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Perspectives |
1 From the Department of Radiological Sciences, University of California, Irvine Medical Center, Orange. Received December 29, 2003; accepted January 2, 2004. Address correspondence to the author, 18961 Castlegate Ln, Santa Ana, CA 92705 (e-mail: mfriede@uci.edu).
Index terms: Medicolegal problems • Perspectives • Radiology and radiologists, iatrogenic injury • Radiology and radiologists, socioeconomic issues
The whole concept of malpractice is complicated. Medicine is not an exact science. With the decision by the physician to provide a specific therapy, there is always the possibility of success or failure. Failure does not necessarily imply error or negligence. Differentiation between complications ("an accident or adverse reaction that aggravates the original disease") and negligence ("the failure to exercise a reasonable degree of care") is not always simple and may be interpreted differently by the physician and patient or legal advisor (1).
The modern concept of professional malpractice started in England following the publication in 1768 of Sir William Blackstone’s Commentaries on the Laws of England, in which Blackstone linked professional malpractice to physicians. We derive the term malpractice from his term mala praxis, injuries caused by the neglect or unskillful management by physicians, which breaks the trust between patient and physician. His commentaries were widely read in the Americas (2,3).
In the United States prior to 1800, malpractice as we know it today was almost unknown. Adverse outcomes were considered acts of "divine providence." This changed in the mid-1800s when aggressive and flamboyant medical advertising became popular, accompanied by a sharp decline in religious fatalism (2,3). Concurrently, American courts relaxed the standards for initiating civil tort proceedings for cases such as those of malpractice. The American Medical Association, which was established in 1847, attempted to provide national standards for medical education, licensing, and ethics. This established the first standards of practice for the medical profession, and the standards created an aura of legitimacy for the profession and attempted to enlighten the public about the dangers of nonlicensed healers and quack remedies. An unforeseen complication was that the listing of standards of practice provided an opening for a flood of malpractice cases. It is difficult to prove malpractice without established standards of practice. Licensed physicians now became vulnerable, while alternative healers, who had no established standards, could not really be sued for undesirable results (2,3).
Between 1840 and 1860, the number of malpractice cases increased by 950%. Most litigations involved fractures and dislocations with poor outcomes. It is interesting that medical advances frequently lead to an increase in the number of malpractice cases. Prior to 1840, most serious limb injuries were treated by means of amputation. The effort by physicians to save the extremity increased the number of deformities, which increased the number of malpractice cases. The more accomplished and prosperous physicians were the ones who were sued the most; if an individual was without financial resources, a suit was not worthwhile. In the 1850s lawyers were already accepting contingency fees, so that plaintiffs risked nothing by bringing malpractice charges. Liability insurance, which developed near the end of the 19th century and was welcomed by practicing physicians, had the unforeseen effect of making every physician worth suing (2,3).
As medicine advanced, each new technique or procedure added new grounds for litigation. The development of x-ray imaging in the early 20th century added the ability to document unfavorable outcomes. It was a paradox that the provision of new therapies, which saved lives, also increased physicians’ vulnerability to malpractice, particularly during the initial establishment of new concepts.
After the World War II, we entered the era of specialists. Prior to this time, patients had developed a long-term relationship of trust with their family physician. Now the patient was referred to specialists whom they did not know and with whom there was no particular personal relationship of trust. Patients developed the concept that any medical error was avoidable, and malpractice cases markedly increased in the 1960s and 1970s. As the fear of suits increased, physicians began to practice defensive medicine, which led to marked increases in the cost of health care (4).
The legal standard for malpractice requires (a) a physician/patient relationship that establishes the duty of care, (b) an adverse outcome with actual injury or harm, (c) negligence by the provider (often interpreted as failure to provide the standard of care), and (d) direct causality between negligence and outcome (5).
