It's not my fault although it might be: chiropractic practice and vicarious liability.

BACKGROUND: While chiropractic care is most commonly provided within a private practice context, the 'traditional' solo practice is now uncommon. Chiropractors, manual therapists and related health professionals commonly work within the same practice bringing obvious advantages to both the practitioners and their patients. However, multi-practitioner, multi-disciplinary clinics also carry often unrecognized liabilities. We refer here to vicarious liability and non-delegable duties. Vicarious liability refers to the strict liability imposed on one person for the negligent acts of another person. The typical example is an employer being held vicariously liable to the negligent acts of an employee. However, vicarious liability can arise outside of the employer-employee relationship. For example, under non-delegable duty provisions, an entity owing a non-delegable duty can be liable for an independent contractor's wrongdoing. After a plain English explanation of this complex area of law, we provide seven scenarios to demonstrate how vicarious liability can envelop practice principals when things go wrong. We also make suggestions for risk mitigation. CONCLUSION: Practice owners may unexpectedly find themselves legally liable for another's actions with dire consequences. A knowledge of vicarious liability along with implementing risk mitigation strategies has the potential to minimize the likelihood of this unwanted event. Recommendations are made to this end.

Malpractice Litigation Involving Chiropractic Spinal Manipulation.

OBJECTIVE: To evaluate the relationship between chiropractic spinal manipulation and medical malpractice using a legal database. METHODS: The legal database VerdictSearch was queried using the terms "chiropractor" OR "spinal manipulation" under the classification of "Medical Malpractice" between 1988 and 2018. Cases with chiropractors as defendants were identified. Relevant medicolegal characteristics were obtained, including legal outcome (plaintiff/defense verdict, settlement), payment amount, nature of plaintiff claim, and type and location of alleged injury. RESULTS: Forty-eight cases involving chiropractic management in the United States were reported. Of these, 93.8% (n = 45) featured allegations involving spinal manipulation. The defense (practitioner) was victorious in 70.8% (n = 34) of cases, with a plaintiff (patient) victory in 20.8% (n = 10) (mean payment $658,487 ± $697,045) and settlement in 8.3% (n = 4) (mean payment $596,667 ± $402,534). Overaggressive manipulation was the most frequent allegation (33.3%; 16 cases). A majority of cases alleged neurological injury of the spine as the reason for litigation (66.7%, 32 cases) with 87.5% (28/32) requiring surgery. C5-C6 disc herniation was the most frequently alleged injury (32.4%, 11/34, 83.3% requiring surgery) followed by C6-C7 herniation (26.5%, 9/34, 88.9% requiring surgery). Claims also alleged 7 cases of stroke (14.6%) and 2 rib fractures (4.2%) from manipulation therapy. CONCLUSIONS: Litigation claims following chiropractic care predominately alleged neurological injury with consequent surgical management. Plaintiffs primarily alleged overaggressive treatment, though a majority of trials ended in defensive verdicts. Ongoing analysis of malpractice provides a unique lens through which to view this complicated topic.

[A restricted view on the identification of litigation cases of traditional Chinese medicine in the Republic of China: a case study of Yan Yulin].

Medical appraisal is one of the important means to determine whether there are faults in medical behavior and to deal with medical disputes. The issue of whether the medical lawsuit of traditional Chinese medicine should be submitted to traditional Chinese medicine, western medicine or forensic identification began to be debated since the Republic of China. With the efforts of the traditional Chinese medicine community, the Prescription Appraisal Committee of the National Medical Center of the Republic of China was established, which obtained the peer appraisal right for the lawsuit of traditional Chinese medicine. This paper takes the case of Yan Yulin's negligence causing death, which was sent by Shandong High Court to the National Medical Center in 1937, as an example, to explore the general situation of the identification system of the traditional Chinese medicine litigation in the period of the Republic of China, in order to provide reference for the establishment of the judicial identification system of medical damage in traditional Chinese medicine.

Global landscape analysis of no-fault compensation programmes for vaccine injuries: A review and survey of implementing countries.

