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The plaintiff, however, has a burden of proof prior to any other technical issues. In addition, because of the nature of the allegation, and the fact that normal members of a jury or judge cannot be expected to understand complext medical terms and procedures, expert witnesses are typically called -- usually for both sides (Uribe, 1999).
In the United States, there have been several cases that have set international precedence on what constitutes "expertise." One cannot be qualified just because of a diploma, and the expert witness must also be qualified for reliability and relevance. There are two models that attempt to do just this: 1) the Gatekeeper Model which requires a hearing with the Judge prior to the trial in which the Court considers the expert's testimony as being reliable and relevant; whether a theory is tested, peer reviewed, is there a known potential error rate, and is the expert an expert on standards controlling the care or procedure given (Reegna and Bebout, 1997). The second method requires that a certificate of merit be presented by a medical doctor or panel of doctors attesting to the accused as likely having been negligent in some aspect of the case (Uribe).
Damages in medical malpractice are rather complicated, greatly depending on the case, the view of the jury as to the damages, and whether those damages are compensatory or punative or both. Compensatory damages, for instance, are both economic and non-economic. Econonic includes potential lost wages (the earning capacity of an individual), medical and/or life care expenses. Non-economic damages (fines) are assesssed by the jury for physical or psychological harm, or both -- loss of vision in one eye, loss of a limb or organ that is not life threatening, but may reduce quality of life. Punative damages (to punish) are quite rare, and only appear in cases in which the conduct is wanton, reckless, and/or purposeful. In the case of suicide, physicians and psychiatriats are held to a different standard than in other claims. Legally, suicide is viewed as an act which terminates life. For instance, the defendant may be held negligent for another person's suicide, but not responsible for damages after this -- an exception is made for physicians. Further, simply by allowing a patient access to suicide producing products can, in some cases, be seen as malpractice (Giannini, Gianinini and Slaby, 1989).
There are some additional distinctions when discussing malpractice. From the micrcosm, a 1999 and 2006 study found that medication errors are the most common medical mistakes; harming about 1.5 million patients per annum. Most occur in long-term care and Medicare outpatient clinics -- in other words, in the areas in which there are fewer doctors to patients and the time spent with patients is lower. Most of these are settled, as are almost ae of malpractice suites that involve a medical error. Most of the expense goes to litigation and there is a 50/50 chance the entire claim will be denied. The statistics are staggering: for every dollar spent on compensation, 54 cents when to lawyers, experts, and courts -- also bumping up premiums on all sides of the equation (Studdert, Mello, Phil, Gawande, et.al., 2006).
However, the gray complication comes when one examines national statistics dealing with morbidity. Approximateluy 200,000 hospital deaths were studied between 2000-2002 were studied and found that when research demographics, mortality and economic records are applied to this population at least 1/2 were due to potentailly preventable medical errors. Additional studies showed that if this were a single disease (measles, flu, etc.) there would be a certain call for a national epidemic. The study is not without its critics, of course, and the challenge comes in what one can define as preventable death. The conclusions reached form the view that 50% of those who die while in the hospital may have lived longer had there been a higher standard of care applied (Loughran, 2004).
Because of the very nature of nursing, these statistics are both alarming and relevant. Nurses are necessarily at the front line of clinical care, therefore, they often have the basal responsibility to monitor and recommend treatment, or call a physician when conditions worsen. In most of the literature (Stencel, 2006; (Bernzweig, 1996), lack of adequate budgets and staff are blamed for a large majority of these cases. This, of course, brings up a serious issue when reviewing a nurse's responsibility and diligence regarding malpractice.
To be effective, a modern nursing must balance a precarious load: patient care vs. staffing; procedures vs. patient load; egos vs. patient need; and, unfortunately fiscal budgeting vs. appropriate care. The modern nurse must realize that there position is one of continual multiple horizontal priorities, and act accordingly. As managers, regardless of the subfield, we will be expected not only to understand the organization's budgetary concerns, but to actively manage them as well. Additionally, the management of something as simple as a schedule can have both short- and long-term impact potential in almost any setting.
Modern healthcare is a labor-intensive industry. Fiscal dollars spent on human resource management constitute a large portion of a health care organization's budget nurses and nursing support staff a large percentage of that budget. Each employee hour, improperly managed, has the potential of costing the hospital upwards of $50-60 when taken in full consideration of time, training, taxes, delays, etc. Consider if each department simply made this type of error once per week in a hospital with only 30 departments; the figure would quickly add up to a potential $100K per annum with only a minimal mistake, and certainly no positive affectations on the individual client (Fabre, 2005, 180-2).
In addition, we have noted that a nurse needs to be a manager in a broad, as well as specific, sense of the word. To be successful, a nurse manager must be adept in communications, problem solving, and ethics; and then there are the business aspects accounting, bookkeeping, budgeting, tactical and strategic planning, marketing, human resources and public relations. This is without the clinical expertise, pharmacology, and balance between patient advocacy and the harsh realities of the modern hospital or clinical environment. Thus, interpreting and acting upon a budget is a necessary tool for a successful nurse -- the greater ease at which budgets may be understood and managed will allow greater time for medical issues. Yet there still remains a conundrum between budgetary efficiency, proper medical care, and the potential for malpractice (Lumby and Picone, 2000).
This issue becomes even more important when weighing new factors of healthcare potentially on tap for the United States; as well as the systems already in place in the EU, Canada, and Australia, as well as numerous other countries that follow a British model. Malpractice insurance and awards that have helped to skyrocket costs are not possible in a health care system that is not set up as a profit-based system. Certainly, caps in damages can make a huge difference in the system, as can reforms that limit contingency fees, statutes of limitations, and require aggregious lapses in performance to actually litigate (Miller, 2006).
Medical malpractice is certainly not just an issue in the developed world, however. I United States, though, there are four procedural issues that drive up the cost of malpractice: jury trials that can use emotion to award out of control settlements; the contingency-fee system (allowing rich lawyers to self-finance litigation in the hopes of high settlements); the rule that each side must bear its own costs inducing riskier suits (in other countries the losers pay the winner's legal costs); and the extensive costs incurred during pretrial outside the direct supervision and limitation of the court. American judges frequently let juries decide whether honest mistakes are negligent, rather than looking at the situation logically and through the rule of law -- in other nations, judges are more likely to intercede and bring the process under control. In Europe, in particular, the plaintiffs must identify particular acts of negligence or show precise connections between an inferred negligent act and an actual injury. Finally, in most other countries, lost income and medical expenses are already picked up by the socialist state, in the United States these must be privately funded. Indeed, study after study shows that administering the medical malpractice system is far greater in the United States -- a system that does little if nothing to deter the prospect of an emotional or angry patient or stakeholder deciding to sue the doctor or nurse -- for whatever reason. In fact, research suggests that if a European model of discovery, proof, and taking the emotion and retribution out of the legal process over 75% of U.S. cases would never make it into the legal system (Epstein, 2009).
How serious are these costs? What affect do they have on the medical profession? It appears that they are quite…[continue]
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