THE CIRCUMCISION REFERENCE LIBRARY


PEDIATRICS, Volume. 57, Number 3: Pages 392-401,
March 1976.



The Pediatrician and Malpractice

Rowine Hayes Brown, M.D., J.D.

From Cook County Hospital, Chicago Illinois

[CIRP Note: This article from three decades ago still provides a useful overview of pediatric malpractice law. This article is not intended to substitute for the advice of counsel.]

Medical malpractice and professional liability are problems of major importance to practicing physicians today. Although the first malpractice case of record in the United States occurred in 1794, relatively few were filed in the interim prior to World War II. A marked increase in malpractice suits has been experienced in each decade since 1940,1 and it is now anticipated that 20,000 such suits will be instituted this year. Breaking this down, it appears that one physician out of every five will be sued for malpractice during his professional career.2

After his February 1971 Health message, former President Nixon directed the Secretary of Health, Education and Welfare (Elliot Richardson) to create a Commission on Medical Malpractice "to undertake an intensive program of research and analysis in this area."3 This Commission convened, formulated a research plan, and, on January 16, 1973, published a two-volume report entitled, Report of the Secretary's Commission on Medical Malpractice."4 Although their methods, conclusions, and analytical material have been subjected to criticism and are deemed controversial, they do present a large-scale effort to research a problem area that had not been subjected to in-depth analysis heretofore. Several interesting statistics can be gleaned from their report. Their study was done on 12,000 malpractice cases which were concluded during 1970.4 p1 Less than 10% of those reached the trial stage, 29% of which resulted in payment to the plaintiff. The median payment was $2,000 and 3% of all claims were settled in excess of $100,000.4 p7 The claimants received a total of $80.3 million and another $10.4 million was expended on carrier legal fees and allocated cost. Only 2.3% of the claims filed were against pediatricians.4 p16 This low rate was equaled by psychiatrists and bettered only by ophthamologists. Briefly, the Commission report stresses the magnitude of the problem and the present privileged position of the pediatrician. During 1974 and 1975 an increasing number of suits have been entered against pediatricians and it is assumed the trend will continue.

The majority of malpractice suits are directed primarily against practitioners in the various surgical specialties. Often hospitals, offices, and staff are included as defendants, these being areas in which negligence, poor results, and inaccurate diagnosis are most apt to occur. Recent surveys show that orthopedic surgeons, plastic surgeons, general surgeons, and anesthesiologists are sued in that order of incidence.5 As of today pediatrics remains a low-risk specialty. But here again, the trend is changing. Our 1974 spot survey of American Academy of Pediatric members discloses that an impressive 15% of those who responded have been defendants in malpractice suits. When an infant or young child is seriously damaged by the negligence of another, the sympathy of judge and/or jury will be aroused and high awards can be anticipated.

There is a negative correlation between competence and the likelihood of being sued.7 Statistics show that a competent specialist is as likely to be sued as a less competent general practitioner. For example, surgeons who take on the most difficult cases are more often the best surgeons. They are sued more and for more money than some of the people who do less complicated and more common cases.

Concurrent with the increase in the number of malpractice suits is an increase in the amount of damages plaintiffs are now receiving from such suits. Between 1967 and 1971 throughout the country, there were 60 awards in excess of $200,000 each in medical malpractice suits. In 1968 alone, there were 15 cases in California with judgments entered between $1 million and $1.4 million. It is difficult to establish appropriate statistics because of the fact that so many suits are settled before they come to trial and that judgments is many cases are not appealed. As a general rule only appellate and supreme court cases are reported, making information concerning them in printed form available for dissemination. New York, California, and Florida are states where the largest number of these suits have been filed, tried, and where the highest judgments have been recorded.8 In New York, courts heard 407 malpractice suits in 1968. Five years later they heard 773 - a 90% increase. In 1968, each of these successful plaintiffs in malpractice suits receive an average of $9,878; in 1973 this figure rose to $23,426. Furthermore, several awards exceeded $1,000,000 in cases where negligence was proved. One of these involved a child to whom a New York court recently awarded a total of $2,110,000 for brain damage suffered shortly after her birth in a Manhattan hospital.9

In 1975, two malpractice suits involving children were tried in Chicago resulting in awards of $1 million in one, and $2,5 million in the other. Both involved severe brain damage from anoxia, one from alleged failure to perform a tracheotomy10 and the other from an anesthetic agent.11

Malpractice suits are not always capricious, conjured, or unfounded as many physicians want to believe. Patients do suffer unwarranted damages at the hands of the medical profession. Approximately 18% of medical malpractice incidents cause death, 19% leave permanent effects, 63% result in temporary effects, some of which are psychological.4 p11

