Thorough record keeping: A good defense in a litigious era.

Psychotherapists, like other health professionals, are concerned about the increase in malpractice litigation and insurance rates. Properly kept records, made in anticipation of future litigation, may be crucial for the psychotherapist who is faced with a malpractice suit. We review cases in which records influenced the outcome of malpractice suits, and we make specific recommendations regarding the optimal maintenance of records. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Beyond tort reform

Organized medicine has spent a great deal of time, energy, and money attempting to revise the legal tort system. Yet, change, if any, has been incredibly slow. There are many reasons for this. Tort law has been a part of American jurisprudence for hundreds of years. In addition, most state legislatures are populated with large numbers of attorneys. This paper explores the economic factors that underlie the litigation process in medical negligence/malpractice cases. It suggests that the current tort system is not as antimedicine as physicians commonly believe, rather, it is physician-friendly. Presented here is a more efficient and cost-effective method of addressing medical negligence/malpractice cases. An exclusive relationship between the liability insurance carrier and a defense law firm is proposed. Rather than using the old billable hours system to charge for its services, the defense law firm negotiates a yearly retainer based upon a percentage of the annual liability insurance premiums paid. How this relationship would result in a more efficient and cost-effective approach to the present tort system is examined.     

Impact of malpractice litigation on professional psychology: Survey of practitioners.

Survey data revealed the extent of the rising threat of malpractice litigation against psychologists and its impact on the delivery of psychological services. Relatively few practitioners reported serious concerns about being sued for malpractice, although most had taken steps designed to protect against litigation. There was no evidence to substantiate claims of an outbreak of "litigaphobia" among psychologists. In general, the threat of malpractice litigation appears to act as an impetus for a variety of sound and ethical practice behaviors. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The ontological basis of strong artificial life

In 1973, the United States Congress enacted legislation requiring physicians to initiate Peer Review Organizations to monitor utilization and quality of hospital and physician services in the federally funded Medicare program. A hardly noticed provision of the statute intimated the desirability of formulating guidelines for medical treatment. What was originally intended to simplify and universalize general standards by which quality of care could be objectively measured has more recently escalated into formalized projects, subsidized by government, to create "practice parameters". The impetus to define clinical conditions and methods of treatment for specific medical conditions (practice parameters) and standards of practice to avoid or defend malpractice claims (risk management protocols) are part of the movement in the United States for tort reform. If the vague "reasonable man" standard of care in negligence law can be supplanted by a scientifically developed, particularized medical practice standard, it is anticipated that spurious claims and defensive medical practice will be discouraged, quality improved, iatrogenic injury and malpractice litigation diminished. Many U.S. states undertook tort reform in the last decade. A few have embarked on medical-legal reform. One state is conducting a five-year medical liability project that calls for the development of practice parameters and risk management protocols in four medical specialties. The parameters will have the effect of law and may be introduced as evidence in medical malpractice trials. How the parameters are established, their effect on the strategies of litigation, the resultant trial problems in the introduction of evidence and in the burden of proof and their potential for acceptance by a significant number of jurisdictions-are the issues to be explored in this paper.     

Malpractice litigation against child and adolescent psychiatry residency programs, 1981-1991

A national survey was conducted to investigate malpractice litigation at United States child and adolescent psychiatry residency programs between 1981 and 1991. Fourteen percent of the directors of child and adolescent psychiatry reported at least one malpractice claim during this period. The highest percentage of lawsuits reported was in the northeast. Suicide and sexual abuse of latency age patients by other patients accounted for the most litigation. The mean monetary award was $167,000, and the largest award was $500,000 for discharge of a patient who killed his mother. There has been an increase in malpractice litigation during the past 10 years. Risk management strategies should be implemented to address areas of liability in child and adolescent psychiatry training programs.     

