tion in the United States and indications that the problem is increasing in Canada. He indicated a perceptive recognition of the potential effect on the quality of health care: "You get high pressure situations where the last thing you want is the person performing the service who is concerned that what he is doing... is legally safe as distinct from the medically advantageous." He suggested that consideration should be given to some form of a compensation plan to avoid medical malpractice lawsuits. "If we want to pay compensation to persons who have injuries during the course of medical treatment, I believe it ought to be done through a scheme that directs itself to the purpose of compensation and is not based on fault." Both ministers have recognized the implications for both physicians and the hospitals of increased medical malpractice litigation. It has become the norm, where malpractice or negligence lawsuits are undertaken, for the plaintiff to sue not only the attending physician but also the hospital and frequently hospital employees. During 1974 when 220 actions were taken against CMPA members, a hospital was also sued on 93 occasions. The solutions to Canada's current medical malpractice problems, like the causes, are unquestionably multiphasic. The professional conduct of each in-

dividual physician - the practice of excellent, careful, but not defensive medicine - is the obvious solution to the basic problem. Both the maintenance of accurate, complete records and the improvement of meaningful two-way patient-physician communication are essential. A definite 2-year provincial statute of limitation period from the date the professional services terminated would appear to be fair to all concerned. The United States experience should encourage the profession to oppose legislation which provides for undue discovery periods. Allowing patients a period of time following the indefinite point at which "he thinks, first has knowledge or could reasonably have come to the knowledge" that litigation against his physician is indicated is both unfair and unrealistic. Among other things it would mean maintaining office and hospital records almost indefinitely. Witnesses required to effectively defend such legal actions - the attending physician, assistants, office or hospital staff - not to mention accurate mental records of what occurred cannot be retained on an indefinite basis. While it has not yet created major problems, contingency billing should be outlawed by statute and professional ethics. Lastly, efforts should be made to halt extensive publicity and other fac-

tors that lead to an extension and intensification of the medical malpractice psychology, leading to increased medical malpractice litigation. The public must be educated not to have undue, unwarranted expectations. It must learn that, contrary to the suggestions of Marcus Welby and other mass media exposure outlets, the outcomes of expertly completed medical procedures are not always successful. There is no doubt in this author's mind that extensive Canadian newspaper and magazine reports on the US or Canadian malpractice situation will lead to additional legal actions against physicians. Similarly, while I can find no definitive proof, it is my opinion also that the advent of universal, government-sponsored, medical care insurance and the subsequent elimination of the Robin Hood image of the physician, coupled with the disappearance of the patientperceived financial link or contract with the physician, is also a factor in increased legal actions. The currently prevalent public image of the physician as one of the moneyed few, fair game for lawsuits, is also a factor. Action by the profession to prevent what Dr. Stephenson described as "the spread of the medical malpractice litigation epidemic north of the 49th parallel" is indicated and required on several fronts. There is no effective quarantine along the world's longest undefended border.E

The evolution of medical malpractice litigation in the United States By D.S. Rubsamen, MD, LLB The doctor is not liable for an honest mistake. If a patient suffers because an error in judgement by the physician, there is no liability either. At its most basic meaning, malpractice refers to an error of commission where the mistake is sufficiently obvious to elicit a comment from the objective observer, "That sort of thing should just never happen." In areas of the United States where malpractice litigation is still only a minor irritant, the foregoing mythology is accepted by most physicians. And the reality matches the myth for them, because their limited exposure to litigation is the result of a restriction of opportunity for the negligently injured patient to pursue his case in court. What is the source of this fundamental restriction? In general, the patient-plaintiff cannot successfully sue a physician or hospital unless an expert medical witness will appear in court on his behalf and

identify the substandard conduct which caused the patient's injury. To say a jurisdiction* has a minor malpractice Dr Rubsamen is one of the foremost US experts on medicolegal affairs. lie practised internal medicine In Califorala until 1962, since when he has been a consultant on medicat aspects of litigation. He has carried out two studies for the US government Into medical malpractice and currently serves on the board of governors Of the Americas College of Legal Mcdlvine. His article was specially commissioned by CMAJ. problem is synonymous with the statement that physicians in that area usually will not testify against colleagues. Also, an expert malpractice plaintiffs bar will not exist, lacking cases to develop *Jurisdiction has a variety of connotations. As used in this article it refers to states, territories and the District of Columbia.

.34 CMA JOURNAL/AUGUST 23, 1975/VOL. 113

real expertise in this highly complicated field. And the public, from whom juries are selected, will be more conservative about the value of an injury in the occasional case which does result in a malpractice award. This state of affairs was universal in the United States 25 years ago. Conspiracy of silence may be too harsh a phrase to characterize the then-pervasive reluctance of physicians to testify against one another, but it does describe the effect of this perceived mutuality of interest. Then, very slowly at first but with gathering speed, the status quo was altered in just two or three states. The evolution of malpractice litigation in California is illustrative. Beginning about the early 1960s, especially in southern California, the appearance of competent expert witnesses in malpractice cases became more than a rare occurrence. By the middle 1960s, the half-dozen first-rate

