Law & Medicine

A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is entirely asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. Unfortunately, before she can do so, she sustains a massive stroke. Regarding possible negligence in this case, the doctor is negligent in failing to routinely screen for hypertension. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C. App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is entirely asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. Unfortunately, before she can do so, she sustains a massive stroke. Regarding possible negligence in this case, the doctor is negligent in failing to routinely screen for hypertension. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C. App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is entirely asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. Unfortunately, before she can do so, she sustains a massive stroke. Regarding possible negligence in this case, the doctor is negligent in failing to routinely screen for hypertension. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C. App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

Question: A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. But before she can do so, she sustains a massive stroke. Regarding possible negligence in this hypothetical case, which of the following is correct?

A. The doctor is negligent in failing to routinely screen for hypertension.

B. The doctor escapes liability because there is no assurance that earlier diagnosis or therapy would have prevented the stroke.

C. The risk of a stroke in hypertensive patients is less than 50%, so the plaintiff will likely lose the case.

D. The doctor should have immediately hospitalized the patient to give her a better chance of survival.

E. The proximate cause of the injury was the patient's underlying hypertension and complicating stroke rather than delayed diagnosis, which merely increased her theoretical risk.

Answer: A. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission (we assume that the hypertension was present and detectable if the patient had been screened earlier) can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine. The doctor's treatment and referral otherwise met the usual standard of care.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

A series of cases from Kansas addresses this controversy. The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one case, expert testimony established that the plaintiff would have had a 51% chance of 5-year survival if her lung cancer had been diagnosed in a timely way. The court ruled this met the causation burden, but went on to state that a plaintiff could recover for the loss of any appreciable chance, not just one exceeding 50% (Boody v. United States, 706 F.Supp.1458, Kan. 1989). In another ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C.App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

Contact the author at [email protected].

Question: A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. But before she can do so, she sustains a massive stroke. Regarding possible negligence in this hypothetical case, which of the following is correct?

A. The doctor is negligent in failing to routinely screen for hypertension.

B. The doctor escapes liability because there is no assurance that earlier diagnosis or therapy would have prevented the stroke.

C. The risk of a stroke in hypertensive patients is less than 50%, so the plaintiff will likely lose the case.

D. The doctor should have immediately hospitalized the patient to give her a better chance of survival.

E. The proximate cause of the injury was the patient's underlying hypertension and complicating stroke rather than delayed diagnosis, which merely increased her theoretical risk.

Answer: A. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission (we assume that the hypertension was present and detectable if the patient had been screened earlier) can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine. The doctor's treatment and referral otherwise met the usual standard of care.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

A series of cases from Kansas addresses this controversy. The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one case, expert testimony established that the plaintiff would have had a 51% chance of 5-year survival if her lung cancer had been diagnosed in a timely way. The court ruled this met the causation burden, but went on to state that a plaintiff could recover for the loss of any appreciable chance, not just one exceeding 50% (Boody v. United States, 706 F.Supp.1458, Kan. 1989). In another ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C.App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

Contact the author at [email protected].

Question: A doctor runs a walk-in clinic to treat acute conditions such as minor trauma and provide services such as flu shots and prescription refills. The clinic staff does not routinely measure blood pressure (BP). A patient who has used the facility for many years comes in and asks for a BP measurement because it was elevated when she had it checked at a recent health fair. It now reads 180/105, but she is asymptomatic. The doctor promptly starts antihypertensive therapy and recommends that she follow up with a primary care physician within 2 weeks. But before she can do so, she sustains a massive stroke. Regarding possible negligence in this hypothetical case, which of the following is correct?

A. The doctor is negligent in failing to routinely screen for hypertension.

B. The doctor escapes liability because there is no assurance that earlier diagnosis or therapy would have prevented the stroke.

C. The risk of a stroke in hypertensive patients is less than 50%, so the plaintiff will likely lose the case.

D. The doctor should have immediately hospitalized the patient to give her a better chance of survival.

E. The proximate cause of the injury was the patient's underlying hypertension and complicating stroke rather than delayed diagnosis, which merely increased her theoretical risk.

Answer: A. Routine BP measurements are usually performed with every doctor-patient encounter, with some exceptions, such as in a radiologist's office. Whether screening for hypertension should be part of a walk-in clinic routine will be determined by experts who will define the community standard. However, even if the doctor has breached the standard of care, his or her professional liability requires the plaintiff to show that the negligent act or omission proximately caused the injury. Proof of causation may be problematic when the harm suffered is a natural expectation of the underlying condition, and the doctor's negligence simply deprived the patient of some chance of reducing that risk. In this hypothetical case, hypertension was the underlying condition, and the doctor's omission (we assume that the hypertension was present and detectable if the patient had been screened earlier) can be said to have caused the patient to lose the opportunity to avoid or reduce the odds of sustaining a stroke. This is known as the “loss of a chance” doctrine. The doctor's treatment and referral otherwise met the usual standard of care.

The key issue surrounding the “loss of a chance” doctrine is what level of risk reduction or lost opportunity is necessary to pass the proximate causation threshold. How large a risk of an adverse outcome and how much of a reduction in that risk are required as a matter of law? Some courts assert that the plaintiff must show that the original risk is substantial to begin with, e.g., greater than 50%. Other courts have held that all that is needed is for the plaintiff to show that the defendant's negligence led to a lost opportunity for a better result, irrespective of the degree of loss.

A series of cases from Kansas addresses this controversy. The Kansas Supreme Court initially used the term “appreciable chance” as the yardstick of measure (Roberson v. Counselman, 686 P.2d 149, Kan. 1984). A decade later, this was modified to “substantial loss of the chance” (Delaney v. Cade, 873 P.2d 175, Kan. 1994). Finally, in its latest deliberation on the subject, the Kansas court held that a 5%–10% chance was enough for liability (Pipe v. Hamilton, 56 P.3d 823, Kan. 2002). In that case, gangrene and death set in after surgery for small bowel obstruction, and the doctor did not pursue other tests because the patient had only a 5%–10% chance of survival. In ruling against the defendant, the court stated: “Pipe (plaintiff) contends a 10% chance of survival is more than a trifling matter and is something that Kansas public policy supports as being recognized as substantial. We agree. As a matter of law, a 10% loss of chance cannot be said to be token or de minimis.”

Cases alleging delayed diagnosis of cancer frequently pose “loss of a chance” issues. In one case, expert testimony established that the plaintiff would have had a 51% chance of 5-year survival if her lung cancer had been diagnosed in a timely way. The court ruled this met the causation burden, but went on to state that a plaintiff could recover for the loss of any appreciable chance, not just one exceeding 50% (Boody v. United States, 706 F.Supp.1458, Kan. 1989). In another ruling concerning the untimely diagnosis of lung cancer, a Washington court held that survival reduction of 14%, from 39% to 25%, was enough to entrust the jury to decide on the issue of proximate causation (Herskovits v. Group Health Co-op. of Puget Sound, 664 P.2d 474, Wash. 1983).

