Retrospective analysis of medical malpractice claims in tertiary hospitals of China: the view from patient safety

ObjectivesThe study analysed medical malpractice claims to assess patient safety in hospitals. The information derived from malpractice claims reflects potential risks and could help lead to reducing medical errors and improving patient safety.Design, settingWe analysed 4380 medical malpractice claims from 351 grade-A tertiary hospitals in China for 2008–2017. We examined the characteristics of medical errors and patient safety, including the types of medical errors, proportionate liabilities and payments for medical malpractice in different clinical specialties.Main outcome measuresWe assessed claim characteristics, payment amounts and liability.ResultsOur data analysis demonstrated that 72.5% of the claims involved medical errors, with average payments of US$31 430. The hospital’s errors in medical malpractice resulted in 41.4% average liability in patient injury payments. Most medical malpractice cases occurred in Shanghai (817 claims, 18.7%) and Beijing (468 claims, 10.7%). The highest risks for medical error and malpractice claims were related to orthopaedics (11.3% of all claims, 72.8% with medical errors) and obstetrics and gynaecology (10.0% of all claims, 76.0% with medical errors). The highest rates related to proportionate liabilities were observed in otolaryngology (51.9%) and endocrinology (47.7%). Respiratory medicine had the highest proportion of claims in death rates (77.3%). Medical technology errors accounted for 91.8% of the claims and medical ethics errors for 5.8%. The highest average payment was found in cardiovascular surgery (US$41 733) and the lowest in stomatology (US$8822).ConclusionsA previous study found that grade-A tertiary hospitals in China have similar medical error rates to general Chinese hospitals. 36Different specialties had different risk characteristics regarding medical errors, payments and proportionate liabilities. Orthopaedics had the highest number of malpractices claims and higher proportionate liability but lower death rates.

What’s the Rush? Tort Laws and Elective Early-term Induction of Labor

Tort laws aim to deter risky medical practices and increase accountability for harm. This research examines their effects on deterrence of a high-risk obstetric practice in the United States: elective early-term (37–38 weeks gestation) induction of labor. Using birth certificate data from the Natality Detail Files and state-level data from publicly available sources, this study analyzes the effects of tort laws on labor induction with multilevel models (MLM) of 665,491 early-term births nested in states. Results reveal that caps on damages are associated with significantly higher odds of early-term induction and Proportionate Liability (PL) is associated with significantly lower odds compared to Joint and Several Liability (JSL). The findings suggest that clinicians are more likely to engage in practices that defy professional guidelines in tort environments with lower legal burdens. I discuss the implications of the findings for patient safety and the deterrence of high-risk practices.

DRIFTING TOWARDS PROPORTIONATE LIABILITY: ETHICS AND PRAGMATICS

This article investigates an apparent, convergent shift in common law jurisdictions away from the traditional principle of joint and several liability towards proportionate liability in cases involving multiple wrongdoers, and argues that this is best seen as an unprincipled drift. The shift is often presented by defendants and legislators as a logical extension of the ethics of comparative (contributory) negligence doctrine. Here we deny any ethical connection between the two doctrines. We also suggest that there is no good, generalisable ethical or pragmatic argument in favour of proportionate liability in its own right and caution jurisdictions currently considering reform of the joint and several liability rule against leaping to any such assumption.

The contaminated land regime: time for a regime that is fit for purpose (Part 2)

Purpose – The purpose of the article is to show that the liability system established by Part 2A of the Environmental Protection Act 1990 is unfit for purpose because its mixture of joint and several liability and proportionate liability makes it impossible to implement and enforce effectively or efficiently as well as making it expensive to administer. The article aims to analyse the liability system and its effect on the implementation and enforcement of Part 2A. Design/methodology/approach – A research approach was taken to examine and analyse Part 2A and the accompanying statutory guidance, and its implementation and enforcement. This approach included researching the liability system of Part 2A in depth, liability systems in other jurisdictions to compare and contrast with the liability system in Part 2A, publications by the UK Government on the progress of Part 2A, and commentaries on Part 2A and its progress. Findings – The paper found that the liability system introduced by Part 2A is too complex to enforce effectively or efficiently. The article concludes that the result is a contaminated land regime that has failed to achieve its purpose in identifying land that poses a risk to human health and the environment and in remediating it. Originality/value – The paper is the first paper to examine and critique the liability system in Part 2A and its implementation in depth and to suggest issues to consider in its revision so as to replace the regime with a regime that is fit for purpose.

Total Liability for Excessive Harm

This chapter proposes a novel form of the negligence rule known as total liability for excessive harm to address situations in which several injurers cause harm and the court can verify the total harm caused by all injurers but not the degree of harm caused by each injurer. Under the rule of total liability for excessive harm, each individual injurer should be liable for the total harm that everyone causes in excess of the optimal harm. This rule creates efficient incentives because each injurer internalizes the marginal social benefit from reducing his excessive pollution, for example. The chapter first considers alternative liability rules such as strict liability, strict total liability, and proportionate liability, along with their limitations. It then explains the basic model of total liability for excessive harm and concludes with some real and hypothetical examples in which the rule could be applied to great advantage.

Causation in personal injury: legal or epidemiological common sense?

The approach adopted by epidemiologists when attributing a causal mechanism to an observed statistical association is contrasted with the common law of causation in personal injury cases. By recognising the need to distinguish between probabilistic measures of (1) the strength of an association and (2) the fact-finder’s ‘degree of belief’ in the claimant’s causal hypothesis, the verdicts in a number of epidemiology-based cases, mostly in British courts, are shown to be questionable. The argument is then made for a wider application of proportionate liability, extending beyond defective drug cases (where epidemiological evidence is most often found) to medical negligence, occupational injury and tobacco-related litigation. An increased coherence in the common law of personal injury can be achieved without compromising the fundamental aims of tort and, it is argued, by reaffirming the importance of just one ‘policy’ precedent on liability for increasing risk.