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PubMed1996

Carpal tunnel syndrome. Effects of litigation on utilization of health care and physician workload.

We performed a study consisting of two parts to investigate the impact of litigation on patient recovery and physician workload. We received 556 replies from a questionnaire sent to hand surgeons and discovered that 98.20% of them felt that litigation increased the subjective complaints of patients. Most of these physicians (89.75%) also felt that litigation led to a worse result from treatment. Second, we undertook a retrospective chart review of 447 patients to see if there was a correlation between litigation, patient utilization of health care and physician workload. We found that workers' compensation patients with pending litigation went to the doctor's office more. They also had more letters, phone calls, and forms associated with their care, had more nerve conduction studies performed, and took longer to be discharged from care than patients with non-work-related carpal tunnel syndrome as well as workers' compensation patients who did not have pending litigation. These results indicated that litigation does affect patient utilization of health care and increases the workload on the physician.

Adult↗

PubMed2002

The fake bad scale in atypical and severe closed head injury litigants.

The correlational and diagnostic properties of Lees-Haley's MMPI-2 Fake Bad Scale (FBS) were examined in litigating atypical minor, litigating moderate-severe, and non-litigating moderate-severe head injury samples. Overall, the FBS was sensitive to both litigation status and nonconforming versus conforming symptom courses. The FBS appeared superior to the MMPI-2 F and F-K scales in differentiating atypical from real brain-injury outcomes. High FBS scorers also had higher scores on somatic complaining (Hs, Hy) and to a lesser degree with psychotic complaints (F, Pa, Sc). FBS showed significant associations with various neuropsychological symptom validity measures. FBS appears to capture a hybrid of infrequent symptom reporting styles with an emphasis on unauthentic physical complaints. However, FBS also correlated with documented abnormal neurological signs within a litigating moderate-severe brain-injury group. Its use as a symptom infrequency measure may have to be modified in more severe injury litigants, as some FBS items may reflect true long-term outcome in severe cerebral dysfunction.

Adult↗

PubMed1998

The war against junk science: the use of expert panels in complex medical-legal scientific litigation.

In the legal context, junk science is defined as evidence that is outside of mainstream scientific or medical views. Junk science does not have indicia of reliability and is not generally accepted. Despite the lack of scientific reliability, US courts, expert witnesses and juries are increasingly reliant on junk science in making causation decisions in complex medical liability cases. Courts have accepted junk science even where reliable scientific evidence is available. The United States silicone gel breast implant litigation is a prime example of this phenomenon. The issue of whether silicone breast implants are associated with disease has been a controversial subject for scientists and physicians, an emotional issue for women who have breast implants, and a lucrative business for the lawyers and expert witnesses who are the proponents of junk science. Junk science has provided to juries a quick and convenient explanation for claimed diseases or syndromes which have required years for reliable scientists to conclude are not related to breast implants. The breast implant litigation highlights the often dramatic difference between decisions based upon junk science and decisions grounded in scientific method, fact and reality. Recently, judges involved in the breast implant litigation have become concerned about the use of junk science in light of the growing body of legitimate scientific evidence that breast implants do not cause disease. Several judges have been motivated to take the unique and novel approach of convening scientific panels of independent experts to study the scientific issues and make findings to the court. Through the use of independent scientific experts, several judges have meaningfully assessed the evidence that the litigants present and have prevented or strictly limited the use of junk science in the courtroom. Using this procedure, other judges are weighing the evidence for future cases. This paper will briefly explore the background of mass tort medical products litigation and the development of junk science. The paper will then focus on the history of the breast implant litigation and the steps that the courts have already taken to combat junk science, including the use of scientific panels.

Biocompatible Materials↗

PubMed1998

Use of the label "litigation neurosis" in patients with somatoform pain disorder.

The use of the term "litigation neurosis"--a condition with controversial clinical significance--might correspond to the expression for a difficult physician-patient relationship. The characteristics of patients with a DSM-III-R diagnosis of somatoform pain disorder who had been labeled "litigation neurosis" by their physicians were explored. Among 74 patients referred to a pain clinic, 30% had been labeled litigation neurosis, and among 81 patients referred while claiming disability benefits, 19% had been thus categorized. The attribution of this label was neither correlated to actually being involved in a claim for disability benefits nor to involvement in legal action. Patients who had been designated with litigation neurosis were characterized by a lower educational level, a higher rate of DSM-III-R major depression, and a much higher frequency of personality disorders than patients who were not thus labeled. We postulate that the communication style of patients with this constellation of characteristics, in particular the presence of psychiatric comorbidity, may have engendered a difficult doctor-patient relationship, leading physicians to use the label in the absence of objective evidence of litigation or involvement in legal action. We agree that the inappropriate use of labels such as "litigation neurosis" should be questioned.

