Can no-fault compensation of impaired infants alleviate the malpractice crisis in obstetrics?

In 1987, Virginia initiated no-fault compensation for birth-related neurological injuries in an attempt to ensure the availability of malpractice insurance for the state's obstetricians. This paper explores some possible causes for the refusal of Virginia's insurers to write malpractice coverage for obstetricians and analyzes the ability of the act to resolve the medical malpractice crisis in obstetrics. It also examines the effect of this limited no-fault compensation scheme on obstetricians' incentives and on the welfare of neurologically damaged children.     

Forensic psychiatry and malpractice

This paper concerning the last 87 malpractice cases referred to the Department of Psychiatry and Law, Menninger Clinic, includes 57 suits against mental health practitioners and/or institutions, and 30 nonpsychiatric suits against general hospitals, surgeons, obstetricians, etc. A patient was available for interview in only 12 percent of the psychiatric cases; in 88 percent we reviewed medical records and consulted with attorneys. In the psychiatric cases the crucial question was whether a generally accepted standard of care was breached. The inherent problems of applying appropriate criteria to standards of care by practitioners and institutions are discussed. In half the psychiatric cases we found no significant deviation from acceptable clinical performance; in half we concluded that negligent practice had occurred. We did see a litigant for evaluation in 90 percent of the nonpsychiatric cases. The main issue involving them concerned harm or disability related to presumed negligence by medical personnel. How we evaluate such cases and apply disability criteria is discussed.     

论在医疗纠纷诉讼中推行专家辅助人制度

医学专家意见在医疗纠纷诉讼中占有重要地位，在不同法系国家分别以鉴定和专家证言的形式出现在法庭诉讼中。目前，我国已形成了以医疗事故技术鉴定和医疗过错鉴定为主体的医疗专业技术鉴定体制，但当前面临着诸多困境。从专家证据制度改革和医学专家意见形成特点等层面分析，专家辅助人制度与普通法系国家专家证人制度类似．其和鉴定制度的有机结合可以在医疗纠纷诉讼领域构建更为理想的专家证据制度：有助于最大限度地使法律真实靠近客观真实。但过于强大的医疗专业技术鉴定制度对专家辅助人制度具有明显的压制作用．因此需适当限制鉴定制度，大力推行专家辅助人制度，同时应总结相关国家经验教训。防止专家辅助人制度产生不应有的负面效应。     

论在医疗纠纷诉讼中推行专家辅助人制度

医学专家意见在医疗纠纷诉讼中占有重要地位,在不同法系国家分别以鉴定和专家证言的形式出现在法庭诉讼中。目前,我国已形成了以医疗事故技术鉴定和医疗过错鉴定为主体的医疗专业技术鉴定体制,但当前面临着诸多困境。从专家证据制度改革和医学专家意见形成特点等层面分析,专家辅助人制度与普通法系国家专家证人制度类似,其和鉴定制度的有机结合可以在医疗纠纷诉讼领域构建更为理想的专家证据制度;有助于最大限度地使法律真实靠近客观真实。但过于强大的医疗专业技术鉴定制度对专家辅助人制度具有明显的压制作用,因此需适当限制鉴定制度,大力推行专家辅助人制度,同时应总结相关国家经验教训,防止专家辅助人制度产生不应有的负面效应。     

Educational malpractice and setting damages for ineffective teaching: a comparison of legal principles in the USA,England and Australia

The extent to which educational institutions and their teachers in the USA, England, and Australia should bear legal responsibility in damages for ineffective classroom teaching is the subject of this article. At the heart of the controversy regarding educational malpractice is the issue of remedies. Federal and state courts in the USA have resisted awarding damages where such an award would appear to sound in educational malpractice. However, although courts in Australia have yet to declare with any degree of certainty, they appear positioned to follow the English approach that ostensibly acknowledges a school's duty of care to provide effective education for all children.     

Pastoral counseling and the concept of malpractice

The discipline of pastoral counseling has developed to the point at which malpractice claims against pastoral counselors are a reality. The need for forensic psychiatrists to participate in such suits is likely to increase. In this article, we review the recent California case of Nally v. Grace Community Church. Kenneth Nally committed suicide while under the care of clergy. His parents claimed that the pastoral counselors negligently counseled their son and that this counseling led to his death. This case will serve as a point of departure for reviewing the developments and evolution of pastoral counseling as a discipline. Then we shall highlight the difficult problem of whether pastoral counseling ought to be classified as a religious or a secular activity, while pointing out that this dichotomous view does not accurately portray the activities and beliefs of pastoral counselors. Nevertheless, we underline the connection made between the definition of pastoral counseling and the assertion that pastors should be shielded from malpractice claims.     

