Medical Malpractice

Dr Peter Cheski presents the Kaiser Family Foundation Review of Medical Malpractice.

Medical Malpractice Law differs from state to state. Many Plastic and Cosmetic Surgery patients feel that they have been subject of a ripoff and have many complaints. However, dissatisfaction with cosmetic surgery does not necessarily mean that malpractice has occurred or that a lawsuit is justified. A key element is if the physician has practiced “Below the Standard of Care”.
I have associations with legal entities and am also approached on an often basis to review plastic and cosmetic cases, especially since I have become President Elect of the American Society of Cosmetic Breast Surgery. Our team can evaluate the following cases: Face lift, Neck Lift, Face and Neck Lift, Brow Lift, Blepharoplasty ( Eye Lift) Facial Rejuvenation, Stem Cell Face Lift, Fat Injection, Rhinoplasty ( Nose Reshaping ) , Septoplasty, Improved Nasal Breathing, Nose, Cheek, Chin and Facial Implants, Cheek or Midface lift, Laser Facial Surgery and Laser Facial Resurfacing, Sinus Surgery, Chemical Peels, Phenol Peel, VIPeel, Thermage, Thermacool, Facial Fillers and injections, Botox, Dysport, Juvederm, Artefill, Silicone, Restylane, Radiesse, Collagen, Skin Care, Esthetician, Spa and MediSpa services, Microdermabrasion, liposuction, laser liposuction, Radiofrequency Liposuction, Breast Implant and Breast Augmentation (Saline and Silicone) with all approaches ( Periareolar, Inframammary, Axillary and Transumbilical ), Breast Lifts, Breast Revision Surgery, Correction of rippling, Mastopexy, Breast Reduction and Reconstruction, Arm Lift and Liposculpture, Abdominoplasty / Tummy Tuck, Thigh Lift.
I am happy to report that Dr Peter Cheski has never lost a medical malpractice case.
Follows is a summary from the Kaiser Family Foundation to give more information on Medical Malpractice
Introduction
Medical malpractice law and insurance have been a very visible focus of
attention around the country and in Washington, DC in recent years and on a
cyclical basis for decades. In some states, the problems associated with
medical malpractice are called a crisis, with health care providers concerned
about spikes in malpractice premiums and reductions in the availability of
coverage, especially for specialists who treat high-risk patients. Some believe
the tort system is at fault, blaming excessive litigation, unreasonably high
settlements and judgments, and the encouragement of defensive medical
practices; others blame the medical malpractice insurance market. Numerous
states have enacted legislation to address various aspects of the malpractice
issue. And the Bush Administration has supported legislation (introduced but
not as yet enacted) to reduce the amount of litigation and restrict damage
awards in medical malpractice lawsuits.
This paper provides a brief overview of the issues surrounding medical
malpractice law. It begins by briefly describing how medical malpractice law
works. Following sections discuss the legal changes that states have made over
the past thirty years in response to periodic concerns about rising medical
malpractice costs, some newer proposals for changing medical malpractice law,
and trend data looking at changes in the number of claims and average and
total claims costs.
Medical Malpractice Law and Lawsuits
Medical malpractice law in this country traditionally has been under the
authority of the states, not the federal government. And, unlike many other
areas of the law, the framework and legal rules governing malpractice actions
were, prior to the last thirty years, largely established through decisions in
lawsuits in state courts rather than through statutes enacted by state
legislatures. Legal rules established by the courts generally are referred to as
“common law.” Because the legal precedents that established the case law in
one state have no weight in any other state, the rules for handling medical
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malpractice cases varied from state to state, although many of the principles
were similar.
Medical malpractice law traces its roots back to 19th Century English
common law.1 The law that developed concerning medical malpractice is part
of the more general body of law dealing with injuries to people or property,
known as “tort law.” Medical malpractice cases are an example of one
particular type of tort, the tort known as “negligence.” The concept of
negligence is that people should be reasonably careful in what they do, and, if
they are not, they should be held responsible for the injuries that can be
reasonably foreseen as resulting from their negligent conduct.
To win a negligence lawsuit involving medical care, the injured person
needs to prove that they received substandard medical care that caused their
injury. This involves a number of steps. First, a person who is injured during
treatment must determine whether or not they have been harmed by
inadequate care. Physicians and other providers generally are not legally
required to tell their patients that they were hurt by medical care that was not
as good as it should have been, so patients who suffer adverse outcomes, or
their families, usually must consult with others to make this determination.2
Patients who were under the care of multiple health care providers need to
determine which, if any, of these providers contributed to their injury, if it is
possible to do so. A malpractice lawsuit must be brought within a legally
prescribed period, called a “statute of limitation.” In some states, the period for
filing a suit starts when the person is injured, while in other states it does not
start until the person knows or reasonably should have known that they had
been injured.
