Thursday, August 22, 2013

Malpractice Risk According to Physician Specialty

This open access article describes malpractice risk by physician specialty. It can be downloaded here.

Sunday, November 26, 2006

Do You Have a Medical Malpractice Case? – Here’s an Important Tip

From the article ...

If you are serious about taking a medical malpractice case before a jury, be sure that you have written documentation for evidence. The more evidence that you document, the more credible your claim appears to the jury. This is a simple step and all that is required is writing down what happens as the patient is receiving medical attention. This type of “journal” has many benefits. The first one, as stated above, makes the patient’s version of events and the overall case appear more credible to the jury or judge. It also helps prevent possible errors, even if the medical malpractice claim is not being contemplated. One example of documentation could be if a nurse or physician forgets to treat a patient with a certain dose of medication. The patient’s family might then remind the medical staff, so that the patient does not suffer as a result of the poor medication management. Afterwards the family should then document the times and dosages of medicine administered to the patient. This helps prevent another medication mishap, and to avoid an overdose if it had not been documented by a nurse. When documenting the events, be sure to portray your actions as helpful and understanding. If you act as if you are threatening and second guessing, it may hurt your overall case because the defense lawyer will argue that you were building a case against them from the beginning. In addition, documenting the events not only means to keep a written journal of what’s happening, but one should also be actively inquiring the nurse or physician about important events so that they can be charted accordingly. This is important as many times a nurse will forget to write vital information or events in their chart, because of a busy schedule or patient overload. Active documentation on your part will help remind them of these events. In fact, often times the nurse will make more effort to chart the events more timely and accurately, since they know that someone is making their own records simultaneously. In all actuality, most health care professionals don’t mind it when someone is keeping a journal to be helpful. Just be sure to stay calm and not act as if you are constantly interrogating the health care providers as this will insult them. The best way to document is in a quiet manner, gently asking important questions. Most physicians appreciate someone who has the patient’s best interest in mind. If your looking for a medical malpractice lawyer or need a medical malpractice lawyer , please visit our site. If you live in or around Pennsylvania you may also visit our site on Pennsylvania Medical Malpractice Lawyers

Wednesday, May 10, 2006

Many Medical Malpractice Cases Groundless


Many medical malpractice cases groundless

But most dubious lawsuits dismissed without payout, study finds

The Associated Press

Updated: 7:13 p.m. ET May 10, 2006

About 40 percent of the medical malpractice cases filed in the United States are groundless, according to a Harvard analysis of the hotly debated issue that pits trial lawyers against doctors, with lawmakers in the middle.

Many of the lawsuits analyzed contained no evidence that a medical error was committed or that the patient suffered any injury, the researchers reported.

The vast majority of those dubious cases were dismissed with no payout to the patient. However, groundless lawsuits still accounted for 15 percent of the money paid out in settlements or verdicts.

The study’s lead researcher, David Studdert of the Harvard School of Public Health, said the findings challenge the view among tort reform supporters that the legal system is riddled with frivolous claims that lead to exorbitant payouts.

“We found the system did reasonably well in sorting the good claims from the bad ones, but there were problems,” he said.

Cases 'clogging the courts'?
However, the American Medical Association, which favors caps on malpractice awards, called the study proof that a substantial number of meritless claims continue to slip through the cracks, “clogging the courts” and forcing doctors to waste time defending them, association board member Dr. Cecil Wilson said in a statement.

The findings were published in Thursday’s New England Journal of Medicine.

The study found 3 percent of claims analyzed were filed by patients who had no injury. Of the claims that involved injuries, two-thirds were caused by medical error. But the remaining injury claims, or 37 percent, lacked evidence of a medical mistake, and most of those — 72 percent — were thrown out or otherwise resolved without a payout to the patient.

Altogether, the Harvard researchers reviewed 1,452 malpractice claims randomly selected from five insurance companies. The cases were resolved — meaning they ended in a verdict, a settlement or a dismissal — between 1984 and 2004. The claims resulted in a combined $449 million in verdicts and settlements.

The researchers examined medical records, depositions and court transcripts to determine if the patients were injured and whether the injury was due to a medical error.

In one instance, a young woman with no family history of breast cancer underwent routine breast exams for four years and came back with a clean bill of health. But doctors later found she had breast cancer that had spread to other parts of the body.