Although a vast majority of malpractice claims are now still successfully defended, the trend of recent court decisions favor the claimant. The generosity of court and juries in granting liberal awards to injured plaintiffs apparently stems from the prevalence of liability insurance. Judges and juries know or believe that the burden of paying a judgment for damages ordinarily will fall on the insurer and not upon the defendant doctor. Thus, the cost of judgment settlements will be pro-rated among all who practice medicine and carry insurance, via the premiums paid for this coverage. In the first week of July 1974, premiums from malpractice insurance rose 93.5% in New York, resulting in physicians there paying the highest average malpractice rates in the nation, a distinction previously held by the state of California.

The trend towards ever-increasing malpractice insurance premiums, for both physicians and hospitals, has continued in 1975, resulting in rebellion, work stoppages, and new legislative enactments.

TRENDS IN COURT

Courts have recently relaxed many of the established procedures and rules heretofore governing malpractice trials, making it much less complicated for plaintiffs to recover. Some of such revisions are noted in the following instances:

(1) In order to overcome the difficulty plaintiffs encountered in obtaining expert witnesses for their trials, courts in some jurisdictions now permit the introduction of medical textbooks, publications, treatises, hospital bylaws, JCAH, and other accrediting and licensing bodies rules and regulations to establish deviation from standard medical practice. Previously such materials were not permissible as evidence as they were held to be "hearsay" evidence, due to the fact that their authors were not present in the courtroom to be questioned and cross-examined. The Illinois Supreme Court in the Darling Case12 decision adopted in the majority of jurisdictions, has set this new doctrine.

(2) The statute of limitations in many states in now interpreted to begin, not with the date of injury as is customary in other personal injury accidents, but with the date of discovery of the injury by the plaintiff. Illinois adopted this "discovery rule," but also has added a limitation clause to the effect that "no action can be started later than 10 years after such treatment or operation."13 Furthermore, patients of pediatric age who have been harmed may institute suit on their own behalf for damage suffered by them, when they reach their majority and within the additional period of the statute of limitations. Pediatricians must consider their own state's statute of limitations in determining how long they must keep records of their pediatric patients. Individual state statutes can be amended at anytime your state legislators are in session--consequently a chart of statutes of limitations in all the various states could be obsolete before publication. It behooves the doctor to keep abreast of current statutory changes in his own state.

(3) Physicians from outside the local community may now testify about the standards of medical practice. Previously the courts had held that only local physicians could testify to the standard of care in their local community. As a result of this change, plaintiff's attorneys are now able to bring in a physician from a different jurisdiction to testify against the local physician. Attorneys claim this is resulting in a break through against the so-called "conspiracy of silence" with which physicians have been charged when they are reluctant to testify against each other.

(4) Some courts have become more liberal in recognizing situations in which negligence on the part of the physician may be inferred from the circumstances, thereby dispensing with the burden on the plaintiff to produce expert medical testimony to support his case. This involves the doctrine of res ipsa loquitur, which literally interpreted means "the thing speaks for itself." Previously this doctrine was applied primarily in foreign-body cases when forceps, scissors, hemostats, sponges, etc., were left within a body cavity of a patient at the time of surgery. The effect of the application of this doctrine is to say to the physician, "your tools were left in my belly; they were not there before the operation; it is up to you to prove you were not negligent." Alaska has enacted a statute to do away with the doctrine of res ipsa loquitur. Other states (notably Illinois14 and California) attempt to expand the use of the doctrine and attempt to apply it in situations which were formerly inapplicable -- such as trauma or reactions from injections. Now all the plaintiff has to do is to prove that the defendant physician was in control of the procedure alleged to have caused the injury.

THEORIES OF LEGAL ACTIONS

The majority of malpractice suits are tort actions of civil liability. A "tort" is defined as any wrongful act, damage, or injury done willfully, negligently, or in circumstances involving strict liability, but not involving breach of contract, for which a civil suit can be brought, and which makes the perpetrator of the act liable under law to pay damages to the injured party. Several torts, the most common of which is negligence, fit under the penumbra of medical professional liability. The majority of malpractice actions (85%) are based on allegations of negligence, where the plaintiff contends that the medical treatment he received did not conform to the standards imposed on the physician by law.

Other tort actions to which a pediatrician could be subjected would be assault and battery (for treating a patient without consent, except in an emergency situation); fraud and deceit; false imprisonment (attempt to hold the patient in the hospital until the bill is paid.); libel and slander (written or oral information published by a physician which could be damaging to the patient's reputation); invasion of the right of privacy (taking photographs of the patient without express permission); and breach of confidential communications (where the physician discloses information about a patient which he learned under the physician-patient privilege).

