Physicians, firearm counseling, and legal liability

To explore the potential legal consequences to physicians of counseling their patients about gun violence, I consider the question: If a patient divests herself of a firearm upon the advice of her physician and is subsequently the victim of a rape, robbery, aggravated assault, or homicide, could she or her survivors argue convincingly that her physician was negligent? In attempting to answer this question, the four elements that a patient must establish to prevail in a malpractice action against a physician are discussed, and possible strategies for establishing them in the hypothetical case are explored. I conclude that plausible arguments can be made against the hypothetical physician engaged in firearm counseling as described. Conversely, physicians not engaging in discussions of gun safety face substantially lower liability risks.     

Risk management and medical malpractice.

Medical malpractice claims are common and may be emotionally difficult for physicians. Most malpractice suits claim negligence. The most frequent types of claims include failure or delay in diagnosis, negligent treatment with drugs, failure to obtain consultation, failure to obtain informed consent, and negligent management of procedures. The most important risk-management strategy is the provision of good medical care. If a claim is filed, physicians should cooperate fully with the malpractice insurance carrier and refrain from discussing the case with colleagues.     

Physicians should be expert witnesses

Physicians have a responsibility to society, their peers, and patients to participate in malpractice litigation in a manner that ensures that medical malpractice cases are properly evaluated. Physicians are reluctant to involve themselves as expert witnesses in medical malpractice litigation because of not wanting to further any malpractice suits, mistrust of attorneys and misconceptions about expert witnesses and the legal system in general. The expert witness should be an impartial practicing physician who can select those suits that should or should not be filed and identify which parties were negligent in each case. If impartial physicians do not evaluate cases for attorneys, other more partisan and less objective physicians will.     

Tort reform: an issue for nurse practitioners

PURPOSE: To inform nurse practitioners (NPs) about the issues related to tort reform and its relationship to malpractice insurance costs. DATA SOURCES: Current journals, newspapers, professional newsletters, and Internet sites. CONCLUSIONS: NPs are paying more for their malpractice premiums, and many are losing their places of employment as clinics close due to the increased cost of premiums. One method proposed for curbing the flow of monies spent on premiums and litigation is tort law reform. California serves as an example; its Medical Injury Compensation Reform Act (MICRA) tort reform law was passed 25 years ago, and it has maintained stable malpractice premiums. Other states have proposed similar laws, but some have not had similar success. To curb litigation costs, not only should tort laws be reformed, but NPs and physicians should keep abreast of current practice standards in order to provide quality medical care. IMPLICATIONS FOR PRACTICE: Like physicians, NPs are affected directly by tort laws. These laws hold NPs accountable at the same level as physicians. In addition, many states limit NPs' practice to delegation of authority by a physician. Liability is therefore transferred from the NP to the physician and vice versa in cases of injury or wrongful act. In addition, many NPs are finding it increasingly difficult to locate insurers who will write policies for medical liability.     

Negligent care and malpractice claiming behavior in Utah and Colorado

BACKGROUND: Previous studies relating the incidence of negligent medical care to malpractice lawsuits in the United States may not be generalizable. These studies are based on data from 2 of the most populous states (California and New York), collected more than a decade ago, during volatile periods in the history of malpractice litigation. OBJECTIVES: The study objectives were (1) to calculate how frequently negligent and nonnegligent management of patients in Utah and Colorado in 1992 led to malpractice claims and (2) to understand the characteristics of victims of negligent care who do not or cannot obtain compensation for their injuries from the medical malpractice system. DESIGN: We linked medical malpractice claims data from Utah and Colorado with clinical data from a review of 14,700 medical records. We then analyzed characteristics of claimants and nonclaimants using evidence from their medical records about whether they had experienced a negligent adverse event. MEASURES: The study measures were negligent adverse events and medical malpractice claims. RESULTS: Eighteen patients from our study sample filed claims: 14 were made in the absence of discernible negligence and 10 were made in the absence of any adverse event. Of the patients who suffered negligent injury in our study sample, 97% did not sue. Compared with patients who did sue for negligence occurring in 1992, these nonclaimants were more likely to be Medicare recipients (odds ratio [OR], 3.5; 95% CI [CI], 1.3 to 9.6), Medicaid recipients (OR, 3.6; 95% CI, 1.4 to 9.0), > or =75 years of age (OR, 7.0; 95% CI, 1.7 to 29.6), and low income earners (OR, 1.9; 95% CI, 0.9 to 4.2) and to have suffered minor disability as a result of their injury (OR, 6.3; 95% CI, 2.7 to 14.9). CONCLUSIONS: The poor correlation between medical negligence and malpractice claims that was present in New York in 1984 is also present in Utah and Colorado in 1992. Paradoxically, the incidence of negligent adverse events exceeds the incidence of malpractice claims but when a physician is sued, there is a high probability that it will be for rendering nonnegligent care. The elderly and the poor are particularly likely to be among those who suffer negligence and do not sue, perhaps because their socioeconomic status inhibits opportunities to secure legal representation.     

