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PubMed2004

Avoid costly litigation: ten steps to implementing lawful hiring practices.

A malpractice claim or suit can have a devastating effect on a physician's practice and personal life. What is often overlooked is that an employment-related suit or EEOC charge also can extract a heavy toll, personally, professionally, and financially. The number of employment-related suits and claims has risen dramatically in the last few years. According to recent enforcement and litigation statistics released by the U.S. Equal Employment Opportunity Commission (EEOC) (1), the total discrimination charges filed by individuals against their employers increased last year to 80,840--the highest level since the mid-1990's. According to the EEOC data, in 2001, employers paid $248 million in connection with charges of discrimination filed with the EEOC by job applicants, employees, and former employees. Employers paid an additional $47 million to the EEOC in connection with lawsuits filed against employers by the EEOC (2). This does not include the millions of dollars employers were forced to pay in settlements, judgments, costs, and attorney's fees incurred in connection with employment-related lawsuits filed in state and federal courts during the same period of time. Employment-related litigation is on the rise, and the healthcare industry is not immune. Physicians as employers can be a target for a wide range of employment-related claims and suits, such as breach of contract, invasion of privacy, sex, race, age, religious and age discrimination, and negligent hiring, just to name a few. The number of jury verdicts rendered against employers is increasing and the verdict awards are often staggering. In addition, defending these suits can be as expensive as defending a complicated malpractice suit. Even worse, employment discrimination suits and charges are generally not covered by malpractice, D & O, or general liability insurance policies, leaving the physician to cope with the financial burden of judgments, settlements, attorney's fees and litigation costs. Most employment-related disputes that lead to costly litigation would never have arisen if the employer had implemented more effective employment practices. Hiring mistakes in particular cause many costly legal battles. This article identifies legal issues that precipitate litigation and suggests ten steps physicians can take to implement lawful hiring practices that will reduce the risk of costly employment suits while improving office efficiency, morale, and productivity. NOTE: This article is intended as an overview of lawful hiring strategies, and is not a substitute for legal advice from experienced employment counsel. Applicable laws vary from state to state and appropriate procedures may depend on specific factual situations. This article is not, and should not be construed as, legal advice.

Journal Article↗

PubMed1982

Countersuit litigation.

Countersuit litigation brings into sharp focus some difficult and conflicting concepts in law and social policy. A point that seems reasonably self-evident is that the existence of a viable countersuit remedy in most states has not produced the huge volume of litigation that might create a "chilling effect" upon access to the courts, and it is not likely to do so in the future. If our system is actually committed to the idea that all disputes can be submitted to the courts for resolution, it is difficult to conclude that a remedy should not be available to an individual who has been subjected to the very real cost and hardship of defending a frivolous lawsuit. The use of the legal system to provide redress for injuries should be a two-way street. The fact that a remedy should exist, however, does not necessarily mean that is should be encouraged. Most serious-minded people understand that certain types of inconvenience are a necessary part of life in a civilized society. Nevertheless, if litigation is increasingly becoming a mechanism for profit or an instrument to remedy the most minor grievance, some response is mandatory. While litigation is a serious matter and should not be undertaken lightly, it is impossible to overlook the fact that there is a certain percentage of cases that are filed to exploit the system at the expense of innocent defendants. If litigation serves a dual purpose of providing compensation to injured parties and setting appropriate standards for future conduct, it is hard to find a rational basis for denying a countersuit remedy to those who have been victimized in this manner.

Jurisprudence↗

PubMed1988

Collective judicial management of mass toxic tort controversies: lessons and issues from the Agent Orange litigation.

