Thesis+Based+Research+Question

Senior Seminar Thesis-Based Research Rationale for Research/Introduction: This summer I attended the University of Pittsburgh Health Career Scholars Academy (formerly known as the Pennsylvania Governor’s School for Health Care). During this four week overnight program, I sat through hours of lectures, several pertaining to the issue of medical malpractice. There my interest in the topic sparked and thus I will continue down this research path so that one day I can be a knowledgeable physician. Therefore, how can one survive and prevent a suit of medical malpractice? There are more specific questions that need to be answered though before one can answer the driving question. Primarily, what is medical malpractice, and how can it be prevented. i. Evidence: 1A, 2H, 4A, 5A, 8B i. Evidence: 1B, 2C, 2D, 2G, 2H, 3B, 7A, 7D, 8D i. Evidence: 1C, 3B, 3C, 3D, 4C, 8D i. Evidence: 2G, 3A, 4B, 7A i. Evidence: 1A, 1B, 3A, 8E
 * 1) Feld, Andrew D. “Most Doctors Win: What to Do If Sued for Medical Malpractice.” //Nature//. American Journal of Gastroenterology, n.d. Web. 20 Sept. 2009.
 * 2) “The fear of being subject to a lawsuit is pervasive in medicine and may affect how one practices. The angst is perhaps more proportionate to the perception of the pain and humiliation associated with the process and character of a lawsuit than to the frequency of occurrence” (Feld).
 * 3) “The consequences of being sued are not merely the time spent in defense preparation but may involve personal loss of self-esteem, depression, family stress, credentialing issues and financial worry” (Feld).
 * 4) “Complications are a risk area. Do not ignore post-complication care out of embarrassment, fear, or concern that your answers to questions may later be quoted in a suit. Make certain the patient is well cared for by your medical and surgical colleagues, as well as by you. Engage your clinic or hospital risk management team if appropriate” (Feld).
 * 5) “E-mails are discoverable. Remember the old saying: never e-mail anything you would not want on the front page of your newspaper” (Feld).
 * 6) For example, “[the] fear of being subject to a lawsuit is pervasive in medicine and may affect how one practices. The angst is perhaps more proportionate to the perception of the pain and humiliation associated with the process and character of a lawsuit than to the frequency of occurrence” (Feld).
 * 7) For example, “[the] electronic medical record (EMR) may become a fertile area for the plaintiff’s attorneys. EMR policies regarding timing of response and completeness for staff-to-staff and patient-to-staff communications may prevent challenges about poor follow-up” (Feld).
 * 8) Gots, Ronald E. //The Truth About Medical Malpractice//. New York: Stein and Day Publishers, 1975. Print.
 * 9) “Injury, negligence, and proximate cause are the three fundamental elements that determine a malpractice case” (Gots 28).
 * 10) Patients often believe that any unusual and unanticipated complication as evidence of negligence, or the failure to exercise that degree of care that, in the circumstances, the law requires for the protection of other persons or those interests of other persons that may be injuriously affected by the want of such care. Patients “go to their physicians with confidence and high hopes, and when events take a surprising turn for the worse, they are certain that the doctor must be at fault” (Gots 45).
 * 11) First, the most obvious requirement of malpractice is injury. Injury can be defined as either “[an] operation complication, a serious drug side effect, an unusually prolonged hospitalization, an unexpected death, the loss of a limb from a seemingly minor injury. [These] may or may not lead to successful court action” (Gots 28).
 * 12) For a patient to determine whether or not their case is valid, they must “divide [their] complaints into two categories: physical impairments, and pain and suffering” (Gots 29).
 * 13) Patients “go to their physicians with confidence and high hopes, and when events take a surprising turn for the worse, they are certain that the doctor must be at fault” (Gots 45).
 * 14) However, the patient must show that the doctor, by making a mistake, caused a problem or failed to prevent it due to their own failed capabilities. In some cases, the doctrine of “//res ipsa loquitur// (Latin for ‘the thing speaks for itself’) may establish negligence without requiring expert testimony” (Gots 36).
 * 15) For proximate cause to take place, “[not] only must the doctor have done something wrong and an injury have occurred, but the specific act of negligence must have directly produced the injury for the plaintiff to win his case” (Gots 37).
 * 16) Sometimes an injury is so severe that negligence is so apparent that the plaintiff may not have to prove probably or certain cause. “It may be enough to show that the doctor, through his negligence, removed even a small chance of averting the injury” (Gots 41).
 * 17) Larson, Aaron. “Medical Malpractice Law and Litigation.” //Expert Law//. N.p., 2009. Web. 20 Sept. 2009. < http://www.expertlaw.com/‌ library/‌malpractice.malpractice.html>.
