Jurors as Beneficiaries of Proposals to Objectify Proof of the Standard of Care in Medical Malpractice Cases

2003 ◽  
Author(s):  
B. Michael Dann
Keyword(s):  
Medical Malpractice ◽  
Standard Of Care

The Role of the Autopsy in Medical Malpractice Cases, I

2002 ◽  
Vol 126 (9) ◽  
pp. 1023-1031 ◽  
Author(s):  
Kevin E. Bove ◽  
Clare Iery
Keyword(s):  
Clinical Diagnosis ◽  
Medical Malpractice ◽  
Standard Of Care ◽  
State Court ◽  
Medical Negligence ◽  
Trial Court ◽  
Autopsy Findings ◽  
Original Trial ◽  
Autopsy Diagnosis

Abstract Context.—Fear that damaging information from autopsy may be introduced as evidence in lawsuits alleging medical malpractice is often cited as one factor contributing to the decline in autopsy rates. Objective.—To determine how autopsy information influences the outcome of medical malpractice litigation. Design.—We studied state court records in 99 cases of medical malpractice adjudicated from 1970 to the present to assess the role of information from autopsies in the outcomes. Results.—The 3 largest groups defined by cause of death at autopsy were acute pulmonary embolism, acute cardiovascular disease, and drug overdose/interaction. Findings for defendant physicians outnumbered medical negligence in the original trial proceedings by a 3:1 margin. The appellate courts affirmed 51 acquittals and 19 findings of negligence, and reversed the original trial court decision in 29 cases for technical reasons. We found no significant relationship between accuracy of clinical diagnosis (using the autopsy standard) and outcome of a suit charging medical negligence. Even when a major discrepancy existed between the autopsy diagnosis and the clinical diagnosis, and the unrecognized condition was deemed treatable, defendant physicians were usually exonerated. Moreover, major diagnostic discrepancies were relatively uncommon in suits in which a physician was found to be negligent. Conversely, in about 20% of cases, autopsy findings were helpful to defendant physicians. Conclusions.—Our study confirms that a finding of medical negligence is based on standard-of-care issues rather than accuracy of clinical diagnosis. Autopsy findings may appear to be neutral or favorable to either the plaintiff or the defendant, but are typically not the crux of a successful legal argument for either side in a malpractice action. We conclude that fear of autopsy findings has no rational basis and is an important obstacle to uninhibited outcomes analysis.

Medical Malpractice Defense: The Predictive and Protective Power of Mortality, Survival, and Life Expectancy

2019 ◽  
Vol 48 (1) ◽  
pp. 52-57
Author(s):  
Anthony F Milano ◽  
Gill P Beck
Keyword(s):  
Life Expectancy ◽  
Medical Malpractice ◽  
Standard Of Care ◽  
Equal Treatment ◽  
Years Of Life Lost ◽  
Damage Awards ◽  
Medical Risk ◽  
Medical Issues ◽  
Actuarial Risk ◽  
The Moment

Introduction.—The defense of medical malpractice presents a significant challenge to Assistant United States Attorneys (AUSAs). A medical malpractice claim consists of proof of: (1) duty, (2) breach of the duty, (3) causation, and (4) damages. Often the breach of the duty and the causation elements present complex medical issues involving multiple specialties and subspecialties of medicine. A considerable amount of time is required to prepare the defense pertaining to the alleged breach of the duty and causation elements. The damages aspect of the medical malpractice case is often not given equal treatment and may not be fully developed. As a result, damage awards can be surprisingly high once the breach of the standard of care and the causation defenses fail. Purpose.—The purpose of this article is to underscore the importance of developing the damages aspect of the case. This article will demonstrate through a case study the power of using fact-based medical-actuarial risk statistics and life expectancy testimony to limit, by thousands if not millions of dollars, economic damages to impairment-specific “years of life lost” in medical-malpractice torts. The important points to remember are that from the moment a case is assigned to an AUSA, the AUSA must: (1) focus as much, if not more, attention on damages; (2) execute a discovery strategy that ensures all aspects of damages are thoroughly investigated; and (3) retain the appropriate experts, including, in appropriate cases, an expert on medical risk appraisal and life expectancy.

Professional Standards, Clinical Guidelines and Medical Liability: A Chance for Significant Improvement in Determining the Standard of Care?

