Medicolegal Issues in Pathology

2008 ◽  
Vol 132 (2) ◽  
pp. 186-191
Author(s):  
Timothy Craig Allen
Keyword(s):  
Medical Records ◽  
Medical Malpractice ◽  
Expert Witness ◽  
Standard Of Care ◽  
Tort Law ◽  
Malpractice Litigation ◽  
Litigation Process ◽  
Risk Managers ◽  
Medicolegal Issues

Abstract The various methods used by risk managers to assist clinicians in handling medicolegal risk, including improving communication with patients and better dealing with medical records issues, are not particularly of benefit to pathologists. An understanding of tort law, the theory of negligence, the principle of standard of care, and the role of the expert witness helps the pathologist generally assess and manage risk and put it into context with daily pathology practice. An understanding of the litigation process and techniques to better handle a deposition and high-risk specimens or diagnoses are of practical value in avoiding a lawsuit or increasing the likelihood for good outcome in medical malpractice litigation.

The Role of Forensic Medicine in Medical Errors

2017 ◽  
pp. 144-170
Author(s):  
Grigorios Leon
Keyword(s):  
Forensic Medicine ◽  
Medical Errors ◽  
Crucial Role ◽  
Expert Witness ◽  
Standard Of Care ◽  
Medical Liability ◽  
Court Cases ◽  
Doctor Who ◽  
Malpractice Litigation

This chapter presents the importance of Legal and Forensic Medicine in medical malpractice and explains how autopsies have a crucial role for the evaluation and the prevention of medical errors. Health systems vary from country to country; however, experts are indispensable in each system. In fact, experts' opinions are asked for resolution of specific court cases. Standard of care is often assessed by expert medical witnesses who testify for one of the litigants. The physician who acts as an expert witness is one of the most important figures in malpractice litigation. Therefore, a doctor who is an expert witness has to have certain training and qualifications and to act under common recommendations. The ideal medical expert seems to be the forensic doctor. In the future, a harmonization of practices could be applied in medical liability cases and the guidelines provided by the medico-legal community could constitute a stable base for their evaluation.

The Medical Malpractice Litigation System

2021 ◽  
pp. 51-74
Author(s):  
Michael J. Saks ◽  
Stephan Landsman
Keyword(s):  
Adverse Events ◽  
Economic Analysis ◽  
Medical Malpractice ◽  
Great Majority ◽  
Tort Law ◽  
Malpractice Litigation ◽  
Legal Response ◽  
System P ◽  
Litigation Process ◽  
Tort System

“The Medical Malpractice Litigation System” provides a description of the conventional legal response to negligent adverse events. First, it discusses the origins, nature, and purposes (usually given as compensation and deterrence) of the tort system; explains the economic analysis of tort law (including the concept of negligence), and describes some of the specialized rules that apply only to medical malpractice torts. Most of the chapter is a data-based walk-through of the stages of the malpractice litigation process, including the proportion of cases that enter and proceed through each stage: initiation of claims (including attorney screening), pretrial disposition, trials, verdicts, compensation awards, and adjustments following verdicts. The evidence shows that the great majority of negligently caused injuries never enter the system, trials are rare, and negotiation plays so great a part that the system is best characterized as one of “litigotiation.”

The Role of the Autopsy in Medical Malpractice Cases, I

2002 ◽  
Vol 126 (9) ◽  
pp. 1023-1031 ◽  
Author(s):  
Kevin E. Bove ◽  
Clare Iery
Keyword(s):  
Clinical Diagnosis ◽  
Medical Malpractice ◽  
Standard Of Care ◽  
State Court ◽  
Medical Negligence ◽  
Trial Court ◽  
Autopsy Findings ◽  
Original Trial ◽  
Autopsy Diagnosis

