Litigation trends in the USA
Andrea Parziale in The Law of Off-label Uses of Medicines, 2023
Like in the EU, physicians in the USA can prescribe approved medicines outside the terms of their approval, if they believe this is an appropriate way to treat their patients.1 Indeed, US courts recognise that off-label use is generally legal and appropriate.2 Likewise, the FDA points out that physicians “generally may prescribe the drug for an unapproved use when they judge that it is medically appropriate”.3 For all these reasons, off-label prescriptions do not necessarily warrant the prescriber’s civil liability.4 At the same time, the physician’s decision to prescribe a medicine off-label is a matter of professional medical judgment and, as such, may expose the physician to fault-based professional liability.5 In off-label medical malpractice cases, negligence is indeed the most common cause of action invoked by patients against physicians.6 As in any medical malpractice case, patients must prove, in essence, that the physician was negligent, that is, that they violated a duty of care owed to them, and that such a violation was the proximate cause of the harm suffered by the latter.7 Negligence and causation in off-label cases are outlined in turn next.
Medical Liability Insurance Data Analytics
Salvatore Volpe in Health Informatics, 2022
Since patients began suing health care practitioners, medical and legal data has been collected in methods and combinations peculiar to the process of defending the practitioner. While rules of procedure and evidence can differ from jurisdiction to jurisdiction, all medical malpractice lawsuits require a plaintiff to identify, with specificity, their allegations of how and when the defendant provider deviated from the standard of care, the nature and extent of injury, and how this damage is causally connected to the deviation. The defense is entitled to discovery testimony of the plaintiff patient which, along with other things, can identify the patient’s specific demographic, personal and familial health history, treatment history and specific, current health/injury status. This deposition testimony takes place after collection of all pertinent medical records from each potentially relevant provider, reviewed by the defendant practitioner’s attorney and, ideally, medical providers of the appropriate specialty. All this information is collected and stored, in some format, in a medical malpractice insurer’s claim file.
Medicolegal considerations
Hung N. Winn, Frank A. Chervenak, Roberto Romero in Clinical Maternal-Fetal Medicine Online, 2021
Expert witnesses are employed by opposing parties of a malpractice claim. Physicians who accept both plaintiff and defense cases are thought to be less biased. Depending on individualized State Tort Law, an expert may render appropriate opinions by virtue of similar practice and does not need to practice an identical discipline of medicine. Nonetheless, the expert must have knowledge of the standard of care and be familiar with the locality of the case setting. A favorable expert is one who is active clinically. While it helps to be familiar with current literature, it is very important that they have an understanding of the standards of care during the time period that the case actually took place. Oftentimes, years, and even decades, have passed before a case is filed. Also it is important that experts understand the setting by region and facility and how these factors can impact the evidence of a case.
Communication skills in primary care settings: aligning student and patient voices
Published in Education for Primary Care, 2023
Chandramani Thuraisingham, Siti Suriani Abd Razak, Vishna Devi Nadarajah, Norul Hidayah Mamat
Our study highlighted that socio-cultural differences can affect communication, the doctor-patient relationship, and ultimately patient outcomes. There are studies that show doctors behave less affectively and empathetically when interacting with ethnic minority patients [43]. In multi-ethnic societies, recognising this difference is crucial as patients prefer to speak in their own language, or they encounter difficulties in explicitly expressing themselves [44]. Both students and patients highlighted the importance of having a common language when communicating with one another. Patients’ level of education was perceived by students to influence their social behaviour which in turn impacted the way they were able to converse and comprehend information. Malpractice litigation against doctors has often arisen because of miscommunication [19].
Procedural Sedation by Non-Anesthesiologists: A Review of Malpractice Litigation
Published in Journal of Legal Medicine, 2022
Though this study includes just 25 cases, this does not imply that adverse events related to sedation by non-anesthesiologists are rare. It is simply rare that such events result in litigation. A medical malpractice case requires all four of the following: that a professional duty was owed to the patient, the clinician deviated from the standard of care, injury resulted, and the damages were directly caused by the breach of duty.25 If one or more of these components cannot be established, then a viable malpractice case does not exist.26 For this reason, any legal database is far from inclusive of all complications, but this study nonetheless offers valuable insight. It identifies cases that were substantial enough to be tried (or, for some, settled out of court) and highlights root causes of patient injury under sedation, of which all clinicians administering such should be cognizant.
Medical liability in the electronic medical records era
Published in Baylor University Medical Center Proceedings, 2018
Zachary R. Paterick, Nachiket J. Patel, Elizabeth Ngo, Krishnaswamy Chandrasekaran, A. Jamil Tajik, Timothy E. Paterick
Clinical decision support systems have the potential to initiate the transformation of present-day standards of care. In malpractice proceedings, each party presents expert testimony to delineate the applicable standard of care. Experts vary in their approach to defining the standard of care. They may rely on their clinical experience and judgment or they may summon clinical practice guidelines. Courts have allowed the use of medical practice guidelines in malpractice proceedings.11 This raises the potential for a court to admit clinical decision support protocols as evidence of the standard of care if an expert testifies that the clinical decision support reflects reasonable and customary care. The logical inference is that departure from clinical decision support may be evidence of negligence.
Related Knowledge Centers
- Deception
- Disability
- Pain
- Standard of Care
- Injury
- Suffering
- Medical Billing
- Informed Consent
- Allied Health Professions
- Medical Malpractice In The United States