Published online May 1, 2006
PEDIATRICS
Vol. 117
No. 5
May 2006, pp.
1790-1792
(doi:10.1542/peds.2005-1540)
Pediatric Medicolegal Education in the 21st Century
Gary N. McAbee, DO, JD, FAAP, Chair (2004–2008),
Charles Deitschel, MD, FAAP, Chair (2000–2004) and
Jan Berger, MD, MJ, FAAP, Chair (1996–2000)
Committee on Medical Liability and Risk Management, American Academy of Pediatrics
Abbreviations: AAP, American Academy of Pediatrics
The 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 educational efforts. Pediatric educators must support the notion that a sound foundation 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 completed 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 credentialing 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 average of $35000 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 anomalies, 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, Colorado, 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 pediatricians. 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.
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MEDICAL STUDENT TRAINING
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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 medicolegal content.9 One method used by one of the authors (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 malpractice including the expert-witness process; informed consent and refusal of care; overview of regulatory issues (eg, Health Insurance Portability and Accountability Act of 1996, Occupational Safety and Health Administration regulations, Emergency Medical Treatment and Active Labor Act, Americans With Disabilities Act, Clinical Laboratory Improvement Amendments); fraud and abuse; good-Samaritan laws and their relationship to disaster response; capacity/commitment; third-party liability; 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, discovery, 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 bioethics. If feasible, a mock trial has been an effective technique for introducing students to the operational aspect of a malpractice trial.10
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RESIDENT TRAINING
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Recent studies have demonstrated that physicians in pediatric training programs are receiving inadequate exposure to these principles and that significant gaps in medicolegal education exist. The AAP 2004 survey of graduating pediatric residents11 found that 76% of residents reported no instruction in expert-witness testimony; 76% reported no instruction in vaccine injury liability; 65% reported no instruction in the malpractice crisis; 57% reported no instruction in medical malpractice litigation; 54% reported no instruction in medical liability insurance; 50% reported no instruction in risk management/loss prevention; and 36% reported no instruction in risk communication.
In 1997, new Pediatric Residency Review Committee guidelines12 became effective. These guidelines included mandated competencies on risk management, confidentiality, 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 technology within a medical practice, risks associated with managed care and other forms of health insurance, compliance 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 expressed the need for assistance in developing a curriculum on many of these topics.13 One valuable source for lecturers includes hospital, malpractice insurance company 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 the AAP News and other pediatric legal cases of national interest at the conclusion of journal club. Additional valuable didactic materials for the faculty member include the Medical Liability for Pediatricians Manual14 (2004) and the Pediatric Graduate Medicolegal 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.
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PEDIATRIC PRACTITIONERS
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Practitioners should encourage state organizations, children’s hospitals, and medical schools to sponsor legal medicine seminars that are relevant to the pediatric 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 invaluable in offering didactic medicolegal topics to its membership. As with all medical education, independent self-study should take place at all levels of experience. 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 successful. Physicians must be willing to share their experiences, 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 academic 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.
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ACKNOWLEDGMENTS
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We thank, Julie Ake, Senior Health Policy Analyst, Division of Health Care Finance and Practice, American Academy of Pediatrics, for assistance with the preparation of this commentary.
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FOOTNOTES
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Accepted 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{at}cooperhealth.edu
The authors have indicated they have no financial relationships relevant to this article to disclose.
Opinions expressed in this commentary are those of the authors and not necessarily those of the American Academy of Pediatrics or its Committees.
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REFERENCES
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- Taglieri v Moss, 367 NJ Super 184 (App Div 2004)
- 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
- Medical Society of NJ v Mottola, 2004 US Dist. LEXIS 10354 (2004)
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- American Academy of Pediatrics, Division of Health Policy Research.
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2004 Annual Report. Rockville, MD: Health Resources and Services Administration, Bureau of Health and Human Services; 2005
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- 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 Pediatrics. 1999;103:1049].
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PEDIATRICS (ISSN 1098-4275). ©2006 by the American Academy of Pediatrics
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