Abstract Context.—Fear that damaging information from autopsy may be introduced as evidence in lawsuits alleging medical malpractice is often cited as one factor contributing to the decline in autopsy rates. Objective.—To determine how autopsy information influences the outcome of medical malpractice litigation. Design.—We studied state court records in 99 cases of medical malpractice adjudicated from 1970 to the present to assess the role of information from autopsies in the outcomes. Results.—The 3 largest groups defined by cause of death at autopsy were acute pulmonary embolism, acute cardiovascular disease, and drug overdose/interaction. Findings for defendant physicians outnumbered medical negligence in the original trial proceedings by a 3:1 margin. The appellate courts affirmed 51 acquittals and 19 findings of negligence, and reversed the original trial court decision in 29 cases for technical reasons. We found no significant relationship between accuracy of clinical diagnosis (using the autopsy standard) and outcome of a suit charging medical negligence. Even when a major discrepancy existed between the autopsy diagnosis and the clinical diagnosis, and the unrecognized condition was deemed treatable, defendant physicians were usually exonerated. Moreover, major diagnostic discrepancies were relatively uncommon in suits in which a physician was found to be negligent. Conversely, in about 20% of cases, autopsy findings were helpful to defendant physicians. Conclusions.—Our study confirms that a finding of medical negligence is based on standard-of-care issues rather than accuracy of clinical diagnosis. Autopsy findings may appear to be neutral or favorable to either the plaintiff or the defendant, but are typically not the crux of a successful legal argument for either side in a malpractice action. We conclude that fear of autopsy findings has no rational basis and is an important obstacle to uninhibited outcomes analysis.

Pathology Expert Witness Testimony and Pathology Practice: A Tale of 2 Standards

2005 ◽  
Vol 129 (10) ◽  
pp. 1268-1276
Author(s):  
Elliott Foucar
Keyword(s):  
Literature Review ◽  
Expert Testimony ◽  
Medical Literature ◽  
Expert Witness ◽  
Critical Role ◽  
Standard Of Care ◽  
Background Information ◽  
Malpractice Litigation ◽  
Expert Opinions ◽  
Mesh Terms

Abstract Context.—Pathologists work in an environment in which, to the extent possible, diagnostic decisions are based on scientific principles. It can therefore be a rather shocking experience when a pathologist finds one of his or her diagnostic decisions being evaluated by a legal system developed and controlled by lawyers and judges rather than by scientists or pathologists. This experience can be even more troubling when a key participant in the proceedings is a fellow pathologist guiding a jury toward an unfamiliar interpretation of the pathology standard of care. Objective.—To provide the interested pathologist with the background information necessary to (1) understand the role of expert testimony in malpractice litigation and (2) understand why there can be a gap between expert opinions expressed in court and expert opinions expressed in a medical care context. Data Sources.—Medical literature review supplemented by review of subspecialty position papers, selected articles from newspapers and magazines, and legal decisions. The medical literature review was limited to articles published in English and was based largely on articles retrieved using the MeSH terms expert testimony/legislation & jurisprudence, and pathology/legislation & jurisprudence. Conclusions.—Medical error has become an increasingly important topic for pathologists, and although errors or allegations of error are evaluated in many ways, the evaluation with the most impact on the individual pathologist is a malpractice case. During the last decade physicians have increasingly become aware of the critical role played by expert testimony in malpractice litigation. Some physicians have asserted that providing expert testimony is the practice of medicine, and that it is unacceptable for juries to be presented with expert testimony that incorrectly describes medical practice standards. However, this opinion has been vigorously opposed by attorneys who feel that juries are best able to come to a correct conclusion if they base their deliberations on a broad spectrum of opinion. Gaining an increased role in the oversight of expert testimony would allow physicians to establish a closer alignment between opinions expressed in court testimony and opinions expressed in clinical practice. However, despite some physician success in inserting themselves into the oversight process, both physicians and physician organizations attempting to take action against misleading expert testimony continue to be vulnerable to legal attack.

Could Patient Engagement Promote a Health System Free From Malpractice Litigation Risk?

