Federal Tort Claims Act Medical Malpractice Essay
Federal Tort Claims Act Medical Malpractice Essay
From a general perspective, the national malpractice laws stem from English custom-based law and was created by decisions in different state courts. Medical malpractice claims are a normal event in the United States. The legitimate framework is intended to empower broad revelation and transactions between antagonistic gatherings with the objective of settling the debate without going to jury trial. In so doing, the plaintiff must demonstrate that the doctor acted carelessly in rendering care and that such carelessness brought about damage. Federal Tort Claims Act Medical Malpractice Essay.Along these lines, there a couple of legal entities that must be fulfilled. These aspects include but are not limited to an expert obligation owed to the patient, break of such obligation, harm brought about by the rupture, and the damages. Resulting financial damages, therefore, if granted, ordinarily consider both real financial misfortune and noneconomic misfortune. The idea that each who goes into a scholarly career attempts to convey to the practice of a sensible level of care and ability goes back to the laws of old Rome and England (Smith, 1931).
In the United States, Medical malpractice law has customarily been under the authority of the individual states and not the national government, as opposed to numerous different nations. A patient seeking to financial compensation for damage identified with medicinal carelessness needs to demonstrate that substandard restorative care brought about harm. The assertion of restorative carelessness must be documented in an opportune way. This lawfully endorsed period is known as the statute of impediment and changes from state to state. Once the harmed individual has built up that carelessness prompted to harm, the court ascertains the fiscal harms that will be paid in remuneration. Doctors in the United States, for the most part, convey medical malpractice insurance to protect themselves if there should arise an occurrence of medical carelessness and accidental harm. In a few cases, such protection is required as a state of doctor’s facility benefits, or work with a restorative gathering. Malpractice in these regards is characterized as any demonstration or oversight by a doctor amid treatment of a patient that digresses from acknowledged standards of practice in the medical domain that causes damage to the patient. Medical malpractice is a particular subset of tort law that arrangements with expert carelessness (White, 2003). According to White (2003), carelessness is for the most part characterized as lead that misses the mark concerning a standard the most generally utilized standard in tort law is that of an alleged sensible individual. The sensible individual standard is a legitimate fiction, made so the law can have a reference standard of contemplated directly that a man in comparable conditions would do, or not do, to shield someone else from a predictable danger of mischief. Federal Tort Claims Act Medical Malpractice Essay.
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In synopsis, as innovation and the interest for health care services have expanded, the many-sided quality and rate of medical conveyance, injuries, and unfriendly results require an arrangement of patient review that is impartial, reasonable, and efficient. The United States has an ill-disposed arrangement of arbitration of medical malpractice claims. Doctors are normally uninformed of the complicated coordination, structure, and working of the lawful framework until confronted with a claim asserting restorative malpractice. Indeed, even a jury decision for the litigant doctor can take an overwhelming toll as far as individual anxiety, demoralization, and time responsibility to the procedure. The experience of other created countries around the globe proposes that there are no basic responses to address restorative negligence; future change endeavors will keep on developing a framework that is financially productive, and sufficiently repays those harmed by medicinal errors while barring fraudulent medical cases.
During the past decade, medical professional liability issues have been of great concern to health care providers, insurers, patients, and state legislators. Much has been written about the financial and legal aspects of the problem, such as the cost of insurance and the size of jury awards. Much less attention has been devoted to analyzing the effects of medical professional liability issues on the delivery of health care and the practice of medicine.
Medical Professional Liability Controversy
There is no consensus about the cause of the medical professional liability controversy in the health care delivery system, except that most observers agree it is unlikely that any single factor is responsible. Physicians and other health care providers tend to blame attorneys, whom they allege are encouraging plaintiffs to bring nonmeritorious medical malpractice suits. Attorneys, joined by some consumer advocates, frequently argue that the increased number of suits reflects an increase in negligent medical practice. Still another view is that patients are more willing to sue their physicians, partly because of the rapidly increasing costs of medical care and the failure of physicians to establish effective relationships with their patients. It is also suggested that the roots of the medical professional liability problem lie in the insurance industry and its management practices.
In response to proliferating malpractice claims,1 49 of the 50 states enacted tort reforms in the past decade to modify medical malpractice liability laws. These attempted remedies often have included limits on awards to plaintiffs and attorneys and changes in tort doctrine. Despite these legislative reforms, the number of medical malpractice claims has continued to increase during this period. The number of claims filed against physicians nationwide rose at an average rate of 10 percent per year from 1982 to 1986 alone. Not only were there more claims, the severity of the claims—that is, the amounts paid out in both jury verdicts and settled claims—has risen considerably.