The researchers determined the case did not involve medical error because proper procedures were followed. The woman filed a malpractice claim and received an undisclosed settlement.

Expensive disputes
The study also confirmed that defending a claim is expensive and long, taking an average of five years to resolve. It also found that for every dollar awarded to patients, about half went to cover lawyers’ fees and other expenses.

Chris Mather, a spokeswoman for the Association of Trial Lawyers for America, said the study was biased because data was taken from insurers, which sometimes are the defendants in malpractice suits.

The debate over malpractice litigation simmered in Congress this week when Senate Democrats defeated a pair of Republican-backed bills aimed at limiting how much pain-and-suffering damages juries can award in malpractice cases. Similar legislation already passed the House.

George Annas, a Boston University bioethicist who had no role in the study, said he was not surprised by the findings. Many personal injury attorneys receive a contingency fee — meaning they get paid only if they win — and will not go to court with a baseless lawsuit, Annas said.

“There’s really no motivation to bring a frivolous lawsuit,” he said. “It’s not worth their time and effort.”

Among the findings:

An overwhelming number of malpractice claims (97 percent) involved a severe disability or death. Seventy-three percent of all of the injury claims that were due to medical error were settled with a payment.
In about a quarter of cases where a groundless claim was settled, the average payout was lower than that given to a legitimate claim ($313,000 versus $521,000).

© 2006 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

© 2006


Monday, May 08, 2006

Malpractice Article from Anesthesiology News

Anesthesiology News

ISSUE: 10/2004 | VOLUME: 30:10

Lawsuit Avoidance Is the Best Strategy, but ...

Protect Yourself--The Malpractice Arena Can Be A Savage One

Elizabeth Douglas

Phoenix--The message from an attorney for physicians and their medical societies throughout the country was not encouraging. "Enemies are everywhere and friends are few and far between," Steven J. Kern, Esq., told attendants at Pediatric Anesthesiology 2004. Further, at the bottom of every slide of the presentation was the admonition: "Anything you say can and will be used against you!"

"Make no mistake--it is war," Mr. Kern said of a medical malpractice suit. "Once the media and lawyers become involved, if you don't protect yourself, nobody else will." Mr. Kern is a principal in Kern Augustine Conroy and Schoppman, PC, a law firm that specializes in representing physicians and other healthcare professionals.

Hire Your Own Lawyer

If a suit is brought against you, there are obvious adversaries, such as the plaintiff's attorney. However, your own attorney, if appointed by either the hospital or malpractice carrier, may consider interests of his or her employer that do not coincide with your welfare, maintained Mr. Kern.

The only way to assure that your interests are paramount to your attorney is to retain your own lawyer to oversee your defense, he said. Mr. Kern recommended employing a cost-benefit analysis in the decision. Does the litigation threaten your career? If you lose, how much will your malpractice insurance premiums increase and for how long? Will you be uninsurable?

Marc L. Leib, MD, JD, suggested there are circumstances in which a physician may justifiably feel confidence in a defense lawyer appointed by a hospital or insurance company. "If the insurance company has selected a qualified attorney and appointed an individual attorney for each defendant, then the physician should feel comfortable using the insurance-appointed attorney," he told Anesthesiology News.

Dr. Leib advised physicians to do their homework. Much in the same way a patient might investigate a physician, a physician can check out the reputation and qualifications of an appointed lawyer. He recommended requesting that the hospital or insurance company provide background information and experience, including success rate, of the appointed attorney; asking physician colleagues and other attorneys about the appointed attorney's reputation; and ascertaining if there are any state bar complaints against the attorney.

Some insurance companies and hospitals employ the best attorneys for the job; others employ attorneys who provide service for the lowest price. It pays to check, said Dr. Leib, an anesthesiologist and healthcare lawyer.

Avoiding a Suit

The paradigm of malpractice tort law is that someone needs to be blamed, said Mr. Kern. While the law may need reform, it is a system that is resistant to change. The cost of the medical malpractice system is currently estimated at over $10 billion per year. This is a large sum, and there are many parties interested in maintaining the system to reap some of these profits.