Perceived Roles of Emergency Department Physicians Regarding Anticipatory Guidance on Firearm Safety

Background

Several professional medical societies advocate for firearm safety counseling with patients. Little is known about Emergency Physicians' practices and perceptions of firearm safety counseling.

Objective

To assess Emergency Physicians' beliefs regarding firearm control and their confidence in counseling patients on firearm safety.

Methods

A national random sample (n = 500) of the members of the American College of Emergency Physicians was sent a valid and reliable questionnaire on firearm safety counseling.

Results

Of the 278 (56.8%) responding physicians, those who were non-white and those who were not members of the National Rifle Association (NRA) perceived firearm violence to be more of a problem than white physicians and those who were members of the NRA. The majority did not believe that patients would view them as a good source of information on firearm safety (63.3%) or that patients would accept them providing anticipatory firearm safety guidance (56.5%). The majority of the Emergency Department physicians did not believe firearm safety counseling would impact firearm-related homicides (75.2%) or suicides (70%).

Conclusions

The vast majority of Emergency Physicians had never been formally trained regarding firearm safety counseling, did not believe patients would see them as credible sources, and did not believe that anticipatory guidance on firearm safety would have any impact. These data may help inform Emergency Medicine residency programs on the training needs of residents regarding anticipatory guidance on firearm safety.     

A description of emergency department-related malpractice claims in The Netherlands: closed claims study 1993-2001.

BACKGROUND: The aim of this study was to assess the quality of care provided at emergency departments (ED) in the Netherlands by analysing medical liability insurance claims. METHODS: A retrospective study performed by reviewing records at MediRisk, presently the largest insurer for medical liability in the Netherlands. The following data were abstracted from the files available for analysis: medical discipline involved, physician involved (resident or consultant), nature and gravity of the complaint, and final claim disposition. RESULTS: Between 1993 and 2001 a total of 326 claims involving the ED were filed at MediRisk. Of these, 256 claims (79%) were closed and were available for analysis. Medical liability claims were filed primarily for alleged errors in diagnosis and treatment. The majority of claims involved minor surgical conditions: fractures, luxations (joint dislocations), wounds and tendon injuries (210/256, 82%). Residents were involved in 76% of the claims; resident supervision by a consultant was documented in only 15% of the medical records. Permanent patient disability resulting from improper ED treatment was alleged in 22% of the claims. Four per cent of the claims involved the death of a patient. Physicians accepted liability in 16% of the claims filed. Indemnity payments during the 8-year study period totalled Euros 504,000. CONCLUSION: The number of medical liability claims is low compared with the number of patients treated in ED in the Netherlands. Claims primarily concerned alleged mistakes in diagnosis and the treatment of minor trauma. Residents were involved in the majority of the claims. More resident supervision is needed, as are specific training programmes for emergency physicians.     

Analysis of diagnostic error in paid malpractice claims with substandard care in a large healthcare system

OBJECTIVE: Although claims databases are not representative of all care delivery, their predisposition toward serious unintended injury can complement resource-intensive chart reviews and guide patient safety initiatives. MATERIALS AND METHODS: Non-Veterans Health Administration (VA) practitioners reviewed 1,949 VA malpractice claims paid during fiscal years 1998 through 2003. The portion associated with substandard care, the severity of harm, and types of negligence were identified. RESULTS: Negligent adverse events occurred in 37% (n = 723) of paid VA malpractice claims. These had high proportions of serious injury (55%) and morbidity (37%). Diagnostic negligent adverse events were most frequent (45%) and with 41% associated morbidity. The annual incidence of diagnosis-related paid VA malpractice claims was 1.95 per 100,000 patients and predicts that 122 of every 100,000 patients may have diagnostic negligent adverse events. Comparisons against non-VA data suggest this to be a healthcare industry problem. CONCLUSIONS: Diagnosis-related negligent adverse events are a serious problem in the healthcare industry.     

Malpractice and employment of allied health personnel.

