Sunday, December 6, 2009

Medical Malpractice Strikes Again! A New Confession


I’m surprised that they haven’t thrown me out of the profession yet. In the past year alone, I have been sued for medical malpractice, committed a ‘never event’ and confessed to performing an unnecessary medical test on a patient. It’s a wonder that my medical license hasn’t been revoked. Keep in mind that the above events are only those transgressions that I have admitted to. Imagine the misdeeds, misadventures and misconduct that I’ve kept secret. Are handcuffs in my future?

For example, I should I have come clean that a 2nd medical malpractice case was recently filed against me. I received the thick envelope from noble and altruistic Cleveland barristers about 6 weeks ago. Once again, I saw my name in the good company of many other physicians and our local hospital. I reviewed my medical records and felt comfortable with the care I had provided. In a medical malpractice case, quality of medical care is important, but the truth won’t set you free. It’s the documentation, stupid! I believe that I practice good medicine, but I know that I am an obsessive documenter. The former is important to my patients, and the latter is appreciated by my lawyer.

I had a single meeting with my attorney to review the legal preliminaries. It was clear that he had studied all of the relevant documents and was prepared. He was a senior partner at the firm and looked so much like a lawyer, that I thought he must be an actor. He donned a well tailored conservative suit and had elegant silver hair. He wore reading specs that conveyed a professorial demeanor. He was measured in his speech. Did he know any law? I hope so, but who can tell? As marketers and advertisers know, packaging is more important than the contents.

I had no clue where my standard of care may have strayed from the community standard. Only a person with a law degree can make such a determination. After all, what do we doctors know about medical quality? A physician cannot be expected to offer an authoritative opinion whether medical care is within acceptable standards as would be practiced by a reasonable and prudent physician if said physician were faced with similar clinical circumstances and knew, or should have known, that the patient, known as "Victim A", had a condition or set of conditions that within a reasonable degree of medical probability may have resulted in an adverse outcome had the physician not instituted prudent and proper medical care and treatment in accordance with established medical custom and practice. (Disclosure: Legalese concocted by the Whistleblower and may not conform to the community legal standard.)

Making a medical standard of care determination is certainly beyond the intellectual reach of a concrete thinking gastroenterologist who spends a good portion of his time in rectums. Lawyers, however, are paid handsomely to unravel such insoluble questions. So, at the close of our meeting, I asked him straight out why he thought I was being sued.

The wizened attorney thought for a minute before responding. He leaned towards me and with focused eye contact stated, “I have no idea”. That made two of us.

In Ohio, filing a medical malpractice case against a doctor requires that a physician sign an affidavit of merit, a sworn statement, attesting that the standard of care was breached. While these affidavits are generally signed in advance of filing suit, judges will give plaintiffs some latitude and permit the case to be filed if an affidavit will soon follow. I am in this window period, when the plaintiff’s attorney is trolling around the state trying to pay off one of my colleagues for a signature. I don’t think he’ll find one, even though this service can earn a physician up to $1,000 an autograph. Maybe some of these guys should be thrown out of the profession.
How does anyone credibly defend a system that targets innocent physicians routinely, vaporizes tens of billions of dollars on defensive medicine and misses the vast majority of patients who have been the victims of true negligence? If physicians performed according to these standards, we'd all be in handcuffs.

21 comments:

LeisureGuy said...

How about this story? It strikes me that $350,000 for killing an infant is rather low.

Ariella said...

On an unrelated note, wondered what you thought about this:
http://www.newsweek.com/id/224585

WhiteCoat said...

LeisureGuy -
It is interesting that the telltale "purplish rash" didn't start until the day *after* the mom brought the patient to the emergency department.
Are you saying doctors should be charged with murder for failing to perform lumbar punctures, perform extensive lab testing, give IV fluid and give IV antibiotics to every febrile infant whom the parents state is "lethargic" and not eating? If so, perhaps you could find one ... just one ... medical source to substantiate your assertion.
$350,000 is low for "killing" someone, but usually it is a good idea to first establish that something was done wrong.

Dr. Kirsch, you should seriously consider filing a complaint with the state and filing a counterclaim against the attorney who named you in the lawsuit without a good faith basis.

Michael Kirsch, M.D. said...

