PEDIATRICS FOR THE CLINICIAN
The
Pediatrician
and
Malpractice
Rowine Hayes Brown, M.D., J.D.
From Cook County Hospital, Chicago, Illinois
Medical malpractice and professional liability
are problems of major importance to practicing
physicians today. Although the first malpractice
case of record in the United States occurred in
1794, relatively few were filed in the interim
prior to World War II. A marked increase in
malpractice suits has been experienced in each
decade since 1940,’ and it is now anticipated that
20,000
of such suits will be instituted this year.Breaking this down, it appears that one physician
out of every five will be sued for malpractice
during his professional career.2
After his February 1971 health message, former
President Nixon directed the Secretary of Health,
Education, and Welfare (Elliot Richardson) to
create a Commission on Medical Malpractice “to
undertake an intensive program of research and
analysis in this area.”3 This Commission
convened, formulated a research plan, and, on
January 16, 1973, published a two-volume report
entitled, Report of the Secretary ‘s Commission on
Medical Malpractice.” Although their methods,
conclusions, and analytical material have been
subjected to criticism and are deemed
controver-sial, they do present a large-scale effort to
research a problem area that had not been
subjected to in-depth analysis heretofore. Several
interesting statistics can be gleaned from their
report. Their study was done on 12,000
maiprac-lice cases which were concluded during 1970. “
Less than 10% of these reached the trial stage,
29% of which resulted in payment to the plaintiff.
The median payment was $2,000 and 3% of all
claims were settled in excess of $100,0O0. p7 The
claimants received a total of $80.3 million and
another $10.4 million was expended on carrier
legal fees and allocated cost. Only 2.3% of the
claims filed were against pediatricians.4 p56 This
low rate was equaled by psychiatrists and
bettered only by ophthalmologists. Briefly, the
Commission report stresses the magnitude of the
problem and the present privileged position of
the pediatrician. During 1974 and 1975 an
increasing number of suits have been entered
against pediatricians and it can be assumed this
trend will continue.
The majority of the malpractice suits are
directed primarily against practitioners in the
various surgical specialties. Often hospitals,
offices, and staff are included as defendants, these
being areas in which negligence, poor results, and
maccurate diagnosis are most apt to occur.
Recent surveys show that orthopedic surgeons,
plastic surgeons, general surgeons, gynecologists,
neurosurgeons, radiologists, and anesthesiologists
are sued in that order of incidence.5 As of today,
pediatrics remains a low-risk specialty. But here
again, the trend is changing. Our 1974 spot survey
of American Academy of Pediatric members6
discloses that an impressive 15% of those who
responded have been defendants in malpractice
suits. When an infant or young child is seriously
damaged by the negligence of another, the
sympathy of judge and/or jury will be aroused
and high awards can be anticipated.
(Received August 4; manuscript accepted for publication
August 7, 1975.)
ADDRESS FOR REPRINTS: Cook County Hospital, 1825
There is a negative correlation between
competence and the likelthood of being sued.7
Statistics show that a competent specialist is as
likely to be sued as a less competent general
practitioner. For example, surgeons who take on
the most difficult cases are more often the best
surgeons. They are sued more and for more
money than some of the people who do less
complicated and more common cases.
Concurrent with the increase in the number of
malpractice suits is an increase in the amount of
damages plaintiffs are now receiving from such
suits. Between 1967 and 1971 throughout the
country, there were 60 awards in excess of
$200,000 each in medical malpractice suits. In
1968 alone, there were 15 cases in California with
judgments entered between $1 million and $1.4
million. It is difficult to establish appropriate
statistics because of the fact that many suits are
settled before they ever come to trial and that
judgments in many cases are not appealed. As a
general rule, only appellate and supreme court
cases are reported, making information
concern-ing them in printed form available for
dissemina-lion. New York, California, and Florida are states
where the largest number of these suits have been
filed, tried, and where the highest judgments have
been recorded. #{176}In New York, courts heard 407
malpractice suits in 1968. Five years later, in
1973, they heard 773-a 90% increase. In 1968,
each of these successful plaintiffs in malpractice
suits received an average of $9,878; in 1973 this
figure rose to $23,426. Furthermore, several
awards exceeded $1 million in cases where
negli-gence was proved. One of these involved a child
to whom a New York court recently awarded a
total of $2,110,000 for brain damage suffered
shortly after her birth in a Manhattan hospital.9
In 1975 two malpractice suits involving
chil-dren were tried in Chicago resulting in awards of
$1 million in one, and $2.5 million in the other.
Both involved severe brain damage from anoxia,
one from alleged failure to perform a
trache-otomy1#{176} and the other from an anesthetic
agent.”
Malpractice suits are not always capricious,
conjured, or unfounded as many physicians Want
to believe. Patients do suffer unwarranted
damages at the hands of those of the medical
profession. Approximately 18% of medical
mal-practice incidents cause death, 19% leave
perma-#{176}In1973 more than 2,000 claimants in New York were
awarded $17.4 million.’
nent effects, 63% result in temporary effects,
some of which are psychological.4 “
Although a vast majority of malpractice claims
are now still successfully defended, the trend of
recent court decisions favor the claimant. The
generosity of court and juries in granting liberal
awards to injured plaintiffs apparently stems from
the prevalence of liability insurance. Judges and
juries know or believe that the burden of paying a
judgment for damages ordinarily will fall upon
the insurer and not upon the defendant doctor.
