Medical Malpractice Medical Malpractice A Physician’s Sourcebook A Physician’s Sourcebook Edited by Richard E. Anderson, MD , FACP Edited by Richard E. Anderson, MD , FACP M EDICAL M ALPRACTICE MEDICAL MALPRACTICE A PHYSICIAN’S SOURCEBOOK Edited by RICHARD E. ANDERSON, MD, FACP Chairman and Chief Executive Officer, The Doctors Company, Napa, CA © 2005 Humana Press Inc. 999 Riverview Drive, Suite 208 Totowa, New Jersey 07512 humanapress.com For additional copies, pricing for bulk purchases, and/or information about other Humana titles, contact Humana at the above address or at any of the following numbers: Tel.: 973-256-1699; Fax: 973-256-8341, E-mail: humana@humanapr.com; or visit our Website: www.humanapress.com All rights reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording, or otherwise without written permission from the Publisher. All articles, comments, opinions, conclusions, or recommendations are those of the author(s), and do not necessarily reflect the views of the publisher. This book is sold with the understanding that neither the author nor the publisher is engaged in rendering legal advice or the practice of law. If legal advice is required, it is the responsibility of the reader to hire an attorney. Publisher and author are not responsible for any errors or omissions or for any consequences from the application of the information presented in this book pertaining to matters of law. Due diligence has been taken by the publishers, editors, and authors of this book to assure the accuracy of the information published and to describe generally accepted practices. The contributors herein have carefully checked to ensure that the drug selections and dosages set forth in this text are accurate and in accord with the standards accepted at the time of publication. 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Printed in the United States of America. 10 9 8 7 6 5 4 3 2 1 eISBN 1-59259-845-5 Library of Congress Cataloging-in-Publication Data Medical malpractice : a physician's sourcebook / edited by Richard E. Anderson. p. ; cm. Includes bibliographical references and index. ISBN 1-58829-389-0 (alk. paper) 1. Physicians Malpractice United States. [DNLM: 1. Malpractice United States. 2. Insurance, Liability United States. 3. Medicine United States. 4. Physicians United States. W 44 AA1 M4884 2005] I. Anderson, Richard E. KF2905.3.M439 2005 344.7304'11 dc22 2004008594 DEDICATION This book is dedicated to the men and women in the medical profession who, day and night, care for the sick and comfort the dying. PREFACE vii Books such as this one are deceptively difficult to create. The general subject is neither happy, nor easy, nor most anyone’s idea of fun. Mal- practice litigation, however, has become a central fact of existence in the practice of medicine today. This tsunami of lawsuits has led to a high volume of irreconcilable rhetoric and ultimately threatens the stability of the entire health care system. Our goal has been to provide a source of reliable information on a subject of importance to all who provide medi- cal care in the United States. The book is divided into four sections. Part I gives an overview of insurance in general and discusses the organization of professional li- ability insurance companies in particular. Part II focuses on the litigation process itself with views from the defense and plaintiff bar, and the physician as both expert and defendant. Part III looks at malpractice litigation from the viewpoint of the practicing physician. Some of the chapters are broadly relevant to all doctors—the rise of e-medicine, and the importance of effective communication, for example. The other chap- ters are constructed around individual medical specialties, but discuss issues that are of potential interest to all. Part IV looks ahead. “The Case for Legal Reform” presents changes in medical-legal jurisprudence that can be of immediate benefit. The final two chapters take a broader perspective on aspects of our entire health care system and its interface with law and public policy. This book would not have been possible without the encouragement of Dr. Frank E. Johnson, and the collaboration of Drs. David B. Troxel and Mark Gorney. I am indebted to each of the contributors for their effort, wisdom, and experience. I owe special gratitude to Susan Baker for reviewing, editing, and coordinating the many pieces of the manuscript. Richard E. Anderson, MD, FACP INTRODUCTION ix It is a difficult time to be a physician in the United States. In an era when life expectancy is increasing, when major progress has been recog- nized in the prevention and treatment of coronary artery and cerebrovas- cular disease, when a new generation of biologic therapies is beginning to reward decades of effort in the battle against cancer, when AIDS has become treatable and preventive vaccines are entering clinical trials, when CAT scanning and MRIs have revolutionized our windows into the human body, when surgeons can utilize noninvasive operative techniques and robotic surgery is a reality, when science is now unveiling the genomic abnormalities in a host of human diseases, how can this be? Although our therapeutic armamentarium has never been greater, the pressures on the practice of medicine seem to have increased even more. Physicians talk about “the coming medical apocalypse” (1), ask whether we are “helpless” (2), or whether “ being a doctor is still fun” (3)? Scholarly research is undertaken to measure the degree of