To update the landscape analysis of vaccine injuries no-fault compensation programmes, we conducted a scoping review and a survey of World Health Organization Member States. We describe the characteristics of existing no-fault compensation systems during 2018 based on six common programme elements. No-fault compensation systems for vaccine injuries have been developed in a few high-income countries for more than 50 years. Twenty-five jurisdictions were identified with no-fault compensation programmes, of which two were recently implemented in a low- and a lower-middle-income country. The no-fault compensation programmes in most jurisdictions are implemented at the central or federal government level and are government funded. Eligibility criteria for vaccine injury compensation vary considerably across the evaluated programmes. Notably, most programmes cover injuries arising from vaccines that are registered in the country and are recommended by authorities for routine use in children, pregnant women, adults (e.g. influenza vaccines) and for special indications. A claim process is initiated once the injured party or their legal representative files for compensation with a special administrative body in most programmes. All no-fault compensation programmes reviewed require standard of proof showing a causal association between vaccination and injury. Once a final decision has been reached, claimants are compensated with either: lump-sums; amounts calculated based on medical care costs and expenses, loss of earnings or earning capacity; or monetary compensation calculated based on pain and suffering, emotional distress, permanent impairment or loss of function; or combination of those. In most jurisdictions, vaccine injury claimants have the right to seek damages either through civil litigation or from a compensation scheme but not both simultaneously. Data from this report provide an empirical basis on which global guidance for implementing such schemes could be developed.

Medico-legal claims in bariatric surgery in France between 2010 and 2015.

PURPOSE OF THE STUDY: The practice of bariatric surgery has multiplied 3.5 times in France in the last ten years. The purpose of the study is to analyze medico-legal claims in this area in order to identify lessons to improve patient care. PATIENTS AND METHODS: Two visceral surgeons analyzed 358 independent claim files. Age, gender, socio-economic origin, body mass index, surgical history, depression, smoking, anticoagulants, and pre-operative assessment of patients were recorded. The operative indication, the type and date of occurrence of the event, the existence and causes of intra-operative incidents, re-interventions, inter-hospital transfers and deaths were noted. Any anomaly of care, whether noted by the expert or the court, was considered a fault. RESULTS: The types of bariatric procedures included sleeve gastrectomy in 52.1% of cases and gastric bypass in 33.2% of cases. A third of patients (31.2%) had a history of previous abdominal surgery. The main complications were anastomotic leak (48.6%), followed by vomiting, wounds of neighboring organs, and infections. Fault was found in 30.4% of cases: for delay of care (36.8%), surgical clumsiness or ineptitude (15.5%), incorrect indications, lack of patient information. In 6.4% of cases, metabolic deficiencies with encephalopathy developed. CONCLUSION: The indications of the French High Authority of Health [Haute autorité de santé (HAS)] must be respected and intra-operative difficulties should not be underestimated in patients who have undergone previous surgery. Post-operatively, clinical signs of severity take precedence over complementary examinations, even when negative. Close monitoring is necessary to quickly detect complications that occur outside the facility, whether it is a surgical complication or vitamin deficiency.

A Contemporary Medicolegal Analysis of Outpatient Interventional Pain Procedures: 2009-2016.

