Malpractice =========== þ Charting - Diagrams in chart loved by defense attorneys, and hated by plaintiff attorneys-- documents detailed discussion between patient and doctor. þ Malpractice crisis - in 2004, no neurosurgery residency graduates stayed in PA. [RP Kidwell, UPMC legal, 5/06] - Med Mal national expense is rising by 11% a year the past few years. [RP Kidwell, UPMC legal, 5/06] þ STAR: UPMC disclosure of adverse events S Sympathize and apologize T Tell what happened A Assure patient that changes will be made R Remain available þ Email discussion If by 'frivolous' you mean 'malpractice suits without a basis in fact', yes, there is good evidence that most malpractice suits are without a basis in fact, most physicians sued are innocent, and that most malpractice goes unpunished, i.e., the malpractice law does not deter malpractice. New Engl J Med 1991;325:245. Of 31,429 hospitalized patients whose charts were reviewed, 280 had adverse events that the examiners felt were due to substandard medical are. Only 8 sued. However, 43 *other* patients sued who had no evidence of negligent care. [case where an ophthalmologist was found guilty of not checking IOP on someone <40 years old, even though the standard of care was not to check IOP in this younger group.] My research reveals that this is not a case dealing with strict liability. Instead, Helling v. Carey, 519 P.2d 191 (WA 1974) stands for the generally settled proposition in negligence law traceable to The T. J. Hooper, 60 F.2d 737 (2d Cir. 1932), a maritime law case, which holds that custom or accepted practice of an industry or profession is admissible as evidence of the standard of care to be followed for negligence purposes but is not dispositive as a conclusion of law regarding the existence of negligence. In Helling, supra, the Court held: "The precaution of giving this [pressure] test...to patients under the age of forty is so imperative that irrespective of its disregard by the standards of the ophthalmology profession, it is the duty of the courts to say what is required to protect the patients..." Tort law takes up a full year of legal study during law school and a lifetime afterwards. I can barely begin to discuss the most fundamental issues of this intriguing field, let alone the interesting nuances. Compare the situation with describing, in detail, the multitude of considerations a surgeon must deal with during surgery. For most, it is more than they want to know and certainly more than a surgeon would be willing or able to convey. I will say that this is not a case sounding in strict liability. As stated in a review outline, from which I quote: "...the basis for strict liability is that those who engage in certain kinds of activities do so at their own peril, and must pay for any damage which results, even if the activity has been carried out in the most careful possible manner. Such activities, it is felt, should 'pay their own way' since it is usually easier for the defendant to bear the loss (probably through liability insurance) than for the plaintiff to do so." -------------- Brennan TA, et al: Relation between negligent adverse events and the outcomes of medical malpractice litigation. New Engl J Med 1996;335:1963-1967. This is follow up study to the famous paper from Harvard that found that most substandard medical care (of which they found a depressing amount) never results in legal action, and in most malpractice suits no negligent care can be identified by objective reviewers. The authors followed 51 malpractice suits filed by study patients, over 10 years. The authors conclude that in a multivariate analysis, disability was the only significnt predictor of payment to the plaintiff (p < 0.03). An actual adverse event, or negligence, were not associated with 'payment to the plaintiff'. The major problem with this study, that I can see, is with only 51 cases, they must have had limited power to prove any association. I can't see where they discuss power at all in the article. From the discussion: "Our results call into question why the U.S. tort system persists in making determinations of negligence when compensation for medical injury is being considered. If the permanence of a disability, not the fact of negligence, is the reason for compensation, the determination of negligence may be an expensive sideshow. It may pollute the compensation process by creating an adversarial atomosphere and may interfere with quality-improvement efforts." John Schoffstall, M.D., aka schoffstall@allegheny.edu Arch Intern Med 1994 Jun 27;154(12):1365-70 The doctor-patient relationship and malpractice. Lessons from plaintiff depositions. Beckman HB, Markakis KM, Suchman AL, Frankel RM Department of Medicine, Highland Hospital, Rochester, NY 14620. BACKGROUND: The current literature does not provide an answer to the question, "What prompts patients to sue doctors or hospitals?" Not all adverse outcomes result in suits, and threatened suits do not always involve adverse outcomes. The exploration of other factors has been hampered by the lack of a methodology to contact plaintiffs and elicit their views about their experience in delivered health care. This study employed the transcripts of discovery depositions of plaintiffs as a source of insight into the issues that prompted individuals to file a malpractice claim. METHODS: This study is a descriptive series review of a convenience sample of 45 plaintiffs' depositions selected randomly from 67 depositions made available from settled malpractice suits filed between 1985 and 1987 against a large metropolitan medical center. Information extracted from each deposition included the alleged injury; the presence of the question, "Why are you suing?" and, if present, the answer; the presence of problematic relationship issues between providers and patients and/or families and, if present, the discourse supporting it; the presence of the question, "Did a health professional suggest maloccurrence?" and, if yes, who. Using a process of consensual validation, relationship issues were organized into groups of more generalized categories suggested by the data. Answers to the questions, "Why are you suing?" and "Who suggested maloccurrence?" are described. RESULTS: Problematic relationship issues were identified in 71% of the depositions with an interrater reliability of 93.3%. Four themes emerged from the descriptive review of the 3787 pages of transcript: deserting the patient (32%), devaluing patient and/or family views (29%), delivering information poorly (26%), and failing to understand the patient and/or family perspective (13%). Thirty-one plaintiffs were asked if health professionals suggested maloccurrence. Fifty-four percent (n = 17) responded affirmatively. The postoutcome-consulting specialist was named in 71% (n = 12) of the depositions in which maloccurrence was allegedly suggested. CONCLUSIONS: In our sample, the decision to litigate was often associated with a perceived lack of caring and/or collaboration in the delivery of health care. The issues identified included perceived unavailability, discounting patient and/or family concerns, poor delivery of information, and lack of understanding the patient and/or family perspective. Particular attention should be paid to the postadverse-event consultant-patient interaction. Comment in: Arch Intern Med 1995 Mar 13;155(5):543 (2) Brennan, TA. Relation between negligent adverse events and the outcomes of medical-malpractice litiation. NEJM 1996; 335:1963-7.