2018 ◽  
pp. 431-454
Author(s):  
Massimo Miglioretti ◽  
Francesca Mariani ◽  
Luca Vecchio
Keyword(s):  
United States ◽  
Patient Engagement ◽  
Professional Education ◽  
Medical Malpractice ◽  
Large Scale ◽  
Active Role ◽  
The United States ◽  
Litigation Risk ◽  
Malpractice Litigation

In recent decades, medical malpractice litigation experienced a large-scale expansion in the United States as well as in Europe, involving both medical and surgical specialties. Previous studies have investigated the reasons why patients decide to sue doctors for malpractice and highlighted that adverse outcome, negative communication with doctors and seeking compensation are among the major reasons for malpractice litigation. In this chapter, patient engagement is discussed as a possible method for reducing the risks of doctors being sued for medical malpractice. The results of a first qualitative study underline how an active role for patients and their engagement in the treatment definition and execution could be a way to limit the occurrence of malpractice litigations. However, a second study noted that in Italy, many patients are still struggling to become involved in the process of their care. The authors discuss the role of professional education in promoting patient engagement in Italy.

Comparison of plaintiff and defendant expert witness qualification in malpractice litigation in neurological surgery

2014 ◽  
Vol 120 (1) ◽  
pp. 185-190 ◽  
Author(s):  
Jean Anderson Eloy ◽  
Peter F. Svider ◽  
Adam J. Folbe ◽  
William T. Couldwell ◽  
James K. Liu
Keyword(s):  
Expert Witness ◽  
Medical Community ◽  
Expert Witnesses ◽  
Witness Testimony ◽  
Expert Witness Testimony ◽  
Malpractice Litigation ◽  
Scholarly Impact ◽  
Medical Licensing ◽  
Neurological Surgery

Object Expert witnesses provide a valuable societal service, interpreting complex pieces of evidence that may be misunderstood by nonmedical laypersons. The role of medical expert witness testimony and the potential professional repercussions, however, have been controversial in the medical community. The objective of the present analysis was to characterize the expertise of neurological surgeons testifying as expert witnesses in malpractice litigation. Methods Malpractice litigation involving expert testimony from neurological surgeons was obtained using the WestlawNext legal database. Data pertaining to duration of a surgeon's practice, scholarly impact (as measured by the h index), practice setting, and the frequency with which a surgeon testifies were obtained for these expert witnesses from various online resources including the Scopus database, online medical facility and practice sites, and state medical licensing boards. Results Neurological surgeons testifying in 326 cases since 2008 averaged over 30 years of experience per person (34.5 years for plaintiff witnesses vs 33.2 for defense witnesses, p = 0.35). Defense witnesses had statistically higher scholarly impact than plaintiff witnesses (h index = 8.76 vs 5.46, p < 0.001). A greater proportion of defense witnesses were involved in academic practice (46.1% vs 24.4%, p < 0.001). Those testifying on behalf of plaintiffs were more likely to testify multiple times than those testifying on behalf of defendants (20.4% vs 12.6%). Conclusions Practitioners testifying for either side tend to be very experienced, while those testifying on behalf of defendants have significantly higher scholarly impact and are more likely to practice in an academic setting, potentially indicating a greater level of expertise. Experts for plaintiffs were more likely to testify multiple times. Surgical societies may need to clarify the necessary qualifications and ethical responsibilities of those who choose to testify.

Risk Analysis and Jurisprudence: A Recent Example

2000 ◽  
Author(s):  
Roger Cooke ◽  
Cor Kraaikamp
Keyword(s):  
Risk Analysis ◽  
Probabilistic Reasoning ◽  
Expert Witness ◽  
Tort Law ◽  
Objective Probability ◽  
Expert Witnesses ◽  
The Difference

Abstract We discuss a recent incident in which risk analysts appeared as expert witnesses in a civil tort case. The problems which this generated illustrate how the role of expert witness has drifted away from its traditional mooring. Unclarities on both sides of the bench with regard to the difference between subjective and objective probability combined with fallacies of probabilistic reasoning give pause to those who might expect a rapid entry of risk analysis into tort law and jurisprudence.

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