1 See Speiser, Stuart M., et al., American Law of Torts, Vol. 4, Sec. 15.10 (West, 1987).
2 While physicians are not legally compelled to disclose malpractice to their patients, the
American Medical Association code of ethics (8.12) requires physicians to inform patients of the
facts concerning mistakes or judgments that resulted in significant medical complications. A
2001 standard of the Joint Commission on the Accreditation of Health Care Organizations, RI
1.2.2, requires similar disclosure on the part of hospitals.
2
Once a person brings a malpractice lawsuit, the person (called the
“plaintiff”) must show that they were actually under the care of the physician (or
other provider) they are suing -- in other words, that they had established a
physician-patient relationship. The concept here is that physicians (or other
providers) owe a duty to their patients to use reasonable care and diligence in
their treatment, but do not have any duty to care for members of the general
public other than their own patients.
The next requirement is the heart of a negligence lawsuit: the plaintiff
must show that the physician did not provide medical care that met appropriate
standards. The standards of care that physicians must meet have changed
substantially over time. In earlier cases, doctors were only required to perform
as well as other doctors practicing in their home community. More modern
cases have moved toward holding physicians to a national standard for
physicians practicing under circumstances similar to their own. For example,
specialists must practice medicine as well as the average specialist in the same
field, no matter where they are located.
Even if the physician is shown to have provided substandard care, the
plaintiff still must prove that the substandard care caused their injury. In some
cases this is not difficult, such as when surgery is performed on the wrong body
part. In other cases, showing causation can be quite problematic, such as cases
involving severely ill people who might have suffered complications from their
disease even with good medical care. Identifying what part of the medical care
caused an injury can also be a challenge when many different providers
participated in the care, so many courts have special rules to deal with
situations where it is not possible to pinpoint the harmful acts, yet it is obvious
to a layperson that medical care must have led to the patient’s injury.
The final step in a medical malpractice case is establishing how much
money should be awarded to a winning plaintiff. A person who wins a
malpractice lawsuit has shown that the injury is someone’s fault under the rules
of negligence, so the question then becomes how much money is needed to
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compensate that person for what they have suffered.3 This monetary award is
called the “damages.” The rules for determining damages can be complicated
and take into account both actual economic losses, such as lost wages and the
costs of future medical care related to the injury, and non-economic losses,
such as pain and suffering or the loss of companionship of a spouse or child.
As noted below, the value to be placed on non-economic losses has been
particularly contentious.
During the last three decades of the 20th Century, the traditional reliance
on state courts to shape medical malpractice law started to change. As
premiums for malpractice insurance climbed sharply, organized medicine
began to put pressure on state legislatures to change many of the rules
governing malpractice lawsuits that had been created by judges over the
previous two centuries. State legislatures have responded to a number of
issues concerning the malpractice tort claims system and passed statutes that
changed a number of different aspects of malpractice law, some of which had
dramatic effects. Those statutes are often referred to as “tort reforms.” More
recently, the United States Congress has also considered legislation that would
make federal laws more prominent in medical malpractice cases and would
override at least some aspects of state laws. Below we describe a number of
the issues that have led to statutory changes, and discuss those changes.
3 From a societal perspective, medical malpractice lawsuits also serve a preventive function by
encouraging medical providers to practice in accordance with professional standards. How well
the current malpractice system fulfills that role, and whether fear of malpractice action
discourages providers from participating in reporting and other systems intended to identify
and reduce medical errors, are contentious issues within the overall debate about the
appropriateness of the current medical malpractice structure.
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Medical Malpractice Policy Issues
This section identifies some of the areas in which state laws have
changed or clarified traditional common law rules for medical malpractice
cases, focusing on:
-- Who Evaluates the Adequacy of Care?
Expert Witnesses
Pre-Trial Screening of Cases
Alternative Dispute Resolution
-- How Much Money Should Be Awarded to Plaintiffs or Paid to Lawyers?
Limits on Damages
Attorney Compensation
-- How Should Damages Be Paid, and by Whom?
Joint and Several Liability
Lump Sum or Periodic Payments
Recoveries from Collateral Sources
-- How Much Time Should People Have to Bring Lawsuits?