The first malpractice crisis occurred in the early to mid-1970s and was a crisis of insurance availability (6). Physicians were unable to obtain coverage at any price. This led to the formation of physician’s insurance companies and state-sponsored companies. The second crisis occurred in the early to mid-1980s and was a crisis of affordability, with insurers continuing to write policies but charging premiums that many physicians could not afford to pay. The current malpractice crisis appears to be one of both availability and affordability (6). In mid-2001, insurance rates in 36 states increased by more than 25% (7). Even lower-risk specialists such as internists had increases of 17% in 2000, 10% in 2001, and 25% in 2002. Some companies would no longer write medical liability policies and began phasing out coverage as contracts expired (7). Companies claimed that increases in premiums were necessary because of marked increases in the number of lawsuits and the amount of lawsuit awards, as well as the increases in litigation expenses. The median jury award increased by 43% between 1999 and 2000. The proportion of awards over $1 million, which was 34% in 1996, increased to 52% in 2000. More than half of all awards are currently over $1 million, with the average award at $3.5 million (8). Although approximately 70%–80% of all medical malpractice actions resulted in no indemnity payments, claims that are dropped have an average cost of $16,745, claims that are settled before trial have an average cost of $39,891, and claims that go to trial average $85,700 (5). These numbers represent only the legal fees. Because of the fear of large jury awards, only 7%–13% of cases filed went to trial, and of these only 1%–1.5% resulted in a decision for the plaintiff (3,9). Overall, 33% of all lawsuits resulted in monetary compensation (32% settled out of court, and about 1% settled with jury trial). In 1999, the median time between the negligent incident and the receipt of compensation was 45 months, and only one-third of every dollar awarded to the plaintiff was actually received by the injured party, with the remainder going to pay attorneys and court costs (9).
Despite the number of malpractice suits, it has been estimated that only 3% of medically negligent acts result in a lawsuit, meaning that most patients injured due to medical malpractice receive no compensation (5). It is estimated that the amount of money spent on the direct costs of malpractice coverage and the indirect costs of defensive medicine increases the amount the federal government pays for health care by $28–$47 billion a year, enough to fund a prescription drug benefit for Medicare beneficiaries and perhaps help Americans without health coverage to obtain coverage (7).
When one considers that approximately 80% of malpractice claims result in no evidence of negligence and conversely that only about 3% of true injuries results in a claim, it is obvious that the whole system is malfunctioning (5). The reasons usually stated to explain why patients with a negligent injury do not sue include the following: (a) The injury may not affect function substantially; (b) many patients are not litigious in nature; (c) patients do not want to damage relations with their doctors; and (d) patients do not recognize that they have suffered an injury (5).
Howard (10) also makes the point that with our justice system, although similar cases should be decided alike, this does not occur in our courts. As noted previously, many patients who are injured, presumably due to malpractice, get nothing, and many do not even sue. The Harvard Medical Practice Study conducted in New York state showed that only eight malpractice suits were filed by 280 patients who experienced adverse events due to negligence (11). On the other hand, anyone can sue for any reason—often just in an attempt to hit the jackpot—and the final results are random. Although we have the concept of compensatory damages, the law gives very little guidance as to how damage awards are to be calculated. Whereas most legal decisions are usually affected by precedent, there is no precedent for computing compensatory loss (12). Each decision is independent and individualized to fit the particular circumstance. Some physicians have argued that we should do away with the concept of payment for nonpecuniary loss entirely. They argue that people cannot buy insurance for pain and suffering; therefore, why should injury victims be compensated in court (12)? Concepts such as pain and suffering and loss of enjoyment of life cannot be quantified, and there is no statistical basis for what such payments should be.
Before 1960, only one in seven physicians was sued throughout his or her entire career. Today it is estimated that one in seven physicians is sued every year (11). In a recent survey, 42% of physicians reported that fear of a lawsuit has altered their behavior and because of this they have ordered extra tests or procedures and document each encounter with the patient, always with the possibility of being sued in mind (11). The decision by the patient to file a malpractice suit frequently is dictated by insensitive handling by and poor communication from the physician. Many patients who file malpractice claims state that their physicians would not listen them, would not talk openly, attempted to mislead them, and did not warn them about long-term medical problems. The patient then sues because he or she believes that he or she was not informed, was deserted, and was neglected.
