Law & Medicine

Question: Diabetes-related litigation may involve:

A. Patient injuries.

B. Work injuries.

C. Third-party injuries.

D. A and B.

E. A, B, and C.

Answer: E. Many millions of Americans have diabetes, the condition being associated with serious complications and an annual economic burden exceeding $100 billion. The diabetic patient may file personal injury claims, including malpractice allegations, against a doctor for negligent care such as the failure to diagnose and/or treat. Where there is aggravation of a worker’s injury by underlying preexisting diabetes, e.g., a work-acquired wound that ends in an amputation, the employer may face a workers’ compensation claim. And both the patient and nonpatient third parties injured, say in a car accident, may have a cause of action against a doctor for failing to warn that certain medications, such as insulin, can impair driving ability.

Data from the Physician Insurers Association of America (PIAA), a trade organization of malpractice carriers collectively insuring some 60% of U.S. doctors and dentists in private practice, document a total of 906 diabetes-related claims during the 10-year period from 1985 to 1996. Total indemnity paid was close to $27 million. Ophthalmology, internal medicine, and general and family practice physicians were the most commonly affected, frequently for mishaps occurring in the office (Diabetes Care 1998;21:1096-1100).

Liability can attach where there is failure to diagnose or treat diabetes. For example, in Hill v. Stewart (209 So.2d 809 (Miss. 1968)), a physician was found liable for misdiagnosing his patient’s weight loss, polyuria, and polydipsia as multiple sclerosis, and for failing to attend to him for 29 hours after he was hospitalized with diabetic ketoacidosis.

Lawsuits are not uncommon against ophthalmologists and obstetricians for eye and obstetric complications associated with the care of diabetic patients. But all specialists are at risk. In one instance, a radiologist was found liable for failing to take proper precautions in a diabetic patient with postural hypotension who fell off the radiology examining table and sustained injuries.

It is well known that many diabetic patients do not achieve target glycemic control, e.g., ADA’s HbA_1c of 7%. In an audit carried out in 2004-2005, 42% of patients had a value of 7.5% or higher. Many factors account for this widespread treatment "failure" despite clear evidence that good control can prevent many of the complications of diabetes.

Where poor control can be blamed on the doctor, a lawsuit may prove successful if there is evidence that the complication, e.g., diabetic retinopathy, would otherwise have been prevented. On the other hand, many if not most patients bear the fault for poor or noncompliance, although this may not necessarily be a successful defense.

For example, in Gray v. Brock (750 S.W.2d 696 (Mo. 1988)), the Missouri state appeals court reversed a lower court’s decision that the patient was 82% contributorily negligent because he delayed treatment for several days and ended up in the hospital with a blood glucose of 1,265 mg/dL. The appeals court held that there was no substantial evidence the patient knew that "his diabetes was out of control," and that the nausea, vomiting, and excessive intake of fluids for several days could be explained by the belief that he (and his wife) had come down with the flu.

The defendant is held to the standard ordinarily expected of his or her specialty, and not to a higher standard. Experts testifying for either side need not be of the same specialty as the defendant, but must be able to testify to that standard expected under the facts of the case.

Thus, in Benison v. Silverman (233 Ill. App.3d 689 (1992)), a general practitioner was found not liable for not promptly hospitalizing a patient with a foot injury that subsequently became gangrenous. The plaintiff’s internist-expert had referenced the wrong standard of care.

Likewise, an internist is to be judged by the standard ordinarily expected of a fellow internist, not of an endocrinologist. In Seitz v. Akron Clinic (557 N.E.2d 1216 (Ohio 1990)), an internist-pulmonologist failed to refer a mild diabetic to a diabetologist. When the patient subsequently developed neuropathy, a lawsuit ensued; but the internist defendant prevailed, because it was not the customary standard for an internist to refer an uncomplicated case to a diabetes specialist.

However, a chiropractor who held himself out as being capable of diagnosing and treating diabetes was held liable for injuries according to the standard of an M.D. physician in Dowell v. Mossberg (355 P.2d 624 (Ore 1960)). In another case, a chiropractor who was treating a diabetic patient for her back problems applied prolonged ultrasound treatments to her sprained ankle, resulting in a burn. The defendant was held liable for failing to exercise the requisite medical care in treating a diabetic foot.

Litigation can be expected where diabetes is acquired following injuries to the pancreas, e.g., pancreatitis, surgery, or trauma. Medication side effects are another common source of lawsuits when they cause or aggravate diabetes. The best example is glucocorticoids, but many other drugs have been implicated, such as thiazides and beta blockers.

More recently, a flurry of lawsuits, not always successful, has alleged the development or aggravation of diabetes in patients taking antipsychotic drugs. These cases are usually directed at the manufacturer for allegedly withholding data from the FDA.

Finally, antidiabetic drugs themselves can cause serious side effects, and the injured patient may prevail if it can be shown that the drugs’ use was unwarranted, or that the side effects were not disclosed.

Examples are hypoglycemia and weight gain from insulin and sulfonylureas, as well as other less common but important side effects such as liver failure from troglitazone (Rezulin, withdrawn from the market in 2000), coronary artery disease from rosiglitazone, bladder cancer from pioglitazone, pancreatitis from incretin mimetics or DPP-4 inhibitors, and lactic acidosis from metformin.

The list is not exhaustive, and doctors should consult the PDR or other drug sources for information and updates.

Medication-induced hypoglycemia can lead to driving accidents. The patient who is not warned of such a risk can sue the doctor for lack of informed consent. Furthermore, notwithstanding absence of the traditional doctor-patient relationship, an injured nonpatient third party may allege that a "special relationship" exists if the injury is foreseeable (Internal Medicine News, January 2013, p. 53).

A questionnaire survey of patients in U.S. and European diabetes clinics revealed that half of type 1 diabetes patients who drove and three-quarters of type 2 diabetes patients who drove purportedly never had a discussion with their physicians regarding hypoglycemia and driving. In that study, type 1 patients but not type 2 patients – including those on oral agents or insulin – had more driving mishaps than their nondiabetic spouses (Diabetes Care 2003;26:2329-34).

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected]. This column, "Law & Medicine," appears regularly in Internal Medicine News.

Question: Diabetes-related litigation may involve:

A. Patient injuries.

B. Work injuries.

C. Third-party injuries.

D. A and B.

E. A, B, and C.

Answer: E. Many millions of Americans have diabetes, the condition being associated with serious complications and an annual economic burden exceeding $100 billion. The diabetic patient may file personal injury claims, including malpractice allegations, against a doctor for negligent care such as the failure to diagnose and/or treat. Where there is aggravation of a worker’s injury by underlying preexisting diabetes, e.g., a work-acquired wound that ends in an amputation, the employer may face a workers’ compensation claim. And both the patient and nonpatient third parties injured, say in a car accident, may have a cause of action against a doctor for failing to warn that certain medications, such as insulin, can impair driving ability.

Data from the Physician Insurers Association of America (PIAA), a trade organization of malpractice carriers collectively insuring some 60% of U.S. doctors and dentists in private practice, document a total of 906 diabetes-related claims during the 10-year period from 1985 to 1996. Total indemnity paid was close to $27 million. Ophthalmology, internal medicine, and general and family practice physicians were the most commonly affected, frequently for mishaps occurring in the office (Diabetes Care 1998;21:1096-1100).

Liability can attach where there is failure to diagnose or treat diabetes. For example, in Hill v. Stewart (209 So.2d 809 (Miss. 1968)), a physician was found liable for misdiagnosing his patient’s weight loss, polyuria, and polydipsia as multiple sclerosis, and for failing to attend to him for 29 hours after he was hospitalized with diabetic ketoacidosis.

Lawsuits are not uncommon against ophthalmologists and obstetricians for eye and obstetric complications associated with the care of diabetic patients. But all specialists are at risk. In one instance, a radiologist was found liable for failing to take proper precautions in a diabetic patient with postural hypotension who fell off the radiology examining table and sustained injuries.

It is well known that many diabetic patients do not achieve target glycemic control, e.g., ADA’s HbA_1c of 7%. In an audit carried out in 2004-2005, 42% of patients had a value of 7.5% or higher. Many factors account for this widespread treatment "failure" despite clear evidence that good control can prevent many of the complications of diabetes.

Where poor control can be blamed on the doctor, a lawsuit may prove successful if there is evidence that the complication, e.g., diabetic retinopathy, would otherwise have been prevented. On the other hand, many if not most patients bear the fault for poor or noncompliance, although this may not necessarily be a successful defense.

For example, in Gray v. Brock (750 S.W.2d 696 (Mo. 1988)), the Missouri state appeals court reversed a lower court’s decision that the patient was 82% contributorily negligent because he delayed treatment for several days and ended up in the hospital with a blood glucose of 1,265 mg/dL. The appeals court held that there was no substantial evidence the patient knew that "his diabetes was out of control," and that the nausea, vomiting, and excessive intake of fluids for several days could be explained by the belief that he (and his wife) had come down with the flu.

The defendant is held to the standard ordinarily expected of his or her specialty, and not to a higher standard. Experts testifying for either side need not be of the same specialty as the defendant, but must be able to testify to that standard expected under the facts of the case.

Thus, in Benison v. Silverman (233 Ill. App.3d 689 (1992)), a general practitioner was found not liable for not promptly hospitalizing a patient with a foot injury that subsequently became gangrenous. The plaintiff’s internist-expert had referenced the wrong standard of care.

Likewise, an internist is to be judged by the standard ordinarily expected of a fellow internist, not of an endocrinologist. In Seitz v. Akron Clinic (557 N.E.2d 1216 (Ohio 1990)), an internist-pulmonologist failed to refer a mild diabetic to a diabetologist. When the patient subsequently developed neuropathy, a lawsuit ensued; but the internist defendant prevailed, because it was not the customary standard for an internist to refer an uncomplicated case to a diabetes specialist.

