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Reviews of Educational Material  |   March 2007
Medical Malpractice: Understanding the Law, Managing the Risk.
Author Notes
  • UCSD School of Medicine and California Western School of Law, San Diego, California.
Article Information
Reviews of Educational Material / Ethics / Medicolegal Issues / Advocacy and Legislative Issues
Reviews of Educational Material   |   March 2007
Medical Malpractice: Understanding the Law, Managing the Risk.
Anesthesiology 3 2007, Vol.106, 642-643. doi:
Anesthesiology 3 2007, Vol.106, 642-643. doi:
Medical Malpractice: Understanding the Law, Managing the Risk.  By S. Y. Tan, M.D., J.D. Hackensack, New Jersey, World Scientific Publishing Company, 2006. Pages: 339. Price: $65.00.
The risk of being sued is not taken lightly by those in medicine, even by those physicians with law degrees such as the author of Medical Malpractice: Understanding the Law, Managing the Risk  and over-educated individuals (with concomitant student loan debt) such as the author of this review. Perhaps it is the law school–trained “tainted ones” in particular who know just how “horrible the horrors” of lawsuits can be and thus want to spare our colleagues from such pain that induces books like Medical Malpractice  to be written.
Medical Malpractice: Understanding the Law, Managing the Risk  is a slight misnomer because the majority of the book provides an overview of the general legal aspects of medical malpractice as well as informed consent, the latter of which is a different legal (and of course medical) concept. In terms of subject coverage, after these sections, the book moves into issues of risk management and ends with a small section on reform. There is a multiple-choice self-testing guide at the end of the book, as well as a glossary of legal terms. The book is aimed at a general medical audience and is not specific to anesthesiology.
The strength of this book is in some of its examples of the elements of medical malpractice and lack of informed consent causes of action. As befits a doctor-trained lawyer or lawyer-trained doctor, the author obtains his examples from reality: the rich fact patterns from the myriad of legal cases against medical providers. They provide illustrations of the incredible breadth and depth of how each component of the legal rule can be fulfilled when claims are filed against physicians (such as constipation as causation).
However, beyond providing illustrations, the book is less successful in its other goals. For example, with respect to “understanding the law” as noted in the title, the author does not point out that these components, as well as other aspects of these claims and defenses, are all state based, and therefore the provided examples are indeed illustrative only. Legal applicability and definitions may well be different across states. This oversight may be attributable to the fact that the concept is so well known to him as an attorney that he may have forgotten his medical colleagues haven't taken torts!
In addition, topics that are arguably outside medical malpractice and informed consent are included in the book but really do not seem to fit within the book's theme. Chapters on “Patients Who Drive: A New Worry for Doctors,”“End-of-Life Issues,” and “Products Liability” are not directly related to medical malpractice or informed consent, although clever enough attorneys (and law professors writing final exams) could probably conjure up a legal action combining all of them (a medicated patient who becomes anxious about a relative in hospice gets into an accident and sues his physician for lack of informed consent because she didn't disclose the risk of a motor vehicle accident as well as Toyota Motor Corporation for a defective product because the car allowed him to drive when he was anxious).
In addition, it is inevitable that the book's policy discussions are inaccurate and/or dated. For example, the book attempts to contextualize the malpractice debate in chapter 1, “Condition Critical, Prognosis Guarded.” Unfortunately, given the complexity of the issue, the treatment is at best incomplete, and in some sections quite misguided. Many of the important aspects of and contributions to this debate are not mentioned, such as the seminal American Society of Anesthesiologists Closed Claims study and studies on licensure and medical board activities.
Similarly, this is also true for other chapters, such as “Cyber-Medicine,”“What Do Malpractice Lawsuits Look Like,”“Medical Errors and Their Disclosure,” and “Medical and Legal Reforms.” For example, the substantial debates on e-medicine and malpractice, the robust literature on patient needs and medical error disclosure methods to promote patient safety, cultural competency and communication to reduce the potential for injury, and “I'm sorry” statutes and specialized malpractice courts are not mentioned. It's a shame that these were not reviewed with up-to-date literature, because the risks for hospital-based specialties such as anesthesia are burgeoning with issues such as automated anesthesia record keeping and its risks for malpractice use, limited-time physician–patient interactions and the problems of health literacy and limited English proficiency in the context of informed consent, and systems of medical error disclosure encompassing early intervention mediation and other techniques to avoid patient injury lawsuits.
Perhaps because the science-oriented medical side of this reviewer is currently dominant (rather than the conflict-ridden, anecdotal legal side, which generally arises during domestic dinner discussions with teenagers), I believe it would have been more helpful if the book had reviewed the empirical literature on medical malpractice, including what (nonlegal) factors influence patients to sue, how juries decide as they do, and the effectiveness of strategies such as risk management seminars to reduce or avoid lawsuits. In other words, are there practical secrets or insights that might help us sway a legal result one way or the other? As well, a review of litigation avoidance programs used by insurers and others using alternative dispute resolution and other contemporary strategies would have been helpful—particularly if our attorneys are not familiar with them and only know the tool/rapier of litigation (the aphorism “when you're a hammer, everything looks like a nail” is particularly apt for trial lawyers on both sides). Finally, avoiding patient injury in the first place to avoid a lawsuit through a description of practical patient safety tools would have been welcome. Disseminating this kind of public health “preventive care” safety strategy would be beneficial for patient and physician alike (particularly because right now, there is no vaccine against lawsuits).
Overall, the book provides an array of illustrations of the legal components of medical malpractice and informed consent causes of action. For policy considerations and more contemporary efforts at avoiding patient injury and litigation, other sources might be more valuable. One thing this book might accomplish: If you were ever thinking of attending law school, this might be just the treatment for that temporary psychosis. Otherwise, neuroleptics are available … but please sign this waiver first.
UCSD School of Medicine and California Western School of Law, San Diego, California.