Escaping the Shadow of Malpractice Law
نویسنده
چکیده
Medical malpractice doctrine is one of the core issues in the current debate over healthcare reform in the United States. For decades now, it has been universally accepted that the threat or reality of formal litigation stemming from—or at least claiming—malpractice has been the single most important factor shaping the medico–legal arena. While conventional wisdom has it that patient safety is and should be our paramount concern, the proliferation of malpractice claims has dramatically increased the costs of medical care and has adversely affected its quality due to the emergence of “defensive medicine” and an ensuing “brain drain” from certain medical specialties. Based on empirical findings, this article argues that this view is at once overly broad and overly narrow. First, the preoccupation with malpractice suits has served to overshadow the importance of other, more common disputes that have a profound impact on the medical environment. Second, much of the discourse has tended to overlook the pernicious byproduct of malpractice law that I term “defensive communication”—a mode of interaction designed to protect practitioners from malpractice suits, but which, in fact, breeds conflict and serves as a barrier to resolution efforts. Both the importance of non-malpractice disputes and the spread of defensive communication have often gone unnoticed in the legal and medical communities. Our prevailing understanding of the daily reality of doctor–patient relations has therefore been incomplete in two central
منابع مشابه
Medical error and its proceeding in French law
In French law, medical error proceeding has undergone many developments, and at present in this country a comprehensive medical compensation system is designed to address both patient rights and physician concerns about the costs of compensation. Contrary to traditional French law and the general classification of medical services in a public or private hospital, a new legal regime has been ado...
متن کاملUnreasonable Care
This paper examines “doctrinal feedback” in negligence law, and specifically in medical malpractice. Doctrinal feedback is an organic, reiterative process that causes inadvertent and inadvisable changes in both law and practice. It occurs when: (1) the ambiguity of the applicable legal standard prompts those it governs to behave overcautiously, so as to avoid the gray areas of liability; (2) th...
متن کاملResolving malpractice disputes: imaging the jury's shadow.
The trial went very poorly from the beginning. The jury was comprised of about an even split of men/women and black/whites-five jurors did not have a high school education and three slept through goodly portions of the trial. The plaintiff's lawyer was very aggressive .... It was a fiasco from beginning to end. The judge was clearly angry at our failure to settle and talked with us three times ...
متن کاملThe Shadow Economy and Globalization: A Comparison Between Difference GMM and System GMM Approaches
In a general classification, the economy of any country is divided into two parts of official and invisible economies. Invisible activities drop outside the scope of the law and official economy and strongly affect socioeconomic development and the formal sector of all countries.These activities which are known under various titles including the shadow economy are influenced by various factors....
متن کامل