Ariella, appreciate the Newsweek link. The Cleveland Clinic, where physicians are all on salary,has impressive efficiency and technology. They treat incredibly complex conditions routinely. The article admits that their leadership wants to run the Clinic like a business, which is usually not a comfortable environment for physicians to work in. I have also observed that institutions like the Clinic perform a much higher volume of medical care per patient than many of us do in private community medicine. Excessive care and specialty consultations can have deleterious effects on patients.

Michael Kirsch, M.D. said...

To White Coat, the way my year has been going, I may take up your suggestion as a 'side business' this year!

Anar said...

Thanks Ariella for that link. It was a great read! Interesting Quotes:
"If you do a catheterization into the three branches of the cerebral artery, is that one procedure or three? Lyman Sornberger, executive director of patient financial services, keeps asking the insurance companies for their rules so he can submit a "clean claim," but without much success. One reason, he suspects, is that it would "upset their assumptions." That is a polite way of saying that insurers count on rejecting a proportion of claims the first time they are submitted, delaying as long as possible the disbursement of actual cash."

"The same study estimated that another $210 billion is wasted each year on medical paperwork. That, though, is one potential savings that has mostly eluded Cosgrove. At the clinic's patients' accounts office, rows of cubicles are piled high with file folders and printouts, testimony to its dealings with thousands of different health plans from hundreds of insurance companies all over the country. Thousands of times a day, clerks pick up the phone and get put on hold like anyone else who calls an insurance company. Industry estimates put the average cost of handling a phone call at $3, to each party. This is the hidden cost of competition; whatever else a government-run health-insurance system would accomplish, it would impose a uniform billing system on the current one, in which clinic's 2,000 doctors require 1,400 clerks to handle their billing."

>Single Payer sounds good to me from a financial stand point at least.

Gerry Oginski said...

Michael- I am a medical malpractice trial lawyer in New York and I like the way you write. Your post was engaging, interesting and provocative.

It always disturbs me when a plaintiff's attorney cannot clearly explain why he has sued someone. In New York, we also have a requirement that any potential case must be reviewed by an expert physician before we file suit. The difference in New York is that there is no signing requirement by the physician. Rather, the attorney must affirm that he has consulted with an experienced physician who confirms liability, causation and damages.

Good luck in your case.

Gerry Oginski, Esq.
http://www.oginski-law.com
http://nymedicalmalpracticevideoblog.com

Michael Kirsch, M.D. said...

Thanks Gerry. I've had quite a bit of lawyerly feedback on my tort reform views, but yours is the only comment suitable for framing.

Justinian Lane said...

I have no desire to handle any medmal cases once I graduate law school. I spent a couple years in a firm that did handle them, and they just aren't something I'm interested in. That said, let me share with you the traits every plaintiff we worked with had in common:

1: Something unexpected happened to them while they were receiving medical care.

2: They felt that the medical provider was hiding something.

3: They wanted to make sure it wouldn't happen to someone else.

4: They didn't want money. They wanted the medical provider's money as a form of punishment to that provider.

I heard the same comments over and over. Every plaintiff was angry at how a medical provider (usually a doctor) treated them. And by treated, I mean interacted with. People hate being talked down to, and hate the person talking down to them even more.

All of the above reasons contribute to why some innocent physicians are targeted. The "sorry works" program helps alleviate some of those problems.

Do you, as a doctor, have any suggestions on how to help those people who are true victims of negligence?

Anonymous said...

Michael, you are so right about documentation. It's too bad that patients are not more aware that they need to take the same approach. But what doctor isn't miffed to receive a fax from his/her patient, recapping what was discussed during an appointment? Then again, what other options do patients have to make sure they aren't being blown off?

Michael Kirsch, M.D. said...

To Justinian, with regard to your inquiry, "Do you, as a doctor, have any suggestions on how to help those people who are true victims of negligence?" Going beyond your question, should all patients who suffer adverse reactions be compensated, even if no negligence has occurred? For example, if 2 patients suffer perforations of their colons from a colonoscopy, but only 1 of these episodes was a negligent event, would only 1 patient be compensated?

LeisureGuy said...

@WhiteCoat: Apologies for delayed response. Yes, the rash didn't happen until the following day. What the doctor was presented with:

"Dylan was lethargic and had a fever. He wasn't eating. He couldn't breathe.

"The doctors in the emergency room sent him home after about 45 minutes. "They
never even undressed him," she said."

But that's not the real point of the piece. If you read the entire article carefully, you will discover that it talks about how capping awards ("tort reform") makes it almost impossible to bring malpractice lawsuits---which, of course, is the actual goal. Not, note, to minimize malpractice, just to minimize the penalties for malpractice. I have a problem with that.