A few jurisdictions, however, take the position that the loss of a chance has to be more than 50% (Grant v. American Nat. Red Cross, 745 A.2d 316, D.C.App. 2000). In this case, the plaintiff contracted hepatitis C after receiving a blood transfusion. The blood bank did not routinely screen for alanine aminotransferase levels, but the plaintiff lost the case after conceding that the chance of avoiding hepatitis C even with screening was less than 40%.

Contact the author at [email protected].

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following best describes this hypothetical case?

A. The nurse is negligent; but for her handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The jury can assume the man's respiratory distress was likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's handwriting may have contributed to the injury, that does not get the hospitalist off the hook. He should have rechecked the allergy history. The facts in this case raise the issue of medication error, which sometimes amounts to negligence. However, to win a malpractice lawsuit, the plaintiff has to prove causation—that is, that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong that affects private citizens and is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

“Standard of care” can be defined as follows: “The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill, and care ordinarily possessed and employed by members of the profession in good standing” (Prosser W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed. St. Paul, Minn.: West Publishing Co., 1984; pp. 186-7).

Medical malpractice or negligence is therefore an act or omission by a health care professional that departs from this defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some define medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (error of execution) or the use of a wrong plan to achieve an aim (error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000; p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. But if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence.

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia said: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following best describes this hypothetical case?

A. The nurse is negligent; but for her handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The jury can assume the man's respiratory distress was likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's handwriting may have contributed to the injury, that does not get the hospitalist off the hook. He should have rechecked the allergy history. The facts in this case raise the issue of medication error, which sometimes amounts to negligence. However, to win a malpractice lawsuit, the plaintiff has to prove causation—that is, that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong that affects private citizens and is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

“Standard of care” can be defined as follows: “The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill, and care ordinarily possessed and employed by members of the profession in good standing” (Prosser W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed. St. Paul, Minn.: West Publishing Co., 1984; pp. 186-7).

Medical malpractice or negligence is therefore an act or omission by a health care professional that departs from this defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some define medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (error of execution) or the use of a wrong plan to achieve an aim (error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000; p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. But if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence.

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia said: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following best describes this hypothetical case?

A. The nurse is negligent; but for her handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The jury can assume the man's respiratory distress was likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's handwriting may have contributed to the injury, that does not get the hospitalist off the hook. He should have rechecked the allergy history. The facts in this case raise the issue of medication error, which sometimes amounts to negligence. However, to win a malpractice lawsuit, the plaintiff has to prove causation—that is, that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong that affects private citizens and is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

“Standard of care” can be defined as follows: “The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill, and care ordinarily possessed and employed by members of the profession in good standing” (Prosser W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed. St. Paul, Minn.: West Publishing Co., 1984; pp. 186-7).

Medical malpractice or negligence is therefore an act or omission by a health care professional that departs from this defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some define medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (error of execution) or the use of a wrong plan to achieve an aim (error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000; p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. But if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence.

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia said: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation that he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following statements best describes this hypothetical case?

A. The triage nurse, rather than the hospitalist, is negligent; but for her illegible handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The man's respiratory distress was most likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's poor handwriting may have contributed to the injury, that does not get the hospitalist off the hook, as he should have rechecked the allergy history. The facts in this case do raise the issue of medication error, which often but not always amounts to negligence. However, in order to win a malpractice lawsuit, the plaintiff has to affirmatively prove causation—i.e., that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong affecting private citizens that is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator, although there is a separate class of legal wrongs termed intentional torts where the wrongdoing is intentional, such as assault and battery. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

Medical malpractice, also called medical negligence, is an act or omission by a health care professional that departs from the defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say that medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some authors have defined medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (e.g., error of execution) or the use of a wrong plan to achieve an aim (e.g., error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000, p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. On the other hand, if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence. As one court put it: “An honest error of judgment in making a diagnosis is insufficient to support liability unless that mistake constitutes negligence” (Dotson v. Hammerman, 932 S.W.2d 880, Mo. App. 1996). Several courts have cautioned against the use of terms such as “error in judgment” and “best judgment,” as they may confuse the jury (Hirahara v. Tanaka, 959 P.2d 830, Haw. 1998; D'Orazio v. Parlee & Tatem Radiologic Associates, Ltd., 850 A.2d 726, Pa. 2004).

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia put it this way: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are wholly independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Contact the author at [email protected].

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation that he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following statements best describes this hypothetical case?

A. The triage nurse, rather than the hospitalist, is negligent; but for her illegible handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The man's respiratory distress was most likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's poor handwriting may have contributed to the injury, that does not get the hospitalist off the hook, as he should have rechecked the allergy history. The facts in this case do raise the issue of medication error, which often but not always amounts to negligence. However, in order to win a malpractice lawsuit, the plaintiff has to affirmatively prove causation—i.e., that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong affecting private citizens that is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator, although there is a separate class of legal wrongs termed intentional torts where the wrongdoing is intentional, such as assault and battery. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

Medical malpractice, also called medical negligence, is an act or omission by a health care professional that departs from the defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say that medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some authors have defined medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (e.g., error of execution) or the use of a wrong plan to achieve an aim (e.g., error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000, p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. On the other hand, if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence. As one court put it: “An honest error of judgment in making a diagnosis is insufficient to support liability unless that mistake constitutes negligence” (Dotson v. Hammerman, 932 S.W.2d 880, Mo. App. 1996). Several courts have cautioned against the use of terms such as “error in judgment” and “best judgment,” as they may confuse the jury (Hirahara v. Tanaka, 959 P.2d 830, Haw. 1998; D'Orazio v. Parlee & Tatem Radiologic Associates, Ltd., 850 A.2d 726, Pa. 2004).

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia put it this way: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are wholly independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Contact the author at [email protected].

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation that he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following statements best describes this hypothetical case?

A. The triage nurse, rather than the hospitalist, is negligent; but for her illegible handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The man's respiratory distress was most likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's poor handwriting may have contributed to the injury, that does not get the hospitalist off the hook, as he should have rechecked the allergy history. The facts in this case do raise the issue of medication error, which often but not always amounts to negligence. However, in order to win a malpractice lawsuit, the plaintiff has to affirmatively prove causation—i.e., that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong affecting private citizens that is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator, although there is a separate class of legal wrongs termed intentional torts where the wrongdoing is intentional, such as assault and battery. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

Medical malpractice, also called medical negligence, is an act or omission by a health care professional that departs from the defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say that medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some authors have defined medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (e.g., error of execution) or the use of a wrong plan to achieve an aim (e.g., error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000, p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. On the other hand, if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence. As one court put it: “An honest error of judgment in making a diagnosis is insufficient to support liability unless that mistake constitutes negligence” (Dotson v. Hammerman, 932 S.W.2d 880, Mo. App. 1996). Several courts have cautioned against the use of terms such as “error in judgment” and “best judgment,” as they may confuse the jury (Hirahara v. Tanaka, 959 P.2d 830, Haw. 1998; D'Orazio v. Parlee & Tatem Radiologic Associates, Ltd., 850 A.2d 726, Pa. 2004).

