What is malpractice?

Controversies Surrounding Malpractice Litigation

In the United States, few medical topics arouse more anger in physicians, more debate in state legislatures, or more confusion in the public than malpractice. In part, the media encourages this attention when it reports multimillion-dollar jury awards for damages, sensational stories that often make all the parties involved—lawyers, the defendant doctor, the plaintiff patient, and juries—look somehow reprehensible. In part, the rise in malpractice insurance, which has contributed to the increasing cost of medical care, has upset both doctors and the public. Yet inflation and the rare spectacular settlement obscure the value of a system that since the late eighteenth century has given patients legal redress for injury, has helped maintain professional standards of medical care, and has allowed state governments some control over the local health care industry.

As the word’s elements imply, malpractice simply means the poor execution of duties. The definition bears close examination, however, on one key feature: what “poor” entails. The first recourse of a patient who feels inadequately cared for is to discuss the complaint with the doctor (or dentist, chiropractor, or other health care provider). This measure clears up many complaints, since most are based on simple misunderstandings. A patient receiving no satisfaction from the doctor may file a complaint with the state board of medical examiners, which is each state’s official government body, staffed by doctors, that issues medical licenses and disciplines physicians and surgeons. In both cases, the doctor or a panel of peers will decide if the patient’s complaint meets the professional standards of “poor.” A patient who is not pleased with this decision may bring suit in civil court. No patient, however, can press a lawsuit for malpractice simply because he or she feels wronged. For legal action to have any chance of succeeding, the doctor must have injured the patient because of negligent care. Even then, lawyers for the patient must rely on expert testimony from other doctors to establish that the physician gave the patient poor care. All official avenues of redress therefore depend on the medical profession’s own standards.

Four basic standards guide doctors in ethically performing their professional duties, and failure in any one of them may constitute malpractice. First, doctors must inform their patients about treatments for an ailment and receive their explicit consent. The patient must understand the doctor’s plan of treatment and any procedure’s potential risks and benefits; if a patient cannot understand because of age or mental condition, a guardian must consent, except in some emergency situations. The consent may be verbal unless an invasive technique, such as surgery, is involved, in which case the law requires a signed consent form. Without the patient’s consent, a physician performing a medical procedure not only may be subject to a malpractice lawsuit but also can be charged with assault under criminal law. Second, a doctor must treat a patient with reasonable skill, as defined by accepted medical practice. This point is crucial. Doctors do not have to render the best aid possible, or even the best aid of which they are capable; they must only meet professional guidelines for any specific diagnostic, palliative, or corrective measure. Both the key terms in this standard—“reasonable” and “accepted medical practice”—have been notoriously hard to define in court because they vary from region to region and from school of medicine to school of medicine. Rural physicians, for example, cannot be expected to give the level of care available in cities, since cities have more specialists available and support technology; nor are general practitioners expected to have the skill of a specialist, such as a cardiologist. Third, physicians are responsible for what other health care workers under their charge do to patients. If other doctors (such as medical residents), nurses, physical therapists, or medical technicians act on a doctor’s orders, that doctor is ultimately responsible for supervising their performance. Fourth, a doctor accepting responsibility for a patient enters a contractual obligation and may not abandon that obligation without either finding another physician to take his or her place or notifying the patient well in advance so the patient can engage another doctor. At the same time, however, the patient’s obligation is to follow the doctor’s medical advice.

Doctors are not the only health care workers who can be charged with malpractice. If other medical personnel act as a team with a doctor or surgeon, they may also be held liable. For example, during surgery a surgeon is assisted by an anesthesiologist and various nurses, any of whom may separately fail in his or her duties and be sued as a result. Thus, whenever a patient suffers at the hands of a medical team, the trend has been to sue each member. Furthermore, if the facilities or personnel employed by a hospital prove substandard, the hospital itself may be liable.

Tort liability and contractual responsibility govern the legal treatment of malpractice, both of which fall under civil law. (This classification assumes that doctors inadvertently cause harm; if they intentionally injure a patient, they are subject to charges under criminal law.) A patient may sue for breach of contract if his or her doctor has broken that contract—usually by abandoning the patient without proper notice. This sort of lawsuit is by far the least common. Tort liability means that the doctor is responsible for any injury (tort) caused to the patient through negligence. The patient may seek compensation for a tort by suing the doctor for damages. The presumption is that money, which is almost always the form of compensation sought, can make up for the harm done. Damages can be awarded for two types of injury. Concrete physical injury is the most typical, and damages may include money to cover medical bills, lost wages, convalescent care, and other expenses relating directly to the disability. A jury may also grant damages for pain and suffering, a difficult type of injury on which to place a price; such damages account for some of the largest monetary awards.

Because damages may amount to millions of dollars, most doctors who lose a malpractice suit cannot hope to pay them without help. Insurance provides that help, which usually takes one of three forms. First, for monthly payments (premiums), traditional insurance companies offer policies to doctors that will guarantee money up to a certain amount to pay damages. Also, if its client is sued, the insurance company assigns attorneys who handle the legal negotiations and the defense in court. Second, hospitals or other large organizations may pay for malpractice damages from a pool of money reserved for that purpose alone. Third, doctors and other health care providers may set up an insurance company of their own for mutual coverage, often called “bedpan mutuals.”