Adult↗

PubMed2002

The significance of time factors in cerebral palsy litigation.

OBJECTIVE: to demonstrate the significance of the lengths of time taken to initiate and conclude litigation concerning cerebral palsy. DESIGN: documentary analysis of 142 closed legal files (92 Scottish; 50 English) relating to births from 1980-1996. Claim outcome, and the dates of birth, legal notification and conclusion of the claim, were analysed using Microsoft Excel. SETTING: health service legal offices in Scotland and England. FINDINGS: successful claims were raised more quickly (on average two years compared with 3.6 years for unsuccessful claims). They also took longer to be decided (six years compared with three years). On average the children of successful and unsuccessful litigants were, respectively, 7.8 and 6.6 years old by the time the claim was decided. Over the period studied there was a steady reduction in the length of time taken to initiate litigation, although successful claims were on average raised more quickly. Overall success rate was 27%. CONCLUSIONS/IMPLICATIONS FOR PRACTICE: most cerebral palsy claims do not satisfy the requirements of the law of medical negligence. Lengthy periods of time are involved irrespective of outcome: while successful litigants continue to sue more quickly, their claims take longer to be resolved. The extensive period from birth to closure of claim, and uncertainty over the legal outcome, may cause significant distress for practitioners and parents of children with cerebral palsy. Knowledge of the likely duration of the legal process can help practitioners and the families involved to come to terms with this important feature of litigation. Health service claims managers may also be helped in terms of understanding the more likely duration (and therefore cost implications) of cerebral palsy claims. For successful litigants there are questions about the justice of having to wait, on average, nearly eight years for compensation.

Cerebral Palsy↗

PubMed1997

Memory performance after head injury: contributions of malingering, litigation status, psychological factors, and medication use.

Impaired memory test performance can reflect a host of factors, such as head injury/postconcussive syndrome, involvement in litigation, malingering behavior, psychological distress, and medication use. Such factors are important in interpreting memory test performances in patients referred in the context of litigation. We examined memory test performance in mild head-injured patients in litigation, mild to moderate head-injured patients not in litigation, severely head-injured patients not in litigation, depressed patients, and patients with somatization disorders. Findings showed that several memory tests were useful in distinguishing probable malingerers from the other groups. There was a complex interaction among malingering status, psychological status, and medication use in the prediction of memory test results. Although nonneurological factors were related to memory impairment, litigation status alone was not predictive of memory performance. The results emphasize the need to consider nonneurological factors in the interpretation of poor memory performance in patients seen for forensic evaluation.

Adult↗

PubMed2005

Disability and litigation from urinary tract injuries at benign gynecologic surgery in Canada.

OBJECTIVES: To estimate the prevalence of urinary tract injury and the relative risk of litigation from an injury for benign gynecologic surgery in Canada and to analyze a subset of cases of litigation, determining independent risk factors that predicted medical and legal outcomes. METHODS: The prevalence of urinary tract injury and the relative risks of litigation from an injury were determined from the national hospital discharge abstract and the national physician malpractice databases. Multiple logistic regression was performed on a subset of litigation cases. RESULTS: The prevalence of urinary tract injury at benign gynecologic surgery was low (0.33%). If a patient sustained a urinary tract injury, there was a high relative risk of litigation (relative risk 91, 95% confidence interval [CI] 55-158). Patients had a higher chance of major disability after urinary tract injury from hysterectomy for abnormal uterine bleeding (odds ratio [OR] 6.16, 95% CI 1.13-39.01, P = .04), but a lower chance of this being a permanent disability (OR 0.23, 95% CI 0.05-0.96, P = .05). Permanent disability was more likely after an obstructed ureter compared with other types of urinary tract injuries (OR 4.54, 95% CI 1.55-14.88, P = .008). Only 18% of the injuries were recognized intraoperatively. An acute bladder injury was more likely to be recognized intraoperatively than other types of injury (OR 14.98, 95% CI 3.89-57.74, P < .001). No obstructed ureters or urinary tract fistulae were recognized intraoperatively. CONCLUSION: Urinary tract injuries are an uncommon but significant complication from benign gynecologic surgery. Such injuries are associated a high relative risk of litigation.

