Sunday, August 22, 2010

Stop Medical Malpractice: The White Coat Wall of Silence

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Leisure Guy, one of my most faithful commenters, opines that I am omitting an important aspect of the tort reform argument. He has implored me repeatedly to read a particular book that I suspect buttresses his views, but this worthy pursuit is simply not near the top of my priority pyramid. Since he’s retired, he enjoys the luxury of burrowing deeply into the base of his priority pyramid. With 4 tuitions to go, retirement is a distant mirage for me. I’m can be a ‘leisure guy’, but only in my dreams.

I have written throughout this blog and elsewhere that there are too many frivolous lawsuits against physicians. I have admitted that caps on non-economic damages are not ideal, because they deny some worthy plaintiffs of complete compensation, but I support them because I believe they serve the greater good. I have ranted that there is no effective filter to screen out physicians who should never be invited to the litigation party in the first place. I believe that the current liability system encourages the practice of defensive medicine, which wastes billions of health care dollars and exposes patients to unnecessary risk and expense. I believe that the system is unfair and needs to be reformed. I stand by these views.

Leisure Guy (LG), in between sipping piƱa coladas on his deck, sent me a personal e-mail. Here’s his correspondence in its entirety.
It does seem that, given the goal of reducing the number of lawsuits for medical malpractice, the simplest, most direct, and most effective action is preventing incompetent MDs from practicing, regardless of the source of the incompetence (alcoholism or other drug dependency, dementia, and so on). In fact, it would seem to me that this is much more obviously a course of action than going after lawyers and tort reform: stop the malpractice, and the lawsuits will stop. (That was the experience of anesthesiologists.) But you continue to focus on lawyers and the courts, and I’ve never read a post in which you go after the MDs for protecting incompetents and keeping them in practice---that seems inexplicable.
MDWhistleblower is not like the Sunday evening CBS news program 60 Minutes, where an unsuspecting guest is accosted by a journalist who intends to humiliate the individual publicly and irrevocably. In contrast, I have come not to bury LG, but to praise him. He has an important point that merits inclusion in the tort reform conversation. Is it fair for physicians like me to rail against the unfair medical liability system, while we remain mute about medical negligence? No, it is not.

Reading plaintiff lawyers’ blogs, one would think that medical incompetence is spreading across the medical landscape like a wildfire. We read the ubiquitous assertion that there are 98,000 preventable deaths every year, a statistic that is trying through repetition to become transformed into a fact. In my 20 year career, I have only occasionally witnessed medical negligence. I certainly see and participate in plenty of adverse outcomes. I see every day colleagues who make medical judgments that differ from my own. I am informed by patients about physicians who lack important communication skills and would benefit from a week’s retreat at Doctor Charm School. I see on occasion physicians who are rude to nurses. I regularly see physicians who, along with patients, over utilize medical testing and treatment. I see too often physicians who order medical tests for the wrong reasons.

In some of the above cases, the physician is me.

None of these examples, however, represent negligence. If there is an epidemic of medical incompetence, it either doesn’t exist in my world in northeast Ohio, or I am too incompetent to recognize it. I am interested in the views of other physician readers on this issue. How much true medical negligence and incompetence do you witness?

Nevertheless, my friend LG correctly points out that we physicians are not effective or serious at holding our members accountable. Sure, every state has a medical board, but we all know how egregious an offense must be to result in a serious professional sanction. It is not part of medical culture to identify colleagues who have demonstrated competency lapses, committed a negligent act or may be impaired. Recall the adage, ‘friends don’t let friends drive drunk’. Physicians don’t turn in colleagues who may be in need of remediation and rehabilitation, except in extreme circumstances. What stops us? Are we scared that we will be stigmatized as a squealer and ostracized? Do we rationalize that we might not know all the facts about a practitioner who may appear to be missing the mark? Do we look the other way hoping that some other corrective mechanism will descend from the sky to address the issue? Do we allow our empathy for a fellow colleague to corrupt our judgment? .

I don’t retract a single syllable of my views on the need for tort reform. But, we physicians should also heal ourselves. This is our professional obligation and would also deepen the trust between us and the patients we serve.  Not only is it the right thing to do,but it's a smart move also.  Haven’t we learned over and over again what happens when we don’t act proactively to solve a problem?  The White Coat Wall of Silence will become yet another target for 'reformers' to shoot at.  Let's take this target off the field.

113 comments:

LeisureGuy said...

You make a good point. :)

The success of anesthesiologists in systemically identifying causes of medical malpractice (a certain small minority of physicians, equipment not designed to prevent errors, lack of checklists, etc.) and taking steps in each case to improve the situation certainly stands as a shining example of what can be done when a medical specialty becomes serious about attacking malpractice as a problem (instead of, for example, attacking the American court system): setting up goals and measures, assigning work groups, evaluating progress, and so on are not glamorous and are much more work than kvetching, but that approach has been proven to work. Malpractice in anesthesiology has just about vanished, and their insurance premiums are at an all-time low.

The book referred to, for those curious, is Tom Baker's The Medical Malpractice Myth. It's 222 pages, and it's available in a Kindle edition. Because this guy actually did a lot of research, I think those seriously interested in the problem will delve into it.

Michael Kirsch, M.D. said...

Here's a link to an abstract from the current issue of Annals of Internal Medicine on a successful strategy to reduce medical malpractice lawsuits. http://bit.ly/9KEpXF

LeisureGuy said...

I found a couple more references. For those wanting more information about "The Medical Malpractice Myth" before investing the time to read it, here's a review by Ezra Klein, who writes about healthcare and legislation for the Washington Post. The review is short but useful: slate.com/id/2145400

And here's a summary of a Wall Street Journal on the issue: medicalnewstoday.com/articles/26452.php

"The Wall Street Journal on Tuesday examined how malpractice insurance premiums for anesthesiologists have decreased over the past 20 years because they have "focused on improving patient safety" rather than legislation that would "protect them against patient lawsuits." According to the American Society of Anesthesiologists, anesthesiologists this year will have an average annual malpractice insurance premium of $20,572, a 37% decrease from 1985 after adjustment for inflation. Anesthesiologists have supported the use of devices that alert surgeons to potential problems in the operating room and have helped develop computerized mannequins that simulate such problems. In addition, anesthesiologists have supported procedures that protect unconscious patients from potential carbon-monoxide poisoning. As a result of such efforts, patient deaths from anesthesia over the past 20 years have decreased from one per 5,000 cases to one per 200,000 to 300,000 cases, according to studies compiled by the Institute of Medicine. The decrease in patient deaths from anesthesia has contributed to a reduction in the percentage of total malpractice lawsuits filed against anesthesiologists, the Journal reports. According to recent study conducted by Public Citizen, anesthesiologists in 1972 accounted for 7.9% of total malpractice lawsuits, compared with 3.8% between 1985 and 2001. In addition, the amount of payments from malpractice lawsuits against anesthesiologists also has decreased. According to ASA, the median payment from malpractice lawsuits against anesthesiologists in the 1990s was $179,010, a 46% decrease from the 1970s after adjustment for inflation. "Noting the success achieved by anesthesiologists, other doctors -- notably surgeons -- have aimed more at improving treatment methods," the Journal reports (Hallinan, Wall Street Journal, 6/21)"

When the problem is systematically investigated and attack, it turns out that, in general, the lawsuits are symptoms rather than the actual problem. Doctors usually know to attack the disease rather than the symptoms. :)

#1 Dinosaur said...

Not all "medical mistakes" are "malpractice", even those that hurt people. (It goes without saying that not all adverse outcomes are the result of mistakes.) It's as if a journalist could be fired for every typo, every grammatical error, every wrong fact reported, as if every mistake were the same as outright plagiarism, for which (one would hope) everyone agrees firing is appropriate.

No, there are far more bad lawyer apples than there are doctors, against whom the system is clearly stacked.

LeisureGuy said...

k@#1 Dinosaur: I don't think anyone has taken the position that you refute, but it's a good refutation if anyone ever does take that position.

Regarding the relative numbers of bad lawyers and bad doctors: do you have any supporting evidence, or is that something you simply made up?

You may have missed the part above where it was shown that doctors can take effective action in reducing medical malpractice, thus reducing malpractice lawsuits, thus reducing malpractice insurance premiums. The efficacy of the approach has been demonstrated in practice. Of course, it is much easier simply to complain ("the system is stacked against doctors") without looking at the evidence or taking action.

Paul Dorio said...

Nice post. Interesting topic of course. Perhaps a few observations/comments:

“I believe that the current liability system encourages the practice of defensive medicine, which wastes billions of health care dollars and exposes patients to unnecessary risk and expense.” – I AGREE.

“Is it fair for physicians like me to rail against the unfair medical liability system, while we remain mute about medical negligence? No, it is not.” – I AGREE.

“Stop the malpractice, and the lawsuits will stop." – PREPOSTEROUS. I DISAGREE. You and I and everyone else reading this post should know that malpractice suits typically have very little to do with whether malpractice actually occurred. Negligence is fortunately difficult to prove; otherwise we would have many a physician ruined by frivolous suits. As you stated, many adverse events occur, but very little actual negligence occurs, echoing your observations with mine, in our daily practices.

But the example of Anesthesiology, like Radiology, is quite valid because both fields are quantifiable. One group uses drugs and monitors and records every minute. The other group’s actions are literally visible on every page/screen. So decreasing “malpractice” potential through improved monitoring devices, simulators, etc, makes sense.

“But, we physicians should also heal ourselves.” – SEEMS REASONABLE. HOW? – As I mentioned previously in another post, physicians are among the most regulated professionals in our society, which of course is necessary. Now, to what extent would you have each of us be “whistleblowers” also? And, to that point, currently in my local hospital, among the physicians with whom I am friendly enough to have a clue, I know of no one who is grossly incompetent or negligent. My group, in the past, however, has had to deal with two individuals who were either drunk on a daily basis or interacting inappropriately with co-workers to the degree that they had to leave the group also.

So, I ask you, how else might we become whistleblowers and satisfy the recurring criticism that physicians don’t police themselves well? I, for one, am satisfied that any “bad apples” are shaken from the tree on a rigorous and frequent basis.

A. Bailey said...

About three months ago I came across an interesting article in our newspaper: a local citizen was suing a casino for taking undue advantage of him and his gambling habit. He claimed he lost $75,000 because the casino encouraged him to gamble when he was inebriated.

Interestingly, if you sue a casino in Indiana and lose, they collect treble damages. If this gentleman loses his lawsuit, he owes the casino, um, $225,000.

Not surprisingly, lawsuits against casinos in Indiana are unusual.

I pondered this as I contemplated the time I was sued for $8,000,000 for damages which included lost wages and lose of consortium by a gentleman who was unmarried and unemployed.

Perhaps being liable to pay out $24,000,000 for losing a lawsuit against a doctor would be a bit chilling.

I would actually settle for a "loser pays" arrangement, like the rest of the civilized worlds uses.

Only in America.

Anonymous said...

