Sunday, May 4, 2014

Are Doctors Sued Enough for Medical Malpractice?

Remember personal responsibility?  There actually was an Era of Responsibility when folks admitted when they screwed up and didn’t blame others for their own mistakes.  I know this may seem incredible to the younger generation who simply assume that when something goes wrong today, it must be someone else’s fault.   In today’s culture, this is not scapegoating, but the pursuit of justice.  Welcome to the Era of Big Victim.

In the olden days, if someone slipped on ice and sustained injuries, he went to a doctor. Today, we could expect a court case where a jury would hear testimony from an Illumination Expert testifying that the wattage and angle of the sidewalk lighting was clearly deficient.   A Saline Expert would add that the salt that the proprietor applied to the sidewalk was not dispensed with a certified salt sprayer, thereby allowing dangerous ice crystals to survive.  Perhaps, an Ambulation Expert would instruct the jury that the soles of the fallen man’s shoes contained a design defect that the company knew, or should have known, made slipping more likely when the ambient temperature was between 26 and 28 degrees Fahrenheit at specified humidity levels, particularly in northeast Ohio. 

Warning: Ice is Slippery

The notion that the guy fell simply because he slipped or was careless, is irrelevant, immaterial and argumentative. 

Yeah, I know there is another side to the above vignette; but can any reasonable person deny that we are suffering litigation frenzy?  Using the Goldilocks formula, do we have too much litigation, too little or is it just right?   Any doubt on the outcome of a public referendum on this question?
No profession understands or endures the pain of wrongful litigation more than we physicians do.  I’ve been in the medical malpractice arena in the past, and I’m sure I’ll be invited back again someday for another engagement.  The assumption often is that an adverse medical outcome means a physician is culpable.  Thus far, I have been dropped from every case as every allegation ever made against me was baseless.  This very week, I (and many others) were dismissed from a frivolous lawsuit that my malpractice carrier estimated cost $11,750 to defend me.  You might think based on this amount that I went to trial, but I had only one meeting with my lawyer and the matter never even reached the discovery phase.  Imagine the annual total cost of unnecessary litigation in this country.  Any ideas out there for a better use of these gazillions of dollars?
Being dragged into the medical malpractice universe is a grueling, costly and unfair process that exacts a huge toll on innocent physicians. It demoralizes us.  It affects our doctor-patient relationships as we know that even long term patients who like and trust us can be persuaded to sue us when we have done nothing wrong.   Ever hear of defensive medicine?  Do you think that when we recommend a CAT scan and other tests that it is only for medical reasons?  I wish it were the case, but it isn’t. 

We have discussions in our medical practice on strengthening communications with patients.  We do this for the right reasons, although we are aware that failure to notify a patient of a test result could create legal exposure for us if this leads to an unfortunate outcome.  I understand and accept this.   However, does the patient have a responsibility here also?   Assume a gastroenterologist like me removes a polyp from a patient.  The doctor meets with the patient and the family afterwards and requests that the patient return in 2 weeks to review the pathology.  The recommendation is also given in writing.  Despite this, the patient doesn’t schedule the appointment or simply misses it.   The doctor, therefore, didn’t have the opportunity to advise that another colonoscopy would be needed in 3 years.  If the patient develops colon cancer 10 years later, is this our fault or his?

Lawyers, stop hyperventilating for a moment.   Yes, I know that physicians should have procedures in place to plug these leaks.  We do.   My question is not if we would be legally vulnerable.  In today’s world, we would be.  I’m asking from a moral perspective, would the development of colon cancer in this hypothetical example be the patient’s fault? 

Blaming others for our own misfortunes is not seeking justice.  Bad stuff happens.  Acts of God occur.  Perhaps, we should we start suing the Almighty for damages from floods, hurricanes and other natural disasters?


17 comments:

Anonymous said...

