Medical Insurance Law and Medical Negligence - Coursework Example

Insurance Law Customer’s Name Customer’s Grade Course Customer tutor’s Name 11th October, 2010 Insurance Law It’s well known that insurers are the best risk takers. In as much as most insurance firms work within some tabulated risks, it reaches a point where too much risk becomes questionable. With the developments by insurers to include medical and health matters in their wide list of insurable patterns, questions arise on what extent to risk. It’s therefore obvious that most insurers experience explosiveness when it comes to medical insurances. The definition of professional as a term in generally is referred to people whose career demands are far-reaching academic training and who provide services of extremely high quality. In an attempt to mention the usage of professional negligence, to a broader perspective, one may argue that it is ambiguous. How can one make a fault and then still be referred to as a professional? It therefore outwits the definition of professionalism in the sense that professional should never make faults1. All in all, carelessness might best be used to tell the assumed meaning of medical negligence2. Persons who are involved in any professions, businesses, and trades which require specialized skill, knowledge, or experience, and offer their services to public and end up falling prey to laxity whether common or uncommon, can be term to be professionally negligent3. Medical negligence involves all the malpractices that occur in a medical or health situation involving a medical practitioner and a patient in question. At time it’s very difficult to term an event as a medical negligence or rather an issue. There is no standard way of measuring a fault for instance, in quantity or in quantity, as one may put it, as a medical negligence, hence, when an abnormality appears to occur where there is involvement of insurers, a lot of questions arise. Every day, a number of medical malpractice cases are filed. Many medical practitioners and medical firms find themselves in queer financial positions after their so called customers accuse them of negligence. Insurance firms end up feeling the financial pinch as the cost of defending such cases are high and still threatening to go higher. For example, according to Schwartz, (2000)4, “doctors from Southern California who had been faced with high insurance costs went on strike; most of them downed their tools except for emergency cases. And a lot of booming business was reported in emergency rooms”. Schwartz, (2000)5 also note that, “the strike was to protest against malpractice insurance premium increase of 327 percent (the insurance companies had originally asked for 487 percent) and when the payment deadline was due, a good number of doctors paid but a small number didn’t pay and ended up informing their patients that they were (going bear)’”. According to the measure enacted by New Zealand Parliament to check the damages for wrongs and injuries in New Zealand (1967)6 act, “the most fundamental explanation was to put an end to tort recuperation by statute and to have it replaced it by a complete system of restricted financial payment for all "personal injuries by accident". Tightening the standards of competence among doctors and other medical practitioners is one of the much legislation passed. Research done by the National Association of Insurance Commissioners indicated that, contrary to the popular belief, most malpractice claims were made to highly trained, certified specialists and particularly those found in hospital settings. Hospitals, too, experienced a financial hit by the increased cost of malpractice insurance. According to a survey taken in June by the Chicago Tribune, showed that, “Michael Reese Hospital was spending $ four million a year for insurance that in 1974-1975 had cost only $500,000”7. The research also showed that, “it was estimated that the portion of the hospital's room rate going to pay for insurance had risen from $3 to $16.50 a day, the Hospitals hoped that new legislation in Illinois would give some relief”8. The great upsurge in malpractice premiums has caused the early retirement of many doctors, has kept some young doctors from practicing in states were malpractice suits are common, and has caused doctors to switch from high-risk specialties into those with less exposure to suit9. Coming to think of some specified types of disease insurance, insurers get a hard task in defining terms needed for compensation. Taking an example of the deadly swine flu, some time back it was hardly diagnosed till lately. Recruits at Fort Dix, N.J., reported to the infirmary with what appeared to be bad colds10. After further investigation, in cooperation with the federal Center for Disease Control in Atlanta, there was indication that the recruits had so-called swine influenza, a relative of the Spanish flu that had broken out in the closing days of World War I and killed 500,000 persons in the United States and 20 million around the world in 1918 and 191911. The four largest U.S. drug firms began work to prepare the vaccine. In June, however, the Warner-Lambert Company, which was expected to supply half the vaccine, notified the federal government that it was losing its liability insurance on the vaccine program12. The other companies reported they too were having difficulty with their insurance programs. It was feared by the insurers that they would face not just the usual quality control and related problems involved in such a large crash program, but that the controversial nature of the mass inoculation drive would lead to the filing of a great number of lawsuits13. The insurers