Month: January 2018

What to expect when hiring a lawyer to investigate and file a medical malpractice lawsuit.

Pre-Suit Investigation

In New Jersey (where I practice), and in other states that allow parties to a lawsuit to engage in full pretrial discovery, when a plaintiff-patient sues a defendant health care provider, a medical malpractice case will go through several phases and will usually take several years to get to trial.

At the outset of malpractice litigation many states require a patient to serve the doctor with an Affidavit of Merit (AOM). The AOM must be signed by a physician with credentials similar to the defendant doctor and it must state that after reviewing the pertinent medical records the expert believes (a) that the defendant doctor practiced medicine below accepted standards of care and (b) that this harmed the patient. For this reason, before a lawsuit is filed against a physician, a patient’s lawyer must obtain all of the medical records pertinent to the claim for the expert’s review.

In addition to the medical records, my office provides a reviewing expert with the relevant medical literature and any insight obtained from our own review of the patient’s records. Why? In a perfect world, paying experts hundreds of dollars an hour would guarantee a thorough review of a case. Realistically speaking, however, because (a) physician experts have extremely demanding schedules and (b) experts feel compelled to complete their review of a case as quickly as possible (because they are usually charging an exorbitant hourly rate) experts tend to speed through medical records when reviewing a file. Highlighting the important facts in the records and providing an expert with up to date literature allows an expert’s review to be more efficient and ensures that the expert will be in a position to familiarize himself with the nuances of the medical care provided to the patient.

The pre-suit investigation is often the most critical part of a medical malpractice case. If a firm does nothing more than provide an expert with a patient’s medical records, they will not be in a position to evaluate their expert’s review of the case. Moreover, there are other reasons why an attorney must become conversant with the facts related to a plaintiff’s medical care and educate himself with the medical literature relevant to a litigation. When the case goes into suit, a lawyer will have to have a full command of these subjects. Every defendant in a medical malpractice case is a free defense medical expert consultant to defense counsel, and they have an obvious motive to give their attorney all the help they can. A vigilant pre-suit investigation from the patient’s attorney is the best tool to neutralize this advantage.

Commencing the Lawsuit.

Once the pre-suit investigation of the claim is complete and an expert has signed an AOM, a lawsuit is started when the patient files a complaint with the court that spells out the pertinent facts and the allegations. Complaints describe, in very broad strokes, the care the doctor provided to the patient, identify those aspects of the care that the patient contends were negligent, and indicate how these mistakes harmed the patient. Once the complaint is filed, the doctor is served with a copy of the filed complaint, along with a summons. At that point, a defendant physician will notify his malpractice insurance carrier that a lawsuit has been filed, and the carrier will hire an attorney to defend the physician in the lawsuit.

Medical malpractice litigation is a very specialized field of law. As a result, there are usually a handful of defense firms representing most physicians in a single geographic area. If your attorney regularly litigates medical malpractice cases, the firm hired on behalf of a defendant doctor will know your attorney and have a good understanding of his professional reputation. Conversely, if your attorney does not regularly litigate malpractice cases and does not have an established reputation in this field, defense counsel will know this as well.

The Discovery Phase of a Lawsuit.

Paper Discovery Responses

Once a defense attorney enters an appearance and files an Answer, your case enters the discovery phase of litigation. Generally speaking, during discovery, all parties have an opportunity to investigate the merits of the other side’s legal and factual position. The first phase of discovery involves the exchange of paper discovery demands and responses. Each side propounds interrogatory questions on the other side which are written questions that require written responses. Most attorneys also serve a demand for production of documents, which requires the other side to provide copies of all documents pertinent to the case. Finally, attorneys may propound a demand for admissions, which requires the responding party to affirm or deny the truth of a set of factual allegations.

Your attorney will draft your paper discovery responses which you will then be required to review and supplement. After you approve your discovery responses a finalized draft will be forwarded to defense counsel, with a certification page signed by you that indicates the answers and documents are true and complete. All pertinent medical records and other items demanded by the defendants in discovery will be attached as exhibits to your paper discovery responses.

More often than not, defendant physicians do not provide complete and comprehensive paper discovery responses. There are a variety of reasons for this, but one is that many attorneys who represent patients simply do not insist on this. Obtaining complete and comprehensive discovery responses takes time and effort. First, an attorney representing a patient must send a detailed correspondence to the physician’s attorney outlining why the doctor’s discovery responses are deficient, and demand more information. Assuming the doctor does not cure the deficiencies, a motion then has to be prepared and filed with the Court to compel more specific answers. Often, the motion will require a court appearance. Many attorneys conclude that this process is too time consuming, especially since after paper discovery is exchanged, a patient’s lawyer will have an opportunity to depose a doctor and clarify issues in the doctor’s paper discovery responses.

A good lawyer knows, however, that the purpose of discovery is not only to obtain information from the other side, but to require a defendant to provide a precise factual statement about the facts of a litigation which can be used at trial as affirmative evidence, or for the purpose of impeaching or contradicting a defendant doctor’s trial testimony. Only after a doctor takes a precise position in his paper discovery responses can these be used an impeachment device in later proceedings. Additionally, insisting on comprehensive and complete paper discovery responses enables an attorney to better prepare for depositions.

Depositions of the Parties and Fact Witnesses.

After paper discovery responses are exchanged the parties will schedule depositions. During a deposition a witness is placed under oath and required to provide verbal responses to questions asked by counsel. Everything said during a deposition is taken down by a court reporter, and a written transcript of the testimony is created. At trial, a party’s deposition transcript can be read directly to the jury. Additionally, an expert’s transcript and the transcripts from non-party witnesses can be read to the jury if a witness contradicts his deposition testimony on the stand at trial.

Most of the time plaintiffs are depose first. Before you are deposed you will meet with your attorney to prepare for that proceeding. Your deposition will take place in a conference room, usually at your attorney’s office. The attorneys representing all parties will be present. Defendant doctors have a right to be present, but they rarely attend. The attorneys who represent the doctor will ask you questions about the following subjects:

  1. The care provided by the defendants;
  2. Your medical history before and after the incident that gave rise to the malpractice claim; and
  3. The injuries and disabilities that you suffered as a result of the negligence of the defendant and how these impact your life.

After your deposition takes place your attorney will have an opportunity to depose the defendant physician and any other health care providers who may have knowledge of facts related to your claim. It is often difficult to schedule depositions of defendant physicians because they have very demanding schedules and courts will usually provide them with latitude because of this. Occasionally it will be necessary for your attorney to file an application with the court compelling the deposition of the defendant if the deposition is rescheduled repeatedly.

The deposition of a defendant physician is obviously focused on the care provided to the plaintiff-patient. Nevertheless, this proceeding is not the time for a patient’s attorney to “discover” the medical facts relevant to the case. By the time the deposition of a defendant takes place, a patient’s attorney should have a full command of the facts and a complete understanding of the medicine. The goal of the deposition of the doctor should be to lay the evidentiary foundation necessary to prove that the doctor’s medical treatment of the plaintiff was below accepted standards of care and to lock the defendant into a precise factual position.

Expert Reports.

After depositions are completed, expert reports are exchanged. Generally speaking, a patient will serve his expert reports first. Depending on the nature of your case, you will have at least one medical expert. If the liability and damages issues in your case span more than one medical specialty or there are multiple defendants in the case, you will likely have more than one medical expert who will write a report on your behalf. Additionally, if the medical malpractice of the defendant made you disabled, your attorney may hire an economic expert to provide testimony about your future lost wages.

Experts base their opinion on a review of (a) the pertinent medical records, (b) the relevant literature, (c) the paper discovery responses exchanged during discovery, and (d) a review of the deposition transcripts of all of the relevant witnesses. This is a very labor-intensive process. Nevertheless, in New Jersey and many other states, the court rules enable experts and attorneys to engage in a collaborative process prior to the issuance of expert reports and these activities are protected from disclose under the work-product doctrine. As a result, knowledgeable attorneys will provide guidance to experts in the preparation of their reports for the same reasons that attorneys provide guidance with respect to an expert’s initial review of a case in anticipation of securing an Affidavit of Merit.

In medical malpractice cases, experts issue reports with a common format. The report will begin by listing the evidence that an expert reviewed. Next, the expert report will provide a factual chronology that highlights the important facts based on expert’s review of the evidence. The report will finish with a discussion of the expert’s conclusions about why he believes a defendant deviated (or did not deviate) from accepted standards of care, citing to the medical literature on the subject. When the experts your attorney retains complete their reports, your attorney will serve them on counsel for the defendant physicians, and you will also receive copies.

Depositions of the Experts

After expert reports are exchanged, the parties will be provided with an opportunity to depose the experts. Customarily, a plaintiff’s expert is deposed first. Your attorney will meet with your experts to prepare them for that proceeding. In my office, we insist on meeting with an expert at least a week in advance of his deposition so that the expert has time to digest what is discussed and so that the expert can utilize the information we provide in the meeting during his own pre-deposition preparations.

After your experts are deposed, your attorney will depose the defense experts. This is a critical part of a medical malpractice litigation. It is not unusual for my firm to spend as much time preparing for expert depositions as we spend preparing for trial. In addition to all of the medical research and factual review, background checks of all experts are undertaken. All relevant medical publications of the expert are reviewed prior to the deposition. Additionally, all available deposition transcripts of an expert are reviewed, so that we are in the best position to challenge the credibility and the science behind the expert’s opinions.

The Resolution Phase of a Medical Malpractice Case.

Settlement Discussions.

After expert depositions are complete, the case enters into the resolution phase of the litigation. In New Jersey, a defendant doctor must consent to settling a medical malpractice case. If (a) a doctor consents to settle the case and (b) the doctor’s insurance carrier authorizes a defense attorney to make an offer of settlement, the parties begin settlement negotiations. This may occur in a settlement conference before the judge the parties are assigned to for trial. It may also occur during voluntary mediation, or simply through informal conversations between counsel.

As a general rule, because the stakes are so high, insurance carriers do not engage in settlement discussions in medical malpractice litigations until after they have had an opportunity to evaluate how the parties and the experts perform during discovery.