Medical malpractice insurance premiums have reflected this upsurge in claims and payments.Federal Tort Claims Act Medical Malpractice Essay. The American Medical Association (AMA) estimates that premiums for all physicians increased 81 percent between 1982 and 1985; premiums for obstetrician-gynecologists averaged an increase of 113 percent during the same period. Premiums are affected not only by the frequency and severity of claims but also by the high cost of processing them.
Problem Most Acute in Obstetrics
These trends have been most pronounced in the practice of obstetrics. Claims against obstetrician-gynecologists are currently two to three times more numerous than the average for all other physicians and are comparable only to a handful of other high-risk surgical specialties. According to a 1987 survey by the American College of Obstetricians and Gynecologists (ACOG), 70 percent of obstetricians reported that they had had at least one claim filed against them at some time in their careers. The U.S. General Accounting Office (GAO) reports that the claims frequency for all physicians was 16.5 per 100 physicians in 1984, ranging from 8.6 in Arkansas to 35.7 in New York.
These numbers mask another story: the continued increase in the frequency and severity of claims against obstetricians is compromising the delivery of obstetrical services in this country; that effect, in turn, is reducing access to obstetrical services for certain groups of women. The committee devoted much of its resources to investigating and documenting the problems posed by professional liability in obstetrics, both in the delivery of and access to care and in the way in which obstetrics is practiced.Federal Tort Claims Act Medical Malpractice Essay.
Liability’s Broader Scope
In approaching the medical malpractice issue the committee was keenly aware that the U.S. civil litigation system generally has undergone explosive growth in certain kinds of tort liability in recent years. This growth has attracted wide attention because of dramatic, often breathtaking, jury awards and settlements. Premiums have risen substantially for many lines of commercial liability insurance. Moreover, the general explosion in litigation is being blamed by some persons for slowing growth in productivity, thwarting research and development efforts, and consequently undermining the competitive position of the United States. These persons contend that only fundamental reform of the American civil justice system will solve these problems. Others deny that there is a tort liability difficulty, arguing instead that the problem lies with the insurance industry. In their view, insurance companies have made enormous and costly underwriting errors that have been compounded by slowed returns on their portfolio investments and have engaged in collusive behavior. The proffered solution is rigorous regulation of the insurance industry.
Acknowledging that the problems posed by medical professional liability are part of a broader controversy, the committee nevertheless concluded that medical professional liability exhibits special features that will most likely require unique solutions. Accordingly, the committee evaluated data relating only to the medical professional liability problem and evaluated proposed legal solutions only as they addressed medical professional liability issues.
Many believe that the medical professional liability problem is exacerbated by inflated consumer expectations of modern medicine coupled, paradoxically, with declining respect for the medical profession.Federal Tort Claims Act Medical Malpractice Essay. There is no question that the American public expects a great deal from modern medicine. Public opinion polls consistently reveal that Americans want early benefits of advances in medical technology and that they are willing to pay even for risky and inordinately expensive treatments such as organ transplantation and artificial organs. Further, it seems that many Americans expect the medical system not only to treat their ills but to cure them as well.
Many observers have written about the changing public perception of the medical profession. Viewed as virtually infallible earlier in this century, physicians now are increasingly being regarded warily by some patients. The rapid transformation of the health care delivery system in the decades since the enactment of Medicare and Medicaid has contributed to this lack of confidence. The phenomena of corporate for-profit medicine, proprietary chain nursing homes and hospitals, commercial laboratory services, health maintenance organizations, preferred provider plans, and other market-oriented approaches to health care delivery can transform the doctor-patient relationship into a producer-consumer relationship. Behind many medical malpractice claims is a disappointed consumer who believed he or she was purchasing a cure, is disappointed with the results, and, often without any other avenue of compensation, is seeking relief through the legal system.
Ethical Considerations
Ethical issues loom large in any serious policy debate of the medical professional liability problem in obstetrics, yet they are among the most difficult issues to resolve in a morally pluralistic society. As a result, there is a tendency to concentrate on procedural, pragmatic, and consensus-forming positions rather than on more substantive ethical issues, about which disagreement is likely to occur.