estimated that it would cost them $25 billion in legal expenses just to defend the suits, in addition to any monetary settlements awarded by the courts. The pharmaceutical companies asked for governmental intervention14. The swine flu insurance problem is, essentially, one of product liability. Increasingly, consumers have turned to courts to obtain compensations for injury resulting from purchased goods or services. A recent study estimated that about 1 million product liability cases were filed this year15. As in the swine flu situation, just the cost of appearing in court to answer the suits can be a staggering sum for the insurers. Several proposals have been made to deal with this cost problem, including the substitution of arbitration for jury determination of awards; the establishment of a relatively short period during which claims could be made; and the elimination or restriction of the contingent fee basis for paying lawyers. It has been charged that this fee system, under which lawyers receive payment, only if they win a case, leads some lawyers to encourage suits. In matters of reproductive health, a number of wrongful birth actions aim at compensating litigants who are without due care and attention deprived byte health workers16. In the United Kingdom, admission to safe and lawful abortion is essential to the accomplishment and unlawful birth claims.17 Even among the judges themselves, confusion always arises about the legality of abortion, thus condoning medical negligence. At some point, suggestions from super clinics argue out that clinicians and medics are not required to provide the same procedure to pregnant women just like the other patients18. With these turn of events, the legislation can become unreasonable and health workers can act inattentively when patients for reproductive health issues lack secure legal foundation19. A number of laws have been enacted by several states which change existing laws associated to torts particularly to merchandise legal responsibility conduct20. This is done in an effort to minimize the amount of expenditure by the injured individuals due to the malpractice of the medics and other health workers under punitive damages and compensation21. There are several measurers such as; a. Making the argument of liability easier. b. rising the evidence that an offended party must make available in order to be compensated c. reduction of the duration of the time for the injured party availing the information to the courts In the year nineteen ninety six the United States congress enforced tort reform bill which was aimed at controlling all the negligence practices and had provisions which were similar to those in the national statutes22. The bill among other aspects included “a statute of repose”, which is a requirement that exerts the complainant from bringing a case if a certain duration of time has elapsed since the item for consumption was sold, despite of when the injury was instituted23. The stipulation would have harshly controlled merchandise liability actions. In fractions since the act powerfully controlled the rights of possible plaintiffs24. When in court, some filed cases end up been seen as not a neglect. For example, failure to remove a sponge at conclusion of surgery may not be seen as neglect. In case of an appeal, the weight of the evidence produced requires causation and damages25. The Australian perspective doesn’t have its torts defined within specific statue or legislation. In a way, it has evolved through the common law and judge-made-law26. Despite this, ach state creates legislation that overrides the common law in aspects of defamation, neglect and personal injuries. A lot of developments have thus been done including creation of position of decision making House of Lords prearranged in the time in which appeals rested from the Privy Council. The courts are also entitled to seek sustainable support and leadership from the way of thinking based assuredly on the great common law courts. In terms of medical negligence, the Australian law Australian law focuses mainly on law students, policy makers in health law, educating health care professionals and canvassing current topical issues (such as genetic technologies, end of life care and health privacy)27. In Australia, there is a Tort law that is mostly built on an arm of precedents. To a slightly minor level, it also encompasses rules that define its whole function. “A tort being a civil wrong” or a deviation of the norms of contract, the latter law is concerned with how it can affect or rather interfere with the relationship between individuals in a way to correct28. The existence of the tort law is thus due to, and also the existence of a legal framework status from the common law. A tort has to be defined and accepted with an existing court system though; it has no limitations and should ever be adaptable to all modern and changing circumstances as well as raising issues. The torts in Australian law have sharp distinctions from those in the UK29. Accordingly, in a communal place the complainant has to establish how there was a 'substantial’ or 'direct' interference with their individual independence30. Infringe of non-delegable responsibility is not mechanical on establishing a way forward against the tort fiasco. Blemish on the side of the contracting party has to be justified. In cases of negligence or inattention, the Australian common law since the year two thousands and two has been using the principle of “salient features” to decide whether a responsibility of care have to be forced on the defendant31. On the other hand, the Unite Kingdom common law utilizes a three-stage test in its procedures. The rationale of limitation time frames as given by an author known as McHugh gives an illustration of the legislative adjustments of torts in which several limitation of Acts which prescribed a time frame within which a case on litigation could start. According to McHugh, the later is a legal basis for the clam after the period lapses. 