Adnexa Uteri↗

PubMed2004

The impact of litigation on nursing home quality.

Government reports indicate that regulations have been ineffective in improving quality of care in many nursing homes. Some analysts feel that litigation against nursing homes may be the result of quality problems that are monitored during the inspection process, some contend litigation merely causes quality problems by diverting financial resources away from patient care, and some argue that litigation is duplicating the efforts of the inspection process. Given that the relationship between litigation and inspection-oriented measures of quality is not clear, this article explores the relationship empirically. When a significant relationship is found, the empirical results suggest that litigation is associated with a decline in inspection-oriented measured quality in the nursing home facing the legal claim. In contrast, litigation against a chain has a very different relationship to firm-level quality, where firms within a chain that is being sued have higher levels of inspection-oriented quality. Our results suggest that legal claims may result from quality problems that go unmeasured during the inspection process. However, more research in this area is warranted.

Aged↗

PubMed2002

New perspectives on litigation and the public's health.

This article provides redacted versions of three presentations by distinguished individuals with long experience in litigation or regulation to protect the public's health. A central theme is the need to develop partnerships to promote protection efforts. Jan Schlichtmann is internationally recognized for his representation of eight Massachusetts families engaged in legal action against two major companies, W. R. Grace and Beatrice Foods, in a fight to obtain justice in a groundbreaking case that has been the subject of many press and journal reports along with a nationally best-selling book and motion picture titled A Civil Action. His inspiring story of a long and difficult struggle to uncover the truth about contaminants in drinking water caused by buried wastes and to bring public health authorities and others together in a partnership to address the problem is a model of the use of litigation tools to protect the public's health. Diana Bontá, Director of the California Department of Health Services, discusses the efforts of her department to ensure the integrity of the Medi-Cal program that her department administers and the proper uses of litigation, including decisions to avoid litigation, for the purpose of protecting the public's health. She focuses on regulatory and legal efforts to protect her state's citizens and their environment, with an emphasis on the use of common sense in making decisions about whether to litigate and on partnering with advisory groups and members of the public as a means of aiding her department's accomplishment of its mission. Finally, Sandy Praeger, a state senator from Kansas, discusses efforts to use the law and regulation for the purpose of protecting the Kansas River. She stresses the importance of using sound judgment, backed by assessment of the legislative and physical environments, to make the right decisions regarding the use of the law for public health protection. She also points out that sometimes one can use the legislative process as an alternative to litigation to get a message out and force a correct decision.

California↗

PubMed1996

Temporomandibular disorders, headaches, and neck pain following motor vehicle accidents and the effect of litigation: review of the literature.

A literature review concerning the relationships between motor vehicle accidents and temporomandibular disorders, whiplash, headache, neck pain, and litigation was undertaken. The review shows that many patients recover or resume work prior to settlement, but most unsuccessfully treated patients do not generally recover following the settlement of legal claims; the postinjury problems are not strictly psychologic. Litigating patients and nonlitigating patients are often not dramatically different in most important regards (including pain and return to work), with litigating patients deserving the same treatment as other patients with chronic pain. It was found that postinjury neck symptoms and headaches can be persistent. Employment appears to be a better predictor of long-term outcome than compensation and litigation. In addition, limited consensus is available concerning prognostic factors. Patients with postinjury temporomandibular disorders tend to respond less well to treatment than do noninjury patients with temporomandibular disorders, as do litigating compared to nonlitigating temporomandibular disorders patients, but a cause and effect relationship is not known. The incidence of temporomandibular disorders following motor vehicle accidents may not be as high as has been claimed in whiplash cases. More research is required in the area of temporomandibular disorders, motor vehicle accidents, and litigation.

Accidents, Traffic↗

PubMed2006

Risk management observations from litigation involving laparoscopic cholecystectomy.

