Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of...
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Transcript of Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of...
![Page 1: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/1.jpg)
Medical Malpractice
Sheldon F. KurtzUniversity of Iowa
Percy Bordwell Professor of Law
Professor of Medicine (Department of Surgery)
![Page 2: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/2.jpg)
The Nature and Extent of Medical Error
How rampant is medical error? 3-jumbo jet crashes a day
Is there too much medical litigation?
Does the data suggest reasons for physicians to be frustrated over malpractice litigation?
![Page 3: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/3.jpg)
The Nature and Extent of Medical Error
How rampant is medical error? 3-jumbo jet crashes a day
Does the data make your nervous about your doctor?Is there too much medical litigation?Does the data suggest reasons for physicians to be frustrated over malpractice litigation?
![Page 4: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/4.jpg)
The Nature and Extent of Medical Error
How rampant is medical error? 3-jumbo jet crashes a day
Does the data make your nervous about your doctor?Is there too much medical litigation?Does the data suggest reasons for physicians to be frustrated over malpractice litigation?
![Page 5: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/5.jpg)
Extent of Suits
28% for diagnostic errors
27% for surgical errors
26% for improper medical treatment
![Page 6: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/6.jpg)
Who Gets Sued Most
Surgeons
Anesthesiologists
Obstetricians
Emergency Medical Docs
![Page 7: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/7.jpg)
Saks Study
A negligent doctor who causes injury has a 3 out of 100 chance of being sued
A non-negligent doctor has a probability of being sued for a non-negligent injury of 13 out of 10,000.
Thus, for every malpractice claim in response to a negligent injury there are 15-30 malpractice victims who bring no suit but there are 4-5 claims brought by non-negligently injured patients.
![Page 8: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/8.jpg)
How the Law Effects Quality of Care
Medical malpractice
Licensure
Certification
![Page 9: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/9.jpg)
Medical Malpractice Defined
Medical malpractice occurs when a physician fails to act as a reasonable physician would have acted under the circumstances
![Page 10: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/10.jpg)
The Liability Formula
Duty (Did a physician-patient relationship exist) +Breach of duty (Did the physician fail to meet the required
standard of care) +Causation (Did the physician’s breach cause the patient’s
injury) +Damages (Did the patient incur medical expenses, pain,
suffering, lost wages as a result of the breach) =LIABILITY
![Page 11: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/11.jpg)
Proof of Malpractice-Experts
Generally, expert witnesses requiredBattle of expertsLocal vs. National standard Locality rule:
Historic Unfair to patients if “conspiracy of silence” Fails to recognition “nationalization” of medicine
National Literature Professional organizations
Local standard (same locality or community of similar nature) still applicable for GPs, residents
![Page 12: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/12.jpg)
Proof of Malpractice-Experts
Generally, expert witnesses requiredBattle of expertsLocal vs. National standard Locality rule:
Historic Unfair to patients if “conspiracy of silence” Fails to recognition “nationalization” of medicine
National Literature Professional organizations
Local standard (same locality or community of similar nature) still applicable for GPs, residents
![Page 13: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/13.jpg)
Proof of Malpractice-Experts
Generally, expert witnesses requiredBattle of expertsLocal vs. National standard Locality rule:
Historic Unfair to patients if “conspiracy of silence” Fails to recognition “nationalization” of medicine
National Literature Professional organizations
Local standard (same locality or community of similar nature) still applicable for GPs, residents
![Page 14: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/14.jpg)
Proof of Malpractice-No Experts
Common knowledge exception
Res ipsa loquitur
![Page 15: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/15.jpg)
Malpractice Defenses
Conformed to the standard of care
Alternative methods of treatment
Clinical innovation
Contributory Fault
Assumption of the risk
Waiver
![Page 16: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/16.jpg)
Malpractice Defenses
Conformed to the standard of care
Alternative methods of treatment
Clinical innovation
Contributory Fault
Assumption of the risk
Waiver
![Page 17: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/17.jpg)
Malpractice Defenses
Conformed to the standard of care
Alternative methods of treatment
Clinical innovation
Contributory Fault
Assumption of the risk
Waiver
![Page 18: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/18.jpg)
Liability for acts of Others
Vicarious liability
Captain of the Ship Doctrine Particularly for surgeons
Borrowed servant doctrine
Referring physicians
Covering docs
Physician assistants
![Page 19: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/19.jpg)
Liability for acts of Others
Vicarious liability
Captain of the Ship Doctrine Particularly for surgeons
Borrowed servant doctrine
Referring physicians
Covering docs
Physician assistants
![Page 20: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/20.jpg)
Liability for acts of Others
Vicarious liability
Captain of the Ship Doctrine Particularly for surgeons
Borrowed servant doctrine
Referring physicians
Covering docs
Physician assistants
![Page 21: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/21.jpg)
Hospital Liability for Acts of Doctors
Employee DoctorsSovereign and Charitable immunityMedical Staff Doctors (non-employees) Ostensible agency
Typically emergency room doctors Implied agency (HMO’s watch out)
Control test Negligence in granting privileges Oversight
Inherent or essential functions doctrine Emergency room; pathology; anesthesia
![Page 22: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/22.jpg)
Statute of Limitations
Date of occurrence
Date of discovery
Continuous treatment doctrine
![Page 23: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/23.jpg)
Statute of Limitations
Date of occurrence
Date of discovery
Continuous treatment doctrine
![Page 24: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/24.jpg)
Information about Malpractice
Boards of Medical Examiners
National Practitioner Data Bank
Operational Oversight
Who reports
Who has access
Who does not have access
![Page 25: Medical Malpractice Sheldon F. Kurtz University of Iowa Percy Bordwell Professor of Law Professor of Medicine (Department of Surgery)](https://reader036.fdocuments.in/reader036/viewer/2022062620/551aa14f55034656628b4640/html5/thumbnails/25.jpg)
Information about Malpractice
Boards of Medical Examiners
National Practitioner Data Bank
Operational Oversight
Who reports
Who has access
Who does not have access