Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)

The Nature and Extent of Medical Error How rampant is medical error? 3-jumbo jet crashes a day Is there too much medical litigation? Does the data suggest reasons for physicians to be frustrated over malpractice litigation?

The Nature and Extent of Medical Error How rampant is medical error? 3-jumbo jet crashes a day Does the data make your nervous about your doctor? Is there too much medical litigation? Does the data suggest reasons for physicians to be frustrated over malpractice litigation?

The Nature and Extent of Medical Error How rampant is medical error? 3-jumbo jet crashes a day Does the data make your nervous about your doctor? Is there too much medical litigation? Does the data suggest reasons for physicians to be frustrated over malpractice litigation?

Extent of Suits 28% for diagnostic errors 27% for surgical errors 26% for improper medical treatment

Who Gets Sued Most Surgeons Anesthesiologists Obstetricians Emergency Medical Docs

Saks Study A negligent doctor who causes injury has a 3 out of 100 chance of being sued A non-negligent doctor has a probability of being sued for a non-negligent injury of 13 out of 10,000. Thus, for every malpractice claim in response to a negligent injury there are malpractice victims who bring no suit but there are 4-5 claims brought by non-negligently injured patients.

How the Law Effects Quality of Care Medical malpractice Licensure Certification

Medical Malpractice Defined Medical malpractice occurs when a physician fails to act as a reasonable physician would have acted under the circumstances

The Liability Formula Duty (Did a physician-patient relationship exist) + Breach of duty (Did the physician fail to meet the required standard of care) + Causation (Did the physician’s breach cause the patient’s injury) + Damages (Did the patient incur medical expenses, pain, suffering, lost wages as a result of the breach) = LIABILITY

Proof of Malpractice-Experts Generally, expert witnesses required Battle of experts Local vs. National standard Locality rule: Historic Unfair to patients if “conspiracy of silence” Fails to recognition “nationalization” of medicine National Literature Professional organizations Local standard (same locality or community of similar nature) still applicable for GPs, residents

Proof of Malpractice-Experts Generally, expert witnesses required Battle of experts Local vs. National standard Locality rule: Historic Unfair to patients if “conspiracy of silence” Fails to recognition “nationalization” of medicine National Literature Professional organizations Local standard (same locality or community of similar nature) still applicable for GPs, residents

Proof of Malpractice-Experts Generally, expert witnesses required Battle of experts Local vs. National standard Locality rule: Historic Unfair to patients if “conspiracy of silence” Fails to recognition “nationalization” of medicine National Literature Professional organizations Local standard (same locality or community of similar nature) still applicable for GPs, residents

Proof of Malpractice-No Experts Common knowledge exception Res ipsa loquitur

Malpractice Defenses Conformed to the standard of care Alternative methods of treatment Clinical innovation Contributory Fault Assumption of the risk Waiver

Malpractice Defenses Conformed to the standard of care Alternative methods of treatment Clinical innovation Contributory Fault Assumption of the risk Waiver

Malpractice Defenses Conformed to the standard of care Alternative methods of treatment Clinical innovation Contributory Fault Assumption of the risk Waiver

Liability for acts of Others Vicarious liability Captain of the Ship Doctrine Particularly for surgeons Borrowed servant doctrine Referring physicians Covering docs Physician assistants

Liability for acts of Others Vicarious liability Captain of the Ship Doctrine Particularly for surgeons Borrowed servant doctrine Referring physicians Covering docs Physician assistants

Liability for acts of Others Vicarious liability Captain of the Ship Doctrine Particularly for surgeons Borrowed servant doctrine Referring physicians Covering docs Physician assistants

Hospital Liability for Acts of Doctors Employee Doctors Sovereign and Charitable immunity Medical Staff Doctors (non-employees) Ostensible agency Typically emergency room doctors Implied agency (HMO’s watch out) Control test Negligence in granting privileges Oversight Inherent or essential functions doctrine Emergency room; pathology; anesthesia

Statute of Limitations Date of occurrence Date of discovery Continuous treatment doctrine

Statute of Limitations Date of occurrence Date of discovery Continuous treatment doctrine

Information about Malpractice Boards of Medical Examiners National Practitioner Data Bank Operational Oversight Who reports Who has access Who does not have access

Information about Malpractice Boards of Medical Examiners National Practitioner Data Bank Operational Oversight Who reports Who has access Who does not have access