Getting sued will change the lives of the readers of this blog forever. I had this experience. Even though the jury returned a defense verdict in thirty minutes after two weeks of trial the two years that preceded this scarred me psychologically forever.
Unfortunately, many good physicians who have had experiences similar to my experience because both the legal and the medical profession have led the users of their services to believe that there must always be a perfect outcome absent which there is a case for litigation.
The good physicians who I make reference to above treat the sick patient and an adverse outcome is often not unexpected and they find themselves victims of an unfair legal system.
To get back to the original question
"And, to that point, currently in my local hospital, among the physicians with whom I am friendly enough to have a clue, I know of no one who is grossly incompetent or negligent."
The whistle blower has professional myopia or very few friends.
The organized medical staff at most hospitals is really and "organized" old boys network much like the Mafia where it requires a really serious negligent act to sanction a physician.
The financial and social ties among the members of these organizations can make it financially or socially unprofitable to report an incompetent colleague.
Aside from incompetent acts that are acts of omission (just being dumb)where the miscreant can be educated and rehabilitated more frequent are the acts of commission performance of unneeded tests, therapies or procedures that only serve to benefit the performer not the patient.
Example: Coronary CT angiography in the asymptomatic patient that only serves to poison the recipient with radiation.
This is one of many examples I can cite.
These are not malpractice but fraud and battery and those who pursue them should be jailed in addition to being removed form the medical staff.
When the medical profession polices itself HONESTLY then Joe Six Pack will not run to the nearest plaintiff attorney when an adverse but not unexpected outcome results.
Finally "among the physicians with whom I am friendly" how many would you trust to treat you or one that is dear to you.

LeisureGuy said...

@Paul Dorio: You comment that "malpractice suits typically have very little to do with whether malpractice actually occurred."

This is a very intriguing statement. Could you please provide a link to the study or evidence supporting this statement? Or is it something you simply made up? (I don't mean to be disrespectful, but I've noted that many assertions of this sort turn out to have no foundation in evidence but rather to be based on an attitude.)

BTW, you will find many references to good studies in The Medical Malpractice Myth, which I do recommend to those interested in the facts about this topic.

Kevin said...

I've been reading this blog for several months now .. usually while I'm on call of labor and delivery. Nice back and forth of ideas. LG, it is very easy to sit on the sidelines and ask, "do you have a study to show that?" I can assure you, however, that were you to walk a mile in our shoes, you would come to the same conclusion. If you were to practice medicine for a year and talk to docs everyday about litigation experience, you would certainly see the enormous numbers of lawsuits stemming from bad outcomes without negligence. That said, there are obviously examples of medical negligence that need remedying. But it seems that "getting rid of incompetent doctors" presupposes that the majority of medical negligence comes from incompetent doctors. Perhaps I have a skewed view from my job in a large teaching hospital, but I don't personally know any "incompetent" doctors out of the hundreds I see regularly. I have seen lots of bad outcomes without negligence, and occasionally, bad outcomes with negligence. This "negligence" however is often in the form of a bad judgement call, an over or under-interpretation, or perhaps an error in follow-up. These doctors likely went on with the rest of their day or week treating many more patients with compassion and expertise. They are clearly competent doctors who have consistently eased the suffering of many. Should they then be removed due to a bad judgement or a legitimate error? Should they be reclassified as "incompetent" and purged? If we got rid of all the "bad" doctors, would there be no more medical errors? would there be no more malpractice lawsuits?

So, what to do ... ? Obviously we physicians need to continue to improve our practice and hold each other accountable. No argument there. The example that LG uses of anesthesiology is a clever one, because the type of practice that they are in allows this kind of iterative error reduction more than just about any other kind of practice. Everything that happens in anesthesia is objective, recorded, tested, monitored, data-driven. The subtle judgement decisions about a fetal heart rate tracing, or a patient's change in symptoms are not largely represented in their field of medicine. These judgement decisions are quite often the foundation of a legal case (from my own and colleagues' experience). Rather than weeding out the "incompetent doctors", most experts agree that error reduction in process issues, and communication issues are the key to reducing medical mishaps. A tremendous amount of resources are being brought to bear in the arena of resident education on simulation and reduction of communication errors across multidisciplinary lines. Additionally, pushes for standardization of medical practice and reduction of variation of practice seems to be at the forefront. I'm not sure I completely agree with this, as I am a big believer that a reductionistic approach to the human body is a tad simplistic. However, data seems to show reduction in adverse outcomes with this approach.

Now, to get back to this post's topic ... if we were to somehow reduce systematic errors and communication error to near zero, would there still be bad outcomes? Yes. Would there still be lawsuits? Yes. Would many of them still be baseless? Yes. However, if we could show that a physician followed the evidence-based protocol, they would probably be very resistant to a plaintiff judgement.

Former Anon said...

"I stand by these views. "

You forgot to mention that you stand by these views in the face of much objective evidence showing them to be wrong, or at best, misguided. Once opinions become faith-based, what's the point of them?

"I would actually settle for a "loser pays" arrangement, like the rest of the civilized worlds uses. "

Much of the rest of the "civilized world" has single payer or universal healthcare. Would you also embrace that? If not, I fail to see how "everyone else is doing it too" makes for much of an argument for loser pays (which doesn't work like you probably think it does even in the rest of the world).

"No, there are far more bad lawyer apples than there are doctors, against whom the system is clearly stacked."

Not sure how you decide which group has more "bad apples", but even more odd is how you determine the "system" is stacked against physicians, who go into every case better funded than the plaintiff, and win 75% of the time at trial. Not to mention in many states the legislature has arbitrarily capped your damages regardless of the harm you cause.

If that's "stacked against" you, I'd hate to see what we'd have to do for you to think the odds were in your favor!

Former Anon said...

"We read the ubiquitous assertion that there are 98,000 preventable deaths every year, a statistic that is trying through repetition to become transformed into a fact."

I would think Dr. Kirsch, that you would be uniquely qualified to recognize the attempt to move opinions into fact via repetition. Although one wonders why you object to it, since many of the assertions in your second paragraph consist of you trying to do that very thing.

Anonymous said...

"You and I and everyone else reading this post should know that malpractice suits typically have very little to do with whether malpractice actually occurred."

Why do you believe this? If whether or not there was malpractice isn't a key issue (yes, you need sufficient damages to pursue a case), there's no point in pursuing the case. It's a waste of the plaintiff's time, and their attorney's time AND money.

"I know of no one who is grossly incompetent or negligent."

Rarely is a person grossly incompetent or negligent on a daily basis. You probably know very few people who are grossly incompetent or negligent drivers. However, it only takes one mistake to miss a light and irrevocably change someone's life. The question is whether you would testify for the plaintiff when that good, solid physician 99% of the time does make that mistake and the plaintiff has significant damages as a result.

" I, for one, am satisfied that any “bad apples” are shaken from the tree on a rigorous and frequent basis."

There's no doubt there is only a tiny number of truly BAD people in the medical profession. No one is disagreeing with that. However, there's also no doubt that physicians are loath to testify against another physician, REGARDLESS of the harm that other physician caused. So your confidence in the overall system is of little use to the individual who needs you to help them pay their medical bills, or their lost wages, so they can keep their house, or keep their family fed.

Former Anon said...

" If there is an epidemic of medical incompetence, it either doesn’t exist in my world in northeast Ohio, or I am too incompetent to recognize it."

How would you know? The insurers settle the clear cases confidentially, and if they're at all close they try. Unless you're following the trials in every jurisdiction you wouldn't even know about them.

I'm not sure how you can assume, against all objective evidence, that tort reform serves the "greater good" (however you define it), or that caps reduce defensive medicine, but be equally certain there isn't near as much negligence out there as some thing. Could it be you are confirming what you want to see without an objective examination?

LeisureGuy said...

@Kevin: I don't think the anesthesiologists constitute a particularly clever example: they looked at their situation and took rational steps to cure it, rather than railing and ranting at trial lawyers.

I understand that misjudgment is not ipso facto malpractice: we all make mistakes. It's important, though, to follow a defined process and undertake on-going process improvement---and the finding is that many doctors cannot be bothered even to follow a checklist.

Sorry I'm commenting from the sidelines, but that's were I happen to be in this occupation, but I do try to support my opinions with references and findings. Here, for example, is an article that supports my assertion that many doctors refuse to follow sound procedure. Is that malpractice? or not?

One problem, of course, is an attitude satirized in the joke about someone going to Heaven and lining up in the cafeteria for lunch. Suddenly, an old guy comes barging in, grabs a tray, pushes in at the head of the line, and takes his meal away. The new guy said, "Who's that?"

"Oh," came the reply, "that's God. He thinks he's a doctor."

For some reason this joke is popular with hospital staff. No idea why.

LeisureGuy said...

So far as physician incompetence is concerned: I agree that the incompetents are a very small minority. BUT:

"Just 5.1 percent of doctors account for 54.2 percent of the malpractice payouts, according to data from the National Practitioner Data Bank. Of the 35,000 doctors who have had two or more malpractice payouts since 1990, only 7.6 percent of them have been disciplined. And only 13 percent of doctors with five medical malpractice payouts have been disciplined."

I do think that the medical profession can do better in this area. Factoid from here.

LeisureGuy said...

BTW, I don't know whether any effective national action has been taken yet, but the medical profession not only allowed but supported residents practicing medicine while drunk---well, not actually drunk, but terribly sleep-deprived, which has the same effects. And doctors resisted changing the system.

Continuing my practice of providing substantiation for my assertions (something that turns out to be surprisingly easy, Kevin), here's a report

LeisureGuy said...

Is the following an example of medical malpractice? From USA Today:

"Medical residents are routinely scheduled to work shifts that last 24 hours or more, yet a study out today suggests that these sleep-deprived doctors are at high risk of making medical mistakes that can harm or even kill patients.

""Working for more than 24 hours is hazardous," says sleep researcher Charles Czeisler at the Harvard Medical School. Scores of studies show that people who stay awake for 18 hours straight can have trouble thinking clearly and can zone out or nod off suddenly.

"In July 2003, the Accreditation Council for Graduate Medical Education, a Chicago group that accredits medical residency programs, limited work schedules to no more than 80 hours in a week. But the rules still allow marathon shifts that last up to 30 hours.

"Many medical residents must pull these extra-long shifts twice a week — a schedule that leads to extreme fatigue, says Simon Ahtaridis, president of the Committee of Interns and Residents, a 12,000-member union calling for more reform of work hours."

More at the link. In my view, hospitals that require medical personnel to work while sleep deprived are engaged in medical malpractice. They may get away with little damage for a while, but eventually some sleep-deprived professional is going to do serious damage, at which point everyone will act surprised and the hospital will pull out stops to defend itself.

Paul Dorio said...

Leisure Guy: Sorry I missed this until now. I'll try to provide something that explains in facts what you're right that is typical lore:

A 2006 study published in the New England Journal of Medicine concluded that claims without evidence of error "are not uncommon, but most [72%] are denied compensation. The vast majority of expenditures [54%] go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant."

REF: (1) Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, New England Journal of Medicine,May 11, 2006.
(2) ^ Medical Malpractice Study, Disproving Frivolous Myth , Jeffrey B. Bloom, Gair, Gair, Conason, Steigman & Mackauf, The National Law Journal, July 3, 2006

I don't pretend to be an expert on the literature - far too much of it out there. But I try to inject a dose of reality and centrism to most discussions if I can. Hopefully those references at least allow a bit of latitude - the point is that most malpractice suits are not because malpractice was at hand. (As he said: "If I'm at your front door, you probably did something to warrant me being there." -- Grosse Point Blank -- opposite of what I am trying to say -- the doctor subjected to a lawsuit is innocent more often than not.)

Kevin B said...

Of course it's easy, LG! You can find a study to support almost any idea you'd like to put forward. Whether or not that idea is actually true depends on things like publication bias, study methodology, etc. A blog is generally a site for exchange of ideas, not necessarily study vs study vs study. I would consider your ideas / thoughts / arguments valid even without a quoted reference.

In fact, much of what you said I agree with. The reduction in resident work hours seems to have been the right call. Many doctors resisted this change probably on the basis of the negative impact on the numbers of cases that residents could be involved in for educational purposes, and the potential impact that this might have on their future practice. Interestingly enough, even after the 2003 reduction in resident work hours, published studies have not been able to show a concomitant reduction in medical errors. My earlier comments not withstanding, I'll reference this link: www.nejm.org/doi/pdf/10.1056/NEJMe0901226. It seems that with less work hours, comes increased patient hand-offs, a fertile breeding ground for communication errors. So you see, even something that seems logical from the sidelines might not always turn out that way.