Increased costs of malpractice insurance and physician fear of involvement in malpractice suits have been suggested as inhibiting greater employment and utilization of allied health personnel in physicians' offices, since physicians are liable for acts of negligence by their employees. However, data obtained from a survey conducted by the American Medical Association in 1971 suggest that malpractice insurance expenses vary within only a relatively narrow range with the number of allied health personnel employed by physicians. Thus, malpractice insurance expense per se is probably not a significant factor in influencing physicians' decisions to hire aides. On the other hand, nonpecuniary aspects of the malpractice situation may still be an important deterrent to greater employment of allied health personnel.     

The effects of payment method on clinical decision-making: physician responses to clinical scenarios

BACKGROUND: The influence of payment mechanisms on physician decisions is not well understood. OBJECTIVES: The objective of this study was to test 2 null hypotheses: 1) physicians' clinical decisions would not be influenced by payment incentives; and 2) physicians would have equal concern about medical decisions made under capitation or fee-for-service (FFS) arrangements. RESEARCH DESIGN: We conducted a physician survey in which patient insurance status (capitated or FFS) was randomly incorporated into 4 clinical scenarios using a Latin square design. SUBJECTS: We used a nationally representative random sample of family physicians in direct patient care. MEASURES: We used treatment decisions and physician "bother" scores (a measure of discomfort about decisions) in response to the clinical scenarios and adjusted for physician gender, age, board certification, income, practice location, practice mix, practice setting, geographic region, local area managed care penetration, and capitation or risk pool contracts in practice. RESULTS: Seventy-two percent of sampled physicians responded. Comparing decisions made under capitation to FFS, physicians were less likely to indicate they would perform discretionary care (relative risks [RR] range, .64-.82; P<0.001), but payment had no effect on selection of life-saving care (RR, 1.02, not significant). Physicians felt significantly more "bothered" when they made clinical decisions under capitated payment (P<0.001 in all scenarios), regardless of whether a treatment was discretionary or life-saving, and whether the decision was made for or against the treatment (P<0.001). CONCLUSIONS: Payment mechanism has significant effects on clinical decision-making. Reduction of resources spent for discretionary care might be achieved under capitated arrangements; however, physicians respond with greater levels of discomfort under capitation than FFS.     

Medical records--legal perspectives.

Good documentation of medical diagnosis and treatment is not only a medical necessity, it is a legal one. Whether the physician is innocent or guilty of malpractice quickly becomes a side issue when it is discovered that he has tampered with the evidence, thereby attempting to perpetrate a fraud upon the court. And discovered it will be--the techniques are sophisticated and the motivation is high. Medical records are also important in workman's compensation cases, insurance claims, personal injury cases, and even in physician disciplinary hearings as well as their collection of bills. In creating and maintaining patient records, physicians and hospitals have several legal duties, including the duty to do so adequately, to safeguard the records' physical existence, and to prevent such use of the records as would violate the patient's right to confidentiality. Courts and legislatures are looking with increasing favor on the patient's interest in the content of his record, a phenomenon which is closely linked to the nationwide trend in favor of the patient's right to know and his right to determine his own physical destiny. For all these reasons, medical records no longer serve exclusively as the physician's private aid; medical records are increasingly becoming legal documents as well.     

Physicians' attitudes toward complementary and alternative medicine and their knowledge of specific therapies: a survey at an academic medical center

The purpose of this study was to evaluate the attitudes of physicians at an academic medical center toward complementary and alternative medicine (CAM) therapies and the physicians' knowledge base regarding common CAM therapies. A link to a Web-based survey was e-mailed to 660 internists at Mayo Clinic in Rochester, MN, USA. Physicians were asked about their attitudes toward CAM in general and their knowledge regarding specific CAM therapies. The level of evidence a physician would require before incorporating such therapies into clinical care was also assessed. Of the 233 physicians responding to the survey, 76% had never referred a patient to a CAM practitioner. However, 44% stated that they would refer a patient if a CAM practitioner were available at their institution. Fifty-seven percent of physicians thought that incorporating CAM therapies would have a positive effect on patient satisfaction, and 48% believed that offering CAM would attract more patients. Most physicians agreed that some CAM therapies hold promise for the treatment of symptoms or diseases, but most of them were not comfortable in counseling their patients about most CAM treatments. Prospective, randomized controlled trials were considered the level of evidence required for most physicians to consider incorporating a CAM therapy into their practice. The results of this survey provide insight into the attitudes of physicians toward CAM at an academic medical center. This study highlights the need for educational interventions and the importance of providing physicians ready access to evidence-based information regarding CAM.     

Physician receptivity to nurse practitioners: a study of the correlates of the delegation of clinical responsibility.