HYPOTHESIS: Limited information exists on the outcome of laparoscopic cholecystectomy (LC) litigation. DESIGN: A retrospective review of a public malpractice database was compared with previously published reviews of LC litigation by K. A. Kern, MD, and the Physician Insurers Association of America. SETTING: Private surgery practice. Selection The database was searched for cases containing the terms laparoscopy, bile, or gall between August 1, 1999, and August 31, 2004. Identified cases were further reviewed to select only the unique cases that concerned elective biliary surgery. MAIN OUTCOME MEASURES: Surgical technique, injuries, and incidence of conversion to open procedures. RESULTS: In Kern's study, injuries triggering litigation involved the bile duct in 61%, bowel in 16%, vascular system in 9%, and miscellaneous events in 14%; in the present study, injuries involved the bile duct in 78%, bowel in 2%, vascular injury in 7%, and miscellaneous injuries in 13%. Missed injuries occurred in 86% in the present study and 83% of the Physician Insurers Association of America cases. Although 15% of cases in the present study were converted to open procedures, in 53% of these cases conversion was performed to repair an injury. CONCLUSIONS: Despite residency training, injuries triggering litigation after LC remain largely unchanged. The nature of the bile duct injuries suggests that routine intraoperative cholangiography is unlikely to make LC safer. To minimize the risk of litigation after LC, it is recommended that the threshold for conversion to open procedures be lowered.

Bile Duct Diseases↗

PubMed2000

American medical malpractice litigation in historical perspective.

Medical malpractice and the problems associated with it remain an important issue in the US medical community. Yet relatively little information regarding the long-term history of malpractice litigation can be found in the literature. This article addresses 2 questions: (1) when and why did medical malpractice litigation originate in the United States and (2) what historical factors best explain its subsequent perpetuation and growth? Medical malpractice litigation appeared in the United States around 1840 for reasons specific to that period. Those reasons are discussed in the context of marketplace professionalism, an environment that provided few quality controls over medical practitioners. Medical malpractice litigation has since been sustained for a century and a half by an interacting combination of 6 principal factors. Three of these factors are medical: the innovative pressures on American medicine, the spread of uniform standards, and the advent of medical malpractice liability insurance. Three are legal factors: contingent fees, citizen juries, and the nature of tort pleading in the United States. Knowledge of these historical factors may prove useful to those seeking to reform the current medical malpractice litigation system.

History, 19th Century↗

PubMed2003

Standard of care and liability in medical malpractice litigation in Japan.

Although the incidence of medical malpractice litigation is increasing in Japan, it remains unclear whether medical malpractice litigation gives doctors and hospitals, an economic incentive to provide high-quality medical care by requiring that they compensate patients for harm caused by negligence. Therefore, to evaluate whether the medical malpractice litigation system contributes to the delivery of high-quality medical care, we first analyzed the decisions made in medical malpractice cases between 1986 and 1998 in ten district courts (n=421). We found the following results: (1) the probability that patients received compensation and the amount of compensation received, increased with the level of negligence, for all injury severity levels; (2) the significant predictors that a case would be decided in favor of the patient were the patient's legal basis (P=0.00) and the severity of injury (P=0.02). Although, it seems that Japanese medical malpractice litigation gives doctors an economic incentive to avoid delivering substandard medical care, since both the severity of injury and negligence were significant predictors, medical litigation in Japan might in fact corrupt the compensation process by creating an adversarial atmosphere.

Compensation and Redress↗

PubMed1998

Effects of litigation settlements on posttraumatic stress symptoms in motor vehicle accident victims.

In order to investigate the effects of the initiation of litigation and its settlement on victims of motor vehicle accidents (MVAs), we followed up 132 MVA victims from an initial assessment 1 to 4 months post-MVA for 1 year. Of the 67 who had initiated litigation, 18 (27%) settled within the 12 months, while 49 still had litigation pending; 65 never initiated litigation. Those who initiated litigation had more severe injuries and higher initial levels of posttraumatic stress (PTS) symptoms. All three groups improved in major role function and had reduced PTS symptoms over the 1 year follow-up. Those whose suits were still pending, as well as those whose suits had been settled, showed no reduction in measures of anxiety or depression, whereas the nonlitigants did show improvement on these measures.

Accidents, Traffic↗

PubMed1995

Malpractice litigation fear and risk management beliefs among teaching hospital physicians.

We address four major issues related to physicians' fear of litigation: What are physicians' attitudes and beliefs toward malpractice? To whom or what do they attribute the "malpractice crisis"? Is fear of litigation associated with demographic and practice variables? What measures do physicians take to reduce risk? Hospital physicians in a southeastern health science center were surveyed (N = 356). Physicians attributed the malpractice crisis to circumstances outside medicine and beyond their control, perceived some patients as suitprone, and reported altering their practice to avoid being sued. Litigation fear was associated with physicians who were female, younger, not board certified, less clinically experienced, more clinically active, defendants in prior lawsuits, and in high-risk specialties. Physicians who were especially fearful of litigation placed less value in risk-management techniques. The findings are important in understanding how the prospect of litigation is perceived by physicians and how that perception may affect medical practice.