malpractice plaintiffs' firms in Califor¬ in malpractice cases. One of the pa¬ on finding at least one tient's physicians ordered a serum iron well-qualified medical witness to tes- determination, and the day before sur¬ tify in a meritorious case. gery this was reported as low. Thus, But there was an important limita¬ the anemia was definitely established as tion on their accessibility; the case had due to iron deficiency. An anesthesiolto be one involving either an error of ogist who checked the patient the night commission or a particularly obvious before surgery wrote in the chart, error of omission. Judgement errors, "sickle cell anemia." His partner who surrounded by complex medical facts, actually gave the anesthesia the follow¬ were not the subject of successful liti¬ ing morning testified that when he gation, because expert witnesses were checked the chart he saw the labora¬ not available to testify in this type of tory study. But it was his judgement case. Then further change occurred. that surgery could proceed. About 1968 medical expert witnesses Following the usual preoperative began to appear for the plaintiff and medication, the patient was given a to criticize the doctor-defendant's spinal anesthetic. Then, because she judgement. The earliest cases con¬ was fidgeting, sodium thiopental 2 ml cerned delay in diagnosis of breast was injected intravenously. The cardiac cancer. The plaintiff's attorney would arrest occurred at that point. Although point out to the jury that there is noth¬ testimony was somewhat conflicting, ing sacrosanct about a medical judge¬ the most favourable evidence for the nia could count

ment; a judgement, like any other feature of the physician's medical man¬ agement, can be substandard and can

be measured by objective criteria. The plaintiff's expert would analyse the critical question: did the doctor fail to make an adequate examination of the breast; did his description of the lesion indicate that it was of a type which should have been biopsied ear¬ lier; if treated earlier, would the prog¬ nosis have been different? Juries turned out to be quite willing to deal critically with the medical evid¬ ence and, in a number of these cases, returned verdicts for the patient-plaintiff. Before long, a large variety of judgement issues was being litigated. For example, in March 1971 a nor¬ thern California jury returned a $600000 verdict in favour of a 23-year-old married woman who suffered quadriplegia and severe intellectual deficit as a result of cardiac arrest during sur¬ gery. The patient was admitted to hospital in October 1967 for elective repair of

long-standing right inguinal hernia. laboratory workup identified a hemoglobin of 8.7 g/dl. There was equivocal sickling of some red cells in a

A routine

the blood smear. Because of the pa¬ tient's African ancestry her internist and surgeon felt the anemia probably was due to a sickle cell hemoglobinopathy. However, she had no history of sickle cell crises. Thus, the first error in the case was a diagnostic one the doctors failed to realize that with¬ out a history of crisis the diagnosis of sickle cell anemia can be ruled out in all but the most unusual case. The best alternative diagnosis was iron defici¬ ency anemia, of course, and in that case the patient should have been dis¬ charged until a normal hemoglobin level was restored with iron therapy. There then occurred a confusion in communication which seems common .

defence stated resuscitation was accomplished in 2 minutes. While the precise cause of the cardiac arrest was obscure, the expert witnesses for the plaintiff related it to the presumed hypovolemia and decreased oxygen-carrying capacity of the blood due to the patient's ane¬ mia. They were emphatic in stating that surgery should have been delayed.

Settled out of court Just before the trial began, the anes¬ thesiologist who administered the anes¬ thetic and the patient's internist settled their risk of liability for a total of $400 000. The trial resumed against the hospital and the anesthesiologist who saw the patient on the routine preoperative visit. The jury accepted the testimony of the plaintiff's experts that this anesthesiologist had an oppor¬ tunity to recognize the problem and re¬

commend that surgery be cancelled, yet he failed to do so. This was character¬ ized as substandard judgement. The hospital shared liability on the theory of ostensible agency with the anesthe¬ siologist. The jury's $600 000 verdict was reduced by the amount of the settlement. Perhaps the most complex issues concerning medical judgement will be developed in litigation arising from retrolental fibroplasia. In May 1973, just at the beginning of trial, a Los Angeles case was settled for $350 000. The patient-plaintiff was born July 11, 1968. He was premature, weighing 1736 g. Although in good condition at birth, within half an hour he showed signs of respiratory distress syndrome and was placed in oxygen. He was im¬ mediately seen by one of the two pedi¬ atrician defendants, who decided to transfer him to a neonatal intensive care unit. There the oxygen therapy was continued, and over the next 44

hours the

patient steadily improved.

point at which the oxygen should have been discontinued? The

Was this the

plaintiff

was prepared to present two expert witnesses, both neonatalogists, who would have testified that the med¬

ical records failed to justify continuing oxygen therapy beyond 45 hours after

birth. The

patient was kept in oxygen, however, for an additional 4Vi days.

The concentration varied from 30 to 50%. The patient then developed retrolental fibroplasia, and all the physi¬ cians who examined the child agreed this was a consequence of the protracted oxygen therapy. The defence was ready to argue that the duration of therapy and concentra¬ tion of oxygen were essential. They made the obvious point that retrolental fibroplasia is a calculated risk of oxy¬ gen administration to the distressed premature infant, so the physician must walk a tightrope between the danger of producing this complication with too much oxygen as opposed to the risk of death or brain damage because of oxygen restriction. Thus, his man¬ agement is strictly a matter of judge¬ ment.