However, a chiropractor who held himself out as being capable of diagnosing and treating diabetes was held liable for injuries according to the standard of an M.D. physician in Dowell v. Mossberg (355 P.2d 624 (Ore 1960)). In another case, a chiropractor who was treating a diabetic patient for her back problems applied prolonged ultrasound treatments to her sprained ankle, resulting in a burn. The defendant was held liable for failing to exercise the requisite medical care in treating a diabetic foot.

Litigation can be expected where diabetes is acquired following injuries to the pancreas, e.g., pancreatitis, surgery, or trauma. Medication side effects are another common source of lawsuits when they cause or aggravate diabetes. The best example is glucocorticoids, but many other drugs have been implicated, such as thiazides and beta blockers.

More recently, a flurry of lawsuits, not always successful, has alleged the development or aggravation of diabetes in patients taking antipsychotic drugs. These cases are usually directed at the manufacturer for allegedly withholding data from the FDA.

Finally, antidiabetic drugs themselves can cause serious side effects, and the injured patient may prevail if it can be shown that the drugs’ use was unwarranted, or that the side effects were not disclosed.

Examples are hypoglycemia and weight gain from insulin and sulfonylureas, as well as other less common but important side effects such as liver failure from troglitazone (Rezulin, withdrawn from the market in 2000), coronary artery disease from rosiglitazone, bladder cancer from pioglitazone, pancreatitis from incretin mimetics or DPP-4 inhibitors, and lactic acidosis from metformin.

The list is not exhaustive, and doctors should consult the PDR or other drug sources for information and updates.

Medication-induced hypoglycemia can lead to driving accidents. The patient who is not warned of such a risk can sue the doctor for lack of informed consent. Furthermore, notwithstanding absence of the traditional doctor-patient relationship, an injured nonpatient third party may allege that a "special relationship" exists if the injury is foreseeable (Internal Medicine News, January 2013, p. 53).

A questionnaire survey of patients in U.S. and European diabetes clinics revealed that half of type 1 diabetes patients who drove and three-quarters of type 2 diabetes patients who drove purportedly never had a discussion with their physicians regarding hypoglycemia and driving. In that study, type 1 patients but not type 2 patients – including those on oral agents or insulin – had more driving mishaps than their nondiabetic spouses (Diabetes Care 2003;26:2329-34).

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected]. This column, "Law & Medicine," appears regularly in Internal Medicine News.

Question: Diabetes-related litigation may involve:

A. Patient injuries.

B. Work injuries.

C. Third-party injuries.

D. A and B.

E. A, B, and C.

Answer: E. Many millions of Americans have diabetes, the condition being associated with serious complications and an annual economic burden exceeding $100 billion. The diabetic patient may file personal injury claims, including malpractice allegations, against a doctor for negligent care such as the failure to diagnose and/or treat. Where there is aggravation of a worker’s injury by underlying preexisting diabetes, e.g., a work-acquired wound that ends in an amputation, the employer may face a workers’ compensation claim. And both the patient and nonpatient third parties injured, say in a car accident, may have a cause of action against a doctor for failing to warn that certain medications, such as insulin, can impair driving ability.

Data from the Physician Insurers Association of America (PIAA), a trade organization of malpractice carriers collectively insuring some 60% of U.S. doctors and dentists in private practice, document a total of 906 diabetes-related claims during the 10-year period from 1985 to 1996. Total indemnity paid was close to $27 million. Ophthalmology, internal medicine, and general and family practice physicians were the most commonly affected, frequently for mishaps occurring in the office (Diabetes Care 1998;21:1096-1100).

Liability can attach where there is failure to diagnose or treat diabetes. For example, in Hill v. Stewart (209 So.2d 809 (Miss. 1968)), a physician was found liable for misdiagnosing his patient’s weight loss, polyuria, and polydipsia as multiple sclerosis, and for failing to attend to him for 29 hours after he was hospitalized with diabetic ketoacidosis.

Lawsuits are not uncommon against ophthalmologists and obstetricians for eye and obstetric complications associated with the care of diabetic patients. But all specialists are at risk. In one instance, a radiologist was found liable for failing to take proper precautions in a diabetic patient with postural hypotension who fell off the radiology examining table and sustained injuries.

It is well known that many diabetic patients do not achieve target glycemic control, e.g., ADA’s HbA_1c of 7%. In an audit carried out in 2004-2005, 42% of patients had a value of 7.5% or higher. Many factors account for this widespread treatment "failure" despite clear evidence that good control can prevent many of the complications of diabetes.

Where poor control can be blamed on the doctor, a lawsuit may prove successful if there is evidence that the complication, e.g., diabetic retinopathy, would otherwise have been prevented. On the other hand, many if not most patients bear the fault for poor or noncompliance, although this may not necessarily be a successful defense.

For example, in Gray v. Brock (750 S.W.2d 696 (Mo. 1988)), the Missouri state appeals court reversed a lower court’s decision that the patient was 82% contributorily negligent because he delayed treatment for several days and ended up in the hospital with a blood glucose of 1,265 mg/dL. The appeals court held that there was no substantial evidence the patient knew that "his diabetes was out of control," and that the nausea, vomiting, and excessive intake of fluids for several days could be explained by the belief that he (and his wife) had come down with the flu.

The defendant is held to the standard ordinarily expected of his or her specialty, and not to a higher standard. Experts testifying for either side need not be of the same specialty as the defendant, but must be able to testify to that standard expected under the facts of the case.

Thus, in Benison v. Silverman (233 Ill. App.3d 689 (1992)), a general practitioner was found not liable for not promptly hospitalizing a patient with a foot injury that subsequently became gangrenous. The plaintiff’s internist-expert had referenced the wrong standard of care.

Likewise, an internist is to be judged by the standard ordinarily expected of a fellow internist, not of an endocrinologist. In Seitz v. Akron Clinic (557 N.E.2d 1216 (Ohio 1990)), an internist-pulmonologist failed to refer a mild diabetic to a diabetologist. When the patient subsequently developed neuropathy, a lawsuit ensued; but the internist defendant prevailed, because it was not the customary standard for an internist to refer an uncomplicated case to a diabetes specialist.

However, a chiropractor who held himself out as being capable of diagnosing and treating diabetes was held liable for injuries according to the standard of an M.D. physician in Dowell v. Mossberg (355 P.2d 624 (Ore 1960)). In another case, a chiropractor who was treating a diabetic patient for her back problems applied prolonged ultrasound treatments to her sprained ankle, resulting in a burn. The defendant was held liable for failing to exercise the requisite medical care in treating a diabetic foot.

Litigation can be expected where diabetes is acquired following injuries to the pancreas, e.g., pancreatitis, surgery, or trauma. Medication side effects are another common source of lawsuits when they cause or aggravate diabetes. The best example is glucocorticoids, but many other drugs have been implicated, such as thiazides and beta blockers.

More recently, a flurry of lawsuits, not always successful, has alleged the development or aggravation of diabetes in patients taking antipsychotic drugs. These cases are usually directed at the manufacturer for allegedly withholding data from the FDA.

Finally, antidiabetic drugs themselves can cause serious side effects, and the injured patient may prevail if it can be shown that the drugs’ use was unwarranted, or that the side effects were not disclosed.

Examples are hypoglycemia and weight gain from insulin and sulfonylureas, as well as other less common but important side effects such as liver failure from troglitazone (Rezulin, withdrawn from the market in 2000), coronary artery disease from rosiglitazone, bladder cancer from pioglitazone, pancreatitis from incretin mimetics or DPP-4 inhibitors, and lactic acidosis from metformin.

The list is not exhaustive, and doctors should consult the PDR or other drug sources for information and updates.

Medication-induced hypoglycemia can lead to driving accidents. The patient who is not warned of such a risk can sue the doctor for lack of informed consent. Furthermore, notwithstanding absence of the traditional doctor-patient relationship, an injured nonpatient third party may allege that a "special relationship" exists if the injury is foreseeable (Internal Medicine News, January 2013, p. 53).

A questionnaire survey of patients in U.S. and European diabetes clinics revealed that half of type 1 diabetes patients who drove and three-quarters of type 2 diabetes patients who drove purportedly never had a discussion with their physicians regarding hypoglycemia and driving. In that study, type 1 patients but not type 2 patients – including those on oral agents or insulin – had more driving mishaps than their nondiabetic spouses (Diabetes Care 2003;26:2329-34).

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected]. This column, "Law & Medicine," appears regularly in Internal Medicine News.

Question: Criticisms of the current tort system for compensating medical injuries include all of the following, except:

A. It’s a lottery-style system where worthy cases go uncompensated and some frivolous ones end up with windfall verdicts.

B. It is inefficient and raises medical costs.

C. The United States is about the only country with such an adversarial system, as other developed countries have adopted a no-fault approach.

D. Annual medical liability premiums can exceed $100,000 in high-risk specialties.

E. Defensive medicine is believed to be an adverse consequence of unbridled malpractice litigation.

Answer: C. Justice, compensation, and deterrence are the ostensible objectives of the tort system, but its use in litigating injuries arising out of medical treatment can lead to unfair and inefficient results.

Only relatively few injured people file actions, and they typically wait many years for resolution. Even with soaring insurance premiums, it has been said that the system returns some 28 cents of every insurance dollar to the victim, with the remainder gobbled up by legal, expert, and court fees and by profits and transactional overhead.

In some jurisdictions, high-risk specialists pay six-figure premiums for coverage. The fear of being sued leads to excessive testing, termed defensive medicine, and that adds to health care costs.¹

Still, the tort approach is used in most countries to resolve medical liability allegations, with the United States at the forefront of reform efforts to improve the system.