Adult↗

PubMed1998

The misplace of litigation in medical practice.

Medical decision-making is based upon mathematical probability in determining the significance of variables involved. Truth is often not absolute and medical decisions often require reconsideration of information, reanalysis and possible change. Litigation based upon error negates the ordinary practice of medicine. Error is intrinsic to all human behaviour and contributed to by uncertainty concerning precision in diagnosis and treatment of some diseases, mood change affecting ability to process cognitive and analytic function, and adverse work environment. Error is an important process in learning and providing it is recognized and fully admitted is a creative process providing opportunity for improving medical practice. Litigation is based on proof of negligence. Negligence is defined as carelessness, which is a rare cause of human and medical errors. The law confuses error with negligence; error should not be the basis for litigation. Litigation based on error is counter-productive to the best practice and improvement of clinical medicine. The assessment of errors and negligence is limited by the method of choice of medical experts, the adversarial system often ignoring the intermediate position in favour of a yes-no answer, the selection of experts to favour the desired result rather than the real situation, the method of questioning of witnesses which discourages explanation and creative solution of disagreement, and the hierarchical system which does not allow exploration of the issues and creative solutions. The basis for financial compensation for ill health is relevant when this assists the sufferer to cope with the ill health. The ethical basis for compensation when ill health results from error by health care workers is not more valid than ill health resulting from biological or environmental factors. Human error is common normal behaviour, while biological and environmental causes of ill health are common errors of human biology and the environment. Unintentional human error should not be the basis of financial remuneration or punishment. This latter principle has been applied to all services between the customer and service supplier, which may lead to unnecessary mistrust, anxiety and alienation in modern society. Incapacity from injury or disablement is covered by damages payment in only a small percentage of permanent disability cases (1.5% in the U.K.). Universal insurance by government or private agencies e.g. as in motor accident insurance to include the 98% of the permanently disabled who are receiving no payment at present would be both preferable and fairer. The protection of barristers from litigation for negligence in court is based upon arguments that could apply to most other occupations, and are equally, if not more relevant to medicine. The legal system of settling claims for negligence by doctors needs to be replaced by an investigative system which seeks to explain the basis and cause of error, which would benefit the patient and the doctor, and improve medical practice. A creative process needs to replace a judgmental, rigid and punitive system. A committee involving specialist groups in selecting expert witnesses, a health counsellor and a patient representative may be most suitable. Criminal acts, where error is performed deliberately, assault or sexual misdemeanors, would still be subject to the common law.

Australia↗

PubMed1996

An audit of litigation costs in four accident and emergency departments.

OBJECTIVE: To carry out an audit of cases of litigation relating to accident and emergency departments to determine the outcome and costs to the hospitals involved. METHODS: The experience of four similar hospitals was examined over a three year period. All cases which required at least an exchange of solicitors' letters were included. RESULTS: In total 32 claims were made, of which 17 were settled by solicitors' letters, six cases proceeded to court and were lost by the hospital involved, and in nine cases an out-of-court settlement was reached. The costs to the hospitals ranged from 180 pounds to 30,000 pounds, with an average cost of 4080 pounds. Over the course of the audit the number of cases of litigation remained constant at three per year, while the number of complaints rose threefold to 150. The majority of successful claims concerned missed fractures. CONCLUSIONS: Litigation is uncommon and litigation costs reasonable. Given the frequency of missed fractures as a reason for a successful claim, early x ray reporting probably reduces the risk of litigation.

Costs and Cost Analysis↗

PubMed1994

Psychological profiles distinguishing litigating and nonlitigating pain patients: subtle, and not so subtle.

Chronic pain patients in the midst of litigation over settlement for their injuries were examined as a naturally occurring group where one might expect various distortions or differences in test findings on the Minnesota Multiphasic Personality Inventory-Revised (MMPI-2). Similar groups of 43 chronic pain patients in litigation and 45 not in litigation were examined on 10 key MMPI-2 variables selected a priori. Multivariate analysis of variance revealed a significant difference between groups (p = .036). Litigators were most distinct in endorsing more obvious and fewer subtle symptoms. A conversion profile was also more salient for litigators once the obvious versus subtle differences were taken into account. Implications for use of the MMPI-2 and for clinical work with litigious patients are examined.

Adolescent↗