Viewing the Agent Orange litigation as a case study, this article explores the feasibility and desirability of strengthening the powers of the courts to manage toxic tort controversies en masse. The Agent Orange lawsuit, brought on behalf of potentially millions of Vietnam War veterans and family members, charged that herbicides used for military purposes during the war caused a wide range of health problems. This article first reviews the current national debate over how mass toxic tort controversies should be handled, including key legislative reform options, and describes how attention is increasingly focused on ways that the court system might better cope with mass toxic torts. The principal events of the Agent Orange litigation are then summarized, by which the litigation was consolidated into a massive class action, the class action was settled, and a streamlined plan for distributing the settlement fund was adopted. The article evaluates the outcome of the litigation, and discusses whether the solution there can and should be broadly applied to other mass toxic tort cases. This question depends, in part, on a series of complex legal and practical issues, but the author suggests that the question will also depend on what institutional role we expect the judiciary to play within society.

2,4,5-Trichlorophenoxyacetic Acid↗

PubMed1985

Unraveling the effects of compensation, litigation, and employment on treatment response in chronic pain.

Although it has often been suggested that chronic pain patients who are receiving workmen's compensation or who have litigation pending are less likely to benefit from treatment, the results of outcome studies of this question conducted by various pain clinics have been inconsistent. We hypothesized that poorer outcome in such patients may be related to the fact that they are less likely to be working and that the inconsistent results in the literature may therefore be explained by variability among studies in the percentages of patients who are receiving compensation (or who have litigation pending) who are also working. We examined the relationships among compensation, litigation, employment, and short- and long-term treatment response in a series of 454 chronic pain patients. Compensation benefits and employment status both predicted poorer short-term outcome in univariate analyses; however, when employment and compensation were jointly used to predict outcome in multiple regression analyses, only employment was significant. In additional analyses, only employment significantly predicted long-term outcome, whereas compensation and litigation did not. Our results suggest that it would be valuable to redirect attention away from the deleterious effects of the 'compensation neurosis' and toward the roles of activity and employment in the treatment and rehabilitation of chronic pain patients.

Adult↗

PubMed2005

Extra help required by litigants after simple fractures--a questionnaire based study.

A questionnaire based interview of 100 patients under fracture clinic review was undertaken to assess the help required with the activities of daily living (ADL) in the first 2 weeks following fractures of the hand, wrist, neck of humerus, foot or ankle. The amount of help patients required was correlated with whether or not the patients were claiming compensation for their injuries. Twenty-five percent were litigating and this was shown to influence the amount of help a patient reported having received with dressing, shopping, cooking, housework, personal hygiene and travelling (p<0.0001) and feeding (p<0.0022), but not with getting in/out of bed (p=0.52). Complications of the fracture were not shown to increase litigation. On average litigants required over 3 h extra help per day compared with non-litigants (6.4 h versus 2.75 h).

Activities of Daily Living↗

PubMed2005

Litigation and the value of tobacco companies.

This study determines how the recent wave of litigation affected returns and systematic risk in the tobacco industry. We test for changes in stock prices coinciding with litigation announcements using a difference-in-difference event study methodology. Unfavorable information concerning litigation reduced tobacco returns. We find a decline in systematic risk as traditionally measured by the covariance between industry returns and returns to a diversified (efficient) portfolio. This decline may imply a substantial decline in the cost of equity capital of at least 2.2% after the period of litigation, which we attribute to common cost shocks experienced by the companies participating in the Master Settlement Agreement combined with the oligopolistic structure of the industry.

Risk Assessment↗

PubMed2006

The interpretation of occupational epidemiologic data in regulation and litigation: studies of auto mechanics and petroleum workers.

Epidemiologic data often serve as scientific basis for policies in regulation and opinions in litigation. The interpretation of epidemiologic data in both regulation and litigation is often challenged and debated. In this commentary, a wide range of issues concerning the interpretation of epidemiologic data in regulation and litigation are discussed. These issues include: case reports, study design, specificity of exposure, interview or recall bias, misclassification of occupation or exposure, confounding multiple exposures, confidence intervals and statistical power, selection of relevant studies, consistency of study results, study cohort definition, cohort membership misclassification, dilution effect, and subcohort or stratified analysis. Epidemiologic studies of auto mechanics and petroleum workers are used as examples to illustrate the importance of relying on sound epidemiologic principles in study interpretation. If these principles are not followed, the interpretation of epidemiologic studies will likely be erroneous and not useful to regulatory policy-makers or to those involved in litigation.

