Unfortunately there is no way to hold medical services accountable other than lawsuits. Medicare has a fraud unit but it's not easy to find and file. I once was sent home from a top-rated hospital X-ray unit with a fractured arm. The hospital didn't tell me my arm was fractured. They left a message for my doctor who didn't call me till the next day. I eventually got an apology from the hospital after I persisted and wrote several strong letters.
It's easier to report and get corrective action for a car repair shop. A mechanic who recommended unnecessary parts or made exaggerated claims would get the attention of the Attorney General. A doctor who promotes unnnessary tests and procedures will never face consequences till s/he kills somebody.
It's easier to report and get corrective action for a car repair shop. A mechanic who recommended unnecessary parts or made exaggerated claims would get the attention of the Attorney General. A doctor who promotes unnnessary tests and procedures will never face consequences till s/he kills somebody.
Malpractice lawsuits in an of themselves represent an absurd mechanism for
evaluating any such claims. In these suits--as well as most others--the "adversary system" will only rarely produce fair and just results.
Indeed, some type of first party insurance compensation system as was proposed for auto liability insurance claims (i.e., no-fault mechanism) in the early 1970s remains a valid and effective (and much less costly) means.
Of course, such a system would cut out the 40-60% take of lawyers and the legal system. Hence, the trial bar political power blocks all efforts towards effective change.
evaluating any such claims. In these suits--as well as most others--the "adversary system" will only rarely produce fair and just results.
Indeed, some type of first party insurance compensation system as was proposed for auto liability insurance claims (i.e., no-fault mechanism) in the early 1970s remains a valid and effective (and much less costly) means.
Of course, such a system would cut out the 40-60% take of lawyers and the legal system. Hence, the trial bar political power blocks all efforts towards effective change.
1
"No one knew medical malpractice was such a complex issue". No, trump has not waded into this morass, yet but this would likely be his carry on remark. I want to add to the complexity by suggesting that much of the expense of diagnostic testing would not be removed by tort reform and is not a result of defensive medicine. This expense would stay the same because young physicians are not schooled in the art of history taking and the physical exam rather they reach for their order sheet/or drop down computer list and subject the patient to imaging and lab tests that are unnecessary if they simply took the time to listen to and examine the patient.
This lack of training in the art of medicine, akin to not knowing how to block and tackle in football, is also multifactorial an is reflective of a fundamental change in the Profession, not the practice, of medicine. This change in the Profession has been fostered by the electronic medical record, the drive to produce more revenue per visit and a fundamental shift in how Physicians are viewed by themselves,patients and administrators/payors encapsulated by the common use of the term "provider" under which rubric Physicians are now placed.
I believe this diminution of the Profession of medicine is largely unrecognized, even to most Physicians caught up in the day to day pressure of patient care. Yet in the long run this will only worsen and make attempts at improving the value of health care harder, if not impossible.
This lack of training in the art of medicine, akin to not knowing how to block and tackle in football, is also multifactorial an is reflective of a fundamental change in the Profession, not the practice, of medicine. This change in the Profession has been fostered by the electronic medical record, the drive to produce more revenue per visit and a fundamental shift in how Physicians are viewed by themselves,patients and administrators/payors encapsulated by the common use of the term "provider" under which rubric Physicians are now placed.
I believe this diminution of the Profession of medicine is largely unrecognized, even to most Physicians caught up in the day to day pressure of patient care. Yet in the long run this will only worsen and make attempts at improving the value of health care harder, if not impossible.
5
My sister and I are physicians. When my mother was ill, I noticed the residents had trouble writing orders for medications and did not seem to be familiar with her care. Since she worked in a hospital, I asked her if it was just me being difficult. She replied that they were trained differently then we were. They had less on call and less critical supervision. Although at times I was almost terrorized when I was trained, the need for responsibility and knowledge was drilled into me. And also the need to admit when I was not knowledgeable about care and to ask for help. Nowadays, I look for an older physician for my own care being secure they were trained the way I was.
4
The present malpractice system is essentially a lottery which leaves many injured patients uncompensated and a few "winners" , a large part of whose award goes to their attorneys. On the other side, it makes little sense to base a quality control and improvement system for doctors and hospitals by punishing them by a hit-or-miss system where the degree of damage can be vastly out of proportion to the level of negligence.
Incremental minimization of patient risk, which we demand will approach, but never will reach zero, requires exponential increases in effort and hence increased costs. Arbitrarily punishing some providers and rewarding some injured patients and their lawyers is an ineffective, unfair and costly way of moving toward this laudable but ultimately unachievable goal.
Incremental minimization of patient risk, which we demand will approach, but never will reach zero, requires exponential increases in effort and hence increased costs. Arbitrarily punishing some providers and rewarding some injured patients and their lawyers is an ineffective, unfair and costly way of moving toward this laudable but ultimately unachievable goal.
1
What I know about the practice of law could be engraved on the head of a pin, but one thing seems very wrong to me.
