Medical education malpractice

During my career I've had extensive involvement with the legal system. I was sued for medical malpractice twice. I was an expert witness for both plaintiffs and defense in medical malpractice cases and served as an expert in product liability cases as well.

More than 60 percent of doctors over the age of 55 have been sued at least once, according to a new survey by the American Medical Association (AMA).

Sometimes I thought I should have been sued for things when I wasn't and not sued for things when I was.

Now I'm wondering in my role as a medical educator, whether I should have been sued for medical education malpractice.

A legal definition of educational malpractice is yet to be codified, but the term can be assumed to involve professional negligence or the failure to provide services that can reasonably be expected. Unlike many other professional services, however, education relies on the active participation of the client--the student--and depends to a great extent on factors outside the school's control. Largely for this reason, courts have been reluctant to find schools, school officials, or school employees sufficiently responsible to be held liable for student failures to learn, even when parents can show they have been misled regarding their children's progress. Only in the case of "Hoffman v. Board of Education of the City of New York," in which a school failed to follow the recommendation of its own psychologist, did a trial court find negligence and award damages. The evidence suggests, however, that public demands for accountability and an increasing willingness to turn to the courts for relief from unsatisfactory educational programs will lead to successful educational malpractice suits in the years to come.

Recently seven students attending public schools in Detroit sued the state of Michigan in a Federal district court. Shortages of materials, not having skilled teachers, and poor conditions of their school buildings had deprived them of access to literacy, which, they argued, is essential in order to enjoy the other rights enumerated in the Constitution.

Doctors, lawyers, accountants, and financial advisers can be and are sued for malpractice. (One study reported that about half of surgical specialists were sued for malpractice at least once within a six-year period. Unlike doctors, lawyers, and other service providers, individual teachers are hired and monitored by districts and most decisions about curricula and materials are made at district levels. But why not sue districts? The answer is that such suits will probably lose. The reason is succinctly put by DeMitchell and DeMitchell: ‘While educators can be held liable for infringing on students’ rights and for negligence that causes students physical harm,?educators do not have a legal responsibility to educate students.”

But we do have an ethical responsibility to our students and ourselves if not a strong business case. Students and residents have choices. Just ask the emergency medicine residencies that did not fill their over 500 residency match slots.

To win a?medical malpractice case?before a jury, the injury victim needs to prove all the elements of the claim by a preponderance of the evidence. In general, a medical malpractice claim requires proving:?

1. There was a doctor-patient relationship and the doctor owed the patient a duty of care;?
2. The doctor breached the duty of care by deviating from what a reasonable doctor would do;?
3. The breach of care caused the patient’s injuries; and
4. The patient suffered harm or damages as a result.?

The twelve kinds of evidence above can be used to prove one or multiple elements of the?medical malpractice case.?

Medical educators have the authority and responsibility to provide students and trainees with the knowledge, skills, abilities, and competencies to practice medicine independently that complies with state licensure and specialty boards. However, that is merely the price of entry for clinicians, and we should raise the bar. For example, understanding how to practice medicine using a viable business model should be an ACGME competency. What should clinicians know about artificial intelligence? How about data literacy, data dexterity and clinical decision making and clinical judgment?

Unfortunately, while I did so, I was part of the US medical educational enterprise that neglected to provide students with several competencies that they need to surthrive in the present practice environment. Here are some.

There are many things that are getting in the way of medical education reform.

Yes, medical schools have lots of challenges.

Yes, the medical student and trainee persona has changed.

Yes, technology and COVID forced us to rethink what, who, how, why and when we teach.

But that does not excuse us from our mission to students and other multiple stakeholders. At best, not teaching the business of medicine, clinical innovation and entrepreneurship, personal financial planning, soft skills and many other subjects is at best sending troops to the front without the ammunition to win this war, not the last, and at worst medical educational malpractice.

Economic pressures like inflation and Medicare payment cuts are leading many doctors to pursue supplemental side gigs or moonlighting. In a survey of 2,000 physicians, nearly half (47%) reported they are likely to pursue a side gig, increase their patient caseloads or work additional hours to adjust for economic factors. They are looking for non-clinical career options and exit ramps.

Meanwhile, there is still no cure for academentia.

A recent poll about radiation oncology transitioning from residency to practice found that most physicians were not involved in the billing process in residency and felt that it was significant and wished that they had spent more time or learned about it prior to becoming an attending,” the authors wrote.

“Physicians who had some training and feedback about billing in residency felt more comfortable with billing, but a vast majority wished that this was taught in residency and medical schools,” the study says.

I'm trying now to address those gaps from outside in and my hope is that the statute of limitations for educational malpractice has expired.

Just in case, though, I increased my personal liability insurance and a tail for my medical education malpractice liability policy.

Arlen Meyers, MD, MBA is the President and CEO of the Society of Physician Entrepreneurs