Statutes of Limitations
After discussing the areas in which state laws have been modified in
recent decades, this section also identifies newer proposals for tort reform, only
one of which has actually been adopted, focusing on:
-- Patient Compensation Funds
-- Aligning Malpractice Law and Patient Safety Concerns
-- Expanding Risk Pools
-- Prudent Physician Standard of Care
-- Enterprise Liability
Who Evaluates the Adequacy of Care?
Proving that the physician breached the standard of care has been one of
the most important and contentious requirements of malpractice actions, since
it involves finding fault and placing blame on a particular physician. In
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negligence lawsuits involving everyday matters, the jury generally decides for
itself whether the defendant was reasonably careful, but medical malpractice
usually requires that medical experts testify about the required standard of care
and whether or not the defendant met that standard. Getting experts was
somewhat difficult when the standard was a purely local one, since only doctors
in that community could testify to the standard and they were reluctant to point
fingers at their fellow physicians. It became much easier to bring in outside
experts as the standard changed to a more national one, making lawsuits more
feasible. In turn, this led to development of the so-called “professional
witness” who travels from courtroom to courtroom to testify in lawsuits. The
perception that such itinerant experts will say whatever supports the side of the
case that is paying for their testimony has seriously undermined confidence
among physicians in the fairness of the negligence system.
In response to unease that physicians were being judged by laypersons
on juries guided only by “competing experts,” states have made several types of
tort law changes addressing the way that negligence is to be determined.
Expert Witnesses. Some states have specific standards for medical
experts, requiring that they be of the same specialty as the physician being
sued, or that that the experts actually be practicing physicians. An example is
a law providing that the expert witness must practice or have training in
diagnosing or treating conditions similar to those of the patient and must
devote at least 60% of his or her professional time to clinical practice or
teaching in their field or specialty.4
Pre-Trial Screening of Cases. Another common state response is
requiring malpractice cases to be screened by a medical review panel,
mediation office, or some other panel or official before the cases go to court.
Pre-trial review is intended to identify cases that lack merit (although the
lawsuits generally are not precluded from moving forward by such a finding)
and to encourage the parties to settle the case without litigation. Some states
permit the results of the pretrial review to be admitted as evidence if the case
4 West Virginia Code §55.7B.7.
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proceeds to court, while other states do not. Alaska, for example, requires
review of filed cases by an expert panel appointed by the court, with the
findings admissible at trial.5
Alternative Dispute Resolution. A number of states have also established
alternatives to going to court, called Alternative Dispute Resolution procedures.
For example, some states permit physicians to require that disputes with their
patients will be resolved by arbitration rather than by judicial process. Another
approach is to make arbitration voluntary, but to enforce arbitration
agreements when they are made or at least permit the findings to be introduced
into court. Connecticut, for example, does not require malpractice cases to go
to arbitration, but if both sides agree to do so, the case will go to a screening
panel of one lawyer and two physicians. The panel can make a finding as to
whether or not there is any liability; if the decision is unanimous, it is
admissible in any subsequent trial.6
How Much Money Should Be Awarded to Plaintiffs or Paid to Lawyers?
Limits on Damages. Perhaps the most contentious set of issues deals
with the amount of damages awarded in medical malpractice cases. The most
straightforward part of the damage calculation would seem to be adding up the
actual out-of-pocket losses that resulted from a negligent injury. These would
include lost wages, medical care expenses, and other actual economic losses.
Although it is simple in theory to measure economic losses, it in reality can
become somewhat complicated when trying to estimate how much a person
would have earned far into the future, or what medical or long term care they
might need and how much it would cost many years after their injury.
As difficult as calculating economic losses are, the more controversial
part of calculating damages is estimating the dollar value of non-economic
losses. In particular, there is substantial disagreement over the way to measure
5 Alaska Statutes §09.55.536.
6 Connecticut General Statutes, Chapter 697 §§ 38a-33 and 38a-36.
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the “pain and suffering” that resulted from the injury. Deciding how much
money it would take to compensate someone for a humiliating appearance or
chronic pain or some other non-economic harm is a highly subjective
determination. Consequently, the dollars that are awarded by different juries
for similar injuries can vary substantially, raising the criticism that noneconomic
damage awards are too arbitrary to be fair. In particular, physicians
often feel that juries respond to the plight of the injured person and make large
financial awards irrespective of whether the person’s misfortune was actually
the result of substandard medical care, simply because physicians and their
insurance companies are seen as “deep pockets” that can be tapped to
ameliorate that misfortune.
Another aspect