Sunday, April 13, 2014

Sued for Medical Malpractice - Again

Folks who have wandered through the Legal Quality category of this blog understand my views on our perverted and unfair medical malpractice system.  I've been in the arena many times, and always walked away unharmed.   If this system were presented in front of a fair minded and impartial jury, it would be dismantled.  Sure, there are positive elements present, but they are dwarfed and suffocated by the drawbacks. The self-serving arguments supporting the current system are far outweighed by the financial and emotional costs that innocent physicians unfairly bear.  Tort reform should not be controversial. 

You may wish to peruse a few of my medical malpractice posts before spewing forth vitriol in the comments section.

Beyond the medical arena, who wants to defend the crushing volume of litigation in the United States?   Let me be bold.  I think we have too much litigation and fear of litigation in this country.  Put that item up for a vote anywhere in the country except at an American Bar Association convention, and you don’t need to be a soothsayer to predict the outcome.  You just need to be breathing.

About two years ago, I was sued months after the death of a patient for whom I provided appropriate care.  Being sued is not a lonely process.  I was among many defendants, including several doctors, a hospital and other corporate entities. 

I reviewed the medical record and reached two conclusions:

    (1)    My care was appropriate and proper
    (2)    The record documented the above.

In the medical malpractice arena, it is much more important what has been documented than what has been done.  Meditate on this statement for a few moments.

The complaint against me didn’t offer a single specific allegation of a breach of my care.   Instead, there was a general statement, which used against every defendant, that we were negligent.  My attorney also could not divine from the complaint an actual allegation against me.   Isn’t there an obligation to state to the accused what the alleged negligence is?

In Ohio, a physician not involved with the case must sign an affidavit of merit swearing that there is a reasonable basis that malpractice occurred before a case can go forward.  While this sounds like a filter, it functions as a sieve.  Shockingly, this single physician swore that every physician deserved to be sued.  I suspect that if a hamster were sued, that this doctor would have put the little varmint in the dock also.
Many of these physician ‘experts’ earn a substantial portion of their incomes by serving trial attorneys.  Anyone spot a conflict of interest here?

The case was dropped against everyone, presumably as the plaintiff’s attorney couldn’t find real experts to support the claims of negligence. 

I thought I was in the clear until the case was refiled a few months ago.   My attorney petitioned the court to dismiss me as the physician who signed the affidavit of merit was not in my specialty.  The court agreed.  For all I know, this doctor may have been a psychiatrist.

What a system.  Consider that I’m only one defendant who was drawn into the legal labyrinth.  My malpractice carrier informed me it cost $11,750.22 to defend me, and my case never even reached the discovery phase.  How's that for money well spent?

I wonder what the financial costs are from all of the unnecessary litigation that our country endures in a year.  Probably, enough to truly reform the health care system.  Hey, this gives me an idea…


Barbara said...

Tort reform is absolutely necessary, but when our Congress is made up of lawyers, who's going to even offer a bill let alone pass one? The foxes are guarding the henhouse.

Michael Kirsch, M.D. said...

Thanks, Barbara. Keep in mind that the GOP support tort reform, but are held back by the Democrats, for the reason you suggested and many others. Guess which political party the Trial Lawyers contribute to? Do they do so just to support 'good government'?

Barbara said...

A few years ago, I believe in one of the Carolinas, there was a female lawyer who specialized in suing obstetricians for her clients. When she became pregnant, she was astonished that no OB in her city would take her as a patient. She had to drive a very long distance to find one to take care of her during her pregnancy and deliver her baby. It's just desserts. Hopefully the GOP will in the next two elections turn around the mess the Democrats have made of both our legal system and our health care system. Doctors, lawyers, and the general public will be much better off!

Unknown said...

I personally think that in a case of a medical malpractice lawsuit, negligence is always one of the hardest to prove. First of all, it's really hard to determine the grey line between appropriate medical attention and medical negligence. Anyway, I do hope for all the best in your future practices.
Greg Taylor

Michael Kirsch, M.D. said...

Thank you, Greg. While I agree there can be a gray area, in most cases that I am familiar with, it is not difficult to distinguish between a negligent act and an adverse medical outcome. Thanks for taking the time to comment.

Anonymous said...

I'm so glad to see this.