Perhaps the issue is not just the amount of litigation, but rather the quality of the litigation (or rather the lack thereof).
The court system stinks. Lawyers charge $200/hour to do nothing. Justice has nothing to do with it. Why do I need to pay a stuffed shirt (who doesn't give a hang) $200/hour merely to ask for justice? Just change the subject slightly, and imagine that a person was required to pay $200 to vote, and see if that would pass the SCOTUS smell test. Evidently I have a "right" to vote, but no "right" to justice.
America is a lawless country -- there is no justice for the poor or for the middle class (hmm, I guess they don't teach that in public school.) Class action lawsuits enrich lawyers, only. Medical malpractice enriches lawyers -- it is just a money game -- it has nearly nothing to do with compensating injured patients. We all pay insurance premiums which are actually lawyer taxes.
If a con man organization rips me off 40K, and it will cost 25K to sue, with no guarantee of prevailing, or of collecting anything even if I prevail -- tell me how justice has been served.
While we are talking about "quality" of the litigative process: why in the h*ck are 12 high school dropouts (advised by well-compensated hired guns) deciding if the neurosurgeon did his job right? Is the job performance of the CEO of Hewlett Packard determined in the same way? USA has become a stupid joke.
Truth is, state medical boards should shut down their currently worthless activities, and become instead MD/RN peer-review-with-teeth panels. Malpractice premiums could all be cut by 50%, and the money could then go to injured patients on a no-fault basis, without the need for any litigation (imagine the National Patient Injury Compensation Fund.) We would all be a lot better off, except for the lawyers.

Barbara said...

Doctors don't often enough turn in other doctors who are dangerous or committing fraud or perpetrating other crimes. When a bad one does something egregious, or a group of them do, it starts a kind of "feeding frenzy" among the lay public. I personally know of several cases where wrong was done and only one doc on the staff wanted to turn in the wrong-doer but was voted down by the others. He was given a warning by them, and they no longer sent him cases, but he was never sanctioned. Oh, the stories I could tell from my OR days.

Michael Kirsch, M.D. said...

Appreciate comments. Certainly, I agree with 'anonymous' that we have a perverted system that does not ferret out the guilty, punishes the innocent and enriches the attorneys, who operate under obvious conflicts of interest.

Barbara, your point is valid, but the current dysfunctional and unfair system is a high barrier to the self-policing that the profession does not adequately exert.

Anonymous said...

Barbara, we don't turn in other MDs, because 1) there is no guarantee that anything will happen; 2) we don't necessarily have all the facts regarding what that MD did; 3) we will probably hurt ourselves as much as the MD we want to turn in. (Ask me how I know -- I have been there.)

There is no good system by which an MD can tattle on another. (At least I don't know about it.) I have quit trying.

Anonymous said...

It always disturbs me a little to see people with such profound misunderstandings of how our legal system work. It is true that anyone can sue anyone. Who would want it any other way? Who would want to screen out cases before the facts can be brought to light? Yeah, you can sue for improper salting of the sidewalk -- but you won't win 1 in 100 times. You can get sued for failure to follow up on a patient who doesn't come in for a necessary follow up -- but it will be a tough case to 10 out of 100, and even those verdicts will be reduced for comparative fault. Truth is, there are huge disincentives against bringing meritless lawsuits in our system, most pertinent being the contingent fee system. A lawyer who will lose 100K in out of pocket costs plus two years of work tends to be pretty conservative about what cases he or she takes. Personally, I turn down 40-45 callers for every person I meet with in person. Then I screen out an additional 50% based on expert review. My clients recover a verdict or settlement over 90% of the time.

I'm curious about the "obvious conflict of interest" you think I have. I take cases for people who otherwise would not get representation. I have no guarantee of payment but my own skill and judgment. I don't get paid unless I get results that benefit my client. I'd like to see a doctor give the same guarantee.

Every study that has ever been done has concluded that there is far more malpractice than there are malpractice suits. The objective literature says that juries are far more likely to let a negligent doctor off than to punish a non-negligent doctor.

I am also interested by the comment that doctors don't have mechanisms for self-policing. Every hospital has a peer review system. Every state has a board of medicine. Every one of these types of organizations has rules of confidentiality to protect the docs involved. Given all the opportunity for self-policing, if doctors have created a culture of non-accountability then shame on them.

Anonymous said...

