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PubMed1995

How to keep the Joint Commission happy and plaintiff's attorneys frustrated.

With the first minimum standard by the American College of Surgeons in 1918, the credentialing of physicians became formalized Since those days, in which a physician was basically required to be licensed and of high professional, moral, and ethical character, many requirements have been added. All have been appended for the safety and quality of care of our patients. However, liability attorneys have discovered credentialing requirements and found them a veritable gold mine for litigation. As rapidly as the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) offers another standard to help us protect not only our patients but also ourselves in this litigation-bent atmosphere, attorneys engineer a way to bring suit, using the standard as if it were a requirement for prevention of negligence rather than a self-imposed goal for attainment of quality. This article presents a method of credentialing medical staff members that neutralizes the threat of antitrust actions alleging the compromising of livelihood by the denial of membership or clinical privileges. Additionally, the methodology offers maximal protection and integrity of credentialing procedures while optimizing compliance with Joint Commission standards.

Antitrust Laws↗

PubMedDate not supplied

The struggle over retiree medical benefits: who's on top?

Over the past decade, there has been an explosion of litigation addressing an employer's right to unilaterally amend or terminate medical benefits provided to retirees. The sheer volume of these cases and the variety of facts and legal theories have combined to obscure the patterns and trends that actually are emerging from this litigation. This article will describe the context of the struggle over retiree benefits and discuss those leading decisions in which the federal courts of appeals have established their rules for deciding retiree benefits cases.

Employee Retirement Income Security Act↗

PubMed1997

Reducing malpractice risk through more effective communication.

UNLABELLED: This activity is designed for physicians, health plan administrators, and other providers. GOAL: To help physicians, health plan administrators, and other providers learn more about the relationship between provider communication behaviors and subsequent negligence litigation and learn how to reduce malpractice risk through improving communication behaviors. OBJECTIVES: 1. To describe research findings concerning the relationship between provider communication behaviors and subsequent claims of negligence. 2. To describe the major interviewing deficiencies that have been identified as precipitants of malpractice litigation. 3. To describe three functions of effective interviewing. 4. To describe training and learning methods that can improve provider-patient relationships, leading to improved clinical outcomes and decreased malpractice risk.

Communication↗

PubMed1993

Anatomy of an ADA case. Chatoff v. City of New York.

This article addresses plaintiff and defense strategies in the context of an ADA case and is intended to serve as a ready reference to employer's counsel when faced with ADA litigation. In an ADA case, it is essential that counsel humanize the employer by keeping the "Our Business Supports Diversity" theme before the trier of facts at all times. This theme should be accompanied by the proposition that plaintiff's demands are not reasonable because they impose an undue burden on the employer or a risk to the safety of the employee or others in the workplace. It is also crucial for defense counsel to become familiar with the plaintiff's attorney's strategic considerations. ADA litigation strategy is illustrated by reference to Chatoff v. City of New York, a landmark ADA case instituted on behalf of the approximately 200,000 hearing-impaired residents of the City of New York, demanding equal and direct access to Emergency 911 services.

Communication Devices for People with Disabilities↗

PubMedDate not supplied

An eight-year review of legal cases related to an urban 9-1-1 paramedic service.

INTRODUCTION: An eight year retrospective analysis was conducted to determine the type and outcome of lawsuits related to the provision of 9-1-1 paramedic service in an urban environment. METHODS: For the evaluation period of May 1986 to March 1994, all litigation cases related to Ambulance Service or paramedics were collected and analyzed. This urban 9-1-1 Paramedic Service has an estimated call volume of > 60,000 assignments resulting in > 30,000 patient encounters during the evaluation period. RESULTS: Seven lawsuits were filed against the service. No lawsuits were related to tardy response, failure to transport, or patient care negligence of any kind. All of the litigation was related to motor vehicle collisions (MVC). CONCLUSIONS: The data suggest that motor vehicle collisions are a significant medical-legal risk to the EMS community. In addition, it was found that the use and lack of use of seatbelts was an important component in many of the suits.

Allied Health Personnel↗

PubMedDate not supplied

Medical malpractice arbitration.

The medical malpractice problem has been a major contributor to the inflationary trend in healthcare costs. Arbitration, as an alternative to litigation, can be effective in alleviating many of the problems associated with malpractice suits. Authors Corbett and Leap present the results of their study of arbitration, including an examination of existing medical malpractice arbitration panels and their effectiveness. The results of the study are encouraging as arbitration is seen to bring advantages to both the plaintiff and the defendant, as well as reducing the amount of litigation and insurance-related problems.