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia put it this way: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are wholly independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Contact the author at [email protected].

Delayed testing leads to death from embolism

SWELLING OF HIS RIGHT FOOT prompted a 75-year-old man to seek medical attention. He had a history of blood clots and wore compression stockings. The physician spent 10 minutes with the patient; he did not remove the compression stockings during the examination. The physician scheduled a sonogram for the next day.

After the sonogram, the patient returned to the physician complaining of a back problem. While in the waiting room, the patient collapsed and died of a massive pulmonary embolism.

PLAINTIFF’S CLAIM: The patient had classic symptoms of a blood clot and should have been tested immediately.

DOCTOR’S DEFENSE: The patient didn’t wear compression stockings to prevent blood clots but because of swelling from a long history of postphlebitic syndrome. The foot and back complaints were similar to previous complaints related to the patient’s postphlebitic syndrome and degenerative disc disease. Moreover, the sonogram was negative for acute clots.

VERDICT: $5.2 million Texas verdict.

COMMENT: Although the facts of this case aren’t altogether clear, timely evaluation might have prevented the unfortunate outcome. As with many malpractice allegations, documentation remains key to a physician’s defense. If it’s not documented, it didn’t happen. JLS

Heart attack blamed on lack of workup, referral

A 57-YEAR-OLD MAN, who had been under the regular care of an internist for 5 years, died suddenly of an acute myocardial infarction. He had a history of high cholesterol and high blood pressure, as well as a family history of heart disease, and he was a heavy smoker. The internist had ordered resting electrocardiograms over the years but hadn’t done a workup for heart disease or referred the patient to a cardiologist.

PLAINTIFF’S CLAIM: The internist should have performed appropriate testing or referred the patient to a cardiologist because the patient had all the risk factors for heart disease. If the doctor had done any of these things, the patient’s heart disease would have been diagnosed and cardiac bypass surgery would have saved his life.

DOCTOR’S DEFENSE: The patient’s continued heavy smoking caused or contributed to his fatal heart attack. The attack was unpredictable and untreatable because it was caused by new and unstable plaque rupture and thrombosis. (The plaintiff countered that the patient didn’t suffer from ruptured plaque or thrombosis.)

VERDICT: $377,500 Michigan settlement.

COMMENT: How aggressively should we evaluate the patient with multiple cardiac risk factors? This case suggests that we need to strongly consider definitive evaluation of the patient at high risk of coronary artery disease. JLS

Death after repeated calls to doctors

AFTER SUFFERING SEVERE BURNS to his leg and foot while cooking French fries, a 48-year-old man was treated by his family physician as well as a surgeon specializing in skin grafts. During rehabilitation, the patient became disoriented and short of breath; he hyperventilated and reported that he was seeing aliens. He was also depressed.

His wife called the offices of both the family physician and the surgeon 4 times over 2 days. She never spoke to a doctor. Two days later, a nurse practitioner returned her call and prescribed fluoxetine for depression. Very shortly thereafter, the patient suffered a massive pulmonary embolism. He was taken to an emergency room, where he was pronounced dead.

PLAINTIFF’S CLAIM: The physician and surgeon were negligent in their failure to respond properly to the wife’s phone calls. Prompt intervention would have prevented the pulmonary embolism.

DOCTORS’ DEFENSE: The only information that was relayed to the doctors’ offices was that the patient was depressed and “talking funny.”

VERDICT: Indiana defense verdict.

COMMENT: We’re only as good as our staff and systems of care. Here’s another patient with pulmonary embolus who might have survived if appropriate evaluation had occurred promptly. JLS

2 cases, 1 theme: A purported lack of follow-up

A 62-YEAR-OLD MAN with an abdominal aortic aneurysm was seen by an internist at a Veterans Administration hospital. The aneurysm subsequently ruptured, necessitating emergency surgery. The surgery was successful, but the patient required attendant living assistance and neuropsychological retraining.

PLAINTIFF’S CLAIM: The internist was told that the patient’s father had been diagnosed with an abdominal aortic aneurysm, and that the patient himself had been diagnosed with a 2- to 3-cm aortic aneurysm and advised to have it rescanned periodically. The patient further informed the internist that he had been told that the aneurysm would require surgery if it reached 5 or 6 cm.

The patient saw the doctor many times after the first visit, but no history of abdominal aortic aneurysm was ever recorded and no scanning was performed. Serial monitoring would have revealed a slowly enlarging aneurysm, and elective surgery could have treated it.

DOCTOR’S DEFENSE: The patient failed to inform the internist of the history of abdominal aortic aneurysm. An aneurysm of 2 to 3 cm does not require follow-up.

VERDICT: $200,000 California settlement.

A CHEST RADIOGRAPH of a 74-year-old woman showed lung densities and artifacts. No follow-up radiography was performed. Two years later, the patient was diagnosed with lung cancer, which had metastasized to her liver. The patient died 5 months after the diagnosis.

PLAINTIFF’S CLAIM: The internist should have ordered a CT scan to further investigate the abnormalities.

DOCTOR’S DEFENSE: A follow-up radiograph was ordered, which the patient refused. (The plaintiff denied that follow-up radiographs were ordered and argued that even if they had been performed, the outcome would have been the same.)

VERDICT: Illinois defense verdict.

COMMENT: Tracking and following up test results is often a challenge in primary care offices. Although the advice given to the first patient concerning follow-up of his abdominal aortic aneurysm appears to be sound, the lack of follow-through resulted in serious consequences. It’s important to assure timely reevaluation of abnormalities, such as repeat CT or workup of a chest mass, repeat mammography, or tracking of an abdominal aortic aneurysm. JLS

Delayed testing leads to death from embolism

SWELLING OF HIS RIGHT FOOT prompted a 75-year-old man to seek medical attention. He had a history of blood clots and wore compression stockings. The physician spent 10 minutes with the patient; he did not remove the compression stockings during the examination. The physician scheduled a sonogram for the next day.

After the sonogram, the patient returned to the physician complaining of a back problem. While in the waiting room, the patient collapsed and died of a massive pulmonary embolism.

PLAINTIFF’S CLAIM: The patient had classic symptoms of a blood clot and should have been tested immediately.