Avoiding a malpractice suit when a bad outcome occurs is the optimum first defense. "The patient is your first and best opportunity to avoid a malpractice case," said Mr. Kern. "The more convinced the patient is that you care, the less likely it is the patient will bring a lawsuit."

This does not translate into admitting liability, however. Mr. Kern counseled expressing concern and sorrow about a bad outcome, but not admitting wrongdoing.

Trust No One

The obvious foe in a malpractice case is the plaintiff's attorney. The vast majority of payments in medical malpractice cases occur in the absence of malpractice, said Mr. Kern. Plaintiffs' attorneys have one primary consideration: Did the plaintiff suffer a serious enough injury to warrant a large verdict? A secondary concern is the jury appeal of the patient. The plaintiff's attorney does not care if you did anything wrong, he said.

Members of the press are also not your friends, cautioned Mr. Kern. Don't be enticed, he warned. "The media has an agenda. They are part of the blame game. If you trust the media, you will be disappointed." However, what you don't say can and often will be used against you. Maintain a low profile, he advised, but don't ignore the press. Where possible, have someone else speak on your behalf so that your words cannot be used against you.

The interests of your hospital and insurance carrier may coincide with yours, but they may not, said Mr. Kern. "Unless the hospital insures you, assume it's your enemy." Even if the hospital does insure you, concerns about public relations or a more prominent physician may eclipse concerns about you. It is easier for a hospital to punish a "bad" doctor than admit to a system defect that allows errors.

Mr. Kern gave a recent example of a hospital that wanted to settle a suit--brought against four physicians--without apportioning liability. The hospital, which provided insurance, appointed one attorney for the four physicians. "This happens all the time," said Mr. Kern.

The insurance policy contained no consent-to-settle provision. Thus, the physicians had no say in whether the suit was settled. Settling the suit would list Mr. Kern's client in the National Practitioner Data Bank and effectively end her career, he said. The National Practitioner Data Bank is a Congress-mandated listing of healthcare workers who have had legal judgments against them, including medical malpractice payments.

Dr. Leib agreed that one attorney representing multiple clients often results in an apparent or real conflict of interest. Under such circumstances, most defense attorneys will declare a conflict of interest and request that additional counsel be appointed. If one attorney has been appointed to defend multiple physicians or a physician and a hospital, the physician may at any time question if a conflict exists and may then consider hiring his or her own lawyer, he said.

Other caregivers may or may not be on your side, continued Mr. Kern. The above example involved an injury suffered by a baby during delivery. There was a dispute about who actually delivered the infant. When blame is being apportioned, it is human nature to duck, he noted.

Whose Interests Come First?

Even if the attorney is only representing you, if his or her employer is the hospital or malpractice company, its interests may come first, said Mr. Kern. As the main concern of the insurer is cost, the insurer may determine that it is less costly to settle than take the case to trial.

Joseph N. Farlo, MD, pointed out that an attorney pressuring a client to settle against his or her best interests is a breach of contract. Mr. Kern agreed, noting it is breach of fiduciary duty as well. However, in reality, the attorney's view of the case is determined by a number of factors, including the interests of the people who are paying him or her. "It's human nature," said Mr. Kern. Dr. Farlo is Assistant Professor of Clinical Anesthesiology, University of Southern California School of Medicine, Childrens Hospital Los Angeles.

Dr. Leib disagreed that "human nature" would override a qualified attorney's mandated responsibility to a client. "Most defense attorneys take their ethical and fiduciary responsibilities seriously and give their allegiance solely to their physician client," he maintained. "If an individual attorney has been appointed for each physician, that physician can be reasonably comfortable that the attorney is looking after the physician's best interests."

Based on a presentation at Pediatric Anesthesiology 2004, sponsored by the Society for Pediatric Anesthesia and the American Academy of Pediatrics Section on Anesthesiology and Pain Medicine, the National Practitioner Data Bank Web site ( and interviews with Marc L. Leib, MD, JD, and Steven J. Kern, Esq.

Sunday, February 12, 2006

Defensive Medicine and Disappearing Doctors?

An interesting article entitled "Defensive Medicine and Disappearing Doctors?" is available in PDF format at

The article is written by KATHERINE BAICKER of Dartmouth College and MITABH CHANDRA of Harvard University.