Thus, the cost of judgment settlements will be
pro-rated among all who practice medicine and
cany insurance, via the premiums paid for this
coverage. In the first week of July 1974,
premi-urns from malpractice insurance rose 93.5% m
New York, resulting in physicians there paying
the highest average malpractice rates in the
nation, a distinction previously held by the state
of California.
The trend towards ever-increasing malpractice
insurance premiums, for both physicians and
hospitals, has continued in 1975, resulting in
rebellion, work stoppages, and new legislative
enactments.
TRENDS IN COURT
Courts have recently relaxed many of the
established procedures and rules heretofore
governing malpractice trials, making it much less
complicated for plaintiffs to recover. Some of
such revisions are noted in the following
instances:
(1) In order to overcome the difficulty plaintiffs
encountered in obtaining expert medical
wit-nesses for their trials, courts in some jurisdictions
now permit the introduction of medical
text-books, publications, treatises, hospital bylaws,
JCAH, and other accrediting and licensing bodies
rules and regulations to establish deviation from
standard medical practice. Previously such
mate-nals were not permissible as evidence as they
were held to be “hearsay” evidence, due to the
fact that their authors were not present in the
courtroom to be questioned and cross-examined.
The Illinois Supreme Court in the Darling Case’2
decision, adopted in the majority of jurisdictions,
has set this new doctrine.
(2) The statute of limitations in many states is
now interpreted to begin, not with the date of
injury as is customary in other personal injury
accidents, but with the date of discovery of the
injury by the plaintiff. Illinois adopted this
“dis-covery nile,” but also has added a limitation
clause to the effect that “no action can be started
oper-ation.” Furthermore, patients of pediatric age
who have been harmed may institute suit on their
own behalf for such damage suffered by them,
when they reach their majority and within the
additional period of the statute of limitations.
Pediatricians must consider their own state’s
statute of limitations in determining how long
they must keep records of their pediatric patients.
Individual state statutes can be amended at
anytime your state legislators are in
session-con-sequently a chart of statutes of limitations in all
the various states could be obsolete before
publi-cation. It behooves the doctor to keep abreast of
current statutory changes in his own state.
(3) Physicians from outside the local
commu-nity may now testify about the standards of
medical practice. Previously the courts held that
only local physicians could testify to the standard
of care in their local community. As a result of
this change, plaintiff’s attorneys are now able to
bring in a physician from a different jurisdiction
to testify against the local physician. Attorneys
claim this is resulting in a break through against
the so-called “conspiracy of silence” with which
physicians have been charged when they are
reluctant to testify against each other.
(
4) Some courts have become more liberal inrecognizing situations in which negligence on the
part of the physician may be inferred from the
circumstances, thereby dispensing with the
bur-den on the plaintiff to produce expert medical
testimony to support his case. This involves the
doctrine of res ipsa loquitur, which literally
interpreted means “the thing speaks for itself.”
Previously, this doctrine was applied primarily in
foreign-body cases when forceps, scissors,
hemo-stats, sponges, etc., were left within a body cavity
of a patient at the time of surgery. The effect of
the application of this doctrine is to say to the
physician, “your tools were left in my belly; they
were not there before the operation; it is up to
you to prove you were not negligent.” Alaska has
enacted a statute to do away with the doctrine of
res ipsa loquitur. Other states (notably Illinois’
and California) attempt to expand the use of the
doctrine and attempt to apply it in situations
which were formerly inapplicable-such as
trauma or reactions from injections. Now all the
plaintiff has to do is to prove that the defendant
physician was in control of the procedure alleged
to have caused the injury.
THEORIES OF LEGAL ACTIONS
The majority of malpractice suits are tort
actions of civil liability. A “tort” is defined as any
wrongful act, damage, or injury done willfully,
negligently, or in circumstances invo’ving strict
liability, but not involving breach of contract, for
which a civil suit can be brought, and which
makes the perpetrator of the act liable under law
to pay damages to the injured party. Several torts,
the most common of which is negligence, fit under
the penumbra of medical professional liability.
The majority of malpractice actions (85%) are
based on allegations of negligence, where the
plaintiff contends that the medical treatment he
received did not conform to the standards
imposed on the physician by law.
Other tort actions to which a pediatrician
could be subjected would be assault and battery
(
for treating a patient without consent, except inan emergency situation); fraud and deceit; faLse
impnsonment (attempt to hold the patient in the
hospital until the bill is paid); libel and slander
(written or oral information published by a
physi-cian which could be damaging to the patient’s
reputation); invasion of the right of privacy
(taking photographs of the patient without
express permission); and breach of confidential
communications (where the physician discloses
information about a patient which he learned
under the physician-patient privilege).