Tort reforms are nothing new. In the 1980s, the U.S. Attorney General’s Tort Policy Working Group released findings in strong support of tort reform. The group concluded that "while there are a number of factors underlying the insurance availability/affordability crisis, tort law is a major cause."

The best-known reform proposal is a cap on noneconomic losses such as pain and suffering, typically without abridging compensation for medical expenses and lost wages. The rationale is to provide some predictability because noneconomic damages are difficult to quantify and jury sympathy may result in unrealistically high payments. California was one of the pioneers in this area, and many others have since followed suit, including Florida, Illinois, Kansas, Missouri, and Texas. Statutory caps vary somewhat from state to state but are typically $250,000-$500,000.

Predictably, caps on damages have been challenged as a violation of equal protection and the patient’s right to a jury trial. By and large however, they have been upheld, as in California and, most recently, Texas and Kansas.

The California Supreme Court for example, ruled that reforms passed by the legislature in 1975 under its Medical Injury Compensation Reform Act (MICRA)² – which, among other measures, limits noneconomic recovery in medical negligence cases to $250,000 – are constitutional because they are rationally related to the legitimate legislative goal of reducing medical costs.

Other jurisdictions, however – notably Georgia and Missouri – have ruled them unconstitutional. In 2010, the Supreme Court of Illinois famously held that the state’s $500,000 cap for noneconomic damages violated the separation of powers doctrine.³

Notwithstanding arguments from trial lawyers and others, most doctors and insurers believe that limits on pain and suffering can reduce insurance premiums.

A 2004 study reported that states with caps evidence a loss ratio (losses plus costs over premiums) that is 12% lower than in those without damage caps.⁴ Lower premiums in turn are linked to greater physician entry into the locality, especially high-risk specialists. In addition, caps may have a salutary effect on the wasteful practice of defensive medicine. A 2007 report by the American Medical Association (AMA) confirmed and extended an earlier study that reached such conclusions.⁵

Screening panels and arbitration

Two other tort reforms that have seen good acceptance are the use of screening panels and arbitration.

Many states have set up screening panels, with the objective of weeding out frivolous or nuisance suits. Some are mandatory, as they are in Massachusetts, while others are optional, such as Alaska. In some states, such as New Hampshire, unanimous panel findings are admissible as evidence at a subsequent trial, whereas states like Hawaii do not allow panel findings in court.

A 2008 study commissioned by the AMA revealed that states with screening panels had 20% lower medical liability insurance rates, corresponding to lower claim costs.

Critics, however, contend that pretrial screening panels only prolong the litigation process and increase costs without substantial corresponding benefit. In Ohio, pretrial screening panels were tried and abandoned for these reasons.

In a recent New Hampshire case, the state Supreme Court allowed the jurors to hear the unanimous panel findings absolving a defendant alleged to have delayed making a diagnosis of meningitis. The court upheld the constitutionality of the statute and rejected the argument that such a screening process impermissibly encroaches on core judicial functions. ⁶

Mandatory or optional arbitration or mediation are sensible reform suggestions, as these methods of dispute resolution are less combative, more efficient, cheaper, and faster in bringing closure. Unfortunately, relatively few doctor-patient encounters incorporate a contract to submit disputes to arbitration, and these usually relate to disputes over fees rather than to injuries.

Other reform proposals that have been proposed include mandatory structured periodic payments in lieu of lump-sum payments, penalties for frivolous suits, shortened statutes of limitations, stricter standards for expert witnesses, making the "loser" pay all attorney fees and court costs, and limiting attorney contingency fees.

No-fault alternative?

Then there is the no-fault solution.⁷ In many instances, fault simply cannot be ascertained when an individual is injured during the course of medical treatment, as harm may be a natural and unavoidable consequence of the underlying illness or treatment. Medical no-fault must therefore embrace in some fashion the concept of compensating only avoidable injuries.

Herein lies the dilemma: How to identify the avoidable injury, or the so-called compensable event?

In 1974, New Zealand’s no-fault compensation system came into effect under its Accident Compensation Act. All accidental injuries, including medical injuries, were removed from the tort system and covered by this act. In practice, about 40% of malpractice claims were denied.

Because of escalating payout costs, however, a special Medical Misadventure Account was created in 1992 to specifically handle malpractice damages. Professional liability premiums, which are experience rated, fund this account.⁸

Under the initial scheme, injured patients did not have to prove fault but merely establish "medical, surgical, dental, or first aid misadventure." Although negligence was not necessary, what constituted medical misadventure was not defined. At the same time, the law stipulated that "not all medical negligence comes within the scope of medical misadventure," and common law tort actions for medical negligence remained available.

Despite this lack of both definitional and functional clarity, the Accident Compensation Commission was quite definite that it was not necessary to show negligence before a claim for medical misadventure would succeed.

However, the revised Act of 1992 now requires the claimant to show "medical error," which is defined as "the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances." With this definition, which is the legal language for negligence, the no-fault system of compensating medical injuries in New Zealand has effectively been subsumed by the fault-based tort system.

Fine-tuning no-fault insurance

At the height of the malpractice crisis in the 1970s, Jeffrey O’Connell, J.D., advanced a novel approach to address some of these no-fault concerns.⁹ His proposal gives the medical provider the option to tender payment to the patient for economic loss within 6 months of injury in exchange for foreclosure of future tort action by the injured victim. Compensation benefits for net economic loss include 100% of lost wages, replacement service loss, medical treatment expenses, and reasonable attorney’s fees. Noneconomic losses are not reimbursable, and payment is net of any benefits from collateral sources.

H.R. 5400, entitled the Alternative Medical Liability Act (AMLA), incorporated many of these features and came before the 98th U.S. Congress in 1984. Both the American Medical Association, which favors traditional tort reforms, and the Association of Trial Lawyers of America opposed the bill. The bill died in committee and was reintroduced the following year in the 99th Congress as the Medical Offer and Recovery Act, H.R. 3084. It was referred to five committees but no hearings were held. There has been no action on the proposal since.

The prognosis for comprehensive meaningful reform is guarded at best. It should be emphasized that not everyone believes the current tort system needs fixing.

As one observer put it nearly a decade ago: "Overall, the total payout for medical malpractice insurers in the United States is about $4 billion a year, which is about half of what we spend annually on cat and dog food."¹⁰

Dr. Tan is emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected]. This column, "Law & Medicine," regularly appears in Internal Medicine News.

References

1. See Internal Medicine News, May 1, 2012, Defensive Medicine.

2. Medical Injury Compensation Reform Act of 1975, Cal. Civ. Proc. Code § 3333.2 (West 1982).

3. Lebron v. Gottlieb Mem’l Hosp., 930 N.E.2d 895 (Ill. 2010).

4. Kenneth E. Thorpe, The Medical Malpractice Crisis: Recent Trends and the Impact of State Tort Reforms, 4 Health Affairs 20 (2004).

5. American Medical Association Policy Research Perspectives: "The Impact of Liability Pressure and Caps on Damages on the Healthcare Market: An update of Recent Literature."

6. In Re: Petition of Southern New Hampshire Medical Center & a.

7. Tan, S.Y. The Medical Malpractice Crisis: Will No-Fault Cure the Disease? Univ. Haw. Law Rev. 9:241-274, 1987.

8. Gellhorn, W. Medical Malpractice Litigation (U.S.) Medical Mishap Compensation (N.Z.). Cornell L. Rev. 1988;73:170.

9. O’Connell, J. No-Fault Insurance for Injuries Arising from Medical Treatment: A Proposal for Elective Coverage. Emory L. J. 1975;24:21.

10. Doroshow, J. Are Caps the Answer to the Malpractice Crisis? Internal Medicine News, Dec. 1, 2004, p. 8.

Question: Criticisms of the current tort system for compensating medical injuries include all of the following, except:

A. It’s a lottery-style system where worthy cases go uncompensated and some frivolous ones end up with windfall verdicts.

B. It is inefficient and raises medical costs.

C. The United States is about the only country with such an adversarial system, as other developed countries have adopted a no-fault approach.

D. Annual medical liability premiums can exceed $100,000 in high-risk specialties.

E. Defensive medicine is believed to be an adverse consequence of unbridled malpractice litigation.

Answer: C. Justice, compensation, and deterrence are the ostensible objectives of the tort system, but its use in litigating injuries arising out of medical treatment can lead to unfair and inefficient results.

Only relatively few injured people file actions, and they typically wait many years for resolution. Even with soaring insurance premiums, it has been said that the system returns some 28 cents of every insurance dollar to the victim, with the remainder gobbled up by legal, expert, and court fees and by profits and transactional overhead.

In some jurisdictions, high-risk specialists pay six-figure premiums for coverage. The fear of being sued leads to excessive testing, termed defensive medicine, and that adds to health care costs.¹

Still, the tort approach is used in most countries to resolve medical liability allegations, with the United States at the forefront of reform efforts to improve the system.

Tort reforms are nothing new. In the 1980s, the U.S. Attorney General’s Tort Policy Working Group released findings in strong support of tort reform. The group concluded that "while there are a number of factors underlying the insurance availability/affordability crisis, tort law is a major cause."

The best-known reform proposal is a cap on noneconomic losses such as pain and suffering, typically without abridging compensation for medical expenses and lost wages. The rationale is to provide some predictability because noneconomic damages are difficult to quantify and jury sympathy may result in unrealistically high payments. California was one of the pioneers in this area, and many others have since followed suit, including Florida, Illinois, Kansas, Missouri, and Texas. Statutory caps vary somewhat from state to state but are typically $250,000-$500,000.

Predictably, caps on damages have been challenged as a violation of equal protection and the patient’s right to a jury trial. By and large however, they have been upheld, as in California and, most recently, Texas and Kansas.

