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How the threat of medical malpractice has changed the way medicine is practiced

Medical malpractice is a difficult issue for both patients and doctors. The frequency -- and threat -- of lawsuits have changed the way medicine is practiced, to some degree. This week on “Take Care,” WRVO’s health and wellness show, hosts Lorraine Rapp and Linda Lowen speak with health care attorney Chris Stern Hyman of the Medical Mediation Group in New York City. Hyman discusses how frequent medical errors occur and how the healthcare industry has responded.

Lorraine Rapp: What is the legal definition of medical malpractice?

Chris Hyman: Essentially, it’s that the physicians care of the patient did not meet the accepted standards of care and that the patient was injured as a result of the substandard care.

Linda Lowen: In terms of judging substandard care, that doesn’t really come up unless there is a lawsuit involved, right?

Hyman: Yes that’s true, but the way medicine is practiced now is that there is often a review of situations that may be substandard or not be as high as they should be within hospitals. But the way in which most people know that something has gone wrong is certainly when they sue.

Rapp: So what is the estimate of how many people suffer serious disability or even death when there is a medical mistake?

Hyman: Well, the estimate that got the most, and sort of renowned among members of the public and I think physicians, is when the institute of medicine published a book in 2000 which estimated that 98,000 people a year died as a result of adverse events or medical errors.

Lowen: What percentage of physicians face a lawsuit during their career and what specialties are typically involved?

Hyman: Well, 7.4 percent of all physicians typically have a medical malpractice claim filed against them within a year. But the risk that physicians perceive is their risk of being sued in any given year is 20 percent. So that’s approximately three times their actual risk of being sued. Their specialties are in surgery, neurosurgery, cardiovascular surgery, general surgery, obstetrics and gynecology.

Lowen: What has to be proven in order for a medical malpractice lawsuit to move forward?

Hyman: Basically you have to prove the elements of negligence. The way in which that is proven is through expert testimony by another physician who has reviewed the case and then testifies.  

Rapp: You mentioned that there is something like 7.4 percent of doctors who face some type of claim, but their perception that they will face a claim is much higher. Is it your experience or your perception that more tests are being ordered just because there has to be more documentation in the face of the idea that there might be a lawsuit?

Hyman: Yes. I think that has been studied and identified. Defensive medicine is a whole category of care, which has risen as a result of trying to make sure that you, as a physician, have been able to do tests, identify a situation, and document it. Necessary tests should be ordered and should be documented. But the issue arises when tests are unnecessary, and that is the area in which it is just inappropriate and costly, and we all are aware of the fact that the costs of our healthcare system in this country are abnormally high and none of that is helpful to patients.

Lowen: So in essence, the cost is getting passed down to the consumer.

Hyman: Yes.