In order for tort actions of negligence to
prevail, the plaintiff must establish in court
that:
(1) The physician had a duty to the patient
(existence of physician-patient relationship); (2)
that there was a dereliction or breach of that
duty; (3) that the dereliction or breach of duty
resulted in damage to the patient; and (4) that the
patient was, in fact, damaged.
Actions of this type are often hard to prove in
court, because medical testimony is ordinarily
required to show that the acts or omissions by the
accused physician were in fact negligent, and
such testimony is often difficult to obtain.
Should the patient die of injuries sustained
through alleged malpractice, and suit is brought
by the next of kin for loss of the loved one, the
local prevailing “wrongful death statute” would
apply in determining the amount to be recovered
as damages. Many wrongful death statutes
pre-scribe a limit on the amount of damages which
the next of kin can recover in the event the
deceased has been killed by the negligence of
another, through an automobile accident, a
personal assault, or an act of malpractice. The
patient who lived would be able to sue for
astronomical limits. The next of kin of a deceased
patient, however, would be held to the statutory
limit, which might be $10,000, $20,000, $30,000,
time of the death of the child, not the subsequent
time at which the suit is heard. The limitation
“handicap” has caused litigants to turn to other
types of suits where no limitation of liability
would be encountered. Several legal ploys have
been tried, namely:
(
1) Action on breach ofcontract: For example, aphysician performed a tonsillectomy on a young
child and the operation resulted in death of the
patient from hemorrhage. The legal theory here is
that the physician entered a contract with the
parents to perform a successful operation on their
child. Because the facts showed that the surgical
procedure resulted in the death of the patient, it
is contended that a contract had been breached
and that the parent should recover. Few courts
have agreed with this theory. However, suits are
allowed on breach of contract, if the physician
specifically promised to effect a cure or guarantee a result. Such statements should be avoided.
Because a contractual relationship usually
exists between the physician and his patient, the
physician may be considered to agree impliedly
to treat the patient in an appropriate manner.
The courts usually consider a malpractice action
as tortious in nature whether the duty grows out
of a consensual relation or has its origin in
contract:
(
2) Breach of Warranty: An increasing numberof cases are being filed and tried on the theory of
breach of implied warranty. Prior to the
applica-lion of this doctrine in the Cutter Laboratory
suitt about polio vaccine, implied warranty suits
were concerned with defects in automobiles,
bread, canned food products, etc. A $675,000
judgment was entered against Cutter Laboratory
in favor of one child who received polio vaccine
which had not been attenuated. Although
negli-gence was not proven per Se, the court held that
an unwritten guarantee had been breached.
Consequently, this theory has been often cited in
suits relative to drugs, biologicals, and blood
transfusions.
(3) The doctrine of strict liability has been
recognized recently by the courts in many of the
blood transfusion cases based on claims of the
patient having become infected with hepatitis.
The courts have held that, although hepatitis can
not yet be positively identified in the blood donor,
and that the infectious agent can not be
effica-t Where a California court entered ajudgment in the amount of $675,000 on behalf of a child who allegedly contracted
polio following the administration of polio vaccine.
ciously removed from the blood prior to
transfu-sion, the involved hospital, blood bank, physician,
etc., are strictly liable if the patient contracts
hepatitis during the course of or because of a
blood transfusion whether negligence was present
or not.’5 In these cases, the courts have held that a
blood transfusion is a sale rather than a service
and, therefore, the doctrine of strict liability is
applicable.
(4) Another recent change which has affected
medical liability for both physicians and hospitals,
has been the loss of charitable immunity. Until
recently, all tax-supported, religious-based, and
other eleemosynary institutions were accorded
the privilege of charitable immunity which
here-tofore had been used in defense of legal actions
against them. Recent court decisions have
removed or restricted the immunity of nonprofit
or governmental hospitals. It is anticipated that
this trend will continue. In several states (New
J
ersey, Hawaii, Alaska, New York, Georgia)specific statutes deny governmental hospital
immunity.
(5) It should be stressed that a pediatrician who
violates a provision of a statute which mandates
an act, such as reporting, or eye prophylaxis, may
incur civil liability. A recent suit of this nature in
California”’ resulted in an award of. $600,000 to a
battered child because a physician failed to report
the original acts of abuse and the child became
more seriously damaged from subsequent
epi-sodes.
(
6) Pediatricians may be sued when acts ofhouseofficers under their direction result in
damage to a patient. The author has been the
target in such a suit when an intern and resident,
under her jurisdiction, failed to make a diagnosis
of meningococcemia complicated by a
Water-house-Fridenchson Syndrome in a 9-year-old girl
who presented without an eruption.
(7) Recent court decisions involving the
doctrine of informed consent have placed an
increasing burden on physicians. An analysis of
such decisions reveal significant differences in the
legal requirements of the various states. In view of
these differences, the lack of statutory
require-ments, and in the absence of decisions at the
appellate court level, it is impossible to formulate
any guidelines which would now be applicable to
all states; therefore, stare decisis (previous court
decisions on comparable issues) will be applied.