 * 18) “­From the external viewpoint, an error is a failure to perform an intended action which was correct given the circumstances. In my view an error can occur only if there was or should have been an appropriate intention to act on the basis of a perceived or a remembered state of events; and if the action finally taken was not that which was or should have been intended. An error is not defined by an adverse or serious outcome” (Larson).
 * 19) “An error is a psychological event with psychological causes if errors are caused at all (there is always the possibility that causes of all or some errors can not be identified)” (Larson).
 * 20) “An error can occur, and can be self-detected and (sometimes) corrected, at many points in the sequence of mental events between a perception and the resulting action. An error can occur, and can be self-detected and (sometimes) corrected, at many points in the sequence of physical events between the beginning and the end of an action. Such error detection can be of the error's mode, of its expression, or of its consequence” (Larson).
 * 21) “Finally, one must accept the fact that various errors will occur and try to prevent or inhibit the translation of the error into an accident. The Food and Drug Administration and the manufacturers must stop expecting nurses and physicians to use things correctly every time. Each medication package and each medical device must be subjected to Failure Mode Analysis” (Larson).
 * 22) “Medical Malpractice.” //Medical Malpractice//. Expert Hub, 2009. Web. 20 Sept. 2009. .
 * 23) “A person can make a claim for negligent nondisclosure—which means that a doctor did not tell the patient everything he needed to know before consenting to a particular type of treatment. In order to succeed on this type of claim, the patient must prove that a reasonable would not have consented to the treatment had that reasonable person been informed of the potential risks” (“Medical Malpractice”).
 * 24) “Professional health care providers have a duty to perform their work as a reasonable and careful professional in a similar position would perform. Health care providers are expected to be educated and up to date on the latest practices in their area of expertise” (“Medical Malpractice”).
 * 25) “Some diseases or conditions are very difficult to diagnose, and some, like prostate cancer, are almost impossible to diagnose before the cancer has spread beyond the stage where treatment can help. That is why doctors are not held to a standard of being responsible for detecting every condition when it started” (“Medical Malpractice”).
 * 26) “Almost every single medical malpractice lawyer works on a contingency fee basis. This is great for the victims, because it means they will not have to pay their attorney anything, unless they win the claim. Usually, the attorney will charge anywhere between 20%-40%. It may sound like a lot, but it's absolutely necessary to have them on your side, as these types of cases are very complicated” (“Medical Malpractice”).
 * 27) “Medical Malpractice.” //World of Health//. 2007. //Science// //Resource Center//. Web. 21 Sept. 2009. .
 * 28) “Medical malpractice occurs when a doctor or other health care provider is negligent or fails to follow accepted standards of practice, causing harm to a patient. Most physicians are competent, ethical, and highly skilled. However, medical doctors are human just like everyone else; and problems do occur” (“Medical Malpractice”).
 * 29) “Of that percentage, about one-half were brought against surgeons, about one-third were against non-surgeons, and the other one-sixth were against other members of the medical community” (“Medical Malpractice”).
 * 30) “The study also found that lawsuits are not filed in most cases of medical malpractice. On the other hand, the researchers were unable to find any evidence of negligence in 39 of the 47 cases in which malpractice suits were actually filed. Furthermore, they found that payments were made in 40% of those malpractice suits, even though most appeared to be without merit” (“Medical Malpractice”).
 * 31) “Malpractice may also be present if a patient has not given informed consent before undergoing treatment. The doctor should always discuss the nature, risks, and benefits of any proposed treatment, as well as other reasonable options. Many hospitals and doctors require patients to sign a consent form indicating that they assume any risks from the procedure” (“Medical Malpractice”).
 * 32) Mello, Michelle M. “The Role of Medical Liability Reform in Federal Health Care Reform.” //The New England Journal of Medicine//. Massachusetts Medical Society, 2 July 2009. Web. 20 Sept. 2009. .
 * 33) Patients do not waive their right to sue by accepting the offer, but reportedly, few go on to file lawsuits” (Mello).
 * 34) The second approach is to “shift the adjudication of medical malpractice claims to a new kind of tribunal — either an administrative panel that would award damages on the basis of judgments by neutral experts about the avoidability of the injury or specialized judicial courts presided over by judges with medical expertise” (Mello).
 * 35) This is not a dead issue, “[at] present, few policymakers are openly discussing the pros and cons of bundling liability reform and health care reform. The overture to the exquisite oratorio of lawmaking calls for each player to press the key positions its constituents demand. But within a few months, we predict that many will be looking for compromises” (Mello).
 * 36) “The second approach is to shift the adjudication of medical malpractice claims to a new kind of tribunal — either an administrative panel that would award damages on the basis of judgments by neutral experts about the avoidability of the injury or specialized judicial courts presided over by judges with medical expertise. This approach is attractive on its merits; it would address several fundamental problems with the current system, in which juries make decisions with scant guidance on complex scientific issues and what constitutes reasonable damages awards” (Mello).
