Original Research
Physician and Juror Assessment of Malpractice Case Scenarios: Does the Legal System Provide an Appropriate Signal to Promote Patient Safety?
Bryan A. Liang & Tim K. Mackey


Abstract:
This study is an empirical assessment of 10 malpractice case scenarios by physicians and laypersons eligible for jury duty. All respondents were found not to have knowledge of the negligence rule of malpractice. However, laypersons concorded significantly more often and better predicted verdicts in these cases compared with physicians. Non-clinical and non-legal characteristics for both physician and layperson respondents were correlated with these results. If these findings can be generalized, the malpractice system may be providing an unclear and even inappropriate signal to physicians, and laypersons may be making malpractice assessments on the basis of factors in addition to or in place of the theoretical legal rule. Hence, other means such as reducing and/or mitigating the effects of medical error may be better suited to promote safety in health care.

Keywords: medical malpractice, health policy, health law, patient safety

Published: 16 August 2012
Cite as: Liang BA, Mackey TK. Physician and Juror Assessment of Malpractice Case Scenarios: Does the Legal System Provide an Appropriate Signal to Promote Patient Safety?
Bull Health L Policy. 2012;1(1): e6.

Introduction

The medical malpractice tort system theoretically defines acceptable levels of injury through a fault mechanism. By imposing individual liability using the negligence rule on those physicians who fall short of an objective standard of care, the legal system should theoretically supply physicians with strong incentives to promote safety and reduce patient injury to a socially defined level and cost.1 This is a primary rationale for the system’s existence.2

The system is premised on two assumptions. First, actors within the deterrence structure theoretically know the legal rule of negligence; i.e., physicians must know the rule in order to be appropriately affected by it. Second, a single accepted standard of care must exist to assess physician actions. Since the profession defines this standard itself, physicians should know the standard through medical training and experience; layperson juries theoretically are educated about this standard at trial. Therefore, assessment of physician actions by physicians and juries should generally concur.3

An important implication of these assumptions is that laypersons without legal or medical knowledge should not do as well as physicians in assessing malpractice cases or predicting jury verdicts. This result simply reflects the premise that laypersons do not have the requisite medical and legal information to assess cases before trial, whereas physicians are able to rely on clinical knowledge of the standard of care.

Reliance upon the tort system as the primary basis for promoting patient safety may be misplaced. The Institute of Medicine (IOM) report on patient safety has indicated that patient injury is generally and directly attributable to medical error. Error reduction in medicine may not be well suited to adversarial blame methods such as traditional litigation.4 In this context, if physicians do not have an understanding of the negligence rule, a single standard of care is not present, or physicians cannot effectively predict jury verdicts for whatever reason, the billions of dollars spent on the malpractice system yearly5 may not be supporting effective patient injury deterrence. Similarly, if laypersons who might serve as jurors in these cases assess cases or predict jury verdicts more effectively than physicians, the system may not be supporting appropriate deterrence, and indeed may be considered procedurally unfair.6 In light of significant recent research indicating that non-fault based, cooperative, system-based mechanisms successfully reduce the primary causal factor of patient injury—medical errors—the extensive resources used for the medical malpractice system may be better allocated to successful error reduction methods to minimize patient injury and maximize patient safety.7

This study thus attempts to examine these malpractice system assumptions using a survey methodology. It does so through analysis of physician and layperson/juror reviews of actual jury verdict cases, determines their relationship to demographic factors, and then compares the two groups’ assessment results.


Methods
For the physician sample, 210 primary care (internal medicine, family practice) physicians contracting with a large, nonprofit HMO in southern California were sent surveys requesting demographic information, malpractice system experience, identification of the definition of negligence, and evaluation of 10 jury verdict case scenarios. The case scenarios were drawn from jury verdict reporters and chosen in consultation with a practicing academic internal medicine physician on the basis of adequacy of clinical information and reflection of some common primary care practice situations.

For the layperson juror sample, because an assessment by persons who could be performing malpractice evaluations was desired, actual juror pool members were sought. Thus, with special permission of the court, 188 consecutive jurors in the Los Angeles county courthouse juror pool (Santa Monica, California) were asked to complete a survey requesting demographic information, jury experience, identification of the definition of negligence, and evaluation of the same 10 malpractice case scenarios.

All respondents were asked to “clinically” evaluate the defendant physician’s care on a Likert scale: 1=Correct; 2=Most Likely Correct; 3=Can’t Tell; 4=Most Likely Not Correct; 5=Not Correct. Respondents were then asked to predict the actual jury verdict. Respondents were paid a small honorarium. Due to their length, surveys are not reproduced here but are available from the author.

For physicians, interphysician agreement was defined as the percentage of respondent physicians who evaluated the defendant physician’s actions as relatively correct or incorrect, with the larger percentage reported. Likert values of 1 and 2 were combined, as were Likert values 4 and 5 for this calculation.

For all respondents, concordance with jury verdicts was defined as respondent evaluation compared with the actual verdict, combining Likert values of 1 and 2 and Likert values 3 and 4. Concordance was coded as follows: if the actual verdict in the case was negligent, and the respondent evaluated the defendant physician’s actions as relatively incorrect (Likert value 4 or 5), the response was coded as 1; if the respondent evaluated the defendant physician as relatively correct (Likert value 1 or 2), the response was coded as 0; corresponding coding was performed for nonnegligent case verdicts. Thus, values closer to 1 represent progressively greater concordance with jury verdicts. Can’t Tell responses were not used in interphysician agreement or respondent concordance calculations. Respondent predictions of jury verdicts are reported as fraction correct. In assessing respondent characteristics and relation to concordance, Likert values, and prediction success, the unit of analysis was each individual respondent case assessment.