Conflict, Psychological↗

PubMed1988

Recent medical malpractice reform measures in eight key states.

Over the course of the past quarter century, technological developments in medical science have made it possible for physicians to save the lives and preserve the health of countless patients. Unfortunately, it must be remembered that medicine is still as much an art as it is a science. As such, due to this human element, there is always the risk of occasional errors or failures in treatment. When these problems occur in bunches, the stage is set for a medical malpractice crisis. In an attempt to minimize the rising tort litigation and settlement costs associated with this crisis, eight states have responded with a variety of measures designed to limit the doctrine of joint and several liability, noneconomic damages, punitive damages, the collateral source rule, attorney's fees, and the number of complaints. Since the measures in these subject states apply to different areas of law, it is not the purpose of the authors to catalogue and explain in detail all of these changes, much less their impact on litigation and settlement costs. Rather, the intent of this article is to provide a general description and comparison of legislation in these eight states, a discussion of the specific changes that appear most important, and a description of the effect these changes are expected to have upon the costs of defending medical malpractice claims.

California↗

PubMed1989

From mobsters to managers. RIC0 (Racketeer Influenced and Corrupt Organizations Act) extends its reach beyond the underworld.

The federal Racketeer influenced and Corrupt Organizations Act (RICO) was enacted in 1970 to combat the infiltration of organized crime into legitimate businesses operating in interstate commerce. During the first 10 years of its existence, the statute was applied almost exclusively in charges requiring criminal penalties. Section 1964 of RICO, however, allows civil remedies for injuries resulting from certain defined criminal activities. These civil remedies authorize treble damages and a reasonable attorney's fee. The Supreme Court has upheld the extension of this law to apply to general business activities, including hospitals. Hospitals risk involvement in civil RICO litigation as they become increasingly active in alternative healthcare businesses--medical supply operations real estate ventures, etc.--that involve public participation and the sale of securities, partnership units, and other equity interests. A disgruntled investor in a failed venture may initiate litigation. Other areas where hospitals are vulnerable to RICO claims include medical staff grievances, involvement in health maintenance organizations, and profile protest activities. The RICO civil provisions contain five basic elements: injury, person, enterprise, pattern of racketeering activity, and interstate or foreign commerce. Basically, this means that any person injured by the unlawful conduct of a person who is employed by or associated with any enterprise that engages in a pattern of activity which affects interstate commerce is entitled to civil RICO damages.

Abortion, Legal↗

PubMed1987

A legal services perspectives on representing Medicare home health patients.

The Medicare home health program lacks the basic legal protection for patients and providers that are commonplace in other public programs. These shortcomings include: 1. inadequate appeals procedures for both patients and providers; 2. overly restrictive eligibility criteria; 3. a lack of adequate public input into agency rule making and inadequate public information on specific coverage standards; 4. a reimbursement system that interferes with provider medical judgments. This is not the way the Medicare program was intended to run and the last few years have seen an increase in litigation to correct these problems. Such litigation is time-consuming and frustrating but experience shows that it is worth the trouble. As stated by a home health agency director whose patients were on the winning site of three recent lawsuits, "It takes tremendous effort, but you can beat the system."

Aged↗

PubMed1999

Using mediation to resolve disputes among hospitals and physicians.

The wide variety of economic cooperative arrangements in which hospitals and physicians engage can lead to disputes. As methods of dispute resolution, litigation and arbitration are costly and time-consuming and can have long-lasting adverse effects on relationships between the disputing parties. An alternative method of dispute resolution is mediation, the process of voluntarily negotiating a settlement with the help of a mediator. Mediation generally is quicker, less costly, and less likely to be adversarial than litigation or arbitration. In addition, mediation offers privacy regarding the nature of the dispute, thus preserving valuable reputations.

Conflict, Psychological↗

PubMed1999

A cure for the Blues: resolving nonprofit Blue Cross conversions.

This Article analyzes the issues involved in converting nonprofit Blue Cross organizations to for-profit status. These issues have arisen in the context of litigation regarding the "reorganization" of Blue Cross and Blue Shield of Missouri ("BCBSMo"). BCBSMo had reorganized by creating and transferring a majority of its business to a new for-profit subsidiary. Missouri consumer groups and state regulators characterized the "reorganization" as a conversion requiring BCBSMo to transfer its assets to a foundation dedicated to charitable health purposes. BCBSMo, however, denied that it had any obligation to leave behind its assets in the nonprofit sector. The BCBSMo litigation raises issues common to most conversions of nonprofit healthcare organizations, particularly conversions of nonprofit Blue Cross plans. This Article provides a road map for state regulators and the public to follow in ensuring that the public interest is fully protected in such conversions.