32 McHugh went ahead to explain how the limitation of period was important to be looked into. Some of his arguments included; as time elapses, the right evidence might be lost. McHugh also argues that it is oppressive to a defendant to give a nod to an action to be instituted after the conditions which caused it had already passed away and vanished. he Limitation time frames also gives certain individuals for example business men and even people involved in the insurance industry to organize their litigation in order to defend the liabilities which they have caused within a certain specific period of time. The public interest is an important aspect and it is sometime needed to act as a driving force towards the quick hearing of liability cases. As a general rule, it can be noted that, the limitation time frame for property damage suits has been 6b years in several states which uses common law.33 Personal injuries cases have ranged from two year to three years in the United Kingdom for example and 3 years in South Australia.34 All Australian states have therefore adopted a uniform time frame for the defamation laws from the year two thousand and six.35 With the above facts about how torts work and their establishment, medical negligence cases appear to be jurisdiction by the tort laws. From their structure, the cases thus bring lots of complication not only to the judges, but also to the accused and the accuser. Before an individual decides to file a case concerning medical negligence that in one way or another led to a stipulated loss of life, loss of time, loss of money or any other related loss as one may put it, a lot of upcoming challenges must be thought of. Insurers on one hand tend to feel the frustration especially when asked to compensate the professional who obviously have very high rates of indemnity. Questions that rise in cases dealing with medical negligence include time taken between filling the case and time of the happening, the proof and the sustainability of the verification, the degree of the participation by the medical practitioner, the signing of the medical care risk form and also the professionalism of the medical practitioner. The preparation strategy also awakens a number of questions. This is essentially because of the quantity of witnesses during the negligent act and proving that actually there was negligence in the time of, as a doctor might put it, saving a life. Therefore, finding expert witnesses is a problem. With the example of Australian medical liability, it’s a thoughtful process that even requires the use of doctors’ guide books36. In case there is fading evidence due to the time line of the case and that the defendant has no other way of proving negligence, that’s the only time when the insurer will be able to get a breath of relief37. According to a research by Australian Institute of Health and Welfare which was posted on their website, a number of the injured individuals in almost three hundred and forty thousands admissions in Australian hospitals in the years two thousands and four and the year two thousands and five caused by the errors emanating from the medical practices other related mishaps38. More than two hundred and eighteen cases were due to complications after surgery, pain and even broken limbs or unhealed wounds.39 According to the research, “extreme side effects as a result of the medication were observed in ninety thousands cases which were admitted in the hospitals a sixty six thousands patients suffered from the complications which resulted from the errors40. The Health and Welfare institute in Australia reported that, “the number of admissions in which these incidents eventually occurred rose by 20,000 cases in the past year from the former 319,321cases in 2003 and 339,551 in 2004”41. The institute also reported that, “most of those happenings, known as extreme events, were dominated in the public hospitals rather than in private hospitals, where there were two hundreds and thirty eight thousands three hundreds and eighty eight cases in every 5.6 percent of every public hospital admissions while 3.7 percent of cases were reported”42. According to ACT, “South Australia, Victoria, Norfolk Island and Western Australia showed a broad event of patient injury incidents, these incidences among others included falls, infections, and paralysis a result of medication or use of medical devices”43. In relations to these above happenings, which for sure some of them are very preventable, and then one can ask why there seems to be lack of professionalism and carefulness among the health care givers. In other words, when a medical practitioner fails to be responsible by attending to you responsibly and thus on whatever circumstances the practitioner fails to see that the actions taken could in one way or another injure you, then that is a medical negligence44. All those people who, after being attended to by a medical practitioner or medical practitioners, end up suffering from medical negligence are entitled to indemnity for the injuries, disabilities and even loss45. Not all mistakes done in hospitals are as a result of negligent medical practitioners as some negligence to some extent might come from the patients. In a case where advise was involved after medication, for example, a patient is told to stop taking alcohol completely and he or she still goes