An Overview Pamela A Mixon Esq Jeff Rogers MD JD Counsel Counsel SCPMG SCPMG Add cartoon here Historical Background of Medical Malpractice Medical malpractice is a type of tort law known as negligence ID: 649199
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Medical Malpractice ReformAn Overview
Pamela A. Mixon, Esq. Jeff Rogers, M.D., J.D.Counsel CounselSCPMG SCPMGSlide2
Add cartoon hereSlide3
Historical Background of Medical MalpracticeMedical malpractice is a type of tort law, known as negligence. Judge madeVaries from state to stateNegligence - people should be reasonably careful in what they do, and if they aren’t, they should be held responsible for the injuries that can be reasonably foreseen as resulting from their negligent conduct. Slide4
Compensate the Patient Injured by NegligenceDeter future negligence
Traditional Goals of Medical MalpracticeSlide5
In other words, How well does the current system achieve the two goals of the medical malpractice?
Answer?Not well at all.Problems With The Medical Malpractice System?Slide6Slide7
11 months in arbitration5 years in court
Which leads to….Frustrated injured patientsLack of deterrence basis of malpractice Source: Claims, Errors and Compensation Payments in Medical Malpractice Litigation, New England Journal of Medicine, May 11, 2006
It’s SlowSlide8
$5.7B in liability payment$3.15B Economic damages
$2.4B Noneconomic damages$ 0.17B Punitive damages
It’s ExpensiveSlide9
$4.1B in Administrative expenses 35% of all money paid goes to attorneys$45.6B-$200B in defensive medicine
many causes 2.4-%10 of all health care spendingSlide10
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Authors of a New England Journal of Medicine study in 2006 reviewed a random sample of 1,452 claims from five malpractice insurers, and found that 37 % of the cases involved no errors, and 3 percent involved no verifiable injuries.Source: Claims, Errors and Compensation Payments in Medical Malpractice Litigation, New England Journal of Medicine, May 11, 2006Slide12
Significant number of claims are abandoned, withdrawn or dismissed:Litigation cost and stressSlide13
One of 14 docs faces a lawsuit each yearDoes not reduce medical errors
Hampers patient safety effortsTime Consuming and CounterproductiveSlide14
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Medical Malpractice Litigation
≠ Patient Safety
Medical malpractice
Adversarial
Blame/fault
Individual focus
Confidentiality
Patient safety
Cooperative
No-fault
Systems approach
Open communicationSlide15
Proportion of Physicians Facing a Malpractice Claim Annually, According to Specialty.
Jena AB et al. N Engl J Med 2011;365:629-636Slide16
The Crisis Leading to ReformFirst Generation Malpractice ReformsMid-1970’s, mid-1980’s, and early 2000sResponse to concerns about rising malpractice insurance premiumsThese reforms generally made laws more favorable to the health care provider-defendants than defendants in other lines of work.Slide17
Reduce the number of claims filed by patients/familiesAlter the litigation process to favor health care provider-defendants
Limit the amount of payouts to plaintiffs with successful claims
Three Goals of First-Generation ReformSlide18
Goal One – Reduce ClaimsStatutes of limitationsPretrial Screening PanelsCertificates of MeritControls on fees received by plaintiff’s attorneysSlide19
Limit the amount of time that a patient has to file a malpractice claim after being injured or discovering an injury.California – 1 year after injury or 3 years after discovery, and longer for children, fraud, intentional concealment, and a foreign body
Statutes of LimitationsSlide20
Expert panels review malpractice cases early on, and opine whether claims have sufficient merit to proceed.A negative opinion doesn’t bar a case from proceeding, but the plaintiff may be required to post a bond, and the negative opinion admissible at trial.
Pretrial Screening PanelsSlide21
Certifies that the case has merit, that the expert believe the standard of care was breachedSigned by physician in the same specialty as defendant
Over half of states require – Not CaliforniaCertifier typically need not testify
Affidavit or Certificate of MeritSlide22
Controls on fees received by plaintiffs’ attorneysLimits are place on the amount a plaintiff’s attorney may take as a contingency fee.Typically expressed as a percentage of the award.Slide23
Goal Two – Alter the Litigation Process to Favor DefendantsMinimum qualifications for expert witnessesStandards for informed consentSlide24
Board certification in relevant specialty/subspecialty that physician being sued in practices
Treat patients with the plaintiff’s conditionExpert Witness StandardsSlide25
Informed ConsentTypically these laws adopt professional custom as the standard for disclosure of risks, benefits and alternative treatments, rather than patients’ need for facts to make informed decisions about treatmentSlide26
Goal Three – Limit Payout AmountsDollar limits on noneconomic damages, total damages, and punitive damagesElimination/restriction of joint and several liability and collateral source rulePeriodic rather than lump sum paymentsSlide27
MICRA (Medical Injury Compensation Reform Act)$250,000 cap on noneconomic (“pain and suffering”) damages
No cap on economic damagesAdded Notice of Intent requirement – 90 daysLimits Attorney Fees – Sliding scale40% of first $50k
33.3% $50-100k
25% $101-500k
15% of any amount>$600k
Limits or “Caps” on DamagesSlide28
Result?Compensation to patients declined 15%
Attorney fees fell 60% (RAND Study)Plaintiff attorneys bear more of the costsReduced litigation
Stabilized insurance premiums
No reduction in overall healthcare spending
No change in patient safety or physician supplySlide29
Joint and Several Liability ReformSlide30
Collateral Source ReformSlide31
Prevents Windfall
Laws Authorizing Periodic PaymentsSlide32
Other “First Generation” LawsSlide33
Compensation FundAligns patient and physician
Low Cost to AdministerWho pays and how much?Working in IcelandWhat is paid for:Basic cost v. making people wholeSlide34
Faster Less Expensive
Confidential Less disruptive to physicians and members
Mandatory Alternative Dispute ResolutionSlide35
A jury of your peers?Slide36
“Second Generation” ReformsDon’t tip the balance toward plaintiff or defendant.“Sorry” lawsDisclosure and early offer proposalsHealth courtsSafe harbor lawsSlide37
“Sorry Laws”Laws making inadmissible health care personnel expressions of regret or apology inadmissible as evidence in litigation.California has Evidence Code 1160Slide38
California Apology LawEvidence Code 1160The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action.
A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section.Slide39
Disclosure and Early OfferHospitals come forward promptly with truth about adverse outcomes, and offer compensationIncentive? Typically do not award non-economic, or “pain and suffering” damages, just medical expenses and lost earningsSlide40
Lay juries are often confused, vote based on sympathy. Randomness leads to lottery mentality.
Health CourtsSlide41
PrivateCompensation based on harm to patient, rather than provider negligence
Low Cost + Limited compensationWorking in New ZealandNo Fault InsuranceSlide42
Enterprise LiabilityArrangement under which the hospital is the entity liable for harm negligently inflicted within the hospital’s walls.Slide43
What’s in Store for the Future?Slide44
What’s in Store for the Future?StateFederal Slide45
Questions……….
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