Pediatric Medicolegal Education in the 21st Century

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COMMENTARY

Pediatric Medicolegal Education in the 21st Century

Gary N. McAbee, DO, JD, FAAP, Chair (2004 –2008), Charles Deitschel, MD, FAAP, Chair (2000 –2004), Jan Berger, MD, MJ, FAAP, Chair (1996 –2000)

Committee on Medical Liability and Risk Management, American Academy of Pediatrics

The authors have indicated they have no ﬁnancial relationships relevant to this article to disclose.

T

HE MOST recent medical malpractice crisis affecting the nation has underscored the need for improved medicolegal education for pediatric practitioners at all levels of training and experience. Besides issues related to malpractice, the increase in enforcement of state and federal regulatory laws,1_{regulations relating to hospital}

privileges and employment contracts,2_{and an evolving}

and widening oversight by state licensing boards3 _has

escalated an imperative to expand on current educa-tional efforts. Pediatric educators must support the no-tion that a sound foundano-tion in medicolegal issues, along with continuing education in these areas, will be as integral to a successful practitioner as is competence in medical diagnosis and management. A solid basis in medicolegal principles is not simply self-serving for the practitioner to reduce the risk of a lawsuit, but good risk management can contribute to improved patient safety and quality of care.4

Each of the periodic surveys on medical liability com-pleted since 1987 by fellows of the American Academy of Pediatrics (AAP) has found that 30% of pediatricians will be sued during their careers, with an average of 1.7 lawsuits per pediatrician.5 _{Ten percent of pediatricians}

reported being sued as interns/residents, which can have ramifications for future managed care and hospital cre-dentialing because of the mandatory reporting to the National Practitioner Data Bank. At the end of 2004, there were payment reports in the National Practitioner Data Bank for 1669 allopathic/osteopathic interns and residents.6

Although pediatricians are not sued as frequently as other physicians, they had the fourth highest average malpractice indemnity payout of 28 specialties (behind neurology, neurosurgery, and obstetrics-gynecology) among claims closed in 2004. This payout was 43% higher than the overall average indemnity paid for all

physician specialties.7 _{Despite many malpractice suits}

being dropped before settlement or trial, the dramatic increase in costs of defending claims (in 2004, an aver-age of $35 000 per claim regardless of whether payout occurred) may result in more pressure on pediatricians to settle these claims. Major areas of malpractice for the pediatrician continue to involve meningitis, appendicitis in the young child, pneumonia, nonteratogenic anoma-lies, newborn issues (brain and respiratory problems), and medication errors (especially asthma and seizure medication).7

This year’s graduating residents enter a health care environment in which only 6 states (California, Colo-rado, Indiana, Louisiana, New Mexico, and Wisconsin) are deemed by the American Medical Association to be safe havens from the malpractice crisis.8_{In 2004 –2005,}

the AAP Committee on Medical Liability surveyed the leaders of its state chapters to ascertain how pediatricians describe the medical liability environment in their state. Of the 67% of chapters responding, 18% describe the environment for pediatrics as “in crisis,” and another 46% describe the environment as “near-crisis.” Sixty-one percent of respondents to this survey noted that patients were experiencing difficulty obtaining pediatric services, and half of the respondents were aware of health care facilities having trouble recruiting

pediatri-Abbreviation:AAP, American Academy of Pediatrics

Opinions expressed in this commentary are those of the authors and not necessarily those of the American Academy of Pediatrics or its Committees.

www.pediatrics.org/cgi/doi/10.1542/peds.2005-1540

doi:10.1542/peds.2005-1540

Accepted for publication Nov 11, 2005

Address correspondence to Gary N. McAbee, DO, JD, FAAP, Pediatrics (Neurology), Robert Wood Johnson School of Medicine, 3 Cooper Plaza, Suite 309, Camden, NJ 08103. E-mail: mcabee-gary@ cooperhealth.edu

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cians. Thirty-four percent of the respondents stated that pediatricians were having trouble affording malpractice insurance. Although the AAP and its state chapters have been instrumental in working with legislatures and other medical organizations in enacting tort reform, it is important that pediatricians at all levels of experience enhance their knowledge of medicolegal principles. We suggest the following in assisting this process.