And to a layman's eye, it doesn't look as though the child, experiencing difficulty in breathing, with a fever, got a thorough exam. And apparently, after hearing ALL the evidence and the best defense that could be mounted on behalf of the hospital and doctor, the jury agreed. They were found guilty. The decision, based on evidence, was that malpractice had occurred. I don't think you can gainsay the verdict based on all the evidence by an offhand reference to a sentence in a newspaper story.

Michael Kirsch, M.D. said...

For your interest, from this week's New York Times. http://bit.ly/7IIbft

robertsfight said...

Medicine is not perfect and neither is the justice system but yet we are more focused on restricting peoples right when we should be more focused on preventing mistakes and getting bad docs out of the business. It is easier to go after lawyers, people who are the only individuals that will fight for patients.

Will you support the Medical Device Safety Act of 2009?
stopcorporateimunnity.org

Michael Kirsch, M.D. said...

Personally, I believe that the health care system is much more just than the medical liability system. I agree that individual rights should be protected. I agree that every patient who has been the victim of medical negligence has a right to sue and prevail. Our current system fails in this mission. It misses most cases of true negligence and ensnares far too many innocent physicians into the legal web. The innocent have rights too, especially when they are captured by the system routinely and by design.

Anonymous said...

This is all interesting from a physician's standpoint. As a patient who underwent surgery, and discovered the physician deviated from FDA guidelines when the device was stated to be unsafe...furthermore, to be told by more than one surgeon that the device was not put in properly when I couldn't get an explanation from the original surgeon as to why I've been in excrutiating pain and had to seek help elsewhere...when my entire quality of life was ruined because I was used as an experiment and I can't do simple things with my children, am under permanent pain management for life, and have nothing to look forward to except daily chronic pain...God BLESS the physician who does the right thing by me and gives an attorney approval for medical malpractice. God bless that attorney for assisting me because I have to pay for another surgery, have been forking out the dough for
medications, and have undergone plenty of tests to figure out what happened because I was lied to by the surgeon. Did I leave out how this has turned me into an angry person who is completely depressed because the one shot I had to make things right turned into a complete nightmare? I'm sure this is not the type of post you want up here, but I'm living in a burning hell as a prisoner in my body every day of my life since the surgery, and it might have been a lot easier on me had the surgeon told me what went wrong instead of me having to endure this pain and trying to figure out what happened.

Jonathan said...

Medical Malpractice is the failure of medical professionals to provide adequate treatment to patients resulting in a personal injury or substantial loss of income. It is a primary part of our personal injury law practice. Lawyers have an obligation to make appropriate use of our legal system and not pursue meritless cases. We take this responsibility seriously. And to ensure that we do not bring frivolous lawsuits, each case goes through a rigorous review process. Each case of suspected medical negligence is thoroughly evaluated by one or more highly qualified medical experts who then certify by affidavit that there is a valid basis for filing suit against a physician or hospital. Visit Medical negligence for more information.

Michael Kirsch, M.D. said...

Case Update: The plaintiff was supposed to produce an affidavit of merit against me by January 8th, weeks after the case was filed. In my humble opinion, I would think that an affidavit should be produced BEFORE a physician is sued, but I am only a mere colonoscopist. The plaintiff was just granted an extension by the judge, and now has an additional 45 days to troll for a signature attesting that I breached the standard of care. Does this seem fair to anyone?

Michael Kirsch, M.D. said...

Here is the denouement of the case. Recall that the case was filed against me without an affidavit of merit. The plaintiff was granted a 45 day extension to find any doctor in the state of Ohio who would swear that I committed malpractice. They couldn't fine one. The judge then granted another 45 day extension, which just elapsed. Ninety days and they couldn't find a physician to sign off that I had breached the standard of care. I am told that I will be dismissed. How much money, time and aggravation were spent so far on a case that should have never been filed against me in the first place?

Michael Kirsch, M.D. said...

I can now answer my own question from my above comment. I received a letter today from my insurance company that getting me released from an entirely frivolous lawsuit cost $9,120.85. Keep in mind that I was cut loose before any discovery. There might be enough cash being burned up in the medical malpractice arena to cover millions of uninsured Americans.

medical malpractice said...

One question raise in my mind is
Do I sue my own Doctor directly for Medical Malpractice?

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