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Medical Malpractice: A Physician’s Sourcebook.

Section Editor(s): Ellison, NorigBerry, Frederic A. MD

Book and Multimedia Reviews: Media Review

Professor of Anesthesiology; University of Virginia School of Medicine; Charlottesville, VA

Medical Malpractice: A Physician’s Sourcebook. Anderson RE, MD, ed. Totowa, NJ: Humana Press, 2004. ISBN 1-58829-389-0. 300 pages, $59.40.

This book is exactly what it says it is: a sourcebook. If someone is looking for particular situations in the field of anesthesia, then there is little in this book that would reward them. On the other hand, it is a good overview from many perspectives in the medical malpractice field.

Part 1 deals with how to insure the practice of medicine. Part 2 describes the legal aspects of the medical legal system. There is a good discussion of the issues of medical malpractice lawsuits, risk reduction, the physician as a witness, and the judicial process including the issues of discovery and depositions.

Part 3 is entitled “The Critical Phase of Litigation.” There are nine chapters in this section, which primarily deal with the medical malpractice issues facing emergency medicine, family physicians, anesthesiologists, obstetricians, and gynecologists, as well as breast cancer litigation, pap smear litigation, and medical liability in plastic and reconstructive surgery. There is a recurrent theme throughout the book: the importance of documenting complications in the chart and making sure that they are discussed with the patient. This requires the cooperation of the entire medical team in the explanation and in the follow-up with the patient. Good interpersonal relationships will greatly reduce the incidence of malpractice cases. If the patient and family want to know what happened and why, the point made many times over is that if they don’t get an answer from their physicians, then they will seek out an attorney in order to get the answer. One of the points is to avoid the patient going to a lawyer, because that is what starts the medical malpractice ball rolling.

One chapter discusses the doctor as a defendant and his or her responsibilities in the overall context of the medical legal case. One of the doctor’s prime jobs is to help educate his or her defense attorney about the medical aspects of the case. There’s also a discussion about how to present yourself as a witness. It is important that the physician be accommodating and not arrogant. Certainly, the plaintiff’s attorneys will attempt to get the physician witness irritated and arrogant in order to influence the jury. Similarly, judges and juries have little respect for physicians who attempt to hold a higher opinion of themselves than is justified. Another good point for the physician defendant is that plaintiff’s attorneys who ask rapid-fire questions can be very dangerous because they can overwhelm the defendant doctor.

Chapter 6 talks about communication and patient safety and is the first chapter in the clinical phase of the litigation section. The author points out that frequently, the underlying cause of pending malpractice claims is faulty communication and therefore it is so important for the physician to master the art of listening. Listening is an active, cognitive process. The physician needs to understand the patient’s message and respond. This requires a conscious effort. It is more than just hearing words.

Chapter 10 is devoted to anesthesiology and is written by an anesthesiologist who is a member of the Board of Directors of the Doctor’s Company of California. Overall, it is a very good chapter, but there are a few statements with which one might disagree. One of these is that anesthesiology was one of the few specialties to see declining premiums, and the year of the book was 2005. Another statement was “difficult intubations are aided by numerous visualization techniques or eliminated by the use of the laryngeal mask airways.” This is certainly a hope, but this reviewer does not think one can be 100% sure that that will be a reality.

The Doctor’s Company reviewed 500 consecutive anesthesia claims. Payments were made in 11% of cases; 23% of these were dental claims. Indemnity was paid in 29% of the dental claims, with an average payout of $1700. The Doctor’s Company has done an excellent job of reviewing their claims and evaluating the issues. One of the points made in the chapter is the problem of inactivating alarms on some of our monitors resulting when the anesthesia caregiver becoming distracted in the patient suffering an adverse outcome. In the Doctor’s Company this represents a rather large proportion of the claims. Several new problem areas were also discussed. One was the use of supplemental oxygen in situations where the surgeon is using the bovie and there is a fire. Communication with surgeons is necessary to minimize these events. Two other potential problem areas are the issue of ischemic optic neuropathy as well as obstructive sleep apnea and postoperative narcotics.

Part 4 starts with Chapter 15 and makes the case for legal reform. The material in this chapter is somewhat discouraging in that lawyers and judges are setting in place the ‘tort tax‘ that we pay. This is the ubiquitous tax on almost everything we buy, sell, or use, and it accounts for almost 30% of the price of a stepladder and 95% of the price of a childhood vaccine. Tort malpractice costs in 1990 according to the authors were $8.7 billion and in 2000, they had exploded to $20.9 billion. It was pointed out in the chapter that although 12% of anesthesiologists a year have a claim filed against them, 70 to 80% of the cases end without an indemnity payment. However, the legal costs are $23,000/case. If the claim goes to trial, and the verdict was for the defense, the cost was $85,000. It was also pointed out in this chapter that the U.S. Department of Health and Human Services reporting on the medical liability system found that “America spends proportionately far more per person on the cost of litigation than any other country in the world‘. It also points out that the major indicator of whether litigation will be successful is the degree of injury, regardless of whether or not there is negligence. There is also a very informative discussion of the California tort reform that took place in 1975 and is the model for most of the attempts at tort reform today.

Chapter 17 discusses new directions and medical liability reform. It suggests that there is a move to integrate liability policy with overall health policy. The chapter goes on to say that health policy will only be improved by reporting of errors and evaluation of what caused the errors. Certainly practice guidelines are now being based on evidence-based medicine to improve care. The difficulty in deciding what is an error and who decides if an error is negligence or a systems error is also discussed. The authors also point out that eight states make information about individual physician’s “malpractice” publicly available on the Internet. Preferably this should be titled “claims” in this setting and not “malpractice,” because juries are frequently wrong.

Overall, this book will be very useful for residents and the early years of practice. It will also help any practicing anesthesiologist to get a very good overview of what’s going on with the very alarming increase in medical malpractice cases and awards as well as the attempts at tort reform that have been continuously blocked by the plaintiffs’ bar and their supporters in Congress.

© 2005 International Anesthesia Research Society