Calculations were made using SAS JMP software (version 3.2.1, SAS Institute, Cary, NC) for the Macintosh. The Student t-test was used to assess difference of means; chi square to evaluate relationships between nominal and ordinal variables; and analysis of variance to determine correspondence between continuous and nominal or ordinal variables.8 Significance was defined at the 0.05 level. For comparisons of difference of means between the samples, this study adopts as its null hypothesis that the difference between layperson juror respondents and physician respondents for concordance and prediction will not be significantly different.


Results
Surveys were returned by 138 physicians (65.7%). General demographic information is reported in Table 1.

Pasted Graphic

Physicians had experience with the malpractice system as consultants/experts and as litigants, with fully half the physicians having been sued at least once (mean 1.04 [sd 1.54]) (Table 2), consistent with national reports.9 However, even with this legal system involvement, the vast majority of physicians (70.3%, N=97) failed to correctly identify the definition of negligence. Of the demographic variables, only legal background (relative or spouse in the legal profession) was correlated with correct identification (p=0.01) (Table 3).

Pasted Graphic 1

Pasted Graphic 2


Study physicians exhibited disagreement amongst themselves in case evaluation, with interphysician agreement ranging from 0.50-0.80 (weighted mean 0.70 [standard deviation (sd) 0.10], 95% confidence interval (CI) 0.69 to 0.71) (Table 4). Thus, between 20 and 50% of the time, physicians disagreed with each other as to the relative correctness of the defendant physician’s actions.

Pasted Graphic 3


In their clinical evaluation, physician concordance with actual jury verdicts was poor; only four cases had >50% of respondents agreeing with the actual verdict. When combining all physician evaluations across cases, concordance levels with jury verdicts were not significant (weighted mean 0.51 [sd 0.50], 95% CI 0.49 to 0.54); overall mean Likert value was 3.09 (sd 1.29, 95% CI 3.03 to 3.16) (Table 5). By case verdict, physicians showed majority or greater concordance with two of the three plaintiff verdict cases and two of the seven defendant verdict cases.

Pasted Graphic 4


Finally, physician prediction of jury verdicts was also poor, with only four cases having >40% correct prediction by respondents; over all assessments, prediction success was significant and negatively correlated (mean 0.45 [sd 0.49], 95% CI 0.42 to 0.47) (Table 6).

Pasted Graphic 5


Physician concordance with verdicts was significant and positively correlated only with board certification (p<0.001) (Table 7). Higher Likert values (i.e., harsher assessments) were positively correlated with greater experience (p=0.002), internal medicine specialty (p=0.001), fellowship training (p=0.03), lack of board certification (p=0.05), no legal background (p=0.05), and
incorrect identification of the negligence definition (p=0.002) (Table 8). Successful jury verdict prediction was only correlated with never having been sued (p=0.002) (Table 9).

Pasted Graphic 6

Pasted Graphic 7

Pasted Graphic 8

Surveys were returned by 154 layperson jurors (81.9%). For this respondent group, mean age was 45.4 (sd 13.12); 94 (61.0%) were female, 60 (39.0%) were male; 19 (12.3%) were Asian American, 11 (7.1%) were African American, 6 (3.9%) were Hispanic American, 117 (76.0%) were White Americans, and 1 (0.7%) reported Other for racial background. Further, 87% (N=134) of the jurors provided information on political affiliation and education and professional (i.e., legal or medical) training (Table 10). Ten (7.5%) jurors had legal training: eight lawyers, one non-lawyer business law teacher, and one law student. Fifteen jurors (11.1%) had medical training: 11 nurses, two physicians assistants, one basic science Ph.D., and one physician.

Pasted Graphic 9


Most layperson juror respondents (63.0%, N=97) had previous jury experience with 12 (7.1%) having participated in malpractice trials (Table 11). A vast majority, however, did not correctly identify the negligence definition (79.2%, N=122). Jurors’ ability to identify the correct definition of negligence was unrelated to survey factors, including previous jury service (Table 12).

Pasted Graphic 10

Pasted Graphic 11


In their “clinical” evaluation, juror concordance with actual verdicts was significant and positively correlated (0.58, sd 0.49, p<0.001, 95% confidence interval (CI) 0.55 to 0.61); overall mean Likert value was 3.10 (sd 1.21, 95% CI 3.04 to 3.16) (Table 5). Juror prediction of verdicts was also significant and positively correlated (mean 0.56 [sd 0.50], p<0.001, 95% CI 0.53 to 0.58) (Table 6).

Juror concordance with verdicts was significantly correlated to less education (combined, p=0.048) and to gender (p=0.046) (Table 12). Likert values were significantly correlated to political affiliation (p=0.02) and to gender (p=0.033) (Table 13). Prediction success was significantly correlated only with less education (graduated, p=0.03) (Table 14).