In order for tort actions of negligence to prevail, the plaintiff must establish in court that:
(1) The physician had a duty to the patient (existence of physician-patient relationship); (2) that there was a dereliction or breach of that duty; (3) that the dereliction of duty resulted in damage to the patient; and (4) that the patient was, in fact, damaged.

Actions of this type are often hard to prove in court, because medical testimony is ordinarily required to show that the acts or omissions by the accused physician were in fact negligent, and such testimony is often difficult to obtain.

Should the patient die of injuries sustained through alleged malpractice, and suit is brought by the next of kin for loss of the loved one, the local prevailing "wrongful death statute" would apply in determining the amount to be recovered as damages. Many wrongful death statutes prescribe a limit on the amount of damages that the next of kin can recover in the event the deceased has been killed by the negligence of another, though an automobile accident, a personal assault, or an act of malpractice. The patient who lived would be able to sue for astronomical limits. The next of kin would be held to the statutory limit, which might be $10,000, $20,000, $30,000, etc. depending upon the statute in effect at the time of the death of the child, not the subsequent time at which the suit is heard. The limitation "handicap" has caused litigants to turn to other types of suits where no limitation of liability would be encountered. Several legal ploys have been tried, namely:

(1) Action on breach of contract: For example, a physician performed a tonsillectomy on a young child and the operation resulted in death of the patient from hemorrhage. The legal theory here is that the physician entered into a contract with the parents to perform a successful operation on their child. Because the facts showed that the surgical procedure resulted in the death of the patient, it is contended that a contract had been breached and that the patient should recover. Few courts have agreed with this theory. However, suits are allowed on breach of contract, if the physician specifically promised to effect a cure. or guarantee a result. Such statements should be avoided.

Because a contractual relationship usually exists between the physician and his patient, the physician may be considered to agree impliedly to treat the patient in an appropriate manner. The courts usually consider a malpractice action as tortious in nature whether the duty grows out of a consensual relation or has its origin in contract:

(2) Breach of Warranty: An increasing number of cases are being filed and tried on the theory of breach of implied warranty. Prior to the application of this doctrine in the Cutter Laboratory suit† about polio vaccine, implied warrant suits were concerned with defects in automobiles, bread, canned food products, etc. A $675,000 judgment against Cutter Laboratory in favor of one child who received polio vaccine which had not been attenuated. Although negligence was not proven per se, the court held that an unwritten guarantee had been breached. Consequently, this theory has been often cited in suits relative to drugs, biologicals, and blood transfusions.

(3) The doctrine of strict liability has been recognized recently by the courts in many of the blood transfusion cases based on claims of the patient having become infected with hepatitis. The courts have held that, although hepatitis can not yet be positively identified in the blood donor, and that the infectious agent can not be efficaciously removed from the blood prior to transfusion, the involved hospital, blood bank, physician, etc. are strictly liable if the patient contracts hepatitis during the course of or because of a blood transfusion whether negligence was proved or not.15 In these cases, the courts have held that a blood transfusion is a sale rather than a service, and therefore, the doctrine of strict liability is applicable.

(4) Another recent change has been the loss of charitable immunity. Until recently, all tax-supported, religiously-based, and other eleemosynary institutions were accorded the privilege of charitable immunity which heretofore had been used in legal actions against them. Recent court actions have removed or restricted the immunity of nonprofit or government hospitals. It is anticipated that this trend will continue. In several states (New Jersey, Hawaii, Alaska, New York, Georgia) specific statutes deny governmental hospital immunity.

(5) It should be stressed that a pediatrician who violates a provision of a statute which mandates an act, such as reporting, or eye prophylaxis, may incur civil liability. A recent suit of this nature in California16 resulted in an award of $600,000 to a battered child because a physician failed to report the original acts of abuse and the child became more seriously damaged from subsequent episodes.

(6) Pediatricians may be sued when acts of houseofficers under their direction result in damage to a patient. The author has been the target in such a suit when an intern and resident, under her jurisdiction failed to make a diagnosis of meningococcemia complicated by a Waterhouse-Friderichson Syndrome in a 9-year old girl who presented without an eruption.