I can see monetary compensation for harm. But if punitive damages are a separate issue and are meant as discipline, why does this sum also go to the plaintiff and their legal team? Sometimes juries go bonkers in their desire for revenge. Would the punitive awards not be better used to train medical staff or for research or whatever?
I can see monetary compensation for harm. But if punitive damages are a separate issue and are meant as discipline, why does this sum also go to the plaintiff and their legal team? Sometimes juries go bonkers in their desire for revenge. Would the punitive awards not be better used to train medical staff or for research or whatever?
3
As a resident one thing you learn quickly is "fear lawsuits." On almost a daily basis I hear attendings say things like "we should do this "just in case" something happens." Many times these tests are not indicated, and if pressed the doctors say "just wait until it's your license and you'll understand." This is more commonly known as defensive medicine, and is a huge cost burden to our medical system.
Despite what many people think the medical industry is not run for patients or by doctors...but rather by MBAs and lawyers for money. It is easy to look at cases where there has been true medical error and and argue that people should be financially compensated. In fact, our medical system is unique in its litigiousness, and more lawsuits certainly has not make our outcomes better than those of any other country. I would argue, rather, that the threat of legal action makes doctors perform lower quality medical care had a fear for themselves rather than concern for their patients
Despite what many people think the medical industry is not run for patients or by doctors...but rather by MBAs and lawyers for money. It is easy to look at cases where there has been true medical error and and argue that people should be financially compensated. In fact, our medical system is unique in its litigiousness, and more lawsuits certainly has not make our outcomes better than those of any other country. I would argue, rather, that the threat of legal action makes doctors perform lower quality medical care had a fear for themselves rather than concern for their patients
7
I'm a physician who has practiced under two regimes, the US one with tort law where a doctor is liable for negligence and the one in New Zealand where there is no such law. Here a pathologist misread 16,000 slides relating to cervical cancer. Forty women were misdiagnosed; some died, some had needless surgery. They could not sue. The Dr. was "allowed" to retire. US practice actually holds doctors to a standard. Guess where I go for my medical care?
1
Why do doctors get sued for so much? Because patients lose tens of thousands of their own dollars fixing doctors' mistakes. Medicare For All solves the patient's problem and the doctor's at the same time.
3
Premature SUBMIT, sorry:
4. Much more open, honest, and respectful communication among all involved, doctors, patients, and families. This is necessary for both empathy and reasonable expectations.
4. Much more open, honest, and respectful communication among all involved, doctors, patients, and families. This is necessary for both empathy and reasonable expectations.
1
Patient safety is the responsibility of nursing. Anticipate a problem; evaluate for potential problems; protect against a problem; double check orders, lab results and reports; notice what is missing or late; evaluate how the patient is responding to meds and procedures; question something that looks out of place; explain to the patient and family; determine how likely the patient and family will be able to follow the requirements at home; understand how the patient is coping emotionally with a temporary/permanent change in health; follow up; fix systemic problems. In other words, a second layer of expert care.
But hospitals try to save money by skimping on nursing-- research by Linda Aiken and others shows that college educated nurses and a patient ratio of three-four to one ensures better care and ability to to detect and respond to more difficult and complex situations. But working nurses to distraction with 6-8 patients, 12 hour shifts and not enough permanent nurses to build a dependable experienced team(as opposed to agency and part timers) is exactly the excellent conditions for mistakes to happen. A nurse leaves the hospital when he or she sees that, because they are over worked and understaffed, he or she is going to make a mistake in a work situation that is out of control.
Dear hospitals: Make patient safety indicators better by also making it possible for nurses to do their work expertly and still have time to take a lunch break and use the restroom.
But hospitals try to save money by skimping on nursing-- research by Linda Aiken and others shows that college educated nurses and a patient ratio of three-four to one ensures better care and ability to to detect and respond to more difficult and complex situations. But working nurses to distraction with 6-8 patients, 12 hour shifts and not enough permanent nurses to build a dependable experienced team(as opposed to agency and part timers) is exactly the excellent conditions for mistakes to happen. A nurse leaves the hospital when he or she sees that, because they are over worked and understaffed, he or she is going to make a mistake in a work situation that is out of control.
Dear hospitals: Make patient safety indicators better by also making it possible for nurses to do their work expertly and still have time to take a lunch break and use the restroom.
5
(continued from below). Thus, in our current system, damage caps can prevent worthy cases from being brought in the first place, even when the malpractice is obvious and egregious, e.g. operating on the wrong side of the brain or replacing the wrong knee. It would be far better to have a system where neutral arbiters (panels comprised of medical professionals, attorneys and patient advocates) determine the facts of the cases and forward their findings to a judge who could issue a verdict or send the case to court.
1
"It’s also undeniable that defending against malpractice suits gets costly. Other research shows that providers and hospitals spent $81,000 to $107,000 (in 2008 dollars) to defend cases that went to verdict, on average. Even defending claims that were dropped, withdrawn or dismissed cost $15,000 per claim."