A survey to measure physician receptivity to nurse practitioners was conducted in North Carolina in 1973. All North Carolina physicians were asked to rate a list of 35 clinical tasks of varying levels of difficulty and responsibility according to their willingness to delegate these tasks to nurse practitioners. Using eight items from this list that were good discriminants of physician attitudes towards delegating responsibility, task delegation scores were correlated with physician characteristics and their responses to questions about recruitment, training, reimbursement, and willingness to hire nurse practitioners. Thirty-four per cent of the respondents would hire a nurse practitioner, whereas 52% approved of the concept but would not hire one. Physicians who had previously worked with a nurse practitioner were more willing to hire one and had a higher task delegation score. Sixty-eight per cent of respondents would share their load with nurse practitioners in their offices, while 6% would have them work in satellite clinics away from the physicians' offices. Most physicians wanted their own nurse trained as a nurse practitioner in a program that combined a didactic course at a medical center with on-the-job training. The authors conclude that there is a potential demand for nurse practitioners in North Carolina and that the training program must prepare the nurse practitioners for the tasks physicians are willing to delegate to them.     

Poison Center Funding Who should Pay?

Abstract

To illustrate costs associated with poison center closure a survey of lay callers to the poison center and emergency department costs was conducted. For 21 days all callers to a Regional Poison Information Center receiving home treatment were asked the type of health insurance coverage the patient had. This information was documented on the medical record and tabulated. Health care costs were determined by surveying local hospitals. Of the callers, 1,276 (43%) provided insurance information: 928 (73%) of the patients were covered by private insurers; 258 (20%) received state medical assistance and 90 (7%) had no medical coverage. The average emergency department cost of an ingestion exposure was $210.75, ocular $172.22, and inhalation $298.03. In the absence of a Regional Poison Information Center responding to 61,000 calls annually, the state would incur a debt ranging from 1.27 to 2.20 million dollars if 60% of those covered under state assistance went to the emergency department. Private insurers would forfeit 4.58 to 7.93 million dollars per year. These cost estimates consider only the emergency department charges, not unnecessary admissions. State government and private insurers clearly are the financial beneficiaries of poison center services which save several times their operating costs.     

A preliminary study on the knowledge and attitudes of physicians at two university hospitals towards the medical insurance system of Japan

In this preliminary study, we surveyed the physicians at two academic hospitals on their knowledge of and attitudes toward the medical insurance system in Japan. Most of the physicians had not read the "Ministerial Ordinance on Insurance Medical Institutions' and Insurance Medical Doctors' Medical Treatment under Health Insurance." Of the 433 physicians who filled out the questionnaire completely, 34% had either not read or rarely read the "Medical Fee Point List." Most (89.1%) of the physicians knew that there is a stepwise reduction in the hospitalization fee as the length of a patient's hospital stay increases. However, approximately 30% did not know the stipulation of obtaining an informed consent from the patient prior to blood transfusion. As for the right of patients to see their medical care remuneration statements, which was decided by the government in 1997, 26.8% of the physicians did not know this rule. Physicians who had read the "Ministerial Ordinance on Medical Treatment," were more likely to read the "Medical Fee Point List" frequently; were more likely to know the stipulation about diminishing hospitalization fee; were more likely to know that an informed consent must be obtained prior to blood transfusion; and were more likely to know that patients had a right to see their medical care remuneration statements. The longer the clinical experience of the physician, the more likely that the physician had read the "Ministerial Ordinance on Medical Treatment" and know the other stipulations well. In these two academic hospitals, it is important to establish educational seminars for physicians on the guidelines of the medical insurance system so that physicians will become familiar with the medical insurance system quickly.     

Defenses to malpractice: what every emergency physician should know

Background

Emergency medicine is a high-risk specialty that carries a constant risk of malpractice litigation. Fear of malpractice litigation can lead to less-than-optimal patient care as well as impairments in physician quality of life. Although malpractice fear can be ubiquitous among emergency physicians, most receive little to no education on malpractice.

Discussion

Medical malpractice requires that 1) The physician had a duty, 2) The physician breached the duty, 3) There was harm to the patient, and 4) The harm was caused by the physician’s breach of duty. Even if all four medical malpractice conditions are met, there are still special legal defenses that have been and can be used in court to exonerate the physician. These defenses include assumption of the risk, Good Samaritan, contributory negligence, comparative fault, sudden emergency, respectable minority, two schools of thought, and clinical innovation.

Conclusions

These legal defenses are illustrated and explained using defining precedent cases as well as hypothetical examples that are directly applicable to emergency medical practice. Knowledge of these special legal defenses can help emergency physicians minimize their risk of litigation when caring for patients.     