LG said ...

"... many doctors refuse to follow sound procedures" This is not really how I would have summarized your article. Refusing to follow sound procedures when it comes to medical care probably would constitute malpractice. Once again, I don't know of any physicians in the area near where I practice refuse to follow checklists. In fact, we've embraced and suggested new ones. They certainly have their place in medical error reduction, but no checklist is going to keep me from injuring a patient's bladder during an emergency surgery when she has scarring like super glue .. no matter how careful I am. And yet, that would be a good example of something a Med-Mal atty would pounce on to attempt to show that I had somehow been flagrently negligent while trying to save her baby's life.

My point is this: physician's should embrace and augment any and all efforts to reduce medical errors within our control. But frivolous law suits will continue to happen as long as any less than perfect outcome can happen, and a trial lawyer is willing to roll the dice. Many of them have admitted to me privately that its not whether any real negligence happened, but how good of a show you can put on for the jury. Not exactly my idea of justice. Medical litigation reform AND medical quality reform should happen simultaneously.

LeisureGuy said...

You make a good point that the outcome of litigation shows that in most cases the doctor was innocent of malpractice. But I would say that most cases of malpractice do not go to litigation. Patients tend to trust their doctors, and they readily accept that adverse outcomes are despite the doctor's very best (unimpaired) efforts. But, as noted, hospitals throughout the land not only allow but actually require that patients be treated by doctors who are drunk---or, at least, sleep deprived, which has the same effect. This is pretty clearly malpractice in my opinion, and who knows how many terrible errors have been made (and docilely accepted by patients) over the years?

Moreover, there seems to be some evidence that hospitals, doctors, and others impacted by malpractice litigation cooperate in protecting the guilty---not to the extent, perhaps, that the Catholic church protected pedophile priests, but along those lines: keeping the guilty active to malpractice again. And certainly the statistics show the effects of repeat offenders.

LeisureGuy said...

I certainly won't deny the existence of frivolous lawsuits, but courts generally weed those out early in the process. And, of course, lawyers are not the only victims of frivolous lawsuits: any person or company with deep pockets is at risk, though I can see that medical outcomes offer sufficient ambiguity to attract litigious types.

I'm delighted that you and your colleagues have embraced the checklist, and I do indeed understand that the checklist doesn't work in doing actual surgery---but you knew that. And you know the benefits of using checklists.

But you also know that not all doctors so quickly embraced checklists and not all hospitals cooperated. I believe, in fact, that the article mentions that.

LeisureGuy said...

Oops, "lawyers" s/b "doctors" in the above mention of lawsuits.

Michael Kirsch, M.D. said...

Kevin, delighted to have your voice of reason on the blog. Thanks to the other thoughtful commenters as well.

LG wrote: "You make a good point that the outcome of litigation shows that in most cases the doctor was innocent of malpractice. But I would say that most cases of malpractice do not go to litigation."

Indeed, you have said above what I have said repeatedly in several blog posts. Your comment, which I believe is true, is evidence of how poorly the current medical liablity system is working.

You have argued that physicians should take more responsbility to hold its members accountable, and this post indicates that I agree with you.

I have always thought and wrote that interns and residents should have more limited working hours, but there are many forces resisting this reform. Keep in mind, that I am often awakened from sleep to deal with medical issues, when I am not at peak performance. Is this an acceptable practice? How much sleep disturbance and deprivation constitute impairment?

LeisureGuy said...

I would say that inadvertent sleep deprivation (e.g., medical staff becoming sleep deprived through responding to a large-scale emergency that swamps medical facilities---an earthquake or a passenger train wreck or the like; or, on a smaller scale, simply pulling a long day and then (as you describe) being awakened in the middle of the night)---this sort of inadvertent sleep deprivation is one thing.

But to have a deliberate policy of inducing sleep deprivation in doctors who are then directed to care for patients makes no more sense to me than to require doctors to down several stiff drinks before going on duty and seems equally a case of malpractice, lawsuits aside.

Dan said...

LG, some thoughts on your posts:

"Here, for example, is an article that supports my assertion that many doctors refuse to follow sound procedure"

Your article was an opinion piece by Dr Gewande, not exactly evidence. But I agree that medicine hasn't been as quick to adopt this as we should. Things change slowly in medicine, sometimes for better (eg thalidomide), sometimes for worse.

"Just 5.1 percent of doctors account for 54.2 percent of the malpractice payouts, according to data from the National Practitioner Data Bank..."

A nice sound bite, but perhaps those 5.1 percent are from especially high-risk specialties, and not actually bad doctors.

Anonymous said...

When I saw that 25 comments had been made here, I was happy to see that Doc's blog had become the center of critical thought that it deserved to be. Instead, most of the posts are LG passing flatus into an echo chamber. Oh well......

Former Anon said...

"Hopefully those references at least allow a bit of latitude - the point is that most malpractice suits are not because malpractice was at hand."

Actually, the study you cited concluded the opposite:

"We found that only a small fraction of claims lacked documented injuries. However, approximately one third of claims were without merit in the sense that the alleged adverse outcomes were not attributable to error. Claims without merit were generally resolved appropriately: only one in four resulted in payment. When close calls were excluded, claims without evidence of injury or error accounted for 13 percent of total litigation costs. . .

"Our findings point toward two general conclusions. One is that portraits of a malpractice system that is stricken with frivolous litigation are overblown. Although one third of the claims we examined did not involve errors, most of these went unpaid. The costs of defending against them were not trivial. Nevertheless, eliminating the claims that did not involve errors would have decreased the direct system costs by no more than 13 percent (excluding close calls) to 16 percent (including close calls). In other words, disputing and paying for errors account for the lion's share of malpractice costs. A second conclusion is that the malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter. In a sense, our findings lend support to this view: three quarters of the litigation outcomes were concordant with the merits of the claim."

Paul Dorio said...

"Medical litigation reform AND medical quality reform should happen simultaneously. " -- I like that a lot!

And, LG, thanks for the 5.1 % data point also, although I do agree with Dan that it would be interesting to know which specialties those doctors are in.

Okay - we all recognize that there needs to be some quality improvement. And most reasonable people see the need for at least some sort of liability "reform."

So does anyone ever propose solutions? I'm willing to try, but a task like that needs a meeting of many minds.

Former Anon said...

"But I try to inject a dose of reality and centrism to most discussions if I can."

According to the study you cited, and is quoted above, your conclusion is not reality based.

Former Anon said...

"But frivolous law suits will continue to happen as long as any less than perfect outcome can happen, and a trial lawyer is willing to roll the dice. "

Defense lawyers try cases too, but I assume you mean attorneys who represent ordinary folks like me and you rather than insurers, right?

There are very few "frivolous" lawsuits in this arena (and by frivolous I mean wholly and completely without any merit whatsoever) simply because the costs are too high and the winning percentage too low. It's not like, say, auto accidents where the costs are low and even if you can find an insurer who will throw a few thousand at your the client might come out with a little money in their pocket. Malpractice insurers do not settle dogs very often, and when they offer to it's for very, very little money, usually less than what it's cost to get to that point when you figure in just the out of pocket costs, much less one's time.

Is there a universe where we will have perfection in this arena? No, there will always be someone willing to throw a little against the wall to see what sticks, just like there will always be bad physicians. That's humanity.

But what we have to look at is do the "reforms" achieve their goals? So far the only reform championed by physicians are damage caps. Yet despite faith based assertions like the ones made by Dr. Kirsch that they "work", there is no objective evidence that anyone but insurers benefit from them. Medical costs don't go down, access doesn't change, etc.

Dr. Kirsch has repeatedly said that his goals are to make it easier for the legitimately injured to make a claim. And lots of physicians claim to have that rather noble goal. Putting aside the US Constitution, where is their reform that does this?

Until they put something on the table that isn't just an insurer profit protection scheme, why should we believe them?

Former Anon said...

"So does anyone ever propose solutions? I'm willing to try, but a task like that needs a meeting of many minds."

The only solutions that are ever proposed are caps and "health courts", which are essentially just caps dressed up with the added drawback of additional cost to the taxpayer.

Why you ask? Because to move anything legislatively you have to have money and you have to be focused. The people backing the "tort reform" movement of late, which was originally the tobacco industry and of course includes the insurance industry, have plenty of money. If you don't believe me, check out the sites with all the tobacco docs - they'll show millions upon millions going to "grassroots" tort reform organizations, usually through Washington law firms as conduits. These guys don't hate lawyers - they hate lawyers who might represent ordinary folks against them.

But that's why tort reform is focused on limiting monetary exposure. They're not really interested in fairness, or justice. Physicians are just the cover for their goals, whether they know it or not.

Now, in this country you're entitled to lobby, and I support that. But we do have a Constitution, and it does have a 7th Amendment. Not to mention certain principles of federalism embodied therein, which prohibit federal interference with state court actions. So you have to ask yourself if it's a good idea to change the Constitution just so some insurers can save some money.

And, if you're of the notion that universal healthcare imposed by the feds is not permitted by the Constitution, how do you figure federal tort reform is?

Anonymous said...

Kevin B, I note that you practice in Loma Linda. Your state has had most physicians' favorite tort reform, damage caps, for nearly 4 decades.

Has it done any of the following:

1. Reduced the defensive medicine you practice?
2. Changed the way you practice at all?
3. Lowered healthcare costs for Californians?
4. Affected access for Californians?

Some will argue that California doesn't have the rate fluctuations that other states do. But that's because 13 years after passing caps and seeing no discernible impact on physicians' rates, California had to pass insurance reform, which resulted in the immediate return of millions in premiums to the state's doctors.

Kevin B said...

Good questions, anonymous(s). I'm not sure I'm going to be the one to champion the MICRA California damage caps as the be all / end all solution. The truth is, I've personally never practiced anywhere else. I became a physician in California and was taught to practice medicine by physicians who were accustomed to this environment. So to say that damage caps have reduced or promoted any "defensive medicine" in my practice is really not possible, because I have nothing to compare it with. I know that my malpractice insurance rates are lower than some other states without caps … possibly due to MICRA+insurance reform, as you mentioned.

During this discussion, I’ve thought about my personal practice. I've never practiced with a cloud of worry over my head about lawsuits. In fact, I can't ever remember thinking "I better get this or that test" in order to protect myself. I try to practice DEFENSIBLE medicine and most of all, compassionate medicine, always trying to think, "what would I want done if I were the patient". I'm a strong advocate of educating patients on the risks and benefits of procedures or treatment options, and helping them to understand the various pros and cons that go into a medical or surgical judgment call. That way, the final decision can be guided by each patient's values when it comes to such issues as risk and chance of success when various treatments are being considered.

In addition, (and in light of other posts above), I don't think I'm God's gift to medicine, I don’t cut to the front of the line, I don't scream at nurses, I am open to any new idea that might improve patient care or outcome, (checklists, simulation, etc), and I've (thankfully) had very few adverse outcomes. I’ve been involved in the peer review process very directly, and have, when necessary, tried to change practices in some of my colleagues that were not in line with “best practice” evidence. Despite these attempts at what I would consider "good solid medicine", I have been the target of 7 lawsuits over the last 10 years. Out of those 7, none had a trace of negligence, and only one had any merit (because there had been an actual injury). Only one (that one) went to trial. Some would argue that this is evidence of the system working … meritless lawsuits going away when the trial lawyer realizes (when they finally read the medical record for the first time) that there was no negligence. I can assure you, though, that the cost to my insurer for those to “go away” was substantial. Our own defense lawyers make a very nice hourly wage to review all the chart information, draft letters on my behalf, interview me and others involved, arrange / prepare for depositions, make motions for dismissal, etc. This all happens over a 12-24 month period -- my insurance getting to pay tens of thousands of dollars to “begin” the defense, while I get to continue practicing medicine every day wondering when and if this sword is going to fall. And these are the meritless ones! Sure they never went to trial, but there was nonetheless a high cost both emotionally and financially.