DOCTOR’S DEFENSE: The patient didn’t wear compression stockings to prevent blood clots but because of swelling from a long history of postphlebitic syndrome. The foot and back complaints were similar to previous complaints related to the patient’s postphlebitic syndrome and degenerative disc disease. Moreover, the sonogram was negative for acute clots.

VERDICT: $5.2 million Texas verdict.

COMMENT: Although the facts of this case aren’t altogether clear, timely evaluation might have prevented the unfortunate outcome. As with many malpractice allegations, documentation remains key to a physician’s defense. If it’s not documented, it didn’t happen. JLS

Heart attack blamed on lack of workup, referral

A 57-YEAR-OLD MAN, who had been under the regular care of an internist for 5 years, died suddenly of an acute myocardial infarction. He had a history of high cholesterol and high blood pressure, as well as a family history of heart disease, and he was a heavy smoker. The internist had ordered resting electrocardiograms over the years but hadn’t done a workup for heart disease or referred the patient to a cardiologist.

PLAINTIFF’S CLAIM: The internist should have performed appropriate testing or referred the patient to a cardiologist because the patient had all the risk factors for heart disease. If the doctor had done any of these things, the patient’s heart disease would have been diagnosed and cardiac bypass surgery would have saved his life.

DOCTOR’S DEFENSE: The patient’s continued heavy smoking caused or contributed to his fatal heart attack. The attack was unpredictable and untreatable because it was caused by new and unstable plaque rupture and thrombosis. (The plaintiff countered that the patient didn’t suffer from ruptured plaque or thrombosis.)

VERDICT: $377,500 Michigan settlement.

COMMENT: How aggressively should we evaluate the patient with multiple cardiac risk factors? This case suggests that we need to strongly consider definitive evaluation of the patient at high risk of coronary artery disease. JLS

Death after repeated calls to doctors

AFTER SUFFERING SEVERE BURNS to his leg and foot while cooking French fries, a 48-year-old man was treated by his family physician as well as a surgeon specializing in skin grafts. During rehabilitation, the patient became disoriented and short of breath; he hyperventilated and reported that he was seeing aliens. He was also depressed.

His wife called the offices of both the family physician and the surgeon 4 times over 2 days. She never spoke to a doctor. Two days later, a nurse practitioner returned her call and prescribed fluoxetine for depression. Very shortly thereafter, the patient suffered a massive pulmonary embolism. He was taken to an emergency room, where he was pronounced dead.

PLAINTIFF’S CLAIM: The physician and surgeon were negligent in their failure to respond properly to the wife’s phone calls. Prompt intervention would have prevented the pulmonary embolism.

DOCTORS’ DEFENSE: The only information that was relayed to the doctors’ offices was that the patient was depressed and “talking funny.”

VERDICT: Indiana defense verdict.

COMMENT: We’re only as good as our staff and systems of care. Here’s another patient with pulmonary embolus who might have survived if appropriate evaluation had occurred promptly. JLS

2 cases, 1 theme: A purported lack of follow-up

A 62-YEAR-OLD MAN with an abdominal aortic aneurysm was seen by an internist at a Veterans Administration hospital. The aneurysm subsequently ruptured, necessitating emergency surgery. The surgery was successful, but the patient required attendant living assistance and neuropsychological retraining.

PLAINTIFF’S CLAIM: The internist was told that the patient’s father had been diagnosed with an abdominal aortic aneurysm, and that the patient himself had been diagnosed with a 2- to 3-cm aortic aneurysm and advised to have it rescanned periodically. The patient further informed the internist that he had been told that the aneurysm would require surgery if it reached 5 or 6 cm.

The patient saw the doctor many times after the first visit, but no history of abdominal aortic aneurysm was ever recorded and no scanning was performed. Serial monitoring would have revealed a slowly enlarging aneurysm, and elective surgery could have treated it.

DOCTOR’S DEFENSE: The patient failed to inform the internist of the history of abdominal aortic aneurysm. An aneurysm of 2 to 3 cm does not require follow-up.

VERDICT: $200,000 California settlement.

A CHEST RADIOGRAPH of a 74-year-old woman showed lung densities and artifacts. No follow-up radiography was performed. Two years later, the patient was diagnosed with lung cancer, which had metastasized to her liver. The patient died 5 months after the diagnosis.

PLAINTIFF’S CLAIM: The internist should have ordered a CT scan to further investigate the abnormalities.

DOCTOR’S DEFENSE: A follow-up radiograph was ordered, which the patient refused. (The plaintiff denied that follow-up radiographs were ordered and argued that even if they had been performed, the outcome would have been the same.)

VERDICT: Illinois defense verdict.

COMMENT: Tracking and following up test results is often a challenge in primary care offices. Although the advice given to the first patient concerning follow-up of his abdominal aortic aneurysm appears to be sound, the lack of follow-through resulted in serious consequences. It’s important to assure timely reevaluation of abnormalities, such as repeat CT or workup of a chest mass, repeat mammography, or tracking of an abdominal aortic aneurysm. JLS

Delayed testing leads to death from embolism

SWELLING OF HIS RIGHT FOOT prompted a 75-year-old man to seek medical attention. He had a history of blood clots and wore compression stockings. The physician spent 10 minutes with the patient; he did not remove the compression stockings during the examination. The physician scheduled a sonogram for the next day.

After the sonogram, the patient returned to the physician complaining of a back problem. While in the waiting room, the patient collapsed and died of a massive pulmonary embolism.

PLAINTIFF’S CLAIM: The patient had classic symptoms of a blood clot and should have been tested immediately.

DOCTOR’S DEFENSE: The patient didn’t wear compression stockings to prevent blood clots but because of swelling from a long history of postphlebitic syndrome. The foot and back complaints were similar to previous complaints related to the patient’s postphlebitic syndrome and degenerative disc disease. Moreover, the sonogram was negative for acute clots.

VERDICT: $5.2 million Texas verdict.

COMMENT: Although the facts of this case aren’t altogether clear, timely evaluation might have prevented the unfortunate outcome. As with many malpractice allegations, documentation remains key to a physician’s defense. If it’s not documented, it didn’t happen. JLS

Heart attack blamed on lack of workup, referral

A 57-YEAR-OLD MAN, who had been under the regular care of an internist for 5 years, died suddenly of an acute myocardial infarction. He had a history of high cholesterol and high blood pressure, as well as a family history of heart disease, and he was a heavy smoker. The internist had ordered resting electrocardiograms over the years but hadn’t done a workup for heart disease or referred the patient to a cardiologist.

PLAINTIFF’S CLAIM: The internist should have performed appropriate testing or referred the patient to a cardiologist because the patient had all the risk factors for heart disease. If the doctor had done any of these things, the patient’s heart disease would have been diagnosed and cardiac bypass surgery would have saved his life.