Anon 3:
(I am an MD who wrote Anon 1&2)
“It always disturbs me a little to see people with such profound misunderstandings of how our legal system work.” Um, I have 2 close relatives with JDs. I have been both a plaintiff and a defendant in civil litigation. (Skidding on black ice made me a defendant.) I would have been a plaintiff a few other times, if litigation would have done any good. I will point out that Dr. Kirsch has been a defendant in medical malpractice cases, something that I haven’t been (yet – I am sure my day is coming.) We aren’t ignorant of how the legal system works.
“I don't get paid unless I get results that benefit my client. I'd like to see a doctor give the same guarantee.” So, your client gets a 500 K settlement from an insurance company, and you take 30% of the award. 500 K x 0.3 = $150,000 for you. That’s what I would get from performing a few thousand inpatient surgical consults, or a few hundred hernia repairs (before malpractice premium, overhead, office rent, med school loan payment, etc.)
I would be happy to get paid $100,000 when the results of my operation benefit my patient. Last I checked, a wrongful death award ran at around a few million, and a life saved was about $300 to $1000 for me -- complete possibly with a 90 day free global period -- if the patient even had insurance or chose to pay his/her bill.
“I am also interested by the comment that doctors don't have mechanisms for self-policing. Every hospital has a peer review system.” Peer review is a pretty much a joke – I have quietly sent wrongful death for peer review twice, and nothing at all happened to either doctor.
Effective peer review would require:
a) anonymous review of de-identified cases from across the country;
b) only the best and brightest should be allowed to be peer reviewers (Alpha Omega Alpha review system);
c) the system should be able to inflict stiff monetary penalties and send repeat offenders back for a year of residency – then you would start seeing the bad apples wise up or get out.
I know I am pipe dreaming. I think USA is going down the tubes in every respect, and expect it will only get worse.

Michael Kirsch, M.D. said...

Appreciate thoughtful comments. With regard to the concept, " It is true that anyone can sue anyone. Who would want it any other way?", I would want it another way. The present system has no barrier to sue, except the plaintiff lawyers' judgment over the economic viability of the case. This is not a sufficent impediment against frivolous litigation. People and companies sue for many reasons, and money is only one of them. Companies with in house legal departments can sue individuals who will soon be outspent, even if they have a decent legal argument. I don't buy the tired argument that "we can't tell if the issue is frivolous until we get into the process with discovery, etc.". We all know of cases where a thinking human knew at the outset that a case was silly and should never have been filed. No system is perfect. Loser pay, as England has, is an excellent barrier, but might deprive some litigants of lesser means from filing. Of course, if they have a decent case, then their counsel might advise them to proceed. What if attorneys bore some penalty for lost cases? While any reform has vulnerabilities, many reforms would be better than what we have now, in my view.

David Shapiro said...

In most states, the legal doctrine of "comparative negligence" allows a jury to allocate some of the responsibility to the patient and the award is reduced by that amount. In your example, if the patient never showed up for follow-up, and the physician never contacted the patient, perhaps a jury would split the responsibility 50/50 (I would). I have seen this happen with greater frequency over time, including for diseases due to behavioral choices such as smoking.

Matt said...

"but can any reasonable person deny that we are suffering litigation frenzy?"

Depends on the type of cases you're talking about. Businesses suing businesses? Sure, that's the vast majority of cases.

But you're usually talking about personal injury claims, and those are declining or holding steady.

99% of the people (not businesses) who hire a lawyer don't WANT to do so. They do it because they have no other choice.

Matt said...

"We aren’t ignorant of how the legal system works."

That's like saying because I've been to the doctor a lot I know how medicine works.

Matt said...

" I would want it another way. The present system has no barrier to sue, except the plaintiff lawyers' judgment over the economic viability of the case. This is not a sufficent impediment against frivolous litigation."

What other way would you have it? How exactly would you do it differently such that you would know the merits of a case before it was filed? Mind reading? Can you bend spoons too?

"Companies with in house legal departments"

Companies with in house legal departments rarely use that department to file suit. They hire outside counsel because those lawyer are transactional for the most part.