The committee recognized that the pragmatic approach is the only feasible one when confronting ethical issues as complex and volatile as those arising from society’s obligations to care for mothers and infants. Although ethical matters deserve more attention than the committee was able to devote to them, the committee believed that it was important to raise the issues and to state the ethical assumptions underlying its recommendations. By doing so, it hoped to heighten the public’s awareness of the complexities in the problem of obstetrical malpractice.
The ethical issues deemed most important by the committee were grouped under two headings: (1) the obligations of society to pregnant women and to fetuses and (2) the obligations of the medical professions to pregnant women and to fetuses. The fundamental question regarding the obligations of society is whether or not pregnant women and fetuses have some moral claim on society that entails access to obstetrical care. Federal Tort Claims Act Medical Malpractice Essay.If they do, how does it square with other legitimate moral claims for other forms of health care by other members of society? For example, what is society’s obligation to a damaged infant? How should society balance the claims of damaged infants against the claims of other sick persons?
The obligations of the health professions to pregnant women and to fetuses depend on the way health professionals are regarded. If they are seen to be like any other service profession in the U.S. economy, only one obligation is entailed: competent performance of tasks that are contractually bargained for in the marketplace. In ordinary market transactions, producers of goods and services are not required to abnegate self-interest to any appreciable degree. The medical profession, however, has long instilled a different ethic in its members, who are generally expected to have a fiduciary relationship with their patients. The committee does not view its role as prescribing moral standards for health care providers. It does believe, however, that any permanent solution to the obstetrical medical professional liability problems outlined in this report will require that health professionals, policymakers, and legislators consider carefully what the ethical obligations of obstetrical providers are in such matters ensuring equity in access of care.
Study Focus and Findings
The committee grouped its inquiry into six areas: (1) the delivery of maternity care in the United States, (2) the effects of medical professional liability issues on the availability of obstetrical providers, (3) the effects of medical professional liability issues on access to obstetrical care for particular segments of the population, (4) the effects of professional liability issues on the practice of obstetrics, (5) the role of the insurance industry in obstetrical professional liability issues and their resolution, and (6) an evaluation of the current tort litigation system for resolving medical malpractice claims and various alternatives to the tort system that have been proposed. Chapters 2through 7 present detailed discussion of these six areas of inquiry. Brief descriptions are given below.
Maternity Care in the United States
Maternity services in the United States are delivered by three groups of providers: obstetrician-gynecologists, other physicians (primarily family physicians), and other practitioners, including certified nurse-midwives and, in some states, lay midwives. Most obstetrical care is provided by obstetrician-gynecologists, who practice primarily in metropolitan areas. According to estimates prepared for the committee, family physicians provide two-thirds of all private obstetrical care in rural areas. Thus, most women receive prenatal care in private physicians’ offices, whether from obstetrician-gynecologists or from family practitioners. Approximately one in five, however, receives care from a public provider, such as a hospital outpatient department, a Community or Migrant Health Center, or a health department. There are 2,000 to 2,500 practicing certified nurse-midwives in the United States, and more than one-third of them practice in areas in which most of the patients are poor.Federal Tort Claims Act Medical Malpractice Essay.
To analyze the effects of medical professional liability problems on the supply of obstetrical providers and on issues of access, the committee attempted to find out how much obstetrical care is needed in the United States and what determines the need. Estimating need is difficult because of the number of variables involved. However, two clear observations emerged: (1) there is mounting evidence of existing shortages of obstetrical care, especially for poor women in rural and inner-city areas, and (2) there is good reason to believe that the need for obstetrical services in the United States will increase in the near future. The evidence presented in this report that professional liability problems are driving physicians and other obstetrical providers from practice and raising barriers to access must be understood as one element of a broader problem of impaired access to obstetrical services for some American women.
Availability of Obstetrical Providers
Numerous reports in recent years have averred that obstetricians, family physicians, and nurse-midwives are increasingly eliminating or limiting obstetrical practice because of professional liability problems. Review of existing data and new studies commissioned by the committee addressed the following questions: Are obstetrical providers eliminating or limiting obstetrical practice? Are high-risk women underserved? Are obstetrical services in short supply in rural areas?
The committee reviewed the results of 30 surveys in 23 states, along with 9 national studies, relating to the question of whether professional liability worries are causing providers to eliminate obstetrical practice. The data suggest that significant numbers of each of the provider groups studied are eliminating obstetrical practice, or limiting it earlier in their careers than they might otherwise have done, because of professional liability concerns. In addition, significant numbers of obstetrical providers report that they are cutting down on services to high-risk women because they fear being sued. Although this reduction in available obstetrical care may affect the entire population, the evidence suggests that it particularly affects low-income women.