In a leading case, Grossjean vs. Spencer’7 (Iowa,
1966), the court stated: “It is the duty of a doctor
to make a reasonable disclosure of the dangers
within his knowledge, which are incident or
adminis-ter. This does not mean that a doctor is under an
obligation to describe in detail all of the possible
consequences of treatment. To make a complete
disclosure of all facts, diagnoses, and alternatives
or possibilities which might occur to the doctor,
could so alarm the patient, that it would, in fact
constitute bad medical practice.”
As a general rule, parents must give their
consent before therapy is administered to their
minor children. Minors who are either married,
pregnant, or emancipated, and who are in need of
treatment may usually give valid consent for their
own medical or surgical treatment. In the event
of an emergency requiring immediate treatment
to a minor not classified above, such minor may
usually give his own consent. The criteria to
apply for circumventing parental consent is the
feasibility of obtaining such consent weighed
against the necessity for urgent treatment to the
child. The sole judge of such feasibility is the
physician.’8 Documentation as to the state of the
emergency is a must for the doctors records.
Recently courts have become more lenient in
permitting children of mature years to give their
own consent for treatment of non-emergency
conditions even including plastic surgery such as
nose bobbing, skin grafting, smallpox vaccination,
and removal of disfiguring lesions, such as those of
Von Recklinghausen’s disease. Furthermore, in
some states (Illinois for example) the legislature
has enacted specific statutes which permit minors
over the age of 12 years to give their own consent
for treatment of venereal disease and/or drug
abuse. Notification to their parents is not
required. Forty-nine states and the District of
Columbia have statutes providing for treatment
of venereal disease in minors, generally without
parental consent.’9 p277 Twenty-five of these states
expressly provide that the consent of no other
party is necessary when a minor seeks treatment
for suspected venereal disease: Alabama, Alaska,
Arizona, Arkansas, California, Connecticut,
Flori-da, Idaho, Kansas, Michigan, Minnesota,
Mon-tana, Nevada, New Jersey, New Hampshire, New
York, North Carolina, North Dakota, Ohio,
Oregon, Pennsylvania, South Dakota, Texas,
Utah, and Washington. Six other states and the
District of Columbia simply provide that a minor
has the capacity to consent to treatment for a
venereal disease: Indiana, Kentucky, New
Mex-ico, Oklahoma, South Carolina, and Virginia.
Statutes in six other states stipulate that
physi-cians are relieved of liability for treating minors
without parental consent: Colorado (limited to
immunity for diagnostic examination), Nebraska,
Massachusetts, Rhode Island (diagnostic
examina-tion of a minor is not an assault), Wyoming, and
West Virginia.
In the remaining 12 states, statutes provide for
treatment of minors for venereal disease but
require notification to parents or guardians.
Hawaii requires the physician to inform the
responsible adult if the patient does have the
disease; Iowa requires such notification only if it
appears the patient could infect other members of
the family; Vermont requires such notification if
the patient requires immediate hospitalization;
Delaware, Georgia, Illinois, Louisiana, Maine,
Maryland, Mississippi, Missouri, and Tennessee
leave notification to the discretion of the
physi-cian.
Wisconsin appears to have no statutory
provi-sion for treatment of a minor’s venereal disease
without parental consent. Furthermore, in Illinois
and Mississippi, minors who are either married, pregnant, a parent, or who are referred by a
physician, clergyman, or a planned parenthood agency are entitled to birth control services.
Other states have broadened the rights of
minors to give effective consent for contraceptive
services.’ p279 Eleven other states and the District
of Columbia by their statutes allow minors to
obtain contraceptives without consent of their
parents or guardians. In eight of these 12
jurisdic-tions (Colorado, the District of Columbia,
Geor-gia, Kentucky, Oregon, South Carolina,
Tennes-see, and Virginia) minors are given the right to
purchase contraceptives without the consent of
their parents. Florida has a statutory provision
which allows a physician to provide nonsurgical
contraceptives to any minor without parental
consent if, in his or her opinion, the minor may
suffer probable health hazards without them.
Maryland law states that a minor may apply to a
physician for contraceptives, but the physician
may, at his discretion, report such request to her
parents or guardian.
An additional nine states (California, Hawaii,
Iowa, Louisiana, Massachusetts, Michigan, New
York, Ohio, and West Virginia) will only allow
minors who are present or potential welfare
recipients, parents, or about to be married to
obtain contraceptives from publicly sponsored
family planning programs. In 1971, the California
Supreme Court2 held an abortion could be
performed in that state to an unmarried
“Un-emancipated minor” without parental consent.
The court applied the section of the California
Civil Code which permits minors to receive
surgical treatment relating to pregnancy. This
decision, plus that of the U.S. Supreme Court in
TABLE I
ALLEGATIONS ON WHICH MALPRACTICE CLAIMS WERE
BASED#{176}
FREQUENCY OF TYPES OF MALPRACTICE CLAIMS#{176}
#{176}Fromthe Medical Protective Company study.2
no more restrictions than an adult married
woman in seeking abortion. Other states now
agree with these interpretations, unless they have specific statutes to the contrary.
