The American Civil Justice (Tort) The American Civil Justice (Tort) System (and a brief intro to The System (and a brief intro to The Law)Law)

Jane A. McAtee Associate General Counsel Executive Director, Professional Liability Plan w/thanks to Dr. Elmer Abbo, MD, JD

Why Do You Need to Know Why Do You Need to Know This? This?

Law influences many day to day physician/patient interactions Health Care is Highly Regulated Industry 40% of All Physicians Will Be Named in a Lawsuit Malpractice Payment May Go on Your Credentials Records Most Physicians Will Testify as A Witness in a Lawsuit High Costs of Insurance High Costs to Institution Knowledge = Better Preparation of Defense Knowledge = Better Risk Management = Fewer Compensable

Incidents Knowledge = Reduction of Fear

What is THE LAW?What is THE LAW?A body of rules of action or conduct prescribed by controlling authority, and having binding A body of rules of action or conduct prescribed by controlling authority, and having binding legal forcelegal force

Overview- Basics of Malpractice Specific Ethical Conflicts

◦ Disclosure of Errors Compensation Expert Witnesses Accountability

Tort Reform - is it the answer?

Are the Concepts of Medical and Legal Ethics in Conflict?

Principles of Medical EthicsPrinciples of Medical Ethics Beneficence- Acting for the Benefit of

the Patient Non-Malfeasance - To Do No Harm Autonomy - Respect Patient’s Right To

Decide Justice - Benefit Society, wise use of

scarce resources fair distribution of scarce resources, competing needs, rights and obligations, and potential conflicts with established legislation.  

Principles of Legal EthicsPrinciples of Legal Ethics1. Independence2. Honesty, Integrity and Fairness3. Conflicts of Interest.4. Confidentiality/Professional Secrecy5. Clients’ Interest6. Lawyers’ Undertaking7. Clients’ Freedom8. Property of Clients and Third Parties9. Competence10. Fees

There is No Doubt…There is No Doubt…That there is Negligent CareThat Preventable Medical Errors

are allegedly the 6th Leading Cause of Death

That Medical Insurance is Inadequate

That People Need Compensation for Injury

• But is the Civil Justice System the right Fix?

Goals of Tort System???Goals of Tort System???The patient or family should be restored

as nearly as possible. Restoration should be efficient, equitable, and effective.

Judged by a Jury of Peers.Based on Objective Standards.Accountability.Error should be seen as an opportunity

for learning and improvement.The legal environment of health care

should do no harm.

In Reality- A Gotcha In Reality- A Gotcha SystemSystem

And it is - ALL ABOUT THE MONEY

In Reality - cont…In Reality - cont…Fault-Based Liability ProcessInefficientInequitable; no ability to foster

patient safety punishment without accountability, retribution without justice

Experts Aren’t Experts Jurors Aren’t PeersCompensation Not Tied to Facts

Fundamentals Fundamentals Plaintiff bears the burden of

proof That there was a Duty The standard of care A breach of the standard of

care Injury Caused by the Breach Damages

The DefenseThe DefenseThere was no duty or suit not

timely filedThe standard of care is differentThere was no breach Injury was a known complicationPatient Assumed the RiskThere is no injuryCompensation is less…

The Lawyers InvolvedThe Lawyers InvolvedFees/Competence/IndependenceFees/Competence/Independence????

How Do Plaintiffs Attorneys Get Cases?

How Are They Paid?

Behind Every Plaintiffs Lawyer is Behind Every Plaintiffs Lawyer is a Doctor Expert - Role of the a Doctor Expert - Role of the Expert WitnessExpert Witness

Expert Testimony is the Practice of Medicine/Nursing

Requires Certification/Experience and Active Practice

Inform the Court Impartial ExpertAct as Advocate ??

In RealityIn RealityHighly CompensatedAdvertiseNo AccountabilityDeference by CourtsLimited Peer Review

Hasn’t Delivered a Baby since Hasn’t Delivered a Baby since Medical School Medical School

Because of this interest, he, Dr. David is recognized around the U.S. as an expert in his field, acting as a Medical Legal Consultant to attorneys from coast to coast, being called upon for his opinions and testimony in courts around the country. His vast medical experience led him to the positions of Medical Director for Natural Health Pharmaceuticals, Comprehensive Medical Director for Guthy-Renker Nutritionals, Medical Advisory Board Member for 1-800 Healthy.com and Medical Director (currently) of the Adirondack Country Club.

Compensation- Fair??Compensation- Fair?? Instructions

M Civ JI 50.01 Measure of Damages—Personal and PropertyM Civ JI 50.02 Element of Damage—Pain and Suffering, Etc.

*(physical pain and suffering) *(mental anguish) *(fright and shock) *(denial of social pleasure and enjoyments) *(embarrassment, humiliation or mortification) e. M Civ JI 50.03 Element of Damage—Disability and Disfigurement

M Civ JI 50.04 Element of Damage—Aggravation of Preexisting Ailment or ConditionM Civ JI 50.05 Element of Damage—Medical ExpensesM Civ JI 50.06 Element of Damage—Loss of Earning Capacity—Past and Future—Adult Plaintiff, Emancipated MinorM Civ JI 50.07 Element of Damage—Loss of Future Earning Capacity—Unemancipated Minor PlaintiffM Civ JI 50.08 Element of Damage—Miscellaneous ExpenseM Civ JI 50.09 Element of Damage—Personal PropertyM Civ JI 50.10 Defendant Takes the Plaintiff as He/She Finds Him/HerM Civ JI 50.11 Inability to Determine Extent of Aggravation of InjuriesM Civ JI 50.21 Personal Injury Action: Definition of Economic Loss and Non-economic Loss Damages; Separation of Future Damages by Year

f. Illinois - Wrongful Birth, Conception, Grief etc….

Significant CostsSignificant CostsAnxietyStressFear95% of physicians react to being

sued by experiencing periods of emotional distress during all or portions of the lengthy process of litigation

Defensive MedicineProfessional Dissatisfaction

Patient Safety??Patient Safety??Disclosure/Transparency/Truth

V.

Hide the Facts- Avoid Malpractice/Don’t Make an Admission

Disclosure of Mistakes Disclosure of Mistakes Motives to Conceal Mistakes. There are many motives to conceal mistakes; personal

psychological resistance to disclosing errors. A professional atmosphere that demands perfection. Not wanting to undercut the public’s expectations of medicine. Fear of medical malpractice litigation. Health care organization worries about licensure and

accreditation. A decentralized and fragmented health care system that permits

errors to go undetected, unreviewed, or unconfronted. Group purchasers of health care make few demands for reduction

of error as against cost reduction measure. Media focus on sensational errors rather than everyday

systematic problems. In short, from a physician’s point of view, disclosing mistakes is

damaging to their own self-image and professional standing. Telling patients that mistakes have been made may undercut their faith in the doctor in question and medicine in general. Mistakes may also affect employment and open the door to civil and criminal legal liability. Institutions have some incentives to work toward a reduction.

What Injured Patients What Injured Patients WantWantTruthExplanationsAccountabilitySystem ReformMoney

AccountabilityAccountabilityDisciplinary Systems

Solutions???Solutions???Tort ReformA serious restriction on patients

rights????Needed to prevent medical errorsor Needed for fairness and equity To reduce costs of medical care To encourage doctors to stay in

high risk states and fields