From an examination of 21 state studies and 5 national studies addressing professional liability issues and their effects on family physicians, the committee concluded that the proportion of family physicians giving up obstetrical practice is even higher than the proportion of obstetricians. Federal Tort Claims Act Medical Malpractice Essay.The delivery of obstetrical services in rural areas is seriously threatened by this development. Estimates prepared for the committee indicate that the number of obstetrical providers in non-metropolitan areas has fallen by approximately 20 percent in the last five years.
Obstetrical Care for Poor Women and Women Served by Medicaid
Numerous authors have expressed alarm about the relationship of professional liability issues, physician participation in Medicaid, and the access of low-income women to obstetrical services. Drawing primarily on the studies done by state and national organizations over the past several years, the committee attempted to determine whether the sense of alarm is justified and, if so, how the issue might be addressed. The general reductions in obstetrical practice among obstetricians, family physicians, and nurse-midwives reported in both state and national survey data appear to have a disproportionate effect on the availability of care for low-income women. Further, every relevant study identified by the committee found that physicians are increasingly reporting a reduction in their Medicaid caseloads, at least in part because of professional liability concerns.
Because Community Health Centers and Migrant Health Centers are a vital source of obstetrical care for low-income women, the committee decided early in its deliberations to commission a survey of the effects of medical professional liability issues on the delivery of care in these centers. Data were gathered from a random sample of 208 center directors during April and May 1988. Sixty-seven percent of the respondents to the survey indicated that professional liability concerns reduced their center’s ability to furnish obstetrical services or the scope of services they could offer.
Much of the data relating to the question of whether medical professional liability concerns are causing physicians to reduce obstetrical care to low-income women are imperfect or indirect. After putting the pieces of this puzzle together, however, the committee is persuaded that the effects of professional liability concerns in obstetrics are being disproportionately experienced by poor women and women whose obstetrical care is financed by Medicaid or provided by Community and Migrant Health Centers, and that this problem is, in turn, exacerbating the longstanding problems of financing and delivering obstetrical care to poor women.Federal Tort Claims Act Medical Malpractice Essay.
Practice of Obstetrics
How do medical professional liability concerns affect the way in which obstetrics is practiced? The committee reviewed survey data documenting changes that obstetrical providers have made in response to professional liability concerns. The committee also conducted an informal survey of academic medical centers to determine the effect of professional liability concerns on the training of obstetrical residents. Although it is difficult to study, the committee also deemed it crucial to examine the effect of professional liability concerns on the physician-patient relationship. The committee commissioned papers on the subject and heard numerous reports by physicians describing the changes that professional liability concerns have created in this relationship.
Professional liability concerns have brought about a variety of changes in the way that obstetrics is practiced in the United States. In the committee’s view many of these changes have benefited patients. In particular, the committee noted that physicians have improved their recordkeeping, increased discussion with patients, increased their use of informed-consent documentation, and paid greater attention to their relationships with their patients. In addition, some committee members believed that, in response to liability concerns, physicians have increased diagnostic testing, some of which may be appropriate.
Other changes worried the committee. After studying the data related to the rise in cesarean deliveries in the United States, the committee concluded that concerns about medical professional liability are among the factors causing the rise. Similarly, after reviewing the data indicating that electronic fetal monitoring has not improved overall outcomes, the committee concluded that professional liability concerns are at least partly responsible for the continued use of this technology.
The committee also conducted an informal survey of 132 heads of obstetrics and gynecology departments at university hospitals and academic medical centers in the United States. Many report that medical professional liability concerns are having an adverse effect on the training of obstetrical residents. They report that the current legal climate makes it difficult to provide residents with appropriate responsibility and that the cost of medical malpractice insurance for obstetricians is impeding the ability of academic medical centers to hire obstetrical faculty.
Obstetrical Malpractice Insurance
Because of the controversy surrounding the role of the insurance industry, the committee commissioned an outside study of the structure of the obstetrical malpractice insurance market, the availability and affordability of insurance, and the actual effect of the insurance industry on the obstetrical malpractice problem and its solution. In addition, the committee commissioned a survey of risk management activities implemented by insurers.