(7) Recent court decisions involving the doctrine of informed consent have placed an increasing burden on physicians. An analysis of such decisions reveal significant differences in the legal requirements of the various states. In view of these differences, the lack of statutory requirements, and in the absence of decisions at the appellate court level, it is impossible to formulate any guidelines which would now be applicable to all states; therefore, stare decisis (previous court decisions will be applied. In a leading case, Grossjean vs. Spencer17 (Iowa, 1966), the court stated: "It is the duty of a doctor to make a reasonable disclosure of the dangers within his knowledge, which are incident or possible, in the treatment he proposes to administer. This does not mean a doctor is under an obligation to describe in detail all of the possible consequences of treatment. To make a complete disclosure of all facts, diagnoses, and alternatives or possibilities which might alarm the patient, that it would, in fact, constitute bad medical practice."

As a general rule, parents must give their consent before therapy is administered to their minor children. Minors who are either married, pregnant, or emancipated, and who are in need of treatment may usually give valid consent for their own medical or surgical treatment. In the event of an emergency requiring immediate treatment to a minor not classified above, such minor may usually give his own consent. The criteria to apply for circumventing parental consent is the feasibility of obtaining such consent weighed against the necessity for urgent treatment of the child. The sole judge of such feasibility is the physician.18 Documentation as to the state of the emergency is a must for the doctor's records.

Recently courts have become more lenient in permitting children of mature years to give their own consent for treatment of non-emergency conditions even including plastic surgery such as nose bobbing, skin grafting, smallpox vaccination, and removal of disfiguring lesions, such as those of Von Recklinghausen's disease. Furthermore, in some states (Illinois for example) the legislature has enacted specific statutes providing for treatment of venereal disease and/or drug abuse. Notification to their parents is not required. Forty-nine states and the district of Columbia have statutes providing for treatment of venereal disease in minors, generally without parental consent.19 p277 Twenty-five of these states expressly provide that the consent of no other party is necessary when a minor seeks treatment for suspected venereal disease: Alabama, Alaska, Arizona, Arkansas, California, Connecticut, Florida, Idaho, Kansas, Michigan, Minnesota, Montana, Nevada, New Jersey, New Hampshire, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Texas, Utah, and Washington. Six other states and the District of Columbia simply provide that a minor has the capacity to consent to treatment for a venereal disease: Indian, Kentucky, New Mexico, Oklahoma, South Carolina, and Virginia.

Statutes in six other states stipulate that physicians are relieved of liability for treating minors without parental consent: Colorado (limited to immunity for diagnostic examination), Nebraska, Massachusetts, Rhode Island (diagnostic examination of a minor is not an assault), Wyoming, and West Virginia. In the remaining 12 states, statutes provide for treatment of minors for venereal disease but require notification to parents or guardians. Hawaii requires the physician to inform the responsible adult if the patent does have disease; Iowa requires such notification only if it appears that the patient could infect other members of the family; Vermont requires such notice if the patient requires immediate hospitalization; Delaware, Georgia, Illinois, Louisiana, Maine, Maryland, Mississippi and Tennessee leave notification to the discretion of the physician.

Wisconsin appears to have no statutory provision for treatment of a minor's venereal disease without parental consent. Furthermore, in Illinois and Mississippi, minors who are either married, pregnant, a parent, or who are referred by a physician, clergyman, or a planned parenthood agency are entitled to birth control services.

Other states have broaden the rights of minors to give effective consent for contraceptive services.19 p279 Eleven other states and the District of Columbia by their statutes allow minors to obtain contraceptives without consent of their parents or guardians. In eight of these 12 jurisdictions (Colorado, the District of Columbia, Georgia, Kentucky, Oregon, South Carolina, Tennessee, and Virginia) minors are given the right to purchase contraceptives without the consent of their parents. Florida has a statutory provision which allows a physician to provide nonsurgical contraceptives to any minor without parental approval if in his opinion, the minor may suffer probable health hazards without them. Maryland law states that a minor may apply to a physician for contraceptives, but the physician may, at his discretion, report such request to her parents or guardian.

An additional nine states (California, Hawaii, Louisiana, Massachusetts, Michigan, New York, Ohio, and West Virginia will only allow minors who are present or potential welfare recipients, parents or about to be married to obtain contraceptives from publicly sponsored family planning programs. In 1971, the California Supreme Court20 held an abortion could be performed in that state to an unmarried "unemancipated minor" without parental consent. The court applied that section of the California Civil Code which permits minors to receive surgical treatment relating to pregnancy. This decision, plus that of the U.S. Supreme Court in Roe vs. Wade21 would subject a single mother to no more restrictions than an adult married woman in seeking abortion. Other states now agree with those interpretation, unless they have specific statutes to the contrary.

