1.) The issue I chose to write about was medical malpractice. Some people believe that the laws regarding malpractice are far too strict and inhibilitate physicians from performing at their highest level, because they are constanly playing defense. The other belief is that these laws are too relaxed and malpractice insurance covers up too much of doctors mistakes.2.) The ethos present in this topic are clearly a large part of the debate. Whenever someone files a malpractice suit against doctors, they are claiming that the doctors directly resulted in worsening the condition of the patient. This involves ethos because the doctors are left to decipher the thin line between what is ethical and what is unethical in order to avoid lawsuits. This topic applys to pathos because readers can all relate to having medical care, because everyone has been to the doctor sometime in their lives. Also, when reading about this topic, people tend to put themselves in a situation where they are the victim of malpractice, so it creates a tie between them and the issue. Logos is present in this issue because doctors must face a legal jury and court in order to fight malpractice cases, so the routine is very formal and involves people who must be knowledgeable in order to win their argument. 3.) A) One opinion is held by someone whose family member died from a medical error in a hospital. This author therefore holds the opinon that malpractice laws are far to leniant and doctors are allowed to get away with too much. Also, he stresses the fact that compensation from malpractice cases is not enough and will never undo what has been done.
B) A second opinion about malpractice laws is written by an attorney who works with medical disputes. He writes that malpractice laws are too harsh, and physicians are constantly thinking of what could go wrong to cause them a law suit and therefore not performing to their full abilities. This means that patients could be receiving better care, but the risk of doctors being sued for unfair malpractice is prohibiting them from doing so.
C) A third opinion involving malpractice laws is that factors other than doctors are contributing to mistakes in medicine. Factors such as interactions with other people or gene history are examples of these factors.
Melissa Walser
Annotated Bibliography
English 102
28 February 2009
Medical Malpractice: An Annotated Bibliography
Kapp, Marshall B. Our Hands Are Tied: Legal Tension and Medical Ethics. Auburn
House: Westport, CT. 1998.
This book was written by an attorney, Marshall Kapp, who worked in a medical education setting for several years. Since the author actually experienced the content of his text first hand, the material is therefore very reliable and precise, since he actually experienced the topics he brings up. Primarily, the author writes about the general issue of medical malpractice, and how it is something that has been around for forever; however, lately the number of claims filed against medical malpractice has been rapidly increasing. Kapp then describes the claim of his book, which is to tell readers that physicians’ medical abilities are being compromised due to the harsh laws being forced onto them by medical malpractice. Because the ethics of medicine are hard lines to distinguish versus the clear lines of the law, doctors nowadays are often turning into “defense mode” in order to avoid any sort of potential law suit against them, and therefore compromising the chances of a patient who is ill.
Overall, Kapp defends physicians by examining how the laws against medical malpractice are too harsh and are ultimately causing doctors to perform below their abilities in order to play it safe. Coming from a legal standpoint, Kapp is very knowledgeable on what is legal and illegal; therefore, his claims are more credible since he is educated on the topic.
I plan to use this book to help form one opinion on medical malpractice, which is to show that the laws are too harsh are ultimately compromising doctors abilities.
Sloan, Frank. Bovbjerg, Randall. Githens, Penny. Insuring Medical Malpractice.
Oxford University Press: New York, NY. 1991.
This book examines different aspects of malpractice insurance policies held by different medical firms throughout the years. The introduction begins by contrasting malpractice laws held in the 1960s compared to those in place in the 1980s, and lastly those laws held in place today, and shows the immense differences that have accompanied with time. Most importantly, this book attempts to explain the differences in malpractice insurance laws that have come about throughout time. The text makes a claim against the large number of laws present in medicine today and defends the time when malpractice laws were small in number
Furthermore, the book also takes into account the individual law firms that employ the different stipulations of malpractice laws. The text compares different firms and examines how each one competes with each other, and in turn what this does to the different policies each one creates for their individual health care beneficiaries.
I plan to use the information provided in this book to show how competition between law firms creates some malpractice laws that ultimately cause doctors to perform much differently in order to avoid breaking a law or getting a lawsuit against them.
Studdert, David. "Management or Avoidance of Medical Malpractice Crises?" Chest.
November 2008. February 2008.
http://www.chestjournal.org/content/134/5/901.full.pdf+htmlThis article, written rather recently, describes how nowadays insurance premiums are starting to flatten out again, indicating that the third medical malpractice crisis within the last thirty-five years seems to be passing. The article writes about how within the last few years the insurance against medical malpractice was skyrocketing and becoming increasingly unreasonable like it has done several times in the past; however, this time the crisis was not as intense as before. Furthermore, the article goes on to examine what, if anything, we have learned after this third malpractice crisis.
The article writes of how physicians are demanding that the insurance policies will be modified so that it will be harder for patients to sue doctors for unreasonable ethics and when there is no true medical malpractice being performed. Meanwhile, some lawyers still fight for the policies to be harsh, to ensure that doctors cannot get away with recklessness. I plan to use information from this article to show both the physicians’ and the opposing lawyers’ arguments towards new medical malpractice policies.
Bogner, Marilyn. Human Error in Medicine. Lawrence Erlbaum Associates: Hillsdale, NJ
1994.