Kevin B said...

So, did the caps help me in these situations? Not really. I guess the question is, how many other frivolous lawsuits have been prevented by these caps? The caps suck for patient who are legitimately severely injured by negligence, I can’t argue with that. But there has to be some way to decrease the likelihood of litigation when there is clearly no malpractice. It has to somehow pass the smell test before it goes forward. I was shocked to find out in one case of a women who claimed I had left a surgical sponge in her wound, that the lawyer had not even bothered to review the chart and the pathology report before I was deposed. When we finally showed him that it really was just a ball of dead fat tissue inside her abdominal wound, he quickly dropped his client. But not before we had spent tens of thousands of dollars on legal fees, and I had rescheduled several days of patient care and several surgeries. Who will shoulder that cost? So you see, it’s not just the cases that go to court, but the ones that never go that cause undue burden on the medical system.

And I agree with LG that often cases where possible negligence was responsible for an injury are never brought. Hopefully we physicians are honest enough to admit a clear medical error and try to make it right financially for a suffering patient. And then try to learn from the error and fix the process, if possible.

LeisureGuy said...

Improving medical outcomes and reducing malpractice is a difficult area because of efforts by various interested parties to affect statistics by subtle manipulations. The point is well made that specialties will necessarily address differing levels of risk, which will make specialties dealing in risky situations look more malpractice-prone than safer specialties.

I'm reminded of Dr. Martin Couney's Coney Island neonatal intensive care effort (though technically a carney show, it did good work): he had an incredibly good survival rate, I read, but did ask that preemies not be transferred to his unit until they were a couple of days old... thus tilting the scale rather definitively toward good survival statistics for his show since preemies that survive two days are likely to survive long term. Similarly, hospitals willing to take critical cases would look statistically worse than hospitals that are not (should there be such).

Paul Dorio said...

Thanks, guys for the links to Slate and the MedMal Book - very interesting stuff. But I also think it is amusing/interesting how the same data can be used on opposite sides of a discussion to make opposing points. From the Harvard study cited above by Dr Kirsch:

"Most claims (72%) that did not involve error did not receive compensation. When they did, the payments were lower, on average, than payments for claims that did involve error ($313,205 vs. $521,560). Among claims that involved error, 73% received compensation. “Overall, the malpractice system appears to be getting it right about three quarters of the time,” said Studdert. "

So 28% of the cases WITHOUT injury resulted in payments of an average of $313,000 !! Holy carp! And the converse is that 27% of cases WITH injury did not receive compensation - also problematic.

And here's a comment on the results by its author: “Overall, the malpractice system appears to be getting it right about three quarters of the time,” said Studdert. “That’s far from a perfect record, but it’s not bad, especially considering that questions of error and negligence can be complex.”

hmmm...

Paul Dorio said...

No matter my above post. Data is data but it's how it's used that's at issue. Nevertheless, I am now convinced that the two main issues at hand, as you guys have nicely illuminated, are medical error reporting and medical liability reform (tort reform and/or damage caps). I am particularly favorable towards the former as a solution that could possibly pass through legislative hurdles. The latter will and is a pipe dream of doctors with little or no realistic hope of becoming legislation.

(I have written a short post on this topic to continue to expand awareness, and I of course cited this blog and its participants. Any opinions or review of that post would be greatly appreciated! It will publish on 8/26.)

Michael Kirsch, M.D. said...

Kevin, you speak eloquently for many of us. I appreciate the thoughtful and civil discourse here from all commenters. To those who feel that the current medical liability system is essentially fair and sound, I do not think we can dialogue effectively, although I still welcome your views. I believe it is self-evident that the system is unfair, ineffective and dysfunctional.

I have stated repeatedly that caps are not ideal, but they certainly were effective in Ohio in ebbing a malpractice premium crisis. Can I prove that the caps were responsible? No. Do I believe it? Yes.

I believe that health courts (HC) , or some version of this, should be tried as a pilot program. The goal is to prevent frivolous cases, like those outlined by Kevin, from being filed. This proceeding would offer a judgment on if there exists a reasonable basis (vague, I know) for a medical malpractice case to proceed. If the HC ruled against the plaintiff, then the plaintiff could still sue in traditional court. However, he (?and his counsel) would be liable for all legal fees if he decided to sue despite a negative HC ruling. This system still preserves the right to sue, but transfers risk to the plaintiff for disregarding a HC judgment.

Your thoughts?

Former Anon said...

"Some would argue that this is evidence of the system working … meritless lawsuits going away when the trial lawyer realizes (when they finally read the medical record for the first time) that there was no negligence."

Kevin, I think your comment in the above quote and what followed it illustrated a fundamental misunderstanding of physicians in how an attorney representing a person like you or me gets paid. Unless we can afford it by the hour, which few medical malpractice victims can, then it's by contingency. So I promise you the medical records were read ahead of time.

Now, you may have been named to keep a statute of limitations from running lest you get blamed by another physician in the case, but they definitely read the records. In fact, most competent malpractice attorneys not only read the records, but pay a consulting expert who won't even testify to review them before even notifying the insurer of the claim.

You note that it cost your insurer money to defend. Well, it cost the plaintiff's attorney as well, in costs and lost time. No one has more incentive to pursue good cases than the plaintiff's lawyer. Now, I'm not saying there aren't some who just throw it against the wall, but malpractice insurers are not known for being easy to settle with, and one can quickly go broke pursuing dog cases in that arena.

" Sure they never went to trial, but there was nonetheless a high cost both emotionally and financially."

Well, there's no way to create a dispute resolution process that won't impact you emotionally. None. No one likes it. If you don't want to be subject to the American legal system, though, you're going to have to grow your own food and live in a cave. Because when you drive a car, enter into a contract, etc. you run the risk that you and the other party will have a dispute.

Physicians seem to want a system where the clerk of the court can reject cases before they're even filed. I'm not sure how we can accomplish this "Minority Report" style system, but maybe they've got suggestions.

Former Anon said...

"But there has to be some way to decrease the likelihood of litigation when there is clearly no malpractice. It has to somehow pass the smell test before it goes forward."

That's an interesting statement. What is the likelihood of litigation in any situation? What would an acceptable rate for physicians be? Until we define those, how can we know? Do you think it's possible that the amount of physician negligence far outstrips the number of claims?

I'm not sure why we would apply damage caps to a problem, when after 30+ years they don't seem to accomplish any of the goals you say you want to achieve. Particularly when you admit they clearly harm the legitimately injured. And for what? Insurer profits?

Former Anon said...

"So 28% of the cases WITHOUT injury resulted in payments of an average of $313,000 !"

That's claims without ERROR, not injury. And we don't know how many of those were tried v. resolved by the insurer.

Former Anon said...

"I believe it is self-evident that the system is unfair, ineffective and dysfunctional."

Dr. Kirsch, you've made it clear yours is a faith based position, not fact based. Your solution, caps, doesn't achieve your stated goals - more people compensated faster and at less cost to the physician.

So even if every agreed that you were right in your assessment of the current situation, you offer no solutions tailored to solve it.

"but they certainly were effective in Ohio in ebbing a malpractice premium crisis. Can I prove that the caps were responsible? No. Do I believe it? Yes."

When you state something but give us no metrics to how you define the improvement, much less how you defined a "crisis" in the first place, you only illustrate my initial point. Most religions would love to have people as dedicated to their doctrines as you are to the insurers tort reform claims.

"I believe that health courts (HC) , or some version of this, should be tried as a pilot program. The goal is to prevent frivolous cases, like those outlined by Kevin, from being filed."

Then define what you mean by health courts, and explain how they would prevent what you define as frivolous cases. Will they not have licensed physicians in the particular area at issue discussing the findings before a tribunal, just as we have now? Will laymen not still need attorneys to present their cases, particularly if they're suffering from an injury? How will you get around the US Constitution? Who will sit on this tribunal and how will they be compensated? How will they decide the value of damages?

It appears that you've just put a healthcourt in to kick cases out. So is that just an extra cost/hurdle for both parties that only benefits one? Where is the punishment for the defendant who goes on to trial?

Without knowing the details of your proposal, it's difficult to weight its merits or take it seriously.

If your goals are truly as you've stated many times, and noble goals they are, how does a health court achieve your goals?

Paul Dorio said...

Former anon - this is a smart lawyer (not that I agree with all of the comments, just appreciate it). I appreciate your perspective and comments. I am truly learning something on this blog - very nice.

Now, thanks for correcting "error" vs "injury," though I think my point is the same -- nearly 30% of cases were paid that shouldn't have been. And nearly 30% of cases on the other side were not paid that should have been. That's a ridiculous percentage and does not indicate to me that the system works well. So I agree with Dr Kirsch that the medical liability system is broken.

As to your comment: "Most religions would love to have people as dedicated to their doctrines as you are to the insurers tort reform claims." -- I'd say you must not be religious or watch the acts that are performed in the name of religion. ('nuff said on that front before I step in something I don't want to.)

Kevin B said...

Wow! This post goes on and on ... I've never even posted to a blog before yesterday, and I'm already addicted! Now … where will I find time to practice medicine??

LeisureGuy, Former Anon, you are to be commended for your tenacity. You’ve obviously thought this over for a long time, and you make excellent sparring partners! Alright, gentlemen … round 3.

Former Anon said: “That's an interesting statement. What is the likelihood of litigation in any situation? What would an acceptable rate for physicians be? Until we define those, how can we know? Do you think it's possible that the amount of physician negligence far outstrips the number of claims?”
The likelihood of litigation in any situation increases as it becomes more like a casino game, and less like a truth finding mission. Once a lawyer takes a case, they will do anything to win the big payout. An acceptable rate would be the same rate at which true medical negligence happens … hopefully very low for both! From my view, I don’t think it’s possible that the amount of physician negligence outstrips the number of claims, but I’ll admit my view is limited to my own (thankfully robust) practice environment. I’ve admitted already that there are patients who are injured who never sue … how many is hard to say.

Former Anon, thanks for the mini-course on the litigation process. I can assure you that I (like many other docs I know) have sadly already passed this course in the school of hard knocks. Yes, I’m quite aware of the contingency payment system, and I’ve been gently assured by my well-meaning defense lawyer that my name (and John Does #1-100) are simply put into the suit to assure the blame can be correctly assigned during the course of the trial. Yes, I know that the statute of limitations may come before a thorough review of all the records, and if the plaintiff seeks redress too late, a suit may have to be filed immediately. I recognize that a lawyer may not get a dime for his time if he pursues a meritless case. These are the very reasons I have been so surprised at the content of the suits that have come against me over the last 10 years … truly meritless! I mean, I knew from the start that these would never go anywhere. Nevertheless, I had to go through the process with my lawyer till the case finally shriveled up and died. It’s not THAT big of a hassle, but like I said, it does represent many thousands of dollars and tens to hundreds of lawyer and physician hours that could be saved if a process were in place to weed out cases that clearly from the start lacked merit.

Kevin B said...