BACKGROUND: Closed malpractice claim studies allow a review of rare but often severe complications, yielding useful insight into improving patient safety and decreasing practitioner liability. METHODS: This retrospective observational study of pain medicine malpractice claims utilizes the Controlled Risk Insurance Company Comparative Benchmarking System database, which contains nearly 400,000 malpractice claims drawn from >400 academic and community medical centers. The Controlled Risk Insurance Company Comparative Benchmarking System database was queried for January 1, 2009 through December 31, 2016, for cases with pain medicine as the primary service. Cases involving outpatient interventional pain management were identified. Controlled Risk Insurance Company-coded data fields and the narrative summaries were reviewed by the study authors. RESULTS: A total of 126 closed claims were identified. Forty-one claims resulted in payments to the plaintiffs, with a median payment of $175,000 (range, $2600-$2,950,000). Lumbar interlaminar epidural steroid injections were the most common procedures associated with claims (n = 34), followed by cervical interlaminar epidural steroid injections (n = 31) and trigger point injections (n = 13). The most common alleged injuring events were an improper performance of a procedure (n = 38); alleged nonsterile technique (n = 17); unintentional dural puncture (n = 13); needle misdirected to the spinal cord (n = 11); and needle misdirected to the lung (n = 10). The most common alleged outcomes were worsening pain (n = 26); spinal cord infarct (n = 16); epidural hematoma (n = 9); soft-tissue infection (n = 9); postdural puncture headache (n = 9); and pneumothorax (n = 9). According to the Controlled Risk Insurance Company proprietary contributing factor system, perceived deficits in technical skill were present in 83% of claims. CONCLUSIONS: Epidural steroid injections are among the most commonly performed interventional pain procedures and, while a familiar procedure to pain management practitioners, may result in significant neurological injury. Trigger point injections, while generally considered safe, may result in pneumothorax or injury to other deep structures. Ultimately, the efforts to minimize practitioner liability and patient harm, like the claims themselves, will be multifactorial. Best outcomes will likely come from continued robust training in procedural skills, attention paid to published best practice recommendations, documentation that includes an inclusive consent discussion, and thoughtful patient selection. Limitations for this study are that closed claim data do not cover all complications that occur and skew toward more severe complications. In addition, the data from Controlled Risk Insurance Company Comparative Benchmarking System cannot be independently verified.

The rebirth of medical paternalism: An NHS Trust v Y.

Over the last quarter of a century, English medical law has taken an increasingly firm stand against medical paternalism. This is exemplified by cases such as Bolitho v City and Hackney Health Authority, Chester v Afshar, and Montgomery v Lanarkshire Health Board. In relation to decision-making on behalf of incapacitous adults, the actuating principle of the Mental Capacity Act 2005 is respect for patient autonomy. The only lawful acts in relation to an incapacitous person are acts which are in the best interests of that person. The 2005 Act requires a holistic assessment of best interests. Best interests are wider than 'medical best interests'. The 2018 judgment of the Supreme Court in An NHS Trust v Y (which concerned the question of whether a court needed to authorise the withdrawal of life-sustaining clinically administered nutrition/hydration (CANH) from patients in prolonged disorders of consciousness (PDOC)) risks reviving medical paternalism. The judgment, in its uncritical endorsement of guidelines from various medical organisations, may lend inappropriate authority to medical judgments of best interests and silence or render impotent non-medical contributions to the debate about best interests-so frustrating the 2005 Act. To minimise these dangers, a system of meditation should be instituted whenever it is proposed to withdraw (at least) life-sustaining CANH from (at least) patients with PDOC, and there needs to be a guarantee of access to the courts for families, carers and others who wish to challenge medical conclusions about withdrawal. This would entail proper public funding for such challenges.

The NHS and the law.

John Tingle, Associate Professor (Teaching and Scholarship), Nottingham Trent University, discusses clinical negligence trends in the NHS, from its early years to the current key concerns.

Medicolegal Considerations Involving Iatrogenic Lingual Nerve Damage.

The aim of this review is to improve risk management strategies through analysis of the anatomic, semeiotic, and medicolegal aspects that characterize iatrogenic lingual nerve damage (LND) and its legal consequences in the case of legal proceedings for a claim for compensation. In dental practice, LND can be caused by local or general anesthesia or by mechanical, chemical, or thermal mechanisms. A certain postoperative identification of LND etiopathogenesis is often very challenging because it can be difficult to show at what time the damage occurred and which mechanism actually caused it. Clinical tests assessing lingual nerve sensory capabilities have a low sensitivity and moderate specificity, whereas instrumental tests have the advantage of not being affected by data interpretation subjectivity by both the operator and the patient. The quantification of permanent LND is not uniformly established, and there are no specific standard worldwide indications. From a medicolegal point of view, LND is a complication that may or may not be caused by surgical error. The 2 different concepts of "expectability" and avoidability or preventability allow one to discriminate between professional liability and fate and therefore to determine the surgeon's imputability in LND. Despite clinical competence and practice in performing the medical or surgical procedure, the clinician risks a lawsuit for negligence if he or she does not warn the patient about all relevant risks regardless of their frequency. Informed consent plays an essential role in minimizing litigation; the patient must be informed-with both his or her level of culture and ability to understand being taken into consideration-of the diagnosis, prognosis, and therapeutic perspectives and their consequences, in addition to all other viable alternative therapies, as well as the risks of nontreatment.