Automobiles↗

PubMed2002

Laparoscopic bowel injuries: forty litigated gynaecological cases in Canada.

OBJECTIVE: To review the clinical circumstances and the clinical and legal outcomes of 40 laparoscopic bowel injuries that were litigated in Canada. DESIGN: Retrospective review of 40 litigated cases of laparoscopic bowel injury, from 1990 to the end of 1998, provided by the Canadian Medical Protective Association (CMPA). MEASUREMENTS AND MAIN RESULTS: The laparoscopy was performed for diagnosis (n = 13), tubal occlusion (n = 15), and as an operative therapeutic procedure (n = 12). Injuries were related to the initial peritoneal entry in 22 (55%) women (19 during the closed technique and 3 with the open technique). Of these, the injury was due to the primary trocar (n = 17), scalpel (n = 1), Veress needle (n = 1), Veress needle or undetermined (n = 2), and fascial suture (n = 1). The small bowel was injured in 9 of 11 entries by the trocar during diagnostic laparoscopy and in 6 of 14 tubal occlusions. Five injuries in the tubal occlusion group were attributed to "cautery." The injury was recognized intra-operatively in 55% of cases. The clinical outcome was uncomplicated in 85% of patients. There was no difference in clinical outcome between small versus large bowel injuries and between intra-operative versus post-operative diagnosis of the injury. The litigation outcome was favourable to the physician in 75% of cases. Recognition was delayed in 45% of cases and this was associated with 67% of the litigation outcomes unfavourable to physicians. CONCLUSIONS: (1) The initial laparoscopic entry into the peritoneal cavity remains the major contributor to bowel injury in laparoscopic surgery. (2) The open (Hasson) technique does not prevent bowel injuries. (3) Delayed recognition was a major factor in assessment of liability.

Colon↗

PubMed2003

Using litigation to improve child mental health services: promises and pitfalls.

Litigation against state governments has been one of the strategies to improve services for children with emotional and behavioral problems. The results of such litigation have been spotty in terms of expanding and improving services. Cases in North Carolina and Hawaii are used as examples of successful litigation that had substantial impacts, resulting in new, more appropriate services and expanded budgets. The similarities and differences in these two cases are discussed, as are the elements that appear to contribute to success and the risks associated with such litigation.

Budgets↗

PubMed2003

Litigation and the lingual nerve.

PURPOSE: A "malpractice crisis" exists in the United States. Litigation analysis helps to understand the causes and may be useful in prevention of suits. This study reviews litigation regarding the lingual nerve. MATERIALS AND METHODS: Jury verdict reports were obtained from a computerized legal database for the years 1987 through 2000. The study reviews all state and federal civil trials in the United States. Reviews compile information on plaintiffs and defendants, allegations of wrong-doing, reasons for litigation, anatomic sites of injuries, specialties of expert witnesses, verdict results, and awards received. RESULTS: Thirty-three suits from 12 states were obtained. Dentists or oral surgeons were involved in 87%, and otolaryngologists were involved in 13% of suits. Tooth extractions were involved in 79%, and 50% of these resulted in financial awards. Lack of informed consent was alleged in 52% of suits overall and in 46% of tooth extraction suits. Expert witnesses were of the same specialty for both sides in 81%. Inadequate training and selection of the wrong surgical approach were alleged in 18% and 15%, respectively. Anatomic variations were thought to be present in 15%. CONCLUSIONS: Surgeons must be aware of anatomic variations and regions in which injury to the lingual nerve frequently occurs. Written informed consent may help decrease litigation in known risk regions.

