Medical Error and Malpractice Liability Clayton L. Thomason, J.D., M.Div. Asst. Professor, Dept. of Family Practice & Center for Ethics College of Human Medicine Adjunct Professor, MSU-DCL College of Law Michigan State University

Tort Law Tort = a civil wrong Tort = a civil wrong Sometimes also considered crimes (intent) Sometimes also considered crimes (intent) Governed by state law, common law doctrines Governed by state law, common law doctrines Designed to prevent harm or compensate for harm to a person Designed to prevent harm or compensate for harm to a person Primary aim = to provide relief through compensation to injured parties for the damages incurred Primary aim = to provide relief through compensation to injured parties for the damages incurred

Medical Malpractice Professional liability for personal injury Professional liability for personal injury When physician agrees to diagnose & treat a patient, assumes a duty of care toward that patient When physician agrees to diagnose & treat a patient, assumes a duty of care toward that patient Medical Negligence: failure to meet that duty of care Medical Negligence: failure to meet that duty of care To provide the standard of care To provide the standard of care May include criminal negligence, malicious intent, or strict liability May include criminal negligence, malicious intent, or strict liability May also be subject to disciplinary sanctions May also be subject to disciplinary sanctions By State Medical Boards By State Medical Boards

Elements of a Cause of Action in Negligence (Malpractice) 1. Duty of Care 2. Negligent Breach of Duty 3. Causation 4. Damages

1. Standard of Care What is the applicable standard of care in medical malpractice cases? What is the applicable standard of care in medical malpractice cases? Professionals are held to a standard of care, judged by: Professionals are held to a standard of care, judged by: Professional Standard: a reasonable & prudent physician of ordinary skill (majority of states) Professional Standard: a reasonable & prudent physician of ordinary skill (majority of states) MI: “minimum acceptable standard of care” MI: “minimum acceptable standard of care” Reasonable Patient Standard: what a reasonable patient in similar situation would expect Reasonable Patient Standard: what a reasonable patient in similar situation would expect Individual Patient Standard: what this patient expects Individual Patient Standard: what this patient expects Usually determined by court using expert testimony Usually determined by court using expert testimony

2. Breach of Duty Was there a breach of this standard of care? Was there a breach of this standard of care? Negligent breach of the standard of care Negligent breach of the standard of care Negligence can occur at different stages: Negligence can occur at different stages: Misdiagnosis Misdiagnosis Failure to properly treat Failure to properly treat Administering wrong medication Administering wrong medication Failure of informed consent Failure of informed consent Failure to inform patient about risks, alternative treatments, e.g. Failure to inform patient about risks, alternative treatments, e.g. Negligence is usually established by expert witnesses Negligence is usually established by expert witnesses

3. Causation Once it has been shown that a physician (hospital, other professional) has been negligent Once it has been shown that a physician (hospital, other professional) has been negligent Plaintiff must prove that this negligence caused (or worsened) the harm/injury Plaintiff must prove that this negligence caused (or worsened) the harm/injury The negligent act must be directly responsible for the harm (proximate cause) The negligent act must be directly responsible for the harm (proximate cause) or at least have contributed to it (cause-in-fact) or at least have contributed to it (cause-in-fact)

4. Damages If plaintiff establishes negligence & liability, they are entitled to damages (financial compensation) for: If plaintiff establishes negligence & liability, they are entitled to damages (financial compensation) for: Compensatory damages: Past/future medical bills, lost wages Compensatory damages: Past/future medical bills, lost wages Non-economic Damages: Pain & Suffering Non-economic Damages: Pain & Suffering Capped (1994) in MI: $280,000 Capped (1994) in MI: $280,000 Except for paralysis, cognitive impairment or loss of reproductive capacities = $500,000 Except for paralysis, cognitive impairment or loss of reproductive capacities = $500,000 Attorney Fees Attorney Fees MI: In personal injury & wrongful death cases = limited to 1/3 of award to plaintiff MI: In personal injury & wrongful death cases = limited to 1/3 of award to plaintiff Damages reduced by Damages reduced by Contributory negligence (of plaintiff) Contributory negligence (of plaintiff) Joint and Several liability (of other parties) Joint and Several liability (of other parties)

Assessing Risks... Not all patients sue over adverse outcomes (approx 1 in 8) Not all patients sue over adverse outcomes (approx 1 in 8) NEJM ;370 NEJM ;370 Not all who can sue want to sue Not all who can sue want to sue Reduced by how physicians communicate with patients Reduced by how physicians communicate with patients Trial attorneys are highly selective in which cases they accept Trial attorneys are highly selective in which cases they accept Disincentives lead plaintiffs attorneys to reject 7 of 8 potential malpractice cases (Bovjerg RR, Law & Contemp Probs 1991;54:5) Disincentives lead plaintiffs attorneys to reject 7 of 8 potential malpractice cases (Bovjerg RR, Law & Contemp Probs 1991;54:5)

... Assessing Risks Chance of success Chance of success Approx 10 claims/100 physicians (1995) Approx 10 claims/100 physicians (1995) But based on multiple claims for a few physicians But based on multiple claims for a few physicians 85% of payments were for 3-6% of physicians charged in one FL study 85% of payments were for 3-6% of physicians charged in one FL study Plaintiffs receive some monetary award in approx. 50% of cases Plaintiffs receive some monetary award in approx. 50% of cases Varies by region, specific merit of cases, defensibility of claim. Varies by region, specific merit of cases, defensibility of claim. Settlement = more frequent than jury trial Settlement = more frequent than jury trial Frequently $5-10K (nuisance suits), but inflated by a few big awards (44% below $30K in Physician’s Data Bank in 1998) Frequently $5-10K (nuisance suits), but inflated by a few big awards (44% below $30K in Physician’s Data Bank in 1998)

Mistake or Negligence? Medical Error = “preventable adverse medical events” Medical Error = “preventable adverse medical events” Errors of omission or commission Errors of omission or commission Honest Mistakes Honest Mistakes Negligent Actions = preventable, harmful actions that fall below the standard of care Negligent Actions = preventable, harmful actions that fall below the standard of care Hebert PC, Levin AV, Robertson G. Bioethics for clinicians: 23. Disclosure of medical error. CMAJ 2001:164(4);509.