" many reforms would be better than what we have now, in my view."

Except all you can come up with is damage caps and loser pays. And you cite England, while knowing little about how that system works in practice. But if we are going to emulate England, should we also emulate its medical care and how it treats and pays its physicians? Your usual complaint is related to malpractice suits, but in England they're not as necessary because the crippling cost of past and future care isn't present. So if you're advocating for single payer, making it harder on the injured patient to file suit then might make slightly more sense.

Michael Kirsch, M.D. said...

Matt, nice to have you back on the blog. With regard to your comment: "99% of the people (not businesses) who hire a lawyer don't WANT to do so", I suspect that 99% of folks might feel differently. (Just being light here.) I disagree. I don't feel people sue as they have no alternative. They do so to gain possession of someone else's money or property, not necessarily because they deserve it, but because they and their lawyers think they can get at least some of it.

Matt said...

" I don't feel people sue as they have no alternative. They do so to gain possession of someone else's money or property, not necessarily because they deserve it, but because they and their lawyers think they can get at least some of it."

That's great you feel that, but I live it. There are litigious people out there who like using it as a weapon, no doubt. But that doesn't really apply in the malpractice arena in the first place, and those people are a tiny percentage.

An attorney, in most cases, is a sunk cost. Most average people (and I'm not talking about massive corporations battling each other) come into my office because they have exhausted every other means of getting what they think is owed to them.

Now, they may be wrong about what's owed to them ultimately, but they have a genuine, good faith belief. Imagine you buy a new piece of equipment for your business, paying $15,000 for it. And it doesn't work. Well, I suspect you, like most people, are going to call the seller and do your very best to avoid coming in to see me to sue for your money back or for them to fix it. That's the majority of ordinary people (who I represent) who come to see me.

In the personal injury context, most people come see me because some insurance adjuster hassles them over a pretty small amount. Maybe it's the value of their vehicle after a car wreck. Maybe the adjuster is telling them they're malingering and the insurer won't pay. Usually they're just really rude and won't talk to them. But again, these people don't want to go through the litigation process. It's no fun for them and delays them resolving it.

Your opinion of a system which handles millions of disputes nationwide, based on one or two experiences you have had, is pretty uniformed. And frankly, it reeks of typical doctor arrogance toward the general public.

Michael Kirsch, M.D. said...

Thanks, Matt. We agree that lawyers perform an important societal function. I've hired lawyers myself. But, I dispute your contention that there is not systemic excessive litigation and fear of litigation in this country. This may not be germane to your legal practice. This is not a med mal issue either. Ask any business, if our legal system protects them or stifles them and I believe that my point will be supported.

Matt said...

", I dispute your contention that there is not systemic excessive litigation and fear of litigation in this country."

Oh, I'm not disputing there is a lot of litigation (excessive is a somewhat meaningless word until you say what the amount there should be is). But it is in commercial litigation, not personal injury.

The fear is generated on the personal injury side, though, because of insurer marketing.

I don't have to ask any business, because I know. They hire me, and I own other businesses. Where do they go when someone doesn't pay their bill? How about when they need to enforce a contract? They go to our legal system. Now, if you want to argue that regulations and laws are suppressing business growth, I won't disagree. But then many of those are generated by business lobbying groups trying to protect some interest or another.

The world is more complex than catchphrases.

Paula Rose said...

Great post. I have been dealing with a fishy doctor for a few years now, and there were several things you talked about here that make me think he should have been charged with malpractice by now. Thanks for sharing.

Sabrina Craig said...

There are actually some incidents that doctors, physicians, surgeons and the like, are liable for some unfortunate incidents encountered by their patients. But like what you said, some patients would miss or won’t comply with the professional’s recommendations, which can absolve the doctor of the consequences of the patient's decision. But, there are a lot of legal matters that could come barging in. which will show that the unfortunate event may still appear to be the doctor’s mistake. But then if we are to talk about it from a moral content, then there is no doubt that it is the patient himself who is liable. Anyway, I’m really glad that you shared this topic with us, Michael. All the best!


Sabrina Craig @ Medical Attorney NY

Add this