substantial factor in causing the plaintiff’s injuries
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Malpractice what is it?
Malpractice is not a new concept doctors have hurt people because of their mistakes as long as there have been doctors. Nearly 3800 years ago when King Hammurabi laid down one of the earliest written codes he addressed malpractice. That written code provided that “If a surgeon has operated with the bronze lancet on a patrician…and as caused his death, or… made him to lose his eye, his hand shall be cut off.”
W now have a more enlightened system where we don’t take the surgeons hand we just take their money. The instruction that the Courts of Kentucky give to juries at the end of malpractice cases is similar to the instruction given in many states. Jurors are asked: “do you believe from the evidence that the defendant failed to exercise toward the plaintiff that degree of care and skill which is expected of a reasonably prudent cardiologist* acting under similar circumstances and that the failure to comply with this duty was a substantial factor in causing the plaintiff’s injuries.”
It is also important to know what malpractice is not. A bad outcome may or may not be malpractice. Sometimes there are bad outcomes even though the physician did everything by the book. For malpractice to exist there must be a deviation form the standard of care, in the absence of a deviation from the standard of care a bad outcome is merely a tragedy if a bad outcome is caused by a deviation of care it is both tragic and malpractice.
*note that the comparison is always made to “your own kind”. This means that cardiologists are compared to cardiologists, OB/gyns to Ob/gyns, registered nurses to registered nurses.
When a malpractice claim is made against an individual with malpractice insurance there are two important economic benefits that flow to the policy holder: (1) the insurance company will provide the insured doctor with a defense. This means a lawyer of the insurance company’s choosing will be assigned the job of representing the doctor and that attorney’s fees will be paid for by the insurance company, and (2) if there is a settlement or if the case goes to trial and the doctor loses the insurance company will, so long as the policy limits have not been used up**, pay the loss. This second benefit is referred to as the indemnification clause. Both benefits are important. The cost of defending a case can be a little scary for those that have not been around litigation.
. Recently published data shows the average cost of defending a claim is about $42,000. Complicated cases can be much higher than that. These costs are absorbed by the insurance company whether they win or lose.
Legal fees eat up a large portion of the defense costs, but this is not the only component of defense costs. In addition to paying lawyers retained to defend the accused doctors the insurance company pays for the services of expert witnesses. Virtually every malpractice case has at least one expert witness. These are individuals that come to court to testify. Many cases have multiple expert witnesses. The last malpractice case that I was involved in had six expert witnesses. Experts typically get $7,000 to $15,000 to testify. Both sides want to present experts with brilliant credentials that have the ability to effectively communicate complicated medical issues to a lay jury. In addition to explaining the case the experts are usually called upon to state their opinion about whether or not the defendant physician deviated from the standard of care.
In addition to lawyers and expert witnesses there are other expenses such as travel expenses and deposition expenses. Typically experts are out of town and it is common for them to testify by way of a deposition. A deposition is a meeting where witnesses are sworn in and give testimony outside of the court room. The transcripts of these meetings are transcribed. All of this costs money.
As a general rule the more money that is at stake, (the greater the damages suffered by the plaintiff), the more money the insurance company is willing to spend to defend the case.
**Malpractice policies always have limits. This is the maximum amount that the insurance company has at risk. Most policies have split limits. As an example a split limit policy with limits of $1M/$3M, means that the insurance company will for that year never pay put more than a total of $3 million no matter how many claims are filed; and it also means that they will pay out no more than $1 million on any single claim.
The cost of malpractice insurance varies from place to place and specialty to specialty.
This report from the Government Accounting Office is now several years old and trends have changed, but it remains a useful report for demonstrating the extraordinary variation that there can be between what one doctor pays and what another doctor pays for malpractice insurance. You do not need to read the entire GAO report, but do look at the chart that appears as figure 3 on page 14 of the report. Also read the page that precedes that chart, (p. 13).
Prices for malpractice insurance are lower today than they were in 2003 when this report was written. However, the large variation between the price of insurance in South Florida and the price in Minnesota remains alive and well. Also, alive and well is the spread in cost between what an internal medicine doctor pays and what an ob/gyn pays.
http://www.gao.gov/assets/240/238724.pdf GAO report on malpractice
READ table one found on page two of is http://truecostofhealthcare.org/wp-content/uploads/2014/12/State-Malpractice-Rank-2014.pdf shows the number of paid claims per 100 doctors for the year 2014. Nationwide that number is close to 1, meaning that for every 100 doctors in the United States a claim is paid by each year by 1 of those doctors. This is a very rough way of looking at things, but it is a short hand way of looking at the scope of the malpractice problem and the variability from state to state.
Two different views of the world
The next two articles show how two organizations can each grab statistics to make their case. The stakes are huge. You can expect the parties to the public debate to do all they can to make their respective cases. As you read these two articles keep in mind the difference between median and average. Also keep in mind that doctors win about 2/3 of the malpractices cases that go to trial.
READ pages 1 through 13 http://www.citizen.org/documents/NPDB%20Report_Final.pdf Public citizens malp myths.
the view of the American Academy of Orthopaedic Surgeons
Both organizations have laid out their best argument and used statistics to buttress their beliefs. What is certain is that astronomical amounts of money are involved and each party is hoping that their role as an advocate will sway others to see it their way.
- Legal systems can be measured by their ability to deliver on four basic measures; fairness, predictability, flexibility and enforceability. In its handling of malpractices cases how well does the American system do in the areas of fairness and predictability.? Assign letter grades and then tell me how the system could improve its gra