Malpractice litigation in the United States is a ponderous, expensive business. In the mid-1970s, malpractice insurance prices began to rise sharply; between 1983 and 1985 alone, the cost increased 100 percent. Malpractice premiums remained relatively flat during the 1990s. By the end of the decade, however, physicians began to be hit with unexpectedly large increases. In 2001, eight states saw two or more liability insurers raise rates by at least 30 percent, according to the American Medical Association, and doctors in more than a dozen states saw one or more insurers charge at least 25 percent more for medical malpractice insurance. The George W. Bush presidential administration released a report in 2002 that found the price of malpractice insurance for certain high-risk specialists increased about 10 percent in 2001 alone and was expected to rise another 20 percent between 2002 and 2003. From 1996 to 1999, jury awards for medical malpractice claims jumped 76 percent, according to Jury Verdict Research. Doctors pass on some or all of these costs to patients by charging higher fees. If a patient sues, however, the insurance cannot cover every type of loss. The amount of time that a doctor must spend with lawyers, the time in court, and the overall distraction from practicing mean reduced earnings. Yet the cost is not only to the doctor. The plaintiff pays attorneys by contingency fee, which means that the attorney receives a percentage (usually 20 to 30 percent) of money from any settlement. A patient losing a suit does not pay the attorney but still must pay court costs and expenses, which can quickly amount to thousands of dollars. Finally, when suits reach court, public funds contribute to the court’s expenses, and those expenses climb if a decision is appealed or retried, as is sometimes the case.

Patients and doctors alike complain that soaring malpractice litigation in the United States since 1960 has been destructive, introducing suspicion into the doctor-patient relationship. In addition to its emotional impact, the suspicion concretely affects medical practice, most medical economists claim. Because physicians fear lawsuits, they perform more diagnostic tests than are called for by medical protocols. Often the chances are remote that these tests will reveal any useful information, yet doctors order them to show that they have done everything possible for the patient if they are sued. The extra tests cost money, which either the patient or the insurance company must pay. In either case, the expenditures inflate the cost of medicine. The practice of such “defensive medicine” has also led some doctors to refuse to perform high-risk procedures except in hospitals that have extensive facilities. Obstetricians provide a signal case in point. Fearing lawsuits for any complications that may arise, many obstetricians will not deliver babies at home or in small hospitals, forcing rural patients to rush long distances to the nearest big-city hospital for delivery.

One scholar of the malpractice system has remarked that it seems designed to protect the interests of everyone except the person who most needs help: the injured patient. While this is surely a rhetorical exaggeration, all studies have found that only a fraction of injuries are ever compensated. Moreover, the system, based on adversarial disputation, seems hostile and dauntingly complex to both patient and physician. Yet, although no one thinks it perfect, the system evolved in accordance with two widely held American attitudes toward regulation in general: it limits abuses, and it preserves professional autonomy.

Trial Procedures in Malpractice Cases

Few malpractice claims actually end in jury awards for damages. Only about 10 percent of patients injured by doctors file lawsuits, of which about 20 percent end in payment to the plaintiff. Overwhelmingly the payments come from out-of-court settlements that win the plaintiff only a part of the money sought in the suit. Taking a suit all the way to a jury settlement is risky for plaintiffs; they win only about two in ten cases.

From the outset, then, the chances are against the injured patient, and for this reason malpractice litigation is not popular among lawyers. To have a reasonable chance to win a case in court, or at least to force the doctor’s insurance company to offer a settlement out of court, the lawyer must first be sure that a causal connection can be made between the patient’s injury and physician negligence. In other words, patients cannot sue simply on the hope of winning damages; courts try to reject such “frivolous” suits before they come to trial.

A lawyer who believes that a reasonable causal link can be established will write up a summons and complaint on the client’s behalf and send them to the doctor. The summons warns the doctor that the patient is filing a lawsuit. The complaint explains the patient’s allegation of harm and the amount of damages that the patient demands in compensation. The doctor must answer in a specific time—about a month in most states—and the answer, issued through the doctor’s lawyers or those of his or her insurance company, almost always denies responsibility for any injury. The legal battle is then joined.

During a pretrial period known as discovery, each side investigates the other, hoping to find facts that will support arguments in court. Lawyers rely on three investigative methods. The first is documentary disclosure. The plaintiff’s lawyer will demand records, especially the patient’s medical record, and the doctor must furnish them in a reasonable time. In the second method, written interrogatories, the plaintiff’s lawyer sends the doctor a list of questions that must be answered in writing. Third is the deposition, a formal legal proceeding. Lawyers from both sides meet and together question, in separate sessions, the defendant, plaintiff, and key witnesses, all of whom answer the questions under oath, so that they are guilty of perjury if they lie. Many suits are dropped during discovery, with or without monetary settlement. If the suit continues but one side has little evidence on which to base arguments, the other side will probably file a motion for summary judgment, which essentially asks a judge to end the litigation by disqualifying the weak case. Discovery and pretrial motions may take years to complete.