Don’t believe me? Here’s a sampling from my lawsuit drawer: (1) patient comes with pelvic pain, surgery done to look for cause and possibly alleviate, no obvious cause found, adhesions lysed, no injuries occurred, patient sues because pain is still there and now (she claims) worse. This case went on for 2 years till it fizzled. (2) Pt comes with pain and hydrosalpinx (damaged fallopian tube) seen on imaging study, surgery done to remove damaged tube, although imaging study had said left tube was damaged, in surgery we find right tube is clearly damaged and left tube is normal, this is demonstrated with intraoperative pictures and dye study, right tube is removed, patient sues 6 months later for removing the wrong tube. Discovery precedes and deposition scheduled. At deposition, we discuss (and produce from the medical record) the picture of the damaged right tube. Plaintiff’s lawyer is surprised and quickly concludes the deposition. Case dropped by plaintiff’s counsel 2 weeks later. (3) Patient comes in to labor and deliver at 23 weeks pregnant with twins and chorioamnionitis (an infection in the uterus). This infection can’t be treated with antibiotics and the only treatment is delivery (all experts agree on this). Without delivery, the patient herself is in danger of dying. She goes into labor on her own while we are evaluating her and delivers both babies, one dies, the other severely brain-damaged for life. She goes on to sue for not trying to stop her labor (which of course, might have killed her). Case eventually fizzles before trial. That’s just a sampling from my personal experience and is multiplied thousands of times over each year around the country (am I right, docs?). That doesn’t even begin to cover the problem of ambiguous cases that actually DO make it to court. I could give some incredible stories about that, too. So yeah … we DO have a problem.

Kevin B said...

Let’s play a little game I like to call “empathy”. It’s a thought experiment where I pretend I’m you and you pretend you’re me. Better yet, I’ll pretend I’m a victim of medical malpractice. Here we go. Let’s say I’ve lost my child due to a clear medical error. How do I feel? You’re damn right, I’m pissed. I want to soak those doctors for all they’re worth and then some. Yet no amount of money will take away the pain of my loss. So yeah, I get it … a cap for damages in this situation stinks big time. I’m against it.

OK, now your turn. You spend each day trying to help your patients the best you can. You actively work toward better practice, and usually, you get it right. You come back from lunch one day to find a man in a suit with a thick envelope with your name on it, and you catch sight of the word “Esquire” on it. Oh no, here we go again. You open the envelope for another dose of humility handed out with scathing words from a lawyer who’s never met you. After compressing your anger generated by the diatribe of horrible care you’ve provided (I’m not exaggerating this), you look up the patient’s medical records to see what injustice you have committed. Again you find that this case has truly zero merit. It’s not that you never make mistakes, it’s just … this case?? You have no idea why this was filed, but look forward to the next 12-24 months of slogging through discovery, depositions, canceled patients and surgeries, knowing in the end that it will almost certainly be dismissed, because you didn’t do anything wrong! And this will happen again and again and again.

So … what would you do about this? You do agree we have a problem, right? (a small concession would feel pretty good right about now, eh Kirsch?) You’ve been quick to shoot holes in our lame ideas, so please, gentlemen, walk a while in my thought experiment and tell me what you would propose for a solution. And don’t tell me you would work to improve the quality of care. I’ve already conceded that point, and we’ll put that in the “in progress” category. Suppose you’re doing the best you can on quality improvement and those annoying frivolous lawsuits just keep coming. What would you propose? I can tell you guys are smart, and obviously dedicated to this topic. So please, bring your intelligence to bear and give us some suggestions.

A few more days of this and we might actually solve some problems! [note to Kirsch: where shall we publish our write-up on “Solving the medical malpractice crisis … a blog’s-eye view”? NEJM? JAMA? You decide.]

Former Anon said...

"Don’t believe me? Here’s a sampling from my lawsuit drawer"

No one said they don't believe you. However, anecdotes aren't data. I can recite you equal numbers of heinous cases of malpractice, and actual studies indicate that most malpractice (in the tens of thousands) never sees a claim file because the victims either don't know or decide not to pursue it or the claim is too small to justify the cost.

Trading horror stories doesn't really get us anywhere, although they are useful for scaring folks. All that being said though, it doesn't explain why capping the damages of those hurt the worst makes sense.

Former Anon said...

"So I agree with Dr Kirsch that the medical liability system is broken."

What level of perfection would you expect it to achieve?

But before you answer - let's back up. First, what are you calling the "medical liability system"? There is no unique system either in insurance or in the court for this. Perhaps you can be more clear?

If you're just talking about court, we don't know what percentage of the ones you cite were claims involving trial or even a lawsuit. So I'm not sure how we conclude the "system" (however defined) is broken, nor how we start proposing "solutions" for it.

It's like taking a single data point from the healthcare debate, concluding it means the system is "broken" and then curtailing individual rights as a result. Surely we can all agree that's a bad idea.

Former Anon said...

"It’s not THAT big of a hassle, but like I said, it does represent many thousands of dollars and tens to hundreds of lawyer and physician hours that could be saved if a process were in place to weed out cases that clearly from the start lacked merit."

Well that's the crux of it isn't it? So how do you propose we do that? Because we've already got caps in your state, which are touted as the cure to much that ails us by Dr. Kirsch and others. Yet your experience says otherwise - not to mention the hard data.

Paul Dorio said...

Former Anon - Riddle me this, then:

How do we improve the medical liability system so that injured patients who sue are appropriately and reasonably compensated, without overly injurious and punitive damages being heaped upon the shoulders of the doctor involved?

It seems to me that the lawyer side argument tends to be that patients who are harmed deserve sky's the limit dollar award as compensation.

Doctor side argument tends toward the view that most of the suits do not involve massive injuries that should warrant millions in damages.

How to reconcile?

And another question -- in light of my prior comments about how nearly 30% of injured patients receive nothing and nearly 30% of un-injured patients (who sue) received on average $300,000+ -- how do we improve the system so that the "right" people are compensated, the "wrong" people are not, and the truly negligent doctor, or he/she who is truly causing malpractice, is dealt with appropriately?

Former Anon said...

"without overly injurious and punitive damages being heaped upon the shoulders of the doctor involved?"

Is this a problem? The physician virtually NEVER pays the damages out of pocket. And punitive damages are virtually never a part of malpractice actions against individual physicians without some drastically wrong course of conduct (drunk, high, recommending surgery to gin up fees).

"How to reconcile?"

I don't think they need to be reconciled. I believe most attorneys agree with physicians that low damage cases should not be worth millions. The facts are that to have a large damage award you've pretty much got to have devastating injuries. And remember, while you may hear about this or that large verdict, the verdict may or may not be what gets paid. After all, there is a remittur and an appeals process. Rarely is the payout the same as the verdict.

I think what lawyers believe is that the value of a case ought to be decided by those that have heard the evidence as presented by both sides. I can't see the problem with that. I bet you're going to tell me that juries are weak minded idiots ready to fall for a sob story while the defense lawyer sits there like a potted plant, but that's not really borne out by the data.

"how do we improve the system so that the "right" people are compensated, the "wrong" people are not, and the truly negligent doctor, or he/she who is truly causing malpractice, is dealt with appropriately?"

Again, you have to define the "system" you're talking about. The insurance claims process and decision making? The process of a civil claim? What's wrong with a system that gathers all the evidence and lets each side present its best case to a neutral fact finder? What would you propose?

Dan said...

Side note- Paul, before you get going, know that Former Anon's tactic is to pose heaps of questions and answer none of yours. We've tried to get him to suggest a better system, but he will respond with: 1. the current system is fine and 2. any system you propose is unconstitutional.

Now, on to the post.

"you may have been named to keep a statute of limitations from running lest you get blamed by another physician in the case, but they definitely read the records."

I think this might be where we can reconcile the lawyers' and the doctors' differing experiences.

Hypothetical of a real injury with real malpractice:
The lawyer accepts a case of an injured patient, and brings suit against all 17 doctors who treated him while they figure out what really went down. Eventually, the 16 innocent doctors are dropped, and the one guilty doctor settles.

To the lawyer, it's a job well done and justice served. To the doctors, it's 16 frivolous suits and one reasonable settlement.

Maybe we should focus on how to prevent those 16 docs from being named.

Former Anon said...

"We've tried to get him to suggest a better system, but he will respond with: 1. the current system is fine and 2. any system you propose is unconstitutional."

I'm not sure why you think this didn't answer your question. I do like the current system, and given the Constitutional restrictions don't know how you can improve on it short of perhaps extending the statute of limitations. Why do you not find considering Constitutional restrictions to be valid?

"Maybe we should focus on how to prevent those 16 docs from being named."

Do give me your ideas. Much of the process is a fact finding mission. Perhaps if we tolled the statute of limitations in the event another physician names a colleague as the responsible party? Or if we simply extended the statute of limitations from 2 years to 4? Or how about physicians agree that they'll submit to depositions under oath prior to suit being filed and agree to toll the statute until that time?

If you're looking for a way out of giving the information you have on a case under oath, then forget it. If you don't want to be named as a defendant, there are options.

From a plaintiff attorney's perspective why do you want the cost and expense of battling 16 attorneys? Remember, unlike them your time is not being compensated. Particularly in med mal where the insurers are not going to toss anything at you unless their liability is really, really clear.

You can't reconcile the differing experiences any more than you can reconcile the patient and the physician's experiences. Not a criticism, but simply the nature of the training and the experience, for the most part.

Michael Kirsch, M.D. said...

Excellent discussion, more civil than has appeared on prior tort reform posts. Let's try this analogy, which is unlikely to persuade those whose views are entrenched.

A surgeon evaluates 200 patients with abdominal pain. Assume that 100 have acute appendicitis and the remaining 100 have simple constipation causing their pain. The surgeon is not equipped with effective screening and triage skills. He operates on 100 patients. Here is the breakdown on who he takes to the operating room:

5 patients with acute appendicitis
95 patients with acute constipation

Are we satisfied with this performance? Or, do we try to change the system to choose the surgical patients better?

In general, without attacking trivial details, does this analogy work?

Former Anon said...

Well, is your goal to get more injured people pay faster, or to keep more physicians being sued?

But your analogy doesn't work, for several reasons:

1. We don't know if your numbers correspond.
2. You treat the filing of the lawsuit as the end game, when it's not. The filing of the lawsuit is akin to the surgeon meeting the patient. He's still got to gather information to reach a decision. The trial is the surgery.

So while we're not satisfied with the performance of the surgeon, that tells us nothing about the civil law system.

The other elephant in the room is that few physicians think access to healthcare is a right. There is no doubt that access to a jury is.

You tend to accuse others of having entrenched views, but you must recognize your own are deeply entrenched, and many have no factual underpinnings.

But all that aside, you feel you've made your case for change, and clearly you can't be dissuaded from that. There's no point in continuing that debate. So the next step is solutions.

You've tossed out health courts, but with little detail. If you think that's a meritorious position, flesh it out.

Paul Dorio said...

Former anon said: "The other elephant in the room is that few physicians think access to healthcare is a right. "

Incorrect.

Most physicians that I know feel that basic health care services are a right. It's the everything and anything type of health care that must be understood to be in the purview of a privilege, due to the simple fact that services are by definition finite.

Here's a bit of flesh on "health courts" - a jury of one's "peers."

Former Anon said...

"Here's a bit of flesh on "health courts" - a jury of one's "peers.""

I assume you mean only physicians judge the actions of physicians. That's fine. Are you prepared to let every industry judge themselves as well? For example, when a physician sues a health insurer for failing to properly reimburse, should the jury be made up solely of insurance execs? If you sue the builder who built your house, should the jury be made up solely of contractors?

"Most physicians that I know feel that basic health care services are a right."

I would be interested to know if the other physicians on here agree with that. I would say that the definition of "basic" is where the debate lies if you can get past that, wouldn't you?

