Ultimate doctor liability: a myth of ignorance or myth of control?

Ultimate medical doctor responsibility for the care delivered to patients by all professionals is a myth. Legally Lord Denning dismissed the myth in the mid-20th century in England. The assumption that a medical doctor is responsible for the care delivered by nurses has not existed in English and Australian law since that time, and it has been actively refuted. Yet it is a myth that continues to circulate influencing health service, state and federal health policy. For some it is a myth of ignorance and for others it is a means of control. This paper outlines the relevant case law to debunk the myth of ultimate medical doctor control.

Statistical sampling in a legislative framework for peer review of medicare services.

This article discusses problems addressed in developing an efficient way of identifying levels of inappropriate professional practice in delivery of Medicare services, using statistical sampling within a legislative peer-review scheme. An efficient alternative to the current sampling methodology is proposed.

The future for peer review. Florida's constitutional amendment chills quality community.

A new amendment to its state constitution has opened up Florida's peer review meeting notes to the public, with chilling effects on the entire peer review process.

Peer review.

Peer review is essential for ensuring quality medical care. In the 1980s a physician-plaintiff prevailed in lawsuit filed against peer reviewers who excluded the physician from a hospital's medical staff. The peer reviewers had acted to preserve their own economic interests. A multimillion-dollar verdict against the peer reviewers destroyed the community's only multispecialty practice and received national attention. Congress reacted by passing the Health Care Quality Improvement Act that granted sweeping, legal immunity for peer reviewers but also created the National Practitioner's Data Bank. The combination of the establishment of a public repository for physicians malpractice and medical staff privileging activity in combination with the near complete legal protection of peer reviewers has converted peer review from an evaluative to a punitive process. The peer review process and the laws that govern it should be reformed to regain its ability to improve and assure quality without being a threat to physicians.

The impact of legislatively imposed practice guidelines on cesarean section rates: the Florida experience.

Florida legislation implemented in the fall of 1992, unique in the nation, mandated that practice guidelines regarding cesarean section deliveries be disseminated to obstetric physicians. The law also required that peer review boards at hospitals be established to review cesarean deliveries and that the exact dates of implementation of the guidelines be reported to a state agency. To determine the impact of the legislation, we conducted a retrospective analysis of 366,246 total live births occurring in Florida hospitals during 1992 and 1993, before and after formal hospital certification of the implementation of the guidelines. Changes in primary and repeat cesarean rates were analyzed for 108 independent groups of births, controlling for the mother's age, race, payment source, and the timing of the implementation of the guidelines at hospitals. The guideline certification program did not accelerate the consistent but gradual downward trend in cesarean births which had already been evident in the three prior years. The data do suggest that the guideline program may have affected repeat cesareans more than primary cesareans, especially in the first quarter of 1993, immediately after the hospital certification period. Reductions in repeat cesareans involved both Medicaid and commercially insured births, whereas reductions in primary cesareans were found almost exclusively within commercially insured mothers, where the existing rates are highest. Although births with a prior cesarean represent only 12.5% of all births, significant decreases in repeat cesareans were found in groups representing 72.6% of this population. By comparison, significant decreases in primary cesareans were found in groups representing only 36.5% of the births without a prior cesarean. The date of guideline implementation reported by hospitals was not related to any systematic change in observed cesarean section rates. We concluded that the mere dissemination of practice guidelines by a state agency may not achieve either the magnitude or the specificity of the results desired without an explicit and thorough guideline implementation program. Blunt legislative mandates may be ineffective when multiple initiatives are already achieving desired outcomes.

New horizons in the regulation of dentistry.

I'm delighted to have the opportunity to share with you my understanding of the much-needed and long-awaited reform of the General Dental Council. Change is moving apace and the new, modern GDC, for which the existing Council has been working so hard, is taking shape as part of widespread fundamental reforms in the regulation of healthcare.

Creating problems as part of the "solution": the JCAHO Sentinel Event Policy, legal issues, and patient safety.