The above last-mentioned regulations
demon-strate the legislative trend toward the freedom of
minors to obtain medical assistance on their own
volition. They also demonstrate the flexibility of the law when there is a specific goal such as
eradication of venereal disease or drug abuse.
They further stress the need of practicing
pedia-tricians to be knowledgeable concerning the law
of their own state. To prescribe contraceptives
outside of the terms of the law could leave a
physician liable to suit by the parents of the
minor. The author is unaware of any such suits
being prosecuted, and feels parents would be
loathe to institute them inasmuch as they could be interpreted as providing open knowledge that the involved minor was in fact sexually active.
MEDICAL LIABILITY SUITS
A nationwide study was recently carried out by
St. Paul Fire and Marine Insurance Company22 on
a total of 5,096 malpractice cases. The allegations on which the majority of these suits were
insti-fitted are depicted in Table I. When the Medical
Protective Company’s national study of
profes-sional liability claims involving payment of
damages levied against pediatricians23 was
reported it revealed that claims arose in seven
significantly discernable groupings listed in Table
II according to frequency.
The author’s analysis of 105 recent medical liability cases24 encountered in either legal or
medical literature pertaining to patients of the
pediatric age is selective but supports the
insur-ance studies above mentioned. It excludes cases
which involve physicians other than
pediatri-cians, and excludes incidents of a surgical nature
unless the sugery (e.g., circumcision) was
per-formed by a pediatrician. Allegations ranked in order of frequency were:
(
1) Improper treatment, negligent treatment,or failure to treat-29; (2) failure to diagnose or to
make a timely diagnosis-21; (3) birth injury,
anoxia, negligence in handling newborns-18; (4)
complications from drug injections or errors in
medication-16; and (5) Lack of consent-7.
Death occurred in 16 (15.23%) of the above
cases and blindness or brain damage in 29 other
children. The cases involving failure to diagnose
included phenylketonuria, erythroblastosis fetalis,
retrolental fibi-oplasia, foreign bodies, congenital
dislocation of the hip, appendicitis, meningitis, subdural hematonias, and diabetes. In all these
Category No. of Cases
Improper treatment 2,605
Failure to diagnose 970
Anesthesia-related 291
Lack of informed consent 111
Injection-related 98
Abandonment 40
Radiation bums 27
Emotional trauma 25
Transfusion-related 18
Failure to refer 15
Billing problems 10
Failure to discuss alternate treatment 9
Other 777
#{176}From the St. Paul Fire & Marine Insurance Company
study.22
conditions, failure to diagnose or failure to
diag-nose promptly can result in permanent damage or
death of the child. It is apparent that
neonatolog-ists are in a precarious situation because they are
concerned with many conditions which involve
anoxia and its horrible sequelae. Approximately
22% of the above 105 cases involved newborn
infants.
Alarm has been generated by the increasing
number of medical liability suits filed recently by
young adults who many years ago were blinded
by retrolental fibroplasia before it was even
known to the medical profession that excessive
oxygen was the etiological factor. A New York
case on this condition25 was settled in 1975 by a
21-year-old girl for $165,000 while the jury was
deliberating the final damages they felt she should
receive. The jury, when later polled, stated that
they would have come in with a verdict in her
favor for $900,000. In support of the old adage
TABLE II
Frequency Type of Claim
1 Failure to diagnose or to diagnose in time 2 Improper treatment or failure to treat
3 Drugs or dnig administration
4 Contingent (damage adjacent to site of treat-nient)
5 Patient management (falls in office, falls from
examining table, etc.)
6 Abandonment or assault (treatment without
- proper consent)
that “nothing succeeds like success,” and on the
heels of the above successful settlement, a rash of
suits on retrolental fibroplasia is being brought
into courts today, especially on cases which
occurred during the 1950’s, when a maximum of
$5,000 coverage in malpractice insurance was considered completely adequate for a
pediatri-cian. It is reported that such devastating law suits
have already been filed in New York, Kentucky,
and Iowa. Estimates indicate that as many as
5,000 to 10,000 suits will be filed against
pediatri-cians who apparently were responsible for the
care of premature infants who developed
retro-lental fibroplasia. It must be stressed that the
blind victims of this condition can be paraded
before the judge and jury during the trial,
resulting in sympathy for the plaintiff patient.
One must realize that these cases are being
brought into court even though the standard of
care required at the time the incident occurred
was met. They are also being brought against
pediatricians in private practice, in small
commu-nities, as well as against pediatricians in academic
settings who might be expected to have had more
sophisticated equipment at hand. The Committee
on the Fetus and Newborn of the Academy has
appointed a special task force to study the
problem of retrolental fibroplasia. The author
feels their research of the standard of care in
vogue throughout the country during the 1950’s
could be beneficial in proving that the physician
did not deviate from such standard, and therefore
was not negligent.