Michael Kirsch, M.D. said...

(1) Does anyone else believe that the appendicitis analogy is reasonable?
(2) No, I don't believe that a 'health court' should be manned solely by physicians. It should comprise a physician, attorney, nurse and some ordinary and disinterested folks.
(3) Here is my view on if health care is a right.
http://bit.ly/3JMqV

Paul Dorio said...

I agree with Dr Kirsch that a "health court" jury of peers does not imply all doctors. I agree with his suggestion of its makeup - basically my issue/concern is that a jury of entirely non-medical personnel will have a very hard time grasping medical concepts. That is not a slight on the lay person. My parents, for example, are highly educated individuals (Dad got a PhD in physical chemistry). But I am continually surprised at the lack of understanding of various medical issues and recommendations that they discuss with me. So a jury of medical personnel, mixed with "disinterested" people seems most logical.

And as to the definition of a basic health care "right" - I had to stop and think and type too - please feel free to view my thoughts: http://bit.ly/d80iZw

Former Anon said...

" It should comprise a physician, attorney, nurse and some ordinary and disinterested folks."

And what exactly would be hoping to achieve by revamping the American legal system in this way? And again, why shouldn't other industries get this same exemption from the 7th Amendment? Or would you agree they should?

Also, currently physicians win 75% of the time at trial - what sort of winning percentage would you expect with your health court? And how do we find/compensate the physician, nurse, attorney?

And further, I've never seen a health courts proposal without damage caps - I take it you're going to want those as well?

It's interesting to me that you guys are willing to toss out a clearly defined right, yet want to add new ones. How come?

Dr. Dorio, I see where you're going with your definition, but I think the devil remains in the details. Specifically, which procedures do or do not constitute "basic". I tend to agree with Dr. Kirsch on this issue. Although I find his willingness to toss out clearly defined rights odd.

Paul Dorio said...

Former Anon - You must not know that doctors are (quite frequently) selected for jury duty down here in Florida. I was also called in Wisconsin, when I worked there five years ago. So, perhaps your question is irrelevant: "how do we find/compensate the physician, nurse, attorney?"

Also, I think that it is reasonable to have carefully selected, topic-specific juries for highly specialized legal cases - as med mal obviously is - and for any other similar cases (electrical engineering, biomedical engineering to name two other highly specialized areas).

(Constant inquisitiveness without attempting to solve problems becomes less effective as the day wears on. Professorial, yes. But not very constructive. Just an aside.)

Former Anon said...

I'm sure they are selected, although I don't know how often. However, it appears you're mandating them at every malpractice trial. Did I misread?

Is all med mal so highly specialized that qualified experts can't explain what should have been done or was done in a manner us lay folks can understand over the course of several weeks. Once you go down the path of "too complex for ordinary folks", where does it end? Why not civil engineering? Commercial construction? Insurance contract interpretation? The accident reconstruction aspects of a car wreck, which involve physics, engineering, etc.? Is understanding a botched knee replacement any more complex than understanding why a commercial building is defective?

And not all med mal cases are that highly specialized. Sometimes they're just about the value of the damage.

I'm not trying to solve the problem - you are. I've made my proposals above. I just don't see the magnitude of a problem that you guys do, and so far you haven't given me any evidence beyond anecdotes that it is that bad. And I'm just trying to clarify what you want to do about it so we can weigh your proposal's merits. I know what you generally support, damage caps, because you can find that legislation.

But I don't think we should just try something because a vague description of it sounds good, particularly when it infringes upon Constitutional rights.

Michael Kirsch, M.D. said...

The anonymous attorney is being honest. He is not proposing solutions as he does not feel that there are flaws to remedy. He is satisfied with system as it is.

If 95% of every physician in the country views the current medical malpractice as abusive and unfair, is this still regarded as an 'anecdote'? Ten thousand individual case reports that reach a similar conclusion are no longer stray anecdotes. When considered in their totality, they constitute evidence.

ThoughtsOfEternity said...

Caveat: I am not a physician, but through recent illnesses in my family, I have dealt extensively with over 30 different physicians. I agree that adverse outcomes do not automatically indicate malpractice. They might, but there are a lot of different things that should be evaluated before assuming malpractice. That being said, and I appreciate Dr. Kirsch's candor, the one thing that I have repeatedly seen from physicians is a failure to communicate with the patient and family, and the failure to reasonably set expectations.

While no patient (or client) wants to be told "I don't know if this will help you", its preferable, I think, to "you will get better" or "she should do fine now". When in 10 days the patient is not better, or worse yet, is dead, even if there is no malpractice, the physician appears to be either incompetent or negligent. The appearance of negligence and/or incompetence, to those who lack the training to discern the difference, can be enough for that patient/family member to go and see an attorney.

The legal community also should become better at screening out medical malpractice cases that are not truly negligence. Why don't they? Because the legal community A) doesn't have the training and B) has no incentive to do so. Its rare for a lawyer to be disciplined for a frivolous case.

I honestly think that both communities, legal and medical, can and should work together to come up with a system which protects patients and deals with the truly incompetent or impaired physician, but also screens out the cases which should never darken the inside of a courtroom.

Paul Dorio said...

ThoughtsOfEternity - thanks for a welcome and (finally) different voice. Your comments are quite interesting and insightful.

Improving doctor-patient communication is essential, as I posted previously also - http://bit.ly/d2AdTs - nice comment.

I also agree it would be nice if legal and medical could come together. But remember that law isn't about delving into and discovering the truth. It is about which side has the better argument.

LeisureGuy said...

@Dan:
You wrote, "Your article was an opinion piece by Dr Gewande, not exactly evidence."

This kept niggling at me, and I finally give in and point out what I thought was obvious but perhaps is not. Dr. Gawande does offer opinion in the article, but he also includes the facts that inform and shape that opinion. I meant to refer to the facts part. I should have said so, but I thought the reader would immediately get it and have no trouble telling the difference.

Former Anon said...

"But remember that law isn't about delving into and discovering the truth. It is about which side has the better argument."

This would also be a misconception. For a couple of reasons - one, it assumes that the objective and verifiable truth can always be discovered. It can't. If you and I both observe an accident from different vantage points, we may have seen two very different things and draw very different conclusions as a result. We cannot go back in time and determine whose is objectively true. But the goal of a trial is to try and determine that truth.

Second, any lawyer who tries cases, for either side, will tell you that if you're banking on your opening and closing to win the case for you and have no facts, you've got a tough row to hoe.

Things seem easy when you've never done them, I'm afraid. Although I'd never think being a physician was just a matter of guessing at illnesses until you got it right.

Former Anon said...

" He is not proposing solutions as he does not feel that there are flaws to remedy. He is satisfied with system as it is."

This is incorrect. I proposed several solutions to remedy the very problem you mentioned.

"If 95% of every physician in the country views the current medical malpractice as abusive and unfair, is this still regarded as an 'anecdote'"

Just an opinion. But everyone holding an opinion doesn't make it correct, does it? 95% of all physicians believe that tort reform reduces "defensive medicine" and lowers health care costs. After 40 years of tort reform, that's still not true, but they all still believe it.

"Ten thousand individual case reports that reach a similar conclusion are no longer stray anecdotes."

Except actual studies reach different conclusions. How is it you disregard neutral studies but rely upon opinions of cases people read in the newspaper? That strikes me as odd for a scientist. I realize it's just confirmation bias, but still, you'd think a physician would be more immune to it than the average person.

Former Anon said...

" Because the legal community A) doesn't have the training and B) has no incentive to do so."

A is true, but that's why experts are required - remember there is no plaintiff's case without a physician testifying that the standard of care was not met.

B would be true if the plaintiff's attorney were not fronting the cost. Given the cost of pursuing a medical malpractice case, there is a substantial disincentive to pursuing cases that have no merit.

Were you to work in a plaintiff's firm handling malpractice cases, you would find that the vast, vast majority of initial consultations for malpractice are rejected. And those that are taken even at that point are pre-screened by a physician before they go any further.

Now, are there attorneys who don't always do the above? Of course - but they don't typically last long handling med mal.

Remember, it is almost certain that there is far more malpractice than ever sees a claim file. One recent study found that there were over 100,000 deaths due to medical malpractice each year. And that's just the deaths. A 1999 Institute of Medicine study found 1.5 million medication errors alone each year.

Yet there are only about 90,000 medical malpractice claims each year. That's claims, not lawsuits.

Former Anon said...

Look guys, I know you have a lot of opinions, but I think many of these opinions are driven by anecdotes, not the data. The data just doesn't bear many of these conclusions out.

From the number of claims, to the efficacy of the civil justice system, to the value of claims, to the business behind pursuing or defending med mal claims, to the benefits of tort "reform", so much accepted wisdom is just wrong. And it's wrong because some very well heeled interests (the tobacco industry, insurance industry) have worked very hard to get that message across. And to their credit have been very effective.

They have one goal - reducing their exposure. Physicians wax poetic about "improving" the system so more people can get paid faster, and more malpractice is rooted out, but the legislation they back doesn't do that. It only caps the exposure of defendants regardless of merit.

The funny thing about all of the above is that you can easily verify any of it, not from lobbyists, or from plaintiff lawyer's groups, but from independent studies and documents. I wouldn't ask you to believe me - I'll cite you to the stuff.

Once you've peeled back all the rhetoric, the anecdotes and secondhand stories, you find that it's really much ado about nothing. Being in a lawsuit sucks, no one disagrees. It's time consuming and at times stressful. But being the victim of malpractice sucks far worse. And our Constitution matters, and trial by jury is a fundamental aspect of our nation, enshrined not only in the Constitution but also in the Declaration of Independence.

Start with the facts, and the Constitution, and see where that takes you. Don't let confirmation bias lead, let the facts lead.

I'll be glad to cite you to any studies you need to see to confirm. You guys can have the last word.

Kevin B said...

Former Anon, you must have a lot of time on your hands ... cases down? OK, where to start.

Former Anon wrote: ... it assumes that the objective and verifiable truth can always be discovered. It can't. If you and I both observe an accident from different vantage points, we may have seen two very different things and draw very different conclusions as a result. We cannot go back in time and determine whose is objectively true

Ah ha! I knew it would come up eventually in this discussion. Relativism rears its ugly head. This has always struck me as a clear difference between docs and lawyers. Former Anon, I know that you are right to a certain degree about finding the absolute truth, but that sure is the banana peel at the top of the slippery slope, isn't it. To suggest that a med mal case is always about getting to the real truth is not just nonsensical but pathetic, in that that is what the justice system is supposed to do. I'd like to see a lawyer on either side of a case (any case), once the evidence has been presented, concede that their side was in the wrong and truth has come out. Lawyers will twist every detail to their advantage. Tell me it's not machiavellian!

Kevin B said...

Speaking of relativism, we’re all suffering from an error of perspective arent’ we? We’re so defined by the world that we inhabit, but how would we feel after walking in other shoes for a while. Would our beliefs change or remain entrenched?

Let’s play a little game I’ll call “empathy”. It’s a thought experiment where I pretend I’m you and you pretend you’re me. Better yet, I’ll pretend I’m a victim of medical malpractice. Here we go. Let’s say I’ve lost my child due to a clear medical error. How do I feel? You’re damn right, I’m pissed. I want to soak those doctors for all they’re worth and then some. Yet no amount of money will take away the pain of my loss. So yeah, I get it … a cap for damages in this situation stinks big time. From this viewpoint, I’m against it.