Summary of American Medical Maplractice Law

A nice summary of American Medical Maplractice Law is available for all 50 states at the following link:
This helpful resource is made available by McCullough, Campbell & Lane, a general practice law firm located in Chicago,

Wednesday, September 14, 2005

The Four Elements of Medical Malpractice

Medical malpractice has the following four essential elements. All four of these elements must be proven for malpractice to be established.

[1] Duty of care resulting from a relationship between the patient and the caregiver. Associated with this is a minimal "standard of care" (duty of care).

The question here is "Did the caregiver agree to treat the patient?" If the answer is YES, then an appropriate degree of skill and competence is required (the minimal standard of care). In addition, there may be instances where the caregiver has a duty to persons other than the patient. For example, should a patient suffer an epileptic seizure that leads to an accident to others (as in a car accident), the caregiver may be liable for their injuries as a result of failing to diagnose the patient's epilepsy or for not warning the patient against driving when the diagnosis of epilepsy was established.

[2] Breach of that standard of care by caregiver (breech of duty)

This is usually established by expert court testimony that defines what the acceptable standard of care is and that explains how the caregiver did not provide that care. Of course, expert witnesses for the other side will argue the exact opposite.

[3] Injury to the patient

This is often easy to establish, as in when the patient has had the wrong kidney removed, but it can be more difficult to establish, for instance, when the injury is psychological.

[4] Proof of the injury was caused by the breach of care (proximate cause)

Proximate cause can be determined by asking if the patient would have been harmed in the absence of the caregiver's actions. For example, would a patient undergoing an appendectomy have been harmed if the surgeon had not left a sponge in the patient's addomen? If the answer is NO, then the surgeon's actions are deemed to have caused harm to the patient, and thus fit the causation requirements.

A person accused of malpractice can mount a defence by showing that one of the above four elements is missing. For instance, he or she may argue that the injury to the patient was preexisting and not caused by the caregiver.

Common theories (types of claims) of malpractice include: 1) lack of appropriate care; 2) lack of informed consent; 3) negligent supervision; 4) patient abandonment etc.

Saturday, January 15, 2005

Five Key Steps To Avoid Malpractice Suits

An interesting issue of Anesthesiology News has a great article on avoiding malpractice suits. It can be accessed at by searching for the January 2003 issue. Here is the text of the article, which is presented here in full because no direct link to the article is available (one of the drawbacks of "frames").

Want To Avoid Getting Sued?

Five Key Steps To Avoid Malpractice Suits

Cynics will tell you that the only way to avoid being named in a future medical malpractice suit is to retire now. Nothing could be further from the truth. Although there are no surefire techniques to guarantee that you will never see the inside of a courtroom, there are concrete steps any practitioner can take to decrease the possibility of being named in a suit. Having represented physicians and hospitals in medical malpractice suits in the New York metropolitan area for 20 years, I can tell you what works from firsthand experience.

There is no better substitute for avoiding malpractice suits than a good bedside manner and taking the time to communicate with your patients. Consider the case of a poor surgical outcome. Surgery is replete with risks and complications beyond a physician’s control. Patient expectations are often unrealistic. When a poor result occurs, far too often physicians become unavailable or delegate the responsibility of giving bad news to their subordinates. Such actions only feed a perception that the physician’s unavailability is an attempt to hide or–even worse–cover up something. In a litigious society, some conclude that the next step should be a trip to a plaintiff attorney’s office.

You must be available to the patient or patient’s family to discuss any poor surgical outcome. Hopefully, you have already had a good discussion of informed consent. Spend whatever time is needed to discuss the complication that developed. Remind the patient of your prior informed consent discussion. Take the time to sympathize with the patient or family and answer all of their questions. A timely, well—thought-out explanation of a poor outcome will always go a long way to help avoid your inclusion in a suit.

I have defended a number of cases where a physician was not included as a party defendant despite that physician’s significant involvement. The plaintiff’s attorneys will sometimes explain that they did not sue the physician at the explicit insistence of the plaintiff or plaintiff’s family. The explanation invariably includes the plaintiff’s perception that the unnamed defendant communicated well with and really cared for the plaintiff and spent the necessary time with him or her.