Defensive medicine: It is time to finally slow down an epidemic

Defensive medicine is widespread and practiced the world over, with serious consequences for patients, doctors, and healthcare costs. Even students and residents are exposed to defensive medicine practices and taught to take malpractice liability into consideration when making clinical decisions. Defensive medicine is generally thought to stem from physicians’ perception that they can easily be sued by patients or their relatives who seek compensation for presumed medical errors. However, in our view the growth of defensive medicine should be seen in the context of larger changes in the conception of medicine that have taken place in the last few decades, undermining the patient–physician trust, which has traditionally been the main source of professional satisfaction for physicians. These changes include the following: time directly spent with patients has been overtaken by time devoted to electronic health records and desk work; family doctors have played a progressively less central role; clinical reasoning is being replaced by guidelines and algorithms; the public at large and a number of young physicians tend to believe that medicine is a perfect science rather than an imperfect art, as it continues to be; and modern societies do not tolerate the inevitable morbidity and mortality. To finally reduce the increasing defensive behavior of doctors around the world, the decriminalization of medical errors and the assurance that they can be dealt with in civil courts or by medical organizations in all countries could help but it would not suffice. Physicians and surgeons should be allowed to spend the time they need with their patients and should give clinical reasoning the importance it deserves. The institutions should support the doctors who have experienced adverse patient events, and the media should stop reporting with excessive evidence presumed medical errors and subject physicians to “public trials” before they are eventually judged in court.     

Malpractice occurrence in emergency medicine: does residency training make a difference?

We evaluated the effects of Emergency Medicine (EM) residency training, EM board certification, and physician experience on the occurrence of malpractice claims and indemnity payments. This was a retrospective review of closed malpractice claims from a single insurer. Outcome measures included the occurrence of claims resulting in indemnity, indemnity amounts, and defense costs. Differences in the outcome measures were compared based on: EM residency training, EM board certification, EM residency training versus other residency training, and physician experience using both univariate and multivariate analyses. There were 428 closed EM claims with indemnity paid in 81 (18.9%). Indemnity was paid in 22. 4% of closed claims against non-EM residency-trained physicians, and in only 13.3% against EM residency-trained physicians (p = 0.04). The total indemnity was $6,214,475. Non-EM trained physicians accounted for $4,440,951 (71.5%), EM residency-trained physicians accounted for $1,773,524 (28.5%). The average indemnity was $76,721 and the average defense cost was $17,775. There were no significant differences in the mean indemnity paid per closed claim or the mean cost to defend a closed claim when comparing EM-trained and non-EM residency-trained physicians. The total cost (indemnity + defense costs) per physician-year of malpractice coverage was $4,905 for non-EM residency-trained physicians and $2,212 for EM residency-trained physicians. EM residency-trained physicians account for significantly less malpractice indemnity than non-EM residency-trained physicians. This difference is not due to differences in the average indemnity but is due to significantly fewer closed claims against EM residency-trained physicians with indemnity paid. This results in a cost per physician-year of malpractice coverage for non-EM residency-trained physicians that is over twice that of EM residency-trained physicians.     

Firearm-related personal and clinical characteristics of US medical students

BACKGROUND: Firearm injuries are the second leading cause of fatal injury in the US, and several medical specialty societies encourage patient counseling about firearm injury prevention. Because personal choices. influence physicians' willingness to counsel, it would be valuable to know how frequently guns are kept in the homes of physicians-in-training, as well as their perceptions and current rates of counseling about firearm injury prevention. METHODS: At a nationally representative sample of 16 medical schools, we surveyed the class of 2003 at freshman orientation, entrance to wards, and during senior year. RESULTS: A total of 2,316 students provided data (response rate = 80.3%). Among freshmen, 16% reported living in a home with a firearm, 13% did so at entry to wards, as did 14% of seniors (14% overall, women = 9%, men = 19%). Only 34% of seniors reported counseling their patients more often than "never/rarely" about firearm possession and storage. CONCLUSIONS: US medical students reported substantially lower rates of household gun ownership than the general population, but their participation in firearm-related counseling is also low.     

Two words to improve physician-patient communication: what else?

The medical interview is the physician's initial and perhaps most important diagnostic procedure, but physicians vary in their abilities and skills in physician-patient communication. Information gathering, relationship building, and patient education are the 3 essential functions of the medical interview. A physician-centered interview using a biomedical model can impede disclosure of problems and concerns. A patient-centered approach can facilitate patient disclosure of problems and enhance physician-patient communication. This, in turn, can improve health outcomes, patient compliance, and patient satisfaction and may decrease malpractice claims. Physicians can improve their communication skills through continuing education and practice.