EFFICIENT SCREENING

Many of the potential causes of action are never pursued. Most medical malpractice enquirers should, however, be turned away. Cost-efficient filtering, the key to success, is first legal then medical.

Many of the potential causes of action are never pursued. The large majority of adverse events caused by medical negligence are never litigated. A landmark Harvard study 1 estimated that 1% of hospitalisations resulted in an adverse event arising out of medical negligence, leaving 2-3% of hospitalised patients with avoidable disability.

Practice Point

Most would-be medical malpractice litigants have no viable claim

Most medical malpractice enquirers should, however, be turned away. The bulk of would-be litigants have no viable claim - for a variety of reasons.

A central problem is that enquiries are driven by severity of the adverse outcome rather than by identification of negligence. Awards, it has been claimed 2, bear no relation to negligent acts. Characteristic of unwarranted claims against internists was that the adverse outcome was unexpected 3.

In contrast with accidental personal injury litigation, where the main medicolegal issues are liability and quantum of damages, contentious elements in medical malpractice are generally standard of care and causation.

Practice Point

The majority of adverse events arising out of medical negligence are never litigated

At least 95% of medical malpractice enquiries must be rejected during the initial legal and medical screening process4. Mining economically for gold among the dross of flawed claims is a master skill of the medical malpractice litigator.

Cost-efficient filtering, the key to success, is first legal then medical. Careful primary legal screening will substantially reduce the numbers of malpractice enquiries that require any medical consideration. Statutes of limitation may bar further consideration. A number of enquirers are obviously psychologically disturbed, some expressing wide-reaching paranoia about medical professionals.

Critical comments by other treating professionals rarely translate into supportive expert opinion 5.

It may be quickly evident that there is no cause for action, or that the complaint is more appropriately addressed to the provincial college of physicians and surgeons. If the principal motivation is accountability or community protection 6, this disciplinary route should be considered additionally or alternatively.

Commonly the maximum quantum of damages is obviously so small that the case is not worth pursuing.

Practice Point

Efficient selection of the cases with at least a one-in-three probability of settlement is a master skill of medical malpractice litigators

A number of potential claims will pass the legal filter and require consideration on standard of care, causation and quantum of damages from a medical perspective. A resource physician with expertise in legal medicine must review the majority - and will reject most as having fatal medical flaws. In many cases, elements of substandard medical care can be identified but cannot be shown to be the cause of the adverse outcome.

Between the legal assessment and the medical screen, a dispassionate clarification of the precise grievances can lead to an estimate of potential viability. Sometimes the emotional rhetoric of the scandalised complainant contaminates the judgment of the litigator, and a better understanding of the common themes of patients who want to sue their doctors can help return control to the cool head.

Studies 6 7 8 9 10 regularly demonstrate that a seemingly uncaring caregiver attitude and communication breakdown underpin most decisions to seek compensation for perceived negligence. Such self-report research is supported by the few volunteer-simulation studies undertaken 11.

Researchers have identified characteristics of physicians perceived to be as high and low risk for medical malpractice suits 12. High risk was correlated with older physicians, surgical specialty, emergency department involvement, unavailability, and a sense of unfairness about the litigation climate. Low risk physicians tended to schedule sufficient time to talk with patients, directly answer telephone calls from patients, perceive practice arrangements as satisfactory, and have greater awareness of emotional distress. However, such profiles do not help litigators determine whether such claims have merit.

Practice Point

Probability that a factor will prove negligent, from most likely to least likely:
1. therapeutic omission
2. diagnostic error
3. emergency room treatment
4. postoperative surgical
5. surgical technique

While statistics cannot predict the viability of a particular cause of action, decision to proceed with medical screening on marginal cases may be helped by earlier Harvard studies 13 of the circumstances in which adverse events arise from negligence.

Copyright 2009 Electronic Handbook of Legal Medicine