Compensation and Redress↗

PubMed2006

Claims, errors, and compensation payments in medical malpractice litigation.

BACKGROUND: In the current debate over tort reform, critics of the medical malpractice system charge that frivolous litigation--claims that lack evidence of injury, substandard care, or both--is common and costly. METHODS: Trained physicians reviewed a random sample of 1452 closed malpractice claims from five liability insurers to determine whether a medical injury had occurred and, if so, whether it was due to medical error. We analyzed the prevalence, characteristics, litigation outcomes, and costs of claims that lacked evidence of error. RESULTS: For 3 percent of the claims, there were no verifiable medical injuries, and 37 percent did not involve errors. Most of the claims that were not associated with errors (370 of 515 [72 percent]) or injuries (31 of 37 [84 percent]) did not result in compensation; most that involved injuries due to error did (653 of 889 [73 percent]). Payment of claims not involving errors occurred less frequently than did the converse form of inaccuracy--nonpayment of claims associated with errors. When claims not involving errors were compensated, payments were significantly lower on average than were payments for claims involving errors (313,205 dollars vs. 521,560 dollars, P=0.004). Overall, claims not involving errors accounted for 13 to 16 percent of the system's total monetary costs. For every dollar spent on compensation, 54 cents went to administrative expenses (including those involving lawyers, experts, and courts). Claims involving errors accounted for 78 percent of total administrative costs. CONCLUSIONS: Claims that lack evidence of error are not uncommon, but most are denied compensation. The vast majority of expenditures go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant.

Adolescent↗

PubMed2003

Utility of the trail making test in the assessment of malingering in a sample of mild traumatic brain injury litigants.

The Trail Making Test (TMT) is one of the most commonly administered tests in neuropsychological assessments. It has been shown to be a valid indicator of brain damage due to traumatic brain injury (TBI), as well as a number of other neuropathological conditions. TMT error and ratio scores have been suggested as possible markers of malingering. The present study examined the utility of various TMT scores as malingering measures in 94 TBI litigants. Litigants were divided into those suspected of (n = 27) and those not suspected of malingering (n = 67) based on scores obtained on the Test of Memory Malingering and/or the Rey 15-Item Test. TMT errors did not discriminate between suspected and nonsuspected malingerers; however, the overall level of performance on the TMT was suppressed in suspected malingerers. The TMT ratio score was significantly lower in litigants suspected of malingering, although the clinical utility of this ratio is minimal. Results of the present study suggest using caution when interpreting TMT scores as markers of malingering in TBI litigants.

Adult↗

PubMed1999

Perinatal litigation in Scotland 1980-1995: its incidence, rate and nature.

Many claims about an increase in the incidence of perinatal litigation have been made, despite a lack of comprehensive data which might confirm this. A large scale study into litigation throughout Scotland from 1980 to 1995 revealed an initial sharp rise in the number of claims, but a fall in the overall number of claims made in 1994 and 1995; a similar picture was noted in a limited cross-border examination of English files. Not every area has experienced a reduction in incidence, and the rate of litigation (measured in deliveries per legal claim) varied hugely over time and between areas. A wide variety of head of claim was noted. Twenty-one percent of Scottish claims concerned cerebral palsy; of closed claims only 15% were successful, but a large proportion are still on-going. While the 'litigation crisis' is difficult to verify from these data, costs appear to be rising.

Journal Article↗

PubMed1999

Interprofessional and peer criticism: a side-effect of litigation?

Claims about a rising litigation rate, particularly in obstetrics, have allegedly fuelled fears of worsening relationships between obstetricians and midwives. Interviews with a number of practitioners, and others concerned with medical litigation, provided differing views about these assertions. While the fear of litigation is one element, it is probable that other often personal-factors may play a part. The overall tone of the interviews, however, suggested a significant degree of tension between obstetric and midwifery practitioners. The changing role of the midwife in contemporary maternity care also brings fresh challenges in developing healthy inter-professional relationships. At a time when litigation is believed to be ever-increasing, the existence of poor work relationships in this multi-disciplinary field may be critical.