Obviously, your attorney has more experience than you do at evaluating the merits and value of a litigation, and he will provide you with guidance about what he thinks the settlement value of your case is. Ultimately, however, the decision about whether to resolve a case for an amount offered is the client’s alone. You are free to reject your attorney’s advice about whether or not to resolve a case. An attorney has an ethical obligation to advise you of every offer made, and he is ethically bound to abide by your decisions in the negotiating process.

Trial Preparation.

If the parties cannot find common ground through settlement discussions, a case must be prepared for trial. Your attorney will prepare motions in limine regarding legal issues that will come up during the trial. Attorneys must also prepare other pleadings in the form of voir dire questions, proposed charges, a pretrial information exchange, and a proposed verdict sheet. On top of this, your attorney will meet with you and all of the witnesses who testify on your behalf to ensure that they are ready to testify at trial.

In addition to preparing pleadings and making sure that witnesses are ready for trial, in the modern digital age attorneys must also prepare demonstrative exhibits. Slides will be prepared to assist and keep the jury’s attention during opening and closing statements. Medical records will be scanned so that they can be projected onto screens or televisions when defendants and their experts testify. Deposition transcripts and paper discovery responses are also scanned so that they can be used for impeachment purposes. At my office, we have software programs that enable us to digitally reproduce any document so that it can be projected onto a screen. Evidence is bar coded so that when a witness testifies we can call up relevant documents during a trial with a bar code scanner. If a witness contradicts a medical record or sworn testimony, in less than one second we can project the pertinent impeachment evidence on a screen while we are engaging in our cross-examination. Organizing all of this information so that it can be used effectively takes a great deal of planning and is very time consuming.

The Trial.

Trials can last several days and complicated cases will result in trials that last several weeks. In most instances it is best if the plaintiff is in court every day during the trial. Exceptions to this rule have to be made for clients who are catastrophically injured and are physically incapable of sitting in a courtroom.

Jury selection usually takes a day to complete, but can take longer in a case that will take several weeks to try. After a jury is selected, they receive preliminary instructions from the judge. Following this, all parties present their opening statements. After opening statements, the plaintiff patient presents his witnesses; preferably the fact witnesses are called first, followed by the expert witnesses. The defense will call their witnesses after the plaintiff completes his case. The parties will then provide the jury with their summations, the judge will charge the jury and then the jury will deliberate until a verdict is reached.

Post Trial Motions and Appeals.

A case is not necessarily over when a jury returns a verdict. If the trial judge made a mistake on a legal ruling of consequence either party may move to set aside the verdict and request a new trial. Additionally, legal rulings of the trial court can be appealed. Frequently, when a physician loses a malpractice trial they will file an appeal and attempt to negotiate a settlement that is less than the verdict. Your attorney will provide you with guidance throughout this process.

What is my medical malpractice case worth?

When a prospective client first calls to discuss whether he has a medical malpractice case I have to make a preliminary decision about the potential value of the case. Obviously, questions about the value of a malpractice case also come up at the tail end of a litigation, when we reach the resolution phase of a matter and begin negotiating. At the outset, when I estimate the potential value of a case I am simply guestimating whether a successful outcome will likely justify the time and expense investments required to prosecute the file. When estimating the value of the case at the end of a litigation for clients, I am trying to come to a reasoned assessment about a case’s true value. I have the benefit of much more information at the end of a litigation than I do when a client first calls me on the telephone, so I am in a better position to reach conclusions and give clients more guidance about the value of a case at that point. Nevertheless, at best case valuation is a process that involves judgment and reasonable minds can differ about issues involving judgment. Also, different clients have different objectives, money means different things to different people and individuals differ in their tolerance for risk. All of these things have to be taken into consideration when discussing how best to resolve a malpractice case.

Questions of value that come up when a malpractice case is screened.

The question of value comes up when attorneys screen medical malpractice cases because before a lawyer decides to meet with a prospective client and open a file he must make an initial determination that the case is financially viable. Click here for an article that discusses financial viability as it relates to the issue of case screening in more detail.

In the majority of cases that I screen over the telephone, it appears that a prospective client has been the victim of negligent care, but the injuries sustained do not justify the time and expense of a medical malpractice lawsuit. Medical malpractice claims rarely settle without a lawsuit and malpractice litigations only settle if it is clear to all parties that proceeding to trial will create a substantial risk of a verdict against a defendant physician. Most of the time a case has to go through almost all of the discovery portion of a litigation for a defense attorney to be in a position to estimate the risk of loss and exposure the insurance company and defendant physician will face at trial. This is because in medical malpractice cases, issues of liability, proximate cause and damages are all the subject of expert opinions. Before experts formulate their opinions, parties to the lawsuit must engage in discovery to uncover evidence experts will base their opinions on. After factual discovery is complete, experts write reports setting forth their opinions. Experts are then deposed so that their opinions can be vetted and challenged in additional discovery proceedings. For all of these reasons, malpractice cases almost always involve very significant out of pocket expenses and a large commitment of attorney time to a law firm. To stay afloat, law firms who represent medical malpractice plaintiffs must screen cases that take these business realities into consideration. Almost always, a firm can only litigate a medical malpractice case if the negligence of the defendant physician caused a permanent injury that will have a significant impact on a patient’s life.

Questions of value that come up at the end of a malpractice litigation.

After a case goes through discovery, the question of value comes up again during the resolution phase of a lawsuit. Damages in medical malpractice cases are usually broken down into economic and non-economic loss. Economic loss includes financial losses resulting from the negligence of the defendant and typically include past and future lost wages, medical expenses, costs incurred related to obtaining replacement services previously provided by a disabled malpractice victim and costs related to services, equipment and materials used to mitigate the consequences of malpractice. Non-economic loss includes damages awarded by the jury for disability, pain and suffering and loss of enjoyment of life.

The significant difference between economic and non-economic loss is that an attorney is entitled to ask a jury for a specific dollar value on claims of non-economic loss. Thus, if a malpractice patient suffers $1.5 million in lost wages and $200,000 in medical expenses, those numbers go “on the board” before the jury and the argument on summation will be that the jury should start their damages calculations at $1.7 million. Lawyers are not permitted to ask for a specific dollar value when it comes to damages for pain, suffering and loss of enjoyment of life. Jurors are simply instructed to use their everyday experience and judgment when coming to a sum to compensate a plaintiff for non-economic losses. This is an odd anomaly in the law because the fact of the matter is that most people have absolutely no experience valuing the impact of injury and disability.

Economic loss

Lost Wages.

If a jury concludes that a care provider’s negligence caused a patient to become disabled, the patient may recover for past and future lost wages. In a simple case, expert economic testimony may not be required, although expert medical testimony must always establish that a plaintiff is physically disabled. If an economist is not hired, evidence of a plaintiff’s past earnings will be placed before the jury (usually in the form of W-2 forms etc.), and the jury will be asked to project the loss of earnings that a plaintiff will suffer due to disability until his work-life expectancy is reached. Sometimes malpractice does not render a patient completely disabled, but injuries cause limitations that result in decreased income. In those circumstances, the measure of lost wages is the difference in earning capacity before and after the injury.

In many medical malpractice cases, an economist will be hired when there is a future lost wage claim. There are many reasons for this, including the fact that people usually receive benefits above and beyond wages when they are employed, including medical insurance coverage and pension benefits. These kinds of damages are not usually capable of simple proofs, and hiring an economist to evaluate the nuances of these losses is often well worth the cost involved. Additionally, under the law in New Jersey, the dependents of an individual injured by malpractice have a right to recover for the lost value of services previously provided by a malpractice victim (counsel and guidance, household chores etc.) which can no longer be performed as a result of disability. Hiring an economist makes it possible to quantify the value of such services so that they can be placed before the jury as a dollar value. Another benefit to hiring an economist is that they can explain and distill complex concepts like “present day value” and provide net numbers after taxes so that jurors are relieved of some of the burden of conducting these kinds of calculations on their own.

Future lost wage claims are always contested because they can wind up being a substantial sum in any jury award. Defendants will argue that (a) a plaintiff’s injuries were not significant enough to result in any disability, or (b) that a plaintiff who is disabled is capable of some other form of employment that would lessen or mitigate the consequences of his lost wages. Defendants will offer medical expert testimony about the nature and extent of a plaintiff’s disability. Frequently defendants hire employability and vocational experts who offer opinions about the kind of work a plaintiff is still qualified to perform and the kinds of opportunities that are available in the workforce. Click here to review Model Jury Charge 8.11(c) Loss of Earnings. The Model Jury Charges are the actual instructions given by judges in civil jury trials in New Jersey. These instructions explain the law that is to be applied to the facts by juries, and jurors are told to follow these instructions when deciding cases.

Medical Expenses

A plaintiff may recover payment for medical expenses which were reasonably required for the examination, treatment and care of injuries proximately caused by a defendant physician’s negligence. Claims for medical expenses must be supported by expert testimony that establishes that (a) the care was medically necessary, and (b) the charges were reasonable. If expert testimony establishes that the plaintiff will incur future medical expenses, a claim for those expenses can be made as well.

The collateral source rule prevents plaintiffs from recovering medical expenses that were already paid by insurance coverage. Nevertheless, most health insurance policies grant an insurance company subrogation rights to seek reimbursement for medical expenses paid for injuries caused by someone else’s negligence. The law allows for similar subrogation rights relative Worker’s Compensation payments, Medicare and Medicaid. As a result, in most cases all of these bills will go before the jury, but the judge will either mold the verdict after it is returned if the third-party payor does not have a right to reimbursement or the verdict will stand and the money will be forwarded to the insurance carrier or government agency if a subrogation right exists. Click here for Model Jury Charge 8.11(a) Medical Expenses.

Other economic losses related to mitigating the impact of an injury due to medical negligence.

Families may suffer other kinds of economic loss as a result of a physician’s negligence. Patients who suffer catastrophic injuries frequently need to have modifications made on their homes or automobiles to continue functioning. Also, services can sometimes be provided to allow a patient to maintain some level of independence he would otherwise forfeit if he had to go to a long term care facility. In cases like this, lawyers will often hire a life care planner. Life care planners are experts (frequently nurses) who evaluate a patient’s disabilities and provide testimony about the kinds of equipment and services that can help patients cope with their disabilities and the costs of such services.

In cases involving patients who suffer less serious injuries, proofs about ancillary services necessitated by injuries can often be something as simple as a receipt. For example, if a patient normally painted his own home prior to being injured by malpractice, but since has had to hire someone to perform this chore, the costs of the service could be placed before the jury with a receipt, cancelled check or simple testimony.

