Why Wisconsin Has the Least Medical Malpractice Claims in the United States

According to the National Practitioner Data Bank, only 6 out of every one million Wisconsin residents received a medical malpractice claim – the national rate is 27 out of every one million.  In 2014, Wisconsin physicians paid the least per capita in medical malpractice claims.  There were only 37 successful claims in Wisconsin in 2014. 

Wisconsin has accomplished this by taking several steps, some would argue overly drastic steps, to reduce its medical malpractice claims.  The state has enacted a $750,000 noneconomic damages cap.  Wisconsin has also included extensive expert witness testimony requirements in medical malpractice cases to establish the standard of care.  And finally, any claims greater than $1 million in total damages (both economic and noneconomic) are paid from the state’s Injured Patients and Families Compensation Fund, which has a budget of $1.2 billion.

The success in Wisconsin has caused other states to take similar steps.  Nationally, successful medical malpractice claims have decreased within the last 25 years.  In 1992, 56 out of every 1 million Americans received a medical malpractice claim.  By 2004, that number had dropped to 49 out of every 1 million, and by 2014, that number dropped to 27 out of every 1 million.

While these numbers are a relief to the health care industry and insurance providers, they are not entirely beneficial to patients with claims which do not have damages high enough to attract a qualified lawyer.  Often times, if the damages are not high enough, injured patients can have a difficult time finding a lawyer who will take their case. 

This national trend has the potential to significantly impact on both the medical and legal professions.  Contact us today for all your medical legal needs.

The Changing Views on Customary Practice vs. Evidence Based Medicine in the Courts

In the courts, customary practice often is used as the standard for testimony. Nevertheless legal experts are beginning to see a shift in the balance toward evidence based medicine. Evidence based medicine uses evidence from medical research to optimize decision making.

The courts traditionally have focused on doctors' customary practice, however that is inherently subjective. Customary practice uses what "most doctors in the local geographic area or specialty usually do".

Customary practice can be very subjective and variable. For instance, forensic experts use their anecdotal and personal experience as a basis for their testimony on causation. These experience-based opinions are more subjective and are the reason experts often hold differing views on causation in a given case.

Evidence based medicine, on the other hand, uses objective analysis rather than subjective interpretation. Evidence based medicine implements the extensive utilization of the best current medical evidence, in making treatment decisions for patients. This entails using the most clinically applicable research and diagnostic testing.

One challenge of evidence based medicine is deciding what kind of evidence is admissible in court. One Supreme Court case, Daubert v. Merrell Dow, determined a trial judge as the one who pre-screens scientific evidence and decides which evidence to admit that will inform the jury. Such decisions could be beyond the skill and training of judges. In addition, clinical practice guidelines may not be available or may not be uniform.

The courts are more likely to embrace these standards if evidence based medicine is used by doctors in their own practices. And court acknowledgement of evidence based medicine and scientific standards will make physicians much more likely to embrace such standards to lessen their liability risk.

To find out more on the subject of evidence-based medicine, contact us!

The Case of a Doctor Giving the Correct Medical Advice and Still Getting Sued

Medscape recently had an article on a case affecting a Connecticut physician that was practicing the standard of care, but still got sued.

The case involved woman who had a strong family history of breast cancer. In 2005, the woman had an elective partial hysterectomy for uterine fibroids, which is benign. Whether or not to remove the ovaries too, during the hysterectomy was also considered. The benefit to removing the ovaries is eliminating the risk for ovarian cancer. The negative effects of removal are, if the woman is pre-menopausal, removing the ovaries will mean she will be menopausal post surgery and assume the risks of that condition.

During the pre-operative consult, the physician did note the patient's family history of breast cancer, which suggests a higher risk of ovarian cancer as well. However, the physician did not order a pre-operative genetic evaluation searching for the BRCA gene. This gene, if present, would indicate the patient had a much higher chance of growing ovarian or breast cancer later on.

The hysterectomy was a success, and the ovaries weren't removed. Yet, one year later, the patient was diagnosed with late stage, terminal ovarian cancer that had metastasized to the abdomen. The patient sued the doctor for medical malpractice.