Relation between negligent adverse events and the outcomes of medical-malpractice litigation

BACKGROUND: We have previously shown that in New York State the initiation of malpractice suits correlates poorly with the actual occurrence of adverse events (injuries resulting from medical treatment) and negligence. There is little information on the outcome of such lawsuits, however. To assess the ability of malpractice litigation to make accurate determinations, we studied 51 malpractice suits to identify factors that predict payment to plaintiffs. METHODS: Among malpractice claims that we reviewed independently in an earlier study, we identified 51 litigated claims and followed them over a 10-year period to determine whether the malpractice insurer had closed the case. We obtained detailed summaries of the cases from the insurers and reviewed the litigation files if the outcome of a case differed from the outcome predicted in our original review. RESULTS: Of the 51 malpractice cases, 46 had been closed as of December 31, 1995. Among these cases, 10 of 24 that we originally identified as involving no adverse event were settled for the plaintiffs (mean payment, $28,760), as were 6 of 13 cases classified as involving adverse events but no negligence (mean payment, $98,192) and 5 of 9 cases in which adverse events due to negligence were found in our assessment (mean payment, $66,944). Seven of eight claims involving permanent disability were settled for the plaintiffs (mean payment, $201,250). In a multivariate analysis, disability (permanent vs. temporary or none) was the only significant predictor of payment (P=0.03). There was no association between the occurrence of an adverse event due to negligence (P = 0.32) or an adverse event of any type (P=0.79) and payment. CONCLUSIONS: Among the malpractice claims we studied, the severity of the patient's disability, not the occurrence of an adverse event or an adverse event due to negligence, was predictive of payment to the plaintiff.     

The malpractice controversy and the quality of patient care

The widespread doctor strikes of 1975 stimulated belated attention to a crisis in malpractice insurance. Most state legislatures responded only to a shadow crisis in insurance as they rallied to the defense of health care providers. The smouldering substantive crisis--the reality of malpractice--is now galvanizing institutions and professions into aggressive activities for quality assurance and renewal of trust between patient and doctor. New procedural experiments offer prospects for preserving economy and equity by containing the causes of malpractice suits within the health care system itself.     

Solo versus group practice in the medical profession: the influence of malpractice risk

While Partnerships are a significant form of business organization in many sectors of the economy, relatively little is known about the incentives which lead to their formation. This paper explores the formation of partnerships among office based physicians when facing some risk of malpractice litigation. Theoretical results indicate that malpractice exposure can increase the incentives to shirk within a partnership, and so exert a significant influence on the decision to form a partnership. Empirical results find that malpractice risk has the expected negative effect on some partnership formation.     

The effects of malpractice on Mississippi physicians

Medical malpractice and its effects on physicians in Mississippi is reviewed to assess its effects upon decisions in practice, patient care, and the physical and emotional toll on physicians. Through a random survey of 500 physicians in Mississippi across all areas of medicine it was determined that 47.3% of the respondents had been involved in malpractice litigation, a higher percentage than the United States average in 1989. The predominant emotional response to litigation was anger. Most physicians did not seek outside help as an aid in coping.     

Medical malpractice involving radiologic colon examinations: a review of 38 recent cases

OBJECTIVE: Our purposes were to determine the causes of malpractice claims against radiologists performing contrast examinations of the colon and to design strategies to reduce litigation and diminish patient morbidity. MATERIALS AND METHODS: Reports of malpractice claims were collected from legal journals and databases between 1985 and 1994. For this period, 38 plaintiffs raised 52 allegations of malpractice that involved radiologists performing barium or Hypaque (meglumine diatrizoate; Winthrop Pharmaceuticals, New York, NY) colon examinations. For the 38 cases, 18 plaintiffs for decedents alleged that failure to diagnose colorectal cancer by barium enema examination caused delay in treatment and the patient's death. Eighteen plaintiffs alleged that improper performance of barium (17 cases) or meglumine diatrizoate (one case) colon examinations caused perforation of the colon, resulting in significant morbidity (15 cases) or death (three cases). Miscellaneous causes for malpractice claims were recorded in two cases. RESULTS: In 18 cases of failure to diagnose colorectal cancer, the initial radiographs were interpreted as follows: normal findings in 14 cases, diverticulosis in one case, and spastic bowel in two cases; in the remaining case, colon cancer was missed because of nonopacification of the cecum. In retrospect, 17 of 18 colorectal cancers were visualized. The delay in the diagnosis of colorectal cancer ranged from 5 to 72 months. Missed colorectal cancers occurred in the cecum (two cases), transverse colon (two cases), rectosigmoid area (nine cases), or unspecified area (five cases). In 18 cases of colon perforation, the site was the cecum (one case), transverse colon (one case), extraperitoneal rectum (seven cases), rectosigmoid area (one case), colostomy stoma (two cases), or unspecified area (six cases). One patient experienced anaphylactic shock that required hospitalization. One underwent unnecessary surgery because barium enema films showing colon cancer were mislabeled with her name. CONCLUSION: On the basis of our analyses of malpractice claims, we suggest strategies to prevent medicolegal litigation. Strategies include communicating with the patient about the type and indications of the barium enema examination, performing digital rectal examinations on all patients to detect distal rectal lesions or strictures, recognizing colon perforation, and obtaining immediate surgical consultation if colon perforation occurs. The number of missed colon cancers may be reduced by reading twice or reviewing at a later time all barium enema examinations.     