Was the jury likely to accept the testimony of the plaintiff's witnesses? The two pediatricians who were sued were highly qualified, but it was a central position of the plaintiff that it was not their expertise that was mainly brought to bear on the case. Rather, the physicians who had the most direct and frequent contact with the patient were a first-year resident and an intern. If the jury believed these trainees were given a great deal of responsibility in the patient's care (and the medical rec¬ ords implied this) it could readily ac¬ cept the testimony of the plaintiff's experts. This is the reason the case was settled. The hospital contributed $100 000 to the settlement and the two pediatricians paid an additional $250000. Thus, in a question of judgement, it is a crucial issue just who exercises it. It is apparent that, once the question of judgement enters the litigation arena, the standard of care the jury applies may be very high. Where a trial is limited to errors of commission, mem¬ bers of a jury are likely to be dealing with reasonably straightforward facts. Expert testimony on the issue will prob¬ ably make much more sense to them than will testimony concerning judgemental errors, and aberrant jury ver¬ dicts are not very likely. But when a doctor's judgement is at issue, the standard of care to which a jury will hold him depends only on how critical the plaintiff's expert witnesses are will¬ ing to be and how sympathetic a jury feels for the injured patient. For example, early this spring a southern California jury returned a

CMA JOURNAL/AUGUST 23, 1975/VOL. 113 335

$200 000 verdict in a case involving delayed diagnosis of an inflammatory carcinoma of the breast. the beta5bronchodilator The patient-plaintiff was a 33-yearPRESCRIBING INFORMATION old nurse who consulted a surgeon in Indications October 1973, complaining of a reAlupentisindicated for thetreatmentofbronchospasm associated with, bronchialasthma, chronic bronchitis, pulmonaryemphysema, silicosis, cently discovered lump in her right tuberculosis, sarcoidosis, carcinoma of the lung. breast. The surgeon noted the lump Dosage As with all drugs, the ideal dosage of Alupent varies from patient to was tender and the skin overlying patient. The following recommended dosages represent general guidelines which will be found suitable for the majority of patients. somewhat reddened. He concluded Alupent Tablets 20 e.g there was a localized infection. A mainAges 4-12, 10 mg (/z tablet) t.i.d. above 12, 20 mg (1 tablet) lid. - q.i.d. mogram identified the lesion as equivoNupent Syrup 10mg/S ml cally malignant. Ages 4-12, 10mg (one teaspoonful) t.i.d. above 12, 20 mg (two teaspoonfuls) lid. - qid. It was the defendant's testimony at Alupent Mtered Aerosol One to two inhalations will usually provide control of an acute attack trial that he discussed the possibility of bronchospasm for periods of 5 hours or longer. As a general rule, patients should not exceed a total of 12 inhalatlons per day. of cancer with the patient but felt it Nupent SolutIon 5% was much more likely an infection. Hand nebulizer: 5 to 15 inhalations of 5% solution by hand nebulizer DeVilbias No. 40 or 42 administered up to three timeadaily. Intermittent The patient was given antibiotic therpositive preasure breathing: V2 to 1 cc of 5% solution diluted if desired and administered over a period of about 20 minutes. apy, and 2 weeks later she was much Side Effects improved. She was then taken off antiIn the recommended dosage, adverse reactions to Alupent are infrequent. Mild tachycardia, nausea, vomiting, palpitations, minimal hybiotics and told to return in 1 month. pertension, nervousnesa, bad taste and tremor have been reported. Two weeks later she telephoned the Precautions In acute tests, Alupent has shown minimal ettect on blood preasure doctor to say she had a flareup, and and pulse. The drug should be used with care, however in asthmatic or emphysematous petients who also have systemic hypertension, she was told to go back on antibiotic coronary artery disease, acute and recurring congestive heart failure, diabetes mellitus, glaucoma or hyperthyroidism. Extreme care must treatment and keep the appointment also be exercised in the concomitant use of Alupent wlIh epinephrine or MAO inhibitors. she had been given. On the third visit the patient stated Warnings Alupent should not be administered to pregnant women or to women the inflammation had subsided until the of childbearing potential unless in the opinion of the physician the expected benefits outweigh the poasible risks to the foetus. In rabbits, previous day when it again flared up. high oral doses(100 mg/kg)and low subcutaneous doses(0.2 mg/kg) have resulted in malformed ottapring in some experiments, but not in This time the defendant told her to others. Studies in the rat, mouse and rhesus monkey have shown no adverse ettect on the developing foetus. Other sympathomimetic drugs continue with antibiotic therapy for 2 tested, viz., ephedrine and phenylephrine produced leratogenic ettects in the rabbit when given orally at high doses as did isoproterenol given weeks, and if there were any doubt subcutaneously all ow doses. The significance of these findings is not known. after that a biopsy would be performed. However, clinical evidence presently available from the use of Alupent in pregnancy is limited. This time the antibiotic was ineffecOccasional patients have been reported to have developed severe tive, and the patient returned in 11 paradoxical airways resistance with repeated excessive use of sympathomimetic inhalation preparations. The causeolthis refractorystate days. The doctor then described a is unknown. It is advisable that in such instances the use of the preparation be discontinued immediately and alternative therapy insti"poorly defined area of rubbery induratuted, since in the reported cases the patients did not respond to other forms 01 therapy until the drug was withdrawn. Fatalities have been tion" about four times the size of the reported following excessive use of isoprolerenol inhalation preparations and the exact cause is unknown. Cardiac arrest was noled in original lesion. A biopsy on Dec. 27, several instances. 1973 identified an inflammatory carPatIents should be advised to seek medical aid in the event that they do not respond to their usual dose of a sympathomimetic amine cinoma. The pathologist who examined aerosol. The failure to respond may be due to retention of viscid bronchial secrstions, asaociated with an allergic or infective exacerbathe tissue saw evidence of associated tion of the petients condition. Increased airways resistance onthe besis of bronchospasnialone is reversed promptly by bronchodilators, and bacterial infection, thus explaining the I this does not occur, a more serious condition should be suspected. Admission to hospital for intensive support of the cardiovascular and patient's initial response to the antirespiratory systems may be necessary. biotic. Contraindications Known sensitivity to the drug or olher sympathomimetic amines. The The patient was treated with adreuse of Alupent and other beta stimulalors is generally considered to be contraindicated in patientawith cardiac arrhythmiasaasociated with nalectomy and oophorectomy, followed tachycardia. by radiation and chemotherapy. MasBeta blocking agents, e.g. propranolol, ettectivelyantagonizelhe action of Alupent. Their concomitant use, except in the treatmentol accidental tectomy was not done, since this does overdosage is therefore contraindicated. not improve the prognosis in inflammaAvaiiabiiity Alupent 20 mg tablets are available as round, white, single scored tory carcinoma of the breast. At the compreased tablets. They are printed on one side with the Boehringer symbol. Supplied in bottles of 50 and 500. time of trial there was no evidence of AlupentSyrup isclear, sugar-free and woodrutt flavoured. S ml contains metastases, but it was agreed by all 10 mg of active ingredient. Supplied in bottles of 125 ml. of the treating physicians that the paAlupent Metered Aerosol is supplied as a 15 ml metal vial (with free tient's prognosis for extended remission disposable mouthpiece) containing 300 individual doses. Each depreasion of the valve releases 0.75mg of active ingredient ass micronized powder. was poor. Alupent Solution 5% ix supplied in bottles containing 7.5 ml. The plaintiff's testimony regarding For full prescribing information, consuil the Alupent Product Monoher progress under the defendant's graph. treatment was at variance with the docOVER 1,300 PUBLISHED REFERENCES ON ALUPENT HAVE APPEARED IN THE WORLDWIDE MEDICAL LITERATURE tor's version. She said the antibiotic REFERENCES: therapy was never especially effective 1. Tala, E., et al., Poetgred. Med. J., 47 Suppl. 61, 1971. 2. Kennedy, M.C.S., and Jackson. S LO., B.M.J. 3:1506-1509, 1963. 3. Dane. P., and she contended the mass in her Postgred. Med. J., 47 Suppl. 56, 1971. 4. Data on file, B.I.C.L 5. Kennedy, M.C.S., Br. J. Clin. Pract., 17:563-565,1963.6. Holmes, T.H. end breast had steadily enlarged. Morgan, B., Clin. Pharm. and Therap., 9:615-624, 1968. 7. Hurst, A., Annals of Allergy, 31:400-466, 1973. The four witnesses who testified for the defence and the three who testified Boehrlnger Ingeiheim for the plaintiff all agreed there was IiiIIIIii) (Canada) Ltd. only about a 1 % chance, on the pa\UOEHHINUEHJ 2121 Trans Canada Highway tient's initial presentation, that this .4JNUELIIEIN..HEiN Dorval, P.O. H9P 1J3 particular symptom complex indicated a malignant tumour. The defendant World leader in bronchodilator reaearch stressed this fact when he noted his AIu.mi..mi9