Women's sexual exploitation in therapy

The incidence of therapist-patient sex is disturbingly high, and the obstacles to seeking legal redress against a sexually abusive therapist are numerous. The defence of consent is one of the most serious obstacles. Generally no physical coercion is involved; and the patient often believes she is consenting at the time in which sexual relations occur. The author explores how the defence of consent has been construed to bar women from succeeding in malpractice and sexual assault suits against sexually abusive therapists. Her thesis is that an understanding of the nature and dynamics of the therapeutic relationship leads to the conclusion that free and informed consent is not possible in this context. The author concludes with a discussion of whether a mandatory reporting law, requiring therapists to file a report with the relevant licencing authorities when they become aware that a current patient has engaged in sexual relations with a former therapist, would be desirable.     

Doctors,Lawyers, and Malpractice Insurance: Is Physician Discipline or Legal Restrictions the Answer?

Legislatures have made numerous attempts to reduce medical malpractice costs by changing the legal rules governing malpractice suits. Additional changes through physician discipline are also under consideration. This paper - tests whether these changes have had the desired effects, using cross-state data. The empirical findings are that the results of changes in the legal rules are generally as expected, but that physician discipline seems to have little impact on either insurer costs or insurance rates, even after the discipline rules have been in effect for up to four years.     

Medical malpractice: a study of case histories by the Forensic Medicine Section of Bari

The learning objectives of this paper are to study the actual extent of medical malpractice, the medical acts at risk, and their impact on mortality. The number of suits filed against physicians for deaths resulting from alleged malpractice and autopsies ordered by the Judicial Authority in cases of possible therapeutic misadventures are rising. A major factor pushing this trend is public mistrust of healthcare providers and public and facilities. This mistrust is partly fueled by the mass media which, often to gain larger audience shares, sensationalizes single cases of real or alleged iatrogenic injury. Further, the potential for astronomic settlements, either from the single doctor or from the healthcare institution, has increased the number of legal proceedings that start on the basis of mere suspicion. In this context, the autopsy becomes an important instrument for shedding light on the situation, and it must be carried out by highly qualified and experienced professionals capable of ascertaining the cause of death, identifying any possible misconduct, and assessing its consequences. We reviewed the data regarding autopsies performed at the Forensic Medicine Section of the Department of Internal and Public Medicine of the University of Bari over 1991 to 2000. We culled the cases alleged malpractice and, from these, identified those in which the death had truly been caused by medical error. This study also allowed us to understand the incidence of lethal therapeutic misadventures and to identify the medical and surgical branches more frequently involved.     

Scientific and legal standards of statistical evidence in toxic tort and discrimination suits

Many legal disputes turn on scientific, especially statistical, evidence. Traditionally scientists have accepted only that statistical evidence which satisfies a 95 percent (or 99 percent) rule — that is, only evidence which has less than five percent (or one percent) probability of resulting from chance.The rationale for this rule is the reluctance of scientists to accept anything less than the best-supported new knowledge. The rule reflects the internal needs of scientific practice. However, when uncritically adopted as a rule for admitting legal evidence, the seemingly innocuous 95 percent rule distorts the balance of interests historically protected by the legal system. In particular, plaintiffs in toxic tort and employment discrimination suits are effectively held to a heavier burden of proof in showing that their injuries were more probably than not caused by the defendant's actions. The result is that too many victims of toxic torts or employment discrimination cannot win legal redress for their injuries.Proposals to adopt stringent scientific rules of evidence thus implicate significant philosophical issues about the relation of evidence to belief and to practical action. The underlying objectives of the tort law system are not those of scientific practice, and each set of objectives has standards of evidence specific to it.Previous versions of this paper were read at the UCLA Law and Philosophy Discussion Group and at the Orange County Moral and Political Philosophy Discussion Group. We have benefitted from comments by Steve Munzer, Peter Aranella, Craig Ihara, Gary Watson, David Estlund, and Alex Rosenberg. A longer version of this paper is in preparation. In that paper we hope to develop some of the items merely sketched in this paper.     