The recently reported number of patient deaths attributable to medical errors is staggering. In response to this crisis, the Joint Commission on Accreditation of Healthcare Organizations ("JCAHO") proposed its Sentinel Event Policy. The policy mandates self-reporting by hospitals accredited by the JCAHO. This Article argues that the JCAHO's policy shows an inattention to the legal realities of discovery and absence of immunity. Until the JCAHO addresses these issues, self-reporting will have limited success. This Article suggests that to promote patient safety, self-regulatory reports should go to a neutral, nonsanctioning third party, an approach adopted from aviation's highly successful reporting system.

The National Practitioner Data Bank: coping with the uncertainties.

The National Practitioner Data Bank is a database of adverse events involving physicians and other practitioners. Querying the database is mandatory for hospitals in several situations. So too, hospitals are required to report specified adverse events. Thus, hospitals need to be able to identify incidents that are reportable events, events that require them to update the databases, and any possible liability issues that may surround the hospital's reporting duties. The author argues that the regulations are unclear in addressing these issues. Likewise, he notes that practitioners should be aware of other problems with the reporting system, including the lack of sufficient Data Bank security.

The co-regulation of medical discipline: challenging medical peer review.

The medical profession has always fiercely defended its right to self-regulation on the basis of peer review. However, in New South Wales, Australia, the profession has willingly surrendered these rights in favour of a disciplinary system known as co-regulation or collaborative regulation, under which disciplinary processes are shared with a "lay" body, the Health Care Complaints Commission. The system constitutes a unique situation in the history of medical regulation. This article examines the origin and operations of co-regulation and comes to the conclusion that its successful operation over the last decade raises questions about whether peer review is indispensable as the basis of medical regulation.

[A lack of understanding of the rulings by disciplinary committees]. / Onbegrip over tuchtrechtelijke beslissingen.

The fact that certain rulings of disciplinary committees evoked much criticism among colleagues is distressing in itself, but such criticism should be interpreted with due caution, as different explanations are conceivable. For instance, the published abstract of the committee ruling may have gaps with regard to facts and motivation. It is also possible that the committee has good grounds to accentuate the professional standards, which understandably may meet some resistance among the medical profession. Finally, it is theoretically possible that the disciplinary tribunal is not fully informed about relevant professional standards and current practice. It is precisely to minimize such possible communication breakdowns that disciplinary powers have largely been entrusted to persons from the medical profession.

[Recent disciplinary committee rulings foster defensive medicine]. / Recente tuchtrechtuitspraken bevorderen defensieve geneeskunde.

Recent medicolegal rulings corrected practitioners for not applying all possible interventions in the care of acute rare conditions. The performance was judged negligent, not on the clinical information available at the time, but in the light of the later course of disease. This paper argues that quality assurance requires a system of critical self and peer assessment, superimposed on medicolegal judgement. In all instances performance should be set against (external) criteria, including guidelines. Guidelines, in particular for general practice, define optimal care, to entitle patients to what is relevant while at the same time protecting them from ill-advised interventions. The point is made that the medicolegal ruling must be based on the same criteria that govern self and peer group assessment, and not on whatever it might be possible to do (maximal criteria), to prevent quality assurance from leading to defensive practice.

Changes to National Practitioner Data Bank reporting--effective or not?

Unless a physician has been living in another galaxy far, far away with Luke Skywalker, he or she is aware of the National Practitioner Data Bank. On March 31, 1994, the Department of Health and Human Services (HHS) announced that each practitioner can now place in the Data Bank a six-hundred character "rebuttal" of a report, without formally disputing the factual accuracy of the report. Does this change make the Data Bank fair? Not really. It is a step in the right direction, but further reform is needed. "Health Law" is a regular feature of Physician Executive contributed by Epstein Becker & Green. Mark Lutes of the law firm's Washington, D.C., offices serves as editor of the column.

Protecting hospital records from discovery.

One of the more burdensome tasks confronting hospital administrators and defense counsel in hospital liability cases is attempting to protect sensitive or confidential information contained in hospital records. Plaintiffs' counsel continue to refine and broaden document requests as they become more sophisticated and experienced, learning about additional categories of documents that may be helpful to their cause. There are conditions that protect documents from discovery, but the rules of privilege are complicated and are frequently misunderstood.