both breasts in same container and one biopsy is cancer
Herb Mang, JD, test for res ipsa loquitur
Also known as the "Oh, my God!" test. Suppose someone tells you of an
incident and asks you whether it would be considered res ipsa loquitur.
If your response after hearing the tale is "Oh, my God!”, then it
has a high probability of satisfying the criteria for res ipsa loquitur!
b. Common knowledge
c. Admission: Admit that textbook or JCAHO recommendations are authoritative and set the standard of care.
d. Breach of contract: The model of harmonious perfection case
A plastic surgeon did cosmetic surgery on a woman's face with the
promise that he would make her "a model of harmonious perfection". She
sued him and the jury, after looking at her, awarded damages, not for
negligent care, but for breach of contract!
Be careful what you promise. Watch out for promotional brochures,
billboards, or other advertisement that may make you liable for
promises. Remember that legal liability can be imposed without a
written contract under the legal theory of detrimental reliance.
Know the importance of special medical malpractice laws in the state in
which you practice. Examples of states with medical malpractice laws
favorable to the practice of medicine and care of patients: California,
Indiana, Texas, and Louisiana.
For more information, read an article I co-authored discussing the
states with a favorable limitation of liability law, This article also
documents which states have had their laws ruled constitutional by the
courts and gives tips on the constitutional issues. See The Bulletin Of
The American College Of Surgeons, Volume 78, Number 4, Pages 27-30,
April 1993.
More details about three of the states with a favorable law:
CALIFORNIA
MICRA (Medical Injury Compensation Reform Act)
California in 1975 enacted:
-$250,000 cap on non-economic damages
-Modifications to the collateral source rule * Mandatory periodic payments of future damages
-Sliding scale for plaintiff attorneys' contingency fees
-California Supreme Court ruled this law constitutional.
LOUISIANA
LOUISIANA'S MEDICAL MALPRACTICE ACT: ACT 817 OF 1975
Not automatic; you need to enroll
Advantages of the Act
-Limitation of liability $100,000 for Health Care Provider
-Limitation of Recovery to $500,000 plus future medical expenses as incurred
-Medical Review Panel prior to suit
-Proscription of the Ad Damnum Clause
Prevents stating how much money the plaintiff is suing for; eliminates some of the sensationalism
The Louisiana Medical Malpractice Act was ruled constitutional by Louisiana Supreme Court. Periodically it is up for challenge.
Prescription in Louisiana (Statute of limitations)
Can file suit up to one year from discovery of the alleged malpractice,
but no more that three years from the event. This applies to infants
also.
TEXAS
One could argue that this is now the best medical liability reform act
currently in America. The reason for that statement is not just the cap
on non-economic damages:
“non-economic damages are limited to a total of $250,000 from all
doctors and other individuals. Non-economic damages are limited to
$250,000 fromeach hospital or other institution and a total of $500,000
from all institutions. See Tex. Civ. Prac. & Rem. Code.
§
74.001(a)(2) (Westlaw 2007).
The real quantum leap was the very important change in the Texas
constitution that was made by the voters on September 13, 2003 with the
passage of Proposition 12. This constitutional change states that the
legislature has the right to set caps on non-economic damages in
medical liability cases. See Tex. Const. art. III, § 66.
When caps on damages are overturned in a state, it is because of
wording in the state constitution. The Federal constitution
doesn’t prohibit caps. Thus, by changing the constitution in
Texas it eliminates the long wait in constitutional challenges and
eliminates the anxiety of insurers that they will set rates too low
because ten years later the cap is overturned and
they have not collected enough money to pay the claims. Proof of the
advantage of such an approach is the great influx of physicians and
medical liability insurance carriers and the dramatic reduction
of
medical liability premiums in Texas. Some carriers reduced rates
immediately and at the end of the first year after passage of
Proposition 12 the rate reduction was 17-18% by various carriers.
See the Texas Medical Association press release at:
http://www.texmed.org/Template.aspx?id=2819
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