Before commencing the suit, a plaintiff’s attorney will need the applicable medical records, including yours. A significant factor in determining whether to commence suit will be the information and level of documentation in those records, as well as their appearance. Common sense tells you that sparse, poor documentation that is sloppily written will only encourage suits. Understand that during a trial, poor records are blown up and presented on poster boards several feet tall for the jury–and all the world–to see. One-line summaries for an entire key interaction with the patient are grossly insufficient. Countless good physicians have appeared tortured on the stand defending poor documentation.

A physician’s time has always been at a premium, particularly in the era of managed care. Nevertheless, there is no substitute for spending the necessary time in the office or the hospital to compose or dictate a well—thought-out note. Consider again a case with a poor surgical outcome. A prospective plaintiff’s attorney can be deterred from suing for a lack of informed consent by a well-written note documenting a discussion between the physician and patient, prior to surgery, concerning the known risks, complications, and alternatives (if any) associated with the procedure in question. Juries tend to defer to such notes, if they were written before the surgery, in evaluating the testimony of a plaintiff who takes the extreme position at trial that no risks were ever discussed with him or her.

While an appropriately dated and well-written note will help deter a suit, a note obviously written after the fact nearly guarantees a suit. There are no circumstances that can justify going back to and altering, or even adding to, a contemporaneous note. No jury will ever believe a physician caught altering an office or hospital chart.

Office Policy
A good number of suits can be avoided by having a consistent office policy regarding communications. Outside correspondence to the office should be reviewed; the preferable policy is to have some documentation of the review through the placement of initials or check marks on the document. Countless suits are commenced each year in connection with misplaced adverse lab or radiological test results. As an example, if a patient has an abnormal Pap smear result, the medical office needs to have clear procedures on maintaining documentation and a clear policy on how the result should be communicated to the patient. What documentation and/or follow-up will take place after the patient is told of the abnormal result? Whatever the policy is, it must be consistently applied.

Similarly, the office must have a consistent policy for all communications with the world outside. Are telephone calls to the patient by staff members and the physician documented? Are copies of all correspondence kept? How about copies of prescriptions? There is no one correct procedure, but whatever policy is determined must be followed invariably to help you avoid being named in a suit.

Elective Surgery
Although most physicians do not have the luxury of choosing their patients, some do. Many physicians will confide in me that they knew a plaintiff was trouble the day he or she walked through the door. If a patient has unrealistic expectations despite a proper informed consent discussion, you should pause. If a patient seems to have this sort of problem, you need to seriously consider whether further surgery will help–and whether it may result in your being named in a suit. You may want to deal with these situations by insisting, at a minimum, that the patient obtain a second opinion. Your initial instinct is often your best. Should you elect to go ahead despite some reservations, all the more reason to be careful in your documentation in both the office and hospital records.

Departmental Rules
Medical malpractice is generally defined as injury to a plaintiff caused by a departure or deviation from accepted standards of medicine. There is no better "accepted standard" than a rule promulgated by a hospital. There is no better proof of a deviation from an accepted standard than evidence of your not having followed that rule. All too often, well-intentioned hospital committees pass a departmental rule that affects the accepted standard of patient treatment in that hospital department–and then keep that rule hidden in a binder somewhere in the departmental offices, without the physicians’ knowledge of its existence. In order to avoid a suit, you must take the time to obtain the rules and regulations of your hospital department. If any rule affects patient care procedures, you need to commit such a rule to memory. Anything less invites a claim that you did not follow the rules, a claim that may strongly influence a jury.

Litigation today is an occupational hazard for physicians. Hopefully, through a good bedside manner, timely communication with your patient, well-written records, and familiarity with departmental rules, you can better avoid being named as a defendant in a medical malpractice suit.

–Jeff Lawton
Mr. Lawton, a senior partner at the New York law firm of Martin, Clearwater & Bell LLP, is a trial attorney representing physician and hospital clients. He has represented physicians and teaching hospitals in high-profile cases, including Stone vs. Toth.. Mr. Lawton is a frequent lecturer on issues involving medical malpractice and risk management. He can be reached at

Medical Economics Magazine Malpractice Review

The well-known medical journal Medical Economics recently produced a multi-part review of the current medical malpractice crisis. It can be read at the URL given below:

