The methodology for the Lab’s Medical Malpractice (“MedMal”) Project begins with identifying a sample of cases in the United States and Italy that is representative and instructive on several levels.
- First, the fact patterns selected should represent the major areas of medical conduct that give rise to malpractice law suits.
- Second, the decisions selected should involve the major types of legal issues that arise in medical malpractice cases.
- Third, the decisions selected should be sufficiently complex on the evidence, in order to comparatively investigate evidence assessment, and not merely rule systems.
We will undoubtedly refine the criteria for establishing fact patterns and selecting sample decisions as we proceed. The discussion below states our initial ideas on sample selection.
The Major Areas of Medical Conduct
We can classify into at least three groups those types of medical conduct, or areas of medical practice, that typically give rise to litigation: these are diagnosis, obtaining informed consent, and treatment. Misdiagnosis cases might involve the failure to perform appropriate tests or to gather appropriate data, or they might involve misinterpretation of the diagnostic data that are available. Failure to obtain informed consent could arise in various situations, from medically necessary procedures to elective procedures. Negligent treatment or intervention might involve prescription of pharmaceutical products, surgery, or psychological/behavioral intervention. Our goal in selecting decisions is to generate a sample that includes a variety of factual scenarios and thus is representative of many medical situations.
The Major Types of Legal Issue
Medical conduct might consist of an action (e.g., performing surgery) or a failure to act (e.g., failure to obtain informed consent). Beyond that, the types of legal issue depend upon the applicable legal rules. For example, it is typical in U.S. jurisdictions to require the plaintiff to prove the following propositions in order to establish liability: that the defendant owed the plaintiff a legal duty of care, that the defendant breached that duty of care through the defendant’s conduct, that the plaintiff actually suffered a legally compensable injury, and that the defendant’s breaching conduct was a legal cause of the plaintiff’s compensable injury. Other legal issues arise in connection with damages, such as rules for awarding non-economic damages. Our goal in selecting decisions is to generate a sample that involves all of the major legal issues found in either the United States or Italy.
Major Patterns of Evidence Assessment
The types of evidence proffered in medical malpractice cases are fairly standard: e.g., lay witness testimony, medical records, diagnostic and other test results, and expert opinions. But complications arise for the factfinder in assessing the credibility of lay and expert witnesses, in reconciling inconsistencies within testimony or between different items of evidence, in assessing the plausibility of assertions by witnesses, and in drawing inferences from plausible evidence to findings of fact. Some patterns of evidence assessment have become established and have been given names in legal decisions (such as “res ipsa loquitur”), while others remain to be identified. Our goal in selecting decisions is to generate a sample that contains a variety of problems and patterns of evidence assessment.
We have selected an initial set of fact patterns to use in selecting sample decisions . . .
Our Initial Fact Patterns
Our approach to sample selection is to identify recurring medical fact patterns or scenarios, and to search for legal decisions in both the U.S. and Italy involving those fact patterns, selecting those decisions that cover a variety of legal issues and problems of evidence assessment. Our initial fact patterns include the following:
- Undetected life-threatening disease or condition: for example, the patient had a cancer and/or tumor that was undetected due to either misdiagnosis or failure to diagnose, and this resulted in the death of the patient or severe deterioration of life circumstances.
- Switched or incorrect test results: for example, the patient received someone else’s test results or incorrect test results, and as a result underwent an unnecessary procedure or received no care, with resulting severe pain and suffering or death.
II. Obtaining Informed Consent
- Scarring after cosmetic or other type of elective surgery: for example, the patient underwent a cosmetic or other elective procedure, but afterwards was unhappy with scarring or other results of the procedure.
- Unconsented birthing procedure: for example, the patient gave birth by means of an unconsented procedure, and as a result suffered personal injuries.
- Anticoagulant therapy: for example, the patient was given an anticoagulant drug (Warfarin/Heparin), which resulted a negative reaction and severe injuries.
B. Physical Intervention
- Oral surgery: for example, the patient went to the dentist for an extraction or implant, and nerve damage and pain resulted.
- Nerve damage after surgery: for example, the patient underwent surgery during which nerve damage to the leg occurred, either as a side effect or through the severing of a nerve, with resulting severe pain, or loss of feeling in or use of the leg.
- Asphyxia at birth: for example, the newborn baby suffered asphyxiation at birth, and suffered brain damage as a result.
- Third-degree tear at birth: for example, the patient gave birth, during which she suffered a severe “third-degree” tear, and as a result she had to undergo a colostomy or experienced fecal incontinence or constipation.