DOCTOR’S DEFENSE: The patient’s continued heavy smoking caused or contributed to his fatal heart attack. The attack was unpredictable and untreatable because it was caused by new and unstable plaque rupture and thrombosis. (The plaintiff countered that the patient didn’t suffer from ruptured plaque or thrombosis.)

VERDICT: $377,500 Michigan settlement.

COMMENT: How aggressively should we evaluate the patient with multiple cardiac risk factors? This case suggests that we need to strongly consider definitive evaluation of the patient at high risk of coronary artery disease. JLS

Death after repeated calls to doctors

AFTER SUFFERING SEVERE BURNS to his leg and foot while cooking French fries, a 48-year-old man was treated by his family physician as well as a surgeon specializing in skin grafts. During rehabilitation, the patient became disoriented and short of breath; he hyperventilated and reported that he was seeing aliens. He was also depressed.

His wife called the offices of both the family physician and the surgeon 4 times over 2 days. She never spoke to a doctor. Two days later, a nurse practitioner returned her call and prescribed fluoxetine for depression. Very shortly thereafter, the patient suffered a massive pulmonary embolism. He was taken to an emergency room, where he was pronounced dead.

PLAINTIFF’S CLAIM: The physician and surgeon were negligent in their failure to respond properly to the wife’s phone calls. Prompt intervention would have prevented the pulmonary embolism.

DOCTORS’ DEFENSE: The only information that was relayed to the doctors’ offices was that the patient was depressed and “talking funny.”

VERDICT: Indiana defense verdict.

COMMENT: We’re only as good as our staff and systems of care. Here’s another patient with pulmonary embolus who might have survived if appropriate evaluation had occurred promptly. JLS

2 cases, 1 theme: A purported lack of follow-up

A 62-YEAR-OLD MAN with an abdominal aortic aneurysm was seen by an internist at a Veterans Administration hospital. The aneurysm subsequently ruptured, necessitating emergency surgery. The surgery was successful, but the patient required attendant living assistance and neuropsychological retraining.

PLAINTIFF’S CLAIM: The internist was told that the patient’s father had been diagnosed with an abdominal aortic aneurysm, and that the patient himself had been diagnosed with a 2- to 3-cm aortic aneurysm and advised to have it rescanned periodically. The patient further informed the internist that he had been told that the aneurysm would require surgery if it reached 5 or 6 cm.

The patient saw the doctor many times after the first visit, but no history of abdominal aortic aneurysm was ever recorded and no scanning was performed. Serial monitoring would have revealed a slowly enlarging aneurysm, and elective surgery could have treated it.

DOCTOR’S DEFENSE: The patient failed to inform the internist of the history of abdominal aortic aneurysm. An aneurysm of 2 to 3 cm does not require follow-up.

VERDICT: $200,000 California settlement.

A CHEST RADIOGRAPH of a 74-year-old woman showed lung densities and artifacts. No follow-up radiography was performed. Two years later, the patient was diagnosed with lung cancer, which had metastasized to her liver. The patient died 5 months after the diagnosis.

PLAINTIFF’S CLAIM: The internist should have ordered a CT scan to further investigate the abnormalities.

DOCTOR’S DEFENSE: A follow-up radiograph was ordered, which the patient refused. (The plaintiff denied that follow-up radiographs were ordered and argued that even if they had been performed, the outcome would have been the same.)

VERDICT: Illinois defense verdict.

COMMENT: Tracking and following up test results is often a challenge in primary care offices. Although the advice given to the first patient concerning follow-up of his abdominal aortic aneurysm appears to be sound, the lack of follow-through resulted in serious consequences. It’s important to assure timely reevaluation of abnormalities, such as repeat CT or workup of a chest mass, repeat mammography, or tracking of an abdominal aortic aneurysm. JLS

Question: During a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective.

However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger.

Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006–2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers, although Vermont is an exception, imposing an affirmative duty to assist a victim in need.

Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence.

The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, that is, whenever a doctor undertakes to evaluate or treat a patient. In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663–1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211–4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls.

A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective.

Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 survey by the American Medical Association, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders, G.B. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859–66).

Question: During a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective.

However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger.

Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006–2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers, although Vermont is an exception, imposing an affirmative duty to assist a victim in need.

Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence.

The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, that is, whenever a doctor undertakes to evaluate or treat a patient. In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663–1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211–4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls.

A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective.

Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 survey by the American Medical Association, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders, G.B. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859–66).

Question: During a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective.

However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger.

Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006–2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers, although Vermont is an exception, imposing an affirmative duty to assist a victim in need.

Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence.

The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, that is, whenever a doctor undertakes to evaluate or treat a patient. In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663–1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211–4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls.

A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective.

Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 survey by the American Medical Association, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders, G.B. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859–66).

Question: On a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic Oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective. However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger. Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic Oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006-2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers. (Vermont is an exception, imposing an affirmative duty to assist a victim in need.) Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence. The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, i.e., whenever a doctor undertakes to evaluate or treat a patient.

In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663-1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211-4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls. A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective. Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 AMA survey, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders GB. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859-66).

Contact the author at [email protected].

Question: On a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic Oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective. However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger. Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic Oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006-2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers. (Vermont is an exception, imposing an affirmative duty to assist a victim in need.) Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence. The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, i.e., whenever a doctor undertakes to evaluate or treat a patient.

In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663-1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211-4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls. A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective. Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 AMA survey, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders GB. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859-66).

Contact the author at [email protected].

Question: On a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic Oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective. However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger. Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic Oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006-2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers. (Vermont is an exception, imposing an affirmative duty to assist a victim in need.) Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence. The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, i.e., whenever a doctor undertakes to evaluate or treat a patient.

In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663-1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211-4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls. A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective. Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 AMA survey, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders GB. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859-66).

Contact the author at [email protected].

[email protected]

Last month, I discussed the universal health coverage proposals offered by the presidential candidates. Now let's look at two areas that could help us figure out how to get there: universal health care systems in other countries, and how America's one universal coverage-type program—Medicare—came about.

Earlier this year, PBS broadcast “Sick Around the World” as part of its “Frontline” series, focusing on the health care systems in the United Kingdom, Taiwan, Germany, Japan, and Switzerland. Taiwan's system is based on the Canadian-style national health insurance model, in which private practices are paid by the government; the United Kingdom is the paradigm for the socialized medicine model, in which physicians are salaried government employees; and the other three systems are based on the German model, in which workers pay into “sick funds” to receive coverage from private insurers, and those who can't afford to pay are subsidized by the government.

These plans function fairly well, and their citizens don't pay for health care (at least not directly, though the taxes in these countries are considerably higher than in ours). Insurers are not expected to make a profit.