MEDICAL STUDENT TRAINING

Training should begin with the development of a strong foundation in medicolegal education during medical school. Currently, 124 medical schools report providing an average of 25 hours of instruction on “medical ethics” during the 4-year curriculum; no additional information is available regarding whether this includes specific

med-icolegal content.9_{One method used by one of the}

au-thors (G.N.M.) involves a 4-day formal course in medical jurisprudence given at the completion of the third year. This has been well received by students. Such a course should include topics such as principles of medical mal-practice including the expert-witness process; informed consent and refusal of care; overview of regulatory is-sues (eg, Health Insurance Portability and Accountability Act of 1996, Occupational Safety and Health Adminis-tration regulations, Emergency Medical Treatment and Active Labor Act, Americans With Disabilities Act, Clin-ical Laboratory Improvement Amendments); fraud and abuse; good-Samaritan laws and their relationship to disaster response; capacity/commitment; third-party lia-bility; criminal prosecutions of physicians; elder law; and issues related to genetics, reproduction, and technology. It is essential to also include pediatric-specific topics such as child abuse/neglect, issues relating to minors and adolescents, the vaccine injury– compensation program, and newborn issues such as those related to the futility of care. In addition, the procedural aspects of how a lawsuit develops (eg, summons and complaint, discov-ery, deposition, etc) are important to initiate the student to the “unknown” (ie, how the legal process works). This alone can help start to assuage the fear that students have about the legal process. The effectiveness of such a course can be accentuated with lectures in relevant bio-ethics. If feasible, a mock trial has been an effective technique for introducing students to the operational aspect of a malpractice trial.10

RESIDENT TRAINING

Recent studies have demonstrated that physicians in pediatric training programs are receiving inadequate ex-posure to these principles and that significant gaps in medicolegal education exist. The AAP 2004 survey of graduating pediatric residents11_{found that 76% of}

resi-dents reported no instruction in expert-witness testi-mony; 76% reported no instruction in vaccine injury liability; 65% reported no instruction in the malpractice

crisis; 57% reported no instruction in medical malprac-tice litigation; 54% reported no instruction in medical liability insurance; 50% reported no instruction in risk management/loss prevention; and 36% reported no in-struction in risk communication.

In 1997, new Pediatric Residency Review Committee guidelines12_{became effective. These guidelines included}

mandated competencies on risk management, confiden-tiality, informed consent, professional behavior, practice management, and quality assessment/improvement, many of which overlap with key medicolegal principles. A medicolegal residency curriculum should not only focus on those issues addressed during the medical school years but should be intensified in areas such as billing and coding, documentation, the use of technol-ogy within a medical practice, risks associated with man-aged care and other forms of health insurance, compli-ance as a component of fraud, and abuse prevention and risk management. Risk-management principles should be emphasized for at-risk scenarios such as treating a nonregular patient in a hospital setting while on call. The concern for problems with communication caused by limitations in language and literacy, particularly as it relates to proper informed consent, is likely to be an evolving cause of malpractice suits. Contract issues are also valuable to the pediatric resident and need to be part of their pediatric training. Program directors have ex-pressed the need for assistance in developing a

curricu-lum on many of these topics.13_{One valuable source for}

lecturers includes hospital, malpractice insurance com-pany and community attorneys, and risk-management specialists. We recognize the challenges that program directors have when faced with adding topics to an already-expanded pediatric curriculum. However, we also acknowledge the importance of this issue because of the personal and professional impact that legal issues have on the pediatrician.

Training programs should appoint a faculty member (preferably with interest in this area) to assume the responsibility of medicolegal education. The faculty member should consider discussing the “Pediatricians

and the Law” column of theAAP Newsand other

pedi-atric legal cases of national interest at the conclusion of journal club. Additional valuable didactic materials for the faculty member include theMedical Liability for Pedi-atricians Manual14_{(2004) and the}_{Pediatric Graduate} Med-icolegal Education for the 21st Century slideshow15 ₍₂₀₀₅₎

slide show for residents, both of which are available from the AAP. Pediatric subspecialists should encourage their specialty journals to devote a section on medicolegal issues.

PEDIATRIC PRACTITIONERS

Practitioners should encourage state organizations, children’s hospitals, and medical schools to sponsor legal medicine seminars that are relevant to the

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atric practitioner. The annual National Conference and Exhibition and Super CME of the AAP typically offer didactic sessions devoted to various medicolegal and risk-management topics. State AAP chapters can be in-valuable in offering didactic medicolegal topics to its membership. As with all medical education, indepen-dent self-study should take place at all levels of experi-ence. Malpractice insurers often provide a reduction in premiums for completion of risk-management courses. Pediatricians should request pediatric-specific content in these courses.