Noneconomic loss

Noneconomic loss consists of damages awarded for disability, impairment, pain and suffering and loss of enjoyment of life. Again, in New Jersey, plaintiffs may not ask for a specific monetary amount for noneconomic loss damages, and the jury is asked to use its common sense and everyday experience when coming to calculations about these damages. Click here for Model Jury Charge 8.11(e), which thoroughly explains the nuances of these kinds of damages.

Although attorneys may not specify a sum to the jury for damages related to disability, impairment, pain and suffering and loss of enjoyment of life, they are permitted to use a time unit argument in summation to help a jury come to a reasoned conclusion about how to compensate a plaintiff in a medical malpractice case. A lawyer will pick a unit if time, for example — a single day, and ask a jury to calculate damages for a patient based on what reasonable compensation would be for one day of pain disability and loss of enjoyment experienced by a plaintiff on a given day. The jury is then provided with the amount of days left in a plaintiff’s life (through life expectancy tables or expert testimony) and they are asked to multiply a day’s compensation by that number. The utility of this process is that it allows a jury a framework for coming to a decision about a subject that is otherwise very abstract and hard to contend with.

In addition to the damages sustained by a patient, if the patient is married his/her spouse will have a claim for damages related to a per quod claim. The spouse of an individual is entitled to the services of his/her spouse in attending to things like household maintenance, and to companionship and comfort. To the extent medical malpractice interferes with these things, the spouse of a malpractice victim has a claim for damages. Although this claim is a derivative one, when medical malpractice results in a substantial injury, per quod claims can be a substantial part of the case. Click here for Model Jury Charge 8.30(b) Loss of Spouse’s Services, Society and Consortium.

Defenses to Damages

Every case has a liability defense and if a patient/plaintiff does not meet his burden of proof and convince a jury that a doctor was negligent then they will recover nothing. Click here for Model Charge 5.50(a) Duty and Negligence, which sets forth a patient’s burden of proof on the issue of negligence in a medical malpractice case.

Similarly, in every case a plaintiff must prove that a defendant physician’s negligence proximately caused his injuries. This is a very esoteric subject in medical malpractice cases that involves different nuances depending on the facts involved in the particular case. The subject is beyond the scope of this article, but the essence of the issue is that to prove proximate cause a patient must demonstrate that the mistake made by the medical provider was sufficiently connected to the injury claimed. Click here for Model Charge 6.10 Proximate Cause – General Charge to be Given in all Cases for an introduction to the concept.

Sometimes medical malpractice cases involve an allegation on the part of a medical provider that a patient failed to follow instructions, and this is what actually caused the injuries and damages involved in the case. When this occurs, the defense being raised is comparative negligence. If a jury determines that a plaintiff is partially responsible for the damages he suffered as a result of failing to follow instructions, they are instructed to reduce the damages that are awarded by the percentage they believe the plaintiff is responsible for the outcome. If the jury concludes that the plaintiff is more than 50% responsible for the damages, the plaintiff patient is awarded nothing. Click here for Model Jury Charge 7.31 Comparative Negligence: Ultimate Outcome which explains how a defense of comparative negligence can reduce a jury award.

How I Approach the Subject of Case Value with Clients

Usually after all expert reports are served and discovery is complete we begin to address the potential value of a given medical malpractice case with a client. We start be calculating the amount of economic loss a plaintiff has and will sustain, and we then attempt to determine the range of damages that can be expected for noneconomic loss. Typically, I will do a verdict/settlement search in cases involving similar malpractice damages to get an overview of the recoveries that have occurred in various jurisdictions in similar claims. I then provide the client with this data and an analysis of where I think their case falls in the spectrum of claims. We then discuss negotiating strategies and get a clear definition of what a client’s “bottom line” is.

While I provide clients with data and my analysis, the decision about whether to settle a case is always the client’s. Attorneys have an ethical obligation under RPC 1.4 to advise their client of any settlement offer that has been made by the defense.

I have yet to disagree with a client about the value of a case. I believe this is because I work on medical malpractice cases on a contingency basis and so I have a common interest with each client to maximize the potential recovery in any given matter. Also, because we educate our clients about the valuation process and provide them with the data that we use to come to conclusions about these subjects, it is easy to stay on the same page at the end of a litigation.

What clients are charged when pursuing a medical malpractice case.

There are two categories of charges when a client hires an attorney to pursue a medical malpractice case: (a) an attorney’s fees and (b) costs.

An attorney’s fee in a malpractice case is almost always a contingent fee, which means that they are only payable if a patient/plaintiff recovers. The contingent fee a lawyer is permitted to charge is usually regulated by the state. In New Jersey, after subtracting any unpaid costs, lawyers in medical malpractice cases charge a client approximately 33 ⅓ of the remaining amount recovered. The amount is decreased incrementally for each $750,000 recovered. Additionally, if a client is mentally incapacitated or a child, attorneys may only charge a contingent fee of 25% if the case is resolved without a trial.

Costs in a medical malpractice litigation can be substantial. The biggest cost associated with these files are fees charged by expert witnesses. Additional costs include (but are not limited to) filing fees, court reporting fees, mail and courier charges and costs associated securing medical records. Even simple malpractice cases can involve costs in the neighborhood of $30,000 if a case is litigated through trial. A complex malpractice case involving multiple defendants in different medical specialties can easily exceed $100,000 in costs.

Malpractice lawyers deal with litigation costs in different ways. Some lawyers require an initial retainer fee and then ask clients to forward additional money as costs are paid to keep the account current. Other lawyers require only a single retainer fee at the outset of a case with the understanding that the firm will advance additional costs, to be paid by the client at the end of the litigation out of the proceeds of the lawsuit.

At my firm, we do not require an initial retainer from clients at the outset of a case. Rather, we typically ask clients to cover the costs related to securing the pertinent medical records for our initial review. The cost related to medical records is usually a few hundred dollars. After we review the pertinent records, if we determine a case should be submitted to an expert so that it can go into litigation, we advance all remaining costs, with the understanding that clients will reimburse us for the expenses related to the litigation out of the money we recover in the lawsuit.

We carbon copy our clients on all correspondence, so clients are contemporaneously aware when we are paying costs related to their litigation. Furthermore, at the end of each case we provide clients with a Closing Statement which details attorney’s fees and all costs incurred during the litigation. Finally, all of this is incorporated into our retainer agreement, which we discuss and explain during our initial meeting with our clients.

Traumatic Birth Injury to Lakewood, New Jersey, Infant Results in Settlement for $1 Million Insurance Liability Limits of Defendant Physician.

At 4:00 a.m. on May 24, 2001, the mother was admitted to Labor and Delivery. Initial fetal heart rate measurements were noted to be in the 100-110 beat per minute range. The defendant physician arrived at 4:30 a.m. Shortly afterward, at 4:35 a.m., the fetal monitoring strips became non-reassuring. Oxygen was applied to the mother, and position change was employed. An internal fetal scalp electrode was not applied, and a good portion of the fetal monitoring strips thereafter were uninterpretable.

At 5:05 a.m., due to continuing concerns about the fetal heart rate, the defendant applied a vacuum extractor while the baby was at +2 station, with the vertex in the occiput position. At 5:22 a.m., the baby was delivered with a midline episiotomy under local anesthesia, with Apgar scores of 2/2/5 at 1/3/10 minutes. When the plaintiff was born, resuscitation was necessary, and she was intubated.

The plaintiff was diagnosed with metabolic acidosis and persistent pulmonary hypertension while admitted at the hospital. Additionally, she demonstrated irritability though fisting, clonus and bicycling movements.

Following discharge from the hospital, an MRI of the brain demonstrated findings consistent with the chronic phase of profound asphyxia. The plaintiff suffered from aspiration pneumonia and gastroesophageal reflux and failure to thrive and required the insertion of a gastronomy tube. She then went on to develop a spastic quadriplegia and developmental delay.

The plaintiffs contended that the defendant’s failure to employ an internal fetal scalp electrode was a breach of accepted standards of care, and prevented the defendant from knowing the true status of the baby’s condition, and led to an inappropriate decision to move forward with operative vaginal delivery rather than taking further resuscitative measures during labor and potential cesarean section.

The defense contended that the fetal tracings were intermittently reassuring, that the mother was combative during labor and that the extremely rapid pace of labor made the defendant’s anticipation of imminent vaginal delivery logical, and therefore his decision to forego a cesarean section was within accepted standards of medical care.

John Ratkowitz settled the case after parties and witnesses were deposed and expert reports were exchanged.

To Err is Human, But This is Something Else

In November 1999, the Institute of Medicine (IOM), a branch of the National Academy of Sciences, published a study declaring that a threshold improvement in the quality of health care was urgently needed because medical negligence committed in hospitals in the United States was killing more people annually than motor vehicle accidents, breast cancer and AIDS. Kohn LT, et al, To Err Is Human: Building a Safer Health System, National Academy Press pg. 26 (1999). (Hereafter ‘To Err Is Human”). The impact of that study, and its ‘Jarring” analogy that the annual number of deaths from hospital negligence would be equal to the downing of a jumbo jet every single day, “galvanized the public and health professionals and led to congressional hearings, media exposes, and millions of anxious patients.” Robert M. Wachter, M.D. , The End of the Beginning: Patient Safety Five Years After ‘To Err Is Human,” W4 Health Aff (Millwood) Web Exclusives 534 (2004). (Hereafter ‘The End of the Beginning”).

It is not an overstatement to say that as a result of the IOM study, in 1999 the United States came to the realization that medical mistakes were a problem of epidemic proportions. Id.

A Call for Change

To Err Is Human declared that the health care industry needed to take the following steps to make health care safer:

  • Create leadership roles, research patient safety issues and develop tools and protocols to enhance knowledge of safety issues that exist;
  • Create nationwide mandatory and voluntary error reporting systems so that it could identify and learn from medical errors;
  • Raise safety standards through the use of oversight organizations, professional groups and health care purchasers; and
  • Implement safety systems that enhanced safe practice at the health care delivery level.

