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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?

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medical malpractice

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
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 error3
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 error4
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
Extent of Suits
  • 28% for diagnostic errors
  • 27% for surgical errors
  • 26% for improper medical treatment
who gets sued most
Who Gets Sued Most
  • Surgeons
  • Anesthesiologists
  • Obstetricians
  • Emergency Medical Docs
saks study
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 15-30 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
How the Law Effects Quality of Care
  • Medical malpractice
  • Licensure
  • Certification
medical malpractice defined
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
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
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 experts12
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 experts13
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
Proof of Malpractice-No Experts
  • Common knowledge exception
  • Res ipsa loquitur
malpractice defenses
Malpractice Defenses
  • Conformed to the standard of care
  • Alternative methods of treatment
  • Clinical innovation
  • Contributory Fault
  • Assumption of the risk
  • Waiver
malpractice defenses16
Malpractice Defenses
  • Conformed to the standard of care
  • Alternative methods of treatment
  • Clinical innovation
  • Contributory Fault
  • Assumption of the risk
  • Waiver
malpractice defenses17
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
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 others19
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 others20
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
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
Statute of Limitations
  • Date of occurrence
  • Date of discovery
  • Continuous treatment doctrine
statute of limitations23
Statute of Limitations
  • Date of occurrence
  • Date of discovery
  • Continuous treatment doctrine
information about malpractice
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 malpractice25
Information about Malpractice
  • Boards of Medical Examiners
  • National Practitioner Data Bank
  • Operational Oversight
  • Who reports
  • Who has access
  • Who does not have access