OK, now your turn. You spend each day trying to help your patients the best you can. You actively work toward better practice, and usually, you get it right. You come back from lunch one day to find a man in a suit with a thick envelope with your name on it, and you catch sight of the word “Esquire” on it. Oh no, here we go again. You open the envelope for another dose of humility handed out with scathing words from a lawyer who’s never met you. After supressing the anger generated by the diatribe of horrible care you’ve provided (I’m not exaggerating this), you look up the patient’s medical records to see what injustice you have committed. Again you find that this case has truly zero merit. It’s not that you never make mistakes, it’s just … this case?? You have no idea why this was filed, but look forward to the next 12-24 months of slogging through discovery, depositions, canceled patients and surgeries, knowing in the end that it will almost certainly be dismissed, because you didn’t do anything wrong! And this will happen again and again and again.

Kevin B said...

So … what would you do about this? Do you agree you might feel like this was a problem? (a small concession would feel pretty good right about now, eh Kirsch?) You’ve been quick to shoot holes in our lame ideas, so please, walk a while in my thought experiment and tell me what you would propose for a solution. And don’t tell me you would work to improve the quality of care. I’ve already conceded that point, and we’ll put that in the “in progress” category. Suppose you’re doing the best you can on quality improvement and those annoying frivolous lawsuits just keep coming. What would you propose? I can tell you are smart, and obviously dedicated to this topic. So please, bring your intelligence to bear and give us some suggestions.

A few more days of this and we might actually solve some problems! [note to Kirsch: where shall we publish our write-up on “Solving the medical malpractice crisis … a blog’s-eye view”? NEJM? JAMA? You decide.]

Kevin B said...

Former Anon said: "Also, currently physicians win 75% of the time at trial - what sort of winning percentage would you expect with your health court? And how do we find/compensate the physician, nurse, attorney?"

Probably much lower percentage of defense verdicts, because the merits of the case had been verified in the HC.

Just because the logistics aren't completely worked out ... you won't comment on the merits of the idea. It's easy to obfuscate with a barrage of logistics questions. Do you think there is a version of the health court idea that could be helpful, if the logistics were worked out?

LeisureGuy said...

Former Anon is calling for participants to look at actual studies and evidence rather than relying on anecdote. I also make this plea and even offer a recent and well-regarded book that reviews studies and findings. But I find that physicians are VERY resistant to looking into this in any serious way. I recommend the book (The Medical Malpractice Myth, by Tom Baker), and I get in return lots of assurances that there is simply no time to read a book. No time at all. This issue is of tremendous importance, it requires legislative action, but there seems to be no time to actually learn what is in fact happening.

Michael Kirsch, M.D. said...

Very pleased to have Thoughts of Eternity, a most thoughtful individual, on this thread.

Physicians are trained to search for the truth. Lawyers are trained, and obligated, to defend their clients' interests, which is often not the truth.

We have different missions and this is one reason we do not view tort reform similarly, There are many other reasons, of course.

Former Anon said...

Kevin,

Let me first say that some of your questions are of a philosophical bent that would take us far afield in this discussion. I'll be glad to give you my email if you'd like to discuss those further. I won't be addressing them here, though. Let me address the others as follows:

"Just because the logistics aren't completely worked out ... you won't comment on the merits of the idea."

I don't know how one comments on the merits of something that isn't fully or even partially described. I think it's dangerous to reach pro or con conclusions based on something that's not clear. I've seen health courts proposals before, with all the details, and I generally object to them because they're just backdoor caps and really expensive to the taxpayer. Putting aside Constitutional concerns.

"What would you propose"

I proposed it several posts up.

"Yet no amount of money will take away the pain of my loss. "

That's true. However, in this country when something doesn't rise to the level of criminal culpability there still may be a harm done. And while money isn't perfect if your child died, or you lost the use of your legs, or whatever, we believe that lost quality of life still has value. I'd love to find a medium other than money that comes closer to rectifying the injury, but haven't so far.

" To suggest that a med mal case is always about getting to the real truth is not just nonsensical but pathetic, in that that is what the justice system is supposed to do."

The truth is whether the standard of care was met for the most part, although in some cases it's about what actually was or was not done. That's not an objective truth - that's a societal standard. Or even a physician standard. So for you to accuse me of relativism doesn't make much sense here.

I think your belief in how trials work and what lawyers can do comes more from television than observation of the actual practice.

Former Anon said...

"Physicians are trained to search for the truth. Lawyers are trained, and obligated, to defend their clients' interests, which is often not the truth."

This statement is incorrect, but a common misconception and what happens when you opine on subjects you haven't fully studied. Lawyers are officers of the court, and can be sanctioned for putting on evidence that they know is untruthful. I have had to withdraw from cases where I thought my client was going to lie on the stand.

Again, the difference comes in because you believe that there is a discoverable objective universal truth to every human encounter. That belief is incorrect.

I've seen physicians in a contract dispute with their partners both sincerely and deeply believe that their interpretation of a contractual provision is "the truth". They can't both be objectively right. Yet both have a very honest belief they are.

Likewise, two people in a car wreck both believe they had the right of way. They can't both be right, no matter how honestly and sincerely they believe themselves to be. The purpose of the trial is to determine that truth as best we can. We do that by having both sides put on their best case and letting a neutral finder of fact decide.

Former Anon said...

"We have different missions and this is one reason we do not view tort reform similarly"

This is correct, by the way. Judging by the legislation you support and proposed to date, your mission in tort reform is to reduce the exposure to your insurer regardless of the merit of the case or the Constitution.

An attorney who represents ordinary folks like you and me, however, sees it as their duty to protect the rights of the individual against the moneyed interests, and to preserve our Constitutional rights.

Michael Kirsch, M.D. said...

@anon:

I said: Physicians are trained to search for the truth. Lawyers are trained, and obligated, to defend their clients' interests, which is often not the truth."

You said: This statement is incorrect, but a common misconception and what happens when you opine on subjects you haven't fully studied.

I respond: Nice try. Your argument here falls away. When an individual is found be be not guilty, who in fact committed the crime, truth was sacrificed, even if the judicial system functioned properly. I think that most of the country would agree that lawyers are not charged to expose the truth, although you might regard this as a mere collective anecdote. Obviouly, as an officer of the court, you cannot knowingly have your client lie on the stand. But, the truth is often hidden or ignored (deliberately) by lawyers who are practicing as they should. Are you arguing that the practice of law is a search for truth? If you can win that case, then I want you as my lawyer.

Anonymous said...

Kirsch is again comparing criminal law with civil law. What a jokester.

Doctors like Kirsch only look out for themselves. They are too lazy to pick up a Rules of Evidence and find out most of what they say is pure BS.

As far as being pro-caps, of COURSE Kirsh is pro-caps because it harms the patient and is beneficial to him. Most self serving lawyers would be pro caps on legal malpractice too!

BTW, if you dont think lawyers get sued by other lawyers, google legal malpractice and see your worthless argument get shredded before you even make it.

Further, tribunals that silly Kirsch proposes stomp all over the 7th Amendment (right to a civil JURY TRIAL). Caps screw kids, housewives and elderly people.

Last, doctors make very good money. They are one of the highest paid professions, yet they whine and whine. If you guys dont like it, how about giving up that salary and become nurses? You wont have as much responsibility.


Thank God the older by the minute Republican party is dying off. If we ever need doctors, we can always import ones that won't complain from other countries.

Anonymous said...

All of you trial lawyers:

This is the best evidence of the BS offered by the other side. This blog should blasted all over the internet as to the obsessive complusive like desire to escape liability by doctors and their flat out lies and childlike reasoning skills.

The facts speak for themselves -

1) caps on non economic damages allow rich people to sue all they want, but kids, elderly and housewives (who have 0 economic damages) are capped. This is pure FACT.

2) Tribunals are a direct violation of the 7th Amendment. It can NOT be said any clearer than this. A brief look at the 7th Amendment will show the reader there is no argument. FACT.

3) Doctors are paid VERY WELL. However, they want to be immune from liability. FACT.

Michael Kirsch, M.D. said...

Many sides of this issue have been aired here. Some constructive, and some resort to gratuitous insults and lack or responsiveness to inquiries directed toward them. Such views, easy to offer anonymously, demean the commenter and not the target.

who cares I dont have a blog said...

Kirsch:

"lack or responsiveness to inquiries directed toward them"

Ever look in the mirror? Perhaps you need to go to Wallyworld and buy some Windex.

Anonymous said...

Last for now..

LG:
I have no idea why you keep replying to Kirsch's repetitive assertions. They can be summarized as follows:

1) Caps are good because its better to leave some patients uncompensated than to have these so called frivolous lawsuits harming doctors

2) Lawyers are not truth seekers because somehow criminal defense law, which has nothing to do with civil law, and mandates the lawyer keep the government in check somehow bleeds over to civil law. How? I don't know.

3) Tribunals are good because he says so. He won't address the 7th amendment argument.

4) Frivolous lawsuits are common because his friends told him so and because lawyers sue his friends for $10,000,000,000 (even though the number in a pleading is arbitrary and it doesnt matter much anyway if the case is tried).

I swear, this blog is an excellent tool for plaintiff lawyers to show how silly and not based on any fact the rationalizations of the other side are.

Kevin B said...

Resorting to such drivel as this is a tell-tale sign that someone is against the ropes. Too bad, because many comments made here have been well thought-out, from both sides of the issues.

To LesiureGuy and Former Anon, you are right that I have been trying to use personal anecdotes in some of my former posts. I have not been using these to try to prove anything, but merely to provide some counterpoint to the idea held by some on this thread (perhaps more implied than stated) that physicians are just whiners who don't really have any problem and should just get over it. My real and imagined illustrations were simply attempts to posit that our concerns are valid from our perspective. I'm certainly not smart enough to come up with some brilliant new solution to the concerns I and others have raised ... perhaps none exist. Often, however the collective give and take of those on opposite sides of the issue can help sharpen or dull an idea that has been raised as a possible solution. This can never happen, however, if both sides don't at least concede that a problem exists. It's like a Venn Diagram that got pulled apart.

Kevin B said...

by the way LeisureGuy, I'm happy to read the book you recommend by Tom Baker (just ordered it from Amazon). I believe that truth (or one's beliefs) should withstand the closest scrutiny. To that end, reading material from the opposite side of an issue is always helpful to me, either to change my mind, or sharpen my arguments.

Anonymous said...

Dear Kevin:

If anyone is against the ropes, its incompetent doctors who fail to address the 3 real issues outlined above in the "facts speak for themselves" post.

No one can argue with a kid who can not get compensated because of caps. That is the cold, hard truth.

Further, the Republican party which advocates for the spreading of tort deform is getting older and dying off.

The best, although tragic, example of karma is having a medical doctor come into your office requesting to sue another doctor on behalf of his kid. "I'm sorry but there is nothing I can do, doctor, your kid just doesn't have any economic damages" makes him see the light in a heartbeat.

Sadly, I know a few doctors and a few nurses who have had the above experience.

Former Anon said...

"When an individual is found be be not guilty, who in fact committed the crime, truth was sacrificed, even if the judicial system functioned properly."

I've actually been waiting for someone to bring up criminal law in this context, and you're right. Criminal law not only has to deal with a search for the truth, but also has to contend with the American society's hostility to government, in that it also is a check on the power of the state. The state has to meet Constitutional requirements for prosecuting an individual or that prosecution may be denied.

". I think that most of the country would agree that lawyers are not charged to expose the truth, although you might regard this as a mere collective anecdote."

I regard it more like this. Nearly all of my clients think I'm great. And they DESPISE the other side's lawyer, no matter how quality a person they may be. And many are really top notch, moral people. But you'll never convince my client of that. I'd compare it to politicians - everyone hates them, but they all like THEIR politicians, which is why incumbents get re-elected at the rate they do.

" Are you arguing that the practice of law is a search for truth? If you can win that case, then I want you as my lawyer."