Howard Larkin, 10 Years, 5 Voices, I Challenge. To Err Is Human Jump-Started a Movement to Improve Patient Safety. How Far Have We Come? Where Do We Go From Here? 83 Hosp. Health Netw.24 (2009). (hereafter “10 Years, 5 Voices 1 Challenge”).

There was an initial flurry of activity following the IOM report in 1999. Five years after the study was released, the federal government, private foundations, health plans, hospitals and clinics were all investing more in patient safety then they had been in 1999. The End of the Beginningsupra, at 543. Notwithstanding this fact, as early as 2004, there was recognition that efforts to advance patient safety were not moving forward comprehensively enough to be responsive to the problem ld. Studies of specific hospital systems revealed that while some areas of patient safety systems were improving, other were declining due to changing hospital priorities, budgets and philosophies. Daniel R. Longo, OblSb, ScD, The Long Road to Patient Safety: A Status Report on Patient Safety Systems294 JAMA 2858, 2863 (2005). (hereafter ”The Long Road to Patient Safety”).

In To Err Is Human, the IOM called for a 50% reduction in medical errors in five years, but 10 years later it was clear that progress in the area of patient safety was still far short of that goal. Lucian Leape, et al., Transforming Healthcare, a Safety Imperative, 18 Qual. Saf. Health Care 424 (2009). Indeed, one commentator observed that “[s]hockingly modest progress has been made given the impact of the problem, how many people were made aware of it and how many efforts have been made to address it.” 10 Years, 5 Voices 1 Challenge, supra, at 28. ”The current status of hospital safety systems is not close to meeting IOM recommendations.” The Long Road to Patient Safety,supra, at 2858. Data from recent studies measuring safety progress suggests that “patient safety progress is slow, and cause for great concern.” ld.

Why the Loss of Momentum?

Various reasons have been given for loss of momentum in the patient safety movement over the last 10 years. First, there was no organization set up to implement and oversee the plans set forth in To Err Is Human.10 Years, 5 Voices 1 Challenge,supra, at 28. Additionally, the health care industry has displayed a reluctance to engage in recommended error reporting systems. ld. Although we are beginning to see changes, for the most part, payment systems throughout the last 10 years generally did not reward patient safety or penalize unsafe practices. ld. at 27. Finally, “Some of this lack of progress may be attributable to the persistence of a medical ethos, institutionalized in the hierarchal structure of academic medicine and health care organizations, that discourages teamwork and transparency and undermines the establishment of clear systems of accountability for safe care.”Transforming Healthcare, a Safety Imperative, supra, at 424.

A Scathing Review

On Nov. 18, 2010, the New England Journal of Medicine published a study that attempted to quantify the impact of patient safety measures on in-patient hospital admissions. Christopher P. Landrigan, M.D. et al., Temporal Trends in Rates of Patient Harm Resuhing from Medical Care, 363 New Eng. 1. Med. 2124 (2010). (Hereafter Trends in Rates of Patient Harm). The New York Times identifiedTrends in Rates of Patient Harm as “one of the most rigorous efforts to collect data about patient safety” since the publication of To Err Is Human. Denise Grady, Study Finds No Progress in Safety at Hospitals, N.Y. Times, Nov. 24, 2010 at A1

Trends in Rates of Patient Harm examined hospital admissions in a stratified random selection of hospitals in North Carolina between 2002 and 2007. Trends in Rates of Patient Harm, supra, 2124-2125. The study was restricted to adult patients. The authors specifically chose to evaluate the impact of patient safety efforts in North Carolina because that state showed a high level of engagement in efforts to improve patient safety. In spite of this, the study revealed that ”harm resulting from medical care was common, with little evidence that the rate of harm had decreased substantially over a 6-year period ending in December 2007.” ld. at 2130. The review revealed that 25.1% of the patients receiving medical care in the hospitals surveyed suffered from medically induced harm. Id. at 2124-2125. Sixty-three percent of these were entirely preventable. ld.at 2127.

Proposed Law Changes May Further Patient Pain

On Dec. 1,2010, The National Commission on Fiscal Responsibility (NCFR) published a report with suggestions to be pursued by Congress and the Senate to deal with the federal deficit. NCFR, The Moment of Truth, Dec. 1,2010,http://www.fiscalcommission.govsites/fiscalcommission.gov. Several recommendations of the NCFR seek to restrict the rights of redress of patients harmed by medical malpractice, in the name of reducing the federal deficit. There appears to be bipartisan support for creating “safehaven”rules for health care providers who follow best practices of care, for creating a more restrictive federal statute of limitations for all medical malpractice cases, and creating specialized “health courts” to replace the jury system Id. at 29. Some members of the NCFR recommended that the legislature consider the imposition of a federal statutory cap on damages. Id.

More of the Same?

Ten years ago, To Err Is Human announced that the health care industry was “a decade or more behind other high-risk industries in its attention to ensuring basic safety.” To Err Is Human, supra, at 5. The report was so shocking in part because “silence surrounds” the issue of medical malpractice.Id. The goal of To Err Is Human was noble: to break the cycle of inaction in the health care industry. Id. at 3. Action was urged 10 years ago because doctors (not lawyers) finally declared that the status quo was not acceptable and could no longer be tolerated.

It is difficult to imagine the last 10 years’ history of the patient safety movement occurring in any other industry. If 10 years ago jumbo jets were falling from the sky every day and we learned from a study (conducted by the airline industry itself) that the resulting individual tragedies were avoidable if air carriers followed safe practices, citizens would demand change and there would be bipartisan support for government intervention to stop preventable deaths. The idea that thousands of deaths already occurred because of air carriers’ failure to follow safety standards would be considered utterly scandalous. You certainly would not expect people to stand idly by while the planes continued to full from the sky every day for ten more years. If the planes did keep falling, nobody would dream of suggesting that we should reduce airline accountability to the victims who were dying because of preventable errors.

Three Questions I Ask When Deciding Whether to Investigate a Potential Medical Malpractice Case

(1) Did the client experience an unexpected medical outcome?

Approximately 90% of the time, after I review a client’s medical records and the pertinent medical literature, I can tell a client whether a health care professional provided a patient with negligent medical treatment. About 10% of the time, I need to consult an expert before reaching this conclusion, because the key issue in the case requires the examination of physical evidence and a specialist’s exercise of judgment (for example, case involving the interpretation of an x-ray).

When a client initially contacts me, the analysis is simpler: Has the client experienced an unexpected medical outcome? Not every unexpected medical outcome occurs because of a medical mistake, but almost every medical mistake results in an outcome that a patient did not expect. Some medical procedures carry risks that occur and are unavoidable. These kinds of risks, however, are supposed to be explained to patients before procedures pursuant to a doctor’s duty of informed consent, and therefore would not be unexpected.

(2) Did the unexpected outcome likely result in a significant permanent injury.

Medical malpractice cases are very expensive to prosecute. First, although I work on a contingency fee basis (I only get paid my fee if a client recovers), like all lawyers I keep track of the time that I have to dedicate to each case I prosecute. Relative to other kinds of litigation, medical malpractice cases are very time consuming. They involve complex issues of medicine and law and attorneys must put in allot of time preparing for every step of the litigation process. Additionally, because these cases usually involve high stakes and significant injuries, doctors and insurance carriers on the other side will only offer to resolve a litigation when they are convinced that if a case goes to trial, there is a substantial chance that they will lose. Therefore, most of the time, these cases have to at least get through the late stages of a litigation so that the defense can size up your case.

A simple medical malpractice case will often require my office to advance more than $30,000 in actual expenses. More importantly, these cases usually require a commitment of at least $200,000 in attorney time (even though it is not billed). As a result, medical malpractice cases have to have a potential financial upside of several hundred thousand dollars to be economically viable.

For a client’s malpractice case to be worth several hundred thousand dollars, it usually must involve an injury that will cause permanent problems and restrictions. Furthermore, this injury must be one that cannot be repaired with additional medical care.

Sometimes a client will telephone me about a potential medical malpractice case and they do not know the extent of their injury because they are still undergoing medical care in an effort to mitigate the outcome of a mistake. If it appears at face value that additional care will help, I suggest a client focus on trying to get better, and call me in a few months to discuss the case further if they do not. In New Jersey (where I practice) most of the time a plaintiff has two years from the date malpractice occurred to file a lawsuit. Therefore, there is usually time for a client to seek medical care and get a better understanding of the consequences of a medical mistake.

(3) Will the injury have a significant impact on the client’s life?

At the end of a trial, a jury is asked to compensate a medical malpractice victim for the pain, suffering and loss of enjoyment of life caused by an injury resulting from medical malpractice. The jury also awards damages for all economic loss suffered as a result of an injury, which can include (a) medical costs incurred because of an injury, and (b) loss of wages. The more significantly an injury impacts a client’s life, the more likely it is that a jury will render a substantial verdict.

The Role of Informed Consent In Defensive Medicine

Those who advocate tort reform often point to the problem of defensive medicine as a justification to limit the right of redress of victims of medical malpractice. The argument is that the “pervasiveness of malpractice litigation” causes health care providers to “order tests or procedures in excess of their actual need to protect themselves from the risk of lawsuits.” Tara F. Bishop, MD, Alex D. Federman, MD, MPH & Salomeh Keyhani, MD, MPH, Physicians’ Views on Defensive Medicine: A National Survey, 170 Arch Intern. Med. 1081 (2010). Accordingly, malpractice litigation is seen as creating a problem of over-deterrence, with lawsuits causing doctors to take more precautions than they otherwise should when they treat their patients.

PHYSICIAN PERCEPTIONS VS. REALITY

When attempting to determine why diagnostic tests and procedures are being over-ordered, it is difficult to distinguish a doctor’s attempt to stave off liability from other motivations, and relying on doctors to self-report their motivation can be problematic.

Doctors certainly think the threat of malpractice causes them to be excessively cautious. Studies surveying doctors for the last 30 years reveal that anywhere between 21% to 98% admit engaging in defensive medicine. J. William Thomas et al., Low Costs of Defensive Medicine, Small Savings from Tort Reform, 29 Health Affairs 1578-1584 (2010). Nevertheless, it is hard to reconcile physicians’ perceptions that they are acting in an overly cautious manner with reality. Ten years ago, the Institute of Medicine concluded that the amount of medical errors in the United States was at epidemic proportions. Robert M. Wachter, M.D., The End of the Beginning: Patient Safety Five Years After ‘To Err Is Human’, W4 Health Affairs, Web Exclusive, 534-545 (2004). Similarly, although the last few years have seen an escalation in the discussion about the costs of defensive medicine, over-cautious behavior is not evident in outcomes because medical error rates have held steady. Christopher P. Landrigan, M.D. et aI., Temporal Trends in Rates of Patient Harm Resulting from Medical Care, 363 New Eng. J. Med. 2124 (2010).