Tort Reforms... State Reforms (go-slow approach) State Reforms (go-slow approach) Arbitration Arbitration MI: Before malpractice cases can go to trial, subjected to mandatory mediation panel. MI: Before malpractice cases can go to trial, subjected to mandatory mediation panel. Evaluation of plaintiff/defendant’s cases Evaluation of plaintiff/defendant’s cases Either party can object and proceed to trial Either party can object and proceed to trial Party who rejects findings and loses at trial is required to pay other party’s court costs Party who rejects findings and loses at trial is required to pay other party’s court costs Parties can agree to Binding Arbitration for claims < $75,000 Parties can agree to Binding Arbitration for claims < $75,000 Caps on damages (45 states) Caps on damages (45 states) MI: $280K for non-economic damages MI: $280K for non-economic damages Imposing procedural barriers to discourage suits Imposing procedural barriers to discourage suits CA: MICRA (1975) CA: MICRA (1975)

... Tort Reforms Federal Proposals: federalize tort reform through national standards (H.R. 5 (2003) HEALTH Act) Federal Proposals: federalize tort reform through national standards (H.R. 5 (2003) HEALTH Act) Limit frequency of litigation Limit frequency of litigation Limit size of non-economic damages Limit size of non-economic damages But does not address long-term health care quality improvement in malpractice reform context But does not address long-term health care quality improvement in malpractice reform context Because limited short-term effect on insurance rates Because limited short-term effect on insurance rates No-Fault Approach No-Fault Approach Eliminate need to [prove negligence Eliminate need to [prove negligence As in Worker’s Compensation, auto insurance, e.g. As in Worker’s Compensation, auto insurance, e.g. “Enterprise Rating” systems, such as Sweden, e.g. “Enterprise Rating” systems, such as Sweden, e.g.

Defensive Medicine AMA (1985): AMA (1985): “performance of diagnostic tests and treatments which, but for the threat of a malpractice action would not have been done.” “performance of diagnostic tests and treatments which, but for the threat of a malpractice action would not have been done.” A clinical decision or action motivated in whole or in part by the desire to protect oneself from a malpractice suit or to serve as a reliable defense is such as suit occurs. A clinical decision or action motivated in whole or in part by the desire to protect oneself from a malpractice suit or to serve as a reliable defense is such as suit occurs. Deville K. Act first and look up the law afterward?: Medical malpractice and the ethics of defensive medicine. Th Med & Bioethics 1998; 19:

Ethics of Defensive Medicine Ethics of Defensive Medicine A range of practices that subject the patient to: A range of practices that subject the patient to: No additional physical or emotional risk; financial costs minimal or offset by benefits of the practice No additional physical or emotional risk; financial costs minimal or offset by benefits of the practice Virtually no risk or pain, but impose additional financial costs, increase patient’s anxiety, or other harms Virtually no risk or pain, but impose additional financial costs, increase patient’s anxiety, or other harms Significantly increased physical, psychological, and financial risks, or infringe on important personal rights. Significantly increased physical, psychological, and financial risks, or infringe on important personal rights. Deville, supra, at 577.

Avoiding Inappropriate Defensive Practice 1. Make a clinically sound treatment decision. 2. Accurately identify the legal risk in the case. 3. Evaluate the risk by estimating potential costs of the claim in time, anxiety, money. 4. Discount that risk calculation by the unlikelihood of its occurrence and the potential claim’s defensibility. 5. Evaluate that cost to the patient and society of potential defensive measures. Deville, supra, at 582.

Approaches to Disclosing Error in Practice... Report/Resolve conflicts as “close to the bedside” as possible. Report/Resolve conflicts as “close to the bedside” as possible. Keep accurate, contemporaneous records of all clinical activities. Keep accurate, contemporaneous records of all clinical activities. Notify insurer and seek assistance from others who can help (e.g., risk manager). Notify insurer and seek assistance from others who can help (e.g., risk manager). Take the lead in disclosure; don’t wait for patient to ask. Take the lead in disclosure; don’t wait for patient to ask. Outline a plan of care to rectify the harm and prevent recurrence. Outline a plan of care to rectify the harm and prevent recurrence. Offer to get prompt second opinions where appropriate. Offer to get prompt second opinions where appropriate.

... in Practice Offer the option of family meetings, get professional help to conduct them. Offer the option of family meetings, get professional help to conduct them. Offer the option of follow-up meetings. Offer the option of follow-up meetings. Document important discussions. Document important discussions. Be prepared for strong emotions. Be prepared for strong emotions. Accept responsibility for outcomes, but avoid attribution of blame. Accept responsibility for outcomes, but avoid attribution of blame. Apologies and expressions of sorrow are appropriate. Apologies and expressions of sorrow are appropriate. Cf., Hebert, et al., supra, CMAJ 2001:164(4);509