Pasted Graphic 12

Pasted Graphic 13


When comparing jurors and physicians, the ability to identify the definition of negligence did not differ; however, jurors showed significantly higher levels of both jury verdict concordance (p=0.001) and prediction success (p<0.0001) compared with physicians; mean Likert values were not significantly different (p=0.92). In cases where respondents answered Can’t Tell (i.e., “gray area” cases), jurors were significantly more successful at predicting jury verdicts than physicians (p=0.006); mean juror predictions (0.53, sd 0.50, 95% CI 0.47 to 0.60) were not significant (p=0.33), whereas mean physician predictions (0.40, sd 0.49, 95% CI 0.33 to 0.47) were significant but negatively correlated (p<0.001).

Discussion
This study’s results appear to question the validity of key malpractice system assumptions. Unfortunately, the vast majority of physicians here could not identify the correct definition of negligence even though they had participated as experts/consultants and/or litigants. Although teaching about the rule and acceptable clinical actions is theoretically an important part of the law’s function,10 physician experience with the legal system, at least for these respondents, shows no such learning, consistent with other results.11 Further, aside from direct system participation, increasing clinical experience and training reflected by years in practice, fellowship training, and board certification did not assist physicians in knowing the legal standard by which their care would be judged. Importantly, physicians engaged in academic teaching—those who provide the foundation of knowledge for future physicians—did not correctly identify the legal rule (Table 7). Thus, both legal system experience and standard clinical learning experience do not appear to contribute to a correct knowledge of the negligence rule, at least for the physicians in this study.

In addition, the assumption of a single standard of care may be questionable. There were substantial disagreements between study physicians as to the appropriateness of care provided by defendant physicians. Assuming that ≥30% disagreement between respondent physicians represents substantive case disagreement and thus more than one standard of care,12 40% of the cases (cases 1, 4, 8, 10) fall into this category; if the disagreement threshold is set at ≥20%, 100% of the cases do. If these results can be generalized, a substantial proportion of cases may not have a single standard of care. This is consistent with other specialties, which have shown similar interphysician disagreement.13

These results have significant legal implications. Under the minority practice doctrine, if a physician provides care that the majority of his or her colleagues would not, but follows a school of thought to which a respectable minority of practitioners adhere, that physician is not liable for violating the standard of care.14 Hence, in the “tough cases” where a respectable minority disagrees with the majority, and consequently there is greater than one standard of care, no liability should attach to the defendant physicians. It is therefore possible that defendant physicians here who were held liable for patient injury should not have been so adjudicated under formal legal rules. This may be true in other patient injury suits if the results can be applied more broadly. The lack of a single standard of care seems to reflect a subjective, rather than objective, care assessment by physicians. This is suggested by physician Likert value assignments. Increasing years in practice, internal medicine as primary care specialty, and fellowship training—progressively greater and/or intensive knowledge accumulation—result in harsher assessments by respondent physicians (i.e., higher Likert values).15 It appears that in determining whether defendant physicians met the standard of care, physician evaluators may be requiring defendant physicians to reach the evaluators’ personal level of knowledge and/or ability. This possibility is consistent with clinical training, where the individual attending physician’s focus and teaching (and evaluation of students and residents) is often based on the attending’s specific area of interest. Further, it is consistent with practice guidelines which conflict, are supported only by consensus, and are accepted by physicians and managed care organizations only after local modification.16

These results may also explain some studies that find agreement between reviewing physicians and juries.17 In contrast to this study, which relied upon greater than 130 physician respondent evaluators, these other studies relied on a very small number of evaluating physicians per case assessment—often only one or two—and did not assess training and other evaluating physician characteristics. Yet even in these studies, evaluating physicians still showed disagreement with jury verdicts.

It is interesting to note that lack of board certification is associated with harsher evaluations expressed through higher Likert values. It would be expected that based upon other results herein showing a correlation between intensive knowledge accumulation and harsher assessments, the attainment of board certification would result in higher Likert values, rather than lack of such certification. Indeed, lack of board certification is associated with having less experience (graduated, chi2: 28.38, p<0.0001; combined, chi2: 10.32, p=0.001) and no fellowship training (chi2: 8.15, p=0.004), factors that are associated with less harsh evaluations. This result could be due to physicians who have failed the boards, and/or are in the process of preparing for the boards, having a tendency to be hypercritical in their analyses of defendant physicians.
Other nonclinical factors also appear correlated with harsher evaluations, such as lack of a legal background and incorrect identification of negligence. Overall, it appears that an array of medical training and nonclinical factors are important in defining a particular physician’s conception of the standard of care, rather than the clinical scenario alone as mandated by the legal rule. This result is particularly important in cases that do not have an obvious clinical approach, since these cases are those that often result in patient injury and a lawsuit. Without a clear set of clinical factors defining the standard of care, subjective characteristics will assume greater importance.
With subjective standards, it would be expected that physicians would exhibit low concordance levels with actual jury verdicts, and indeed, they did here. This result is consistent with other work showing neutral physician evaluations differing from legal ones18 as well as interphysician disagreement.19 From a medical perspective, such results also reflect the well known variability phenomenon in clinical care.20 Importantly, it does not appear that these study results stem from physician colleague protectionism; in fact, study physicians agreed with two of three plaintiff verdict cases (66%), but disagreed with five of seven (71.4%) defendant verdicts—in these latter cases, respondents felt the defendant physician was negligent but the actual jury did not.