The governance of psychological practice: Implications of American developments for Canadian psychology.

Describes 5 means of maintaining standards for psychological practice that are currently used in the US: (1) general and criminal law, (2) peer control, (3) federal regulations, (4) state boards of examiners in psychology, and (5) civil malpractice litigation. Their relevance to the Canadian context is discussed, especially with respect to the more restricted role of the Canadian federal government in professional affairs, the lower profile for civil rights, and the lower incidence of civil litigation in Canada. Recommendations made to ensure the exemplary practice of psychology include the increased use of peer control through peer review committees, increased organization of professional practice at the national level, and a closer liaison between professional associations and governing boards at the provincial level. (7 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Complaints, malpractice, and risk management: Professional issues and personal experiences.

As psychologists strive to affect human welfare in a positive way, their greater exposure and responsibilities have led to worry about potential malpractice lawsuits and state licensing board complaints. Are psychologists at increasing risk for litigation? What steps can they take to alleviate the stress and worry? A survey of licensed psychologists (N?=?284) explored professional awareness, personal experiences, and practice activities related to complaints, malpractice lawsuits, and risk management. Professional psychologists are urged to stay informed regarding events and activities that may result in lawsuits or complaints and to practice in a manner that best provides protection. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

America's first medical malpractice crisis, 1835-1865

Prior to the early 1800's, medical malpractice was almost unknown in the United States. However, a large number of malpractice law suits inundated the courts between 1835 and 1865. About 70 to 90 percent of the litigation involved fractures and dislocations with imperfect results or deformities such as shortened or crooked limbs. Lawyers alleged that the physicians did not provide due proper care, skill and diligence despite the fact that the better surgeons tried to save limbs rather than follow the common practice of amputation, especially for compound fractures. While a number of texts dealt with medical jurisprudence, it was not until 1860 that a text on the subject intensively delved into the issue of medical malpractice. Coincidentally, the attitudes and behaviors of patients, lawyers, physicians and judges during the first medical malpractice crisis were surprisingly similar to those currently held.     

Dental malpractice: practical tips on avoiding a dental malpractice claim

With a few simple strategies, dentists can avoid the expensive trauma of malpractice litigation. Sometimes it's just a matter of maintaining good records.     

The DNA/RNA-binding protein, TB-RBP, moves from the nucleus to the cytoplasm and through intercellular bridges in male germ cells

In male infants, traumatic ablation of the penis, with or without loss of the testicles may occur as a sequel to mutilatory violence, accidental injury, or circumcision error. Post-traumatically, one program of case management is surgical sex reassignment to live as a girl, with female hormonal therapy at the age of puberty. The other program is genital reconstructive surgery to live as a boy, with male hormonal therapy at puberty if the testicles are missing. In both programs, the long term outcome is less than perfect and is contingent on intervening variables that include societal ideology; surgical technology; juvenile and adolescent timing and frequency of hospital admissions construed by the child as nosocomial abuse; development of body image; health and sex education; fertility versus sterility; coitus and orgasm; possible lesbian orientation if living as a girl; and long-term cost accounting, including the psychic cost of being a pawn in possible malpractice litigation on whose disability a very large fortune in compensation may devolve. There is, as yet, no unanimously endorsed set of guidelines for the treatment of genital trauma and mutilation in infancy, and no provision for a statistical depository for outcome data.     