2018 ◽  
Vol 25 (2) ◽  
pp. 157-176
Author(s):  
Athanasios Panagiotou
Keyword(s):  
Clinical Guidelines ◽  
Medical Malpractice ◽  
Standard Of Care ◽  
Medical Liability ◽  
Quality And Safety ◽  
European Level ◽  
Safety Standards ◽  
The Core ◽  
Cross Border

Abstract Despite the proposals to jettison fault/negligence as the fundamental criterion of imputation of medical liability, it remains at the core of most legal systems. At European level, the rise of cross-border healthcare has brought the issue of redress for medical malpractice and the need to enhance quality of care through the adoption of quality and safety standards to the fore. Furthermore, the necessity of best available external evidence to inform approaches to individual patient care is gradually acknowledged. In addition, clinical guidelines become an increasingly familiar part of clinical practice. Hence, the debate on their usefulness in medical malpractice cases has attracted significant scholarly attention. Despite their superficial attractiveness, clinical guidelines present core problems, which currently make them unsuitable as a determinant of the standard of care. The article concludes that, unless these issues are resolved, the usefulness of clinical guidelines in medical liability will be debatable.

Comparative analysis of medical malpractice law

2019 ◽  
Vol 10 (2) ◽  
Author(s):  
Thi Bao Anh Nguyen
Keyword(s):  
Comparative Analysis ◽  
Medical Malpractice ◽  
Strict Liability ◽  
Medical Practitioner ◽  
Standard Of Care ◽  
The Other ◽  
European Countries ◽  
Future Directions ◽  
Malpractice Law

Abstract This research presents the background of medical malpractice law, the tort of negligence with fault, tor of negligence without fault and wrongdoer’s in Vietnam in comparison with medical malpractice laws of some European countries. Vietnamese medical malpractice law has some similarities and noticeable differences to the other European countries. In particular, Vietnam has faced the lack of very important regulations in accurately determining the misconduct of medical practitioner such as standard of care, loss of chance, and strict liability. We propose future directions of possible amendments in the Vietnamese medical malpractice law.

Sciatic nerve injury in children after gluteal intramuscular injection: Case reports on medical malpractice

2019 ◽  
Vol 59 (3) ◽  
pp. 139-142
Author(s):  
Peipei Zhuo ◽  
Dong Gao ◽  
Qing Xia ◽  
Dan Ran ◽  
Wentao Xia
Keyword(s):  
Sciatic Nerve ◽  
Causal Relationship ◽  
Nerve Injury ◽  
Medical Malpractice ◽  
Intramuscular Injection ◽  
Case Reports ◽  
Standard Of Care ◽  
Sciatic Nerve Injury ◽  
Foot Drop ◽  
Medical Negligence

Two cases of medical malpractice for sciatic nerve injury caused by gluteal intramuscular injection in China are reported. Two children presented with foot drop indicative of sciatic nerve injury following gluteal intramuscular injections. The appraisal of whether there was medical negligence, the causal relationship between the patients’ nerve injuries and medical standard of care, and the causative potency were entrusted to us by the court. Based on each patient’s original medical history, imaging examination results, limb dysfunction and interviews with their relatives, there was a causal relationship between the children’s injuries and the medical treatment. The causative potency of medical negligence was complete effect in one case and main effect in the other case.

The Role of the Autopsy in Medical Malpractice Cases, II

2002 ◽  
Vol 126 (9) ◽  
pp. 1032-1035 ◽  
Author(s):  
Kevin E. Bove ◽  
Clare Iery
Keyword(s):  
Health Care Professionals ◽  
Medical Malpractice ◽  
Medical Information ◽  
Hospital Setting ◽  
Standard Of Care ◽  
Appellate Court ◽  
Fee For Service ◽  
Court Records ◽  
Autopsy Findings ◽  
Legitimate Interest

Abstract Context.—We studied 99 appellate court records in cases of alleged medical malpractice and found no relationship between discrepant clinical and autopsy findings and outcome of litigation. Standard-of-care issues and not diagnostic accuracy were at the heart of every case. Objective.—To characterize and discuss issues related to the autopsy and/or pathologist behavior that were raised in court records of medical malpractice litigation. Design.—In 18 appellate court records, issues were raised about quality of autopsy performance and reporting or about death certification. The details of these controversies are succinctly reported here in a manner intended to be instructive to pathologists who perform autopsies in a hospital setting or on a private fee-for-service basis. Conclusion.—Autopsy reports are intended to provide objective medical information in a coherent format to the patient's medical record, to the attending physician and other concerned staff physicians, to other health care professionals, and to the families of the deceased. Inevitably, occasions arise that require legal counsel to be added to this list of parties with a legitimate interest. Our findings emphasize that incomplete, incoherent, obfuscated, or delayed reporting of autopsy findings do not meet professional standards, are unethical if intentional, and may be counterproductive.

Determining the Standard of Care in Medical Malpractice: The Physician's Perspective

2002 ◽  
Author(s):  
John W. Ely ◽  
Arthur J. Hartz ◽  
Paul A. James ◽  
Cynda A. Johnson
Keyword(s):  
Medical Malpractice ◽  
Standard Of Care ◽  
Physician’S Perspective
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