BIAS

Bias may be one culprit here, as some commentators have pointed out. “Because many physicians are attuned to defensive medicine as a problem, and their professional organizations agitate prominently against it,” studies that attempt to quantify the scope of the problem of defensive medicine by surveying physicians are prone to a “socially-desirable response bias.” David M. Studdert, LLB, SeD, MPH, et al., Defensive Medicine and Tort Reform: A Wide View, 25 J. Gen. Intern. Med. 380 (2010).

INHERENT DEFECTS

In addition to the problem of bias, surveying doctors to attempt to determine whether the threat of a medical malpractice lawsuit causes over-utilization has other inherent defects. First, there are many other causes for profligate testing in medicine, including: 1) the public culture of entitlement; 2) the expectation of immediate and perfect results; 3) the extraordinary increase in diagnostic and treatment options today; and 4) growing specialization and fragmentation of care. Marcel Frenkel, M.D., M.B.A., Consensual Medicine and the Therapeutic Partnership: Reducing the Costs of Defensive Medicine and Litigation, 25 J. Med. Prac. Mgmt. 78 (2009). Additionally, managed care contributes to over-ordering because it requires faster analysis and decisive conclusions. Id.

DOES REFORM BRING RESULTS?

Studies that have attempted to quantify the costs of defensive medicine by looking at the impact that tort reform has had on health care savings have obtained inconsistent results. For example, while some studies have found lower health care costs in states with tort reform, others noted a weak relationship between tort reform and health care savings. Still other studies found no relationship at all. J. William Thomas et al., Low Costs of Defensive Medicine, Small Savings from Tort Reform, 29 Health Affairs 1578, 1579 (2010). These varied results have been attributed to the fact that researchers invariably focus on limited sets of clinical conditions or specialties. Id. at 579.

In 2009, a broader and more comprehensive study was undertaken to ascertain the impact of tort reform measures on health care costs by examining Medicare spending in states that adopted tort reform. Frank A. Sloan & John H. Shadle, Is There Empirical Evidence for ‘Defensive Medicine’? A Reassessment. 28 J. Health. Econ. 481 (2009). The study concluded that its analysis, and those of previous studies, suggested that contrary to statements in the media, caps on damages and the abolition of punitive damages did not have a significant impact on the reduction of payments for the studied Medicare services. The researchers’ overall conclusion was that “tort reforms do not significantly affect medical decisions, nor do they have a systematic effect on patient outcomes.” Notably, these results meshed with the Congressional Budget Office’s estimate that if tort reform were enacted in the form of a $250,000 cap on non-economic damages, a $500,000 cap on punitive damages and a decrease in statute of limitations, the savings from a combination of: 1) decreased use of services from less defensive medicine; and 2) lower malpractice insurance premiums would be merely .5% of the annual national expenditure of health care. Cong. Budget Office, Letter to Honorable Orrin G. Hatch, U.S. Senate, Oct. 9, 2009, available at www.cbo.gov/ftpdocs/106xx/doc10641/10-09-Tort_Reform.pdf.

DEFENSIVE MEDICINE AND INFORMED CONSENT

There is another reason to question whether defensive medicine causes doctors to over-order tests. At face value, the defensive medicine argument is premised on an outdated and paternalistic view of the physician/patient relationship that is contrary to law. In most circumstances, the law compels physicians to empower their patients to make consequential medical decisions. Thus, it is a mistake to assume that reduced exposure to liability will allow doctors to be less cautious.

The doctrine of informed consent has been in existence since the early 20th Century. In Schloendorff v. Soc’y of the N.Y. Hosp., 211 N.Y. 125 (1914), Justice Benjamin Cardozo concluded that “every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which is he liable in damages.”

It is settled in New Jersey that a physician has a legal duty to disclose to the patient all medical information that a reasonably prudent patient would find “material” before deciding whether to undergo a medical procedure. Largey v. Rothman, 110 N.J. 204 (1988). The test of materiality is simply whether a reasonably prudent patient, “in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether to forgo the proposed therapy or to submit to it.” Caputa v. Antiles, 296 N.J. Super. 123 (App. Div. 1996) (citing to Largey, supra, 110 N.J. at 211-212 (quoting Canterbury v. Spence, 464 F.2d. 772, 787 (D.C. Cir.), cert. den., 409 U.S. 1064 (1972)). “A physician who fails to disclose alternative treatments that a reasonably prudent patient, in what the physician knows or should know to be the patient’s position, would consider significant in making one’s own treatment decision, violates the standard for disclosure.” Caputa, supra, 296 N.J. Super. at 134.

The standard governing the disclosure focuses on what a reasonable patient needs to know – that is what a reasonable patient would likely find significant given the risks – to make an informed decision in foregoing or consenting to a medical procedure. Howard v. Univ. of Med & Dentistry of N.J., 172 N.J. 537, 547 (2002). Notably, the foundation for this duty to disclose is found in the idea that “it is the prerogative of the patient, not the physician, to determine for herself the direction in which her interest seems to lie.” Largey, supra, 110 N.J. at 214 (citing Canterbury, supra, 464 F.2d at 781). It is an objective standard; “it relates to the patient’s needs, not the physician’s judgment.” Blazoski v. Cook, 346 N.J. Super. 256, 267-268 (App. Div. 2002).

While informed consent does not require doctors to “recite all the risks and benefits of each potential appropriate antibiotic,” for example, when they write a prescription for treatment of an upper respiratory infection, doctors do have an obligation to “disclose all courses of treatment that are medically reasonable under the circumstances.” Matthies v. Mastromonoaco, 160 N.J. 26, 36 (1999). Doctors can and are expected to make recommendations about care, but “the ultimate decision is for the patient.” Id. at 34.

CONCLUSION

There are many reasons to question the scope of the problem of defensive medicine. First, initial steps to quantify it were based solely on surveys of physicians. An examination of the health care landscape revealed that there were many forces that would motivate doctors to over-order diagnostic tests and procedures. Second, although some states have now enacted tort reform, data from studies suggest that limiting a medical malpractice victim’s right of redress does not significantly impact physician behavior. This is not very surprising given the absence of progress in the patient safety movement. Moreover, since tort reform does not impact physician behavior, it is not surprising that government projections conclude that drastic steps to limit a medical malpractice victim’s right of redress will result in negligible health care savings.

It is a mistake to think that granting doctors immunity for consequential decisions will result in less diagnostic tests and procedures because most consequential medical decisions are being made by doctors and patients. It may very well be that bringing patients into the process has resulted in more decisions that err on the side of caution. Courts decided long ago that patients had this prerogative. It does not seem fair to shift the burden of the costs of informed consent to a smaller group of people simply because they have been harmed by medical malpractice. Fairness aside, enacting tort reform to combat defensive medicine is a public policy decision based on a loosely defined and overstated problem and studies already show that it will not impact physician behavior. Of course, it will not impact the medical decisions of patients either.

The Relevance of Never Events in Medical Malpractice Litigation

Excerpted from “Never Events in Medical Malpractice Litigation,” September 2010, Vol. 27, No.126. Medical Malpractice Law & Strategy. By John Ratkowitz and Robert Sanfilipo

The National Quality Forum is a nonprofit organization which aspires to set priorities and goals for improvement in healthcare in the United States. To pursue its mission it established the concept of “Never Events,” a list of serious complications that should never occur in a safe hospital. Arnold Milstein, Ending Extra Payments for “Never Events” – Stronger Incentives for Patients Safety, 360 (23) New Eng. J. Med. 2388, 2388-90 (2009).

On February 8, 2006, President Bush signed the Deficit Reduction Act of 2005, Section 501(c) of Pub. L. 109-171, instructing the Department of Health and Human Services (the Department) to create its own list of Never Events, so that Medicare payments could be decreased when preventable complications occur in hospitals. On October 1, 2008, the Centers for Medicaid and Medicare Services (CMS) identified eight categories of complications for which it would no longer reimburse hospitals if they developed during a hospital admission: foreign objects left in the body after surgery, air emboli, infusion of incompatible blood, falls and traumas, catheter associated urinary tract infections, mediastinitis after coronary-artery bypass grafting, certain infusion associated infections, and pressure ulcers. Sharon K. Inouye, et al., Medicare Nonpayment, Hospital Falls, and Unintended Consequences, 360 (23) New Eng. J. Med. 2390, 2390-92 (2009). This list was later expanded to include poor glycemic control, deep-vein thrombosis or pulmonary embolism associated with knee or hip replacement surgery, and certain orthopedic and bariatric surgical-site infections. Milstein, supra, at 2388. In January 2009, CMS went further and indicated that it would cease payments to hospitals and physicians when surgery was performed on the wrong patient, when the wrong surgical procedure was performed, or when surgery was performed on the wrong side or wrong body part. Id. at 2388. These actions of federal regulators were said to be an effort to “align financial incentives with the quality of care, thereby promoting both quality and efficiency.” Inoye, et al., supra, at 2391.

Major private insurers have decided to follow the lead of the federal government by adopting similar reimbursement denials when patients have been harmed in hospitals through categories of preventable medical errors. Among these insurers are Aetna Inc., Cigna HealthCare, Anthem Blue Cross Blue Shield in New Hampshire, Blue Cross Blue Shield of Massachusetts and WellPoint. Rachel Morgan, R.N., National Conference of State Legislatures, Medicare Nonpayment For Medical Errors, (2008), http://www.ncsl.org/Portals/1/documents/health/MCHAC.pdf. Additionally, in July 2008, CMS contacted all State Medicaid Directors and urged them to adopt policies echoing its denial of payments for Never Events in order to avoid the potential negative fiscal impact that non-payment of Never Events by Medicare might have on states, given the problem of dual eligibility under these plans. Id. Clearly, refusing payment for avoidable medical expenses is a public policy trending towards expansion.