The California Supreme Court for example, ruled that reforms passed by the legislature in 1975 under its Medical Injury Compensation Reform Act (MICRA)² – which, among other measures, limits noneconomic recovery in medical negligence cases to $250,000 – are constitutional because they are rationally related to the legitimate legislative goal of reducing medical costs.

Other jurisdictions, however – notably Georgia and Missouri – have ruled them unconstitutional. In 2010, the Supreme Court of Illinois famously held that the state’s $500,000 cap for noneconomic damages violated the separation of powers doctrine.³

Notwithstanding arguments from trial lawyers and others, most doctors and insurers believe that limits on pain and suffering can reduce insurance premiums.

A 2004 study reported that states with caps evidence a loss ratio (losses plus costs over premiums) that is 12% lower than in those without damage caps.⁴ Lower premiums in turn are linked to greater physician entry into the locality, especially high-risk specialists. In addition, caps may have a salutary effect on the wasteful practice of defensive medicine. A 2007 report by the American Medical Association (AMA) confirmed and extended an earlier study that reached such conclusions.⁵

Screening panels and arbitration

Two other tort reforms that have seen good acceptance are the use of screening panels and arbitration.

Many states have set up screening panels, with the objective of weeding out frivolous or nuisance suits. Some are mandatory, as they are in Massachusetts, while others are optional, such as Alaska. In some states, such as New Hampshire, unanimous panel findings are admissible as evidence at a subsequent trial, whereas states like Hawaii do not allow panel findings in court.

A 2008 study commissioned by the AMA revealed that states with screening panels had 20% lower medical liability insurance rates, corresponding to lower claim costs.

Critics, however, contend that pretrial screening panels only prolong the litigation process and increase costs without substantial corresponding benefit. In Ohio, pretrial screening panels were tried and abandoned for these reasons.

In a recent New Hampshire case, the state Supreme Court allowed the jurors to hear the unanimous panel findings absolving a defendant alleged to have delayed making a diagnosis of meningitis. The court upheld the constitutionality of the statute and rejected the argument that such a screening process impermissibly encroaches on core judicial functions. ⁶

Mandatory or optional arbitration or mediation are sensible reform suggestions, as these methods of dispute resolution are less combative, more efficient, cheaper, and faster in bringing closure. Unfortunately, relatively few doctor-patient encounters incorporate a contract to submit disputes to arbitration, and these usually relate to disputes over fees rather than to injuries.

Other reform proposals that have been proposed include mandatory structured periodic payments in lieu of lump-sum payments, penalties for frivolous suits, shortened statutes of limitations, stricter standards for expert witnesses, making the "loser" pay all attorney fees and court costs, and limiting attorney contingency fees.

No-fault alternative?

Then there is the no-fault solution.⁷ In many instances, fault simply cannot be ascertained when an individual is injured during the course of medical treatment, as harm may be a natural and unavoidable consequence of the underlying illness or treatment. Medical no-fault must therefore embrace in some fashion the concept of compensating only avoidable injuries.

Herein lies the dilemma: How to identify the avoidable injury, or the so-called compensable event?

In 1974, New Zealand’s no-fault compensation system came into effect under its Accident Compensation Act. All accidental injuries, including medical injuries, were removed from the tort system and covered by this act. In practice, about 40% of malpractice claims were denied.

Because of escalating payout costs, however, a special Medical Misadventure Account was created in 1992 to specifically handle malpractice damages. Professional liability premiums, which are experience rated, fund this account.⁸

Under the initial scheme, injured patients did not have to prove fault but merely establish "medical, surgical, dental, or first aid misadventure." Although negligence was not necessary, what constituted medical misadventure was not defined. At the same time, the law stipulated that "not all medical negligence comes within the scope of medical misadventure," and common law tort actions for medical negligence remained available.

Despite this lack of both definitional and functional clarity, the Accident Compensation Commission was quite definite that it was not necessary to show negligence before a claim for medical misadventure would succeed.

However, the revised Act of 1992 now requires the claimant to show "medical error," which is defined as "the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances." With this definition, which is the legal language for negligence, the no-fault system of compensating medical injuries in New Zealand has effectively been subsumed by the fault-based tort system.

Fine-tuning no-fault insurance

At the height of the malpractice crisis in the 1970s, Jeffrey O’Connell, J.D., advanced a novel approach to address some of these no-fault concerns.⁹ His proposal gives the medical provider the option to tender payment to the patient for economic loss within 6 months of injury in exchange for foreclosure of future tort action by the injured victim. Compensation benefits for net economic loss include 100% of lost wages, replacement service loss, medical treatment expenses, and reasonable attorney’s fees. Noneconomic losses are not reimbursable, and payment is net of any benefits from collateral sources.

H.R. 5400, entitled the Alternative Medical Liability Act (AMLA), incorporated many of these features and came before the 98th U.S. Congress in 1984. Both the American Medical Association, which favors traditional tort reforms, and the Association of Trial Lawyers of America opposed the bill. The bill died in committee and was reintroduced the following year in the 99th Congress as the Medical Offer and Recovery Act, H.R. 3084. It was referred to five committees but no hearings were held. There has been no action on the proposal since.

The prognosis for comprehensive meaningful reform is guarded at best. It should be emphasized that not everyone believes the current tort system needs fixing.

As one observer put it nearly a decade ago: "Overall, the total payout for medical malpractice insurers in the United States is about $4 billion a year, which is about half of what we spend annually on cat and dog food."¹⁰

Dr. Tan is emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected]. This column, "Law & Medicine," regularly appears in Internal Medicine News.

References

1. See Internal Medicine News, May 1, 2012, Defensive Medicine.

2. Medical Injury Compensation Reform Act of 1975, Cal. Civ. Proc. Code § 3333.2 (West 1982).

3. Lebron v. Gottlieb Mem’l Hosp., 930 N.E.2d 895 (Ill. 2010).

4. Kenneth E. Thorpe, The Medical Malpractice Crisis: Recent Trends and the Impact of State Tort Reforms, 4 Health Affairs 20 (2004).

5. American Medical Association Policy Research Perspectives: "The Impact of Liability Pressure and Caps on Damages on the Healthcare Market: An update of Recent Literature."

6. In Re: Petition of Southern New Hampshire Medical Center & a.

7. Tan, S.Y. The Medical Malpractice Crisis: Will No-Fault Cure the Disease? Univ. Haw. Law Rev. 9:241-274, 1987.

8. Gellhorn, W. Medical Malpractice Litigation (U.S.) Medical Mishap Compensation (N.Z.). Cornell L. Rev. 1988;73:170.

9. O’Connell, J. No-Fault Insurance for Injuries Arising from Medical Treatment: A Proposal for Elective Coverage. Emory L. J. 1975;24:21.

10. Doroshow, J. Are Caps the Answer to the Malpractice Crisis? Internal Medicine News, Dec. 1, 2004, p. 8.

Question: Criticisms of the current tort system for compensating medical injuries include all of the following, except:

A. It’s a lottery-style system where worthy cases go uncompensated and some frivolous ones end up with windfall verdicts.

B. It is inefficient and raises medical costs.

C. The United States is about the only country with such an adversarial system, as other developed countries have adopted a no-fault approach.

D. Annual medical liability premiums can exceed $100,000 in high-risk specialties.

E. Defensive medicine is believed to be an adverse consequence of unbridled malpractice litigation.

Answer: C. Justice, compensation, and deterrence are the ostensible objectives of the tort system, but its use in litigating injuries arising out of medical treatment can lead to unfair and inefficient results.

Only relatively few injured people file actions, and they typically wait many years for resolution. Even with soaring insurance premiums, it has been said that the system returns some 28 cents of every insurance dollar to the victim, with the remainder gobbled up by legal, expert, and court fees and by profits and transactional overhead.

In some jurisdictions, high-risk specialists pay six-figure premiums for coverage. The fear of being sued leads to excessive testing, termed defensive medicine, and that adds to health care costs.¹

Still, the tort approach is used in most countries to resolve medical liability allegations, with the United States at the forefront of reform efforts to improve the system.

Tort reforms are nothing new. In the 1980s, the U.S. Attorney General’s Tort Policy Working Group released findings in strong support of tort reform. The group concluded that "while there are a number of factors underlying the insurance availability/affordability crisis, tort law is a major cause."

The best-known reform proposal is a cap on noneconomic losses such as pain and suffering, typically without abridging compensation for medical expenses and lost wages. The rationale is to provide some predictability because noneconomic damages are difficult to quantify and jury sympathy may result in unrealistically high payments. California was one of the pioneers in this area, and many others have since followed suit, including Florida, Illinois, Kansas, Missouri, and Texas. Statutory caps vary somewhat from state to state but are typically $250,000-$500,000.

Predictably, caps on damages have been challenged as a violation of equal protection and the patient’s right to a jury trial. By and large however, they have been upheld, as in California and, most recently, Texas and Kansas.

The California Supreme Court for example, ruled that reforms passed by the legislature in 1975 under its Medical Injury Compensation Reform Act (MICRA)² – which, among other measures, limits noneconomic recovery in medical negligence cases to $250,000 – are constitutional because they are rationally related to the legitimate legislative goal of reducing medical costs.

Other jurisdictions, however – notably Georgia and Missouri – have ruled them unconstitutional. In 2010, the Supreme Court of Illinois famously held that the state’s $500,000 cap for noneconomic damages violated the separation of powers doctrine.³

Notwithstanding arguments from trial lawyers and others, most doctors and insurers believe that limits on pain and suffering can reduce insurance premiums.