Journal Article↗

PubMed2001

Physicians' attitudes toward litigation and defensive practice: development of a scale.

The authors' threefold purpose in this article was to (a) propose a model of the relationship between the emotional aspects of physicians' attitudes to medical errors (e.g., fear of litigation) and their functional consequences (e.g., tendency to defensive practice); (b) develop a measure of some of these attitudes; and (c) provide empirical support for some of the relationships in the model. Medical students and physicians responded to a questionnaire concerning their attitudes toward uncertainty and medical error. The dependent variables were two dimensions of attitudes to uncertainty ("reluctance to disclose uncertainty" and "stress from uncertainty") and four dimensions of attitudes to medical error ("fear of litigation," "support for self-regulation," "tendency to defensive practice," and "self-disclosure of errors"). Stress from uncertainty correlated with fear of malpractice litigation and defensive practice. They concluded that interventions that aim to increase physicians' tolerance of uncertainty may also reduce their fear of malpractice litigation and their tendency to defensive practice.

Attitude↗

PubMedDate not supplied

The role of litigation in human research accountability.

This essay examines and analyzes the recent and dramatic series of personal injury lawsuits instituted against those individuals and institutions that conduct and monitor human research. It discusses the social engineering functions of tort litigation, outlines the legal elements and viability of lawsuits against those who conduct and monitor human research, and evaluates and predicts what role tort litigation will play in fulfilling the goals of accountability in the context of human research and human research regulation. In general, tort law engenders two forms of accountability: retrospective and prospective. Retrospective accountability is backward looking, focusing on harms that have already occurred, their culprits, and the reimbursement of individuals for their injuries. Prospective accountability is forward looking in that it encourages actors and institutions to fulfill responsibilities toward individuals in order that harm does not occur, or at least that the risk of harm is decreased. This article argues that research litigation is not, and will probably never become, an effective means of ensuring retrospective accountability in regard to research injuries and ethical violations. Paradoxically though, the current wave of research litigation may serve an important and even key role in encouraging and ensuring prospective accountability.

Compensation and Redress↗

PubMed2006

The Henry-Heilbronner Index: a 15-item empirically derived MMPI-2 subscale for identifying probable malingering in personal injury litigants and disability claimants.

A new 15-item MMPI-2 subscale, the Henry-Heilbronner Index (HHI), representing a "pseudosomatic factor," was empirically derived from both the 43-item Lees-Haley Fake Bad Scale (FBS) and the 17-item Shaw and Matthews' Pseudoneurologic Scale (PNS). The HHI was superior to both the FBS and PNS in identification of symptom exaggeration in personal injury litigants and disability claimants compared to non-litigating head-injured controls. Logistic regression analyses revealed that a cutscore of > or = 8 on the HHI was associated with good specificity (89%) and sensitivity (80%). These results suggest that the HHI may be useful in identifying personal injury litigants and disability claimants who exaggerate, overreport, or malinger physical symptoms on the MMPI-2 related to their current health and/or litigation status.

Adult↗

PubMed1991

Forty years of litigation involving medical students and their education: I. General educational issues.

An analysis of reported state and federal adjudication from 1950 through 1989 was undertaken to identify trends in litigation involving medical students and undergraduate medical education. Of the 110 decisions cited, 51 (46%) involved disputes over general educational issues. A majority of the decisions affecting general education involved admissions and dismissal processes. Recently courts have begun scrutinizing readmission, course repetition, and cheating. Medical schools have accommodated to judicial scrutiny of general educational issues and have prevailed more often than claimants in litigation during this period, but litigation has not decreased as precedent and procedure have become clearer. Instead, litigation has continued unabated in alternative areas and at different levels of the educational process.

Education, Medical, Undergraduate↗