Whatever the system, each country's premise is the same: Everybody has a right to health care. The money to correct what ails the U.S. system (an estimated $100 billion) is the equivalent of how much the government is spending in half a year in Iraq, according to Princeton University economist Uwe Reinhardt, Ph.D.

But how would we convince Americans that health care for all is worth the cost? Some clues might be found in considering the way in which another costly health program—Medicare—advanced through the halls of Congress. Opposition was everpresent (particularly from organized medicine via the American Medical Association), and it took 8 years and 80 revisions from the introduction of the original bill in 1957 until Medicare became law in 1965.

The preamble to a piece of congressional legislation, the 1966 Comprehensive Health Planning Act, states, “The fulfillment of our natural purpose depends on promoting and assuring the highest level of health attainable for every person.”

Once all parties signed on to the idea that seniors needed help in paying medical bills, the question became which mechanism to use—government subsidies, direct government payments, or health insurance financed and administered through Social Security. The latter option prevailed, but these options all sound familiar to what we hear from our presidential candidates today regarding universal coverage.

This pundit has another suggestion: Why not provide a basic layer of health protection for all Americans funded with taxpayer dollars, with any additional coverage paid for by the individual, the employer, or both through the private sector? In this way, every citizen will be guaranteed a certain level of health care, while letting market forces take care of levels of health care above a certain floor. This represents a blending of what presidential candidates Sen. John McCain (R-Ariz.) and Sen. Barack Obama (D-Ill.) have advocated.

If there is a recognition that Americans are entitled to health care, Sen. Obama and Sen. McCain would do well to learn from the past endeavors that made Medicare possible and from the programs that exist in other countries. If we fail to learn from history, we are bound to make the same mistakes. Our nation can ill afford to make these mistakes when we consider the present state of the crisis in availability and accessibility of health care in our country today.

[email protected]

Last month, I discussed the universal health coverage proposals offered by the presidential candidates. Now let's look at two areas that could help us figure out how to get there: universal health care systems in other countries, and how America's one universal coverage-type program—Medicare—came about.

Earlier this year, PBS broadcast “Sick Around the World” as part of its “Frontline” series, focusing on the health care systems in the United Kingdom, Taiwan, Germany, Japan, and Switzerland. Taiwan's system is based on the Canadian-style national health insurance model, in which private practices are paid by the government; the United Kingdom is the paradigm for the socialized medicine model, in which physicians are salaried government employees; and the other three systems are based on the German model, in which workers pay into “sick funds” to receive coverage from private insurers, and those who can't afford to pay are subsidized by the government.

These plans function fairly well, and their citizens don't pay for health care (at least not directly, though the taxes in these countries are considerably higher than in ours). Insurers are not expected to make a profit.

Whatever the system, each country's premise is the same: Everybody has a right to health care. The money to correct what ails the U.S. system (an estimated $100 billion) is the equivalent of how much the government is spending in half a year in Iraq, according to Princeton University economist Uwe Reinhardt, Ph.D.

But how would we convince Americans that health care for all is worth the cost? Some clues might be found in considering the way in which another costly health program—Medicare—advanced through the halls of Congress. Opposition was everpresent (particularly from organized medicine via the American Medical Association), and it took 8 years and 80 revisions from the introduction of the original bill in 1957 until Medicare became law in 1965.

The preamble to a piece of congressional legislation, the 1966 Comprehensive Health Planning Act, states, “The fulfillment of our natural purpose depends on promoting and assuring the highest level of health attainable for every person.”

Once all parties signed on to the idea that seniors needed help in paying medical bills, the question became which mechanism to use—government subsidies, direct government payments, or health insurance financed and administered through Social Security. The latter option prevailed, but these options all sound familiar to what we hear from our presidential candidates today regarding universal coverage.

This pundit has another suggestion: Why not provide a basic layer of health protection for all Americans funded with taxpayer dollars, with any additional coverage paid for by the individual, the employer, or both through the private sector? In this way, every citizen will be guaranteed a certain level of health care, while letting market forces take care of levels of health care above a certain floor. This represents a blending of what presidential candidates Sen. John McCain (R-Ariz.) and Sen. Barack Obama (D-Ill.) have advocated.

If there is a recognition that Americans are entitled to health care, Sen. Obama and Sen. McCain would do well to learn from the past endeavors that made Medicare possible and from the programs that exist in other countries. If we fail to learn from history, we are bound to make the same mistakes. Our nation can ill afford to make these mistakes when we consider the present state of the crisis in availability and accessibility of health care in our country today.

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Last month, I discussed the universal health coverage proposals offered by the presidential candidates. Now let's look at two areas that could help us figure out how to get there: universal health care systems in other countries, and how America's one universal coverage-type program—Medicare—came about.

Earlier this year, PBS broadcast “Sick Around the World” as part of its “Frontline” series, focusing on the health care systems in the United Kingdom, Taiwan, Germany, Japan, and Switzerland. Taiwan's system is based on the Canadian-style national health insurance model, in which private practices are paid by the government; the United Kingdom is the paradigm for the socialized medicine model, in which physicians are salaried government employees; and the other three systems are based on the German model, in which workers pay into “sick funds” to receive coverage from private insurers, and those who can't afford to pay are subsidized by the government.

These plans function fairly well, and their citizens don't pay for health care (at least not directly, though the taxes in these countries are considerably higher than in ours). Insurers are not expected to make a profit.

Whatever the system, each country's premise is the same: Everybody has a right to health care. The money to correct what ails the U.S. system (an estimated $100 billion) is the equivalent of how much the government is spending in half a year in Iraq, according to Princeton University economist Uwe Reinhardt, Ph.D.

But how would we convince Americans that health care for all is worth the cost? Some clues might be found in considering the way in which another costly health program—Medicare—advanced through the halls of Congress. Opposition was everpresent (particularly from organized medicine via the American Medical Association), and it took 8 years and 80 revisions from the introduction of the original bill in 1957 until Medicare became law in 1965.

The preamble to a piece of congressional legislation, the 1966 Comprehensive Health Planning Act, states, “The fulfillment of our natural purpose depends on promoting and assuring the highest level of health attainable for every person.”

Once all parties signed on to the idea that seniors needed help in paying medical bills, the question became which mechanism to use—government subsidies, direct government payments, or health insurance financed and administered through Social Security. The latter option prevailed, but these options all sound familiar to what we hear from our presidential candidates today regarding universal coverage.

This pundit has another suggestion: Why not provide a basic layer of health protection for all Americans funded with taxpayer dollars, with any additional coverage paid for by the individual, the employer, or both through the private sector? In this way, every citizen will be guaranteed a certain level of health care, while letting market forces take care of levels of health care above a certain floor. This represents a blending of what presidential candidates Sen. John McCain (R-Ariz.) and Sen. Barack Obama (D-Ill.) have advocated.

