Medical Malpractice – Prof. David Hyman – Spring 2010
I. Introduction to Malpractice
a. Goals of medical malpractice system
i. Deterrence of negligence
1. By forcing people to internalize costs of their “bad” behavior, creates an incentive to not be negligent
2. Deterrent effect decreases if it’s too cheap to be negligent (i.e. if damage awards are not large enough)
ii. Compensation of negligently injured patients
1. How poor or good of a job is the system doing?
2. Constrained by the nature of damages the legal system compensates for
a. Economics – lost earnings + medical expenses
b. Noneconomic – pain and suffering, hedonic losses, etc.
3. Damages are under-inclusive, and sometimes over-compensatory
4. Usually not fully compensated by damages because must pay lawyer out of recovery
iii. Punish “really bad” doctors – punitive damages
iv. Corrective justice
1. State of the world is improved normatively by bad people having to pay for what they did, separate from deterrence & compensation
v. Innovation incentives
b. Alternative mechanisms to police health care
i. Licensure
ii. Hospital privileges
iii. Information disclosure
c. Trend of increasing malpractice insurance premiums
i. Malpractice fees vary by specialty (i.e. obstetrics – very high) and location
1. Implication is that services that were bundled might become unbundled
2. Fewer family physicians will deliver babies
3. Success – if obstetricians are better at delivering babies
4. Failure – if there is a shortage of people to deliver
ii. Explanation of increase
1. Tort-based explanations
2. Insurance explanations
3. Physicians: too much malpractice liability, predatory lawyers, greedy insurance companies, defensive medicine
4. Lawyers: too much medical malpractice, negligent doctors, greedy insurance companies
iii. Remedy?
1. Physicians: cap damages and attorneys’ fees, expert witness screening, alternative dispute resolution
2. Lawyers: public access to National Practitioner Data Bank, aggressive tort litigation, elimination of peer review privileges, mandatory reporting of errors, antitrust scrutiny of insurers
d. Problems with tort system
i. Under-compensates victims of negligence
1. Most of people who are negligently injured don’t sue
2. A lot of the people who do sue aren’t actually injured negligently
ii. No compensation for those who don’t sue
1. The moderately injured, those with small damages
2. Often the elderly and the poor
iii. High loading costs, and slow
iv. Insurance cycle problems
v. Ask: do the proposed reforms actually address these problems?
e. Proposed/actual reforms
i. Screening panels – doctor, lawyer & judge hear presentations and assess which cases have merit
ii. Eliminate joint & several liability – if one party is responsible for a small portion of negligence, why should they be liable for all damages
iii. Caps on noneconomic damages – 26 states
iv. Alternative dispute resolution – mediation, arbitration
v. Protections for apology
vi. Health courts – judges and juries are part of the problem
vii. Enterprise liability – attempt to aggregate around larger pool, framing around health plans, hospitals, and doctors’ groups
viii. No-fault liability – lower administrative costs, lower dollars per claim, faster resolution (ex – workers compensation)
f. Themes
i. Hindsight bias
II. Physician Liability
a. Custom-based standard of care
i. Standard for assessing negligence = professional standard of care
1. McCourt v. Abernathy – degree of skill and care that a physician must use in diagnosing a condition is that which would be exercised by a competent practitioner in defendant’s field of medicine
a. Negligence may not be inferred from a bad result
b. Punitive damages – need evidence of willful, wanton, or reckless disregard of plaintiff’s rights. Conscious failure to exercise due care creates willfulness.
ii. In ordinary negligence, the duty of care is set based on what a reasonable person would do, however for health care, the standard of care is created by custom
1. Locke v. Pachtman – expert testimony important in establishing a medical malpractice claim, as jury must be educated regarding matters not within their common purview. However, expert testimony not required where defendant mistakenly treated or did injury to a portion of the body that was free of disease and not designated for treatment.