 * 37) Moore, Gregory P. “Malpractice Cases in Wound Care and a Legal Concept: Special Defense.” //West JEM//. Western Journal of Emergency Medicine, Nov. 2008. Web. 21 Sept. 2009. .
 * 38) “We should all be aware of the four components of malpractice. (1) The physician had a duty, (2) breached the duty, (3) resulting in harm to the patient, and (4) the harm was caused by the breach of duty. Typically, if a lawyer proves all four elements are present, the physician is liable for damages” (Moore).
 * 39) “Over 12 million visits a year throughout the United States for traumatic wounds make them one of the most common reasons for an emergency department (ED) visit.1 One emergency medicine (EM) text cites wound care as accounting for 5–20% of all ED malpractice claims and 3–11% of all dollars paid out” (Moore).
 * 40) “On its face, this case seems to fit the criteria for malpractice. There was a duty (the doctor had taken the patient), very possible breach of duty (abandonment by the physician), injury (head trauma), and direct causation (by leaving the bedside the physician was not able to prevent the fall). The EP, however, raised a creative “special defense.” In citing the “sudden emergency” (in the ED) defense, he was exonerated” (Moore).
 * 41) “A valid defensive doctrine accepted in law, the “sudden emergency” defense acknowledges that a person confronted with a sudden or unexpected situation demanding immediate action may not use the same degree of judgment as he would in normal circumstances. Another example would be a car accident where someone is suddenly struck. In attempting to hit the brake pedal, the driver may hit the gas pedal instead and accelerate, striking another car. That driver could claim that the sudden emergency, caused him to do something he would not normally have done, and he would likely be absolved” (Moore).
 * 42) Nasca, Richard J. //Medical Malpractice: How to Prevent and Survive a Suit//. Brooklandville: Data Trace Publishing, 2005. Print.
 * 43) “For centuries, the medical profession has worked diligently to improve the quality and quantity of human life, thus earning the respect and esteem of society…At the same time, American society has become far less accepting of error, disappointment, and accidental injury in life” (Nasca vii).
 * 44) “To hold a physician liable for malpractice, a judge or jury must find that the physician’s conduct falls below the standard of medical care. Determining what constitutes that peculiar standard of care against which the physician’s actions are measure is not a simple matter, particularly because the legal and medical communities often differ in their perspectives” (Nasca 33).
 * 45) “If so, you should consider the following statistics: Overall, plaintiffs won just 30.5% of medical liability cases in 2002. Of the 7% of cases proceeding to a jury verdict, the defendant won 82.4% of the time” (Nasca 247).
 * 46) Determining what constitutes that peculiar standard of care against which the physician’s actions are measure is not a simple matter, particularly because the legal and medical communities often differ in their perspectives” (Nasca 33).
 * 47) For example, just the fact that someone is handed with a court summons is an immense ordeal, “[the] deputy hands you the malpractice claim document (summons) and you return to your office embarrassed and angry. Next to losing a loved one, this is one of the most gut-wrenching experiences you will encounter. It is hard to believe that someone you attempted to help and care for could now make such a claim against you” (Nasca 245).
 * 48) Thesis:
 * 49) I believe that medical malpractice is a tough and difficult road for any doctor to undergo. This is an extremely taxing process in which the physician will lose credibility, even if the claim is dropped. They have still been charged with malpractice and they record is smeared for it. Even worse, this is incredibly time consuming! A physician may be in this process for years, sometimes just for the discovery phase. In order to prevent medical malpractice, a doctor must understand previous case law in the practicing area while employing any and all preventative measures to ensure the best quality and quantity of care for their patients.
 * 50) Findings:
 * 51) Finding One: Medical malpractice occurs when a doctor is negligent.
 * 1) Finding Two: For malpractice to occur an injury must be present and defendable in the court of law.
 * 1) Finding Three: A patient must realize that sometimes errors do occur and they are uncontrollable by the attending physician.
 * 1) Finding Four: Professional physicians have a duty to the patient and when they breach that duty they commit malpractice.
 * 1) Finding Five: The process of a malpractice trial is an extremely taxing and lengthy process.
 * 1) Process Reflection:
 * 2) I learned a great deal from conducting my research. Primarily, I found out what medical malpractice entails and the process that a physician must undergo when in a suit. Of course to find this out, I had to delve into several different medical sources and expand upon my limited “Springfield Databases” search engines. Overall, I need to improve my ability to find relevant journals on medical malpractice that do not simply reiterate my previous findings. Finally, because I had already had several lectures on the topic, I did not have any incorrect viewpoints as I entered into my research.
 * 3) Connections to the Overall Project:
 * 4) My findings are very important to my overall project. Because I will be interviewing several physicians, I now know a decent amount of case law that I can use to create relevant questions for my interviews. Now I am able to create several questions with ample background information and will be able to understand any specific terms the physicians may use.