___________________________________________________________________________ Risk Management
but when such aid is provided, the person giving aid has a duty to be reasonably careful [44]. Good Samaritan laws protect a volunteer against legal liability in the event he or she makes an error during the provision of emergency care [44]. Some Good Samaritan laws may hold the volunteer liable if he or she does not act to assist during an emergency. Whether the volunteer chooses to act or not, the important consideration is to act in a manner that will not render the volunteer liable [44]. Charitable Immunity Laws Charitable immunity laws are designed to protect physicians and other healthcare professionals who volunteer their services in free health clinics and other community initiatives to pro- vide health care to uninsured individuals. These laws also differ from state to state, but they act to either raise the negligence standard of care (from simple negligence to gross negligence) or indemnify volunteer healthcare professionals with liability protection as if they were government employees [46]. Some state laws have elements of both approaches. Requiring evidence of gross negligence (defined as “willful,” “wanton,” or “reckless” negligence) makes it more difficult to prove medical negligence [47]. States that indemnify volunteer healthcare professionals as government employees have a legal defense fund to cover defense costs and monetary damages; in some cases, there is an established limit on the total amount of compensation that can be paid [47]. Thus, such indemnifi- cation, also known as the State Tort Claims Act, can help to limit loss. In addition to state statutes, federal legislation also protects healthcare professionals who provide free health care. The Volunteer Protection Act of 1997 provides protection against liability for a volunteer clinician “acting within his or her scope of duties in a nonprofit organization” [46]. This law also limits punitive damages to cases in which there is clear and convincing evidence of willful or criminal misconduct or conscious, flagrant indifference to the rights or safety of the individual harmed [46]. All states had laws limiting liability of certain volunteers at the time the Volunteer Protection Act was adopted, and these laws are not preempted if they provide additional protections [48]. Although state and federal charitable immunity laws do not guarantee that a malpractice claim will not be filed, the laws appear to have limited the number of malpractice claims, as physicians in volunteer settings are rarely targets of malpractice claims [47]. Apology Statutes Apology statutes are designed to promote disclosure of medical errors by protecting physicians who apologized for an error. According to these laws, expressions of apology made after a medical error are excluded from evidence in a malpractice suit. There are two types of apology statutes [49]: • Sympathy only: protects a physician’s expression of sympathy, regret, and condolence
• Admission of fault: protects a physician’s admission of fault and error (in addition to expressions of sympathy, regret, and condolence) Massachusetts was the first state to enact an apology law, in 1986. Since then, apology laws have been enacted in 39 states and the District of Columbia. These states have enacted one of the two types of apology statutes, but the majority of states have adopted the sympathy only law [49; 50; 51; 52]. As of 2022, six states have provisions that specifically relate to accidents [52]. However, physicians are often skeptical of apologizing for potential error or adverse outcomes. In a 2021 survey of physi- cians with malpractice suits, 79% indicated that apologizing would not have made a difference, while only 2% indicated that it would have [4]. CHARACTERISTICS OF MALPRACTICE CLAIMS Closed malpractice claims have been used in a host of studies to gain a better understanding of the specific factors associated with claims. Data on medical malpractice claims are found in three primary sources, and each source provides slightly dif- ferent types of data. The most comprehensive source of claims information is the National Practitioner’s Data Bank (NPDB), maintained by the U.S. Department of Health and Human Ser- vices [12]. The Health Care Quality Improvement Act of 1986 requires that all payments in settlement of malpractice claims must be reported to this system. The drawback to this source is that only claims that have been paid are included. Another source is the Medical Professional Liability (MPL) Association (formerly Physician Insurers Association of America) data sharing project. The MPL Association is a trade association of more than 50 medical malpractice insurance companies that represent more than two-thirds of private practice physicians and 2,500 hospitals, and the data represent approximately 25% of the medical malpractice claims in the United States at a given time [53]. The MPL Association includes both paid and unpaid claims, and queries on physician specialty can be carried out. The third source is Jury Verdicts on Westlaw; this source has limited value, as the number of malpractice claims that are decided by jury verdict is small [54]. Studies of malpractice claims have provided valuable infor- mation on the most common underlying causes of alleged injuries/events (also known as “medical misadventures”) and the diagnoses at highest risk for malpractice. Additional studies have identified a wide variety of factors that motivate individuals to file a malpractice claim. Understanding the risk factors and patient motivators for malpractice can help physicians develop risk management strategies that address the most common issues related to patient safety. Underlying Causes Diagnostic error (misdiagnosis or missed or delayed diagnosis) is the most common allegation in malpractice claims, noted in 22% to 78% of all claims [2; 3; 5; 16; 55; 56]. In a study of 307 claims alleging diagnostic error in the ambulatory setting, researchers found that 59% of the claims involved a diagnostic
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