With such low concordance levels associated with subjective standards of medical appropriateness, it is exceedingly difficult for the legal system to assess defendant physician actions according to its own tenets. Thus, if these results can be applied more generally, reliance on the legal system to provide appropriate provider incentives may be futile. Lack of actor knowledge of the rule and a subjective standard of care for the practicing physician and the expert testifying in court (as well as the academic study physician evaluator) make any adjudication using the standard negligence rule impossible.

However, even if physicians have no knowledge of the negligence rule and there is more than one standard of care, if physicians could simply predict jury verdicts, the malpractice system might represent an effective incentive structure, although it may not induce optimal medical actions if jury decisions are not made in conformance with medical appropriateness.21 Unfortunately, the system did not meet even this less rigorous standard. First, prediction success was only correlated with never having been a litigant; if physicians were sued, their prediction ability actually worsened instead of improved.

Although parsing the time period through an assessment of suit recency is not statistically significant (p=0.06, Table 9), it is suggestive that the negative effect of a brush with the legal system may continue over the long term, for prediction success does not rise back to the never-been-sued levels. Hence, learning from the legal system directly as a participant does not seem effective, and indeed, contact with the system as a litigant may harm physicians’ ability to successfully predict jury verdicts in the future, beyond exposing them to higher risk of a future claim against them.22 Finally, the study physicians not only failed to predict jury verdicts as well as chance, they had affirmatively
worse results. Thus, the actual signal from the system that these physicians are receiving may be exactly wrong and may be inducing inappropriate behavior.

Juror pool respondents also exhibited results that may indicate the malpractice system’s departure from its theoretical ideal. A vast majority of juror respondents could not identify the definition of negligence, even though many had experience as jurors and some as malpractice case jurors. Thus, learning about substantive legal rules may not occur when participating in the system as adjudicators, consistent with studies showing limited juror understanding of substantive and procedural legal rules.23

Juror correct identification of the definition of negligence was statistically similar to physicians. This result is somewhat comforting, since non-legally trained groups might be expected to have similar knowledge of legal rules. However, it is disconcerting that physicians do not have relatively better knowledge of the legal rule, for it is the standard by which their professional actions are judged. It should thus be more important for physicians as a group to learn such critical aspects affecting practice, compared with laypersons whose careers may not be so significantly affected. This lack of knowledge may be related to medical education24 and residency training, which do not generally address legal concepts and issues.

Consistent with negligence definition identification levels, statistically equivalent mean Likert values also appear to indicate that the groups are similar; bias for or against plaintiffs or defendants may therefore not differ across lay and physician respondents as reported in previous work.25 However, it is interesting to note that although most of the study cases were defendant verdicts, both groups’ mean Likert value 95% confidence intervals were above 3, indicating an overall relative assessment of negligence. Therefore, both physicians and laypersons may be exhibiting a foundational bias against defendants in medical malpractice cases.26


Although laypersons, like physicians, displayed little knowledge of the negligence rule and a potentially similar bias, these factors did not impede their relatively high concordance with the actual jury verdicts when compared to physicians. This concordance with jury verdicts, reflecting a “layperson standard of care,” not only reached respondent physician concordance levels, but indeed surpassed it. Thus, in comparison with physicians, layperson limited understanding of the legal rule, as well as lack of knowledge about the clinical standard of care, was no hindrance to better and higher concordance with actual juries. Thus, laypersons and actual jurors may be using methods other than those mandated by the legal system to adjudicate malpractice cases. This possibility may explain in part the arguably unclear signal being sent to physicians from the tort system.27

In addition, it appears that certain juror characteristics are associated with particular biases, further suggesting that layperson assessments may be affected by independent, nonlegal, and nonclinical factors. For example, on the basis of Likert values, laypersons identifying themselves as conservatives appear squarely within the defendant physician camp whereas females were squarely in the plaintiff’s. This points toward a system whose results may be significantly affected by the individual preferences and characteristics of the legal system’s agents rather than simply the case’s facts and standard of care, if these findings are generalizable. These effects may be exacerbated by physician subjective determinations of the standard of care based upon their personal training and experience rather than the clinical scenario alone. Thus, both juror and physician external, nonlegal, and nonclinical factors, subjectivity, as well as hindsight bias,28 may affect the malpractice adjudication system so that it may not be functioning as desired.29

It is interesting to note that previous experience as a juror in a malpractice case may be related to lower Likert values (p=0.051, Table 13); although not statistically significant, it is suggestive that previous experience may desensitize jurors to cases without dramatic or severe injury. This possibility may represent another source of divergence from theoretical tort system tenets; previous jury service should not impact individual case assessments in a malpractice trial.

Prediction success may be seen to indicate both an understanding of the legal rule as well as medical standard of care, since both are theoretically essential to the final legal result. Similar to the results for concordance, laypersons, without legal or medical knowledge, not only matched but surpassed physicians in prediction success. Indeed, it is interesting to note that like concordance, nonclinical factors, such as a lower level of education, were correlated significantly with higher prediction success. This again raises the possibility that laypersons and juries may be using other factors in place of, or in addition to, the legal rule and medical standard of care in their assessments. This factor, too, may explain the poor, and possibly inappropriate, signal provided by the tort system to the physician community.30

It is also of interest to assess how laypersons and juries are evaluating cases perceived to have incomplete or conflicting information, i.e., gray area cases. Physicians here again fare poorly compared with laypersons, consistent with other specialty results31; indeed, physicians affirmatively chose the wrong result statistically more often compared with laypersons who at least rise to the level of chance. For physicians, this result is particularly important because it is those very situations where there is no clear clinical action apparent that may result in medical error, patient injury and, thus, a malpractice suit.32 As with prediction success, this result may reflect a potentially inappropriate signal being received by physicians in these highly complex, difficult, and important cases.