Sage (13) states that more than one-fourth of adults have experienced a medical error within the past 2 years. Trial lawyers point to these statistics as evidence that physicians require stricter oversight and better recording of incidents that could represent malpractice. Although in theory our malpractice system performs a regulatory role regarding physician behavior, in practice it has failed to send clear signals for quality improvement. Liability and quality unfortunately do not equate.
Our medical system will never be perfect. Failure will always occur, but it certainly is not always the doctor’s fault. The Institute of Medicine (IOM) report published in 2000 on the quality of care, entitled To Err is Human: Building a Safer Health System, stated that error caused between 44,000 and 98,000 deaths every year in American hospitals (14). Brennan states that the use of the word "error" creates an impression that is not warranted by the scientific work underlying this report (14). The IOM report used two studies of injuries caused by medical care: a 1984 study of New York hospitals and a 1992 study of Colorado and Utah hospitals. Physicians reviewed hospital medical records for evidence of adverse events caused by medical care, not by the disease process. The events were classified as preventable or not preventable, although preventability is difficult to determine, and not all preventable errors are blunders. As an example, some preventable errors are related to cost control, such as a patient dying of a drug allergy that was unknown to the patient and for which the patient was not tested. However, the cost of testing for drug allergy in all patients would be exorbitant and not allowable under current rules. Similarly a postoperative hemorrhage necessitating a return to the operating room can occur with even the best surgical technique, but such events were classified as preventable errors (14). The rate of injury due to medical care was 3%–7% in the New York study performed in 1984 and 2.9% in the Colorado and Utah study performed in 1992, which suggests that safety has improved (owing to improvement in techniques), not deteriorated.
Currently, juries can generally award three types of damages: (a) compensatory damages, which represent an injured plaintiff’s economic losses, including the cost of health care and lost wages; (b) compensatory damages for noneconomic losses, including pain, suffering, and other emotional losses associated with injury; and (c) punitive damages in cases in which the defendant has acted in a willful fashion or has demonstrated wanton disregard for the plaintiff’s well-being (15). In a study of nonmalpractice civil jury verdicts, Moller et al (16) found that awards of punitive damages occurred in 24% of all verdicts against insurers. In contrast, punitive damages have been relatively rare in medical malpractice litigation, having been awarded in fewer than 1.5% of verdicts in malpractice cases. Juries appear hesitant about awarding punitive damages in medical practice, perceiving that physicians are human beings who commit regrettable but not repeated errors of oversight (9).
The purpose of a malpractice system is to compensate for negligent injury and to deter future negligent injury. Our current system has largely failed on both accounts; it has neither deterred negligence nor provided fair compensation to injured patients. In addition, our system has encouraged expensive and often unnecessary defensive medicine, as well as weakened the physician/patient relationship.
Schmidt (17) reasons that we should just determine the nature of the injury and its likely consequences and provide a reasonable amount of compensation, whether it be for malpractice or bad luck. He believes we should replace our current system with an objective panel of experts that would restore physicians to their traditional roles as patient advocates and not judicial adversaries. This would represent a no-fault system financed from general taxes. Overall, Schmidt says that the health care system would save considerable money, and patients would probably not suffer in terms of payments since there would be no court costs and they would not have to pay the 30% contingency fee to lawyers. This is not an unreasonable concept, but it would be rather difficult to convince Congress or lawyers to accept such a plan.
The American College of Physicians believes that Congress must act to stabilize the market to avoid further damage to the health care system. They have made several recommendations (7), including (a) a $250,000 cap on all noneconomic compensatory damages for pain and suffering; (b) a sliding scale for attorneys’ fees; (c) a limitation on punitive damages of $250,000 or twice the compensatory damages, whichever is greater; (d) elimination of the collateral rule that prohibits jurors from knowing about payments the plaintiffs have already received from other sources; and (e) allowance for defendants to make periodic payments on damages of more than $50,000 instead of a single lump-sum payment. Caps on damages, when established in many states, were struck down because they were judged to infringe on an injured person’s right to a trial by jury. The overall result, then, is a patchwork of laws throughout the country that makes it difficult for insurance companies to gauge rates (7). A federal mandate is necessary to bring stability into this market.