Commentators have questioned the wisdom of Medicare’s policy decision to refuse to pay for Never Events. See Inouye, et al., supra; See also, See also Peter J. Pronovost, et al., The Wisdom and Justice of Not Paying for “Preventable Complications,” 299(18) J. Am. Med. Ass’n. 2197, 2197-99. Even critics of the policy, however, have characterized Medicare’s decision not to reimburse for costs related to leaving objects in the body after surgery as “wise and just.” Id. at 2199. When discussing the propriety of including retained foreign objects as one of the original eight categories of Never Events in its non-reimbursement policy, the Department pointed out that in the field of health care, “there are widely accepted and clear guidelines for the prevention of [these] events.” 72 Fed. Reg. 426,206 (Aug. 22, 2007). Consequently, according to the Department, this kind of mistake “should not occur.” Id.

In 2006, there were 764 instances in which Medicare was billed for care related to retained objects following surgery. Id. Although there is not a comprehensive database that sets forth information about every medical malpractice case filed involving allegations of a retained foreign object, Westlaw does contain a national database of verdicts, judgment and settlements compiled from regional and national jury verdict reporters. However, articles submitted to these reporters are strictly on a voluntary basis. Further, medical malpractice defendants almost always require confidentiality as part of any settlement agreement. Thus, Westlaw’s database is no doubt a very small sample of cases filed and litigated. At the same time, it is also one of the only tools available (to plaintiffs’ lawyers) to examine how categories of certain types of claims are handled from inception to resolution.

A search of medical malpractice cases involving the retention of surgical sponges in Westlaw’s national jury verdict data base reveals that there have been twelve medical malpractice cases involving retained sponges throughout 2008 and 2009. See An v. Shaw, No. 06 L 11100, 2009 WL 5091924 (Ill. Cir. Ct. Oct. 29, 2009); Anonymous Female Patient v. Anonymous Physician, Anonymous Nurse and Anonymous Clinic, 2009 WL 6366089 (Va. Cir. Ct. Oct. 5, 2009); Sneeze v. State of Louisiana, No. 154,568, 2009 WL 6528661 (La. Dist. Ct. Jul. 27, 2009); Edmondson v. Oakwood Healthcare, No. 07-721460-NH, 2009 WL 3699101 (Mich. Cir. Ct. Jun. 4, 2009); Anonymous 31 Year Old Female v. Anonymous OB/GYN And Anonymous Hospital; 2009 WL 6366051 (Ohio Com. Pl. Jun. 1, 2009); Khaulipour v. St. Ann’s Hospital, Kington, and Jiricko, No. 07-CV-001264, 2009 WL 3748727 (Ohio Com.Pl. May 18, 2009); Davis v. Jacobs, No. 06-CV-3409, 2009 WL 1740332 (N.C. Super. Ct. Jan. 16, 2009); Haden v. Kramer, Patrick County Family Practice, P.C. and R. J. Reynolds Patrick County Memorial Hospital, Inc., No. CL07149, 2008 WL 6400289 (Va. Cir. Ct. Oct. 16, 2008); De La Cruz vs. Purdom, No. VC048742, 2008 WL 7165022 (Cal. Super. Ct. Jun. 16, 2008), Young v. Levitt, No. 277895V, 2008 WL 4614405 (Md. Cir. Ct. Jun. 16, 2008); Hanner v. Mark Jones, No. 02-VS-041911, 2008 WL 4614375 (Ga. State Ct. May 19, 2008); Green vs. Sheila Miller, No. CV-2004-1038, 2008 WL 4847169 (Ala. Cir. Ct. Feb. 27, 2008) and Lynch v. St. Vincent Hosps. and Health Servs., No. 49C01-0503-CT-10724, 2008 WL 4276346 (Ind. Cir. Ct. Feb. 28, 2008). In two of the cases, the plaintiffs did not seek compensation from the hospital or medical facility, but rather pursued causes of action exclusively against the treating physicians. In four of the other ten cases, the medical facilities settled without the necessity of a lawsuit. Of the six remaining cases, two of them were settled after suit was filed but prior to trial. The final four cases resulted in two verdicts against hospitals as well as two verdicts in which the hospitals prevailed. Thus, from the sample of the twelve cases appearing in Westlaw’s national jury verdict data base in 2008 and 2009, despite the fact that Medicare and private insurance companies have concluded that retained sponges are entirely preventable events which should not occur and should not be paid for, these cases are still being litigated and defended by hospitals in a negligence setting.

In New Jersey, hospital protocols are admissible and can constitute evidence of the prevailing standard of care applicable to medical providers. Rosenberg v. Tovorath, 352 N.J. Super. 385, 406 (App. Div. 2002). Additionally, practice guidelines published by professional medical organizations have also been deemed evidence of what accepted standards of medical care are. Perna v. Pirozzi, 92 N.J. 446, 463-464 (1983). Similarly, if a statute sets forth the appropriate standard of care that should be followed by a medical provider, that statute is admissible as standard of care evidence. DiGiovanni v. Pessel, 104 N.J. Super. 550, 562-563 (App. Div. 1969). Pronouncements from administrative agencies pertaining to issues of medical care have also been deemed admissible to establish governing standards of medical care. Swank v. Halivopoulos, 108 N.J. Super. 120, 126-127 (App. Div. 1969).

It will be interesting to see how the decision by Medicare and the insurance industry, to declare certain categories of events non-compensable because they should not occur in safe hospitals will impact future medical malpractice litigations. Although commentators have suggested that it is “wise and just” to categorize retained foreign objects following surgery as Never Events, these cases are still being defended and litigated. Given the evidentiary nature of professional practice guidelines and administrative regulations, it is reasonable to expect that public policy decisions regarding the compensability of Never Events and the standard of care in medical malpractice litigations will eventually converge.

The Consequences of Truth: Compulsory Medical Error Reporting in New Jersey

Excerpted from “The Consequences of Truth: Compulsory Medical Error Reporting in New Jersey,” Medical Malpractice Law and Strategy, Volume 26, Number 9, June 2009, by John Ratkowitz.

NEW JERSEY LEGISLATIVELY MANDATES AN ETHICAL RESPONSIBILITY

A. The statutory and regulatory scheme.

In 2004, the Legislature passed the Patient Safety Act, N.J.S.A. 26:2H-12.23 (PSA). This landmark legislation changed the way medical errors are dealt with in New Jersey by creating a legal duty to immediately disclose medical errors to patients who are harmed by them. N.J.S.A. 26:2H-12.25. There are few states in the nation that require this kind of disclosure. William M. Sage et al.,The Relational Regulatory Gap: A Pragmatic Information Policy For Patient Safety and Medical Malpractice, 59 Vand. L. Rev. 1263 (2006) (noting that New Jersey was one of four states that recently passed legislation requiring patients to be informed when they were the victim of medical errors). Commentators have observed that the PSA has made the communication of healthcare errors a part of ordinary medical life. Edward A. Dauer, Postscript on Health Care Dispute Resolution: Conflict Management And the Role of Culture, 21 Ga. St.U. L.Rev. 1029, 1053 (2005).

Under the PSA, a patient must be informed no later than the end of the episode of care, or, if discovery occurs after the end of the episode of care, in a timely fashion, when the patient is a victim of “a serious preventable adverse event.” N.J.S.A. 26:2H-12.25(d). A “serious preventable adverse event” is any adverse event that is preventable and results in death, loss of body part, or disability or loss of bodily function either lasting more than seven days, or that is still present at the time of discharge. N.J.S.A. 26:2H-12.25(a). In addition to requiring adverse events to be reported to the victims of medical malpractice, the Patient Safety Act also requires health care providers to report medical errors to the Department of Health and Human Services (the “Department”). N.J.S.A. 26:2H-12.25(c).

On January 24, 2008, the Department enacted regulations that gave teeth to the notification and reporting requirements of the Act. As of (a) March 3, 2008, for hospitals, (b) August 30, 2008, for ambulatory care facilities, home health care agencies and hospice providers, and (c) starting March 3, 2009, for nursing homes and assisted living facilities, health care providers have five business days after discovery of a serious preventable adverse event to notify the Department that a preventable adverse event has occurred.N.J.A.C. 8:43E-10.1, N.J.A.C. 8:43E-10.6(b). The notification requires the inclusion of specific categories of information, including: (a) the date and time the event occurred, (b) a brief description of the event, (c) a statement about the impact of the event on the health of the patient, (d) the date and time the facility became aware of the event, (e) how the event was discovered, (f) the immediate corrective actions to facility took to eliminate or reduce the adverse impact of the event on the patient, and (g) what steps were taken to prevent the occurrence of future similar events. N.J.A.C. 8:43E-10.6(c). Failure to comply with these reporting requirements results in a fine of $1,000 a day. N.J.A.C. 8:43E-3.4(14).

Medical providers have 24 hours after the discovery of a serious preventable adverse event to notify a patient that it has occurred.N.J.A.C. 8:43E-10.7(b). Patients are to be notified in person if they are still at the facility or by telephone or by certified mail if they are not. N.J.A.C. 8:43E-10.7(c). Disclosure to a patient must be accompanied by documentation in the patient’s medical chart which indicates: (a) that the disclosure was made, (b) the time, date and individuals present when the disclosure was made and (c) the name of the person to whom the disclosure was made. N.J.A.C. 8:43E-10.7(f). Medical providers failing to disclose a serious preventable adverse event to a patient are subject to a fine of $1,000 if the event was also not disclosed to the Department of Health and Senior Services, but $5,000 if they reported the event to department, N.J.A.C. 8:43E-3.4(15).

B. The Insufficiency of Existing Ethical Mandates to Disclose Medical Errors.

It is significant that when mandating the disclosure of medical errors under the PSA, New Jersey sought only to compel medical providers to do something already ethically required. Under the American Medical Association Code of Ethics, physicians have an ethical obligation to advise a patient when they commit consequential acts of medical malpractice when “a patient suffers significant medical complications that may have resulted from the physician’s mistake or judgment.” Am. Med. Ass’n Code of Medical Ethics A-02 Edition, E-8.12 Patient Information, 77. Similarly, the American College of Physicians Ethics Manual mandates disclosure of errors if disclosure of this information is “material to the patient’s well-being.” Lois Snyder & Cathy Leffler, Ethics Manual, Fifth Edition, 142 Annals Internal Medicine 560, 563. Finally, the Joint Commissions on Accreditation of Health Care Organizations requires that patients be informed of unanticipated results that differ from the expected outcome in a significant way when a medical error occurs at a hospital. Joint Comm’n on Accreditation of Health Care Orgs., Revisions to Joint Commission Standards in Support of Patient Safety and Medical/Health Care Error Reduction 12 (2001).