In this environment, the tort system’s signal to practicing physicians may be muddy indeed. Physician variation in the standard of care based upon individual training and nonclinical factors and juror assessment correlations with nonlegal and other factors makes the tort system function in practice quite differently from its theoretical construct. As a result, physicians, in an effort to avoid liability, may react with overprovision or underprovision of care—the specter of defensive medicine.33 Certainly, physicians report such activities.34 Even if these are mere perceptions that may or may not induce defensive medicine,35 alternative systems that in fact affirmatively induce physicians to effectively minimize injury and maximize safety would be far preferable expenditures of scarce social resources.36 Such an approach would be consistent with the literature on medical error as well as findings published in the Institute of Medicine report on patient safety.37 A partnership of patients, providers, government, and accreditation organizations using error reporting structures, systems analyses, and continuous quality improvement activities, an approach that has been successful in other industries38, could be broadly applied to medicine if legal impediments to these efforts could be eliminated.39 In this fashion, the goal of minimizing error and injury while maximizing safety would be directly addressed, rather than indirectly attempted by the agents of the legal system.

Healthcare accreditation organizations and government could support these efforts through data standardization, nonpunitive reporting approaches, dissemination of important results, and provider education.40 Redress for patient injuries caused by the medical care system, which are, in contrast to negligently caused injuries, reliably identifiable,41 could be accomplished through a worker’s compensation-type system. Direct patient suits would be available only for circumstances involving reckless provider actions.42 Such a system has been proposed for a similarly complex industry, aviation43 and appears financially feasible for medicine.44 For the smaller number of cases that involve recklessness, court-appointed experts, rather than litigant-paid experts, should be utilized, minimizing the financial bias on the expert’s opinion. The focus of this alternative system would be on continuous error reporting, corrective action to improve safety and minimize injury based on error report analysis, and deterrence of high risk, reckless behavior while compensating a greater number of injured patients.45

Such an approach would represent an important patient-centered approach to medical errors and injury. Indeed, despite more than a decade of reform efforts post-IOM report and recent healthcare changed under the Accountable Care Act, quality and safety improvement is elusive.46 Hence, physicians will likely be subject to continued medical malpractice claims for the foreseeable future. Additional means and systems should be encouraged to take into account the empirical limitations of the tort system in attempting to promote patient safety.

It is important to note that this study has limitations. For example, a greater number of physicians, additional cases, broader geographic locale, and additional specialties are needed to make more definitive conclusions about the legal system’s effects on medicine. Note, however, that a more diverse sample of physicians, cases, geography, and specialties would have a tendency to make assessments concomitantly more diverse, particularly in the area of the standard of care.

In addition, the case scenarios used herein may not completely reflect the actual jury verdict cases. Yet scenarios such as these are the sole source available to physicians to assess the tort signal; indeed, such case scenarios are assumed by the legal system to be a primary signal guiding clinical activities.47 As well, even standing alone without a relation to the actual cases, these clinical scenarios are useful because they highlight significant areas of interphysician disagreement.48

The results may also be limited by the respondent samples. Geographic homogeneity may explain these respondents level of concordance with and prediction of jury verdicts. It bears noting that both the juror and physician respondents were drawn from a large metropolitan area with racial and cultural diversity, perhaps tempering this effect.

Finally, an additional array of cases, specialties, and areas would increase understanding about how the legal system and its agents’ methods of decisionmaking affect medical practice. The results obtained here may point to a need for such additional assessments using laypersons as well as physicians in order to determine whether the significant social resources spent in the malpractice system actually effectively and efficiently promote patient safety.

Conclusion
It appears that there may be some question as to the validity of the assumptions associated with the tort system when applied to medical malpractice. Efforts to reduce patient injury using other methodologies may be more fruitful, such as focusing on error reduction methods utilized by other industries. Further empirical assessments are essential to determine whether the resources allocated to the standard medical malpractice system may be better utilized to reduce patient injury and improve patient safety.

Competing Interests: None reported
Acknowledgments: None reported

Author(s)

Bryan A. Liang is Executive Director & Shapiro Distinguished Professor of Health Law, Institute of Health Law Studies, California Western School of Law; and Professor of Anesthesiology & Director, San Diego Center for Patient Safety, University of California, San Diego School of Medicine. Tim K. Mackey is Senior Research Associate, Institute of Health Law Studies, California Western School of Law and a PhD student, Joint Doctoral Program in Global Health, University of California, San Diego-San Diego State University.

Correspondence:

Professor Bryan A. Liang, CWSL IHLS, 350 Cedar Street, San Diego, CA 92101. Email:
baliang@alum.mit.edu.