In 2002, President Bush proposed the Health Efficient, Accessible, Low-cost, Timely Health Care Act, or HEALTH Act, which as a primary component proposed a cap on noneconomic damages for emotional or personal claims such as those for pain and suffering (9). This package also included shortening of the time during which a lawsuit can be filed after a negligent act, abolition of the collateral-source rule (allowing defendants to find out whether a portion of the plaintiff’s damages were reimbursed by other sources), and allowance of periodic payment of damages rather than payment in a single sum.
In California, the Medical Injury Compensation Reform Act (MICRA) adopted in 1975 contains most of the elements of the President Bush’s proposal (9). MICRA was supported by the California Supreme Court and remains in effect. The rate of increase in cost of insurance between 1976 and 2000 in California was 167%, while in the rest of the country the rate was 505%. In addition, claims in California are settled in one-third less time than the national average. This suggests that even moderate tort reform can produce substantial cost savings.
Unfortunately, these approaches, although helpful, are not the solution to the problem. These reforms try to limit only certain damages. Ours is a society where every patient has the right to sue, and a person can take any claim, even a spurious one, to a jury. Howard (10) states that we live in an era of cost containment, which theoretically requires deliberate judgments of how much care we get for what kind of illness. It becomes impossible to make these judgments when the legal system allows anyone to sue for almost anything. Do we want doctors to give aspirin for a headache, or should they consume resources in computed tomographic scans? Howard believes that the task of justice in a free and functioning society is to reliably balance the predicament of the individual with the interests of the common good. If a child falls off a see-saw and sues, the use of the see-saw may be limited. Whose rights do we recognize? The child who wants to sue or those of the millions of children who want to use the see-saw? Allowing these suits means that see-saws disappear. This conflict does not just affect health care. Similar flaws are noted in the educational system, where it is hard to find a teacher who has not been threatened with legal action (10). In some big-city schools, it is impossible to maintain order in the classroom. Teachers cannot comfort small children because touching might result in the claim of unwanted sexual contact. This results in a standard operating procedure in schools to avoid anything that might lead to legal action, which of course has a disastrous effect on the educational system. Also, one could be sued for serving a hot cup of coffee if one has not printed on the cup, "Caution, contents are hot" (10).
An article in December 2003 in Newsweek (18) noted that
Americans sue doctors over misfortunes that no doctor could prevent... they sue school officials for disciplining their children for cheating... local governments when they fall on the sidewalk, get struck by lightening on city golf courses or even when attacked by a goose in a city park (award $10,000). Clients and lawyers sue because they hope they will get lucky and win a jackpot from sympathetic juries... sue for impossible to measure pain and suffering.
The Newsweek article noted that four states currently limit nonpecuniary awards to $250,000 or less and that seven other states limit such awards to less than $500,000. Even when malpractice allegations are unfounded (80% of cases), insurance companies will pay to settle just to avoid a possible large court judgment. Hospitals are afraid to discharge incompetent physicians for fear of wrongful dismissal lawsuits.
There is a growing consensus that we need to change the current system, which is inadequate both as a deterrent to substandard practice and as a fair method for patient compensation. Discussion has focused on many areas such as special medical courts, arbitration, mediation, no-fault administrative mechanisms, and others (19,20). The concept of a medical court is that the cause and extent of the injury will be judged by people with expertise in the field, presumably expert judges rather than juries. Medical courts would be like traffic court and family court and would be presided over by judges who either have some background in specific areas or who would develop expertise simply by handling these cases on an exclusive basis. Medical courts would prevent those jury decisions that are clouded by emotion and lack of knowledge. A bill designed to create a pilot project for medical courts in selected states was introduced in July 2003 by Senator Michael Enzi (Republican, Wyo) (20). This measure, named the Reliable Medical Justice Act, would authorize funding in selected states to create health care courts, the judges of which would make binding rulings on causation, compensation, standards of care, and related issues in medical malpractice. Senator Enzi states that studies have shown that $0.60 of every dollar paid in malpractice claims goes to legal fees, court costs, or other related administrative expenses. The concept is that medical court would be a more effective way of producing marked change than would attempting to impose a $250,000 limit on noneconomic damages in medical malpractice suits. Obviously, the Association of Trial Lawyers opposes specialized courts, arguing that citizen juries are the only equitable way to resolve disputes.
