A Measure of Malpractice tells the story and presents the results of the Harvard Medical Practice Study, the largest and most comprehensive investigation ever undertaken of the performance of the medical malpractice system. The Harvard study was commissioned by the government of New York in 1986, in the midst of a malpractice crisis that had driven insurance premiums for surgeons and obstetricians in New York City to nearly $200,000 a year.
The Harvard-based team of doctors, lawyers, economists, and statisticians set out to investigate what was actually happening to patients in hospitals and to doctors in courtrooms, launching a far more informed debate about the future of medical liability in the 1990s. Careful analysis of the medical records of 30,000 patients hospitalized in 1984 showed that approximately one in twenty-five patients suffered a disabling medical injury, one quarter of these as a result of the negligence of a doctor or other provider. After assembling all the malpractice claims filed in New York State since 1975, the authors found that just one in eight patients who had been victims of negligence actually filed a malpractice claim, and more than two-thirds of these claims were filed by the wrong patients.
The study team then interviewed injured patients in the sample to discover the actual financial loss they had experienced: the key finding was that for roughly the same dollar amount now being spent on a tort system that compensates only a handful of victims, it would be possible to fund comprehensive disability insurance for all patients significantly disabled by a medical accident. The authors, who came to the project from very different perspectives about the present malpractice system, are now in agreement about the value of a new model of medical liability. Rather than merely tinker with the current system which fixes primary legal responsibility on individual doctors who can be proved medically negligent, legislatures should encourage health care organizations to take responsibility for the financial losses of all patients injured in their care.
From practical to philosophical considerations, this succinct, clear presentation of medical malpractice issues is a valuable resource for the classroom and the reference shelf. Frank M. McClellan illustrates the multitude of considerations that impact the merit of each case, never losing sight of the importance of preserving human dignity in malpractice lawsuits.
Early chapters urge the evaluation of legal, medical, and ethical standards, especially the Standard of Care. Part II focuses on assessing and proving compensatory and punitive damages, Part III sets out guidelines for intelligence gathering, medical research, choosing expert witnesses, and preparing for trial.
Students of law, medicine, and public health, as well as lawyers and health care professionals, will find in Medical Malpractice a valuable text or reference book. "Problems" in twelve of the thirteen chapters illustrate the range of issues that can arise in malpractice suits. An appendix lists leading cases that have shaped medical malpractice law.
Medical malpractice has been at the center of recurring tort crises for the last quarter-century. In 1960, expenditures on medical liability insurance in the United States amounted to about $60 million. In 1988, the figure topped $7 billion. Physicians have responded not simply with expensive methods of "defensive medicine" but also with successful pressure upon state legislatures to cut back on the tort rights of seriously injured patients. Various reforms have been proposed to deal with the successive crises, but so far none have proved to be effective and fair.
In this landmark book, Paul Weiler argues for a two-part approach to the medical malpractice crisis. First, he proposes a thorough revision of the current tort liability regime, which would concentrate available resources on meeting actual financial losses of seriously injured victims. It would also shift the focus of tort liability from the individual doctor to the hospital or other health care organization. This would elicit more effective quality assurance programs from the institutions that are in the best position to reduce our current unacceptable rate of physician-induced injuries.
But in states such as New York, Florida, and Illinois, where the current situation seems to have gone beyond the help of even drastic tort reform, the preferred solution is a no-fault system. Weiler shows how such a system would provide more equitable compensation, more effective prevention, and more economical administration than any practical alternative.
How often are patients seriously injured through faulty medical care? And what proportion of these people receive compensation for their injuries and suffering? This is the first book that tries to answer these questions in a careful, scholarly way. Among its important findings is that at most one in ten patients injured through medical negligence receives compensation through the malpractice system.
The focus of public attention has been on the rising cost to physicians of malpractice insurance. Although Patricia Danzon analyzes this question thoroughly, her view is much broader, encompassing the malpractice system itself--the legal process, the liability insurance markets, and the feedback to health care. As an economist, she is concerned with the efficiency or cost-effectiveness of the system from the point of view of its three social purposes: deterrence of medical negligence, compensation of injured patients, and the spreading of risk. To provide evidence of the operation of the system in practice, to distinguish fact from allegation, and to evaluate proposals for reform, she has undertaken a detailed empirical analysis of malpractice claims and insurance markets. It is a major contribution to our understanding of how the system works in practice and how it might be improved.
"Could I be sued?" The exploding number of malpractice lawsuits in recent years has brought this question to the mind of every clinician---the conscientious as well as the negligent.
A unique and practical guide to clinical risk management, this book combines the expertise of mental health professionals, judges, attorneys, and insurance industry experts, to help the clinician provide effective treatment while reducing the risk of legal liability. Wide-ranging, clinically based, and up to date, it will be a welcome guide for medical and surgical practitioners as well.
The first section gives clinicians a working knowledge of legal regulation in psychiatry and medicine, covering informed consent, documentation of patient care, and potential conflicts of interest. The second section identifies high-risk areas for lawsuits, including managing suicidal and violent patients, boundary violations, supervision issues, prescription of medications, liability in managed care settings, and treatment termination. The book concludes with a primer on clinical testimony in the courtroom.
The broad range of distinguished contributors to this volume will provide a survival guide to clinicians in the increasingly complex and rapidly changing world of health care.
• Two weeks after Johnny Moore was discharged from a psychiatric hospital, the deeply troubled teenager took a lethal overdose of the antidepressant prescribed by his psychiatrist.
• Dennis Gould suffered from paranoid schizophrenia. He let a streetcar cut off his right arm rather than carry out his divine mission to kill his ex-girlfriend, Shelley Rotman; three years later––while under psychiatric care and after several hospitalizations––Gould stabbed the young woman to death with his left arm.
• After seven months of psychotherapy as his only treatment in a private psychiatric hospital, Raphael Osheroff’s symptoms of the agitated depression that had destroyed his medical practice and personal life were more severe than ever. At a second hospital, Osheroff was given the antidepressant drugs he had been asking for––and he rapidly improved.
• Joan Barkley went to Dr. Jonathan Fox for help in overcoming her addiction to Darvon. After a year of therapy, the twice-weekly sessions turned into intense sexual encounters, which continued for two years.
James Kelley tells the true stories of people who sought help from psychiatrists and ended up suing them for malpractice. These tales are compelling, tragic, and sometimes bizarre. They offer a unique view into a relationship that is normally confidential and caring––but can be catastrophic when it goes wrong. Kelley discusses several cases that received national attention: former Reagan administration press secretary James Brady's suit against the psychiatrist who had been treating John Hinckley; the Tarasoff decision that established the psychiatrist’s duty to warn potential victims of a patient’s threats; and the disciplinary proceedings against Dr. Margaret Bean-Bayog for her unusual “mothering” treatment of Paul Lozano.
Kelley accompanies detailed accounts of courtroom clashes––based on court records––with clear, even-handed treatments of four kinds of psychiatric malpractice cases: a patient’s suicide, a patient’s violence against other people, a psychotherapist's sexual misconduct, and the use of unconventional treatments. With a wealth of examples, he explains the role of psychiatrists as expert witnesses against each other, the difficulties of predicting the outcomes of these suits, and the balances psychiatrists and judges have to strike between the duties owed to patients, on the one hand, and to society on the other.
Whether you identify with the patients or the psychiatrists, you will find these tales unforgettable. Kelley writes in nontechnical language for the general reader, stressing the human elements. His lucid analyses of key, current issues make his book essential reading for professionals in mental health or law––and for anyone contemplating a malpractice suit.
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