CURRENT ISSUES IN MEDICAL MALPRACTICE
By: Melissa Rydell
ABSTRACT
Medical malpractice is a very perplexing issue in the healthcare industry today. There is a dire need to adopt new legislation that will reform current malpractice issues. New reforms must attempt to control costs associated with administering patient compensation while providing qualified physicians with fair and affordable malpractice insurance. An examination of California’s Medical Injury Compensation Reform Act will illustrate the benefits of reforming current medical malpractice laws. Also, the results of a nation-wide survey, conducted by Jackson & Harris on medical malpractice, are included to illustrate the potential problems of current regulations.
INTRODUCTION
Medical malpractice is consistently a “hot topic” amongst politicians, lawyers, physicians, and hospital administrators. In fact many people are anticipating the development of new federal legislation that will reform the current system to better address issues regarding medical malpractice insurance, malpractice lawsuits and their overall affect on the healthcare industry (both providers and consumers) as well as their effect on the U.S. economy. Many states such as: West Virginia, Wisconsin and California have taken it upon themselves to implement state laws in an attempt to control costs associated with administering patient compensation and providing “appropriate incentives for doctors to be responsible.” World Law Direct defines medical malpractice (also called medical negligence and med mal) as “any treatment, lack of treatment, or other departure from accepted standards of medical care, health care, or safety on the part of a health care provider that causes harm to a patient.” There are many different forms of medical malpractice including, but not limited to: “misdiagnosis, improper treatment, failure to treat, delay in treatment, failure to perform appropriate follow-up, and prescription errors.” Based on its definition medical malpractice seems to be a broad term, encompassing all types of medical errors. Due to its inclusive definition it is often difficult to develop legislation and policies that will correct errors and protect patients and physicians, while encouraging development in the field of medicine. Medical malpractice liability laws were created in an effort to protect patients from avoidable medical errors. These laws are intended to “compensate patients who suffer harm at the hands of negligent doctors, and […] provide appropriate incentives for doctors to be responsible.” Victims of medical malpractice have the right to pursue legal action against a “physician, nurse, hospital, dentist, nursing home, pharmacist” or any combination thereof to seek compensation for economic, non-economic and punitive damages. Economic damages include the funds associated with compensating a plaintiff for the monetary costs of an injury, such as medical bills or loss of income. Non-economic damages, like pain and suffering, are those damages that do not have an exact monetary value, but as a result of the incident have caused some degree of harm to the plaintiff. Finally, punitive damages are additional fines set up to punish the defendant for their negligent actions. Medical malpractice lawsuits have become so expensive and intimidating that it is forcing some physicians to abandon their careers in the healthcare industry. Physicians purchase medical malpractice insurance (MMI) “to guard against potentially ruinous lawsuits.” The continual increase in insurance expenditures contributes to the increases in medical costs for patients. Medical malpractice insurance premiums alone account for approximately “one percent of the nation’s total medical care bill.” Between 2000 and 2002 medical malpractice insurance premiums for physicians increased an average of 15%. In certain specialties, like general surgeons, obstetricians and gynecologists insurance premiums have increased by 33% and 22% respectively. These insurance premiums have forced many specialists to seek alternative careers within the healthcare industry. Unfortunately, even with insurance malpractice lawsuits can be very expensive and can ruin a physician’s reputation and practice. In fact some “observers fear that rising malpractice premiums will cause physicians to stop practicing medicine, thus reducing the availability of healthcare in some parts of the country.” Also, many physicians feel that “liability laws drive them to undertake expensive treatments of dubious medical value in order to protect themselves.” Reduced availability and extra unnecessary tests and treatments contribute to the continual rise in healthcare expenditures. Many federal and state reforms are introduced in an attempt to reduce cost by implementing a cap for recoveries on noneconomic suffering and attorney fees in malpractice lawsuits. STATEMENT OF HYPOTHESISIn order to control costs in the healthcare industry it is imperative that federal and state governments develop and support reforms that place caps on malpractice lawsuits and attorney fees. Malpractice laws must hold physicians responsible for their actions and provide injured patients (possessing legitimate claims) respectful compensation. Also, reforms should help control the cost of malpractice insurance premiums in order to allow specialists to continue in their practice. This will help prevent physician shortages and contain medical expenditures. SUPPORTING MATERIAL