orciprenalino . sulphate

reluctance to cut into the tissue, fearing an infected wound would produce an unsightly scar in this young woman. However, the plaintiff's experts asserted that, accepting the testimony of the patient concerning the relatively inadequate response to the antibiotic, a biopsy should have been accomplished within about 10 days of the initial visit. The defence experts characterized all aspects of the patient's treatment as perfectly standard. On the question of causation, that is the connection between the defendant's alleged substandard care and the patient's injury, there was a sharply conflicting point of view between the two sets of witnesses. While both sides agreed that the identical palliative therapy for the patient's condition would have been instituted even if the correct diagnosis had been made on the first day the patient was seen, the plaintiffs experts felt the 6- to 8-week delay in accomplishing the biopsy would make a difference in the patient's response to treatment. They referred to her "tumour burden", its accumulation with time and its effect on treatment success. But treatment success in this context was regarded as affecting longevity rather than any chance for cure. The defence experts characterized such reasoning as pure speculation. While the judge was considering the defendant's motion for a new trial the case was settled for $100 000. Thus, the plaintiff's attorney presumably felt that he had obtained a fortunate result. In this case, the jury actually awarded $200 000, but the plaintiff accepted a settlement of only $100000 rather than risk the hazards of a new trial. Increasing volume

I have seen few cases that illustrate more vividly the central problem with the jury system. This sort of problem is going to occur with increasing frequency as jurisdictions throughout the United States develop an increasing volume of cases dealing with alleged judgement errors. When there is a battle of the experts, involving difficult medical concepts, an inexperienced and lay group cannot be expected to sift through the wheat and chaff of the testimony. Thus, it is necessary to move to a more accurate technique for resolving conflicting testimony in malpractice litigation. Either a binding arbitration system or an experienced judge sitting without a jury in a special court (as is at present done in the United States with bankruptcy and patent cases) is necessary. A more dramatic, and thefore more newsworthy, change in US malpractice litigation over the past several years

CMA JOURNAL/AUGUST 23, 1975/VOL. 113 337

has been the acceleration in claims in¬ cidence and severity. Again taking the example of California, about 25 of every 100 physicians will experience a claim this year.* The severity of claims, that is their ultimate average value, has changed drastically in the past several years. A few statistics from California's experi¬ ence describe this fact. In 1969, there two were three awards in California verdicts and one out-of-court settlement of $300 000 or more. In 1970 there were 5; in 1971, 9; in 1972, 14; in 1973 about 26; and in 1974 ap¬ proximately 36. Taking only the awards of $1 million or more, there have been 20 in Cali¬ fornia's history. Fifteen have oc¬ curred since February 1973. Through¬ out the United States there have been approximately 40 of these million-plus malpractice awards. At least 30 have occurred in the past 3 years. In New York, New Jersey, Florida and the metropolitan areas of three or four other jurisdictions, the evolution of malpractice litigation over the past 10 or 15 years has been similar to that in California. The past 2 years has seen an extraordinary acceleration in about 15 other jurisdictions. While they still have a moderate problem com¬ pared to California's, perhaps being 10 years behind that state's experience, there is no reason to believe that the evolution, once started, will not mature .

as

fully.