If you can't be dissuaded from the belief that tort reform accomplishes anything other than preserving insurer profits despite mountains of evidence, I doubt even the most well crafted argument in a debate will reach you.

What I would tell you is that our judicial system is a search for the truth, and a search to establish societal norms for action - ie the standard of care in a negligence case of any type. As a society, we believe that this is best achieved by allowing each side to put its understanding of the facts forward and a cross section of society (the jury) to determine which is correct.

Now, is that always a pure search for the truth? No, and you wouldn't want it to be. After all, you no doubt LIKE having statutes of limitations, which necessarily limit the search for the truth. But a case being tried is most definitely a search for the truth. And the practice of law is part of that process. At least the part of it that is trying cases. Now, if you're drafting contracts, or doing probate work, etc. that's a little different.

Former Anon said...

" that physicians are just whiners who don't really have any problem and should just get over it"

Kevin, I don't think you're whiners. I think you've been subject to so much propaganda that you think the "problem" is far greater than it really is though. And I do think you're asking society for some extraordinary protections yet offering little in return.

I also think you've been duped in a lot of ways, for while you all support "tort reform", few of you realize that legislative tort reform is all about protecting the insurance industry and occasionally the pharmaceutical/medical equipment industry. Your high minded positions have little to do with the reality of the tort reform "legislation" for the most part.

You keep saying both sides need to acknowledge that a "problem" exists. As best I can tell, according to you guys the problem is that sometimes you get sued and then dropped, and you'd just as soon not be sued at all. I've offered some solutions to that above. Yet all the tort "reform" efforts are just about capping damages. So forgive those of us on the side of the injured plaintiff if we're a little jaded with "solutions" that don't address the problems you complain of.

Kevin B said...

OK .. let's talk about caps. Here’s another angle we haven’t yet explored regarding the subject of damage caps. I’m curious … how have the damage awards for medical malpractice, and specifically non-economic damages changed over the years? Although I haven’t pursued the data comprehensively myself, conventional wisdom seems to suggest that these damages have skyrocketed. If so, why? Couple that with the rise of the entitlement mindset and you create, in a linear fashion as awards rise, a perverse incentive to sue whenever a medical outcome is not perfect. The percentage of the award that goes to the plaintiff attorney provides the same perverse incentive for them. As those damages rise, it creates the perfect environment for abuse of the system. What should the awards be? Are medical injuries worth 10x or 100x more today than they were 30 years ago? If so, why? Suppose a system without any caps. What framework could we use to determine an appropriate limit? Why not award 100 million … why not 100 billion? Most people would say that’s clearly unreasonable, but I wonder what they would say about a 10 million award 50 years ago (inflation notwithstanding). I realize that these arguments are nothing new, but I’d be curious to hear the opposing viewpoints in this blog.

Michael Kirsch, M.D. said...

@anon,thanks for your comment. Regarding:"What I would tell you is that our judicial system is a search for the truth,"

I do not agree with this. While the legal process can be truth seeking, I do not believe this a core value and function of your profession. We can disagree on this point. I regard the legal profession much more as advocacy, than true enlightenment.

I am willing to abandon caps. I believe and have written repeatedly that they are flawed.

Beside your suggestions to depose physicians at an early phase, do you have specific reforms to the medical liability system that you would support? Please list them, if you have any, rather than offer a narrative response. I look forward to your thoughts.

Former Anon said...

"how have the damage awards for medical malpractice, and specifically non-economic damages changed over the years?"

Only the insurers could tell you that, and they don't release raw numbers. Generally, though, with regard to awards overall, they're going to track medical inflation. After all, the bulk of most awards is medical bills.

So when you see a devastating injury with a high damage award, remember, much of that goes back to the medical industry, or to the health insurer that paid the cost via subrogation.

And yeah, verdicts have gone up - because the cost of healthcare has gone up. 25 years ago, you get a particular type of injury, and you are pretty much stuck. Let's say you lose an arm. Now, with advances in prosthetics we have the ability to bring much of that function back. But that costs money.

"Couple that with the rise of the entitlement mindset and you create, in a linear fashion as awards rise, a perverse incentive to sue whenever a medical outcome is not perfect. "

Problem with this theory is that it ignores the economics of a plaintiff's case. No matter how much a client may feel "entitled" to a large verdict, the attorney paying the costs has to make sure it's economically worth pursuing. Simply because the plaintiff feels entitled doesn't mean the defendant's insurer agrees.

And it ignores the fact that a large damage award typically means a pretty gruesome injury. Check out the injuries associated with 7 figure malpractice awards. I imagine few of those people would take the money if they could go back.

You ask what framework we use - the framework is the same one that has been used for centuries - the jury. It represents the people of the community. I realize it's fashionable to think that juries all consist of sad sacks waiting to award millions to any sad story and slick plaintiff's lawyer while the defense sits mute, but that's just not the case.

Juries are made up of voters, and last I checked, voters in this country were pretty evenly split between what we can loosely call "conservatives" and "liberals". And even the liberals aren't all out there waiting to hand millions to anyone with a sad story against their family doctor. If they were, physicians wouldn't win so much in front of a jury.

Beyond that though, we have remittur from the trial judge, and the appeals process where damages can be knocked down.

What you have to ask yourself about caps is how much power do you want the government to have v. the individual? Do you trust the people who heard the facts to determine the value of a case, or what some lobbyists decided?

Former Anon said...

"I do not agree with this."

I knew that. That's why I had the caveat in front of the original comment. There's no point in rehashing it given how entrenched you are.

I do wonder how you propose to deal with the US Constitution in all your proposed reforms.

"I am willing to abandon caps."

I don't understand this. You either believe they work and can support that belief with facts, or you simply believe based on blind faith in insurer propaganda. If you're willing to abandon them, then just do so. You'll be standing up for the rights of individuals, particularly those who don't have economic damages. And you'll be supporting one of the fundamental tenets of our nation - trial by jury.

" Please list them, if you have any, rather than offer a narrative response."

There is no "medical liability system." None. Doesn't exist. Just civil cases.

I would like to make it cheaper to access, but given the costs of experts in medicine to testify, I do not see how. Perhaps you have an idea.

But again, the Constitution quite rightly limits our ability to do the wholesale removal of the jury trial in this area, so at best we're working with procedural rules.

I suppose one could develop a workers' comp style no-fault system, and with single payer I expect that's where we end up.

Michael Kirsch, M.D. said...

@anon, appreciate you candor. I do not think that truth is relative, even if it cannot be discovered in all instances. Regarding your comment: "And yes, the attorney is an advocate, but for his client's position, which the client presumably believes to be truthful. " That your client (or me) may 'believe' his position to be truthful, doesn't make it so.

Former Anon said...

I agree. But without a time machine, it's impossible to know the objective truth about every event. Consider that even two people with different vantage points of the same event may have two different versions of the truth. Neither are being untruthful, but they are simply seeing things from different perspectives.

However, the goal of the trial is to determine as best we can the truth through the collective wisdom of the jury. Will they always get it right? Of course not - no system involving humans achieves perfection. And we try and give an opportunity to correct that with the appeals process as well.

Michael Kirsch, M.D. said...

@anon, I agree entirely with your last comment. I knew it was possible.

LeisureGuy said...

I looked at Dr. Kirsch's response to my latest comment above and am a little puzzled. Does he (or any commenters) think that I am/was a lawyer? Simply because I support the right of people to sue for damages?

I was a teacher, programmer, systems analyst, programming manager, product marketing director (software) and other things. Never a lawyer.

LeisureGuy said...

I think Dr. Kirsch has spent as much time on this post (and the comments) as it would take to read The Medical Malpractice Myth and learn the facts of the issue. Just a thought.

Michael Kirsch, M.D. said...

@LG, I never suspected you were an attorney. I do suspect that you earn royalties from the book you have been hawking.

Anonymous said...

100 comments! First time ever?

Michael Kirsch, M.D. said...

Definitely! Does it still count if several of the comments are mine?

medical malpractice said...

Malpractice ought to indeed be fixed, but not with caps. we ought to replace the 12-man jury of emotional idiots with a three-judge panel of specialists. Then the process will be fair to both sides.

But overall, even today, medical costs represent less than 1/2 of 1% of total healthcare costs, but the physician ordering of tests to cover their ass raise it to about 5%of the total. & those costs rise with medical inflation.

Anonymous said...

" we ought to replace the 12-man jury of emotional idiots "

I always love this claim. Since the jury finds for the doctor 3 out of every 4 times, are they emotionally and idiotically attached to physicians?

Kathleen Clark said...

I appreciate what has been said about physicians weeding out other physicians who are not competent rather than railing against lawyers, the court system, and juries, to name a few. I also would appreciate knowing how physicians who have been sued handled disclosure, informed consent, communication with patients, apology (to the extent appropriate), attempts to settle cases, everything that occurred BEFORE they are served as defendants in lawsuits. Why not restructure the conversation, shifting it to: what are we, the physicians, doing to commmunicate with our patients before and after preventable medical injury? Build on what physicians are doing right, which is considerable, saving many, many lives, and what is working for physicians. How can we do more of our good work with limited time to communicate with each patient and create trust? Does blaming lawyers, courts, experts, and/or jurors create a better process for the patients and the "second victims"? Does it create learning, healing, community? Does it advance healing? Advance medicine? Advance community?
Although I am an attorney, I don't handle medical malpractice cases. I just seek alternative, healing practices that are effective for patients, healthcare providers, attorneys, families and communities. Thanks,

Michael Kirsch, M.D. said...

Please read this column published in yesterday's New York Times. This is not the ranting of a right winger Tea Partier, but the views of a prominent economist who, until recently, was in the Obama administration. Please offer your comments on the blog. http://nyti.ms/bDqLCR

student malpractice insurance said...

Yeah, this is somehow true. It doesn't mean that once an unfavorable outcome takes place, this can be considered automatically as a malpractice. In fact, this is a case to case basis. So, sometimes, it is not always the medical experts' fault for having something that is entirely adverse to what the patient had been expecting.

Anonymous said...

This is such a great post.

medical negligence said...

What damages can be recovered for medical malpractice? What about attorneys fees and the costs of pursuing a medical negligence case?

Michael Kirsch, M.D. said...

Good point, but almost impossible to recover attorney's fees or costs. You are referring to a 'loser pays' concept, which doesn't exist here. While this would discourage frivolous lawsuits, loser pay opponents argue that it could prevent legitimate lawsuits from being filed. I still favor a special medical malpractice tribunal that would filter out the frivolous from the legitimate. Thanks for your comment.

Anonymous said...

In my experience, opinion, and extensive research, negligent medical malpractice is rampant in the world of "board certified plastic surgeons." Rampant and heinous. The cover- up, incredible pain caused, blaming of the victims, and lack of recourse is shameful. Many " board certified plastic surgeons" who are recommended as the "surgical reconstructive experts in their area", up-sell women who need reconstructive breast surgery on other procedures such as " a little liposuction" to "balance out their body". Once their body and health is absolutely destroyed, these women get blamed to boot. I personally know women who are fully disabled and in excruciating pain from these surgeons. The "lucky ones" are simply disfigured. This needs to be changed, now. There isn't enough money in the world to compensate for having a " board certified surgical expert" suction out your essential connective tissue during a breast surgery. Very few people seem to be taking this seriously. The fact that liposuction ever got legalized was a fluke based on the fact that they make people sign " consent forms", however, these forms do not give full, transparent information. It is the BS the surgeons tell women online and in private consults that the women listen to. Who is going to step up to help?

Michael Kirsch, M.D. said...

Point well taken. Do you feel that patients have some responsibility here also?

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