A 2004 study reported that states with caps evidence a loss ratio (losses plus costs over premiums) that is 12% lower than in those without damage caps.⁴ Lower premiums in turn are linked to greater physician entry into the locality, especially high-risk specialists. In addition, caps may have a salutary effect on the wasteful practice of defensive medicine. A 2007 report by the American Medical Association (AMA) confirmed and extended an earlier study that reached such conclusions.⁵

Screening panels and arbitration

Two other tort reforms that have seen good acceptance are the use of screening panels and arbitration.

Many states have set up screening panels, with the objective of weeding out frivolous or nuisance suits. Some are mandatory, as they are in Massachusetts, while others are optional, such as Alaska. In some states, such as New Hampshire, unanimous panel findings are admissible as evidence at a subsequent trial, whereas states like Hawaii do not allow panel findings in court.

A 2008 study commissioned by the AMA revealed that states with screening panels had 20% lower medical liability insurance rates, corresponding to lower claim costs.

Critics, however, contend that pretrial screening panels only prolong the litigation process and increase costs without substantial corresponding benefit. In Ohio, pretrial screening panels were tried and abandoned for these reasons.

In a recent New Hampshire case, the state Supreme Court allowed the jurors to hear the unanimous panel findings absolving a defendant alleged to have delayed making a diagnosis of meningitis. The court upheld the constitutionality of the statute and rejected the argument that such a screening process impermissibly encroaches on core judicial functions. ⁶

Mandatory or optional arbitration or mediation are sensible reform suggestions, as these methods of dispute resolution are less combative, more efficient, cheaper, and faster in bringing closure. Unfortunately, relatively few doctor-patient encounters incorporate a contract to submit disputes to arbitration, and these usually relate to disputes over fees rather than to injuries.

Other reform proposals that have been proposed include mandatory structured periodic payments in lieu of lump-sum payments, penalties for frivolous suits, shortened statutes of limitations, stricter standards for expert witnesses, making the "loser" pay all attorney fees and court costs, and limiting attorney contingency fees.

No-fault alternative?

Then there is the no-fault solution.⁷ In many instances, fault simply cannot be ascertained when an individual is injured during the course of medical treatment, as harm may be a natural and unavoidable consequence of the underlying illness or treatment. Medical no-fault must therefore embrace in some fashion the concept of compensating only avoidable injuries.

Herein lies the dilemma: How to identify the avoidable injury, or the so-called compensable event?

In 1974, New Zealand’s no-fault compensation system came into effect under its Accident Compensation Act. All accidental injuries, including medical injuries, were removed from the tort system and covered by this act. In practice, about 40% of malpractice claims were denied.

Because of escalating payout costs, however, a special Medical Misadventure Account was created in 1992 to specifically handle malpractice damages. Professional liability premiums, which are experience rated, fund this account.⁸

Under the initial scheme, injured patients did not have to prove fault but merely establish "medical, surgical, dental, or first aid misadventure." Although negligence was not necessary, what constituted medical misadventure was not defined. At the same time, the law stipulated that "not all medical negligence comes within the scope of medical misadventure," and common law tort actions for medical negligence remained available.

Despite this lack of both definitional and functional clarity, the Accident Compensation Commission was quite definite that it was not necessary to show negligence before a claim for medical misadventure would succeed.

However, the revised Act of 1992 now requires the claimant to show "medical error," which is defined as "the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances." With this definition, which is the legal language for negligence, the no-fault system of compensating medical injuries in New Zealand has effectively been subsumed by the fault-based tort system.

Fine-tuning no-fault insurance

At the height of the malpractice crisis in the 1970s, Jeffrey O’Connell, J.D., advanced a novel approach to address some of these no-fault concerns.⁹ His proposal gives the medical provider the option to tender payment to the patient for economic loss within 6 months of injury in exchange for foreclosure of future tort action by the injured victim. Compensation benefits for net economic loss include 100% of lost wages, replacement service loss, medical treatment expenses, and reasonable attorney’s fees. Noneconomic losses are not reimbursable, and payment is net of any benefits from collateral sources.

H.R. 5400, entitled the Alternative Medical Liability Act (AMLA), incorporated many of these features and came before the 98th U.S. Congress in 1984. Both the American Medical Association, which favors traditional tort reforms, and the Association of Trial Lawyers of America opposed the bill. The bill died in committee and was reintroduced the following year in the 99th Congress as the Medical Offer and Recovery Act, H.R. 3084. It was referred to five committees but no hearings were held. There has been no action on the proposal since.

The prognosis for comprehensive meaningful reform is guarded at best. It should be emphasized that not everyone believes the current tort system needs fixing.

As one observer put it nearly a decade ago: "Overall, the total payout for medical malpractice insurers in the United States is about $4 billion a year, which is about half of what we spend annually on cat and dog food."¹⁰

Dr. Tan is emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected]. This column, "Law & Medicine," regularly appears in Internal Medicine News.

References

1. See Internal Medicine News, May 1, 2012, Defensive Medicine.

2. Medical Injury Compensation Reform Act of 1975, Cal. Civ. Proc. Code § 3333.2 (West 1982).

3. Lebron v. Gottlieb Mem’l Hosp., 930 N.E.2d 895 (Ill. 2010).

4. Kenneth E. Thorpe, The Medical Malpractice Crisis: Recent Trends and the Impact of State Tort Reforms, 4 Health Affairs 20 (2004).

5. American Medical Association Policy Research Perspectives: "The Impact of Liability Pressure and Caps on Damages on the Healthcare Market: An update of Recent Literature."

6. In Re: Petition of Southern New Hampshire Medical Center & a.

7. Tan, S.Y. The Medical Malpractice Crisis: Will No-Fault Cure the Disease? Univ. Haw. Law Rev. 9:241-274, 1987.

8. Gellhorn, W. Medical Malpractice Litigation (U.S.) Medical Mishap Compensation (N.Z.). Cornell L. Rev. 1988;73:170.

9. O’Connell, J. No-Fault Insurance for Injuries Arising from Medical Treatment: A Proposal for Elective Coverage. Emory L. J. 1975;24:21.

10. Doroshow, J. Are Caps the Answer to the Malpractice Crisis? Internal Medicine News, Dec. 1, 2004, p. 8.

• Question: A hospital-based doctor underdeclared his income and was found guilty of income tax fraud. This prompted the hospital administrator to request a hearing by the peer review committee, which decided to suspend the doctor’s privileges. The committee then referred the case to the state medical board for further action.

Which of the following factors should the board consider?

A. Whether the doctor’s dishonesty can be said to be related to the practice of medicine.

B. Whether his legal transgression adversely affects the integrity of the medical profession.

C. Whether it would impact his fitness to practice.

D. Whether there is a provision in the state disciplinary code governing this specific criminal offence.

E. All of the above.

• Answer: E. The peer review committee is typically the initial reviewer in matters pertaining to standard of care and ethical conduct of a hospital’s medical staff – and any adverse decision, as in this hypothetical case, is reportable to the state medical board. In reviewing a case, board members sitting in judgment will need to consider all relevant factors, including whether the accused doctor had violated any specific state statute, and whether his ethical breach, if any, will impact his fitness to practice and/or the integrity of the profession.

Disciplinary regulation of the medical profession is under state mandate, so different rules apply in different states. In general, the disciplinary arm of a state medical board receives and responds to complaints, investigates, and conducts hearings to determine physician guilt. These administrative proceedings are quasi-criminal in nature. State boards also serve additional functions such as the licensing and continuing education of doctors.

The Federation of State Medical Boards (FSMB) is a national nonprofit organization that represents the 70 medical and osteopathic boards of the United States and its territories (accessible at www.fsmb.org).

Physician veracity is at the heart of professionalism, and dishonesty underpins many acts and situations that may be labeled as professional misconduct.

At one extreme is the perpetration of outright fraud, which may be punishable under the criminal code, as in Medicare/Medicaid fraud and abuse (see my earlier column, "Understanding Medicare and Medicaid Fraud"). Other familiar instances of dishonesty in clinical practice include falsifying CME attendance or patient records, and "gaming" the system by deliberate miscoding to obtain prior authorization or payments from third-party payers. Research misconduct and plagiarism are other examples.

The list is by no means exhaustive, and it is not any willful filing of a false report that necessarily constitutes unprofessional conduct. In Maryland, for example, conduct that has merely a general or associative relationship to the physician in his capacity as a member of the medical profession is not sanctionable by the state board of physicians.

On the other hand, if it relates to the effective delivery of patient care, then the misconduct can be said to occur in the practice of medicine, even if there is no issue of the individual’s grasp of particular technical skills.

However, the term "practice of medicine" is liberally construed. In Cornfeld v. State Board of Physicians (921 A.2d 893 [Md. 2007]), the defendant argued that providing false testimony at a peer review hearing could not be construed as being part of the practice of medicine. But the court held that by its very nature, hospital peer review of medical treatment relates to the effective delivery of patient care.

And in Kim v. Maryland State Board of Physicians (9 A.3d 534 [Md. 2010]), the defendant was found in violation of the Maryland Medical Practice Act by willfully making false statements in his medical license renewal. He had falsely denied involvement in a malpractice lawsuit in response to specific questions in the application questionnaire.

The doctor argued that his conduct was not within the practice of medicine, as was statutorily required; but the court ruled that his misconduct was sufficiently intertwined with the effective delivery of patient care. The court interpreted the phrase "the practice of medicine" to embrace unethical conduct evincing unfitness to practice medicine, either by harming patients or by diminishing the standing of the medical profession in the public eye.

Other allegations of dishonesty arguably fall outside the practice of medicine, but both medical boards and courts have tended to infer the presence of professional misconduct where physician veracity is at issue.