References (Bluebook):

1. W.B. Schwartz & N.K. Komesar, Doctors, Damages and Deterrence: An Economic View of Medical Malpractice, 298 New. Eng. J. Med. 1282-89 (1978).
2. W.P. Keeton, D.B. Dobbs, R.E. Keeton & D.G. Owens, Prosser and Keeton On the Law of Torts, §§4, 30, 32 (5
th ed, St. Paul, MN: West Publishing, 1984); F.A. Sloan & C.R. Hsieh, Variability in Medical Malpractice Payments: Is the Compensation Fair?, 24(4) Law & Soc’y Rev. 997-1039 (1990).
3. B.A. Liang,
Medical Malpractice: Do Physicians Have Legal Knowledge and Assess Cases As Juries Do?, 3 U. Chi. Roundtable 59-110 (1996); B.A. Liang, Assessing Medical Malpractice Verdicts: A Case Study of An Anesthesiology Department, 7 Cornell J.L. & Pub. Pol’y 121-64 (1997).
4. Institute of Medicine, To Err Is Human: Building a Safer Health System,
(Washington, D.C. National Academy Press, 1999); L.L. Leape, Error In Medicine, 272 J.A.M.A. 1851-57 (1994). 5. P.C. Weiler, Medical Malpractice on Trial (Harvard Univ. Press, 1991).
6. E.A. Lind & T.R. Tyler, The Social Psychology of Procedural Justice (1988); J. Thibaut & L. Walker, Procedural Justice: A Psychological Analysis (1975).
7. Institute of Medicine,
supra note 4; B.A. Liang, Clinical Assessment of Malpractice Case Scenarios In an Anesthesiology Department, 11 J. Clinical Anesthesia 267-79 (1999); B.A. 8.Liang & D.J. Cullen, The Legal System and Patient Safety: Charting a Divergent Course, 91 Anesthesiology 609-11 (1999).
9. H.M. Blalock, Social Statistics (2d ed. 1979); D.S. Moore, The Active Practice of Statistics (1997); J. Sall & A. Lehman, JMP Start Statistics (1996).
10. M. Crane,
Medical Economics Malpractice Survey, 26 Med. Econ. 128 (1999).
11. Keeton W.P. Et. Al, Prosser and Keeton on the Law of Torts,
supra note 2.
12. Liang,
Medical Malpractice: Do Physicians Have Legal Knowledge and Assess Cases As Juries Do?, supra note 3; Liang, Assessing Medical Malpractice Verdicts: A Case Study of An Anesthesiology Department, supra note 3.
13. Liang,
Clinical Assessment of Malpractice Case Scenarios In an Anesthesiology Department, supra note 7.
14. Liang,
Assessing Medical Malpractice Verdicts: A Case Study of An Anesthesiology Department, supra note 3; B.A. Liang, Error In Medicine: Legal Impediments to U.S. Reform, 24 J. Health Pol Pol’y & Law 27-58 (1999); B.A. Liang et al., Analysis of the Resource-Based Relative Value Scale for Medicare Reimbursements to Academic and Community Hospital Radiology Departments, 179 Radiology 751-58 (1991); W. Meadow et al., Ought ‘Standard Care’ Be the ‘Standard of Care’? A Study of the Time to Administration of Antibiotics in Children With Meningitis, 147 Am. J. Diseases of Children 40-4, (1993); W. Meadow et al., What is the Legal 'Standard of Medical Care' When There Is No Standard Medical Care? A Survey of the Use of Home Apnea Monitoring by Neonatology Fellowship Training Programs in the United States, 89 Pediatrics 1083 (1992).
14. Keeton W.P. Et. Al, Prosser and Keeton on the Law of Torts,
supra note 2.
15. Note that internal medicine is deemed to be more intensive knowledge accumulation compared with family practice because internal medicine focuses solely on one specialty while family practice includes multiple rotations in other specialties, e.g., obstetrics, surgery.
16. Liang & Cullen,
The Legal System and Patient Safety: Charting a Divergent Course, supra note 7; U.S. General Accounting Office, Practice Guidelines: The Experience of Medical Specialty Societies, Pub. no. GAO/PEMD-91-11 (1991); U.S. General Accounting Office, Practice Guidelines: Managed Care Plans Customize Guidelines to Meet Local Interests, Pub. no. GAO/HEHS-96-95 (1996).
17. M. Taragin et al.,
The Influence of Standard of Care and Severity of Injury On the Resolution of Medical Malpractice Claims, 117 Annals Internal Medicine 780-4 (1992); N. Vidmar, Medical Malpractice and the American Jury (1995); M.J. White, The Value of Liability In Medical Malpractice, 13(4) Health Aff. (Milwood) 75-87 (1994).
18. T. Brennan et al.,
Relation Between Negligent Adverse Events and Outcomes of Medical-Malpractice Litigation, 335 New Eng. J. Med. 1963-7 (1996); F. Cheney et al. , Standard of Care and Anesthesia Liability, 261 J.A.M.A1599-1603 (1989); S.D. Edbril & R.S. Lagasse, The Relationship Between Malpractice Litigation and Human Errors, 91 Anesthesiology 848-55 (1999); Liang, Medical Malpractice: Do Physicians Have Legal Knowledge and Assess Cases As Juries Do?, supra note 3; Liang, Assessing Medical Malpractice Verdicts: A Case Study of An Anesthesiology Department, 7 supra note 3; B.A. Liang, Clinical Assessment of Malpractice Case Scenarios In an Anesthesiology Department, 11 J. Clinical Anesthesia 267-79 (1999).
