Discuss the four components of negligence in a medical liability lawsuit and how to best mount a defense in each of these contexts.
Recount the best practices described in risk management to reduce the chance of being sued.
Know how to confidently prepare for depositions and trial.
Professional medical negligence lawsuits can be one of the most devastating crises in a physician’s career, which can destroy even the most talented clinicians. The very nature of what we do lends itself to catastrophic outcomes, and events far beyond our control can become the source of others’ blame. It is incumbent on all physicians to understand the medical negligence arena, and how they can protect their ability to continue to care for their patients.
Medical professional liability (also coarsely known as medical malpractice) continues to be a significant issue in the delivery of health care in the United States. Significant resources are expended annually in the form of defensive medicine, defense of frivolous suits, and expensive medical liability insurance premiums. According to a study in the New England Journal of Medicine, orthopedic surgeons were the fourth most likely specialty to be sued for medical negligence. The study estimated that 88% of orthopedic surgeons will have been sued by the time they are 45 years old, and it further predicted that 99% of orthopedic surgeons would be sued by their sixty-fifth birthday.1 Anecdotal experience of professional liability defense attorneys suggests that an orthopedic surgeon can expect to be named in a lawsuit roughly once a decade.
The issue at hand is that patients who are injured through negligence by their physicians do have the moral and legal right to seek restitution. The main concern is that the current system fails to effectuate true restitution for these patients, and both injured patients and physicians are abused by the process in the interim. Dr. Weinstein (the past-President of the American Academy of Orthopaedic Surgeons) stated that injured patients only receive 28% of the money that is paid into the medical liability system.2 A RAND study3 estimated that 60% of the resources involved in these cases go to administrative expenses, and most of that to legal fees! In addition, depending upon the state where the physician practices, there may be varying degrees of control over the merit of the lawsuits brought. In certain jurisdictions, there is little disincentive to a plaintiff’s attorney “rolling the dice” on a questionable case in the hopes of achieving a headline-grabbing result.
HISTORY OF MEDICAL LIABILITY
Medical liability is an issue that has plagued physicians for centuries. The law in the United States was actually derived from the system used in England. This system of “common law” is much different from the “civil law” system that was used in the Roman structure. In the common law system, judges made ...