For example, in Windham v. Board of Med. Quality Assur. (104 Cal. App.3d 461 [1980]), the California Court of Appeals rejected the defendant’s position that his conviction for tax evasion was not the type of transgression that reflected on his professional qualifications, functions, or duties. Instead, the court held that such dishonesty necessarily involves moral turpitude, and is sufficiently related to the practice of medicine as to justify revocation of licensure.

The California court stated that it was difficult to "compartmentalize dishonesty in such a way that a person who is willing to cheat his government out of $65,000 in taxes may yet be considered honest in his dealings with his patients."

Likewise, the Washington Supreme Court upheld the suspension of a doctor’s license following his conviction for tax fraud (In Re Kindschi (52 Wn.2d 8 [1958]). In taking a broad view of the requirement that improper conduct relates to the practice of medicine, the court held that conviction for tax fraud, which goes to the issue of trustworthiness, is a valid reason for taking disciplinary action against a physician.

Who gets into trouble with medical disciplinary boards? In a California study (Arch. Intern. Med. 2004;164:653-8) of the characteristics associated with physician discipline (for all manner of misconduct, not just dishonesty), the authors concluded that male physicians were nearly three times as likely as women physicians, and those who were non–board-certified were twice as likely as their board-certified counterparts, to be disciplined.

Obstetricians, gynecologists, family physicians, general practitioners, and psychiatrists were more likely than internists, whereas pediatricians and radiologists were the least likely. Age had a smaller influence (elevated risk with increasing age), and foreign medical graduates also had an increased risk. In another study, medical students with professional misbehavior were found to be more likely to display similar behavior after graduation.

In 2011, there were a total of 6,034 disciplinary actions of all types taken against doctors, with the highest number in Wyoming (6.79 per 1,000 doctors), Louisiana (5.58), and Ohio (5.52). The lowest rates were in South Carolina (1.33 per 1,000 doctors), Washington, D.C. (1.47), and Minnesota (1.49).

Many believe these numbers vastly underestimate the prevalence of physician misconduct, and that the widely disparate statistics do not indicate any state having more or fewer bad doctors. Instead, the numbers reflect the suboptimal functioning of medical disciplinary boards.

Dr. Tan is emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

• Question: A hospital-based doctor underdeclared his income and was found guilty of income tax fraud. This prompted the hospital administrator to request a hearing by the peer review committee, which decided to suspend the doctor’s privileges. The committee then referred the case to the state medical board for further action.

Which of the following factors should the board consider?

A. Whether the doctor’s dishonesty can be said to be related to the practice of medicine.

B. Whether his legal transgression adversely affects the integrity of the medical profession.

C. Whether it would impact his fitness to practice.

D. Whether there is a provision in the state disciplinary code governing this specific criminal offence.

E. All of the above.

• Answer: E. The peer review committee is typically the initial reviewer in matters pertaining to standard of care and ethical conduct of a hospital’s medical staff – and any adverse decision, as in this hypothetical case, is reportable to the state medical board. In reviewing a case, board members sitting in judgment will need to consider all relevant factors, including whether the accused doctor had violated any specific state statute, and whether his ethical breach, if any, will impact his fitness to practice and/or the integrity of the profession.

Disciplinary regulation of the medical profession is under state mandate, so different rules apply in different states. In general, the disciplinary arm of a state medical board receives and responds to complaints, investigates, and conducts hearings to determine physician guilt. These administrative proceedings are quasi-criminal in nature. State boards also serve additional functions such as the licensing and continuing education of doctors.

The Federation of State Medical Boards (FSMB) is a national nonprofit organization that represents the 70 medical and osteopathic boards of the United States and its territories (accessible at www.fsmb.org).

Physician veracity is at the heart of professionalism, and dishonesty underpins many acts and situations that may be labeled as professional misconduct.

At one extreme is the perpetration of outright fraud, which may be punishable under the criminal code, as in Medicare/Medicaid fraud and abuse (see my earlier column, "Understanding Medicare and Medicaid Fraud"). Other familiar instances of dishonesty in clinical practice include falsifying CME attendance or patient records, and "gaming" the system by deliberate miscoding to obtain prior authorization or payments from third-party payers. Research misconduct and plagiarism are other examples.

The list is by no means exhaustive, and it is not any willful filing of a false report that necessarily constitutes unprofessional conduct. In Maryland, for example, conduct that has merely a general or associative relationship to the physician in his capacity as a member of the medical profession is not sanctionable by the state board of physicians.

On the other hand, if it relates to the effective delivery of patient care, then the misconduct can be said to occur in the practice of medicine, even if there is no issue of the individual’s grasp of particular technical skills.

However, the term "practice of medicine" is liberally construed. In Cornfeld v. State Board of Physicians (921 A.2d 893 [Md. 2007]), the defendant argued that providing false testimony at a peer review hearing could not be construed as being part of the practice of medicine. But the court held that by its very nature, hospital peer review of medical treatment relates to the effective delivery of patient care.

And in Kim v. Maryland State Board of Physicians (9 A.3d 534 [Md. 2010]), the defendant was found in violation of the Maryland Medical Practice Act by willfully making false statements in his medical license renewal. He had falsely denied involvement in a malpractice lawsuit in response to specific questions in the application questionnaire.

The doctor argued that his conduct was not within the practice of medicine, as was statutorily required; but the court ruled that his misconduct was sufficiently intertwined with the effective delivery of patient care. The court interpreted the phrase "the practice of medicine" to embrace unethical conduct evincing unfitness to practice medicine, either by harming patients or by diminishing the standing of the medical profession in the public eye.

Other allegations of dishonesty arguably fall outside the practice of medicine, but both medical boards and courts have tended to infer the presence of professional misconduct where physician veracity is at issue.

For example, in Windham v. Board of Med. Quality Assur. (104 Cal. App.3d 461 [1980]), the California Court of Appeals rejected the defendant’s position that his conviction for tax evasion was not the type of transgression that reflected on his professional qualifications, functions, or duties. Instead, the court held that such dishonesty necessarily involves moral turpitude, and is sufficiently related to the practice of medicine as to justify revocation of licensure.

The California court stated that it was difficult to "compartmentalize dishonesty in such a way that a person who is willing to cheat his government out of $65,000 in taxes may yet be considered honest in his dealings with his patients."

Likewise, the Washington Supreme Court upheld the suspension of a doctor’s license following his conviction for tax fraud (In Re Kindschi (52 Wn.2d 8 [1958]). In taking a broad view of the requirement that improper conduct relates to the practice of medicine, the court held that conviction for tax fraud, which goes to the issue of trustworthiness, is a valid reason for taking disciplinary action against a physician.

Who gets into trouble with medical disciplinary boards? In a California study (Arch. Intern. Med. 2004;164:653-8) of the characteristics associated with physician discipline (for all manner of misconduct, not just dishonesty), the authors concluded that male physicians were nearly three times as likely as women physicians, and those who were non–board-certified were twice as likely as their board-certified counterparts, to be disciplined.

Obstetricians, gynecologists, family physicians, general practitioners, and psychiatrists were more likely than internists, whereas pediatricians and radiologists were the least likely. Age had a smaller influence (elevated risk with increasing age), and foreign medical graduates also had an increased risk. In another study, medical students with professional misbehavior were found to be more likely to display similar behavior after graduation.

In 2011, there were a total of 6,034 disciplinary actions of all types taken against doctors, with the highest number in Wyoming (6.79 per 1,000 doctors), Louisiana (5.58), and Ohio (5.52). The lowest rates were in South Carolina (1.33 per 1,000 doctors), Washington, D.C. (1.47), and Minnesota (1.49).

Many believe these numbers vastly underestimate the prevalence of physician misconduct, and that the widely disparate statistics do not indicate any state having more or fewer bad doctors. Instead, the numbers reflect the suboptimal functioning of medical disciplinary boards.

Dr. Tan is emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

• Question: A hospital-based doctor underdeclared his income and was found guilty of income tax fraud. This prompted the hospital administrator to request a hearing by the peer review committee, which decided to suspend the doctor’s privileges. The committee then referred the case to the state medical board for further action.

Which of the following factors should the board consider?

A. Whether the doctor’s dishonesty can be said to be related to the practice of medicine.

B. Whether his legal transgression adversely affects the integrity of the medical profession.

C. Whether it would impact his fitness to practice.

D. Whether there is a provision in the state disciplinary code governing this specific criminal offence.

E. All of the above.

• Answer: E. The peer review committee is typically the initial reviewer in matters pertaining to standard of care and ethical conduct of a hospital’s medical staff – and any adverse decision, as in this hypothetical case, is reportable to the state medical board. In reviewing a case, board members sitting in judgment will need to consider all relevant factors, including whether the accused doctor had violated any specific state statute, and whether his ethical breach, if any, will impact his fitness to practice and/or the integrity of the profession.

Disciplinary regulation of the medical profession is under state mandate, so different rules apply in different states. In general, the disciplinary arm of a state medical board receives and responds to complaints, investigates, and conducts hearings to determine physician guilt. These administrative proceedings are quasi-criminal in nature. State boards also serve additional functions such as the licensing and continuing education of doctors.

The Federation of State Medical Boards (FSMB) is a national nonprofit organization that represents the 70 medical and osteopathic boards of the United States and its territories (accessible at www.fsmb.org).

Physician veracity is at the heart of professionalism, and dishonesty underpins many acts and situations that may be labeled as professional misconduct.

At one extreme is the perpetration of outright fraud, which may be punishable under the criminal code, as in Medicare/Medicaid fraud and abuse (see my earlier column, "Understanding Medicare and Medicaid Fraud"). Other familiar instances of dishonesty in clinical practice include falsifying CME attendance or patient records, and "gaming" the system by deliberate miscoding to obtain prior authorization or payments from third-party payers. Research misconduct and plagiarism are other examples.