ahead to ignore the advice and later he or she develops complication, that negligence can’t be treated as coming from the medical practitioners46. According to Australian solicitors/lawyers (2000)47 in their report titled health care related errors, and medical negligence lists the conditions among others as; Lack of referrals by a specialist Lack of provision of the right treatment for the condition diagnosed Lack of competence to timely diagnose a condition or even delaying it Lack of following informed advise of the risks of treatment Lack of performance of surgery with required care and skills Lack of reporting of the correct test results Lack of post-operative care reports due to lack of skill and competence of the executer of this service. In the "Medical lawsuits soar Sun Herald recorded that, “lawsuits against medical practitioners in New South Wales and the densely populated parts of Australian had increased in four folds in the past decade, therefore there was no doubt that in the Britain, United States, Australia and other countries medical negligence cases had increased”.48 Contradictory reports arose from Australia as depicted by a speech from Dr Kerryn the Australian President for Medical Association, in a seminar he said, “Tort law restructuring is a vital issue for the ... Australian medical fraternity, and it would not be an exaggeration to indicate that the condition has gotten to a point of no return in the past 18 months there has been an upsurge call for action amongst the public to have the medical association in association with the state to a rise and act in solving medical cover premiums”49.  In the year two thousands and nine there was a call for action to have a full subscription emanating from all the members to facilitate in a smooth running and monitoring of the problem. The association since then has achieved situations where by clinicians in several fields have been charged with the obligation of controlling the unrealistic premium load50.  Although such kind of arrangements cannot be sustainable for a long time and even now the resultant effects are being felt.  It is even known that several obstetricians are now quieting their job51.  The very first group to do so was the rural obstetricians and these professionals are always very skilled and hence not easily replaced and so the communities in the affected rural areas are already feeling the impact of their quitting52. If we analyse this trends for example in a country such as the USA, we can easily note that the USA’s experience is a prediction of things the kind of scenario we expect to come soon to Australia. The indication of the Law of Medical carelessness is very different in all the states. For example the Australian law is written as case laws or judicial proceedings and also in the act of parliament53. A research done earlier on to try to get to know why medical negligence happens highlighted among others as54; The health profession owing the client duty of care The health profession violated that duty of care Due to the latter omission, the client was exposed to emotional, physical, and economic harm. The doctors are always assigned duty of care whenever they receive a patient, no matter the nature of the complication brought by the patient55. A doctor therefore owes the patient both physical and mental care. This can be best described as duty to care or duty of care. Acts of omission should therefore be taken care of in all manners possible as they will of course rise to causing pain or suffering in the patient, either physically or even emotionally56. Failure to adhere to this leads medical practitioners to face the law with accusations of negligence. It reaches a point where the extent or manner of negligence can give rise to other accusations such as man-slaughter or even crime57. If it has been found that a person has breached the duty of care, the court begins starts by assessing into details the competence of the practitioner in terms of his professionalism58. I.e. whether, it’s a doctor, nurse, dentist, etc. in as much as the medical practitioners should not perfect but rather should have skills and in this case, professional skills which should be put in practice in the safest of ways possible to avoid at all instances all the arising questions59. With reference from Australian solicitors/lawyers report titled ‘Medical error, Hospital error, adverse events & Medical negligence,’ implies that, “A plaintiff must show that he or she was exposed to injury or damage caused by the defendant and that just as one individual is able to institute harm to another individual, will not be subjected to the law if he or she is not proven to be negligent”60. An individual can happen to be negligent, but cannot be liable to law if there is no justifiable damage that is caused61. The quantity of costs for compensation given because of an act of negligence which can constitute a real case is usually referred to us as "damages” and the damages might be compensated for62: loss of income expenses due to treatment the amount of appliances to be executed because of someone becoming physical disable The kind of domestic assistance given as a result of medical negligence Accrued pain and suffering. Expert who run the indemnity cover claims sometimes end up taking the money of beneficiaries to cover for mistakes which were or rather are absolutely not necessary to be covered. For instance, if a contractor makes a mistake and afterwards goes into bankruptcy then there will be a problem of the complainant to be able to get compensated. In that case, all insurers need to protect their assets, be it the professionals from al ground, not online those from the