The above last-mentioned regulations demonstrate the legislative trend toward the freedom of minors to obtain medical assistance on their own volition. They also demonstrate the flexibility of the law when there is a specific goal such as eradication of venereal disease or drug abuse. They further stress the need of practicing pediatricians to be knowledgeable concerning the law of their own state. To prescribe contraceptives outside of the terms of the law could leave a physician liable to suit by the parents of the minor. The author is unaware of any such suits being prosecuted, and feels parents would be loathe to institute them inasmuch as they could be interpreted as providing open knowledge that the involved minor was in fact sexually active.

MEDICAL LIABILITY SUITS

A nationwide study was recently carried out by St. Paul Fire and Marine Insurance Company22 on a total of 5,096 malpractice cases. The allegations on which the majority of these suits were instituted are depicted in Table I. When the Medical Protective Company's national study of professional liability claims involving payment of damages levied against pediatricians23 was reported it revealed that claims arose in seven significantly discernable groupings listed in Table II according to frequency.

                         TABLE 1

   Allegations on Which Malpractice Claims Were Based

       Category                           No. of Cases

   Improper treatment                         2,605
   Failure to diagnose                          970
   Anesthesia related                           291
   Lack of informed consent                     111
   Injection related                             98
   Abandonment                                   40
   Radiation burns                               27
   Emotional trauma                              25
   Transfusion-related                           18
   Failure to refer                              15
   Billing problems                              10
   Failure to discuss alternate treatment         9
   Other                                        777
                              TABLE II

              Frequency of Types of Malpractice Claims*

   Frequency                       Type of Claim

      1                Failure to diagnose or treat in time
      2                Improper treatment or failure to treat
      4                Contingent (damage adjacent to site of
                          treatment
      5                Patient management (falls in office, falls from
                          examining table, etc.)
      6                Abandonment or assault (treatment without
                          proper consent)
      7                Foreign Bodies (left during treatment)

   * From the Medical Protective Company study.23

The authors analysis of 105 recent medical liability cases24 encountered in either legal or medical literature pertaining to patients of pediatric age is selective but supports the insurance studies above mentioned. It excludes cases which involve physicians other than pediatricians, and excludes incidents of a surgical nature unless the surgery (e.g., circumcision) was performed by a pediatrician. Allegations ranked in order of frequency were: (1) Improper treatment, negligent treatment, or failure to treat - 29; (2) failure to diagnosis or to make a timely diagnosis - 21; (3) birth injury, anoxia, negligence in handling newborns - 18; (4) complications from drug treatments or errors in medication - 16; and (5) lack of consent - 7.

Death occurred in 16 (15.23%) of the above cases and blindness or brain damage in 29 other children. The cases involving failure to diagnose included phenylketonuria, erythroblastosis fetalis, retrolental fibroplasia, foreign bodies, congenital dislocation of the hip, appendicitis, meningitis, subdural hematomas, and diabetes. In all of these conditions, failure to diagnose or failure to diagnose promptly can result in permanent damage or death of the child. It is apparent that neonatologists are in a precarious situation because they are concerned with many conditions which involve anoxia and its horrible sequelae. Approximately 22% of the cases involved newborn infants.

Alarm has been generated by the increasing number of medical liability suits filed recently by young adults who many years ago were blinded by retrolental fibroplasia before it was even known to the medical profession that excessive oxygen was the etiological factor. A New York case on this condition25 was settled by a 21-year-old girl for $165,000 while the jury was deliberating the final damages they felt she should receive. The jury, when later polled, stated that hey would have come in with a verdict in her favor for $900,000. In support of the old adage that "nothing succeeds like success," and on the heels of the above successful settlement, a rash of suits on retrolental fibroplasia is being brought into courts today, especially on cases which occurred in the 1950's, when a maximum of $5,000 coverage in malpractice insurance was considered completely adequate for a pediatrician. It is reported that such devastating lawsuits have already been filed in New York, Kentucky, and Iowa. Estimates indicate that as many as 5,000 to 10,000 suits will be filed against pediatricians who apparently were responsible for the care of premature infants who developed retrolental fibroplasia. It must be stressed that the blind victims of this condition can be paraded before the judge and jury during the trial, resulting in sympathy for the plaintiff patient. One must realize that these cases are being brought into court even though the standard of care required at the time the incident occurred was met. They are also being brought against pediatricians in private practice, in small communities, as well as against pediatricians in academic settings who might well be expected to have more sophisticated equipment at hand. The Committee on the Fetus and the Newborn of the Academy has appointed a special task force to study the problem of retrolental fibroplasia. The author feels their research of the standard of care in vogue throughout the country during the 1950's could be beneficial in proving that the physician did not deviate from such standard, and therefore was not negligent.