19. Liang,
Medical Malpractice: Do Physicians Have Legal Knowledge and Assess Cases As Juries Do?, supra note 3; Liang, Assessing Medical Malpractice Verdicts: A Case Study of An Anesthesiology Department, supra note 3; A.R. Localio et al., Identifying Adverse Events Cause by Medical Care: Degree of Physician Agreement In a Retrospective Chart Review, 125 Annals Internal Med. 457-63 (1996); K. Posner et al., Variation In Expert Opinion in Medical Malpractice Review, 85 Anesthesiology 1049-54 (1996).
20. A.O. Berg,
Variations Among Family Physicians Management Strategies for Lower Urinary Tract Infection in Women: A Report from the Washington Family Physicians Collaborative Research Network, 4(5) J. Am Board of Family Practice 327-30 (1991); J.M. Eisenberg, Doctors, Decisions, and the Cost of Medical Care: The Reasons for Doctors’ Practice Patterns and the Ways to Change Them (1986); J. Elmore et al., Variability in Radiologists Interpretation of Mammograms, 331 New Eng. J. Med. 1493-99 (1994); J.E. Wennberg & A. Gittlesohn, Variations in Medical Care Among Small Areas, 246(4) Sci. Am. 120-34 (1982).
21. Liang,
Assessing Medical Malpractice Verdicts: A Case Study of An Anesthesiology Department, supra note 3; Liang, Clinical Assessment of Malpractice Case Scenarios In an Anesthesiology Department, supra note 19.
22. G. Thomasson et al.,
Patient Safety Implications of Medical Malpractice Claimed Resolution Procedures. In: Proceedings of Enhancing Patient Safety and Reducing Errors in Health Care (1998); T. Passineau, Why Burned-out Doctors Get Sued More Often, Med Econ (May 1998); E.A. Dauer, When the Law Gets in the Way: The Dissonant Link of Deterrence and Compensation in the Law of Medical Malpractice, 28 Cap. Univ. L. Rev.293 (2000).
23. P.C. Ellsworth,
Are Twelve Heads Better Than One?, 52 Law & Contemp. Probs. 205-24 (1989); R. Hastie et al., Inside the Jury (1983); D.K. Kegehiro, Defining the Standards of Proof in Jury Instructions, 1(3) Psychol. Sci. 194-200 (1990); A. Reifman et al., Real Jurors Understanding of the Law In Real Cases, 16 Law & Hum. Behav. 539-54 (1992); D.U. Strawn & R.W. Buchanan, Jury Confusion: A Threat To Justice, 59(16) Judicature 478-83 (1976).
24. Liang,
Medical Malpractice: Do Physicians Have Legal Knowledge and Assess Cases As Juries Do?, supra note 3.
25. B.A. Liang,
Layperson and Physician Perceptions of the Malpractice System: Implications for Patient Safety, 57 Soc. Sci. & Med. 147-53 (2003).
26.
Id.
27. T. Brennan et al.,
Relation Between Negligent Adverse Events and Outcomes of Medical-Malpractice Litigation, supra note 19; Cheney et al. , Standard of Care and Anesthesia Liability, supra note 19; Edbril & Lagasse, The Relationship Between Malpractice Litigation and Human Errors, supra note 19; Liang, Assessing Medical Malpractice Verdicts: A Case Study of An Anesthesiology Department, supra note 3; Liang, Clinical Assessment of Malpractice Case Scenarios In an Anesthesiology Department, supra note 7; Liang & Cullen, The Legal System and Patient Safety: Charting a Divergent Course, supra note 7.
28. Caplan et al.,
supra note 22; Hawkins & Hastie, supra note 22; Hoch & Loewenstein, supra note 22; Kamin & Rachlinski, supra note 22; LaBine & LaBine, supra note 22.
29. Liang,
Medical Malpractice: Do Physicians Have Legal Knowledge and Assess Cases As Juries Do?, supra note 3; Liang, Assessing Medical Malpractice Verdicts: A Case Study of An Anesthesiology Department, supra note 3; Liang, Clinical Assessment of Malpractice Case Scenarios In an Anesthesiology Department, supra note 7; Liang, Error In Medicine: Legal Impediments to U.S. Reform, supra note 13; Liang, Layperson and Physician Perceptions of the Malpractice System: Implications for Patient Safety, supra note 27; D.W. Shuman, The Psychology of Deterrence In Tort Law, 42 U. Kan. L. Rev. 115-68 (1993).
30. Liang,
Medical Malpractice: Do Physicians Have Legal Knowledge and Assess Cases As Juries Do?, supra note 3; Liang, Clinical Assessment of Malpractice Case Scenarios in an Anesthesiology Department, supra note 7; P.C. Weiler, supra note 5; P.C. Weiler et al., A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation (Harvard Univ. Press, 1993).
31. Liang,
Assessing Medical Malpractice Verdicts: A Case Study of An Anesthesiology Department, supra note 3.
32.
Id.
33. Liang,
Medical Malpractice: Do Physicians Have Legal Knowledge and Assess Cases As Juries Do?, supra note 3; Liang, Clinical Assessment of Malpractice Case Scenarios In an Anesthesiology Department, supra note 7; Liang, Error In Medicine: Legal Impediments to U.S. Reform, supra note 13.