Trials follow a pattern, with some variations, designed to allow each side to present claims and counterclaims systematically. A trial starts with opening statements in which the lawyers describe the general plan for their cases; no actual arguments are made. Next, to clarify matters for the jury, the judge may summarize the applicable legal principles for the case. Then witnesses are called and questioned, first by the plaintiff’s lawyer. After he or she finishes with each witness, the defendant’s lawyer may also ask questions, a procedure called cross-examination. When the plaintiff’s side is done calling witnesses, then the defense lawyer calls and questions more, which the lawyer for the plaintiff may also cross-examine.

During the questioning, two types of evidence are admitted: testimony, the oral or written statements of what people have seen or heard, and “real” or “demonstrative” evidence, physical objects such as an x-ray or a needle that have a bearing on the case. The testimony is crucial for the plaintiff, because at this point an expert witness must swear that the defendant was negligent to a “medical certainty” by failing to adhere to one or more medical standards of practice. Since only a doctor is qualified to make this judgment, expert witnesses are always physicians. Finally, the lawyers make closing statements, each insisting that the evidence supports the position of his or her client, and the jury retires to decide on a verdict. If the jurors decide in favor of the plaintiff, they can also lower or raise the amount of requested damages. If they decide for the defendant, the doctor, then the case ends without a monetary settlement. A victorious plaintiff cannot expect immediate payment. Appeals to higher courts may last years, and the appellate courts, after examining the trial records, can reverse a verdict, change the amount of damages, or order a new trial.

Even if a trial does get under way, however, it may not end in a verdict. At any point in the proceedings, one side or the other may give up. Insurance companies regularly send observers to malpractice trials who assess the progress of arguments objectively. An observer detecting a weakness in the defense or noticing that the jury favors the plaintiff for any reason will offer a settlement to the plaintiff’s lawyer, because such a settlement will save court costs and probably involve less money than a jury award for damages. Likewise, the plaintiff’s lawyer, recognizing that the chances of winning are slim, may try to make a deal with the insurance company. Such dickering may even continue after a verdict is announced, if it is appealed. Also, at any point in the trial the judge may end the case if he or she thinks that one side cannot possibly win; similarly, the judge may reverse a verdict or change the amount of damages if the jury’s decision shocks his or her professional conscience.

Perspective and Prospects

By the mid-1970s, the entire American health care system, in the view of most health care observers, was in a state of crisis. Costs had risen, and facilities, especially in urban areas, were strained, while rural areas were often underserved. Critics have blamed the problems on increasingly costly technology and drugs, government regulation, professional salaries, and inadequate preventive medicine. Few doubt that malpractice litigation has contributed significantly as well.

Estimates in 1993 claimed that defensive medicine alone had increased the annual cost of American health care from $10 billion to $36 billion. A 2013 study published in Health Affairs found that the costs of defensive medicine and medical liability added up to about $55.6 billion or 2.4 percent of healthcare spending in the United States in 2008. Combined with increasing fees for medical services and other costs, defensive medicine has helped drive up the cost of medical insurance. Because of these financing problems, legislatures around the country have tried to control the increasing numbers of malpractice suits with tort reform, arbitration or review panels, and legal fee limits.

In 2002, lawmakers in Ohio and other states began attempting to drive down premiums by passing laws that limit the jury awards injured patients can be given for pain and suffering. The Bush administration also supported a nationwide limit of $250,000 on these damages, although questions remain about how well the caps work. In 2010, President Obama signed the Patient Protection and Affordable Care Act (ACA), which encourages states to find and test alternatives to their existing litigation systems in order to improve patient safety; reduce medical errors; resolve disputes efficiently, promptly, and fairly; ensure better access to liability insurance; and preserve an individual's right to seek legal redress. The ACA also states that Congress should consider starting a state demonstration program to weigh alternatives to the existing civil litigation system. Critics of the ACA have claimed that it does not do enough to reduce the practice of defensive medicine.

Tort reforms include a number of measures that modify the procedures or awards of malpractice litigation. Two reforms are designed to shorten the process. One method is to reduce the statute of limitations for malpractice claims—the period after injury when a lawsuit can be started. The second involves limiting the rules governing the discovery phase of pretrial action. Two further reforms restrict the amount of damages. The most popular of these is to impose maximum amounts for types of injury, especially pain and suffering. In the second reform, jury damages must be reduced by the amount of money from other sources, such as health insurance, that a patient receives for the injury.

Several states have instituted review panels or required arbitration before a suit can proceed to court. Laypeople and judges, as well as doctors, make up the review panels, which try to identify and disallow frivolous suits. Arbitration panels actually decide on the amount of damages, if any, to be made, and their decisions cannot be appealed.

These reforms have only slowed the rate of lawsuits and the rise in the amount of money spent on paying damages and fees. Whatever its defects, the tort system has succeeded in making doctors wary of negligence. Critics insist, however, that the system for addressing malpractice has punished all physicians, not simply the incompetent, and has contributed to the increasingly litigious tenor of American society.

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