The list is by no means exhaustive, and it is not any willful filing of a false report that necessarily constitutes unprofessional conduct. In Maryland, for example, conduct that has merely a general or associative relationship to the physician in his capacity as a member of the medical profession is not sanctionable by the state board of physicians.

On the other hand, if it relates to the effective delivery of patient care, then the misconduct can be said to occur in the practice of medicine, even if there is no issue of the individual’s grasp of particular technical skills.

However, the term "practice of medicine" is liberally construed. In Cornfeld v. State Board of Physicians (921 A.2d 893 [Md. 2007]), the defendant argued that providing false testimony at a peer review hearing could not be construed as being part of the practice of medicine. But the court held that by its very nature, hospital peer review of medical treatment relates to the effective delivery of patient care.

And in Kim v. Maryland State Board of Physicians (9 A.3d 534 [Md. 2010]), the defendant was found in violation of the Maryland Medical Practice Act by willfully making false statements in his medical license renewal. He had falsely denied involvement in a malpractice lawsuit in response to specific questions in the application questionnaire.

The doctor argued that his conduct was not within the practice of medicine, as was statutorily required; but the court ruled that his misconduct was sufficiently intertwined with the effective delivery of patient care. The court interpreted the phrase "the practice of medicine" to embrace unethical conduct evincing unfitness to practice medicine, either by harming patients or by diminishing the standing of the medical profession in the public eye.

Other allegations of dishonesty arguably fall outside the practice of medicine, but both medical boards and courts have tended to infer the presence of professional misconduct where physician veracity is at issue.

For example, in Windham v. Board of Med. Quality Assur. (104 Cal. App.3d 461 [1980]), the California Court of Appeals rejected the defendant’s position that his conviction for tax evasion was not the type of transgression that reflected on his professional qualifications, functions, or duties. Instead, the court held that such dishonesty necessarily involves moral turpitude, and is sufficiently related to the practice of medicine as to justify revocation of licensure.

The California court stated that it was difficult to "compartmentalize dishonesty in such a way that a person who is willing to cheat his government out of $65,000 in taxes may yet be considered honest in his dealings with his patients."

Likewise, the Washington Supreme Court upheld the suspension of a doctor’s license following his conviction for tax fraud (In Re Kindschi (52 Wn.2d 8 [1958]). In taking a broad view of the requirement that improper conduct relates to the practice of medicine, the court held that conviction for tax fraud, which goes to the issue of trustworthiness, is a valid reason for taking disciplinary action against a physician.

Who gets into trouble with medical disciplinary boards? In a California study (Arch. Intern. Med. 2004;164:653-8) of the characteristics associated with physician discipline (for all manner of misconduct, not just dishonesty), the authors concluded that male physicians were nearly three times as likely as women physicians, and those who were non–board-certified were twice as likely as their board-certified counterparts, to be disciplined.

Obstetricians, gynecologists, family physicians, general practitioners, and psychiatrists were more likely than internists, whereas pediatricians and radiologists were the least likely. Age had a smaller influence (elevated risk with increasing age), and foreign medical graduates also had an increased risk. In another study, medical students with professional misbehavior were found to be more likely to display similar behavior after graduation.

In 2011, there were a total of 6,034 disciplinary actions of all types taken against doctors, with the highest number in Wyoming (6.79 per 1,000 doctors), Louisiana (5.58), and Ohio (5.52). The lowest rates were in South Carolina (1.33 per 1,000 doctors), Washington, D.C. (1.47), and Minnesota (1.49).

Many believe these numbers vastly underestimate the prevalence of physician misconduct, and that the widely disparate statistics do not indicate any state having more or fewer bad doctors. Instead, the numbers reflect the suboptimal functioning of medical disciplinary boards.

Dr. Tan is emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A diabetic driver (DD) strikes a pedestrian after losing control of his vehicle from insulin-induced hypoglycemia. Both the DD and the pedestrian were seriously injured. The DD was recently diagnosed, and his physician had started him on insulin, but did not warn of hypoglycemia. In addition, the DD suffers from coronary heart disease but was unaware this potentially can cause serious arrhythmias. Which of the following statements is best?

A. The DD can sue his doctor for failure to disclose the risk of insulin therapy.

B. The pedestrian can sue the DD’s doctor for failing to warn of hypoglycemia.

C. If the accident resulted from a cardiac arrhythmia rather than hypoglycemia, then the doctor will not be liable.

D. Statements A and B are correct.

E. Statements A, B, and C are correct.

Answer: E. A doctor is liable for negligent care only to his or her own patient. This duty of care grows out of the doctor-patient relationship, and is normally owed to the patient and no one else. However, in very limited circumstances, the duty may be extended to other individuals, so-called third parties, who may be family members or even total strangers.

Injured nonpatient third parties have successfully sued doctors for failing to warn their patients that certain medications can adversely affect their driving ability. There also may be liability for failing to warn about medical conditions, e.g., syncope, that can impact driving.

Thus, in the above hypothetical, statements A, B, and C are all correct choices.

Doctors are increasingly being sued when their patients injure others in auto accidents.

In McKenzie v. Hawaii Permanente Medical Group (47 P.3d 1209 [Haw. 2002]), a car suddenly veered across five lanes of traffic, striking an 11-year-old girl and crushing her against a cement planter. The driver alleged that the prescription medication Prazosin caused him to lose control of the car, and that the treating physician was negligent, first, in prescribing an inappropriate type and dose of medication, and second, in failing to warn of potential side effects that could affect driving ability.

The Hawaii Supreme Court emphasized that the risk of tort liability to an individual physician already discourages negligent prescribing. Therefore, a physician does not have a duty to third parties where the alleged negligence involves prescribing decisions – i.e., whether to prescribe medication at all, which medication to prescribe, and what dosage to use.

On the other hand, physicians have a duty to their patients to warn of potential adverse effects, and this responsibility should therefore extend to third parties. Thus, liability would attach to injuries of innocent third parties as a result of failing to warn of a medication’s effects on driving – unless a reasonable person could be expected to be aware of this risk without the warning.

Other court decisions are in support. The New Mexico Supreme Court ruled that a physician owes a duty to third parties injured by patients who had been injected with medications, such as narcotics, that are known to affect judgment and driving ability (Wilschinsky v. Medina, 108 N.M. 511 [1989]). However, that court later declined to extend a physician’s duty to nonpatients for prescription-involved situations, after considering the potential impact on malpractice litigation if a physician’s duty were to extend to the general public (Lester v. Hall, 126 N.M. 405 [1998]).

In addition, a Massachusetts superior court judge has ruled that a "special relationship" is deemed to exist between a doctor and an injured third party for public policy reasons. Foreseeability is one important factor in construing the existence of such a "special relationship." This would then translate into a legal duty of care, notwithstanding absence of the traditional doctor-patient relationship.

In that case (Arsenault v McConarty, 21 Mass. L. Rptr. 500 [2006]), a family practitioner had failed to warn his diabetic patient of the risk of diabetic drugs when operating a vehicle. Just 45 minutes after the patient’s discharge from the hospital, he developed hypoglycemia, losing consciousness and injuring a motorcyclist – who then sued the doctor.

A doctor also may be liable to third parties for failing to warn the patient of driving risks related to some underlying medical condition.

In Myers v. Quesenberry (193 Cal. Rptr. 733 [1983]), a California court held that the plaintiff, a third-party accident victim, had a cause of action against two doctors for negligently failing to warn their patient against driving in an uncontrolled diabetic condition that was complicated by a missed abortion. In Freese v. Lemmon (210 N.W.2d 576 [Iowa 1973]), the Iowa Supreme Court held that a physician must warn a patient with newly diagnosed seizure disorder about the risks of driving. In that case, a patient with history of a single seizure injured a woman when he suffered a second seizure while driving. A Massachusetts court has likewise ruled that a treating neurosurgeon whose patient with a brain tumor struck a plaintiff should be named a codefendant.

Not all courts have decided in this manner. In a recent departure, the Connecticut Supreme Court ruled in Jarmie v. Troncale (SC 18358 [Sept. 17, 2012]) that doctors are immune from third-party traffic accident lawsuits, as such litigation would detract from what’s best for the patient ("a physician’s desire to avoid lawsuits may result in far more restrictive advice than necessary for the patient’s well-being"). The defendant-gastroenterologist, Dr. Troncale, was treating a patient with hepatic encephalopathy and had not warned of the associated risk of driving.

Finally, there is the issue of the at-risk patient who insists on driving against medical advice. The doctor should spare no effort in trying to persuade such a patient to stop, even to the extent of notifying the motor licensing bureau.

According to the AMA Code of Medical Ethics (2.24 (3), 2010-2011 ed.), "Physicians should use their best judgment when determining when to report impairments that could limit a patient’s ability to drive safely. In situations where clear evidence of substantial driving impairment implies a strong threat to patient and public safety, and where the physician’s advice to discontinue driving privileges is ignored, it is desirable and ethical to notify the department of motor vehicles."

Dr. Tan is emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A diabetic driver (DD) strikes a pedestrian after losing control of his vehicle from insulin-induced hypoglycemia. Both the DD and the pedestrian were seriously injured. The DD was recently diagnosed, and his physician had started him on insulin, but did not warn of hypoglycemia. In addition, the DD suffers from coronary heart disease but was unaware this potentially can cause serious arrhythmias. Which of the following statements is best?

A. The DD can sue his doctor for failure to disclose the risk of insulin therapy.

B. The pedestrian can sue the DD’s doctor for failing to warn of hypoglycemia.

C. If the accident resulted from a cardiac arrhythmia rather than hypoglycemia, then the doctor will not be liable.

D. Statements A and B are correct.

E. Statements A, B, and C are correct.

Answer: E. A doctor is liable for negligent care only to his or her own patient. This duty of care grows out of the doctor-patient relationship, and is normally owed to the patient and no one else. However, in very limited circumstances, the duty may be extended to other individuals, so-called third parties, who may be family members or even total strangers.