The vast, vast majority of medical malpractice suits never go to court because they are settled, often on the courthouse steps or in the initial phases of the trial. One side or the other decides it will be more certainly lucrative (the plaintiffs) or cheaper (the defendants) to settle rather than risk getting nothing (the plaintiff) or losing big if the verdict is against them. Malpractice insurance is just one of the costs of doing business for doctors and hospitals and the cost of it are at least partially passed on to the patients and their insurance companies. To put the costs of defending malpractice suits into perspective, a few days in an ICU can cost the patient and insurance company $100,000 dollars and an ER visit can cost many thousands of dollars. There is no good evidence that damage caps reduce malpractice premiums (as doctors believe) but they probably do reduce the number of suits brought since trial lawyers, who work on contingency, take cases in part based on whether they think they can recover their own not inconsiderable costs of bringing suits and make a profit from their share of a settlement or verdict. (will try to continue below).
The vast, vast majority of medical malpractice suits never go to court because they are settled, often on the courthouse steps or in the initial phases of the trial. One side or the other decides it will be more certainly lucrative (the plaintiffs) or cheaper (the defendants) to settle rather than risk getting nothing (the plaintiff) or losing big if the verdict is against them. Malpractice insurance is just one of the costs of doing business for doctors and hospitals and the cost of it are at least partially passed on to the patients and their insurance companies. To put the costs of defending malpractice suits into perspective, a few days in an ICU can cost the patient and insurance company $100,000 dollars and an ER visit can cost many thousands of dollars. There is no good evidence that damage caps reduce malpractice premiums (as doctors believe) but they probably do reduce the number of suits brought since trial lawyers, who work on contingency, take cases in part based on whether they think they can recover their own not inconsiderable costs of bringing suits and make a profit from their share of a settlement or verdict. (will try to continue below).
2
Continued from below (hit SUBMIT in error, sorry)
social safety net. There is a patchwork of programs, most noticeably Social Security Disability and Medicaid, which provide support at meager levels if at all in specific cases. So the only recourse for adequate support in many cases is the tort system.
social safety net. There is a patchwork of programs, most noticeably Social Security Disability and Medicaid, which provide support at meager levels if at all in specific cases. So the only recourse for adequate support in many cases is the tort system.
2
The financial elephant in the room is not just the cost of continuing health care for someone with serious debilitation due to negligent medical treatment. Even more so it is the additional cost of lost wages - perhaps permanently - and whatever custodial care may be needed. Unlike in some other countries we do not have much of a
5
"The same 2006 N.E.J.M. study also found that, in many ways, the malpractice system works reasonably well. MOST claims without errors or injuries didn’t result in payments, and most claims with errors did."
Sounds reasonable.
But does not take human nature into account. MOST Physicians are human, with human emotions and anxieties, in constant fear of, or have personally experienced, that one ridiculous, frivolous case. Many wasted dollars and hours are thus spent practicing protective medicine, no matter what the statistics show.
Sounds reasonable.
But does not take human nature into account. MOST Physicians are human, with human emotions and anxieties, in constant fear of, or have personally experienced, that one ridiculous, frivolous case. Many wasted dollars and hours are thus spent practicing protective medicine, no matter what the statistics show.
6
I had an idiot cardiologist overprescribe a beta blocker to me on release after bypass surgery, even when I told him I thought it was too much. The next day I got up to eat, passed out and colapsed on the floor unable to move in unspeakable pain. I laid on the floor for six hours until a friend came by to check on me.
We called the cardiologist, who diagnosed my spine injury over the phone as a sprain and said I could not come back to the hospital. It took four paramedics to lift me back into bed, where I remained for two weeks. ( no return because, I think, it would impact their ratings). Six months later after unspeakable pain an MRI revealed a 45% compression fracture of a lumbar vertebrae.
I called half a dozen lawyers, none were interested, it seems the doctors have better lobbyists than the attorneys in California, any suit I could bring was not worth their effort. My back will hurt every day for the rest of my life. The doc, I doubt he would remember me.
We called the cardiologist, who diagnosed my spine injury over the phone as a sprain and said I could not come back to the hospital. It took four paramedics to lift me back into bed, where I remained for two weeks. ( no return because, I think, it would impact their ratings). Six months later after unspeakable pain an MRI revealed a 45% compression fracture of a lumbar vertebrae.
I called half a dozen lawyers, none were interested, it seems the doctors have better lobbyists than the attorneys in California, any suit I could bring was not worth their effort. My back will hurt every day for the rest of my life. The doc, I doubt he would remember me.
6
whole story sounds very fishy....
2
Sorry to hear about your pain. Compression fractures are due to chronic bone loss/osteoporosis of the spine vertebrae, not due to injury. The lawyers know that you can't prove causation. You should at least write to the hospital though - it can reprimand the physician, conduct root-cause analysis, etc. You have some recourse, I am sure.
2
pray tell why...
Americans have a constitutional right to sue for financial damages inflicted by anyone, including medical institutions. Taking away that right through the process of tort reform at the State level is not a solution, even though many States have attempted to do so.