Here are some of the titles of the series

Behind the med-mal crisis

Seeds of the crisis

Insurance reforms

Legal reforms

Medical system reforms

The will to be bold

Unethical Expert Witnesses

Here are some interesting comments from Francis J. Collini, M.D., a plastic surgeon practicing in Shavertown, Pa., who writes in Physician's News Digest about unethical "expert" witnesses. (


Lawsuits against physicians, frivolous or not, would not be filed unless one doctor is willing to testify against another doctor, under oath, for money. You won’t hear lawyers talking about this because they are afraid that doctors will catch on to this "dirty little secret" and lean on their fellow physicians to stop testifying against one another. This could put the malpractice legal system out of business or substantially reduce the number of malpractice cases. You won’t hear doctors talking publicly about this problem because many are embarrassed by their colleagues’ behavior.

Doctors who, under oath, distort medical facts and medical records for the sole purpose of making money are the fuel that sparks the fire of the malpractice crisis. And it works both ways-plaintiff and defendant. Without physicians testifying against other physicians, greedy attorneys would have no cases, judges would hear no frivolous lawsuits and juries would not have to make decisions regarding medical facts that they know little about. Try to find a lawyer who will sue another lawyer. It’s real tough. There is an unwritten law among lawyers that simply states that they will not rat on a fellow colleague. No such unwritten law exists among fellow physicians. If the price is right, some unethical physicians will sell their soul and hence, their integrity to the devil.

I was recently victorious in a medical malpractice lawsuit filed against me in Philadelphia by a patient who I operated on in Wilkes-Barre. Despite the fact that the venue laws have changed in Pennsylvania, I had to travel to Philadelphia twice daily for seven working days to fight this lawsuit. It took the jury just fifteen minutes to come to verdict in my favor.

Can I counter-sue for my time, lost wages and the fact that my malpractice insurance premiums jumped out of sight because the insurance company had to defend me in this lawsuit (to the tune of $46,000)? No! The system does not allow for this. My losses are not recognized as an injury. The system does not view the defending physician as the real victim in such cases. This is inherently unfair.

I do not blame the opposing attorney, nor do I blame the patient for filing this lawsuit. I do not even blame the judge for allowing this case to go forward. The simple truth is that this case would never have gone forward had it not been for the board certified plastic surgeon who agreed to testify against me for money. He was paid handsomely for his testimony. He distorted the medical facts of the case to create a story filled with mischaracterizations and half-truths. Fortunately, good documentation and my strong rebuttal testimony allowed the jury to see through this charade and the members found verdict in my favor.

What is the solution to the expert witness problem? One solution is for each specialty to create a panel of physicians who issue a "certificate of merit" similar to a certificate of board certification to those physicians who qualify to become an expert witness in their respective field. Those physicians who desire to obtain a "certificate of merit" as an expert witness must pass qualifying written and perhaps even oral examinations to ensure their credibility and integrity. Recertification could be done every five to 10 years. Physicians who receive a "certificate of merit" can either donate their time or receive predetermined reasonable monetary compensation for their time and expenses.

As it stands now, expert witnesses receive exorbitant fees for their testimony and this can bias their opinions of medical facts so as to suit the fancy of the attorney who is paying them. By establishing a "certificate of merit" for expert witnesses, bias and discrimination can be diminished and the number of frivolous lawsuits could drop. Furthermore, certified physician experts would maintain respect among their peers.

Monetary compensation for expert witness testimony dilutes the integrity and credibility of all physicians. It is bad for society as a whole and even worse for medicine. Physicians such as the one who testified against me are dangerous. By way of their clouded testimony, the esteem and respect that people have for physicians is damaged. As physicians, we must place ourselves above this type of denigration. It seems morally and ethically reprehensible for physicians to make part or all of their living by accepting money for expert witness testimony.

Welcome to the Medical Malpractice Blog

Who is to blame for our medical malpractice crisis? Is it the attorneys, who advertise heavily to get patients to sue doctors? Are insurance companies to blame, paying multimillion-dollar salaries to their CEOs? Are patients to blame, taken in by unreasonable expectations and by deceptive advertising from plaintiff attorneys, who see malpractice suits as a way to gain a nice jackpot? Or are doctors themselves to blame, either because they harm patients through negligance or because one doctor is willing to testify against another doctor for financial gain? Or is no-one to blame but the system itself?

These are the questions explored in this blog. Welcome.