Following the above trend, an upsurge of suits
may be filed on behalf of victims suffering
perma-nent damage from erythroblastosis fetalis,
phenyl-ketonuria, and other disabling diseases suffered by
the victims during their infancy. In order to
prevail, plaintiffs in such suits must prove the
pediatrician was negligent and did in fact deviate
from the established standard of care. One must
realize that these suits are being brought into
court even though the standard of care required
at the time the incident occurred was met.
These belated suits so filed by the actual
patient stress the fact to us that a minor upon
reaching his majority may institute suit on his
own behalf for harm done to him while he was an
infant. It may appear unfair to a pediatrician
when he realizes he may be subject to a suit many
years after the alleged incident occurred. The law
has recognized that minors, because of their
infancy, and incompetents are in need of
protec-tion. The law attempts to protect a child from an
unfair settlement which someone else might have
made on his behalf when he was an infant. Thus,
the child, when he reaches his majority, usually 18
to 21 years of age, may sue to rectify the
inadequacy.
The drug-related suits included overdose,
map-propriate drugs for the condition diagnosed by
the pediatrician, failure to treat as required by
law (silver nitrate eye prophylaxis), and several
instances where tetanus resulted because the
doctor failed to administer tetanus antitoxin after
an injury, where the use of such prophylaxis was
subsequently held to have been indicated. The
recent Texas decision in the Reyes case26
involving mass immunization with polio vaccine
has alarmed pediatricians. Following an outbreak
of polio in a Texas community, the Reyes infant
received polio vaccine in a mass immunization
effort. She subsequently contracted paralytic
polio. Although the virus strain responsible for
her attack of polio was different from the virus in
the vaccine, identified as the “ wild virus”
respon-sible for the outbreak, the court held Wyeth
Laboratories responsible, and awarded her
$200,000 damages. The court held that
manufac-hirers of vaccines were directly responsible for
warning consumers in state polio immunizations
campaigns that polio is a possible complication of
polio immunization. The United States Supreme
Court refused to review the decision of the Texas
Court, so the Texas Court holding stands. When
the court holds that parents must be warned of
any possible ill results which can occur following
any immunization, one naturally assumes that
this would act as a deterrent to all efforts to
maintain a high level of immunization of the
children of this nation.
MONETARY DAMAGES
In determining the amount of monetary
damages which are to be awarded to the alleged
victim of a negligent act, a number of factors are
considered by the judge and/or jury. For instance,
if a very young infant has been severely damaged
from anoxia, and is in a vegetative state from
which he will probably never emerge, he will
require total care for the rest of his life. The
anticipated life span can be calculated from
actuarian tables with fair certainty. Thus, the
total number of years during which custodial,
medical, and other types of care will have to be
provided, for an infant, would be over 70 years.
These anticipated actual costs to the patient will
be included in the measure of damages. They will
include bills for hospital care, pediatricians, other
and future physicians, nurses, laboratory tests,
medications, special treatments, procedures, etc.
day-to-day custodial care, and the loss of reasonable
projected earnings the child will never realize
because of his impaired physical and mental
status. Some awards will also include a specific
amount for the parents of the child for their “loss
of the services and earnings” of the child.
When the above components of the award are
computed, it is not unusual for the total amount
to be several hundred thousand dollars. The legal custom today is to enter the courtroom with the
amount of damages to be requested already set
forth as a part of the legal complaint filed, e.g., $5
million. Exclusion of this ad damnum clause is
suggested by many lawyers who study the
malpractice problem to avoid a suggested top
figure.
It is unfortunate that the injured plaintiff
receives only a small proportion of the amount of
damages awarded. Court costs, expenses, and the
attorney’s contingent fee all absorb a large
amount. The amount of the contingent fee may be
established in advance by the attorney and the
plaintiff and may exceed 40% of the award which
will be recovered. Some state statutes may limit
the amount of a fee which involves an infant,
perhaps to 25%. Physicians propose that the
contingent fee either be abolished or have limits
set by law, comparable to awards utilized by
workmen’s compensation. Some legislation has
been forthcoming in this area. Other recent
legislation limits the amount a plaintiff may
recover in a malpractice suit to $500,000 which
statutory limitation will in all certainty be
chal-lenged in our courts as being unconstitutional.
“WHY MALPRACTICE SUITS”
Many have conjectured as to why medical
liability suits have increased so drastically in
recent years. Some causes are levelled at
physi-cians, to the effect that: (1) Some will not admit to
themselves that they have limitations either in
training or experience; (2) they often take on
more than they are qualified to do; (3) the
physician-patient relationship has suffered due to
excessive specialization; (4) they have permitted
patients to lose confidence in and respect for the
medical profession; (5) unwarranted poor rapport
and communication with patients; (6) physicians
fail to measure up to the doctors depicted in
television shows; (7) physicians may press for
payment of their bill and spur the patient to
retaliate by some type of suit; and (8) careless
remarks made by one physician against another,
etc.
Some malpractice suits have led to beneficial
changes in medical techniques either in the
doctor’s office or in the hospital setting. These
would include many time-taking chores that
here-tofore have seemed inconsequential or trivial, for
instance, better records, appropriate labeling of
gas tanks, proper labeling of medicine, double or
triple sponge and instrument counts, etc.