Following the above trend, an upsurge of suits may be filed on behalf of victims suffering permanent damage from erythroblastosis fetalis, phenylketonuria, and other disabling diseases suffered by victims during their infancy. In order to prevail, plaintiffs in such suits must prove the pediatrician was negligent and did in fact deviate from the established standard of care required at the time the incident occurred was met.

These belated suits so filed by the actual patient stress the fact to us that a minor upon reaching his majority may institute suit on his own behalf for harm done to him while he was an infant. It may appear unfair to a pediatrician when he realizes he may be subject to a suit many years after the alleged incident occurred. The law has recognized that minors, because of their infancy, and incompetents are in need of protection. The law attempts to protect a child from an unfair settlement which someone else might have made on his behalf when he was an infant. Thus, the child, when he reaches his majority, usually 18 to 21 years of age may sue to rectify the inadequacy.

The drug-related suits included overdose, inappropriate drugs for the condition diagnosed by the pediatrician, failure to treat as required (silver nitrate eye prophylaxis), and several instances where tetanus resulted because the doctor failed to administer tetanus antitoxin after an injury, where the use of such prophylaxis was subsequently held to have been indicated. The recent Texas decision in the Reyes case26 involving mass immunization with polio vaccine has alarmed pediatricians. Following an outbreak of polio in a Texas community, the Reyes infant received polio vaccine in a mass immunization effort. She subsequently contracted paralytic polio. Although the virus strain responsible for her attack of polio was different from the virus in the vaccine, identified as the "wild virus" responsible for the outbreak, the court held Wyeth Laboratories responsible, and awarded her $200,000 damages. The court held that manufacturers of vaccines were directly responsible for warning consumers in state polio immunizations campaigns that polio is a possible complication of polio immunization. The United States Supreme Court refused to review the case, so the Texas ruling stands. When the court holds that parents must be warned of any possible ill effects following any immunization, one naturally assumes that this would act as a deterrent to all efforts to maintain a high level of immunization of the children of this nation.

MONETARY DAMAGES

In determining the amount of monetary damages which are to be awarded to the alleged victim of a negligent act, a number of factors are considered by the judge and/or jury. For instance, if a very young infant has been severely damaged from anoxia, and is in a vegetative state from which he will probably never emerge, he will require total care for the rest of his life. The anticipated life span can be calculated from actuarian tables with fair accuracy. Thus the total number of years during which custodial, medical, and other types of care will have to be provided, for an infant which will be over 70 years. These anticipated actual costs to the patient will be included in the measure of damages. They will include bills for hospital care, pediatricians, other and future physicians, nurses, laboratory tests, medications, special treatments, procedures etc. To these totals will be added the cost of day-to-day custodial care, and the loss of reasonable projected earnings the child will never realize because of his impaired physical and mental status. Some awards will also include a specific amount for the parents of the child for their "loss of the services and earnings" of the child.

When the above components of the award is computed, it is not unusual for the total amount to be several hundred thousand dollars. The legal custom today is to enter the courtroom with the amount of damages already set forth as part of the legal complaint filed. e. g. $5 million. Exclusion of this ad damnum clause is suggested by many lawyers who study the malpractice problem to avoid a suggested top figure.

It is unfortunate that the injured plaintiff receives only a small portion of the amount of damages awarded. Court costs, expenses, and the attorney,s contingent fee all absorb a large amount. The amount of the contingent fee may be established in advance by the attorney and the plaintiff and may exceed 40% of the award which will be recovered. Some state statutes may limit the amount of a fee which involves an infant, perhaps to 25%. Physicians propose that the contingent fee either be abolished or have limits set by law, comparable to awards utilized by workmen's compensation. Some legislation has been forthcoming in this area. Other recent legislation limits the amount a plaintiff may recover to $500,000 which statutory limitation will in all certainty be challenged in our courts as being unconstitutional.

"WHY MALPRACTICE SUITS"

Many have conjectured as to why medical liability suits have increased so drastically in recent years. Some causes are levelled at physicians, to the effect that: (1) some will not admit to themselves that they have limitations either in training and experience; (2) they often take on more than they are qualified to do; (3) the physician-patient relationship has suffered due to excessive specialization; (4) they have permitted patients to lose confidence in and respect for the medical profession; (5) unwarranted poor rapport and communication with patients; (6) physicians fail to measure up to the doctors depicted in television shows; (7) physicians may press for payment of their bill and spur the patient to retaliate by some type of suit; and (8) careless remarks made by one physician against another, etc.

