EMRA ADVOCACY WEEK
October 24-28, 2011
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There are four elements to a malpractice
case:
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◦
◦
◦

Duty
Breach of Duty
Injury
Damage
Each Element must be satisfied in order for
the Plaintiff to win a case
A duty is owed: a legal duty exists whenever a
hospital or health care provider undertakes
care or treatment of a patient.
◦
Under EMTALA Emergency Physicians have a
duty to evaluate and stabilize all pts that come
to the ED
◦
Other physicians may choose not to treat a pt
and then do not owe a duty to the pt
A duty is breached: the provider fails to
conform to the relevant standard of care.
◦ The standard of care is proved by expert testimony
◦ 40% of states still follow the locality rule
◦ 60% of states follow the national standard of the
profession

A doctor must exercise the reasonable
degree of learning and skill ordinarily
possessed by physicians and surgeons in
the locality where the doctor practices

This allows for greater leeway for physicians
practicing in rural areas that might not have
access to consult expertise and other medical
knowledge

A physician has a duty to use the degree of
care and skill that is expected of a
reasonably competent practitioner in the
same class to which he or she belongs,
acting in the same or similar circumstances
◦ If an area lacks facilities or specialized expertise, the
patient should be advised of where to seek the
facilities

The breach must cause an injury: The breach
of duty must be a proximate cause of the
injury.
◦ MD orders Gabapentin on the wrong pt. Pt then has
MI. Must prove that the gabapentin was a cause of
the MI
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Damages: Without damages (losses which
may be physical or emotional), there is no
basis for a claim, regardless of whether the
medical provider was negligent.
◦ If a patient is mistakenly given another patient’s
anti-hypertensive medication but only has no or
only a slight drop in blood pressure that does not
result the need for intervention or extending the
hospital stay there are no likely damages

Data taken from the AMA’s 2007-2008 Physician
Practice Information Survey
◦ 5,825 physicians from 42 specialties

42% of physicians had a claim filed against them
during their career
◦ 95 Claims were filed for every 100 physicians
 20% were sued 2+ times

5% had a claim in the last 12 months
Kane, C. Policy Research Perspectives: Medical Liability Claim Frequency: A
2007-2008 Snapshot of physicians.” (Chicago, IL: American Medical
Association 2010).

The older the physician the more likely they
are to have been sued
◦ Under 40 : 15.3%
◦ 40-54: 45.3%
◦ 55+: 60.5%
Kane, C. Policy Research Perspectives: Medical Liability Claim Frequency: A
2007-2008 Snapshot of physicians.” (Chicago, IL: American Medical
Association 2010).

Who is sued the most:
1.
2.
3.
4.
5.
OB/GYN
General Surgeons
Surgical Sub –Specialties
Radiology
Emergency Medicine

Men are sued more then women
◦ Men: 47.5%
◦ Women: 23.9%

But men are concentrated in specialties with the
highest levels of claim incidence
◦ 23.8 % of men are surgeons or OB/GYNs
 14.8% women are surgeons or OB/GYNs
◦ 25.1% of women are pediatricians or psychiatrists
 13.2% of men are pediatricians or psychiatrists

33% of Men are 55+ and only 15% of women

65% of claims were dropped, dismissed or
withdrawn

25.7 % were settled

4.5% were decided by alternative dispute
mechanism

5% resolved by trial

*
With defendant winning 90% of the time
Physician Insurers Association of America. Claim Trend Analysis 2009
Edition. (Rockville, MD: Physicians Insurers Association of America,
2009)

Average defense costs per claim was $40,649
◦ $22, 163 for dropped, dismissed, withdrawn claims
◦ Over $100K for tried cases

Median Indemnity payments
◦ $200k for settled claims
◦ $375k for tried claims
* Physician Insurers Association of America. Claim Trend Analysis
2009 Edition. (Rockville, MD: Physicians Insurers Association of
America, 2009)

1452 closed claims reviewed by trained physicians for
5 liability insurers showed:
◦ 3% of closed claims show no injury had occurred
◦ 37% of closed claims there had been no error
◦ 27% of closed claims involving errors were uncompensated
◦ 27% of closed claims with no errors were compensated
* Studder, DM. et al. “Claims Errors, and Compensation Payments in Medical
Malpractice Litigation.” New England Journal of Medicine 354 (May 11, 2006):
2024-2033.