Medical groups, including the American Medical Association, have suggested an administrative option with a form of no-fault insurance. Claims would be analyzed by specially appointed boards that would grant compensation for economic losses on a set schedule. Florida and Virginia have created a limited system of this type for birth-related neurologic injuries (17,20).
Still other suggestions have included a system more like a workers’ compensation system, where, if you have a bad outcome, there is a payment schedule (17). Many other proposals have suggested limitations on lawyers’ contingency fees, periodic installments for payment of damages, and abolition of the legal concept of joint and several liability (which allows plaintiffs to collect a disproportionate share from well-heeled defendants who have only a minimal role in the case) (5,7,10). In Colorado, an early-offer system has been used that provides victims with an immediate reward as a way of avoiding a long and costly trial (13). The decision is made by expert screening panels of lawyers and doctors.
Mediation and arbitration have been suggested by many experts (17,19,20). This speeds up the resolution and is far less expensive, and the arbiter is typically more knowledgeable about medical issues than is a jury; however, resolution often results in lower award payments. The arbitration is usually handled by a retired judge or lawyer, and this also has been supported by the American Medical Association. Arbitration would discourage frivolous lawsuits and substantially reduce costs, with awards going primarily to the injured patient. With arbitration, although the total amount awarded may be less than that awarded by a jury, by omitting the 30% lawyer contingency fee and by sharply reducing court costs the patient may receive the same amount he or she would have received in court. In addition, under our current system there is a median wait of more than 2 years between the time of the incident and the time the claim is filed, followed by litigation during an average of another 2 years, for a total of 4 years (5). With arbitration the entire process can be settled within a year. We might consider a system similar to that used in Sweden, where all avoidable adverse events are compensated. The adverse event must be caused by a medical error but not necessarily a negligent error (19). This is more like a no-fault system, which saves time and money. Kaiser Permanente in California requires patients to agree to mandatory arbitration, and they believe they can compensate many more injuries at a reasonable cost (19).
Despite the wide range of suggestions, the medical and political establishment has been pushing as the top priority some form of limits on noneconomic damages in malpractice lawsuits, the usual number mentioned being $250,000. The previously mentioned bill supported by President Bush was approved in the House of Representative but rejected in the Senate in July 2003. Senate majority leader Bill Frist has vowed to bring the measure up for another vote later this fall. Most knowledgeable legal individuals believe that some form of a cap on damages is probably equitable and inevitable and will eventually be accepted by the general public and the Association of Trial Lawyers (20). This will help to reduce costs, but I do not believe it is the final solution.
The current system is too expensive as social policy and a is failure as a deterrent and compensatory mechanism. I believe we must provide financial aid to all individuals who have been medically injured, whether by negligence or due to unforeseen complications. (The system should combine no-fault and arbitration.) Decisions must be made promptly and cover all medical costs and a limited amount for noneconomic damages in negligence cases. Estimates of the savings in health costs (reduction in defensive medicine and legal and court costs) vary from $30 billion to $70 billion annually (5,9,10). This may be enough to provide health care for many of the 40 million uninsured. I believe this is the appropriate approach, but what is appropriate does not necessarily equate with what will occur. The legal lobby and our lawyer representatives in Congress will be difficult obstacles to overcome.
REFERENCES
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  K. N. Feigin, D. M. Keating, P. M. Telford, and M. A. Cohen Clinical Breast Examination in a Comprehensive Breast Cancer Screening Program: Contribution and Cost Radiology, September 1, 2006; 240(3): 650 - 655. [Abstract] [Full Text] [PDF]
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 L. Berlin Errors of Omission Am. J. Roentgenol., December 1, 2005; 185(6): 1416 - 1421. [Full Text] [PDF]
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