The myth that people are frivolously suing doctors for alleged malpractice is not now, and never has been, true. The claim that those people are winning those cases is also a myth, as getting an award from a malpractice case is about as rare as winning the lottery.
The myth that people are frivolously suing doctors for alleged malpractice is not now, and never has been, true. The claim that those people are winning those cases is also a myth, as getting an award from a malpractice case is about as rare as winning the lottery.
7
This is a hot topic. The medical system is broken, I think we can all agree on that. The patients want immediate care with perfect outcomes at little to no cost. That's a tall order. There is no wait that is acceptable when you or your loved one is in pain as well.
Doctors are angry and burned out due to electronic health records, the need to have high patient satisfaction scores, and the general feeling that patients are not actively involved in their health and well-being.
Finally, we all look at cases from a retrospective point of view, which is a nice vantage point to have. How many patients had pain or weakness or whatever and every thing was fine. No one has that data. When we know the outcome and work backwards, it's very easy to judge, and the lawyers know that well. Having been an ER physician for over 20 years, I can comfortably say that there are many, many times that I did not know what was wrong with the patient when I was actively caring for them and I use my training and experience to guide me. When a patient is dying in front of me, and I have very little to go on, I have to make an educated guess. Is it malpractice if I am wrong?
Doctors are angry and burned out due to electronic health records, the need to have high patient satisfaction scores, and the general feeling that patients are not actively involved in their health and well-being.
Finally, we all look at cases from a retrospective point of view, which is a nice vantage point to have. How many patients had pain or weakness or whatever and every thing was fine. No one has that data. When we know the outcome and work backwards, it's very easy to judge, and the lawyers know that well. Having been an ER physician for over 20 years, I can comfortably say that there are many, many times that I did not know what was wrong with the patient when I was actively caring for them and I use my training and experience to guide me. When a patient is dying in front of me, and I have very little to go on, I have to make an educated guess. Is it malpractice if I am wrong?
7
When you graduate from medical school and acquire your license to practice medicine it is assumed that you are competent to practice medicine just as it is assumed that lawyers that pass the bar exam are competent to practice law. While you may not have known what exactly was wrong with your patients you are to use your knowledge and training to employ the concept of differential diagnosis based on the clinical and medical presentations. Defendant doctors like to argue that they acted "reasonable", however, "reasonable" is not the standard for judging whether a doctor committed malpractice. Rather, it is the good and accepted standards that has been established by your colleagues in the medical fraternity that determines whether or not you committed malpractice by adhering to or failing to adhere to the standards existent in the community in which you practice. Don't accept the duty to render care if your incompetent and don't know the good and accepted standards of care. Doctors as well as lawyers are obligated to continue educating themselves in their respective fields. That means when you graduate and finish your residency you're still a student. So, it's time doctors stop acting "reasonable" and start adhering to the good and accepted standards. As long as you adhere to those standards you have nothing to worry about.
1
10 years ago a major hospital LOST my right pelvic lymph nodes and botched the pathology of the rest. But what was even worse was the extent to which the lab and the hospital went to cover it up and deny any wrongdoing.
Because -- fortunately -- I hadn't suffered any damage that would tug at jury's heart strings, there was no malpractice case.
Given the circumstances, it seemed unlikely that this was a one time error. I just happened to catch it by looking closely at the report beyond the bottom line of positive vs negative result. I blame not just the lab, but the doctors who shrug off too many results as *lab errors* instead of insisting that they get it right.
Doctors have a responsibility not only to care for their patients themselves, but to make sure that the medical personnel and services their patients use are also doing their jobs well. And they need to complain when they are not.
Get copies of all your tests, surgical reports, and read them carefully.c Too often your doctor doesn't have time. Ask questions about anything that seems odd, and keep a copy.
Because -- fortunately -- I hadn't suffered any damage that would tug at jury's heart strings, there was no malpractice case.
Given the circumstances, it seemed unlikely that this was a one time error. I just happened to catch it by looking closely at the report beyond the bottom line of positive vs negative result. I blame not just the lab, but the doctors who shrug off too many results as *lab errors* instead of insisting that they get it right.
Doctors have a responsibility not only to care for their patients themselves, but to make sure that the medical personnel and services their patients use are also doing their jobs well. And they need to complain when they are not.
Get copies of all your tests, surgical reports, and read them carefully.c Too often your doctor doesn't have time. Ask questions about anything that seems odd, and keep a copy.
4
These observations are important and hopefully will get further study. The author fails to note that if the theory is correct, not only will malpractice claims go down, but fewer people will get hurt in the first place, which should be our ultimate goal. A critical first step is to have hospitals and doctors track and report their errors, just as employers have to track and report safety problems under OSHA. Public access to this information alone will be a powerful incentive to change.
The article ignores the very fact it quoted " 37 percent of these cases involved no errors,".
2
It should be pretty obvious that without medical errors there would be far fewer claims of malpractice.
