Gordon Bosker, M.Ed., CPO, CPed, FAAOP
Introduction
It has become apparent that the orthotic and prosthetic field is changing with
exciting and sometimes expensive technological products we use to treat patients. With
these products comes the responsibility to make the greatest possible effort to satisfy the
patient's orthotic or prosthetic needs by making sound decisions either using the
practitioner’s own experience or by learned evidence-based research. These new
technological products that are and will be supplied must meet specific international
standards and both vendors and practitioners have to understand the limitations and safety
requirements before they are made available for sale and use. Because the prosthetic and
orthotic field is a service profession we must understand and adhere to these limitations
and safety requirements set by the vendors or the result may be a product-liability
malpractice legal action. This segment of the meeting will provide a better understanding
of health care litigation and also introduce a case study of a product-liability malpractice
lawsuit.
Health Care Litigation
The “buzz” word in the medical industry, especially for the malpractice suits is
tort reform or the decrease in lawsuit payouts. Risk management personnel at the
University of Texas Health Science Center at San Antonio explain it in a very simplified
form. “For pain and suffering the plaintiff is allowed less but no more than the max
amount set by the state. However, this does not exclude loss of wages, medical or other
expenses that did and/or could occur in the future.” This statement appears to be a fair
and just for the plaintiff. But further investigation indicates that the physicians, plaintiffs
attorneys and patient safety proponents are not centralizing there focus on protecting
patients from medical errors nor fairly compensating the unfortunate few who do sustain
injury (Budetti, 2005).
American Medical Association
The American Medical Association (AMA), through their web site (American
Medical Association, 2006), has indicated that high-risk physicians in certain states are
leaving due to the high prices in liability insurance, Fig. 1. They are fighting Congress to
step in and decrease the cap on non-economic damages (pain and suffering) to $250,000
as well as providing resources to support similar state reforms.
Figure 1.
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The AMA argument - medical liability reforms are essential to ensure that
patients do not lose access to physicians and a full range of health care services or lack
therefore. It has also been suggested that some physicians alter their clinical behavior
because of the threat of malpractice liability. The AMA refers to this as “defensive
medicine” which may reduce care by refusing to treat particular patients or ailments.
This, again, has mainly been used as an argument for tort reform.
Advocacy Groups
Certain patient advocacy groups argue that the reason is not the litigation awards
but rather the insurance industries loss of money investing in the stock market. So, as a
result, the cost of premiums has to be increased (Napoli, 2003). These advocacy groups
even argue that they are loosing the national effort to improve patient safety because of
how organized medicine continues to push for “tort reforms”.
Is There a Real Problem?
The Institute of Medicine of the National Academies (IOM) mission is to provide
a service to advise the nation concerning health and science policy to policy-makers,
professionals, leaders in every sector of society, and the public at large to improve health
and health care (National Academy of Science, 2006). In 1999, they reported that 44,000
to 98,000 patients die each year in American hospitals because of patient safety
problems. Their book “To Err is Human” has attracted great national attention. This book
helped in setting forth a national agenda--with state and local implications--for reducing
medical errors and improving patient safety through the design of a safer health care
system. In 2001 the IOM released “Crossing the Quality Chasm: A New Health System
for the 21st Century”. In this book, an agenda was developed to set guide lines to
increase the quality of health care (National Academy of Science, 2001):
A all health care constituencies, including policymakers, purchasers,
regulators, health professionals, health care trustees and management, and
consumers should commit to a national statement of purpose for the health
care system as a whole and to a shared agenda of six aims for improvement
that can raise the quality of care to unprecedented levels. Clinicians, patients, and the health care organizations that support care
delivery should adopt a new set of principles to guide the redesign of care
processes. The Department of Health and Human Services should identify a set of
priority conditions upon which to focus initial efforts, provide resources to
stimulate innovation, and initiate the change process. Health care organizations should design and implement more effective
organizational support processes to make change in the delivery of care
possible. Purchasers, regulators, health professions, educational institutions, and the
Department of Health and Human Services should create an environment
that fosters and rewards improvement by (1) creating an infrastructure to
support evidence-based practice, (2) facilitating the use of information
technology, (3) aligning payment incentives, and (4) preparing the workforce
to better serve patients in a world of expanding knowledge and rapid change.
Product-Liability Malpractice Lawsuits
Product liability is the body of law that provides a person for compensation of
physical injuries and property damage resulting from distributing a product that is not
properly designed or manufactured (Rutgers, 2003). A manufacturer of a product may
not be held liable in the plaintiff's claim of negligence if there is a subsequent
modification which has altered the product and is the cause of plaintiff's injuries. But
before any patient can succeed in any health-care litigation, they must prove a
legitimated base for monetary liability and must be accomplished in front of a judge or
jury. This will begin our discussion in this session.
Introducing the Plaintiff: A Professional Person that is suing both the
prosthetist and the manufacture for a monetary amount of $19,000,000.
Defendant: Manufacture of the device that failed while ambulating
Defendant: Prosthetist who fabricated the prosthesis with the device
References
American Medical Association. (2006.) Medical Liability, Retrieved Dec 20, 2005 from http://www.ama-assn.org/
Budetti, Peter P. (2005). Tort Reform and the Patient Safety Movement. JAMA 293;21 Napoli, M. (2003) Malpractice is the Problem, Not Just the Cost of Malpractice
Insurance, Retrieved Jan 5, 2006 from www.medicalconsumers.org/pages/malpractice_not_insurance.html National Academy of Science. (2001). Crossing the Quality Chasm: A New Health
System for the 21st Century, Retrieved Jan 8, 2006 from
www.nap.edu/books/0309072808/html/R1.html National Academy of Science. (2006) Institute of Medicinc of the National Academies
Retrieved Jan 18, 2006 from www.iom.edu/ Rutgers, The State University of New Jersey. (2003) Product Liability Law, Retrieved
Jan 12, 2006 from sls.rutgers.edu/products_liability.htm
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