The jury is still in: Florida's Birth-Related Neurological Injury Compensation Plan after a decade

Florida's Birth-Related Neurological Injury Compensation Plan (NICA) is the most significant experiment with compensation for medical injury yet undertaken in the United States. As NICA enters its second decade of operation, maintaining the scheme's jurisdictional integrity has emerged as a key challenge for policy makers in Florida. We explore the relationship that has emerged between NICA and the tort system as competing avenues for families to obtain compensation for severe birth-related neurological injury. By linking NICA claims data with data on malpractice claims filed in Florida, we found a lively persistence of "bad baby" litigation despite NICA's implementation. Many families pursued claims in both fora. An explanation for these results can be traced to key features of the plan's design--primarily, the way in which "exclusive" jurisdiction over injuries is determined and the restrictive nature of the compensation criteria used. Our findings may help efforts to consolidate NICA's role in injury compensation and inform future design of alternative compensation systems.     

A dangerous direction: legal intervention in sexual abuse survivor therapy

In this Article, Professors Bowman and Mertz question recent popular and academic commentary that disputes the validity of all delayed-recall memories of childhood sexual abuse. They examine one court's decision to allow a father, accused by his daughter of childhood sexual abuse, to recover malpractice damages from his daughter's therapist in connection with therapy during which the daughter recovered memories of the abuse. The authors argue that such third-party liability is unsound in terms of established principles of tort doctrine and in terms of public policy. After a review of the scientific evidence, the authors further conclude that, although some memories may be inaccurate, delayed-recall memory can also accurately reflect that past abuse occurred. Permitting third-party liability against therapists when accurate memories of abuse surface in therapy gives abusers a weapon to use against their victims. Because such suits exclude the party in privity (the client), they effectively erase the victim's voice. Professors Bowman and Mertz argue that such a novel extension of third-party liability is at best a misuse of the courts' resources and ultimately harms abuse survivors, therapists, and the community far more than it helps any wrongfully accused parents.     

Reconsidering medical malpractice reform: the case for arbitration and transparency in non-emergent contexts

This Article proposes a two-pronged legislative response to the current debate over medical malpractice insurance. The author does not advocate mandatory caps on malpractice damages, nor the imposition of a uniform regime on the field of medicine. Rather, he articulates some of the important legal, medical, and societal benefits that would come from embracing arbitration in the non-emergent medical malpractice context. The author also calls for the reformulation of the National Practitioner Data Bank to achieve greater transparentcy and to leverage advances in information technology and data-mining software to measure the risk levels of individual practitioners. This reform, in turn, would open up the possibility of greater subcategorization of premiums and more effective deterrence in medical malpractice insurance.     

Practice guidelines and malpractice litigation: collision or cohesion?

Practice guidelines are standardized specifications for managing particular clinical problems and are intended to improve the outcomes of medical care by increasing adherence to standards of care. They are also meant to make medicine more cost-effective by eliminating unnecessary procedures. A relatively recent phenomenon, the practice guidelines now emerging will have implications for malpractice, which also intends to bring about better care. They will probably not revolutionize the procedures that courts use to determine negligence, but judges will integrate guidelines into their decision-making process. This development should be welcomed. Guidelines should prove to be useful as either inculpatory or exculpatory evidence of negligence. They are unlikely to generate much new litigation, although there is some potential for suits against those who issue guidelines, especially if guidelines are not revised as the technology of medical care changes.     

Medicaid myths: trends in Medicaid expenditures and the prospects for reform

Medicaid expenditures, which had reached more than +32 billion by 1981, have grown substantially throughout the program's history. As a result, the conventional wisdom is that Medicaid expenditures represent a significant public-policy problem. Using other measures, however, it can be shown that the program is much less of a problem than it appears to be. By 1981, spending for Medicaid represented only 12.7 percent of total state spending and had contributed only 14.2 percent to the overall growth in state expenditures since 1965. Moreover, considering only the funds which states raise from in-state sources, the median share of state budgets accounted for by Medicaid was just 5.6 percent, and only 7 states spent as much as 9 percent of their own money on the program. These figures suggest that the marginal reductions in Medicaid expenditures which would result from typical program changes are likely to be so small that rational state officials might be unwilling to incur the political opposition of powerful provider groups or the resistance of large state bureaucracies by proposing substantial reforms. The major exceptions are the few states with very large programs where even small proportional savings would amount to millions of dollars. We conclude that, given its present federal-state form and the current distribution of expenditures, it is unlikely that major reforms will be enacted because the stakes are too small for most states and the federal interest is too diffused.     