This still leaves a majority of United States jurisdictions either at an early stage or at a point of essential quiescence. Most of these states have a strict locality rule that is, a require¬ ment that only a physician in the local community can testify against another physician in that community. Because of the inevitable collegiality among doctors in the same locality, this is very effective in maintaining the status quo in malpractice litigation. So far I have discussed the US mal¬ practice problem as it applies to courtroom litigation. But there is another feature to it, and this accounts for the well-publicized crisis which has recent¬ ly occurred. This was a crisis of mal¬ practice insurance rates and coverage. Why should the United States' malprac¬ tice insurance carriers suddenly have arrived at a conscensus which resulted *A claim will exist when the insurance carrier is notified of a possible future loss and then opens a claim file. Most commonly, it is the physician's own communication to the company that discloses some injury. Less often, a com¬ pany first knows of the claim when a lawsuit is filed. In a single lawsuit a dozen physicians may be named by the plaintiff's attorney, so there will be a dozen claims involved in that one patient injury. Thus, the claims incidence in any given jurisdiction is a highly inflated figure compared to the incidence of suits filed, but the change from year to year provides a highly significant comparison. For example, the claims incidence in California S years ago was about 14%.

338 CMA

Failing stocks bear down

on

in doubling and tripling of rates in many states? And in some of these states the malpractice litigation experi¬ ence is far from bad. Sceptics have said the sharp drop in the stock market, culminating in December 1974, was the critical factor in bringing about this crisis of coverage and rates. This drop in the value of market equities must be seen in the context of an insurance company's method of operation. A company's surplus is the fraction of the premium dollar left over after all legal costs and losses have been paid. A company which writes a large amount of insurance needs a large accumulated surplus otherwise, un¬ expected large losses could clean out the surplus and leave the company insolvent. Accordingly, state insurance commissioners require that premium collected not exceed a certain ratio of the existing accumulated surplus. Now postulate a sharp shrinkage in that surplus. This could be caused

by unexpectedly heavy underwriting losses and reserving for future losses. But to the extent surplus funds have been placed in common stocks, a sharp drop in the stock market will bring about a drastically reduced surplus. Many insurance companies in the

United States were overinvested in common stocks in 1973 and 1974 and suffered critical losses, sometimes exceeding 50% of surplus. In those cases the ratio of surplus to gross premium was increased and the capacity prob¬ lem occurred.

JOURNAL/AUGUST 23, 1975/VOL. 113

market in malpractice insurance

Some companies dealt with the prob¬ lem by cutting back certain existing lines of their insurance. Which ones were selected? Largely, it would be the most unstable lines of business and this meant that malpractice insurance would be the first to go. Several articles in insurance and financial journals have been written about this problem, and it is generally regarded as one of the reasons for the shrinkage in the number of companies willing to write malpractice insurance in the United States. Three years ago there were more than 20, and today there are about 10, 6 of them writing on a na¬ tional scale. And those companies which decided to continue insuring physicians and hospitals sharply revised their estimates of the risk involved. Whereas a few years earlier they were willing to take an optimistic view of future losses, now there is a markedly different attitude premiums charged assume the most pessimistic prognosis for claims incidence and severity. Problems of reinsurance must not be ignored. The reinsurance carrier accepts a premium from the primary car¬ rier in return for covering a certain proportion of the risk. For example, when a physician purchases $1 million in coverage from a private company, that company may actually retain only $100 000 of the risk. The balance will be distributed by the company among one or more reinsurance carriers. Until about 6 years ago, malpractice rein¬ surance carriers had a virtual free ride. It was only a rare case which exceeded

the primary carriers retention, and so the reinsurance carrier's charge to the primary carrier was low. But the pattern of high losses which began in the early 1970s, occasioned frequent recourse by the primary car¬ rier to reinsurers, and several-fold pre¬ mium increases charged by reinsurers to the primary carriers resulted. Final¬ ly, last winter the reinsurance market for malpractice insurance virtually faded away. Throughout the United States malpractice reinsurance is now extremely difficult to obtain, and when available it is at a very high premium. The attitude of reinsurance carriers is characterized by many authorities as a fail-safe approach. That is, whereas at one time they were willing to make the most reasonable estimate they could concerning future losses, today they

later the trend will catch up with every United States jurisdic-

sooner or

tion and probably Canada as well. So it is not too early to decide that ra¬ tional techniques for fact finding should be introduced. At least the size of the problem will then be accurately evaluated.