On the other hand, the threat of medical
liability suits has resulted in physicians practicing
defensive medicine.27 Doctors now have a
tendency to overutilize diagnostic tests and
procedures in some cases and to omit diagnostic
procedures or new methods of therapy in others
because of their hazard potential. Defensive
medicine tests which are commonly used by
pediatricians include the following: Routine skull
X-rays on any child who bumps his head; medical
consultations when not really indicated; routine
battery of blood chemistry tests; routine
exhaus-tive hematological tests; thyroid studies;
electro-encephalograms and spinal punctures routinely
on first febrile seizure, etc. Conversely, the threat
of a malpractice suit may discourage the
physi-cian from performing procedures which might be
necessary to help a patient.
PROGRESS TOWARDS SOLUTION OF THE
PROBLEM
The marked increase in medical liability
insur-ance premiums has spurred action at many levels.
Both national and state legislation is being
consid-ered or being enacted. The goal is to allow
physicians to carry adequate medical liability
insurance at reasonable rates. Some of the
proposed enactments attempt to limit the amount
of damages which a patient may recover for his
alleged “malpractice” injuries (which enacted
limits will undoubtedly be tested in the courts as
to their constitutionality). The various medical
and surgical specialty organizations, such as the
American Academy of Pediatrics, are studying
the problem as it relates to their own members
and are cornig up with recommendations. An ad
hoc committee on medical liability appointed by
the Council on Pediatric Practice is processing a
brochure on the subject for distribution to
members of the Academy. This follows a spot
survey of the membership concerning their
expe-rience with malpractice problems. Doctors are
using “self-help” tactics such as work stoppage,
24-hour moratoriums, etc., as pressure devices
against insurance companies. The medical
profes-sion as a whole is taking steps towards
recertifica-tion of physicians in order to determine their
current competence to practice medicine. Those
who are found to be incompetent will either be
or be extremely limited in what they are
permitted to do. Purging of the medical
profes-sion, compelling it to adhere to the highest
possible standards, is inevitable. Policing will
come from outside the medical profession if
physicians do not act promptly on
self-disci-pline.
PROPHYLAXIS
If a physician commits willful or gross
negli-gence, which results in injury to a patient
entrusted to his care, he, like anyone else, should
be liable for the harm he inflicts.
Many suits are brought arising out of
misunder-standings between the doctor and the patient or,
parenthetically, because of lack of
communica-tion between them. Information should be
prof-fered, explanations should be made, but
guaran-tees of a cure or perfect result should never be
made. Such guarantees are interpreted by a court
of law as a definite contract between the patient
and his doctor on which the patient may sue his
physician for breach of contract.
Be sure you obtain an informed consent prior to
institution of therapy, and ideally from both
parent or guardian and the child especially if the
latter displays maturity of thought and
judg-ment.
Exercise at least the same standard of care, skill
and judgment as displayed by others in your
specialty.
Pursue established methods of therapy; depart
from such at your own peril; conduct research or
experimental procedures only with informed
consent of both parent and child (where the
patient is 7 years of age or older).
Be sure the prescriptions you write are legible
(preferably typewritten or printed); retain a copy
for your records whenever possible. Mystique
leads to mistakes!
Always order the customary and necessary
laboratory tests, biopsies, and X-rays pertinent to
the particular disease you are suspecting or
treat-ing; and once you order them, obtain the results
and study them. Enter date, time, and personally
sign or initial reports when read by you.
Do not ignore a family’s request for
consulta-tion. The public is aware that they have a right to
request another physician’s opinion.
Consulta-tions are of prime importance in cases involving
newborn infants, in clinical conditions which are
obscure, in patients who suffer from diseases or
conditions with medical-legal or criminal
impli-cations, when there is a serious medical or
surgical risk, where the diagnosis is not
under-stood, if there is doubt concerning the best
method of treatment, and if you sense
belliger-ence as a reaction to your own findings and
recommendations.
Complete and accurate records must be kept in
both office and hospital. They should contain
documentation of facts pertaining to the
particu-lar patient and his treatment. Good records
constitute one aspect of defense in a malpractice
suit. Records should be kept for at least 28 years
on pediatric patients which will allow the statute
of limitations to run after majority is reached. A
28-year period in which records should be kept is
necessary in states like Illinois where the minor
may institute suit upon reaching his majority (18 years) plus an additional ten-year period in which
he “discovers” the harm done to him when he was
an infant. Records may be reduced to microfilm
to facilitate storage, and the cost of microfilming
will be added to the “cost of medical care.”
Remember that some adults are habitual
liti-gants or are more “suit-prone” than others. These
include alcoholics, “doctor-shoppers,” and
emo-tionally disturbed parents, who should either be
avoided or handled with special care.
Continuing medical education is now a basic
requirement. Physicians must keep abreast of new
developments in their own field or in any other
field which may be relative.