Practitioners should be willing to share malpractice experiences with residents and students. The law is based on precedent; lawsuits will be filed if attorneys are aware that suits on the specific issue have been success-ful. Physicians must be willing to share their experi-ences, because we all can learn from the mistakes of others. Disclosure may decrease the chance of litigation and result in smaller awards if litigated and improves patient safety.16

Some unique situations exist for pediatricians who intend to practice in areas where pediatricians are scarce and the medicolegal burden related to public health issues may be delegated to the pediatrician. The AAP has been instrumental in developing policies and guidelines to help pediatricians bear this responsibility.17

We urge pediatric educators (whether faculty at aca-demic pediatric institutions or private practitioners) to elevate the importance of, and increase their efforts in, medicolegal education so that future practitioners are better prepared for pediatric practice in the next few decades.

ACKNOWLEDGMENT

We thank, Julie Ake, Senior Health Policy Analyst, Di-vision of Health Care Finance and Practice, American Academy of Pediatrics, for assistance with the prepara-tion of this commentary.

REFERENCES

1. Taglieri v Moss, 367 NJ Super 184 (App Div 2004)

2. OIG Advisory Opinion No. 04 –19. January 6, 2005. Available at: http://oig.hhs.gov/fraud/docs/advisoryopinions/2004/ ao0419.pdf. Accessed February 22, 2006

3. Medical Society of NJ v Mottola, 2004 US Dist. LEXIS 10354 (2004)

4. Landrigan CP, Rothschild JM, Cronin JW, et al. Effect of re-ducing interns’ work hours on serious medical errors in inten-sive care units.N Engl J Med.2004;351:1838 –1848

5. American Academy of Pediatrics, Division of Health Policy Research.Periodic Survey of Fellows, Pediatricians’ Experience With Medical Liability 1987–2001. Elk Grove Village, IL; American Academy of Pediatrics: 2001

6. National Practitioner Data Bank.2004 Annual Report. Rockville, MD: Health Resources and Services Administration, Bureau of Health and Human Services; 2005

7. Physician’s Insurers Association of America.PIAA Claim Trend Analysis 1985–2004. Rockville, MD: Physician’s Insurers Associ-ation of America; 2005

8. Farish CM. Study: malpractice caps associated with growth in number of physicians.AAP News. August2005:18

9. Baransky B, Etzel S. Educational programs in US medical schools, 2002–2003.JAMA.2003;290:1190 –1196

10. LeBlang TR. Use of a mock trial stimulation to enhance legal medicine education for medical students.Caduceus.1997;13: 65–75

11. Donn S, Caspary G, McAbee G. Are pediatric residents ade-quately instructed in medicolegal pediatrics [abstract 750920]? Presented at: 2006 Pediatric Academic Society annual meeting; April 29, 2006; San Francisco, CA

12. American Medical Association. Graduate Medical Education Directory: 1997–1998. Chicago, IL: American Medical Association; 1997:211–220

13. Mulvey H, Ogle-Jewett E, Cheng T, Johnson R. Pediatric resi-dency education.Pediatrics.2000;106:323–329

14. Berger J, Deitschel C, eds.Medical Liability for Pediatricians.6th ed. Elk Grove, IL: American Academy of Pediatrics; 2004 15. American Academy of Pediatrics, Committee on Medical

Lia-bility.Pediatric Graduate Medicolegal Education for the 21st Century [slideshow]. Elk Grove Village, IL: American Academy of Pediatrics; 2005

16. Huff C. The not-so-simple truth.Hosp Health Netw.2005;79: 44 – 46

17. American Academy of Pediatrics, Committee on Child Abuse and Neglect. Guidelines for the evaluation of sexual abuse of children: subject review [published correction appears in Pedi-atrics. 1999;103:1049].Pediatrics.1999;103:186 –191

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DOI: 10.1542/peds.2005-1540

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Gary N. McAbee, Charles Deitschel and Jan Berger

Pediatric Medicolegal Education in the 21st Century

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DOI: 10.1542/peds.2005-1540

2006;117;1790

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Gary N. McAbee, Charles Deitschel and Jan Berger

Pediatric Medicolegal Education in the 21st Century

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