While the VA is maligned constantly, they do make a significant effort in patient safety issues, which shows. I can imagine that many other hospitals are less focused, poorly motivated, with staff poorly trained.
The argument that we should cap the awards for malpractice is weak: removing the penalties for a crime/poor performance usually emboldens those who prize money over quality care.
While the VA is maligned constantly, they do make a significant effort in patient safety issues, which shows. I can imagine that many other hospitals are less focused, poorly motivated, with staff poorly trained.
The argument that we should cap the awards for malpractice is weak: removing the penalties for a crime/poor performance usually emboldens those who prize money over quality care.
4
Medical Malpractice is big business and hugely profitable for the shrewd lawyer who knows how to play the game and it has little to do with bringing justice to a patient or family and everything to do with ensuring a profitable settlement (preferable) or verdict out of which (after expenses and fees), the patient suing rarely sees more than 40%, the rest going to the law firm.
Allowing a laymen jury to decide cases with the advice of highly paid "expert" physician witnesses is ludicrous.
The merits of a medical malpractice case should not be decided by a lawyer or patient, but rather an independent panel of other physicians within the same specialty and in another locality and if there is merit, then a judgement can be decided upon by a judge, possibly without even involving a lawyer.
This is kind of the way it already operates in the Veteran's Administration and from what I can gather work well.
In short, if a complaint of malpractice is filed with the VA by a patient or family, then the case is reviewed by other impartial physicians at another VA facility who do not know the providers involved and only have the facts of the case and the events as they occurred.
The delivery of medical care is too complicated to be generalized or expected to be understood by a lawyer or lay person on a regular jury, there is a reason why Medical School is four years, followed by an additional 3-12 years in training...
Allowing a laymen jury to decide cases with the advice of highly paid "expert" physician witnesses is ludicrous.
The merits of a medical malpractice case should not be decided by a lawyer or patient, but rather an independent panel of other physicians within the same specialty and in another locality and if there is merit, then a judgement can be decided upon by a judge, possibly without even involving a lawyer.
This is kind of the way it already operates in the Veteran's Administration and from what I can gather work well.
In short, if a complaint of malpractice is filed with the VA by a patient or family, then the case is reviewed by other impartial physicians at another VA facility who do not know the providers involved and only have the facts of the case and the events as they occurred.
The delivery of medical care is too complicated to be generalized or expected to be understood by a lawyer or lay person on a regular jury, there is a reason why Medical School is four years, followed by an additional 3-12 years in training...
5
Obviously you have never suffered from a medical malpractice.
3
Ah. Let the foxes assess the damage to the henhouse. Good idea.
6
No-Fault "Malpractice"
In Canada, they use a system of no-fault injury compensation. Patients who are injured get compensation and care, and a separate process looks for a pattern of mistakes or malfeasance. Mistakes are examined with a view to the entire system, and this also makes it easier to get reports of errors. When there is a pattern of mistakes - including for an individual physician - it is addressed.
This system benefits everyone except for the lawyers...which is why we don't have it here.
In Canada, they use a system of no-fault injury compensation. Patients who are injured get compensation and care, and a separate process looks for a pattern of mistakes or malfeasance. Mistakes are examined with a view to the entire system, and this also makes it easier to get reports of errors. When there is a pattern of mistakes - including for an individual physician - it is addressed.
This system benefits everyone except for the lawyers...which is why we don't have it here.
5
Medical injuries are a serious national problem. The nation was shocked when, in 1999, the Institute of Medicine wrote: “Health care in the United States is not as safe as it should be--and can be. At least 44,000 people, and perhaps as many as 98,000 people, die in hospitals each year as a result of medical errors that could have been prevented.” An updated report on medical error deaths, done in 2016, determined that medical error was the cause of over 250,000 deaths in 2013, making it the third leading cause of death in the United States.
Yet, medical malpractice insurance premiums written by insurance companies fell from $11.9 billion in 2006 to $9.3 billion in 2015. Adjusted for inflation the 2015 premium per doctor was the lowest since records started to be kept in 1975.
Medical malpractice insurance is not in crisis, it is a bargain! The 2015 premiums of $9.3 billion averaged $29 per person in America. On average Americans spent $202 on soda pop, $652 on alcohol and a whopping $9,938 per person on health care. Medical malpractice insurance represents a mere 0.3 percent of health care costs. If we had no system to recompense for the huge number of medical injuries in America and someone offered to take care of it for 0.3 percent of health care costs, the nation would surely jump at the opportunity.
Congress would be making a huge mistake to act to undermine a system that does so much for America for such a reasonable price.
Yet, medical malpractice insurance premiums written by insurance companies fell from $11.9 billion in 2006 to $9.3 billion in 2015. Adjusted for inflation the 2015 premium per doctor was the lowest since records started to be kept in 1975.
Medical malpractice insurance is not in crisis, it is a bargain! The 2015 premiums of $9.3 billion averaged $29 per person in America. On average Americans spent $202 on soda pop, $652 on alcohol and a whopping $9,938 per person on health care. Medical malpractice insurance represents a mere 0.3 percent of health care costs. If we had no system to recompense for the huge number of medical injuries in America and someone offered to take care of it for 0.3 percent of health care costs, the nation would surely jump at the opportunity.
