Contents Legal system Introduction Criminal vs tort Tort law FAQs Malpractice Avoiding malpractice Medical record Patients' rights QUIZ

Introduction As the interface between law and medicine expands, physicians are increasingly exposed to legal issues which impact directly on their practice of medicine and their care of patients. Risk management principles, therefore, have become a 'must learn' topic essential for the survival of any practicing physician. And, while current Undergraduate and Graduate Medical Education does a superior job preparing physicians for excellence in patient care, research, and teaching of the biomedical science, it does a relatively poor job preparing physicians for legal questions, ethical issues and changes in the socioeconomic/health care reimbursement landscape. Our goal is to provide a small background to help physicians begin to think about, understand and deal with medical-legal and risk management aspects of their medical practice. With this goal in mind, a network-based computer instruction module on risk management and medical malpractice was designed to provide educational material in a fashion suited to meet the needs and time constraints of the busy physician. Our computerized module contains five sections: The Legal Setting, Malpractice, Avoiding Malpractice, The Medical Record, and Patient's Rights- each which can be browsed and digested in fifteen to thirty minutes. The Quiz, which is accessed using the first letter of your last name followed by the last four numbers of your social security number, allows for documentation, feedback and continued refinement of the educational material contained herein. Finally, the complete Risk Management Handbook, as distributed through the Office of Legal Affairs and Risk Management at Yale-New Haven Hospital in 1996, is available on-line as a reference. We hope that your experience with this teaching module is educational, stimulating and enjoyable. Criminal Law vs. Tort Law Before exploring risk management principles it is necessary to have a basic understanding of the current U.S. legal system. The U.S. court system is divided into three separate sections based on the type of law considered: Criminal Law, Civil or Tort Law, and Administrative Law. Criminal Law... Criminal charges, which are brought against individuals or groups by the state (the government), are based in laws arising from three sources... Constitutional Law - which arises from the Federal and State Constitutions Statutory Law - which is derived from statutes enacted by the State or Federal Government. Common Law - which arises (at least partially) from the opinions penned in actual court cases. Civil or Tort Law.... The Civil Court system provides a mechanism for individuals, groups or the state to recover damages when a tort (French for 'wrong') is committed against a person(s) or property. Some Civil wrongs (or torts) are defined in state statutes; however, most tort cases are brought claiming negligence, which has its basis primarily in common law. Medical malpractice (which is defined as professional negligence in a medical setting) cases are heard in the Civil Court system. Administrative Law... deals with the implementation of governmental legislation through the creation and administration of agencies such as the Internal Revenue Service, The Environmental Protection Agency, etc., and will not be considered in much depth here. A large part of any medical-legal or risk management discussion is medical malpractice. A patient who sues for medical malpractice is claiming the tort of professional negligence (types of torts are more fully explored in the next section). And professional negligence in the health care setting is defined as the departure, either by the acts or omissions of a health care provider, from accepted standards of care. Some Examples... So, how does medical malpractice (a Civil Law concern) interface with Criminal Law and the Criminal Court system? Stated simply, 'malpractice' is a claim of professional negligence and is tried in the Civil Courts, whereas criminal charges are made by the state and are tried in the Criminal Courts. How these two court systems coexist can be illustrated by an example: O.J. Simpson was found 'not guilty' in a criminal court. However, the victims' families brought a civil suit to redress the loss (the 'tort') they believed was caused by Mr. Simpson. He was subsequently found guilty of 'wrongful death' in civil court. How did this happen? First, the burden of proof in a criminal case, where one's liberty and perhaps one's life is at stake, is greater than in a civil case where only one's finances are at risk. In fact, criminal cases must be proven 'beyond a reasonable doubt', while tort and other civil wrongs require only a 'preponderance of evidence'. Second, because civil and criminal courts are different (and consider different paradigms of law), it is possible to be found innocent in one court and guilty in another. One of the most concerning recent trends in medical risk management is the move toward bringing criminal charges against physicians for issues previously only considered as torts in civil court. A recent example: An oral surgeon administers sedation in his office to an adolescent while performing a tooth extraction. The adolescent has a reaction to the sedation, aspirates and arrests. The Surgeon begins CPR and calls 911, but the adolescent doesn't survive. The community was so upset with this case that, in addition to the civil lawsuit for professional negligence (malpractice) brought by the patient's parents, the district attorney (as a representative of the community) charged the physician with the crime of manslaughter (despite the fact that the physician was trained and licensed to administer sedation and adhered to all guidelines for equipment, drug administration and monitoring in his office).