Some malpractice suits have led to beneficial changes in medical techniques either in the doctor's office or hospital setting. These would include many time-taking chores that heretofore have seemed inconsequential or trivial, for instance, better records, appropriate labeling of gas tanks, proper labeling of medicine, double or triple sponge and instrument counts, etc.

On the other hand, the threat of medical liability suits has resulted in physician practicing defensive medicine.27 Doctors now have a tendency to overutilize diagnostic tests and procedures in some cases and to omit diagnostic procedures or new methods of therapy in others because of their hazard potential. Defensive medicine tests which are commonly used by pediatricians include the following: Routine skull X-rays on any child who bumps his head; medical consultations when not really indicated; routine battery of blood chemistry tests; routine exhaustive hematological tests; thyroid studies; electroencephalograms and spinal punctures routinely on first febrile seizure, etc. Conversely, the threat of malpractice suit may discourage the physician from performing procedures which might be necessary to help a patient.

PROGRESS TOWARD SOLUTION OF THE PROBLEM

The marked increase in medical liability insurance premiums has spurred action at many levels. Both national and state legislation is being considered or being enacted. The goal is to allow physicians to carry adequate medical liability insurance at reasonable prices. Some of the proposed enactments attempt to limit the amount of damages which a patient may recover for his alleged "malpractice" injuries (which enacted limits will undoubtedly be tested in court as to their constitutionality). The various medical and surgical specialty organizations, such as the American Academy of Pediatrics are studying the problem as it relates to their own members and are coming up with recommendations. An ad hoc committee on medical liability appointed by the Council on Pediatric Practice is processing a brochure on the subject for distribution to the members of the Academy. This follows a spot survey of the membership concerning their experience with malpractice problems. Doctors are using "self-help" tactics such as work stoppage, 24-hour moratoriums, etc., as pressure devices against insurance companies. The medical profession as a whole is taking steps toward recertification of physicians in order to determine their current competence to practice medicine. Those who are found to be incompetent will either be forced to withdraw from the practice of medicine or be extremely limited in what they are permitted to do. Purging of the medical profession, compelling it to adhere to the highest possible standards, is inevitable. Policing will come from outside the medical profession if physicians do not act promptly on self-discipline.

PROPHYLAXIS

If a physicians commits willful or gross negligence, which results injury to a patient entrusted to his care, he, like anyone else, should be liable for the harm he inflicts.

Many suits are brought arising out of misunderstandings between the doctor and patient or, parenthetically, because of lack of communication between them. Information should be proffered, explanations should be made, but guarantees of a cure or perfect result should never be made. Such guarantees are interpreted by a court of law as a definite contract between the patient and his doctor on which the patient may sue his physician for breach of contract.

Be sure you obtain an informed consent prior to institution of therapy, and ideally from both parent or guardian and the child especially if the latter displays maturity of thought and judgment.

Exercise at least the same standard of care, skill and judgment as displayed by others in your specialty.

Pursue established methods of therapy; depart form such at your own peril; conduct research or experimental procedures only with informed consent of both parent or child (where the patient is 7 years of age or older).

Be sure the prescriptions you write are legible (preferably typewritten or printed); retain a copy for your records whenever possible. Mystique leads to mistakes!

Always order the customary and necessary laboratory tests, biopsies, and X-rays pertinent to the particular disease you are suspecting or treating; and once you order them obtain the results and study them. Enter date, time, and personally sign or initial reports when read by you.

Do not ignore a family's request for consultation. The public is aware that they have a right to request another physician's opinion. Consultations are of prime importance in cases involving newborn infants, in clinical conditions which are obscure, in patients who suffer from diseases or conditions with medical-legal or criminal implications, where there is a serious medical or surgical risk, where the diagnosis is not understood, if there is doubt concerning the best method of treatment, and if you sense belligerence as a reaction to your own findings and recommendations.

Complete and accurate records must be kept in both office and hospital. They should contain documentation of facts pertaining to the particular patient and his treatment. Good records constitute one aspect of defense in a malpractice suit. Records should be kept for at least 28 years on pediatric patients which will allow the statute of limitations to run after majority is reached. A 28-year period in which records should be kept is necessary in states like Illinois where the minor may institute suit upon reaching his majority (18 years) plus an additional ten-year period in which he "discovers" the harm done to him when he was an infant. Records may be reduced to microfilm to facilitate storage, and the cost of microfilming will be added to the "cost of patient care."

Remember that some adults are habitual litigants or are more "suit-prone" than others. These include alcoholics, "doctor-shoppers," and emotionally disturbed patients, who should either be avoided or handled with special care.