Isolated ophthalmic migraine in the differential diagnosis of cerebro-ocular ischemia

The purpose of this communication is to offer the medical community an analytic design for a system to gather data about patients' injuries found in malpractice litigation. The goal of this system is to determine the causes of these injuries. The information to be gained will be of substantial benefit for the development of injury-preventive programs within the health care field.     

The legal implications of clinical practice guidelines

In the past several years, considerable attention has been focused on clinical practice guidelines. They are developed to foster improved clinical care and to increase clinical efficiency. The legal implications of developing and following guidelines are not yet clear. The author argues that properly formulated guidelines could reduce the burdens of preventing and resolving malpractice claims.     

Legal issues and behaviour modification: A Canadian perspective.

The use of behavior modification techniques has been a matter of litigation in the US courts. The resulting judicial decisions have limited some aspects of the application of behavior modification techniques. Similar litigation is beginning to take place in Canada. The US cases will probably have some value as legal precedents before the Canadian courts. These US judicial decisions as well as related articles from legal and behavioral psychology journals and texts are reviewed. A series of guidelines is presented that behavior modification practitioners might adopt to prevent a similar legal-behavior modification conflict from developing in Canada. (French abstract) (53 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Risk management with the suicidal patient: Lessons from case law.

Suicide continues to account for a comparatively large proportion of all lawsuits filed against mental health professionals. However, despite the prominence of suicide in mental health malpractice litigation, clinicians must resist resorting to defensive clinical practices in an attempt to shield themselves from potential lawsuits. By using accepted tenets of suicide management as a starting point, the author aims in this article to inform and educate practitioners about clinical malpractice from a legal, as well as a clinical, point of view. Hence, this article aims to demystify relevant case law for practitioners by offering informative, real life examples of how therapeutic practice is interpreted in the courtroom, as well as examples of how juries and judges typically view the treatment decisions clinicians routinely make regarding their suicidal patients. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Judging Unreasonable Litigation Behavior at the Interface of Mediation in the English Jurisdiction

Civil procedure rules (CPRs) in the English jurisdiction were introduced to restrain the adversarial and expensive litigation activities of the legal profession. Judges use case management to fix timetables for preaction meetings, disclosure, and trial dates. Under CPR both the judiciary and the parties have a duty to consider ADR alternatives such as mediation. Costs sanctions were implemented to keep in check unreasonable litigation practices and prevent the parties and their lawyers from creating delay and unwarranted expense. Evidence exists that construction parties are beginning to utilize mediation tactically both in the settlement phases activated by CPR and during the mediation process itself and some lawyers are reported to adopt an adversarial approach in mediation. This paper examines case law from the English jurisdiction on the application of the principle of “unreasonable behavior” in litigation to analyze how effective the specialist Technology and Construction Courts (TCCs) are in countermanding the strategic interplay of mediation within CPR and to determine the developing legal rules on mediation. Case law indicates that judges in the TCC are using costs sanctions to control abuse of the preaction protocols where there is a “substantial” lack of compliance but the Halsey criteria demonstrates an uncertainty in the application of the guidelines for delay and the timing of mediation, which can impact on the expense of litigation and may result in abuse or costs injustices. Further case analysis shows that negotiations in mediation are protected by the privileged status of “without prejudice statements” but unreasonable conduct in mediation will be examined by the court if both parties waive privilege or the abuse is such that it reaches the bar set for “unambiguous impropriety.” Further protection is provided through a developing principle of confidentiality but judges are likely to use their discretion in the “interests of justice,” for example, where there are allegations of economic duress. Neither unambiguous impropriety nor economic duress is likely to encompass uncooperative or adversarial approaches within the process or hard negotiations.