I had a doctor who women thought was cute, but he dismissed me from the practice 2 days after alleging a HIPAA violation to the authorites (retaliation is illegal), missed complications after a surgery, sent me to a doctor that all of a sudden after I was dismissed, couldn’t find anything wrong but couldn’t diagnose me even with medical research given to him, gave me a “mental diagnosis” that didn’t match the DSM IV criteria for the disease, and then dismissed me when I said I couldn’t pay him for an office visit.

A 45% profit range is worth a patients' life and getting care.

PS I have the facts in terms of phone logs and office notes and other papers to prove it.

I made it clear I am not suing the guy. However, I think that stories like mine should be posted somewhere attached to the doctor so people can see it and make their own judgements. I think that would work better except for some truly egarious situations (they cut the wrong leg off and then the group/hospital won't suck up the cost of fixing it).

That would take a bite out of the lawyers, get patients to do some investigation and take responsibility for their own health. A better way all around. has part of my story and some medical excerpts. More to come.

Michael Kirsch, M.D. said...

Appreciate your comment. With regard to attaching a patient's vignette alleging substandard (or exemplary) care, this already occurs on the internet. There's a fairness issue here to consider. A disgruntled patient, like any dissatisfied customer, might have a view of an incident that is biased, distorted or wrong. The reader should have both versions, of course, in order to make an informed judgement. This cannot happen now as the physican's written response or rebuttal might be used against him in a legal proceeding. The current medical malpractice system inhibits physicians from speaking publicly about medical mistakes and misadventures.

Anonymous said...

What do you do if a doctor really does hurt you?
Where does a patient go? Do the regulatory boards
act on complaints?

Given that a patient does not want money, simply needs to have errors corrected, where, what and to whom?

And what about other people. Shouldn't the harmed patient consider the other patients this doctor will treat?

Michael Kirsch, M.D. said...

If you feel that a physician or hospital has harmed you, or that you suffered a complication, and you are truly not interested in money or in suing, then inform the doctor of your motivations. I'm sure that under these circumstance, you will get satisfaction with respect to your grievances. Would you be willing to sign a document pledging not to sue?

nurse2014 said...

Have any of you watched the film Hot Coffee? Why should a doc or nurse who actually does harm someone not have to be accountable? People don't realize that even with caps on damages, the state pays for the lifelong care of an injured person...who pays for that? The people do...where is the justification in that? Why should I be penalized for someone else's mistake? Why can't doctors and nurses police themselves? By taking away the right of a jury to award a victim, we take away a basic tenet of justice written in our Constitution. Think about it.

nurse2014 said...

Have any of you seen the film Hot Coffee? Watch it....then realize what you're saying about Tort Reform does not make sense. By taking away the right of a jury to award a victim of tort violates one the basic tenets of our Constitution. What would George W and Thomas J say? Think about it.....

Michael Kirsch, M.D. said...

@nurse2014, No argument regarding accountability for negligence. My issue is that the current system by design ensnares far more innocent physicians than guilty ones, which wastes tons of money and tortures innocent practitioners. In short, the plaintiff attorneys' nets are too wide. There's no filter. Think about it...

Matt said...

" I think we have too much litigation and fear of litigation in this country."

This is actually an interesting statement. Let's start with "too much litigation". OK, since the vast majority of litigation is businesses suing businesses, what is your proposal to deal with it? Let's hear how we stop them suing each other over breach of contract, fraud, etc.

Then as to "fear of litigation", it's unclear who is afraid? Physicians? For the most part their understanding of their actual risk is shaky at best. They tend to parrot insurance company propaganda without question. Should we change policy, alter Constitutional rights, based on irrational fears?

Matt said...


Our Congress I do not believe has even one lawyer who has ever represented plaintiffs in personal injury claims. It has more physicians than plaintiffs.

Why someone not an insurance executive would support tort reform is beyond me.

Why the GOP, supposedly the party of limited government, does is even more baffling. I should say I'm baffled that people believe it's the party of limited government. It just follows the money like any political party.

Matt said...

" In short, the plaintiff attorneys' nets are too wide."

If physicians would submit to depositions before filing suit, they wouldn't have to be.

When do you think that will happen? Should people in Tahiti start buying winter coats?

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