A Surgeon's Guide to Law and Tort Reform

1. Medical Malpractice 101:
A Surgeon’s Guide
to Law & Tort Reform
Devon M. Fagel, JD
Surgery Clerkship, YSM III
November 6, 2009

2. Overview
• The “Crisis”: Nature and extent of medical error/negligence
• Negligence Case: Medical malpractice liability formula
• Burden of Proof: Expert testimony/standard of care
• Vicarious Liability: Liability for the acts of others
• Defenses: Including statute of limitations
• MICRA: The gold standard of tort reform
• Reform Proposals: Balancing doctor vs patient interests
• Conclusion: Protecting yourself with knowledge & advocacy

3. The Medical Malpractice “Crisis”
• Extent of Medical Error: (Harvard Study)
• 4% of patients suffered medical error resulting in
prolonged stay or disability. 14% of those injuries
resulted in death. Equivalent to 3 plane crashes per
day.
• Extent of Malpractice Litigation: (Saks Study)
• 3% of negligent injuries result in litigation vs
1.3% of non-negligent acts. For every suit in
response to negligence, 30 victims do not
bring suit, while 5 non-negligently injured
patients do.
• Nature of Lawsuits:
• 28% diagnostic errors, 27% surgical errors, 26
% improper medical treatment. Surgeons,
anesthesiologists, EM doctors, obstetricians.
US GAO, “Implications of Rising Premiums on Access to Health Care” (2003)
US HHS, “Confronting the New Health Care Crisis” (2002)

4. The Negligence Case
• Medical Malpractice Theory:
• Medical board licensure and certification regulates physician conduct. The civil court
system provides another check on physician behavior to not only compensate injured
victims but protect future patients.
• Medical Malpractice Defined:
• Failure to exercise the level of skill, diligence and judgement that a reasonable
physician would have exercised under the same or similar circumstances
• The Liability Formula:
• Duty (did a physician-patient relationship exist)
• Breach (did the physician fail to meet standard of care)
• Causation (did the physician’s breach cause the patient’s injury)
• Damages (did the patient incur actual damages as a result of the breach)

5. The Burden of Proof
• Burden of Proof:
• The plaintiff has the burden to demonstrate by a “preponderance of the
evidence” the elements of negligence. The defendant may also provide
affirmative defenses.
• Proof of Malpractice: (Expert Testimony)
• Elements must be demonstrated through expert testimony (particularly breach)
• Local vs National Standard: Historically standard of care defined by experts from
the community resulting in the “conspiracy of silence.” Still applicable for general
practitioners and residents and resource limited communities. Specialties subject to
national standard given wide availability of journals and nationally accepted EBM.
• Assumption of Duty & Breach:
• Burden may shift to defendant to prove that there was no duty/breach.
• Res Ipsa Loquitor (“speaks for itself”): injury cannot occur absent negligence caused
by agent or instrumentality within the exclusive control of defendant.

6. Vicarious Liability
• Captain of the ship doctrine:
• Surgeon liable for the negligent acts of others under their control.
• Respondeat superior: (“let the master answer”)
• Hospital responsible for all employees and may be responsible for non-
employees (negligence in granting privileges) acting within the scope
of their employment.
• Immunity from third party liability:
• Not liable for the negligent acts of referring/covering physicians.

7. Affirmative Defenses
• Statute of Limitations:
• Bars suits not brought in a timely manner and protects against the perpetual threat of
litigation. Jurisdictions differ on when statute begins to run either from the date of
occurrence or the date of discovery. Exception - continuous treatment doctrine.
• Alternative methods of treatment:
• Also called the two schools of thought doctrine or the respectable minority rule,
physician’s actions appropriate if chose between two acceptable courses of recognized
treatment.
• Clinical innovation/experimental treatment:
• Disfavored but defense may succeed if conventional therapies have been tried and failed
or if patient terminally ill and has nothing to loose from experimental therapy.
• Contributory negligence:
• Defense accepts negligence but argues that patients actions contributed to injury.
• Assumption of risk/Waiver:
• Generally unenforceable in medical malpractice cases. Exception - arbitration.

8. MICRA (1975)
Medical Injury Compensation Reform Act (1975)
• Cap on non-economic damages (250K)
• Pain and suffering currently worth 70K
• Discriminates against low income victims
• Damage awards in period payments
• Purchase annuities to limit up front costs
• Difficult to amend if needs change
• Payments cease when victim dies
• Three year statute of limitations
• Sliding scale attorney fees
• Prevents winfall profits with big awards
Foundation for Taxpayer and Consumer Rights

9. Reform Proposals
• Apology Shield:
• Statement of apology, remorse or sympathy inadmissible as evidence of admission.
• Expert Screening Panels:
• Prevent filing of “frivolous lawsuits” to avoid unwarranted litigation expenses.
• Special Medical Malpractice Courts:
• Medically-trained judges would evaluate and render decisions (i.e. tax courts).
• Malpractice Compensation System:
• RAND study showed that costs paid would far exceed those in current system.