Blue Cross Blue Shield Insurance Plans↗

PubMed1976

Some thoughts on dental malpractice.

Malpractice litigation is not new nor is it limited to the professions of medicine and dentistry. The number of dental malpractice claims is increasing in many countries though the percentage of cases in which the patient succeeds remains constant at about ten to twelve per cent. In successful cases however the monetary compensation awarded has increased substantially in the past few years. The increasing use of multi-chair dental offices and the employment of more auxiliary workers in dental practice may have contributed to the increase in litigation as has the widespread dissemination of knowledge of patients' rights by newspapers and television. It is unfair to blame the legal profession for this increase. There is evidence that the 'contingent fee' arrangement between plantiff and lawyer contributes to the number of cases brought. It has been suggested that the existence of malpractice insurance may make the dentist less careful to prevent untoward effects of dental treatment. In many states the law will not permit punitive damages to be paid by the insurance agency nor are fines imposed for criminal activities covered. It is important that the dentist should be fully informed about the details of the cover which his insurance does in fact provide.

Dental Assistants↗

PubMed1997

Tuition reimbursement for special education students.

The spring 1996 issue of The Future of Children on special education reviewed the legislative and litigation history of the Individuals with Disabilities Education Act (IDEA). This Revisiting article examines the impact of the two U.S. Supreme Court cases setting forth school districts' responsibility to reimburse parents of students with disabilities for private school tuition under certain circumstances. An extensive examination of published cases reveals that the number of cases litigated has increased but that the courts are no more likely to decide in favor of parents than they were before the Supreme Court rulings.

Adolescent↗

PubMed2000

Forensic aspects of juvenile violence.

The juvenile justice system was created because it was recognized that youthful offenders needed to be managed differently from adults. They were to receive habilitation services instead of punishment. It is now more than a century since the creation of the first juvenile court. After 67 years, the US Supreme Court, in Kent v United States stated that the model was not working because juveniles in the criminal justice system received no treatment and they had no rights. Because the issue that had been appealed was the lack of rights (not lack of treatment), the Court mandated that juveniles, like adults, be given certain rights. The following year, in In re Gault, the Court expanded these rights. Subsequent Supreme Court cases have dealt with these kinds of issues--that is, whether juvenile offenders are entitled to the same rights as adults and subject to the same penalties. The Supreme Court has never heard a "right to treatment" case, which is the other part of the juvenile court system. Cases have been brought in lower courts (e.g., Nelson v. Heyne, 1972) alleging inadequate treatment services, but no national impact has resulted. Thus, in general, children in the juvenile court system do not have an enforceable right to treatment and can obtain only what services are available in their jurisdictions. The services often are woefully inadequate. Sentencing a youth to probation, with the requirement that he or she participate in counseling or mental health treatment, is meaningless if services are not available. Community-based, model programs that provide effective treatment do exist. They are, as yet, the rare exception rather than the norm and, therefore, are not available to most youthful offenders. Incarcerated juveniles, obviously, cannot avail themselves of community programs. Litigation to give these youth the same rights as adults in penal institutions is not the answer because incarcerated adults don't have a right to treatment, only a right to be free from "deliberate indifference" to their medical needs. It is hoped that a way will be found to provide effective services for the juvenile delinquent population. Federal laws have been enacted to mandate special services for educationally handicapped children. Those statutes, and litigation based on them, have led to some improvements for that group of children. Perhaps the same can be accomplished for the youthful offender population. Mandatory early intervention will serve them far better than mandatory waiver to adult court or incarceration in adult prison.

Adolescent↗

PubMed2001

The psychologically vulnerable witness: an emerging forensic consulting role.