If there is a recognition that Americans are entitled to health care, Sen. Obama and Sen. McCain would do well to learn from the past endeavors that made Medicare possible and from the programs that exist in other countries. If we fail to learn from history, we are bound to make the same mistakes. Our nation can ill afford to make these mistakes when we consider the present state of the crisis in availability and accessibility of health care in our country today.

[email protected]

With Sen. Edward M. Kennedy (D-Mass.), a staunch supporter of patient rights and health care, now battling brain cancer, the subject of health care in our nation becomes all the more poignant. In a two-part series, we will consider this important issue.

Our present health care system is broken, and we need an updated model. A March 17, 2008, Fortune magazine article reported that the United States now has 47 million uninsured residents, and that, according to the Department of Health and Human Services, health care expenditures will double by 2017, to $4.3 trillion. And even though the United States is the richest country in the world, the World Health Organization recently ranked it 37th in terms of health care quality and fairness.

Health care is a top-tier issue for our presidential candidates. The American electorate demands change in the health care system. This time, whoever takes the Oval Office must ensure that change comes about so that all Americans are provided adequate health care at affordable prices.

The first question to be answered is: Should all Americans be entitled to health care? It is a simple question but one that has produced considerable debate, because we as a nation have never considered health care to be a right. Should it be? If it should not become a fundamental right, should some Americans—such as children—have health insurance coverage guaranteed to them?

The permutations are many, but there is only one right and fair choice: All Americans, including those taking overt steps to become citizens, should be provided health care. This is necessary for many of the same reasons that led to Medicare's passage in 1965: The crisis is as widespread and pervasive today as it was in the years preceding Medicare's enactment, and some type of relief is warranted on a national level, but for all U.S. citizens—not just for seniors.

Who should pay for that care is an important issue, but the answer to this question should not be the engine that drives the car. Instead, we should declare that all Americans should have access to health care, and then figure out a way to achieve that goal.

The two major-party presidential candidates, Sen. John McCain (R-Ariz.) and Sen. Barack Obama (D-Ill.) have very different approaches to the problem. Sen. McCain declares himself to be a free-market guy, believing that governmental intervention proposed in Democratic plans would be shackled with “inefficiency, irrationality, and uncontrolled costs.” A fundamental principle of his plan is that no American should be required to buy health insurance.

As noted in the Fortune article, Sen. McCain says his plan would “tax employer-sponsored health insurance, and use the money to provide tax credits (up to $5,000) for individuals and families to shop for coverage on their own,” thereby “forcing insurance companies to compete head-to-head for customers” and ostensibly lowering prices. He has also proposed a creation of a Guaranteed Access Plan to help ill and high-risk patients—who otherwise would find coverage very expensive or impossible to buy—obtain “coverage of last resort.” He also would not require insurers to sell policies to those with preexisting medical conditions. His message makes for nice sound bites but the devil, as always, is in the details.

The underpinning of McCain's plan involves the elimination of the tax break that employees now receive when their employer provides their health insurance. The employee would have to pay tax on the cost of an employer-provided plan for that employee or his family. With the federal dollars saved by eliminating the tax break, McCain would provide a $2,500 federal tax rebate for individuals and $5,000 per family that could be used toward the purchase of private health care policies. Sen. McCain expects that this would result in many fewer people opting for employer-sponsored health benefits.

In addition, Sen. McCain would allow the individual to purchase the health plan that best fits his or her stage in life, allowing insurers to offer an array of plans, with various benefits, copays, and deductibles. As one writer has observed, however, the downside is that “he risks leaving the poor and sick behind” (although one McCain lieutenant says the tax credit would be increased for that patient population).

Sen. Obama describes his plan as providing affordable and portable health coverage for all and lowering costs by modernizing the health care system. Specifically, he would require that no American be turned away from any insurance plan because of an illness or a preexisting condition. Americans would receive benefits similar to those that Sen. Obama and other members of Congress receive through the Federal Employees Health Benefits Program. He also calls for a National Health Insurance Exchange to assist individuals who wish to purchase a private insurance plan.

Employers that do not offer or make a “meaningful” contribution to the cost of quality health coverage for their employees would be required to contribute a percentage of payroll toward the costs of a national plan, although some small employers would be exempt from that requirement. Parents would be required to provide coverage for their children.

For physicians, Obama's plan would strengthen comparative effectiveness research by establishing an independent institute to guide reviews and studies, giving physicians and patients up-to-date clinical information. Another part of his plan would strengthen antitrust laws to prevent insurers from overcharging physicians for their malpractice insurance and would work to improve systems that eliminate errors in patient care and safety. Again, nice bullet points, but crafting all his points into a workable solution for a majority of Congress will take some doing.

In our next column, we will look at what U.S. history and health plans in other countries can teach us about health reform.

[email protected]

With Sen. Edward M. Kennedy (D-Mass.), a staunch supporter of patient rights and health care, now battling brain cancer, the subject of health care in our nation becomes all the more poignant. In a two-part series, we will consider this important issue.

Our present health care system is broken, and we need an updated model. A March 17, 2008, Fortune magazine article reported that the United States now has 47 million uninsured residents, and that, according to the Department of Health and Human Services, health care expenditures will double by 2017, to $4.3 trillion. And even though the United States is the richest country in the world, the World Health Organization recently ranked it 37th in terms of health care quality and fairness.

Health care is a top-tier issue for our presidential candidates. The American electorate demands change in the health care system. This time, whoever takes the Oval Office must ensure that change comes about so that all Americans are provided adequate health care at affordable prices.

The first question to be answered is: Should all Americans be entitled to health care? It is a simple question but one that has produced considerable debate, because we as a nation have never considered health care to be a right. Should it be? If it should not become a fundamental right, should some Americans—such as children—have health insurance coverage guaranteed to them?

The permutations are many, but there is only one right and fair choice: All Americans, including those taking overt steps to become citizens, should be provided health care. This is necessary for many of the same reasons that led to Medicare's passage in 1965: The crisis is as widespread and pervasive today as it was in the years preceding Medicare's enactment, and some type of relief is warranted on a national level, but for all U.S. citizens—not just for seniors.

Who should pay for that care is an important issue, but the answer to this question should not be the engine that drives the car. Instead, we should declare that all Americans should have access to health care, and then figure out a way to achieve that goal.

The two major-party presidential candidates, Sen. John McCain (R-Ariz.) and Sen. Barack Obama (D-Ill.) have very different approaches to the problem. Sen. McCain declares himself to be a free-market guy, believing that governmental intervention proposed in Democratic plans would be shackled with “inefficiency, irrationality, and uncontrolled costs.” A fundamental principle of his plan is that no American should be required to buy health insurance.

