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U.S. Legal System and Medical Malpractice

The information presented on this site is of personal opinion and consequently is slanted and biased and not based on proper scientific research. The information presented is NOT written by a dental expert. Further the information presented has NOT been subjected to peer review by experts to verify accuracy and data integrity.

To have a chance at winning a medical malpractice lawsuit in the U.S. a patient must prove: [17, 18]

(1) the doctor to provide a standard of care to patients in the locality where the treatment occured (legal duty) (2) the doctor breached that standard of care (3) an injury causing damages (4) the breach of the standard of care was the proximate cause of the injury.

If you live in the U.S. understand that the current legal system has many problems.

1) Decisions are generally based on norms of practice or local or regional standards of care, ignoring the scientific evidence. This can limit recourse in the event of injury if a complication occurs. [1] Thus from a legal standpoint, if the expert oral and maxillofacial surgeon says the surgery is necessary, then it is necessary and this is the standard of care, even though for example in the U.K., removal of healthy impacted wisdom teeth is (in most cases) considered unnecessary. (One could counter this argument by saying it takes time to provide evidence to prove a new treatment is beneficial which is true but wisdom teeth removal has been occuring for many many years.)

2) Informed consent (in the U.S.) is often based on physicians informing patients of benefits, harms, and alternatives as a "reasonably prudent practitioner" in the same U.S. state would. "... evidence strongly suggests that the information that would be provided by one reasonably prudent physician may substantially differ from the information provided by another reasonably prudent physician. This variance could severely compromise the ability of an individual patient to receive treatment information that is important to them or to recover for damages if the information was not provided." [2]

3) Caps on damage awards in many states in the U.S. limit the maximum amount given to a patient who has pain and suffering caused by a doctor. Numerous patients who have won dental malpractice cases have had their monetary awards given by a jury lowered as the result of state damage caps. It is even possible that if the injury caused life-altering damage the bills are picked up by taxpayers and not the perpetrator(s) of wrongdoing (meaning the patient is broke and has no money but requires care, which particulary can occur as a result of damage caps). [3, 4, 19]

4) Failure to inform of anywhere close to all of the harms that can occur as a result of surgery. Currently 59 unique (headings - additional within) complications are found on this site that can occur from removing wisdom teeth while dentists and oral surgeons will typically discuss and have you consent to at most 8 or 9 such complications.

5) Filing a lawsuit can be very a emotional, time-consuming, and costly process so only those who have suffered serious injuries with the potential for large awards are likely to find a lawyer. A personal injury attorney writes on his medical malpractice blog about how his firm gets calls all the time from a bad result of dentistry work and the patient wants to sue. However, since the bad result was a known risk of the procedure there is usually no case. He states "sometimes there really was dental negligence, but then the injury is too small to really warrant a dental malpractice lawsuit. Getting a case with provable negligence, plus a significant injury, well, that doesn't happen every day." [5, 6] It is known that lawyers are less willing to take on a case unless they cross a certain threshold of non-economic loss damages that can be recovered even with a devastating injury and compelling proof of negligence or medical error. [14]

6) Unfortunately due to fear of being sued (and yes some do unfortunately sue without any merit and win - please do not sue without merit as it doesn't help the rest of us) many physicians practice what is known as defensive medicine. This has downsides for patients who can potentially be harmed when additional tests and/or procedures are ordered due to fear of being sued with no medical basis which can potentially cause their own harm or as a result lead to future harm of the patient. [7] For example in a 2008 survery of physicians, more than 60% agreed that they order some tests or consultations simply to avoid the appearance of malpractice. [20]

7) Regarding accuracy and fairness only 2% to 3% of patients who suffer injury due to negligent care file lawsuits. About 1/4 of the time money is awarded in claims without merit and also about 1/4 of the time no money is awarded in cases with merit. If only 2% to 3% of patients who suffer an injury due to negligent care even file lawsuits then where is the accountability for doctors providing the care? [6, 8, 9, 10, 11, 12]

Understand that the current medical malpractice climate in the U.S. provides very little incentive for health care professionals, physicians, and hospitals to disclose errors, learn from them and improve quality, and apologize to patients that have been injured. Patients and doctors need to be in an environment where they can work together that is mutally beneficial. Placing the blame on a single physician or other healthcare worker probably is not beneficial for either party. There are potential alternatives to the current system used, such as a disclosure-and-offer approach, negative outcomes insurance, and the ability to learn from other countries such as the no-fault approach used in Sweden and New Zealand and possibly the creation of a national system of health courts. [6, 11, 12] There is also an alternative to informed consent known as shared medical decision making that has yet to gain much traction in the U.S. Refer to http://blog.teethremoval.com/the-well-informed-patient/ for more information.