Congress would be making a huge mistake to act to undermine a system that does so much for America for such a reasonable price.
14
The practice of medicine is both art and science. Perhaps what's is too often ignored in the malpractice debate are patient expectations. We want 1. The best care in the world 2. We want perfection 3. We want in now 4. We want it locally 5. We want someone else to pay for it 6. And when it's done we want our lives to go on on as if nothing had ever happened. And when one or more of our expectations aren't met we think something must have gone wrong! And we wonder where the problem lies?
2
Do you apply this analysis to the Walmart truck driver 9(has training, license, etc.) when he blows the light and t-bones you? So you just drag your broken body out of the vehicle, if you are not dead, and take your lumps?
4
The substance of Dr. Carroll's editorial is quite divergent from the title. To improve how hospitals can lessen medical errors, you have to focus on the medicine rather than the law. I respectfully disagree with the assertion that if you improve the hospital only, you lower the risk of litigation. From my observations over the past 11 yr in practice, I've learned that the decision to litigate in medicine is a very complex process. Family dynamics, socioeconomic status, and cultural background are probably equally as important reasons why people sue their doctor...as equal as the doctor's ability to communicate. Another factor is the macroeconomic situation of the country or region. The NEJM article quoted by Dr. Carroll reported an astounding 37% of lawsuits did not involve any negligence on the doctor's part. This suggests that the legal system could do its part by reducing the cost of medicine...and the cost of business for that matter by reducing the frivolous lawsuits.
6
There is nothing "astounding" in the finding you and the NEJM article describe. 37% of CLAIMS presented to insurers were found unaccompanied by error. That's not the same as saying that 37% of malpractice claims are frivolous, or - crucially - that 37% of the time the malpractice system is compensating people incorrectly.
Let's assume that a retrospective review of insurer-filed claims is a good proxy for "legally correct" or "legally incorrect" determinations of medical negligence. At worst, this finding tells us that nearly 2/3 of filed claims involve medical errors! That's a track record that would be enviable for almost any type of litigation. And 72% of the time, the same study found, when there was no error, there was no payment to the alleged victim. This is hardly evidence of a system run amok.
There's a lot more than can be said in 1500 words about the medical malpractice system. In many ways, it isn't very good in view of the high stakes to all concerned. But the idea that some substantial portion of medical liability is 1) driven by frivolous - rather than legally inadequate - claims, and 2) is substantially contributing to overall health care expenditures is false.
Let's assume that a retrospective review of insurer-filed claims is a good proxy for "legally correct" or "legally incorrect" determinations of medical negligence. At worst, this finding tells us that nearly 2/3 of filed claims involve medical errors! That's a track record that would be enviable for almost any type of litigation. And 72% of the time, the same study found, when there was no error, there was no payment to the alleged victim. This is hardly evidence of a system run amok.
There's a lot more than can be said in 1500 words about the medical malpractice system. In many ways, it isn't very good in view of the high stakes to all concerned. But the idea that some substantial portion of medical liability is 1) driven by frivolous - rather than legally inadequate - claims, and 2) is substantially contributing to overall health care expenditures is false.
4
Some 272 Americans die every day from physician errors. Here are a few cases where I have familiarity with the facts.
When a 19-year-old car crash victim is not recovering well from surgery, the surgeon ignores concerns about internal bleeding expressed by the nurses. Patient dies a needless death.
In doing a hysterectomy, the surgeon sews together the patient's large intestine, then leaves on vacation. The patient gets worse, but other MDs refuse to try fixing the problem. Patient almost dies before someone fixes the error.
A surgeon removing a gall bladder fails to notice that he punctured the patient's bowel, causing a raging infection, bowel obstruction, further surgeries and other problems.
Before sewing up a cut on a child's lip, the doctor injects him with 50 times the normal dosage of local anesthetic. The boy dies.
A cardiac surgeon cannot be bothered to come to the hospital over the weekend when called about a patient suffering postop complications. Patient dies needlessly, leaving 3 young children motherless.
A doctor negligently misreads a patient's lab report & Pap test. A year later the early & easily-treated cervical cancer the Pap test revealed has spread to other organs. After a year of surgeries and confinement, the patient now defecates into a colostomy bag.
A botched sinus surgery results in permanent brain injury and loss of vision.
The insurance & medical lobbies would deny these patients & their families any recovery or justice.
When a 19-year-old car crash victim is not recovering well from surgery, the surgeon ignores concerns about internal bleeding expressed by the nurses. Patient dies a needless death.
In doing a hysterectomy, the surgeon sews together the patient's large intestine, then leaves on vacation. The patient gets worse, but other MDs refuse to try fixing the problem. Patient almost dies before someone fixes the error.
A surgeon removing a gall bladder fails to notice that he punctured the patient's bowel, causing a raging infection, bowel obstruction, further surgeries and other problems.