As noted in the Fortune article, Sen. McCain says his plan would “tax employer-sponsored health insurance, and use the money to provide tax credits (up to $5,000) for individuals and families to shop for coverage on their own,” thereby “forcing insurance companies to compete head-to-head for customers” and ostensibly lowering prices. He has also proposed a creation of a Guaranteed Access Plan to help ill and high-risk patients—who otherwise would find coverage very expensive or impossible to buy—obtain “coverage of last resort.” He also would not require insurers to sell policies to those with preexisting medical conditions. His message makes for nice sound bites but the devil, as always, is in the details.

The underpinning of McCain's plan involves the elimination of the tax break that employees now receive when their employer provides their health insurance. The employee would have to pay tax on the cost of an employer-provided plan for that employee or his family. With the federal dollars saved by eliminating the tax break, McCain would provide a $2,500 federal tax rebate for individuals and $5,000 per family that could be used toward the purchase of private health care policies. Sen. McCain expects that this would result in many fewer people opting for employer-sponsored health benefits.

In addition, Sen. McCain would allow the individual to purchase the health plan that best fits his or her stage in life, allowing insurers to offer an array of plans, with various benefits, copays, and deductibles. As one writer has observed, however, the downside is that “he risks leaving the poor and sick behind” (although one McCain lieutenant says the tax credit would be increased for that patient population).

Sen. Obama describes his plan as providing affordable and portable health coverage for all and lowering costs by modernizing the health care system. Specifically, he would require that no American be turned away from any insurance plan because of an illness or a preexisting condition. Americans would receive benefits similar to those that Sen. Obama and other members of Congress receive through the Federal Employees Health Benefits Program. He also calls for a National Health Insurance Exchange to assist individuals who wish to purchase a private insurance plan.

Employers that do not offer or make a “meaningful” contribution to the cost of quality health coverage for their employees would be required to contribute a percentage of payroll toward the costs of a national plan, although some small employers would be exempt from that requirement. Parents would be required to provide coverage for their children.

For physicians, Obama's plan would strengthen comparative effectiveness research by establishing an independent institute to guide reviews and studies, giving physicians and patients up-to-date clinical information. Another part of his plan would strengthen antitrust laws to prevent insurers from overcharging physicians for their malpractice insurance and would work to improve systems that eliminate errors in patient care and safety. Again, nice bullet points, but crafting all his points into a workable solution for a majority of Congress will take some doing.

In our next column, we will look at what U.S. history and health plans in other countries can teach us about health reform.

[email protected]

With Sen. Edward M. Kennedy (D-Mass.), a staunch supporter of patient rights and health care, now battling brain cancer, the subject of health care in our nation becomes all the more poignant. In a two-part series, we will consider this important issue.

Our present health care system is broken, and we need an updated model. A March 17, 2008, Fortune magazine article reported that the United States now has 47 million uninsured residents, and that, according to the Department of Health and Human Services, health care expenditures will double by 2017, to $4.3 trillion. And even though the United States is the richest country in the world, the World Health Organization recently ranked it 37th in terms of health care quality and fairness.

Health care is a top-tier issue for our presidential candidates. The American electorate demands change in the health care system. This time, whoever takes the Oval Office must ensure that change comes about so that all Americans are provided adequate health care at affordable prices.

The first question to be answered is: Should all Americans be entitled to health care? It is a simple question but one that has produced considerable debate, because we as a nation have never considered health care to be a right. Should it be? If it should not become a fundamental right, should some Americans—such as children—have health insurance coverage guaranteed to them?

The permutations are many, but there is only one right and fair choice: All Americans, including those taking overt steps to become citizens, should be provided health care. This is necessary for many of the same reasons that led to Medicare's passage in 1965: The crisis is as widespread and pervasive today as it was in the years preceding Medicare's enactment, and some type of relief is warranted on a national level, but for all U.S. citizens—not just for seniors.

Who should pay for that care is an important issue, but the answer to this question should not be the engine that drives the car. Instead, we should declare that all Americans should have access to health care, and then figure out a way to achieve that goal.

The two major-party presidential candidates, Sen. John McCain (R-Ariz.) and Sen. Barack Obama (D-Ill.) have very different approaches to the problem. Sen. McCain declares himself to be a free-market guy, believing that governmental intervention proposed in Democratic plans would be shackled with “inefficiency, irrationality, and uncontrolled costs.” A fundamental principle of his plan is that no American should be required to buy health insurance.

As noted in the Fortune article, Sen. McCain says his plan would “tax employer-sponsored health insurance, and use the money to provide tax credits (up to $5,000) for individuals and families to shop for coverage on their own,” thereby “forcing insurance companies to compete head-to-head for customers” and ostensibly lowering prices. He has also proposed a creation of a Guaranteed Access Plan to help ill and high-risk patients—who otherwise would find coverage very expensive or impossible to buy—obtain “coverage of last resort.” He also would not require insurers to sell policies to those with preexisting medical conditions. His message makes for nice sound bites but the devil, as always, is in the details.

The underpinning of McCain's plan involves the elimination of the tax break that employees now receive when their employer provides their health insurance. The employee would have to pay tax on the cost of an employer-provided plan for that employee or his family. With the federal dollars saved by eliminating the tax break, McCain would provide a $2,500 federal tax rebate for individuals and $5,000 per family that could be used toward the purchase of private health care policies. Sen. McCain expects that this would result in many fewer people opting for employer-sponsored health benefits.

In addition, Sen. McCain would allow the individual to purchase the health plan that best fits his or her stage in life, allowing insurers to offer an array of plans, with various benefits, copays, and deductibles. As one writer has observed, however, the downside is that “he risks leaving the poor and sick behind” (although one McCain lieutenant says the tax credit would be increased for that patient population).

Sen. Obama describes his plan as providing affordable and portable health coverage for all and lowering costs by modernizing the health care system. Specifically, he would require that no American be turned away from any insurance plan because of an illness or a preexisting condition. Americans would receive benefits similar to those that Sen. Obama and other members of Congress receive through the Federal Employees Health Benefits Program. He also calls for a National Health Insurance Exchange to assist individuals who wish to purchase a private insurance plan.

Employers that do not offer or make a “meaningful” contribution to the cost of quality health coverage for their employees would be required to contribute a percentage of payroll toward the costs of a national plan, although some small employers would be exempt from that requirement. Parents would be required to provide coverage for their children.

For physicians, Obama's plan would strengthen comparative effectiveness research by establishing an independent institute to guide reviews and studies, giving physicians and patients up-to-date clinical information. Another part of his plan would strengthen antitrust laws to prevent insurers from overcharging physicians for their malpractice insurance and would work to improve systems that eliminate errors in patient care and safety. Again, nice bullet points, but crafting all his points into a workable solution for a majority of Congress will take some doing.

In our next column, we will look at what U.S. history and health plans in other countries can teach us about health reform.