Current Legal and Ethical Controversies in American Health Care

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Presentation transcript:

Current Legal and Ethical Controversies in American Health Care Strengths and Shortcomings of the Medical Malpractice System

Goals of the Legal System Regarding Patients and Their Medical Care? Compensate [some] injured patients Improve quality of care, by deterring (punishing) undesirable conduct Efficiency Sensitivity Specificity Does system “overdeter” physicians to overtreat or undertreat patients? Defensive medicine? Fairness

The Current Malpractice System Based on individual civil lawsuits for $$ damages Main theory is Negligence. Elements: Duty of due care owed, based on a relationship Unintentional breach/violation of duty Causation Damage/Injury

Process Complaint filed Answer to the complaint Discovery process Written interrogatories, with document requests Request for admissions Depositions Settlement attempts

Trial Post-trial motions Appeal(s)

Supplements to the Current System Criminal prosecutions Professional discipline apparatus

Defensive Medicine Good defensive medicine Bad defensive medicine Assurance behavior Avoidance behavior

“Reforms”/Alternatives Tinkering Damage caps Shorter statutes of limitations Affidavit requirement Limits on who can be an expert witness Limits on attorneys’ fees Early offer plans

“Reforms”/Alternatives (cont.) More radical Health courts Enterprise liability Administrative compensation system (like Workers’ Compensation) Florida NICA system Better first party insurance Social Private

Impediments to Change Political Economic Legal Federalist system—50+ different jurisdictions Constitutional right to a jury trial Equal Protection