Medical Malpractice in Dermatology-Part II: What To Do Once You Have Been Served with a Lawsuit.

Facing a malpractice lawsuit can be a daunting and traumatic experience for healthcare practitioners, with most clinicians naïve to the legal landscape. It is crucial for physicians to know and understand the malpractice system and his or her role once challenged with litigation. We present part II of a two-part series addressing the most common medicolegal questions that cause a great deal of anxiety. Part I focused upon risk-management strategies and prevention of malpractice lawsuits, whereas part II provides helpful suggestions and guidance for the physician who has been served with a lawsuit complaint. Herein, we address the best approach concerning what to do and what not to do after receipt of a legal claim, during the deposition, and during the trial phases. We also discuss routine concerns that may arise during the development of the case, including the personal, financial, and career implications of a malpractice lawsuit and how these can be best managed. The defense strategies discussed in this paper are not a guide separate from legal representation to winning a lawsuit, but may help physicians prepare for and cope with a medical malpractice lawsuit. This article is written from a US perspective, and therefore not all of the statements made herein will be applicable in other countries. Within the USA, medical practitioners must be familiar with their own state and local laws and should consult with their own legal counsel to obtain advice about specific questions.

Medical Malpractice in Dermatology-Part I: Reducing the Risks of a Lawsuit.

Malpractice risk is a common source of concern for the practicing physician. Dermatologists experience fewer lawsuits than most other specialists in medicine, but the risk is not negligible. All physicians should familiarize themselves with areas of potential risk and avoid medico-legal pitfalls. We present Part I of a two-part series addressing medico-legal questions common to most practitioners that cause a great deal of anxiety. Part I will focus upon risk management and prevention of future malpractice lawsuits, and Part II deals with suggestions and guidance once a lawsuit occurs. Herein, we discuss the primary sources of malpractice lawsuits delivered against healthcare practitioners including issues with informed consent, patient noncompliance, medical negligence, and inappropriate documentation, including use of electronic medical records. The overall goal is to effectively avoid these common sources of litigation. The risk management strategies discussed in this paper are relevant to the everyday practitioner and may offer physicians some degree of protection from potential liability.

Front office staff as medical educators, risk creators, and risk managers.

The author describes his own negative series of encounters with the front office staff of a large specialty medical practice during a recent lengthy episode of significant medical distress. The author suggests several reasons, including legal risk management, that medical students should be exposed as part of their education to the interactions of patients with front office staffs (not just physicians) to get a fuller picture of patients' actual experiences with the health care system.

Defensive medicine: No wonder policymakers are confused.

Discussions regarding defensive medical practice often result in proposals for public policy actions. Such proposals generally are premised on assumptions about defensive medicine, namely, that it (a) is driven by physicians' legal anxieties, (b) constitutes bad medical practice, (c) drives up health care costs, (d) varies depending on a jurisdiction's particular tort law climate, (e) depends on medical specialty and a physician's own prior experience as a malpractice defendant, and (f) is a rational response to actual legal risks confronting physicians. This article examines a sample of recent literature focusing on defensive medicine and finds that the messages conveyed vary widely, helping to explain the confusion experienced by many policymakers trying to improve the quality and affordability of health care.

The POLST paradigm for patients with advanced, irreversible illness: a therapeutic jurisprudence basis for legal codification.

The Physician Orders for Life Sustaining Treatment (POLST) Paradigm attempts to improve the experiences of individuals with serious, irreversible illness, and their families. In some jurisdictions, the POLST is authorized in law. In other jurisdictions, efforts are underway or contemplated to encourage use of POLST for appropriate individuals, but the concept is not yet in law. An argument needs to be made to policymakers that POLST will have a therapeutic effect on patients and families. In making that argument, the analytical lens of therapeutic jurisprudence (TJ) may be useful. This article proposes a POLST legal strategy using TJ. TJ may be used to evaluate data regarding psychological effects on patients and families who are experiencing medical care with or without POLST; the TJ analysis then should be considered by policymakers in enacting POLST laws to codify clinical consensus, and in turn the law so enacted would exert a positive impact on therapeutic benefit-producing behavior by health care providers.

For love, legacy, or pay: legal and pecuniary aspects of family caregiving.

Most caregiving and companionship provided by family members and friends to older individuals in home environments occurs because of the caregiver's feelings of ethical and emotional obligation and attachment. From a legal perspective, though, it might be ill-advised for an informal caregiver to admit such a motivation. Building on a recently published study of relevant litigation, this essay discusses changing cultural and legal aspects of family caregiving when there is some expectation of pay, property, or fuiture financial legacy in return for the caregiver's present work and sacrifices.

Conscripted physician services and the public's health.

The prevailing wisdom is that improving patient access to physician services is essential to promoting the public's health. This article suggests that, ironically, one effect of the 2010 federal health reform legislation may be to discourage physicians from serving the statute's intended beneficiaries, thereby exacerbating the access problem. The article examines several potential approaches to addressing this problem, comparing - from legal and policy perspectives - strategies based on legal conscription of physician services versus strategies that instead would rely on incentivizing physician participation in serving otherwise access-impaired populations. The author argues in favor of the latter approach rather than one based on use of governmental force.

The interface of law and medical ethics in medical intensive care.