Disclosure of medical errors is not only ethically mandated, literature supports that it is consistent with the fiduciary nature of the physician-patient relationship, since in most instances, disclosure of errors will be benefit a patient. C.J. Wusthoff, Medical Mistakes and Disclosure: The Role of the Medical Student, 286(9) Journal of the American Medical Association, 1080, 1081 (2001). Disclosure helps gain the cooperation of a patient who has been harmed by an error. Id. Further, understanding the cause of unexpected problems can relieve anxiety about recovery or complications. Id. Finally, some commentators have suggested that since patients need information about errors to make decisions about their medical care, disclosure of malpractice is part of a physician’s duty to provide a patient with informed consent. Thomas H. Gallagher, Wendy Levinson, Disclosing Medical Errors to Patients: a Status Report in 2007, 177(3) Canadian Medical Association Journal 265 (2007).

In theory, physicians agree that they have an ethical obligation to disclose medical errors. One study suggests that between 70 and 90% of the physician population believes that doctors should disclose errors to patients. Kathleen M. Mazor et al., Communicating with Patients about Medical Errors, 164 Archives of Internal Medicine 1690, 1692 (2004). In another study, 97% of the faculty and resident population surveyed indicated that they would disclose medical errors that caused minor harm, and 93% indicated that they would disclose an error causing major harm. Lauris Kaldjian , et al. Disclosing Medical Errors to Patients: Attitudes and Practices of Physicians and Trainees, 22(7) J Gen Intern Med 988-96 (2007).

Regrettably, while physicians are ethically obligated to inform their patients of consequential medical malpractice and studies suggest they intellectually support this principle, theory has not translated into practice. A study revealed that only 24% of residents surveyed reported the medical errors they committed to their patients. Albert Wu, et al. Do House Officers Learn From Their Mistakes? 12 Quality & Safety Health Care 221, 224 (2003). Another study estimated that nationwide, physicians are only disclosing errors to patients about 1/3 of the time. Robert J. Blendon et al., Views of Practicing Physicians and the Public on Medical Errors, 347 New. Eng. J. Med. 1933, 1935 (2002) .

THE GENERAL IMPACT OF COMPULSORY ERROR REPORTING AND DISCLOSURE

A. Compulsory Error Reporting Will Make Significant Contributions to the Improvement of the Quality of Health Care Everywhere.

Mandatory disclosure of medical errors in New Jersey will provide invaluable information useful to medical providers everywhere. First, it will provide information about the scope of the medical malpractice problem. In November 1999, the Institute of Medicine, a branch of the National Academy of Sciences, declared that a threshold improvement in the quality of health care was needed because studies indicated that medical negligence committed in hospitals in the United States were killing more people annually than motor vehicle accidents, breast cancer and AIDS. Kohn LT, Corrigan JM, and Donaldson MS, To Err Is Human: Building a Safer Health System, National Academy Press pg. 26 (1999). (hereafter “To Err is Human”). As alarming as the statistics disclosed in the Executive Summary of this study were, it is significant that the analysis dealt only with deaths caused in hospitals. New Jersey’s mandatory disclosure requirements apply not only to hospitals, but to all health care providers in the state. Not just deaths, but any preventable event that impacts a patient’s health for more than seven days must be reported. Thus, mandatory disclosure of medical errors in New Jersey may provide the government and health care industry with the first accurate picture of the human and economic costs related to medical mistakes.

Beyond acquiring knowledge about the scope of the problem, analysis of the information generated from a statewide policy of compulsory error disclosure will provide the health care industry with the ability to analyze patterns in the data collected to see why system errors occur, and this will help determine what can be done to avoid or minimize certain problems. Surprisingly, such a systematic approach to dealing with medical errors is absent. In To Err is Human, the authors noted that the health care industry is at least a decade or more behind other high-risk industries in its attention to ensuring the basic safety of people it services. Id. at 5. The Institute of Medicine indicated that a multifaceted approach was needed to improve the quality of health care. Id. at 4. One of the changes it called for was mandatory reporting of serious adverse events so that these could be studied. Id. at 102. To date, the failure to disclose medical errors has undermined efforts to improve patient safety. Hebert PC, et al. Bioethics for Clinicians: 23.Disclosure of Medical Error, 164 CMAJ, 509-513 (2001); The Joint Commission on Accreditation of Healthcare Organizations, Health Care at the Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury, pg. 27 (2005). New Jersey’s statewide compulsory error reporting requirement is one of the most significant first steps taken to correct this problem. Clearly, industry experts all over the world will be watching what New Jersey learns on this front.

B. Compulsory Error Disclosure Will Not Necessarily Result in an Increase in Medical Malpractice Filings in New Jersey.

There are few health care systems that enforce a policy of mandatory medical error disclosure. As a result, it is difficult to estimate how the PSA’s compulsory error reporting requirements will impact medical malpractice filings in New Jersey. Nevertheless, studies in smaller systems where this was done demonstrate that the impact of mandatory disclosure on filings may be negligible and perhaps even positive. The Veterans Affairs Medical Center in Lexington, Kentucky, the University of Michigan Health System and a Colorado malpractice insurance company, COPIC, developed programs to fully disclose medical errors while simultaneously attempting to compensate the victims of malpractice if warranted. Disclosing Medical Errors to Patients: a Status Report in 2007, supra, at 266. All of these organizations found that the number of malpractice claims filed either stayed the same or decreased. Id.; Christian J. Vercler, et al., Communicating Errors, 140 Cancer Treatment and Research, 195-213, 204 (2008).

Although seemingly counterintuitive, the idea that compulsory medical error disclosure may not yield more malpractice lawsuits is corroborated by studies that seek to ascertain what motivates patients to sue their doctors. Financial compensation is not the most common reason that people give for filing a medical malpractice lawsuit. In fact, it is fifth on the list, behind (1) a clear admission that a mistake was made, (2) a full explanation of the error, (3) a sincere apology, and (4) reassurances that things are being done so that the error is not repeated. Thomas Gallagher et al, Patients’ and Physicians’ Attitudes Regarding the Disclosure of Medical Errors, 289 JAMA 1001, 1004-1006 (2003). It may very well be that because the PSA’s compulsory error reporting requirements will immediately satisfy the first four of the above desires, some potential lawsuits will not be filed.

THE PSA AND CHANGING THE CULTURE OF HEALTH CARE

An examination of the reasons why health care providers failed to meet their ethical obligation to disclose errors can shed light on how mandatory error reporting will change malpractice litigation because the same forces which discourage the reporting of medical mistakes when they occur likely discourage physicians from taking responsibility for mistakes after a lawsuit is filed.

Health care providers’ failure to fulfill their ethical obligation to disclose medical errors is often blamed on the fear of potential medical malpractice lawsuits. Putting aside the question of whether avoiding being held financially responsible for a mistake is a valid basis to reject an ethical obligation to report it, scholarly articles addressing the subject of why physicians fail to disclose errors suggest motivations besides fear of lawsuits are at play. Notably, despite the fact that there are procedural safeguards in place to prevent statements made in M&M conferences from being used against a health care providers in medical malpractice cases, physicians are still reluctant to discuss medical mistakes in these forums, leading some commentators to conclude that legal liability does not inhibit the discussion of errors in these conferences as much as other factors, such as the social norms of medicine. Wei, Marlynn, Doctors, Apologies and the law: An Analysis and Critique of Apology Laws, 40(1) Journal of Health Law 107-59, 132 (2007).

Beyond M&M conferences, academics have noted that physicians do not disclose errors even when they are permitted to do so anonymously, without fear of retribution:

Id. at 36. (2007).

Some have suggested that the culture of medicine, instilled in physicians beginning in medical school, is responsible for the widespread abandonment of the ethical obligation to disclose errors. Gallagher TH, Waterman AD et al. US and Canadian Physicians’ Attitudes and Experiences Regarding Disclosing Errors to Patients, 166(15) Archives Internal Medicine 1605-1611. (2006). Similarly, it has been hypothesized that the failure to disclose errors is due to a “medical narcissism,” which develops through doctors’ “idealistic, perfectionist projection of themselves” which causes the mere acknowledgment of an error to be “so psychologically damaging to the physician’s sense of self that he or she will go to great lengths to rationalize and obfuscate the facts of the error.” Vercler CJ et al., Communicating Errors, 140 Cancer Treatment and Research 195-213, 206 (2008). (discussing Banja J.D., Medical Error and Medical Narcissism, Jones & Bartlet: Sudbury, MA (2005). According to this theory, a kind of preexisting narcissism drives individuals to become physicians in the first place, and a narcissistic inclination is then supported and encouraged through the medical education process, where residents are encouraged to strive for perfection. Communicating Errors, supra, at 206. Emotional detachment is simultaneously developed as a survival strategy, and the loss of empathy and the goal of perfection combine to present a major barrier to disclosure of mistakes. Id.

There are other aspects of the culture of medicine that contribute to the failure of physicians to disclose errors, including the desire of physicians to remain self-regulated. Doctors, Apologies and the law: An Analysis and Critique of Apology Laws, supra, at 146. Simply put, physicians resent being told how to treat their patients, especially by non-physicians. Id. Furthermore, disclosure of errors chips away at the mask of infallibility that physicians wear. Id. at 147. Infallibility supports two fundamental aspects of the physician-patient relationship. First, it buttresses the physician’s position of authority in the relationship. Id. Second, it instills a sense of certainty in the physician’s treatment recommendations. Id. at 148.

Physicians also resist the disclosure of errors because doing so creates worries about costs to reputation, loss of referrals and risk of litigation. Id. Finally, there are problems of analysis that contribute to physician’s failure to disclose errors because there can be doubt about the cause of a particular outcome. Communicating Errors, supra, at 204.