medical field but all other professional who act as their business assets63. In addition, all practices, and even events, need to be viewed and reviewed to ensure that proper argument is brought forth so as to limit the indemnity as a matter of course and have a renewal at all appropriate intervals. According to Griffiths & Armour specialize in indemnity insurance, “The incidence of claims exceeding the limit of indemnity is already much higher than it used to be and is a trend which is set to continue and that consultants whose liability exceeds their insurance have to fund the balance out of their own assets to the extent they can”64. They also argue that, “insurers should also bear in mind that effective risk management is more of preventing spurious claims and as much as possible avoiding genuine and preventable errors that may occur at any instance. Insurers also need to put proper measures in terms of effective communication to their clients or, and even their marketers, sound advice based both on technical knowledge and experiences”65. The consultants exposure to liability is vital especially in the case of the client getting a hint that he or she can get more advice from without the alleged consultants, hence, if such a client goes ahead to get advice elsewhere, whether on consultation fees or not, complications will arise in a number of ways66. Such a case will eventually bring a lot of complexities and difficulties in trying to establish a clear like of what the latter should have done in case of more questions67. Failure to demonstrate a certain level of professionalism expected then they can be held liable in a court of law for any harm, damage or loss they cause to another person or business. Despite this, all medical practitioners need a somewhat different special type of insurance. All in all, something props up about who to and who not to be considered in matters of professional indemnity68. All other professionals should also be considered for whichever indemnity claims and actions; talk of engineers, clerks, business man and women, dentists and so on69. With malpractice insurances, they at times argue that nobody should at any point questions your professionalism, but as a true professional, you should know that it is impossible to be everywhere and personally be engaged in every job, either big or small. Finally, in as much as insurers cry fault of feeling explosiveness in compensating for professional medical negligence, its arguable that it should not be a reason to put extremely stern measures or rather treat medical practitioners with too much specialty by hiking the rates as it has been seen in many countries70. The risk of insurers should be approached in the same way they approach the risk of insuring vehicles and other properties. The essence of most insurers is to make profits71. Just like any business, they should not feel exploited if the loss has come from compensating the medical practitioners. The insurers need to make accommodative policies, to accommodate both their firms and also their clients. From this, it’s not obvious that if a malpractice has been reported, there is compensation. The torts governing medical malpractice are clearly stipulated and are still been amended now and then and so the insurers need not to complain though they want to defend their businesses in all ways possible72. The Medicine and Law Conference of the year two thousands which was held in the town of Melbourne from the fifth to the sixth of April that same year clearly stipulated the outlining issues in different parts of the globe where the common law system causes the 2 professions into litigious conflict.73 In conclusion it can be noted that in case an individual becomes a victim of medical negligence then the individual must seek for the useful information which will give him or her rational way of addressing the issue. The victim can contact patient liaison services or the complaint advocacy services and if this still does not help then he or she can rest his or her case by seeking for an independent review or even go a head and conduct a ‘health ombudsman’ appeal. At the solicitor who has a specialty in medical matters. References Australian institute of health and welfare. (2006). Australian hospital statistics 2004-05. Health services series no. 26. Brehw J., G., & Hanson, F. (2003). The Legal Focus Establishment. Belmont, CA: Thomson          Phyllings. California Judges. (2000). Association “Judicial Liability Update: Are you Covered?" The Bench Vol. 40 No 1-5. Chicago Tribune. (1980). The Health Care Market: Can hospitals survive? Harvard Business Review, 100-112. Donna Dickenson. (1997). Reproduction, Ethics and the Law: Feminist Perspectives. Journal of Medical Ethics, Vol. 23 NO.5 pp319-322. Great Britain: European Union Committee. (2005). Completing the Internal Market in Services: 6th Report of Session 2005-06; Report with Evidence. UK: The Stationery Office. Justo Patrick. (2009). The last great swine flu epidemic. Salon Daily. Kerry Phelps, 12 February (2000). Tort Law Reform. Sydney. Ashtabula: Ash & P Printers. Louisell G., Williams H., (2006). Res Ipsa Loquitur- Its Future in Medical Malpractice Case.s California Law Reviews 48(2) 252-270. Phoebe L., (2002). Journal of the American Dental Association; 141:195-203. BMJ Publishing Group. (1997 Oct), Journal of Medical Ethics Vol. 23, No. 5 pp. 319-322. Schwartz, H. (2000). Societal responsibility for malpractice. The Milbankmemorial fund quarterly, 54(4) 469-488. T Harris, 11 August (2000). "Adding insult to injury", Australian Financial Review, pp. 82. Thomson C., Ward J., (1999). The Courts Expect the Impossible. Boston: Verlly & Dans. Read More