Mandatory screening, preliminary to jury trial, has been suggested as a com¬ promise short of doing away with the jury altogether. Every plaintiff would have to present his case before a group of well-qualified individuals, and their decision would be disclosed to the jury if the losing party decided to carry the case to court. This informal and effi¬ cient method of fact-finding would dispose of the substantial number of mal¬ practice lawsuits which are devoid of merit. Carrying these through trial is an expense to both parties, even though

charge a sufficiently high premium to avoid an ultimate loss under the worst doctor-defendants win almost all these cases. possible loss trend. Methods of payment for medical in¬ How much compensation? jury can be substantially rationalized. Under current law, the seriously in¬ At some point in dealing with the jured patient receives a lump sum from development of malpractice litigation the jury in payment for all future med¬ in the United States, one must ask the ical costs. If he outlives the amount central question: is it possible to com- of money paid he may become a wel¬ pensate the negligently injured patient fare case. If he dies soon after trial his under the tort system as it exists? heirs receive a windfall. Accordingly, If one accepts experience in the month-by-month payment for all future high-risk jurisdictions as the pattern of medical costs is rational. By the same the future, the answer is no. Losses reasoning periodic payment for future will simply be too great to support wage loss is logical. through any private insurance scheme. Currently, United States juries are Therefore, the next question concerns not permitted to know about the pa¬ the sort of reforms in the tort system tient's health or disability insurance. In which are necessary. a case of serious injury these sources First, what about the method of de- of insurance may pay for substantially termining negligent injury? What would all the patient's future medical costs. be the consequence of discarding the So when the jury gives the patient an jury system in favour of specialty award for these special damages he re¬ courts or arbitration? ceives a double recovery. In a rational At least in terms of cost evaluation, system a jury would be informed about this question is more easily dealt with these collateral sources of income. than one might expect. It seems reason¬ In most US jurisdictions the jury is able to start with the premise that not allowed to know about a plaintiffjudgemental errors will have to be widow's remarriage. So the jury may compensated. As I have indicated, a see the widow and four children as substandard judgment is just as much a waifs in life's storm if they are not failure to exercise due care as a sub¬ given a substantial recovery, little realstandard overt act. And, as every phy¬ izing that the widow has remarried a sician knows, judgemental errors out- wage earner. Disclosure of remarriage, number errors of commission many then, is a further logical reform. times over. So moving from a jury system to a more objective technique for resolving Contingency fees facts will actually increase rather than In the United States, nothing carries decrease malpractice litigation and the incidence of awards. This is so because such a volatile emotional charge as the the great majority of US jurisdictions contingent fee of plaintiff's attorney. The contingent fee arrangement is deare not litigating a significant number of cases involving judgemental errors. fended by attorneys as the plaintiff's Why, then, leave the jury system key to the court house door. There is behind? Because it is basically irra- no question that malpractice litigation tional. A state which remains with the is extraordinarily expensive, many cases jury system may hold back the flood costing the plaintiffs attorney $10- to of malpractice litigation for a time, but $20 000 before trial even begins; with-

Locasalen for the treatment of chronic eczema Indications

LOCASALEN is intended for the treatment of subacute to hyperchronic inflammatory and/or dysplastic skin dis¬ eases, as well as hyperkeratotic conditions in particular.

The indications for LOCASALEN thus include chronic constitutionai eczema or neurodermatitis; chronic exo¬ genous eczema irrespective of origin, (e.g.: skin disorders due to attrition, occupational eczema); chronic eczema of microbialor mycotic origin; tylotic eczema; hyperkeratosis as encountered in ichthyosis or chronic dyshidrosis; pustulosis of the palms and soles; lichen planus; chronic cuta¬ neous lupus erythematosus; psoriasis.

and Administration Dosage As a rule LOCASALEN should be applied once or twice

daily when dressings are not used and once daily when employed under occlusive dressing. It is not usually nec¬ essary to cover the treated area. The thickness of the layer should vary depending on the nature and severity of the skin disorder, since in this way, it is possible to regulate moisture retention. In cases in which transitory exudative must be anticipated, LOCASALEN should be applied in a very thin layer, thereby allowing larger quantities of mois¬ ture to be released through the film of ointment. LOCASA¬ LEN can also exert an occlusive effect but only if applied in a thick layer. It penetrates well into the skin and when rubbed in thoroughly, leaves on the skin a transparent, oily film that can be removed with soap and water or a skin cleanser. Excess film can be removed relatively well with paper tissue. scarcely leaving any perceptible sheen.

Adverse Reactions

The local tolerability of LOCASALEN proved to be very good.Cases in which local irritation made it advisableto discontinue the medication accounted for less than 2% of the total number of patients treated. Adverse reactions consists mainly of local reddenina of the skin, desquama¬ tion, pruritis and smarting. LOCASALEN contains no preservatives, odour correcting agents, emulsifiers, stabilizersor antibiotic supplements which have been recognized as potential sensitizers. Hypersensitivity to salicylic acid can occur; however, the incidence in the populat'on as a whole is approximately 0.2%. Systemic side effects attributable to the transcutaneous absorption of salicylic acid or flumethasone pivalate have not been reported. Absorption of salicylic acid does occur; however, investigations have shown that irrespective of the amount of LOCASALEN employed, and even applied under occlusive dressings. plasma concentrations of salicylic acid did not exceed ordinary therapeutic levels as a result of transcutaneous absorption. Investigations have shown that under extreme conditions.where 40 to 60 grams of ointment were applied daily to 80-90% of the body surface under occlusive dressings.plasma cortisol and urinary steroids have been observed to decrease below normal levels. This decrease proved transitory and was not accompanied by any clinical symptoms.