The committee found consensus that the crisis of availability of medical malpractice insurance for physicians that existed in the mid-1970s was adequately addressed by the creation of physician-owned companies, joint underwriting associations, and the conversion to claims-made policies. Federal Tort Claims Act Medical Malpractice Essay.There is, however, continued concern in most quarters about the affordability of medical malpractice premiums and the availability of insurance for nurse-midwives. After studying the question of whether medical malpractice premiums are affordable, the committee concluded that it was difficult to determine whether the premiums constitute a real economic burden for obstetrical providers. Data suggest that obstetrician-gynecologists as a group have maintained their average net real income in the decade between 1975 and 1985. However, the committee notes that these national statistics mask huge variations among obstetrical providers by region and experience. The data also strongly indicate that premiums are a greater burden for family physicians and nurse-midwives than for obstetrician-gynecologists.
In its limited inquiry of the matter the committee found no evidence in major published studies available as of August 1988 to support claims that excessive profit taking on the part of insurers has been a major contributor to the medical malpractice problem in obstetrics. The principal factors in the growth of premiums appear to be changes in the frequency and severity of claims and the lowering of interest rates in the larger economy, which has reduced insurers’ investment income.
The committee found a variety of efforts on the part of insurers to use their information bases to identify high-risk areas and to encourage more effective or appropriate methods of managing the risks of obstetrical care. Some efforts have taken place in commercial insurance companies, but most have been initiated in physician-and hospital sponsored organizations.
Several proposals have been advanced in the last decade to address the medical malpractice problem by altering the practices of medical malpractice insurers. The committee found that, although there has been some limited experience with these proposals in certain states, there is not yet enough experience or data to enable it to recommend any of these proposals for nationwide adoption.Federal Tort Claims Act Medical Malpractice Essay.
The Tort System and Its Alternatives
In the course of its inquiry into the legal system the committee examined the role of the tort system in the medical professional liability problem, evaluated the data relating to the efficacy of tort reforms, and studied various proposed alternatives to the tort system. Although these are important issues in the medical malpractice debate, because of limited time and resources the committee did not examine the effectiveness of state licensing boards and peer review activities or the complex issues raised by expert medical testimony. Similarly, the committee did not attempt to investigate the effectiveness of various alternatives to the tort system that have been implemented in other nations, such as New Zealand and Sweden. The committee believed that these nations have health care delivery systems and legal systems that are quite different from those of the United States, making useful comparisons difficult in the absence of sustained study. Finally, the committee did not formally study the practices or evaluate the role of the plaintiffs’ or defendants’ bar in the obstetrical malpractice crisis. This is an enormously complex topic and one that the committee believed was outside the scope of this report.
The committee’s overall conclusions from the data are that the traditional tort system is a slow and costly method of resolving obstetrical disputes and that it is contributing to the disruption of the delivery of obstetrical care in this nation. Moreover, the committee found that the threat of liability is having far-reaching and severe effects on access to and availability of obstetrical care, that the threat of liability is causing a variety of medically inadvisable procedures to be overused, and that both health care providers and patients have lost confidence in this method of resolving claims related to injuries occurring in the course of medical treatment.
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Studies to date suggest that, although the tort reforms implemented since the mid-1970s have slowed the increase in claims frequency and magnitude in some states, they have not had a dramatic effect on the costs, either direct or indirect, of the tort litigation system for resolving obstetrical malpractice claims. Federal Tort Claims Act Medical Malpractice Essay.It is the committee’s conclusion that, although some tort reforms already in place have merit, they do not appear likely to stem the exodus of obstetrical providers from the profession or to solve the attendant problems caused by the current professional liability climate. Accordingly, the committee makes additional recommendations.
Although a number of alternatives to the civil justice system for resolving medical malpractice claims have been advanced in the past decade, the committee found a limited data base with which to measure the costs of these alternatives, the claims frequency under these regimes, or their effectiveness and fairness in resolving claims in the context of the U.S. health care delivery system.
The Committee’s Recommendations
The committee has a modest number of recommendations to help lessen the recurrence of professional liability crises in the long run and to relieve some of the immediate problems stemming from professional liability concerns. The committee’s goal in making these recommendations is to increase access to high-quality, affordable obstetrical care for all women, regardless of their ability to pay, where they live, or where the care is delivered. In the committee’s view a doctor-patient relationship based on mutual trust is essential to high-quality medical care. It is difficult to formulate a series of precise recommendations in this regard, however, the committee urges individual providers, provider groups, patients, insurers, the legal profession, policymakers, and educators to join in supporting this objective. Federal Tort Claims Act Medical Malpractice Essay.