Continuing medical education is now a basic requirement. Physicians must keep abreast of new developments in their own field or in any other field which may be relative.

Read the medical legal cases encountered in newspapers, medical journals, and "throwaway" journals. These will apprise you of recent decisions, new trends, damages awarded, etc.

Purchase adequate amount of medical liability insurance. Talk with your attorney about malpractice problems. As in law, as in medicine, as in mending, "a stitch in time saves nine."

CONCLUSION

The issue of medical malpractice has reached crisis proportions in the United States today. Such is a consequence of the burgeoning number of suits, the exorbitant damages awarded, and the excessive premiums or inavailability of medical liability insurance. Pediatrics has until recently been a low risk specialty, but now suits are being brought against pediatricians with increasing frequency, especially against neonatologists. Medical liability suits are brought on many different legal theories. Broad attempts are being made to resolve the problem. Pediatricians and others can and should take prophylactic steps to ward off such suits.


(Received August 4, manuscript accepted for publication August 7, 1975.)

ADDRESS FOR REPRINTS: Cook County Hospital, 1825 West Harrison Street, Chicago, Illinois 60612

* In 1973 more than 2,000 claimants in New York were awarded $17.4 million.8

† Where a California court entered a judgment in the amount of $675,000 on behalf of a child who allegedly contracted polio following the administration of polio vaccine.

REFERENCES

1. Committee on Medicolegal Problems: Malpractice and the Physician. Chicago. American Medical Association, 1951.

2. Morris RC, Moritz AR: Doctor and Patient and the Law. St. Louis. CV Mosby Co, 1971, p. 325.

3. Nixon RM: Executive order following the President's Health Message of February 18, 1971.

4. Report of the Secretary's Commission on Medical Malpractice. Government Printing Office, 1973.

5. Twelve months of medicine in court. JAMA 217:1287, 1971.

6. Ad Hoc Commitee on Medical Liability of the Council on Pediatric Practice: Medical Liability Questionnaire. Evanston, Illinois, American Academy of Pediatrics, 1974.

7. Ball DT: Remarks on professional liability. Panel discussion, second annual meeting of the American College of Surgeons, March 27, 1974.

8. Chicago Tribune, October 11, 1974, section 2, p 2.

9. Time Magazine, Medicine, July 15, 1974, p 78.

10. Chicago Tribune, July 18, 1974, section 1, p 5.

11. Burrow vs. Widder et al., Circuit Court, Chicago, Illinois, November 1, 1974.

12. Darling vs. Charleston Community Hospital, Illinois Supreme Court, 211 N.E. 2nd 253, 1965.

13. Illinois Revised Statutes, 1973, chapter 83, section 22.1.

14. Edgar County Bank & Trust Co. vs. Paris Hospital, Inc., 57 Illinois 2nd 298, 312 N.E. 2nd 259, 1974.

15. Cunningham vs. McNeal Memorial Hospital, 47 Illinois 2nd 443, 266 N. E. 2nd 897, 1970.

16. Time Magazine, Medicine, November 20, 1972.

17. Grossjean vs. Spencer, 140 N.W. 2nd 139, Iowa, 1966.

18. Illinois Revised Statutes, 1973, chapter 91, section 18.3

19. Jordan E: A minor's right to contraceptives. University of California Law Review 7:277, 1974.

20. Ballard vs. Anderson and 4 Cal 3rd 873, 95 California Reporter 1, 484 P. 2nd, 1345, 1971.

21. Roe vs. Wade, 410 U. S. 113, 1973.

22. Professional Liability Risk Management Department: Malpractice Digest. St. Paul Minnesota, St. Paul Fire and Marine Insurance Co. 1973.

23. Department of Consumer Affairs: A Professional Liability Profile of Pediatric Practice. Fort Wayne, Indiana, Medical Protective Co, 1974.

24. Brown RH: Read before the Central Ohio Pediatric Society, Columbus, Ohio, April 24, 1974.

25. Kalmozitz vs. Brookdale Hospital, tried before the Brooklyn Supreme Court (reported in Newsweek, April 7, 1975, p 49).

26. Reyes vs. Wyeth Laboratories, 498 Federal Reporter, 2nd series 1264 US Court of Appeals for the Fifth Circuit.

27. The malpractice threat: A study of defensive medicine. Duke Law Journal, 1971.

ACKNOWLEDGMENT

The author wished to acknowledge the consultation and assistance of Richard B. Truitt, J.D. (of Truit, Brown, and Truit, Chicago, Illinois) in the preparation of this manuscript.


Citation:
(File revised 18 September 2006)

http://www.cirp.org/library/legal/brown/