MEDICAL MALPRACTICE INSURANCE (MMI) Many studies have been conducted in an attempt to analyze “the extent, causes, and potential solutions to the current MMI problems.” There are large variances in medical malpractice insurance premiums based on the state and county in which a physician practices and their degree of specialization. For example, premiums for, “general surgeons in Dade County, Florida have increased 75% since 1999 to a total of $174,300 annually, while in Minnesota during that period they increased 2% to a total of $10,140.” Certain specialties that are associated with high-risk procedures such as: ob-gyn, general surgery, and internal medicine also have large MMI premiums. High medical malpractice insurance premiums are forcing physicians to abandon their specialty, move their practice, limit the services that they offer, or “go bare” (practice without insurance). One survey conducted in the summer of 2004 by the American College of Obstetricians and Gynecologists reported that “one in seven obstetrician and gynecologists has stopped delivering babies” in an effort to avoid expensive insurance premiums and lawsuits.” According to the Editor-in-Chief of the Journal of the American College of Cardiology, Anthony N. DeMaria, MD, MACC, “the magnitude of the MMI problem varies greatly from locale to locale, cannot be related to a single issue, and is unlikely to be solved by a single piece of national legislation.” He feels that MMI systems should provide physicians with affordable coverage, equitable compensation for injured patients, and an efficient system for society. Though many people feel that the current MMI system needs to be reformed, it is unclear how to establish a more efficient economical system that would appease the needs of physicians, patients and society. Even with increasing premiums many MMI insurers are still reporting financial losses “due to the payment and defense of malpractice claims; decreased investment income of the insurers; underpriced insurance premiums due to mistaken projection of losses; or increased reinsurance rates to the provider.” Two-thirds of a malpractice insurer’s budget is paid out for claims. Average claim payments have risen from $95,000 in 1986 to $320,000 in 2002. These claims are increasing at an “annual growth rate of nearly 8 percent- more than twice the general rate of inflation.” SURVEYJackson & Harris, a medical research organization, conducted a nation-wide survey in March 2004. The eleven question internet survey was taken by 800 physicians “regarding rising malpractice premiums and how they affect physician’s abilities to practice medicine within a particular state.” Also, the survey examines the current problem of physicians opting to practice medicine without insurance, due to the high price of premiums, also referred to as “going bare.” The survey categorized the physician’s responses into four categories: crisis states (states where malpractice issues are at a crisis level), states that have implemented a reform, neutral states (states not yet affected but feeling the burden of the crisis), and finally all states combined. According to the American Medical Association at least 19 states are classified as “crisis states”. The following are direct statistical quotes from the survey: · In Crisis states, 60% of practicing physicians have considered moving to another states to reduce liability rates.
· Close to half, 41% of physicians in states considered to be in crisis have considered dropping malpractice coverage or “going bare”.
· Within the four groups, 69%-71% believes federal legislation is the solution to the rising malpractice costs. 82%-88% of physicians in all four groups feel reform should be uniform at the national level.
· Neutral states have seen a significant increase in annual premiums over the past five years, with 20% observing more than 100% increase in premiums.
· Within the four groups, 58%-77% of physicians has changed the way they treat their patients, even stopping certain procedures. 69% of the physicians in the neutral group have been affected, demonstrating an urgent need for malpractice reform.
· In crisis states, 92% of practicing physicians are unhappy with reform issues in their current state as well as 88% in the neutral states.
· In all four groups, 76%-80% of physicians stated that they are reluctant to receive referrals from physicians with little or no liability coverage.
These alarming statistics illustrate the importance of developing good federal legislation to address medical malpractice issues. In the survey, 70% of all the physicians surveyed favored federal legislation as a solution to the current medical malpractice problems. It is imperative that legislation is passed in order to encourage physicians to continue to practice in these “crisis” areas, otherwise there will be a shortage of some specialties, like ob-gyn, and other markets will be flooded creating an imbalance in the healthcare industry. In the survey conducted by Jackson & Harris, California is one of five states that have implemented a reform. In fact, President Bush “urged lawmakers to follow the example of California, which capped damages from malpractice lawsuits more than 25 years ago.” California’s law, passed in 1975, is one of the most “restrictive in the nation in compensating patients for malpractice.” California’s Medical Injury Compensation Reform Act (MICRA), has reduced awards by an average of 30%. It put a cap of $250,000 on recoveries for noneconomic damages, and put lawyer fees on a sliding scale. Since this law capped attorney fees and jury awards, “the net recovery by injured patients and their families fell only 15%, [while] payments to plaintiffs’ lawyers dropped 60%.” President Bush encouraged Congress to pass federal legislation that would be similar to California’s Medical Injury Compensation Reform Act. In April Republicans introduced and passed this type of legislation through the House, but failed to get the bill passed in the Senate. In a speech given at the University of Scranton in Scranton, Pennsylvania, President Bush said that without such reforms he anticipates, “excessive jury awards will continue to drive up insurance costs, will put good doctors out of business, [and] will run them out of your community […].” RISK MANAGEMENT Due to the complexity of developing effective malpractice reforms it could be many years before Congress will pass a bill to help control malpractice issues. Therefore, it is important for hospitals and physicians to identify common causes of medical malpractice and develop best practice methods to prevent these errors. Jury Verdict Research, Marsh Inc., and the Boston-based Risk Management Foundation, identified the ten most common causes of medical malpractice lawsuits against hospitals. The following paragraphs include the causes and the potential solutions suggestions that risk managers and patient safety experts developed. 