Warnings LOCASALEN is not indicated in acute weeping or

suba cute exudative stages. As transcutaneous absorption of the salicylic acid compo¬ nent may give rise to systemic effects, LOCASALEN should not be applied to extensive areas of the skin in small children or pregnant women. Likewise corticoste¬ roids are known to be absorbed percutaneously, therefore in patients requiring applications of LOCASALEN to extensive areas or for prolonged periods, adrenal function should be carefully monitored. All contact of the drug with the eyes, mouth, mucous membranes should be avoided.

Precautions

If sensitivity or idiosyncratic reactions occur.LOCASALEN should be discontinued and appropriate measures taken. The safety of the use of topical corticosteroids in pregnant females has not been established. Therefore they should not be used extensively on pregnant patients in large amounts or for prolonged periods of time. Patients should be advised to inform subsequent physicians of the prior use of corticosteroids. In the presence of an infection, the use of an appropriate antif ungal or antibacterial agent should be instituted. If a favourable response does not occur promptly, LOCASALEN should be discontinued until the infection has been adequately controlled.

Contraindications

Tuberculosis of the skin, syphilitic skin affections, viral and

acute fungal infections of the skin. Systemic fungal infec¬ tions. This preparation is not for ophthalmic use. LOCASA¬ LEN is contraindicated in individuals with a history of hypersensitivity to its components.

Supplied Flumethasone Pivalate 0.02% and ment in tubes of 15 gm and 50 gm.

salicylic acid 3.0% oint¬

CIBA Dorval, P.Q. C-4011

CMA JOURNAL/AUGUST 23, 1975/VOL. 113 339

Aldactazide® "The best initial approach ... to the treatment of essential hypertension Pharmacology: Spironolactone effects diuresis by blocking through competitive inhibition, the sodium and water retaining and potassium escreting effects of aldosterone on the distal renal tubule. Hydrochlorothiazide promotes escretion of sodium and water primarily by inhibiting their reabsorption by the cortical diluting segment of the renal tubule. Thus the components of Aldactazide have different and complementary modes of action. In addition, spironolactone minimizes potassium loss characteristically induced by hydrochlorothiazide, thereby reducing the possible serious consequences of potassium depletion. Indications: The treatment of essential hypertension: the edema and ascites of congestive heart failure, cirrhosis of the liver, the nephrotic syndrome and idiopathic edema. Contraindicationa: Acute renal insufficiency: rapidly progressing impairment of renal function: anuria: hyperkalemia: patients known to be sensitive to thiazides or other sulfonamide-derived drugs: patients with severe or progressive liver disease at the discretion of the physician: nursing mothers: sensitivity to spironolactone. Warnings: Concurrent potassium supplementation is not indicated unless a glucocorticoid is also given. Aldactazide should not be used in conjunction with other potassium conserving agents. Pracautiona: The most potentially serious electrolyte disturbance is hyperkalemia which is more likely to occur in severely ill patients. If hyperkalemia occurs, discontinue Aldactazide. Hypokalemia may develop. Use cautiously in patients with sodium depletion. Check for signs of fluid or electrolyte imbalance. The most frequent electrolyte disturbance encountered is dilutional hyponatremia. Rarely a true low-salt syndrome may develop. Decrease dosage before diuresis is complete to avoid dehydration. Thiazide diuretics may precipitate hepatic coma. Use with caution in patients subjected to regional or general anesthesia. Discontinue 48 hours prior to elective surgery as both hydrochlorothiazide and spironolactone reduce vascular responsiveness to norepinephrine. Orthostatic hypotension may occur. Thiazides may increase responsiveness to tubocurarine. Pathological changes in the parathyroid glands have been observed. Consider the possibilities of sensitivity reactions in patients with a history of allergy or asthma as well as esacerbation of systemic lupus erythematosus. Thiazides may cause elevation of BUN. Aldactazide may potentiate the effect of other antihypertensives especially the ganglionic blocking agents. The dosage of such drugs should be reduced at least 50% when Aldactazide is added to the regimen. Spironolactone interferes with the assay of plasma cortisol but not the Ertel method. ASA may interfere with the action of spironolactone. Use with caution in patients with hyperuricemia or history of gout. Insulin requirements may be increased, decreased or unchanged in diabetics. Hyperglycemia and glycosuria may be manifested in latent diabetics. Use with caution in women of childbearing age and weigh benefits against the possible hazards to the fetus. Adversa Effects: Nausea or other gastrointestinal disturbances, gynecomastia or mild androgenic manifestations have been reported in some patients. Other side effects including those of hydrochlorothiazide occur less frequently. Overdose: Symptoms of Overdosage: Acute overdosage may be manifested by drowsiness, mental confusion, maculopapular or erythematous rash, nausea, vomiting. dizziness or diarrhea. Rare instances of hypokalemia. hyponatremia, hyperkalemia or hepatic coma may occur. Thrombocytopenic purpura and granulocytopenia have occurred with thiazide therapy. No specific antidote. Treat fluid depletion and electrolyte imbalances as indicated. Dosage: In essential hypertension, a daily dosage of 2 to 4 tablets, in divided doses, will be adequate for most patients. provided the treatment is continued for 2 weeks or longer. Dosage may range from 2 to 8 tablets daily. Dosage should be adjusted according to the response of the patient. In edematous states, a daily dosage of 2 to 4 tablets, in divided doses, will be adequate for most patients but may range from 2 to 8 tablets daily. Dosage should be adjusted according to the response of the patient. Supply: Each round, ivory-coloured tablet contains. spironolactone, 25 mg and hydrochlorothiazide, 25 mg. Available in bottles ofiQO, tODD and 2,500 tablets. Complete prescribing information available on request. Raferences 1. Cecil-Loeb, Testbook of Medicine, P. B. Beeson & W. McDermott, eds. W. B. Saunders, Philadelphia. 1971. 13th edition, pp. 1050-1062. 2. Mendlowitz, M.: "Systemic Arterial Hypertension": Charles C. Thomas, Springfield. Illinois: (1974). 3. Hollander, W. and Wilkins, R. W.: Progr. Cardiovasc. Dis.. 8: 291-318 (Jan.) 1966. 4, GantI, C. H.: "Diuretic Therapy", Rational Drug Therapy 6. No. 8 (Aug.) 1972. 5. Dustan, H. P. in Page. I. H. (Moderator and Editor): Dustan, H. P.: Freis, E. D.: Stamler, J.. and Wilkins, R. W. (Discussants): Symposium of Hypertension. Mod, Med. 49: 74-113 (March 20) 1972. Copies of all clinical reprints available on request.