As it turned out, the BRCA gene was negative when the patient was ultimately tested. If the test had been done pre-operatively, most physicians would have proposed that the ovaries not be removed. This fact was not admitted in court. The patient simply alleged that given her family history, the ovaries should have been removed, regardless of the fact that it was not accepted medical practice.

The jury found in favor of the plaintiff and awarded her $4 million dollars. The physician lost on lost on appeal to the Connecticut Supreme Court.  His malpractice insurance only covered $1 million dollars so the doctor's financial assets were attached to cover the judgment.

To learn more, contact us!

Medical Malpractice or Bad Service?

We have all had a bad experience in the doctor's office whether it's the forgotten prescription a rude secretary, or the harried appointment. Now, medicine appears to be increasingly impersonal and unfriendly, but what actually makes up malpractice?

Standard of Care
If the care received significantly differs from the standard of care which other providers in exactly the same specialty or scenario would offer then it may be malpractice. For this reason, medical malpractice cases require testimony from an expert witness who is able to define that standard of care.

Damages
We have a tendency to believe that lawsuits automatically create hundreds of thousands of dollars in awards. Nonetheless, a lawsuit is supposed to cover damages that have been incurred. If there were no damages from the medical malpractice, then there's little motive to file a lawsuit. Even if the physician's behavior is upsetting or unprofessional, unless there were damages incurred, there is no reason to sue. For example, if a doctor prescribes a medication that you think you're allergic to, but you endure no allergic reaction, there is no reason to sue.

Near Miss or Medical Malpractice
Medicine is not a cut and dry science of absolutes, it is also an art. One must demonstrate that malpractice occurred, not that it nearly occurred, for it to be malpractice. For instance, if your doctor prescribes the wrong medication but corrects it before you take the drug, then you are not the victim of malpractice.

Bad Service Can Become Malpractice
When lousy customer service endangers your well-being it might be considered malpractice.  A rude receptionist or a long wait time is only malpractice if it endangers your health. An ER physician that dismisses your symptoms of internal bleeding or fails to correctly diagnose or treat anaphylactic shock has probably committed malpractice. In addition, if a doctor fails to get informed consent that may also lead to a lawsuit.

Many other types of recourse exist if you have a bad experience with a health care professional. Word of mouth, complaint letters, and online reviews are very strong remedies. Ensure your criticisms are exact or else you could end up at the wrong end of a defamation lawsuit.

Contact us today with all your medical legal needs!

Standard of Care is no Protection Against Malpractice Lawsuits

The medical standard of care is broadly accepted as determined by printed, evidence-based and expert-opinion established clinical practice guidelines. The issue is there are thousands of published guidelines, some narrowly defined for specific diseases, while others are much more extensive in range. Examples include the "Choosing Wisely" initiative made to reduce unnecessary tests and worthless treatments; others including quality indicators issued by the CMS, are meant to guide practices to better outcomes by regulating insurance payments.

The definition of medical malpractice is "professional negligence by act or omission by a doctor in which the treatment provided drops below the recognized standard of practice..". Many doctors believe that if their treatment options are supported by this "standard of care", that they're protected against malpractice lawsuits. After all, if a doctor is following the latest clinical practice guidelines, how can he/she fall below the standard of practice?

Guidelines in many cases are written for text-book examples, so, without completely assessing a patient, if this guideline is followed by a doctor, they may be guilty of negligence. A guideline normally can't be admitted as evidence in a malpractice lawsuit unless expert witnesses agree that it applies to a specific case.

Before offering guidelines as evidence in a litigation, intent and correctness of individual guidelines have to be considered. Some guidelines are meant to guide insurance payments, not patient care - like the CMS's "never events". Others are based on opinion or consensus instead of real clinical evidence. Some are obsolete before they are even printed because of rapid progress in the medical field. Still others might be tainted by manufacturing company or pharmaceutical interests.

The wisest course of action seems to be for doctors to treat guidelines as general outlines of care likely to change rather than fail safe statements of the standard of care.

We operate at the intersection of medicine and the law.  If you have any questions regarding our services, do not hesitate to contact us.