Before sewing up a cut on a child's lip, the doctor injects him with 50 times the normal dosage of local anesthetic. The boy dies.
A cardiac surgeon cannot be bothered to come to the hospital over the weekend when called about a patient suffering postop complications. Patient dies needlessly, leaving 3 young children motherless.
A doctor negligently misreads a patient's lab report & Pap test. A year later the early & easily-treated cervical cancer the Pap test revealed has spread to other organs. After a year of surgeries and confinement, the patient now defecates into a colostomy bag.
A botched sinus surgery results in permanent brain injury and loss of vision.
The insurance & medical lobbies would deny these patients & their families any recovery or justice.
16
Other studies I have seen found another important correlation: The better the communication was between the doctor and the patient, the less likely a negative outcome would lead to a lawsuit. Doctors need to find the time to listen to, and talk to, their patients. I personally believe that such communication improves safety for several reasons One is that in some cases both the patient and the doctor can catch a mistake before it becomes serious. Another is that the patient can get an idea when a doctor is putting a real effort into that patient's care. These practices need to be adopted before people who are injured by a doctor's negligence have their remedies cut.
8
I have found that the better the doctor-patient relationship, the less likely the doctor is to get sued. I have seen some doctors who, when they made a mistake that hurt the patient, apologized to the patient, told the truth and resolved to make things right. Such doctors rarely get sued.
The doctors who refuse to acknowledge doing anything wrong and who do not seem to care about the patient often end up in litigation.
The doctors who refuse to acknowledge doing anything wrong and who do not seem to care about the patient often end up in litigation.
7
In the same vein, medical staff who loop the family in with just a little courtesy and respect gain the trust of the family. Those who do their rounds at 5 am, or who object to the family participating in grand rounds, or who make decisions without involving the family who might be sitting with the patient for 16 hours a day raise the suspicions of the family that the practitioner is arrogant, careless, uninformed. Talk to the families. Their medical knowledge may well be sub-par, but they will do anything for their loved ones, and if that includes filing complaints and lawsuits, that might be the only option you give them.
3
Maria, you're totally right, but I'm a doctor, and although I try to communicate with my patients and their families in person, hospital days are busy. Even when you don't see me, I'm thinking about you -- reviewing results, calling specialists, talking to the social worker about the services you will need. I'm also human -- I don't know your family's here unless someone tells me.
So please, please, please, when you visit a loved one in the hospital, ask your nurse to let your doctor know you're there. I can't promise I'll make it over to talk to you, but I can promise that I'll try.
If, like many family members, you can't come during the hours I'm likely to see you, please
- make sure that I know you exist and want an update (ask the nurse to pass on the message)
- check that we have the correct phone number (give it to your nurse or write it on the white board in the room)
- include the best times to reach you, and how late it's okay to call
So please, please, please, when you visit a loved one in the hospital, ask your nurse to let your doctor know you're there. I can't promise I'll make it over to talk to you, but I can promise that I'll try.
If, like many family members, you can't come during the hours I'm likely to see you, please
- make sure that I know you exist and want an update (ask the nurse to pass on the message)
- check that we have the correct phone number (give it to your nurse or write it on the white board in the room)
- include the best times to reach you, and how late it's okay to call
1
Certainly better care leads to less lawsuits, but that does not mean that legal reform should not parallel efforts to improve quality of care. In Florida, before non-economic damages were capped by a constitutional amendment, premium rates were skyrocketing. Doctors in some specialties were quoted premiums of $250,000/yr for coverage of up to $250,000 per incident. A well trained and well meaning doctor I know lost a lawsuit for over $40,000,000 and had to leave the US to avoid losing everything. Another doctor I know committed suicide over a lawsuit. More recently, the caps were reversed by the Florida supreme court, and I fear the consequences. The public should know that unlike in other businesses, in a med-mal case the damages are not limited to the corporation -- the doctor is sued personally. In these days of reduced reimbursements by insurers along with ever-increasing overhead and cost of living, a single frivolous lawsuit can destroy a dedicated and skilled physician. In Florida, doctors are required to take courses reducing medical errors in order to maintain their license. But doctors need legal reform as well.
3
The caps that you are so enamored of only help the insurance companies.
I have seen cases where the doctor's negligence caused horrific damages. How about an eye/ear/nose/throat surgeon causing a traumatic brain injury that renders a person wholly cognitively-impaired for life, paralyzed and unable to work, needing 24/7 care at the cost of $200,000 a year. That patient gets nowhere near adequate compensation when state law caps damages at $250,000.
Most jury verdicts are quite reasonable and based on the damages as shown by the evidence. Believe me, when there is a huge jury award, the plaintiff absolutely deserves it and needs the funds for a lifetime of care. Not one of those plaintiffs I have seen would choose the money if they could have their life, body and health back.
This effort to cap damages in malpractice cases is led by insurance companies who want to maximize profits and take away the constitutional right of the people to a trial by jury and to the verdict the jury brings back. The insurers would prefer to entirely scrap the legal system and let people injured by medical malpractice go on the public dole. That s not justice.