“The culture of an organization is the nonverbal part of the ongoing conversation among the individuals who comprise the organization.” Edward Dauer, Postscript on Health Care Dispute Resolution: Conflict Management and the Role of Culture, 21 Ga.St.U.L.Rev. 1029, 1044 (2005) (discussing Debra Gerardi, The Culture of Health Care: How Professional and Organizational Cultures Impact Conflict Management, 21 Ga.St.U.L.Rev. 857 (2005)). As one commentator observed, by compelling the disclosure and reporting of medical errors, the PSA is forcing a change in the culture of health care in New Jersey. Postscript on Health Care Dispute Resolution: Conflict Management and the Role of Culture, supra, at 1053. It stands to reason that this health care culture change will impact medical malpractice litigation.

CONCLUSION

The PSA has provisions which prevent disclosures made pursuant to its terms from being used against medical providers in a malpractice case. Any documents submitted to the Department of Health and Human Services are not subject to discovery or admissible in evidence in a civil or criminal hearing. N.J.S.A. 26:2H-12.25(f)(1). Additionally, a statement by healthcare provider advising a patient that he is the victim of a serious preventable adverse event are is not discoverable or admissible in evidence in a civil trial.

Although disclosure of a medical error under the PSA may not be brought to the attention of a jury in a medical malpractice case, it is a mistake to conclude that the compulsory immediate disclosure of a medical mistake will not impact medical malpractice litigation. Disclosure of a medical mistake under the PSA will require health care providers to immediately examine their actions and take responsibility for preventable adverse events of consequence. Not every serious preventable adverse event under the PSA will constitute a meritorious and viable medical malpractice claim. Nevertheless, every meritorious and viable medical malpractice case should meet the requirements of being a serious preventable adverse event under the PSA. Therefore, hereafter, in most medical malpractice cases, a defendant health care provider will have already examined his actions, concluded a mistake of consequence was made, and advised his patient and the state accordingly.

Failing to disclose medical error when they occur will often foreclose a physician from acknowledging the mistake in a subsequent lawsuit. Doctors, Apologies and the law: An Analysis and Critique of Apology Laws, supra, 110-111. At a minimum, if a plaintiff prevails, a defendant doctor can appear cold and unapologetic to the jury. Id. Furthermore, failing to honestly deal with a mistake at its outset can set the tone in a subsequent litigation, turning circumstances involving an honest error into a zero-sum credibility challenge, which unnecessarily escalates the stakes for everyone involved in the lawsuit.

Compulsory disclosure under the PSA should make medical malpractice cases less contentious because in many cases defendants will have already acknowledged and come to terms with the fact that they have committed a consequential mistake. Further, because the cultural and economic pressures that discourage disclosure and reporting of errors are some of the same forces that serve as obstacles to resolving a medical malpractice lawsuit, the PSA’s compulsory error reporting requirements should obviate many unstated motivations medical malpractice defendants have for not taking responsibility for their actions throughout the course of a lawsuit.

In 2003, the American Arbitration Association (AAA) reported that out of the thousands of matters it handled throughout the United States, only 1 involved a claim of iatrogenic injury in a health care setting. Dauer, Edward A., Postscript on Health Care Dispute Resolution: Conflict Management and the Role of Culture, supra, at 1036. There is reason to believe that changes mandated by the PSA may make ADR a more useful tool for medical malpractice defendants.

If the changes in medical culture caused by compulsory error disclosure and reporting make medical malpractice cases in New Jersey less contentious, plaintiffs will not be the only beneficiaries. Ninety-five percent of physicians sued for malpractice report strong emotional responses related to that event, physical reactions or both. Doctors, Apologies and the law: An Analysis and Critique of Apology Laws, supra, at 139. Id. One half reported insomnia and a minority reported the manifestation of physical problems related to being sued for medical malpractice. Id. at 140.

Perhaps the PSA’s error reporting and disclosure requirements will be just what the doctor ordered for patients and doctors who are unfortunate enough to have to go through a medical malpractice litigation. To be sure, many will be watching to see the impact this legislation has on the health care profession in New Jersey.

Shoulder Dystocia and the Duty of Informed Consent

Initially published in Medical Malpractice Law and Strategy Vol. 29, Number 6, March 1, 2012

Shoulder dystocia is a birth complicated by a failure to deliver the fetal shoulders through gentle downward traction on the fetal head. It poses an obstetric emergency, and is associated with brachial plexus injuries, fractures of the clavicle and humerus, and in some severe cases, hypoxic-ischemic encephalopathy and even death.

Shoulder dystocia can occur when there is impaction of either: 1) the anterior fetal shoulder behind the maternal pubis symphysis; or 2) the posterior fetal shoulder on the sacral promontory. Fetal macrosomia (a.k.a. “big baby syndrome”) and maternal diabetes increase the risk of encountering shoulder dystocia during a delivery. In addition, other antepartum conditions can also forecast that a delivery is at an increased risk for shoulder dystocia, including maternal obesity, multiparity, post-term gestation, previous history of a macrosomic birth and a previous history of shoulder dystocia.

With this array of possible indicators for shoulder dystocia, when must the physician bring the possibility of this complication to the patient’s attention in order to obtain informed consent for or against induced labor or cesarean section?

ACOG Guidance Insufficient

The American Congress of Obstetricians and Gynecologists (ACOG) offers some guidance concerning the duty of the physician to obtain informed consent from a patient at risk of a delivery completed by shoulder dystocia. ACOG takes the position that “planned cesarean delivery to prevent shoulder dystocia may be considered for fetal macrosomia with estimated fetal weights exceeding 5000 grams in women without diabetes [11 lb .36 oz] and 4,500 grams [9lb 14.73 oz] in women with diabetes.” Robert J. Sokol et al., ACOG Practice Bull. No. 40: Shoulder Dystocia, Compendium of Selected Publications, 682-687 (2002) (replaces Practice Pattern No. 7, Oct. 1997). Id. at 684. ACOG’s position about when it is appropriate for a physician to consider offering an expectant mother the option of a cesarean section when there is a diagnosis of fetal macrosomia seems overly rigid. First, ACOG concedes that ultrasonogaphy is not always an accurate predictor of macrosomia. Id. at 683. Second, while ACOG has suggested that a baseline level weight should be used to trigger when it is acceptable to consider a cesarean section due to a suspicion of macrosomia, the organization simultaneously recommends that when a mother has a prior history of encountering shoulder dystocia during labor and delivery, several factors need to be taken into consideration when discussing the risks and benefits of an elective cesarean section with the patient, including estimated fetal weight, gestational age, maternal glucose intolerance and the severity of the prior neonatal injury.

Issues of logical consistency aside, it would be a mistake to conclude that ACOG Practice Bulletin No. 40 sets forth the standard of care regarding when it is appropriate to discuss a planned cesarean section with an expectant mother in the face of evidence suggesting an increased risk of encountering shoulder dystocia during a delivery. A physician’s duty of informed consent is governed by state law, and different states have different legal requirements about how this obligation must be fulfilled. Moreover, common law and statutory law governing a physician’s duty of informed consent can evolve and change.

Consider State Law

State law is not uniform regarding what a physician must do to meet his or her obligation of informed consent. First, some states hold that a doctor’s duty of informed consent involves only disclosure of risks that are customarily disclosed by physicians. Laurent B. Frantz, Annotation, Modern Status of Views as to General Measure of Physician’s Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R. 3d 1008 (1978). Arkansas is a state that follows this approach. It has a statute that requires a plaintiff alleging a breach of a duty of informed consent to prove that the information the doctor failed to provide “would customarily have been given to a patient” in the plaintiff’s circumstances “by other medical care providers with similar training and experience” and “in the locality in which the medical care provider practices or in a similar locality.” A.C.A. § 16-114-206.

Other states take the position that a substantial risk must be disclosed to a patient in order for a physician to meet his duty of informed consent, unless the physician can demonstrate that there is either a local or a national standard that suggests that nondisclosure is appropriate. This second standard was used by the Colorado Court of Appeals in Stauffer v. Karabin, 492 P2d 862, 865 (Colo. App. 1971).

A third view is that a doctor’s duty of informed consent is measured by what a reasonable physician would disclose in similar circumstances. This is the approach the Supreme Court of Kansas took in Natanson v. Kline, 350 P.2d 1093, 1106 (1960).

The first three views regarding a doctor’s duty of informed consent have been characterized as the “traditional” or the “professional” standard formulation of a doctor’s duty of informed consent. D. Louisell and H. Williams, Medical Malpractice § 22.08 at 22-23 (1987). The “professional” standard “rests on the belief that a physician, and only a physician can effectively estimate both the psychological and physical consequences the risk inherent in a medical procedure might produce [in] a patient.” Largey v. Rothman, 110 N.J. 204, 210 (1988).

In 1972, a new standard of disclosure for informed consent was established by the United States Court of Appeals for the District of Columbia Circuit in the case of Canterbury v. Spence, 464 F.2d 772 (D.C.Cir.), cert. den., 409 U.S. 1064 (1972). Under this fourth view of informed consent, the scope of the information a physician is required to disclose is measured by “the patient’s need for information material to his decision whether to accept or reject a course the proposed treatment.” This fourth standard of informed consent is known as the “prudent patient” or “materiality of risk” standard. Under this view, for a physician to meet his duty of informed consent, he must disclose all information that is material to a patient’s decision. Canterbury, supra, at 786-787. A risk is material “when a reasonable patient, in what the physician knows or should know to be the patient’s position, would be ‘likely to attach significance to the risk or cluster of risks’ in deciding whether to forego the proposed therapy or to submit to it.” Largey, supra, at 211-212 (quoting Canterbury, supra, at 787).

Conclusion

In those jurisdictions adapting the “traditional” or “professional” standard formulation of the duty of informed consent, ACOG Practice Bulletin No. 40 could certainly influence an analysis of the amount of information and options a physician is required to offer to an expectant mother when there is antepartum evidence suggesting an increased risk of shoulder dystocia. Nevertheless, jurisdictions that have adopted the more modern “prudent patient” or “materiality of risk” standard of informed consent reject the notion that a physician’s obligation to provide information is limited to what is disclosed under the customs and practices of the medical profession. Consequently, it would be prudent for obstetricians to look beyond ACOG Practice Bulletin No. 40 and examine their states’ legal requirements regarding the duty of informed consent when making office policy decisions about when to speak to patients about planned cesarean delivery in the face of antepartum evidence suggesting an increased risk of shoulder dystocia during delivery.