Injured nonpatient third parties have successfully sued doctors for failing to warn their patients that certain medications can adversely affect their driving ability. There also may be liability for failing to warn about medical conditions, e.g., syncope, that can impact driving.

Thus, in the above hypothetical, statements A, B, and C are all correct choices.

Doctors are increasingly being sued when their patients injure others in auto accidents.

In McKenzie v. Hawaii Permanente Medical Group (47 P.3d 1209 [Haw. 2002]), a car suddenly veered across five lanes of traffic, striking an 11-year-old girl and crushing her against a cement planter. The driver alleged that the prescription medication Prazosin caused him to lose control of the car, and that the treating physician was negligent, first, in prescribing an inappropriate type and dose of medication, and second, in failing to warn of potential side effects that could affect driving ability.

The Hawaii Supreme Court emphasized that the risk of tort liability to an individual physician already discourages negligent prescribing. Therefore, a physician does not have a duty to third parties where the alleged negligence involves prescribing decisions – i.e., whether to prescribe medication at all, which medication to prescribe, and what dosage to use.

On the other hand, physicians have a duty to their patients to warn of potential adverse effects, and this responsibility should therefore extend to third parties. Thus, liability would attach to injuries of innocent third parties as a result of failing to warn of a medication’s effects on driving – unless a reasonable person could be expected to be aware of this risk without the warning.

Other court decisions are in support. The New Mexico Supreme Court ruled that a physician owes a duty to third parties injured by patients who had been injected with medications, such as narcotics, that are known to affect judgment and driving ability (Wilschinsky v. Medina, 108 N.M. 511 [1989]). However, that court later declined to extend a physician’s duty to nonpatients for prescription-involved situations, after considering the potential impact on malpractice litigation if a physician’s duty were to extend to the general public (Lester v. Hall, 126 N.M. 405 [1998]).

In addition, a Massachusetts superior court judge has ruled that a "special relationship" is deemed to exist between a doctor and an injured third party for public policy reasons. Foreseeability is one important factor in construing the existence of such a "special relationship." This would then translate into a legal duty of care, notwithstanding absence of the traditional doctor-patient relationship.

In that case (Arsenault v McConarty, 21 Mass. L. Rptr. 500 [2006]), a family practitioner had failed to warn his diabetic patient of the risk of diabetic drugs when operating a vehicle. Just 45 minutes after the patient’s discharge from the hospital, he developed hypoglycemia, losing consciousness and injuring a motorcyclist – who then sued the doctor.

A doctor also may be liable to third parties for failing to warn the patient of driving risks related to some underlying medical condition.

In Myers v. Quesenberry (193 Cal. Rptr. 733 [1983]), a California court held that the plaintiff, a third-party accident victim, had a cause of action against two doctors for negligently failing to warn their patient against driving in an uncontrolled diabetic condition that was complicated by a missed abortion. In Freese v. Lemmon (210 N.W.2d 576 [Iowa 1973]), the Iowa Supreme Court held that a physician must warn a patient with newly diagnosed seizure disorder about the risks of driving. In that case, a patient with history of a single seizure injured a woman when he suffered a second seizure while driving. A Massachusetts court has likewise ruled that a treating neurosurgeon whose patient with a brain tumor struck a plaintiff should be named a codefendant.

Not all courts have decided in this manner. In a recent departure, the Connecticut Supreme Court ruled in Jarmie v. Troncale (SC 18358 [Sept. 17, 2012]) that doctors are immune from third-party traffic accident lawsuits, as such litigation would detract from what’s best for the patient ("a physician’s desire to avoid lawsuits may result in far more restrictive advice than necessary for the patient’s well-being"). The defendant-gastroenterologist, Dr. Troncale, was treating a patient with hepatic encephalopathy and had not warned of the associated risk of driving.

Finally, there is the issue of the at-risk patient who insists on driving against medical advice. The doctor should spare no effort in trying to persuade such a patient to stop, even to the extent of notifying the motor licensing bureau.

According to the AMA Code of Medical Ethics (2.24 (3), 2010-2011 ed.), "Physicians should use their best judgment when determining when to report impairments that could limit a patient’s ability to drive safely. In situations where clear evidence of substantial driving impairment implies a strong threat to patient and public safety, and where the physician’s advice to discontinue driving privileges is ignored, it is desirable and ethical to notify the department of motor vehicles."

Dr. Tan is emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A diabetic driver (DD) strikes a pedestrian after losing control of his vehicle from insulin-induced hypoglycemia. Both the DD and the pedestrian were seriously injured. The DD was recently diagnosed, and his physician had started him on insulin, but did not warn of hypoglycemia. In addition, the DD suffers from coronary heart disease but was unaware this potentially can cause serious arrhythmias. Which of the following statements is best?

A. The DD can sue his doctor for failure to disclose the risk of insulin therapy.

B. The pedestrian can sue the DD’s doctor for failing to warn of hypoglycemia.

C. If the accident resulted from a cardiac arrhythmia rather than hypoglycemia, then the doctor will not be liable.

D. Statements A and B are correct.

E. Statements A, B, and C are correct.

Answer: E. A doctor is liable for negligent care only to his or her own patient. This duty of care grows out of the doctor-patient relationship, and is normally owed to the patient and no one else. However, in very limited circumstances, the duty may be extended to other individuals, so-called third parties, who may be family members or even total strangers.

Injured nonpatient third parties have successfully sued doctors for failing to warn their patients that certain medications can adversely affect their driving ability. There also may be liability for failing to warn about medical conditions, e.g., syncope, that can impact driving.

Thus, in the above hypothetical, statements A, B, and C are all correct choices.

Doctors are increasingly being sued when their patients injure others in auto accidents.

In McKenzie v. Hawaii Permanente Medical Group (47 P.3d 1209 [Haw. 2002]), a car suddenly veered across five lanes of traffic, striking an 11-year-old girl and crushing her against a cement planter. The driver alleged that the prescription medication Prazosin caused him to lose control of the car, and that the treating physician was negligent, first, in prescribing an inappropriate type and dose of medication, and second, in failing to warn of potential side effects that could affect driving ability.

The Hawaii Supreme Court emphasized that the risk of tort liability to an individual physician already discourages negligent prescribing. Therefore, a physician does not have a duty to third parties where the alleged negligence involves prescribing decisions – i.e., whether to prescribe medication at all, which medication to prescribe, and what dosage to use.

On the other hand, physicians have a duty to their patients to warn of potential adverse effects, and this responsibility should therefore extend to third parties. Thus, liability would attach to injuries of innocent third parties as a result of failing to warn of a medication’s effects on driving – unless a reasonable person could be expected to be aware of this risk without the warning.

Other court decisions are in support. The New Mexico Supreme Court ruled that a physician owes a duty to third parties injured by patients who had been injected with medications, such as narcotics, that are known to affect judgment and driving ability (Wilschinsky v. Medina, 108 N.M. 511 [1989]). However, that court later declined to extend a physician’s duty to nonpatients for prescription-involved situations, after considering the potential impact on malpractice litigation if a physician’s duty were to extend to the general public (Lester v. Hall, 126 N.M. 405 [1998]).

In addition, a Massachusetts superior court judge has ruled that a "special relationship" is deemed to exist between a doctor and an injured third party for public policy reasons. Foreseeability is one important factor in construing the existence of such a "special relationship." This would then translate into a legal duty of care, notwithstanding absence of the traditional doctor-patient relationship.

In that case (Arsenault v McConarty, 21 Mass. L. Rptr. 500 [2006]), a family practitioner had failed to warn his diabetic patient of the risk of diabetic drugs when operating a vehicle. Just 45 minutes after the patient’s discharge from the hospital, he developed hypoglycemia, losing consciousness and injuring a motorcyclist – who then sued the doctor.

A doctor also may be liable to third parties for failing to warn the patient of driving risks related to some underlying medical condition.

In Myers v. Quesenberry (193 Cal. Rptr. 733 [1983]), a California court held that the plaintiff, a third-party accident victim, had a cause of action against two doctors for negligently failing to warn their patient against driving in an uncontrolled diabetic condition that was complicated by a missed abortion. In Freese v. Lemmon (210 N.W.2d 576 [Iowa 1973]), the Iowa Supreme Court held that a physician must warn a patient with newly diagnosed seizure disorder about the risks of driving. In that case, a patient with history of a single seizure injured a woman when he suffered a second seizure while driving. A Massachusetts court has likewise ruled that a treating neurosurgeon whose patient with a brain tumor struck a plaintiff should be named a codefendant.

Not all courts have decided in this manner. In a recent departure, the Connecticut Supreme Court ruled in Jarmie v. Troncale (SC 18358 [Sept. 17, 2012]) that doctors are immune from third-party traffic accident lawsuits, as such litigation would detract from what’s best for the patient ("a physician’s desire to avoid lawsuits may result in far more restrictive advice than necessary for the patient’s well-being"). The defendant-gastroenterologist, Dr. Troncale, was treating a patient with hepatic encephalopathy and had not warned of the associated risk of driving.

Finally, there is the issue of the at-risk patient who insists on driving against medical advice. The doctor should spare no effort in trying to persuade such a patient to stop, even to the extent of notifying the motor licensing bureau.

According to the AMA Code of Medical Ethics (2.24 (3), 2010-2011 ed.), "Physicians should use their best judgment when determining when to report impairments that could limit a patient’s ability to drive safely. In situations where clear evidence of substantial driving impairment implies a strong threat to patient and public safety, and where the physician’s advice to discontinue driving privileges is ignored, it is desirable and ethical to notify the department of motor vehicles."

Dr. Tan is emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].