The author of this book is an employee of the United States Food and Drug Administration, which shows that she has credibility and knowledge on the subject of drug misuse. The introduction of her book very simply describes the relationship that accompanies a mistake, and how that mistake is usually offloaded onto the person “in charge”. She states that the purpose of her book is to create motivation for decreasing the number of medical errors that occur through health care by examining the factors that could be responsible for the mistake.
The author writes about the different conditions that could possibly cause fatal experiences to a patient receiving care, and explores other options than simply blaming the doctor for the cause of death or injury to the patient. For example, she talks about the several interactions a patient experiences while they are receiving care in a facility such as a hospital. Not only does the patient interact with the doctor, but also several nurses and any visitors or other patients in the hospital. She examines how all of these factors could contribute to a patients’ condition worsening, not just a doctor making a mistake.
I will use different points made by Bogner in her book to help support the opinion that doctors are not fully responsible when they cannot successfully alleviate all symptoms of a sick patient.
Hogan, Neal. Unhealed Wounds: Medical Malpractice in the Twentieth Century. LFB
Scholarly Publishing LLC: New York, NY 2003.
This article begins by describing the history of malpractice. Like several other texts, the article talks about how malpractice in the beginning of the twentieth century was hardly ever an issue, but has become increasingly important throughout the years. This article effectively tells the history of malpractice and shows how and why it has become as important as it is today. Throughout time, many revisions have been done on malpractice laws in order to avoid anything unfair slipping through the cracks. For example, many years ago patients were suing doctors because they did not cure them of their sickness, when the doctors had said that they would. Although this was unfair because doctors can never be 100% sure of what they can do, the patients won the case and therefore malpractice laws had to be clearly established.
The difference in this article and the others is that this article is building a claim against doctors, by saying that their defensive malpractice insurance allow them to have too much room for mistake, and not enough pressure for accuracy. This article was written by someone who lost a parent to a medical error, therefore the text is written with passion.
I plan to use this article to help build the opinion of those who believe that physicians are getting off too easily by having a insurance security blanket that allows them to make mistakes without reaping much detriment.
Studdert, David. Mello, Michelle. Brennan, Troyen. “Medical Malpractice”. The New
England Journal of Medicine. Vol: 350 No: 3. January 15, 2004.
This article stressed the definition of medical malpractice and gave me a better understanding of the purpose and goals of it. Malpractice law is a law of tort, meaning that it is a law pertaining to personal injury. Therefore in order for someone to file a malpractice lawsuit, they must prove that the defendant owed them something that they failed to accomplish. In order for a court to decide whether, in this case, a physician owed someone a certain care they must inquire the behavior of other physicians, and decide what “common actions” other doctors would have taken in the same situation. These common actions and behaviors therefore define what makes up malpractice laws.
This article gave me a clearer definition of the purpose of having malpractice laws and how courts decided whether a certain behavior was in fact malpractice behavior or not. I will use the information gained from this article to help define what malpractice is and how it is legally accepted.
Danzon, Patricia. “The Frequency and Severity of Medical Malpractice Claims.” Journal
of Law and Economics. Vol. 27, No. 1. April 1994. pp. 115-148
This article directly examines the frequencies and severity of malpractice cases in the past 30 years. By using several graphs and tables, the information shows that since the 1970s there has been a very large increase in the amount of cases that target malpractice. This article explained this trend by taking several factors into account. First off, for a case to be considered as malpractice, the victim must prove that they were personally injured due to a physician’s actions. The increase of cases could be explained by the increase in scope of liability of medical providers, meaning that doctors are becoming more responsible for taking different actions. The article gives several examples of the changes that have been made, making health care providers more at risk for being sued for malpractice. For example, hospitals are now completely liable for the actions of their employees, instead of the individual employee.
Using this article will benefit my paper because it gives direct examples of how malpractice laws have changed over the years, and attempts to explain the increase of malpractices cases since the 1970s. The information in this article will also help in determining what trends are likely to happen in the future, and what people have learned from the malpractice crises in the past.
Danzon, Patricia. “Liability for Medical Malpractice.” The Journal of Economic
Perspectives. Vol. 5 No. 3. Summer 1991. pp 51-69
This article goes into detail about the logistics of liability. This article was interesting to me not only because the points being brought up made sense, but also because each point that was made were unlike those in other sources. The article talks about how unlike other goods, medical services are usually infrequently purchased, and are patient-specific. For example, every person who gets a nose job will be treated differently, depending on their appearance, bone structure and muscle makeup; therefore, since medical treatments are not homogenous goods, a general consensus is not enough to reject a malpractice claim. The article also talks about how patients generally underestimate the risks in some situations when they are receiving care, and don’t realize this until it’s too late, which in turn causes them to think they should have received more knowledge on the subject, and blame the doctors for this.
Another point brought up by this article is the fact that most people have insurance that would cover a large part of medical treatment. That means that doctors will always get paid for their services, which would imply they would act skillfully in order to receive their paycheck; however, some argue that this would cause physicians to act carelessly knowing they would get paid nevertheless.
This article brings up several different arguments and testifies each side of the argument, which will help in establishing different points of view in my exploratory paper.