| Malpractice Focus: The Evolution of Medical Malpractice Litigation |
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 A hot topic in Congress this year concerns a patients' bill of rights.
While it may well be that tort reform will be included in a new law,
expanding the patient's right to sue a managed-care organization would
accomplish a sea change in malpractice law.But the brief history of medical malpractice litigation has seen several sea changes; this would be but one more turning point. So how did we get where we are today? What does the future hold? The story is only 40 or so years old. While there was a flurry of malpractice litigation in the mid-19th century, once medicine became established as a well-organized profession, malpractice claims were rare. The reason was simple: Medical negligence is a scientific subject, and it must be established by an expert witness testifying for the patient-plaintiff. Phrases like "conspiracy of silence" were used by adversaries, but the fact remained that medical expert witnesses were rarely available to the plaintiff's attorney. Thus, the early development of malpractice litigation was dependent upon the availability of expert witnesses for the plaintiff. How did this come about? It was California that led the way. Res ipsa loquitur ("the thing speaks for itself") was a conscious effort by the California Supreme Court to create a risk of liability for physicians in a very small number of cases, where the mere occurrence of a limited number of adverse outcomes (for example, a hot water bottle burn on the leg after a hysterectomy or a dense paraplegia after a spinal anesthetic) was held to speak for negligent causation. These Supreme Court decisions caused tremors in the medical community, disproportionate to the actual significance of the cases, and in 1955 there was a minor earthquake when the California Supreme Court ruled that the rarity of an adverse event was enough to invoke res ipsa loquitur, thus raising an inference of negligence. This theme was repeated in a case in 1959, and there was a response, which in retrospect was critical, on the part of the Los Angeles County Medical Association. That organization decided to provide a panel of well-qualified experts available to plaintiffs' attorneys to testify "without fear or favor" in justifiable cases. As it turned out, there were only a handful of cases that actually were accepted by the panel, but this seems to have been enough to break the ice. Between 1960 and 1965 there were more than a handful of cases where reputable physicians (generally drawn from the academic community) testified for the plaintiff in malpractice cases. In fact, most of them were not connected to the panel, but the central fact remained: The L.A. County Medical Association had said it was ethical to testify for a plaintiff's attorney in a valid malpractice case, and so the door was opened. Change was slow, but by 1970 the best plaintiff personal-injury firms that did some malpractice (there were no more than five or six in the state at that time) managed to find expert witnesses for their cases. Needless to say, these firms were highly selective and cases were pretty well limited to errors of commission, or judgmental errors (mainly diagnostic) that were especially egregious. From this point on, change throughout the country occurred quite rapidly. By the mid-1970s malpractice litigation was fairly common in most metropolitan centers in the United States. Along the way, in 1972, three high court decisions in the U.S. signaled a dramatic change in judicial/medical-profession relationships. This concerned the rule of informed consent Disclosure of risks to a patient about to undergo a particular treatment had always been required in theory. But in fact it was an unenforceable rule, because a failure of informed consent, like any other medical negligence issue, had to be proven by expert testimony. A doctor had to get on the witness stand and say that the defendant did not give the patient enough information about risks. Even experts willing to testify on general negligence issues were unwilling to take up the cudgel for the plaintiff in a case involving informed consent. The 1972 response of the high courts in Washington, D.C., Rhode Island and California was to establish a judicial standard for informed consent disclosures. The rule was simple: Everything that a prudent patient would want to know about risks of a procedure had to be disclosed. No expert witness was necessary to set the standard for the jury. The turmoil among physicians and their professional organizations in these three jurisdictions was predictable, but within a few years most states had similar rules, either established by state legislatures or by high court decisions. Every knowledgeable physician now realizes that informed consent, properly delivered, can defuse a difficult situation when there is an adverse result. So the outcome of the informed-consent rule has been beneficial to the profession. Yet it is important to understand that the special significance of judicial or legislative imposition of informed consent runs contrary to the rule that only an expert medical witness can establish whether a doctor violated a medical norm. So these three cases were the first gesture toward imposition of care standards by other than expert medical testimony. But the courts were not the only extra-medical source of care standards. In 1975, two of the new doctor-owned malpractice insurance carriers in California imposed a standard for anesthesiologists. This was in response to a large number of intraoperative anesthesia disasters, nearly all of them in Class 1 risk cases, which cost the insurance industry tens of millions of dollars. The standard imposed by these two carriers was straightforward: The anesthesiologist was required to use constant pulse monitoring in every case, and if he left the operating room for any reason a competent substitute had to be in place at the head of the table. Very soon, all of the malpractice carriers in California were imposing the same standard, and the effect on intraoperative anesthesia disasters was dramatic. This can be easily measured by following the risk classification of anesthesiologists. In 1975 it was Class 7 out of 8 (with neurosurgeons and obstetricians at the top), and by 1980, anesthesia experience was so favorable that the risk classification was 5 or slightly less -- about the level of ENT specialists. And this is not the end of the story. California's experience alerted the profession nationally to the idea of risk reduction. Within a couple of years of the introduction of pulse oximetry in 1985, the vast majority of anesthesiologists in the country were employing it. Before long, pulse oximeters were ubiquitous in post-anesthesia recovery rooms, and elsewhere in the hospital, as well. The past 20 years has seen a shift in the malpractice scene, with diagnostic errors becoming progressively more important. The complexity of these diagnostic-error cases is remarkable. For example, a while ago I reviewed a case that concerned the differential diagnosis between immune thrombocytopenic purpura and thrombotic thrombocytopenic purpura. There was a substantial recovery by the decedent's family. Thirty years ago there would have been no chance for this case to see the light of day. No plaintiff's attorney would have taken it, because they would not have understood it, and even if someone had ventured forth, a jury would almost certainly have been sufficiently confused to return a verdict in favor of the doctor-defendant. Running through some of the recent issues of Professional Liability Newsletter, I repeatedly find complex cases that are adequately handled by a variety of plaintiffs' malpractice firms. Needless to say, managed care is the hot topic in medical malpractice today. Some spectacular awards against managed-care plans have been handed down in California and in other jurisdictions, and if Federal legislation removes all barriers to lawsuits against managed-care organizations, the public's indignation concerning abuses will be vented in far more plaintiff verdicts in these cases. It seems inevitable that diagnostic errors are going to increase under the pressures created by managed care. Will there be a legislative response, altering the standard of care applied to physicians and hospitals? Will some organization come up with a protocol-oriented standard of care, with legal immunity provided if the doctor follows the prescription in a given case? And what about the standard of care to be applied to nurse practitioners and physician assistants? Lowering the standards for them would certainly encourage their use, without necessarily improving their supervision, and what would be the impact on the quality of care? Finally, is there a particular reform that would tend to rationalize medical malpractice litigation? I think there is. The complexity of medical issues presented to juries in many cases these days makes a mockery of the concept of "jury of our peers." I think that for those states which have a heavy burden of malpractice litigation, eliminating juries and using specialty judges, sitting without a jury, would be a marked improvement. Allowing a single peremptory challenge for a judge who is regarded as biased would tend to make the system fair, since a judge with many challenges could be given other tasks. Not the least advantage in such a system would be the development of awareness among such specialty judges of biased testimony from frequently used experts Written by: David S. Rubsamen, M.D., LL.B |
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