The delivery of medical care in the intensive care setting is subject to various legal principles and processes, as well as important ethical precepts. This article outlines the basic medicine-law interface, explaining the concepts of medical jurisprudence and forensic medicine. It then provides fundamental information about the current American medical malpractice system, including a brief discussion of the elements of a medical malpractice claim, the public policy rationales and goals purportedly undergirding the system, and potential alternatives to the existing medical malpractice system in the United States. Recognizing that the challenge, in the entire range of intensive care as in other medical settings, is adhering in practice to ethical principles while at the same time trying to minimize the providers' possible exposure to legal risks, the article identifies a number of components to the art of delivering care ethically and effectively within a pervasive legal environment, as follows: interfacing positively with the institutional legal counsel and risk management departments; utilizing (as appropriate) clinical practice guidelines or parameters; and pursuing continuing medical-legal education.

Individual decision making in the non-purchase of long-term care insurance.

PURPOSE: Although prior research suggests that economic, behavioral, and psychosocial factors influence decisions not to purchase long-term care insurance, few studies have examined the interplay among these factors in depth and from the consumer's point of view. This study was intended to further illuminate these considerations, generate hypotheses about non-purchasing decisions, and inform the design of policies that are responsive to concerns and preferences of potential purchasers. DESIGN AND METHOD: Qualitative study using 32 in-depth interviews and 6 focus groups, following a grounded theory approach. RESULTS: Five themes characterize decisions not to purchase long-term care insurance: (a) the determination that a policy is "too costly" reflects highly individualized and complex trade-offs not solely economic in nature, (b) non-purchasers are skeptical about the viability and integrity of private insurance companies and seek an unbiased source of information, (c) family dynamics play an important role in insurance decisions, (d) contemplating personal risk for long-term care triggers psychological responses that have implications for decision making, and (e) non-purchasers feel inadequately informed and overwhelmed by the process of deciding whether to purchase long-term care insurance. IMPLICATIONS: States are seeking to offset escalating Medicaid long-term care expenditures through a variety of policy mechanisms, including stimulating individual purchase of long-term care insurance. Findings suggest that economic incentives such as lowering premiums will be necessary but not sufficient to attract appropriate candidates. Attention to behavioral and psychosocial factors is essential to designing incentives that are responsive to concerns and preferences of potential purchasers.

Regulating payment for home care companionship services: legal authority and public policy.

On June 11, 2007, the U.S. Supreme Court issued a ruling in the case of Long Island Care at Home Ltd. v. Coke that upheld a federal regulation exempting employees of third-party agencies who provide home-based "companionship services" to disabled persons from the protections of the minimum wage and overtime pay provisions of the Fair Labor Standards Act. This article discusses the legal issues argued in the case and the legal rationales for the court's decision. The article then identifies the important public policy questions involving the maintenance of a sufficient, competent home care workforce that were left unanswered by the legal ruling and outlines some of the pragmatic implications of potential responses to these public policy questions.

Medicaid planning, estate recovery, and alternatives for long-term care financing: identifying the ethical issues.

In anticipation of the escalating costs of long-term care, consumers and the federal and state governments are engaging in a variety of strategies intended to preserve the financial solvency of the respective parties. For the consumer, this may mean planning in a way designed to maximize one's potential future eligibility for government support, whereas the federal government tries to limit those planning activities inspired by public benefits considerations and the states attempt to recover their long-term care expenses from the estates of deceased consumers whose long-term care needs the state had earlier supported. All of these strategies have important and controversial public policy implications. The public policy debate surrounding these strategies ought to be ethically informed. This article sets out to identify and outline some of the main ethical questions engendered by individual Medicaid planning on one hand, and state estate recovery efforts on the other. It concludes that neither of these approaches to the challenge of long-term care financing is very ethically palatable.

Protecting human participants in long-term care research: the role of state law and policy.

There has been substantial recent activity addressed at the challenge of protecting the rights and welfare of vulnerable human participants in various kinds of research protocols, on one hand, without unduly impeding the conduct of research that promises findings that may substantially improve health and quality of life for many beneficiaries of research, on the other. Many of the emerging recommendations for improved participant protection are relevant to, and in some cases explicitly targeted at, vulnerable older persons, including long-term, chronically dependent nursing home and home health patients, who may be approached by investigators. Thus far, virtually all of the discussion and recommendations regarding research participant protection pertain to possible legal and policy changes at the federal level. Yet, both current federal law and emerging policy recommendations defer, either expressly or by default through their silence, on some very important matters about research participation, especially regarding informed consent, determinations of decisional capacity, and surrogate decision-making authority, to the laws of individual states. This article analyzes and interweaves recommendations regarding the role of state law and public policy in protecting older persons who are or may become participants in long-term care research projects.

Altering the home care agency/client relationship: notice requirements.

Many older and disabled individuals regularly receive valuable services from home health agencies (HHAs). The unilateral termination or reduction of such services by an HHA may exert a significant impact on the life of a client who has come to depend on those services. The prerogatives of Medicare-certified HHAs to terminate their relationships with clients are constrained today not only by contract and tort law principles, but also by federal statutes and regulations establishing Conditions of Participation, including provisions concerning clients' rights. A recent important federal judicial decision interpreted and expanded the legal responsibilities of HHAs to provide formal notice to their Medicare clients before terminating or reducing home health care services to those clients, regardless of the reason for ending or altering the relationship. This article critically discusses the background, holding, and practice implications of the 2004 Lutwin v. Thomson decision, which imposes these notice requirements on HHAs.