So far discussion has not been made of an additional culprit here which is the insurance industry which tends to charge excessive insurance premiums while increasing the net profit of insurance companies and the insurance industry. Special interest groups actively work towards lobbying Congress to support legislation that rewards doctors and others in the healthcare industry for malpractice in order to help increase their profits. [9, 13]

Although not at all representative of the legal system in the U.S., there was 1 case in 1988 in New York, in which a man suffered from partial loss of taste and sensation in his mouth due to nerve damage which occured while having four wisdom teeth removed. He sued his dentist for negligence since he was never informed of the risks and complications that can occur as a result of wisdom teeth extractions. The jury found a lack of proximate causation between the negligent diagnosis and his injuries. In addition, the jury found the dentist failed to obtain informed consent for the extraction, but also concluded that a reasonable prudent person in his position, even if fully informed of the risks and alternatives, would have proceeded with the operation. The court documents state "accordingly, the jury's finding resulted in a dismissal of the complaint". Talk about insult to injury make sure you see the controversy page. [15]

Updated October 28, 2013

References
1. Friedman JW. The prophylactic extraction of third molars: a public health hazard. Am J. Public Health. 2007. 97. pages 1554-1559.
2. Jaime Staples King and Benjamin Moulton. Rethinking Informed Consent: The Case for Shared Medical Decision-Making. American Journal of Law and Medicine. vol. 32. pages 329-501. 2006.
3. Isabel Wilkerson. Indiana Law at Center Of Malpractice Debate. New York Times. August 20, 1990. http://www.nytimes.com/1990/08/20/us/indiana-law-at-center-of-malpractice-debate.html
4. State enactments of selected health care liability reforms. Physician Insurers Association of America. http://www.piaa.us/ Rockville, Maryland. April 29, 2013. Mirror: http://www.teethremoval.com/State_enactments_of_selected_health_care_liability_reforms.pdf
5. Michael Bersani. New York Dental Malpractice Lawyers Sue Syracuse Dental Clinic. April 8, 2011. http://www.centralnewyorkinjurylawyer.com/2011/04/new-york-dental-malpractice-la.html Accessed April 23, 2010.
6. Nancy Udell and David B. Kendall. Progressive Policy Institute. Health Courts Fair and Reliable Justice for Injured Patients. February 2005. http://www.dlc.org/documents/healthcourts_0217.pdf
7. H. Gilbert Welch, Lisa M. Schwartz, and Steven Woloshin. Overdiagnosed: Making People Sick in the Pursuit of Health. Beacon Press. 2011.
8. American Medical Assocition. Medical Liability Reform Now! The Facts you need to address the broken medical liability system. 2013 edition. http://www.ama-assn.org/resources/doc/arc/mlr-now.pdf
9. Howard Mishkin. Doctors accountable for their mistakes? June 4, 2011. http://www.mishkindlaw.com/blog/2011/06/doctors-accountable-for-their-mistakes.shtml
10. David M. Studdert and et al. Claims, Errors, and Compensation Payments in Medical Malpractice Litigation. New England Journal of Medicine. 354. pages 2024-2033. May 11, 2006.
11. Allen Kachalia and Michelle M. Mello. New Directions in Medical Liability Reform. New England Journal of Medicine. 364. pages 1564-1572. April 11, 2011.
12. Kevin Pho. A medical malpractice system that reduces errrors and improves quality. April 25, 2011. http://www.kevinmd.com/blog/2011/04/medical-malpractice-system-reduces-errors-improves-quality.html Accessed June 29, 2011.
13. Ken Connor. The GOP's Selective Consitutionalism. January 28, 2011. http://www.centerforajustsociety.org/2011/01/28/31049/ideas-in-action/the-gops-selective-constitutionalism/ Accessed July 7, 2011.
14. Lucinda M. Finley. The Hidden Victms of Tort Reform: Women, Children, and the Elderly. Paper Delivered to Thrower Symposium, Emory Law School, February 19, 2004. http://www.law.buffalo.edu/baldycenter/pdfs/finlelypaper.pdf
15. John Frumer v Daniel D. Shube. No. 86 Civ. 4793. United States District Court for the Southern District of New York. August 11, 1988.
16. Maggie Mahar. Myths About Medical Malpractice. July 5, 2011. http://thehealthcareblog.com/blog/2011/07/05/myths-about-medical-malpractice-part-1-a-few-days-ago-i-found-myself-involved-in-a-debate-over-malpractice-suits-on-the-heath-care-blog-one-reader-on-the-thread-explained-why-in-his-view-we-ne/ Accessed July 9, 2011.
17. Edward Ellis III, James R. Hupp, and Myron R. Tucker. Contemporary Oral and Maxillofacial Surgery. 4th edition. Mosby. December 5, 2002.
18. Texter v Middletown Dialysis Center Inc. 22 A.D.3d 831. Appellate Division of the Supreme Court of the State of New York, Second Department. October 25, 2005.
19. Hot Coffee. HBO films. Aired June 27, 2011. http://www.imdb.com/title/tt1445203/
20. Emily R. Carrie and et al., "Physicians' Fears Of Malpractice Lawsuits Are Not Assuaged By Tort Reforms," Health Affairs, vol. 29, no. 9, pp. 1585-1592, 2010

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