The role of witness consultant is emerging as forensic psychiatrists and psychologists provide valuable input as participants in witness development teams. Anecdotally, retained experts also have undertaken a witness consultant role when asked or pressured to do so by the retaining attorney. Forensic psychiatrists and psychologists with extensive treatment and testimony experience may be of assistance to attorneys in preparing psychologically vulnerable clients and nonparty witnesses to tell their stories effectively at trial. In addition to litigation, other venues of witness consultation include administrative, congressional, and state legislative proceedings. In litigation, the witness consultant works directly with the attorney in support of the attorney's counselor role with the client. As an agent of the attorney, the identity of the witness consultant is shielded by the attorney-client privilege. The witness consultant does not meet face to face with the witness unless otherwise indicated. Collateral sources of information are used in providing witness consultation. The witness consultant can identify and provide management techniques for the psychological issues that threaten to impair a witness's ability to testify effectively. The consultant also may be able to assist the attorney who is experiencing difficulty in his or her relationship with a client or a nonparty witness.

Adolescent↗

PubMed2001

[Reporting of incidents. Experiences with medical registration systems].

Current incident reporting systems in Denmark are primarily focused on litigation. Epidemiological studies in the United States have shown that only 2.7% of adverse events that qualify for litigation are identified in such systems. Existing Danish reporting on adverse effects and complications is not exhaustive and often focused on new medicine/technologies and only a few specialties. Published findings on the quality of reporting systems are mostly based on local systems, certain specialties, procedures, or products. Observational biases are found in both mandatory and voluntary reporting systems. Current documentation does not support theories of higher coverage in mandatory reporting systems than in voluntary systems. Reporting systems run by authorities have shown significantly lower coverage than those run by medical professions. Anonymous and confidential systems have higher coverage than open systems. Fast, relevant, and constructive feedback to the informants increases the quantity and quality of reports. Risk managers and locally based systems could increase reporting through better possibilities for direct feedback, although local systems have difficulty in initiating major prophylactic actions. Foreign epidemiological studies have shown an adverse events incidence of 3-13%. However, more than half of the adverse events occur at such a low frequency that it is unlikely that isolated hospital systems can produce sufficient information for prophylactic action.

Adverse Drug Reaction Reporting Systems↗

PubMed2001

[Liability claims in radiology: an 8-year follow-up and future projections].

AIM: The analysis of the liability claims filed by Italian radiologists over the past 8 years allows us to evaluate past trends and predict the future evolution of litigation in radiology. MATERIAL AND METHODS: The assurance claims of Italian radiologists over the 1993-2000 period were anonymously evaluated. A total number of 422 claims were classified according to the cause as due to: 1) missed diagnoses; 2) complications; 3) failure to order further radiological examinations; 4) iatrogenic lesions due to radiation therapy; 5) slip-and-fall injuries; 6) miscellaneous cases. The data were analysed using descriptive statistics and curve estimation, i.e. selection of the regression models which best fit the observed data. RESULTS: Claims showed a linear increase from 1993 to 2000; however exponential increase could not be ruled out. The incidence risk-rate of claims rose over 45 per thousand persons/year. Misdiagnosis represented the first and most important claim category (>60% of total). Missed bone and joint abnormalities accounted for the greatest percentage of cases (37.8%). Missed abnormalities on breast and chest radiographs were the following most common diagnostic errors (25.2% and 15.0%, respectively). Within this class of claims, missed malignant lesions of the breast showed the greatest increase in number. Claims alleging complications resulting from radiological examinations or procedures were 13% of all cases. These complications mostly occurred following administration of i.v. contrast medium, or due to interventional procedures, or barium edema. Slip-and-fall accounted for 6% of cases. A few cases (0.7%) resulted from failure of the radiologist to order further diagnostic examinations. Finally, in roughly 12% of all cases, the radiologists were named as one of multiple defendants, together with medical doctors or other clinicians, in cases of patient's death. CONCLUSIONS: The risk of being sued for Italian radiologists is now comparable to that radiologists in the United States. Strict adherence to radiological standards will probably not be sufficient to reduce the risk of being sued. Special legislative measures may be required to obviate litigation.

Forecasting↗

PubMed2001

Telephone advice for neurosurgical referrals. Who assumes duty of care?

The rising rate of litigation against all specialities provides an incentive to develop risk management strategies. Much of a neurosurgeon's workload is telephone advice, which is rarely documented formally. This leaves us vulnerable to other clinicians' interpretation of our advice, their record of our conversation and poor accuracy of recall by both parties. We performed a prospective study of all telephone conversations with referring clinicians over 1 year, in order to assess the quality of information transfer. We found that the information received was often inaccurate, documentation of our given advice was poor, and criticism of neurosurgical care was unfounded. We have developed a proforma to be faxed back to the referring team. This will ensure that the information received, and the advice given in return, is recorded formally by both teams. Only time will tell if a joint record such as this will provide sufficient defence against litigation.

Adolescent↗