1. Medication Errors- Medication errors are one of the most common medical error and these errors receive “more attention than all other patient safety issues.” These errors include incidents where a patient is given the wrong medication, the wrong dose, at the wrong time, or when a patient does not receive the medication they need at all. Risk managers feel that the best solution to this problem is medication distribution machines such as: CPOE, bar coding, and automated drug dispensers. CPOE is a software system created by a physician, which has proven to reduce prescription errors by 55 to 88 percent. 2-3. Diagnosis Failures & Delayed treatment- Another common error is misdiagnosing a patient’s symptoms, which could potentially lead to a further error and delayed treatment. To prevent misdiagnosis physicians should be encouraged to follow published protocols, developed by organizations like JCAHO. In order to control delayed treatment experts recommend establishing an effective follow-up system between departments including information sharing between physicians and effective communication with ancillary services. 4 - 5. Negligent Supervision & Failure to obtain consent- Negligent supervision and failure to obtain consent are two errors that can be easily corrected. In order to protect patients it is crucial that a physician monitors residents in accordance with CMS guidelines. To obtain proper informed consent it is recommended that patients watch a video that clearly explains the risks involved with each procedure. After the video, it is important that the patient’s signature is obtained to certify that they are aware of the risk involved. 6. Lack of Proper Credentialing or Technical Skill- The next error the research team found was lack of proper credentialing or technical skill. This is a claim that patient’s use when they feel their physician was not properly trained in a specific procedure. In order to avoid such claims hospitals should mandate that physicians take refresher courses and programs. 7. Unexpected Deaths- Though unexpected deaths cannot be avoided physicians can reduce the occurrences by collecting a complete history and physical, as well as a detailed list of the prescription a patient is on. Also, it is important that safety teams examine unusual cases to use them as tools to prevent future errors. 8. Atrogenic injury, nosocomial and wound infections, Fractures- It is estimated, by the Centers for Disease Control, that two million patients develop infections in hospitals every year. Of the two million patients that develop an infection in hospitals, 90,000 die as a result. In order to prevent infections, hospitals should enforce proper hand washing techniques and encourage the use of gloves. Also, precautions must be taken with patients that are unstable or highly medicated to insure that they do not fall. 9. Pain & Suffering, Emotional Distress- Many patients have unrealistic expectations about the results and recovery from a procedure. Physicians must take the time to evaluate and explain best and worst case scenarios in an effort to enable the patient to properly prepare themselves for the outcome. Patients must acknowledge the risk involved and have realistic expectations. 10. Lack of Teamwork, communication- Finally a lack of teamwork and communication are key factors in preventing medical errors. It is important for nurses and physicians to be properly trained to recognize warning signs and communicate them properly. Electronic medical records and team training can enable staff to access and communicate information effectively. CONCLUSIONIt is evident that there is a need for a reform in medical malpractice legislation. I believe that medical malpractice reforms will help control costs associated with administering patient compensation while providing qualified physicians fair affordable malpractice insurance. Malpractice reforms could potentially reduce expensive unnecessary tests and treatments, which in turn would reduce overall healthcare expenditures. Until Congress can come to a conclusion about medical malpractice reforms, hospitals and medical staff must take it upon themselves to recognize potential medical error risk factors and implement steps to correct them. These steps will help provide patients with better healthcare and reduce medical malpractice costs.
Work Cited
(1) Reese, Jennifer. “Is Medical Malpractice Reform good Medicine? Stanford Graduate School of Business News Releases, February 1996. http://www.gsb.stanford.edu/research/
(2) World Law Direct. “Medical Malpractice. July 25, 2004. http://www.worldlawdirect.com
(3) Newhouse, J.P. and Weiler, P.C. “Reforming Medical Malpractice and Insurance.” Regulation.
(4) Beider, Paul. January 8, 2004. “Limiting Tort Liability for Medical Malpractice.” Congressional Budget Office. http://www.cbo.gov
(5) DeMaria, MD, MACC. “Medical Malpractice Insurance: A Multifaceted Problem.” Journal of the American College of Cardiology. Vol. 42, No. 9, 2003.
(6) “Politics keeps real remedies for medical errors off radar.” USA Today. September 14, 2004.
(7) Jackson & Harris. “Medical Malpractice Survey- Comparison of Physician Responses in Crisis, Reform and Neutral States in the U.S.” March 2004. www.jacksonandharris.com
(8) “Bush outlines medical liability reform.” CNN.com. January 16, 2003.
(9) “Medical malpractice law gets results in California.” Modern Healthcare. July 19, 2004. Vol. 34, Issue 29.
(10) Glabman, Maureen. “The Top Ten Malpractice Claims.” H&HN: Hospitals & Health Networks: September 2004, Vol. 78 Issue 9.
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