. Searle Pharmaceuticals Oakville, Ontario

out the contingent fee system, malpractice litigation unquestionably would still be dormant in the US. The likelihood of recovery in many substantial, meritorious cases is sufficiently equivocal to forestall litigation unless the plaintiff's attorney can look for a high return in the case of a win. So the plaintiff's bar seems to have the better part of the argument in retaining the contingent fee. But the fact remains that the scale of recovery under our contingent fee system is almost totally irrational. It is important to realize that contingent fee arrangements in the United States arose in the 19th century at a time when a $100 000 recovery for personal injury was rare. Today, when million-dollar awards are becoming common, the one-third, 40% or even 50% contingent fee contract brings the plaintiffs attorney a bonanza which was never intended. Therefore, a scaling of the contingent fee is obviously a legitimate reform. In California several groups regard a feasible arrangement as one where the plaintiff's attorney receives 40% of the first $50 000, 33½ % of the next $50000,.25% of the next $100000 and the.r 15% of all the recovery over that amount. The fees are figured after all li.ation expenses have been paid. Finally, payment for pain and suffering constitutes a substantial portion of large malpractice verdicts. It seems likely that control on these payments will be necessary in order to keep malpractice losses at a level which can be insured. In Indiana, a complex medical malpractice law has been passed which limits the patient's total recovery to

$500 000. It is felt by many attorneys that such an absolute limitation on recovery will prove unconstitutional, because in many cases future medical costs alone will exceed that amount. One cannot view the malpractice litigation problem in high-risk US jurisdictions without asking the question, how can patient injuries be reduced? Hospital corporate responsibility is an emerging legal doctrine. This requires hospitals to exercise due care in implementing quality control and peer review programs which will reasonably protect patients against negligence by the independent physicians on the medical staff. The high courts of only a few states have adopted the rule, yet it seems to have a bright future. * And the Joint Commission on Accreditation of Hospitals (JCAH) has recently established more strict standards for audit of physicians' inhospital performance. It is the essence of this judicial trend and of the JCAH standards that the physician no longer may consider the hospital as his workshop, a convenient facility where he carries on totally independent care of his patient without interference. Some hospitals have already made the changeover, and the rest will inevitably follow. The hospitalized patient will become the focus of a system of care designed to achieve an optimal result. Central features of this new era are restriction of the physician to those medical functions he performs excellently and a continuous concern with the process of the pa-

FAMILY PLANNING continued from page 321 12% means an actual reduction in the services which can be provided. The funds provided to the major voluntary agencies do not permit them to meet the true needs. Also, there appears to be a lack of information on how much money is being spent on family planning in Canada, making it difficult to assess how much is needed from sources other than the federal government.

FROM THE MONIES PROVIDED THROUGH EXISTING FEDE.AL GRANTS, PLANS AND PROGRAMS.

RECOMMENDATION Iii: THAT THE FUNDS ALLOTED TO THE FAMILY PLANNING DIVISION OF THE DEPARTMENT OF NATIONAL HEALTH AND WELFARE BE INCREASED TO TAKE INTO ACCOUNT THE GREATER NEED FOR FAMILY PLANNING SERVICES ACROSS THE COUNTRY. RECOMMENDATION Iv: THAT A FUND FOR FAMILY PLANNING SERvICES BE DEVELOPED AT THE FEDERAL LEVEL IN COOPERATION WITH PROVINCIAL GOVERNMENTS, SUCH FUND TO BE SEPARATE

tient's treatment.E *For a detailed review of this legal development see RUBSAMEN DS: Even More Legal Controls on the Physician's Hospital Practice. N Engi I Med 292: 917, 1975

As indicated earlier, there is a scarcity of family planning clinics in general hospitals (23 out of 900 in 1971). This resistance is further exemplified by the reluctance of many hospitals to permit sterilization, whether male or female. Hospital boards, administrators and physicians have sheltered behind a variety of excuses as to why family planning facilities and procedures should not form part of the services provided. RECOMMENDATION V: THAT PROVINCIAL AND TERRITORIAL GOVERNMENTS ENSURE THAT PUBLIC HOSPITALS PROVIDE FAMILY PLANNING SERVICES, INCLUDING SURGICAL PROCEDURES, AND THAT SUCH SERVICES SHOULD BE READILY AVAILABLE TO ALL RESIDENTS OF CANADA. RECOMMENDATION VI. THAT CONSIDERKflON BE GIVEN BY THE (CANADIAN) COUNCIL ON HOSPITAL AC-

CMA JOURNAL/AUGUST 23, 1975/VOL. 113

341