Less than 15% of patient who suffered from
negligence filed a claim

Negligence occurred in only slightly over 15%
of filed claims
Weiler et al. A measure of Malpractice: Medical Injury, Malpractice
Litigation, and Patient Compensation (Cambridge, MA: Harvard
University Press 1993)

Brown et al looked at medical liability claims
from 1985-2007 provided by Physicians
Insurers Assoc of America (PIAA)
◦ PIAA is a trade association whose medical liability
carriers collectively insure 60% of practicing
physicians in the US

11,529 claims identified

Largest source of error –
◦ errors in diagnosis (37%)
◦ improper performance of procedure (17%)
◦ no error identifiable (18%)
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AMI (5%)
Fractures(6%)
Appendicitis (2%)
Interestingly…
The ED provider was the primary defendant in
only 19% of claims
◦ This fact plays into the difficulty of getting specialty
coverage in the ED



70% of cases closed with NO payment made
to claimant
23% paid out via settlement
7% of cases resolved via verdict (85% of those
in favor of the physician)
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

Selbst et al reviewed of malpractice cases
involving pediatrics…
PIAA (at that time covering 25% of physicians)
queried for claims that originated in EDs and
urgent care centers that involved kids from
1985-2000.
2283 closed claims reviewed
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
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96% of cases from EDs 4% from urgent care
centers
29% of the cases involved the ED physician,
19% the pediatrician
66% of physicians sued had a previous claim
Most common diagnoses – meningitis,
appendicitis, fracture, testicular torsion.
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Cases settled 93% of the time
Payment only made in 30%
Trial in only 6.9%
If trial – verdict for physician 80% of the time
◦ 33 States have enacted some kind tort reform
◦ Most have caps on non-economic damages at
about 250,000 dollars
◦ Non-economic damages do not included damages
for:




Future medical expenses
Loss of wages
Wheel Chairs and other medical supplies
Nursing home/home health aids


Of the 33 states with tort reform 31 have
caps
Of those 33:
◦ 12 Supreme Court cases determined that caps are
constitutional
◦ 16 have not had Supreme Court Cases
◦ 2 are pending litigation
◦ 1 state found the caps unconstitutional
◦ 1 state amended their constitution to make caps
constitutional

There are 19 states that do not have caps

Of those 19 states:
◦ 6 states have Supreme Court decisions stating caps
are unconstitutional
◦ 4 states have constitutions that specifically state
caps are unconstitutional
◦ 9 states have not addressed the issue


Patients are told by supporting medical
malpractice caps and giving up some of their
legal rights in return they will get better
access to doctors and the cost of healthcare
will be decreased
But consider this…

*
A 2004 report by the Congressional Budget
Office also pegged medical malpractice costs
at 2 percent of U.S. health spending and
“even significant reductions” would do little to
reduce the growth of health-care expenses.*
CBO, available at http://www.cbo.gov/ftpdocs/49xx/doc4968/01-08-
MedicalMalpractice.pdf
◦ JAMA article reports states with caps have a 2.4%
increase in physician supply*
*Kessler, D; et al. Impact of Malpractice Reforms on the Supply of Physician Services,
JAMA. 2005;293:2618-2625. available at http://jama.amaassn.org/cgi/content/full/293/21/2618


Comprehensive liability reform including caps
on non economic damages passed by Texas
legislature and voters
Resultant increase in emergency physicians in
the state= improved access
“Effects of Texas Liability Reform 2003-2009”
http://www.acep.org/content.aspx?id=45168
Decreased malpractice premiums

Remittitur:
◦ allows the judge to throw out jury verdicts that are
too high

Administrative proceedings:
◦ are substituted for common law damages (jury
trials), such as in workers compensation
proceedings, are constitutional,
◦ therefore the creation of an administrative court to
hear medical liability cases may also be
constitutional

Sliding Scale Damages:
◦ Damages would be based on the severity of the
injury
◦ Would allow more severely injured patients greater
compensation and would ensure that patients with
injuries of similar severity get the same
compensation
◦ The National Association of Insurance
Commissioners already has an injury severity scale
that could be applied to medical liability.

Affordable Care Act allotted 20 million dollars
for research focused on alternative medical
liability reform such as:
◦ Mitigation
◦ Panels to screen cases
◦ Creating reward funds
◦ Regulation of Malpractice Insurance Premiums