34. S. Charles et al.,
Sued and Nonsued Physicians Self-reported Reactions to Malpractice Litigation, 142 Am. J. Psychiatry 437-40 (1985); M. Crane, Medical Economics Malpractice Survey, Med. Econ, 128 (July 26, 1999); M.B. Kapp, Medical Error Versus Malpractice, 1 DePaul J. Health Care L. 751-72 (1997); M.B. Kapp, Our Hands Are Tied: Legal Tensions and Medical Ethics (1998); C.C. Havighurst, Practice Guidelines As Legal Standards Governing Physician Liability, 54 Law & Contemp. Prob. 87-117 (1991); A. Lawthers et al., Physicians Perceptions of the Risk of Being Sued, 17 J. Health Pol. Pol’y & Law 463-82 (1992); U.S. Office of Technology Assessment, Defensive Medicine and Medical Malpractice, Pub. no. OTA H-602 (1994).
35. Charles et al.,
id; P.A. Glassman et al., Physicians’ Personal Malpractice Experiences Are Not Related to Defensive Clinical Practices, 21 J. Health Pol., Pol’l & Law 219-41 (1996); Kapp M.B., Medical Error Versus Malpractice, id.; D. Klingman et al., Measuring Defensive Medicine Using Clinical Scenario Surveys, 21 J. Health Pol., Pol’l & Law 185-217 (1996); P.D. Jacobson & C.F. Rosenquist, The Use of Low-Osmolar Contrast Agents: Technological Change and Defensive Medicine, 21 J. Health Pol., Pol’l & Law 243-66 (1996); Liang, Assessing Medical Malpractice Verdicts: A Case Study of An Anesthesiology Department, supra note 3; Liang, Error In Medicine: Legal Impediments to U.S. Reform, supra note 13; A. Localio et al., Relationship Between Malpractice Claims and Cesarean Delivery, 269 J.A.M.A. 366-373 (1993); F. Sloan et al., Medical Malpractice Experience of Physicians: Predictable or Haphazard?, 262 J.A.M.A. 3291-97 (1989); U.S. OTA, supra note 36.
36. Liang,
Medical Malpractice: Do Physicians Have Legal Knowledge and Assess Cases As Juries Do?, supra note 3; Liang, Assessing Medical Malpractice Verdicts: A Case Study of An Anesthesiology Department, supra note 3; Liang, Clinical Assessment of Malpractice Case Scenarios In an Anesthesiology Department, supra note 7; Liang, Error In Medicine: Legal Impediments to U.S. Reform, supra note 13; Liang & Cullen, The Legal System and Patient Safety: Charting a Divergent Course, supra note 7.
37. Institute of Medicine,
supra note 4; Leape L.L., Error In Medicine, supra note 4.
38. Liang,
Error In Medicine: Legal Impediments to U.S. Reform, supra note 7; Liang & Cullen, The Legal System and Patient Safety: Charting a Divergent Course, supra note 7; D. Maurino et al., Beyond Aviation Human Factors (Aldershot: Avery Press, 1995); J. Reason J., Human Error (New York: Cambridge Univ. Press, 1990).
39. B.A. Liang,
Patient Injury Incentives In Law, 17 Yale L. & Pol’l Rev. 1-93 (1998); Liang & Cullen, The Legal System and Patient Safety: Charting a Divergent Course, supra note 7; B.A. Liang & K. Storti., Creating Problems as Part of the “Solution”: The JCAHO Sentinel Event Policy, Legal Issues, and Patient Safety, 33 J. Health Law 263-285 (2000).
40. B.A. Liang,
Error Disclosure for Quality Improvement: Authenticating a Team of Patients and Providers to Promote Patient Safety. In: V.A. Sharpe, ed., Promoting Patient Safety: An Ethical Basis for Policy Deliberation (Washington DC: Georgetown Univ. Press, 2004, forthcoming).
41. T. Brennan,
Medical Malpractice Reform—The Long View, 11 J. Clinical Anesthesia 265-6 (1999).
42. Liang & Cullen,
The Legal System and Patient Safety: Charting a Divergent Course, supra note 7; D. Studdert et al., Can the United States Afford a “No-Fault” System of Compensation for Medical Injury?, 60 Law & Contemp. Prob. 1-34 (1997)
43. Liang & Cullen,
The Legal System and Patient Safety: Charting a Divergent Course, supra note 7; D. Marx et al., Corporate Discipline and Regulatory Enforcement: Their Relationship to Aviation Safety. In: Proceedings of SAE Advances in Aviation Safety, Daytona Beach, Florida, Warrendale: Society of Automotive Engineers International (April 13-15, 1999).
44. D. Studdert & T. Brennan,
No-Fault Compensation for Medical Injuries: The Prospect for Error Prevention, 286 J.A.M.A. 217-23 (2001).
45. Liang & Cullen,
The Legal System and Patient Safety: Charting a Divergent Course, supra note 7.
46.
See, e.g., Bryan A. Liang & Tim K. Mackey, Quality and Safety in Health Care: What Does the Future Hold? 135 Arch. Path. Lab. Med. 135 (2011) (reviewing poor quality and safety results from state programs).
47. Keeton et al., Prosser and Keeton on the Law of Torts, supra note 2.
48. Liang,
Clinical Assessment of Malpractice Case Scenarios In an Anesthesiology Dept, supra note 7.


© Institute of Health Law Studies 2012
All rights reserved
e-ISSN: 2168-6513