Legal damages for losses of chances

Traditionally, damages for torts have been awarded on an all-or-nothing basis. In malpractice suits, however, a growing number of courts are holding doctors liable for negligent acts that reduces a patient’s chance of survival, even if the patient’s chances for recovery have already been less than 50%. For lack of a general principle, a disparate variety of loss of chance rules seems in use. To provide some more systematic guidance, the present paper proposes to look directly at the interaction between the injurer’s act and a random move of nature that captures the uncertainty. For any given move of nature, damages are still awarded on an all-or-nothing basis. If however, for lack of observability, moves of nature cannot sufficiently be distinguished, averages of correct damages over observable events are taken. While the scheme aims at compensatory goals of tort law, as a by-product, it also generates efficient precaution incentives provided that due care standards obey the Hand Formula.     

Is sternal bone marrow needle biopsy still a hazardous technique? Report of three further fatal cases

Three fatal cases of death following sternal bone marrow needle biopsy have come to the authors' attention in the past 10 years. The hazards of the technique may be related to the incongruous stylet guard-adjustment for the thickness and hardness of the sternal wall. All three cases involved suits for professional malpractice. Controversial aspects of these cases involving physician liability are discussed.     

Enrolling children in public insurance: SCHIP, Medicaid, and state implementation

The Balanced Budget Act of 1997 established federal grants to the states to create the State Children's Health Insurance Program (SCHIP). This presented the states with a number of implementation choices concerning administrative models for the new programs, as well as choices about eligibility standards, enrollment simplification, crowd-out, and cost sharing requirements. At the same time, the states were also implementing welfare reform. We describe the most important of these implementation choices, and using data from the Current Population Survey, we estimate the impacts of state policy on enrollment in this multiprogram environment. The results indicate that SCHIP programs that are administered as Medicaid expansions are more successful than either separate SCHIP plans or combination programs in enrolling children. States that remove asset tests and implement presumptive eligibility and self-declaration of income have higher enrollment levels. Continuous eligibility and adoption of mail-in applications have no effect on overall enrollment. Waiting periods and premiums reduce enrollment. Stringent welfare reform reduces children's enrollment, despite federal policy that was intended to protect children from the consequences of welfare reform. The negative impacts of a number of these policy reforms substantially reduce enrollment, potentially offsetting the more favorable impacts of other policy choices. We estimate that if all states adopted the policy options that facilitate program use, enrollment for children with family incomes less than 200 percent of the poverty line could be raised from the current rate of 42 percent to 58 percent.     

Medical malpractice litigation: do the British have a better remedy?

Medical malpractice claims are filed nearly ten times more frequently in America than they are in Great Britain. British patients generally adopt a less adversarial stance toward medical malpractice than do American patients. This Article examines the British malpractice system, as compared with the American system, and explores the differences between the two, in terms of costs and fees, liability rules, statutory provisions, and judicial attitudes toward malpractice litigation. The Article also discusses British social and institutional factors, such as the "taint" of litigation and the National Health Service, and evaluates how these factors affect British malpractice litigation. The Article presents the alternative forums available to British patients in seeking satisfaction for their medical service complaints. The Article concludes with an evaluation of how these factors achieve the three societal objectives of malpractice litigation: reparation, emotional vindication and deterrence.     

Aggressive Parental Discipline Experienced in Childhood and Internalizing Problems in Early Adulthood

Parental use of aggressive discipline, specifically corporal punishment (CP) and psychological aggression (PA), has been shown to increase the risk for a number of problem behaviors in children and adolescents. How CP and PA experienced in childhood contribute to adverse developmental outcomes in adulthood remains to be understood. Survey data collected from University of Manitoba students (n?=?1133) was used to assess the effects of childhood experiences of CP and PA on internalizing problems (i.e., depression, anxiety, and low self-esteem) in early adulthood. Because aggressive disciplinary techniques do not occur in isolation, a number of protective factors were also considered in analyses. Both CP and PA were associated with lower levels of parental warmth/support and responsiveness, and more inconsistency in discipline. However, highly inductive parents tended to use CP and PA more frequently than less inductive parents. Hierarchical regression analyses indicated that childhood PA predicted anxiety and lower self-esteem in adulthood, even after the effects of positive parenting were taken into account. These findings suggest that not only do CP and PA tend to occur within environments that are less conducive to positive development, but also predict problematic developmental outcomes in adulthood even after the effects of protective factors are taken into account.