Judicial Precedent-Based Clinical Practice Guidelines of Propofol in Sedative Esthetic Surgery.

BACKGROUND: Propofol is has been widely used for sedation in the field of esthetic surgery because of its favorable pharmacokinetic profile. Propofol sedation-induced side effects are rare. However, when present, they can be serious. The number of malpractice claims associated with propofol sedation has increased in recent years. This study aims to show which procedures lead to the most claims in the field of esthetic surgery through a review of Korean precedents. METHODS: Thirteen precedent cases of propofol sedation in the field of esthetic surgery were collected between 2000 and 2016. We analyzed the type of procedure, administration route, anesthesia provider, complications, timing of damaging events, average indemnification, plaintiff's (patients) winning rate, ratio and the reason of limitation of liability and the key factors affecting the judgement in these cases. RESULTS: Most plaintiffs were women, and in most cases (11/13, 73.3%), the times of the damaging events were in maintenance and the anesthesia provider was the surgeon. The most common complication related to propofol sedation was hypoxic brain damage. Among the 13 cases, 12 were won by the plaintiff. The mean claim settlement was 339,455,814 KRW (USD 301,792.15). The key factors affecting the judgement were administration method and staff, monitoring method, preparation of emergency kit, response to emergencies, transfer to a higher-level hospital, detailed medical recording about event and informed consent. CONCLUSION: The number of claims owing to propofol sedation after esthetic surgery is increasing. Close monitoring during the operation, immediate reaction to an event and thorough medical records were main key factors that influenced the judgement. Preoperative explanation about the possibility of complications was important. The findings will help surgeons achieve high patient satisfaction and reduce liability concerns. LEVEL OF EVIDENCE V: This journal requires that authors assign a level of evidence to each article. For a full description of these Evidence-Based Medicine ratings, please refer to the Table of Contents or the online Instructions to Authors www.springer.com/00266 .

Midwives and clinical investigation: A review of the literature.

BACKGROUND: An allegation of negligence or an adverse outcome during childbirth can lead to clinical investigation of a midwife's practice. Anecdotal evidence suggests midwives find this stressful and disturbing. AIM: Synthesise the evidence relating to midwives' experiences of investigation and the effects on clinical practice and personal wellbeing. METHODS: Two database searches were conducted between 2015 and 2016 to identify primary research published between 1990 and 2016. Studies were evaluated for quality using standard instruments. FINDINGS: Despite numerous references to 'litigation' in peer-reviewed journals, little substantive research related specifically to midwives. 11 inclusions comprised three qualitative studies (one with two publications), reporting litigation experiences of midwives and seven quantitative studies (four research groups), identifying risk liability through cyclic surveys of midwives and law reports. Failure to identify deterioration in foetal well-being was a common finding among researchers examining reasons for litigation. Experienced midwives were at highest risk of litigation. Researchers found high levels of distress and abreaction among participants who either stopped working in birth suite or left midwifery. They also identified a level of ambiguity around defensive practices associated with fear of litigation. CONCLUSION: There is little research regarding experiences of midwives and clinical investigation. Midwives under investigation need appropriate support. Continuing to work during prolonged investigative processes is stressful as reported by midwives who described being "ill-equipped" and "unprepared." Midwives in the review preferred the support of colleagues over counsellors. Educators, employers and regulators need to work collaboratively and incorporate reflective practice in targeted support.

The Experience of Litigation From the Perspective of Midwives in Iran.