Read the medical legal cases encountered in
newspapers, medical journals, and “throwaway”
journals. These will apprise you of recent
deci-sions, new trends, damages awarded, etc.
Purchase adequate amounts of medical liability
insurance. Talk with your attorney about
malpractice problems. As in law, as in medicine,
as in mending, “a stitch in time saves nine.”
CONCLUSION
The issue of medical liability has reached crisis
proportions in the United States today. Such is a
consequence of the burgeoning number of suits,
the exorbitant damages awarded, and the
exces-sive premiums or inavailability of medical
liability insurance. Pediatrics has until recently
been a low-risk specialty, but now suits are being
brought against pediatricians with increasing
frequency, especially against neonatologists.
Medical liability suits are brought on many
different legal theories. Broad attempts are being
made to solve the problem. Pediatricians can and
should take prophylactic steps to ward off such
REFERENCES
1. Committee on Medicolegal Problems: Malpractice and the Physician. Chicago, American Medical Associa-tion, 1951.
2. Morris RC, Moritz AR: Doctor and Patient and the Law. St. Louis, CV Mosby Co. 1971, p 325.
3. Nixon RM: Executive order following the President’s
Health Message of February 18, 1971.
4. Report of the Secretary’s Commission on Medical Malpractice. Government Printing Office, 1973. 5. Twelve months of medicine in court. JAMA 217:1287,
1971.
6. Ad Hoc Committee on Medical Liability of the Council on Pediatric Practice: Medical Liability Question-naire. Evanston, Illinois, American Academy of Pediatrics, 1974.
7. BaIl DT: Remarks on professional liability. Panel discus-sion, second annual meeting of the American College of Surgeons, March 27, 1974.
8. Chicago Tribune, October 11, 1974, section 2, p 2. 9. Time Magazine, Medicine, July 15, 1974, p 78. 10. Chicago Tribune, July 18, 1974, section 1, p 5. 11. Burrow vs. Widder et al., Circuit Court, Chicago,
Illinois, November 1, 1974.
12. Darling vs. Charleston Community Hospital, Illinois Supreme Court, 211 N.E. 2nd 253, 1965.
13. Illinois Revised Statutes, 1973, chapter 83, section 22.1.
14. Edgar County Bank & Trust Co. vs. Paris Hospital, Inc., 57 Illinois 2nd 298, 312 N.E. 2nd 259, 1974. 15. Cunningham vs. McNeal Memorial Hospital, 47 Illinois
2nd 443, 266 N.E. 2nd 897, 1970.
16. Time Magazine, Medicine, November 20, 1972. 17. Grossjean vs. Spencer, 140 NW. 2nd 139, Iowa, 1966. 18. Illinois Revised Statutes, 1973, chapter 91, section
18.3.
19. Jordan E: A minor’s right to contraceptives. University of California Law Review 7:277, 1974.
20. Ballard vs. Anderson and 4 Cal. 3rd 873, 95 California Reporter 1, 484, P. 2nd, 1345, 1971.
21. Roe vs. Wade, 410 U.S. 113, 1973.
22. Professional Liability Risk Management Department: Malpractice Digest. St. Paul, Minnesota, St. Paul Fire & Marine Insurance Co. 1973.
23. Department of Consumer Affairs: A Professional Liability Profile of Pediatric Practice. Fort Wayne, Indiana, Medical Protective Co, 1974.
24. Brown RH: Read before the Central Ohio Pediatric Society, Columbus, Ohio, April 24, 1974.
25. Kalmozitz vs. Brookdale Hospital, tried before the
Brooklyn Supreme Court (reported in Newsweek, April 7, 1975, p 49).
26. Reyes vs. Wyeth Laboratories, 498 Federal Reporter, 2nd series 1264 US Court of Appeals for the Fifth Circuit.
27. The malpractice threat: A study of defensive medicine. Duke Law Journal, 1971.
ACKNOWLEDGMENT
The author wished to acknowledge the consultation and
assistance of Richard B. Truitt, J.D., (of Truitt, Brown, and Truitt, Chicago, Illinois) in the preparation of this manu-script.
A Systematic
Review
of the
Literature
on Evaluative
Studies
of Tonsillectomy
and Adenoidectomy
W. Shaikh, M.D., Ph.D., E. Vayda, M.D., and W. Feldman, M.D., F.R.C.P.(C)
From the Department,s of Pediatrics, Clinical Epidemiology, and Biostatistics, %fcMaster LTnitcrsity,
Hamilton, Ontario, Canada
Although tonsillectomy and adenoidectomy (T
and A) is frequently performed (indeed, it is the
commonest surgical procedure done in North America’2) considerable controversy persists
regarding its effectiveness.
In 1971, 161,301 T and A’s were performed in
Canada at an estimated cost of close to 25.6
million dollars.’ In the United States in 1968 more
than 1 million T and A’s were performed.4
Assuming the cost per T and A to be similar to the
costs in Canada, around $150 million were spent
on this procedure in the United States in that
year.
The purpose of this study is to review the
English language literature pertaining to
evalua-(Received June 16; revision accepted for publication August
6, 1975.)