physician discontent and dissatisfaction with the practice of medicine (3–8). Part of the problem lies in the tangle of conflicting messages physi- cians regularly hear. Although societal measures of health are improv- ing, the incidence of medical error is said to be unacceptably high (9,10). Malpractice litigation is said to target “bad” physicians and to be a nec- essary adjunct to regulatory and professional discipline (11), yet nearly one in five doctors reports a malpractice claim annually and one-third to one-half of high-risk specialists face a claim every year. Are they all bad doctors? Plaintiff attorneys say they carefully screen malpractice claims before filing, yet 70–80% of these claims are still found to be without merit (12). In this book, we look in detail at contemporary medical malpractice litigation. We review its history, examine medical malpractice insurance (which has become a virtual necessity to protect physicians and indem- nify injured patients), discuss specialty-specific issues, and, finally, explore alternatives to the current system. Richard E. Anderson, MD, FACP [...]... locality rule) to national standards as articulated in the medical literature and practiced anywhere in the country Contemporary concepts of informed consent are only 30 years old and are now based on fundamental principles of patient autonomy rather than physician judgment Although health care as a right or a privilege may still be debated, our laws have increasingly defined the terms of access and... in only a few states, the vast majority of hospitals and other health care institutions mandate that all medical staff members be insured Specialty insurance companies that provide only professional liability insurance and multiline companies that cover this type of risk and many others provide this coverage From: Medical Malpractice: A Physician’s Sourcebook Edited by: R E Anderson © Humana Press... and the parameters of care Increasingly, legal standards of care of have replaced medical standards In some cases this may be relatively explicit, such as indications for Cesarean section based more on the probability of liability than medical judgment Frequently, however, the replacement of medical judgment by courtroom standards is more subtle Examples are as varied as the high rate of “false-positive”... practices J Fam Practice 1997; 45:321–330 9 Kohn LT, Corrigan JM, Donaldson MS To Err Is Human: Building a Safer Health Care System Washington, DC: Institute of Medicine, 1999 10 Weiler PC, Hiatt HH, Newhouse JP, Johnson WG, Brennan TA, Leape LL A Measure of Malpractice Cambridge, MA: Harvard University Press, 1993 11 Nace BJ, Stewart LS Straight talk on medical malpractice American Trial Lawyers Association,... of “managed care.” It is difficult to find any constituency that is fully satisfied with this development Physicians are alternately depressed and enraged at the erosion of their authority in offering professional judgments on behalf of their patients Doctors across the United States applauded the American Medical Association effort to impose the same malpractice jeopardy on managed care organizations... run law firms, and 15% in Congress) More than 45 million Americans do not have health insurance, but physicians must provide care to all under legally and ethically defined circumstances For the remainder of the population, a panoply of public and private health plans, not to mention laws and guidelines, regulate the provision of health care THE INCREASING IMPACT OF LAW AND REGULATION ON MEDICAL PRACTICE... specifically the law known as the Medical Liability Reform Act (MICRA) Since MICRA’s enactment in 1975, I have continued to represent health care providers in the courts and as a legislative advocate to preserve and protect it from erosion or repeal Appellate practice focuses on what happens after a judgment or ruling in a lower court from which a dissatisfied party seeks reversal in a higher court An appellate... Policy and Law, Department of Health Policy and Management, Harvard School of Public Health, Boston, MA WILLIAM M SAGE, MD, JD • Professor of Law, Columbia Law School, New York, NY JACK M SCHNEIDER, MD • Chief Medical Officer, Sharp Mary Birch Hospital for Women, San Diego, CA DAVID M STUDDERT, LLB, ScD, MPH • Department of Health Policy and Management, Harvard School of Public Health, Boston, MA DAVID... should not leave decisions about the best course of medical treatment exclusively to medical professionals, neither should you as a doctor or health care provider leave your fate as a defendant solely in the hands of your lawyer and insurer No one representing you will be as affected as you are by the litigation in which you are a defendant; and, although your advocates are charged with looking after your... technical language regarding insurance but also the various forms in which it is available Doctors should understand the distinguishing features of an effective insurance program Key Words: Spread of risk; underwriting; claims made; occurrence; surplus INTRODUCTION Virtually all practicing physicians in the United States require medical malpractice insurance Although malpractice insurance is legally . Medical Malpractice Medical Malpractice A Physician’s Sourcebook A Physician’s Sourcebook Edited by Richard E. Anderson, MD , FACP Edited by Richard. States applauded the American Medical Association effort to impose the same malpractice jeopardy on managed care organizations that they themselves faced. This