a. Expert witness did not establish standard of care, because while she explained why needles sometimes break, she did not explain what a reasonably prudent surgeon would do, in keeping with standards of professional practice
b. Elements of malpractice claim:
i. Standard of care
ii. Breach of standard of care by defendant
iii. Injury
iv. Proximate causation between alleged breach and injury
2. Pros of deferring to medical custom
a. Layperson lacks knowledge of something so specialized
3. Cons of deferring to medical custom
a. Need more testimony to show “what would a reasonable medical professional do”
b. In other negligence cases, adherence to custom is only evidence of non-negligence, and is not conclusive
c. The question should be – what the industry should do
d. Large variations in the ways physicians treat a problem
4. Standard of care = reasonably competent physician, well-trained in the art
a. Not average
b. Not minimally competent
iii. Role of the jury
1. Traditional deference to medical customers
a. Physicians given power to set their own standard of care, distinguishing medical malpractice actions from other negligence actions, in which compliance with industry custom is simply one factor for jury to consider
b. Materially changes jury’s function – job is merely to determine whether defendant complied with industry norms instead of considering all evidence to determine whether behaved reasonably under the circumstances
2. Recent retreat from custom-based standard
a. Some states have moved towards “reasonable physician test,” in which jury decides whether defendant behaved reasonably, and not whether she complied with custom
b. Experts argue about what physicians should do, rather than what they ordinarily do
b. Variations in the standard of care
i. Location, schools of thought, experiments, specialization
1. Locality rule
a. Reflects differences in expertise and availability of medical care
b. Advantage: tailors more accurately the standard of care to the setting where the individual practices
c. Disadvantages:
i. Might set standard too low
ii. If you need an expert from the same locality, ability to find an expert might be limited (reluctant to testify for reputational reasons)
d. Chapel v. Allison – non-board-certified general practitioner is held to the standard of a “reasonably competent general practitioner acting in the same or similar community in the U.S. in the same or similar circumstances”
i. Similar circumstances – permits consideration of legitimate local factors affecting ordinary standard of care, including resources, and facilities and options available to physician at time
ii. When a defendant is board-certified, he is held to a national standard of care
iii. Court trend of moving away from “same locality rule” – in which physician is to exercise reasonable care and skill which is “usually exercised by physicians or surgeons of good standing in the community in which he resides”
e. National standard is “lowered” by its inclusion of “similar circumstances”
f. Local standard is “raised” when applied to board-certified specialists
2. Training differences (general physicians v. specialists)
a. Traditionally: state-by-state standard
b. For board-certified physicians – national standard of care
c. Doctors who hold themselves out as specially trained professionals are held to that standard of care
3. Schools of thought
a. Where there is no consensus in medical community
b. Disadvantage: can’t use malpractice system to do quality assurance
c. Jones v. Chidester – requirement for qualifying for “two schools of thought” doctrine = “considerable number of physicians, recognized and respected in their field, sufficient to create another school of thought.”
d on series of claims:
i. Health care is complicated
ii. Evaluating quality of treatment is best left to professionals and not juries
iii. To encourage individuals to participate in peer review, need to provide incentive to be forthcoming with information and time
iv. Peer review represents a balancing of competing interests at stake
1. Not revealing information
2. Providing incentives for institutions to improve quality of care
4. Incident reports & investigations
a. Conducted by hospital risk-management departments
b. Seek to protect as work product under attorney-client privilege – not always successful
5. Past claims record
a. National Practitioner’s Databank
i. Insurance companies have to report payments to patients
ii. Hospital that takes adverse action against physician must disclose
iii. Hospitals can inquire as to whether a physician has had past claims or disciplinary proceedings brought against them
iv. Individual consumers cannot get access to the information on a physician-identified basis
b. State databases – have variability in information made available
i. Closed claims databases (insurance claims data)
ii. IL: paid and unpaid claims – not made publicly available
1. Until last week
iii. TX: consumers can downloaded detailed closed claim information on a de-identified basis
iv. FL & MA: can see whether doctor has been sued, and how much has been paid on their behalf
6. Patient Safety & Quality Improvement Act
a. Protects from discovery any report of medical errors made by health care providers to certified “patient safety organizations” such as JCAHO
III. Alternative Theories of Liability
a. Res ipsa and negligence per se
i. Res ipsa loquitur
1. Allows a finding of negligence without expert testimony in proper circumstances
2. Locke v. Pachtman – case could not proceed on res ipsa theory where defendant’s needle broke during surgery, and the surgeon, despite attempts to locate the fragment, was unable to.
a. Distinguished from a case in which the needle was left inside due to carelessness
3. Factors:
a. Kind of thing that doesn’t happen without negligence
b. Caused by agency or instrumentality within exclusive control of defendant
i. Often not applied literally in malpractice context
c. No action attributable to decisions or behavior of plaintiff
d. Evidence of true explanation of even more readily accessible to defendant than plaintiff
4. Recurring situations that courts allow to go to the jury without expert testimony on deviation from customary practice:
a. Foreign objects left behind after surgery
b. Injury to a part of the body that was not involved in the operation
c. Removal of the wrong organ or appendage
