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Law Primer

A Primer of Malpractice Law

To avoid medical malpractice, it is important to understand what malpractice is.  The following primer gives the law of medical malpractice in a nutshell.

Donald J. Palmisano, M.D., J.D., in addition to his medical and legal background, has had extensive experience in the medical malpractice arena including the review of over 3000 claims as a founding member of a physician's captive insurance company where he served on it's board and as Secretary and Vice President of Claims from 1982 until September 1989.  Presently, he is the principal of DONALD J PALMISANO CONSULTING and maintains the trademark, Intrepid Resources. He is an author and frequent keynote speaker on leadership, patient safety, health system reform, and medical liability reform. Contact information: 5000 West Esplanade Ave., #432, Metairie, LA, 70006 (504/455-5895).

Remember, the primer below attempts to explain the terminology of the law. Dr. Palmisano advocates that all physicians practice ethical science-based Medicine and always do what is in the patient's best interest. (See his May 2002 Commencement Address to LSU HSC graduates.)

To avoid medical malpractice, it is important to understand what malpractice is.


The following primer gives the law of medical malpractice in a nutshell.


Overview Of Law

A PRIMER

EVERYTHING YOU NEED TO KNOW, BUT DIDN'T KNOW WHO TO ASK

A. MALPRACTICE

1. Definition

ABCD rule

A: Accept
If someone is not your patient, that individual cannot sue you and win for negligent medical care. Physicians, in most circumstances, still have a right to decide whether or not an individual will be accepted as a patient. There are exceptions, such as the emergency room physician who has contracted to treat all individuals presenting to that emergency room department.

B: Breach
A breach or violation of the standard of care is a necessary element to constitute malpractice. See discussion of standard of care below.

C: Cause
The breach of the standard of care must directly cause injury to the patient. The law calls this "proximate cause".

D: Damage
There must be injury to the patient that can be proven and this injury must have directly resulted from substandard care given to the patient.

One sentence definition: Malpractice is a violated duty causing harm.

One word definition: Unreasonableness

This is my one word definition of malpractice if you are asked to distill malpractice to its essence.

2. Standard of care
Definition: To do what a reasonable physician would do with the same or similar patient under the same or similar circumstances.

Need for an expert: To determine the standard of care; to determine if the duty was breached in the B part of the ABCD rule. A physician is required to give reasonable care. The expert determines if the treating physician met the standard or failed to meet it.

Exceptions to the need for an expert to determine standard of care

a. Res ipsa loquitur: "The thing speaks for itself"

Criteria
- When it is common knowledge among laymen that the accident is the sort that does not ordinarily occur in the absence of negligence
- The injury producing instrumentality or conduct must have been at some significant time within the control of the defendant
- It must not be an injury that the plaintiff (patient) voluntarily assumed
- Sometimes there is a fourth element: that the evidence is more accessible to the defendant rather than to the plaintiff
Examples
- Sponge or instrument left in the patient after operation
- Operating on the wrong patient or removing the wrong organ or limb
- Putting biopsies from multiple sites in both breasts in same container and one biopsy is cancer

Herb Mang, JD, test for res ipsa loquitur
Also known as the "Oh, my God!" test. Suppose someone tells you of an incident and asks you whether it would be considered res ipsa loquitur. If your response after hearing the tale is "Oh, my God!”, then it has a high probability of satisfying the criteria for res ipsa loquitur!

b. Common knowledge

c. Admission: Admit that textbook or JCAHO recommendations are authoritative and set the standard of care.

d. Breach of contract: The model of harmonious perfection case

A plastic surgeon did cosmetic surgery on a woman's face with the promise that he would make her "a model of harmonious perfection". She sued him and the jury, after looking at her, awarded damages, not for negligent care, but for breach of contract!

Be careful what you promise. Watch out for promotional brochures, billboards, or other advertisement that may make you liable for promises. Remember that legal liability can be imposed without a written contract under the legal theory of detrimental reliance.

Know the importance of special medical malpractice laws in the state in which you practice. Examples of states with medical malpractice laws favorable to the practice of medicine and care of patients: California, Indiana, Texas, and Louisiana.

For more information, read an article I co-authored discussing the states with a favorable limitation of liability law, This article also documents which states have had their laws ruled constitutional by the courts and gives tips on the constitutional issues. See The Bulletin Of The American College Of Surgeons, Volume 78, Number 4, Pages 27-30, April 1993.


More details about three of the states with a favorable law:

CALIFORNIA
MICRA (Medical Injury Compensation Reform Act)

California in 1975 enacted:
-$250,000 cap on non-economic damages
-Modifications to the collateral source rule * Mandatory periodic payments of future damages
-Sliding scale for plaintiff attorneys' contingency fees
-California Supreme Court ruled this law constitutional.

LOUISIANA
LOUISIANA'S MEDICAL MALPRACTICE ACT: ACT 817 OF 1975
Not automatic; you need to enroll

Advantages of the Act

-Limitation of liability $100,000 for Health Care Provider
-Limitation of Recovery to $500,000 plus future medical expenses as incurred
-Medical Review Panel prior to suit
-Proscription of the Ad Damnum Clause
Prevents stating how much money the plaintiff is suing for; eliminates some of the sensationalism

The Louisiana Medical Malpractice Act was ruled constitutional by Louisiana Supreme Court. Periodically it is up for challenge.

Prescription in Louisiana (Statute of limitations)
Can file suit up to one year from discovery of the alleged malpractice, but no more that three years from the event. This applies to infants also.

TEXAS
One could argue that this is now the best medical liability reform act currently in America. The reason for that statement is not just the cap on non-economic damages:

“non-economic damages are limited to a total of $250,000 from all doctors and other individuals. Non-economic damages are limited to $250,000 fromeach hospital or other institution and a total of $500,000  from all institutions. See Tex. Civ. Prac. & Rem. Code. § 74.001(a)(2) (Westlaw 2007).

The real quantum leap was the very important change in the Texas constitution that was made by the voters on September 13, 2003 with the passage of Proposition 12. This constitutional change states that the legislature has the right to set caps on non-economic damages in medical liability cases. See Tex. Const. art. III, § 66.

When caps on damages are overturned in a state, it is because of wording in the state constitution. The Federal constitution doesn’t prohibit caps. Thus, by changing the constitution in Texas it eliminates the long wait in constitutional challenges and eliminates the anxiety of insurers that they will set rates too low because ten years later the cap is overturned and they have not collected enough money to pay the claims. Proof of the advantage of such an approach is the great influx of physicians and  medical liability insurance carriers and the dramatic reduction of medical liability premiums in Texas. Some carriers reduced rates immediately and  at the end of the first year after passage of Proposition 12 the rate reduction was 17-18% by various carriers.

See the Texas Medical Association press release at:
http://www.texmed.org/Template.aspx?id=2819

© 1990, 1992, 1993, 1995, 2008 Donald J. Palmisano, M.D., J.D.

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5000 West Esplanade Ave. #432
Metairie, LA. 70006
504.455.5895 Phone --> Fax -->
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