INTRODUCTION: Errors and notices to appear in court are a reality of life for many midwives and exert significant effects on both their professional and personal lives. Given the increasing population policies in place, this study was conducted to examine midwives' experiences of litigation in Iran. METHODS: A qualitative study was conducted in 2014 using an interpretive phenomenological approach. The interviews were recorded and transcribed and were then analyzed using the Diekelmann method. FINDINGS: Midwives who participated had professional experience ranging from 3 to 22 years at the time of the complaints. Five participants had received more than one complaint, and 10 participants were judged as guilty creating/leaving significant effects on various dimensions of their lives. CONCLUSION: The present research disclosed four main themes from the interviews including feeling ruined by the complaints, being conflicted between denial and belief, having shattered hopes of release, and experiencing the slowed-down rhythm of midwifery. From these, a basic pattern of "living in despair" was extracted. Litigation is a painful experience for midwives. Anxiety regarding compensation for the patients' losses, public judgment, prolonged litigations, and undermined professional dignity create physical and psychological ramifications for these midwives. Negative feelings about litigation, compounded by the lack of legal support from the authorities, cause a sense of hopelessness regarding the future of the midwifery profession.

Uterine inversion after an unskilled delivery - still a concern for maternal mortality: A case report and discussion of the related medico-legal issues.

Uterine inversion is a life-threatening medical emergency, which can result in fatal shock and sudden unexpected death during and after delivery. Most cases of uterine inversion occur due to mismanagement of the third stage of labour. We report a case of sudden death occurring post full-term vaginal delivery conducted by a traditional birth attendant (TBA) popularly known as dai. Autopsy revealed signs of haemorrhage and shock due to an inverted uterus. This emergency medical condition, though frequently fatal, can be treated if prompt action is taken by a trained and skilled obstetrician, preventing morbidity and mortality. We discuss the incidence, aetiology, symptomatology, complications and the management of uterine inversion. We also review the capability and eligibility of TBAs in handling such obstetrical emergencies, along with their culpability, if any, in such cases of negligence as per the applicable statutes.

An exploration of the effects of clinical negligence litigation on the practice of midwives in England: A phenomenological study.

OBJECTIVE: to explore how midwives׳ personal involvement in clinical negligence litigation affects their midwifery practice. DESIGN: descriptive phenomenological study using semi-structured interviews. SETTING: in 2006-2007 in-depth interviews were conducted in participants׳ homes or at their place of work and focused on participants׳ experience of litigation. Participants were recruited from various regions of England. PARTICIPANTS: 22 National Health Service (NHS) midwives who had been alleged negligent. FINDINGS: clinical practice affected was an increase in documentation, fear of practising outside clinical guidelines and electronic fetal monitoring of women at low obstetric risk; these changes were not widespread. Changes in practice were sometimes perceived negatively and sometimes positively. Forming a good relationship with childbearing women was judged to promote effective midwifery care but litigation had affected the ability of a minority of midwives to advocate for women if this relationship had not been established. Litigation could result in loss of confidence leading to self-doubt, isolation, increased readiness to seek medical assistance and avoidance of working in the labour ward, perceived as an area with a high risk of litigation. A blame culture in the NHS was perceived by several midwives. In contrast an open non-punitive culture resulted in midwives readily reporting mistakes to risk managers. Litigation lowered midwifery morale and damaged professional reputations, particularly when reported in the newspapers. Some midwives expressed thoughts of leaving midwifery or taking time off work because of litigation but only one was actively seeking other employment, another took sick leave and one had left midwifery and returned to nursing. KEY CONCLUSIONS: litigation can have a negative effect on midwives׳ clinical practice and morale and fosters a culture of blame within the NHS. IMPLICATIONS FOR PRACTICE: education regarding appropriate documentation, use or non-use of electronic fetal monitoring and the legal status of clinical guidelines will enable midwives to respond proportionately to the threat of litigation. A culture of openness and sharing the problem when adverse events occur would help to extinguish the current blame culture in the National Health Service. Litigation must be recognised by management as capable of inducing loss of confidence and reluctance to work in the labour ward. Promoting teamwork will help support these midwives. The potential for litigation in maternity care could affect retention of the midwifery workforce.