I have seen cases where the doctor's negligence caused horrific damages. How about an eye/ear/nose/throat surgeon causing a traumatic brain injury that renders a person wholly cognitively-impaired for life, paralyzed and unable to work, needing 24/7 care at the cost of $200,000 a year. That patient gets nowhere near adequate compensation when state law caps damages at $250,000.
Most jury verdicts are quite reasonable and based on the damages as shown by the evidence. Believe me, when there is a huge jury award, the plaintiff absolutely deserves it and needs the funds for a lifetime of care. Not one of those plaintiffs I have seen would choose the money if they could have their life, body and health back.
This effort to cap damages in malpractice cases is led by insurance companies who want to maximize profits and take away the constitutional right of the people to a trial by jury and to the verdict the jury brings back. The insurers would prefer to entirely scrap the legal system and let people injured by medical malpractice go on the public dole. That s not justice.
12
Caps are for "non-economic" damages, not for "economic" damages i.e. cost of continuing care.
If you are a physician practicing in a 'high risk' specialty like neurosurgery or ob-gyn, your chances of getting sued over your career for malpractice is 99%. The chance that you will be sued in any specific year is about 20%.
For all physicians, the chances of being sued for malpractice is 75% over their career.
Whether these cases result in verdicts (many don't) or not is not necessarily the point. Endless and costly lawsuits breed a bunker mentality. Those who claim there is no such thing as defensive medicine are choosing to ignore the facts.
Patients who allege injury as a result of physician negligence deserve a forum to address their claim and compensation if the claim is just. However the current tort system is poorly adapted to the problem at hand and winds up enriching plaintiff lawyers and a few litigants.
As others have noted, the total dollar value of malpractice settlements is not a huge percentage of our healthcare costs. The same amount of money distributed more equitably among deserving plaintiffs combined with appropriate performance improvement analysis (rather than jury verdicts) would go a long way towards improving health care and physician performance while reducing the overall cost of defensive medicine.
For all physicians, the chances of being sued for malpractice is 75% over their career.
Whether these cases result in verdicts (many don't) or not is not necessarily the point. Endless and costly lawsuits breed a bunker mentality. Those who claim there is no such thing as defensive medicine are choosing to ignore the facts.
Patients who allege injury as a result of physician negligence deserve a forum to address their claim and compensation if the claim is just. However the current tort system is poorly adapted to the problem at hand and winds up enriching plaintiff lawyers and a few litigants.
As others have noted, the total dollar value of malpractice settlements is not a huge percentage of our healthcare costs. The same amount of money distributed more equitably among deserving plaintiffs combined with appropriate performance improvement analysis (rather than jury verdicts) would go a long way towards improving health care and physician performance while reducing the overall cost of defensive medicine.
16
There are lots of medical errors, most of which go unnoticed or do not lead to injury. Lots of bad outcomes, most of which are not the result of malpractice. Lots of litigation, mainly related to outcome. Not a lot of correlation among any of these things. All in all, this mess is not well served by the tort system.
What to do:
1. Compensation for injury or loss through a no-fault system, public or regulated private, maybe paid for by providers who are now paying med-mal insurance. Get the insurance industry out of this. Like in much of Europe.
2. Errors and malpractice monitored and sanctioned within provider professions through bodies like ACOs and review boards, backed up by the criminal justice system. Staff state medical boards with competent people and give them teeth. Yes, make serious, repeated, wanton malpractice a crime for both providers and organizations.
3. Lawyers serve as counsel but not tort litigators; all participants have a right to counsel, provided and supported as needed.
Of course, none of these things could happen. So we will continue to hassle competent providers, sustain malpractice, deprive victims of compensation, and enrich parasites.
What to do:
1. Compensation for injury or loss through a no-fault system, public or regulated private, maybe paid for by providers who are now paying med-mal insurance. Get the insurance industry out of this. Like in much of Europe.
2. Errors and malpractice monitored and sanctioned within provider professions through bodies like ACOs and review boards, backed up by the criminal justice system. Staff state medical boards with competent people and give them teeth. Yes, make serious, repeated, wanton malpractice a crime for both providers and organizations.
3. Lawyers serve as counsel but not tort litigators; all participants have a right to counsel, provided and supported as needed.
Of course, none of these things could happen. So we will continue to hassle competent providers, sustain malpractice, deprive victims of compensation, and enrich parasites.
1
If higher scores on Patient Safety Indicators, presumably an indicator of more attentive doctors, causes fewer malpractice claims, then one would expect Canada, with low malpractice rates, to be in the top 1% of all hospitals. Similarly, orthopedists must be worse doctors than oncologists as their malpractice rate is so high.
Patient Safety Indicators are easy to measure, but measures little of any value. This is analogous to the simple man who lost his keys in the dark but when asked why he's looking under the street lamp, he replies "the light is better over here."
Patient Safety Indicators are easy to measure, but measures little of any value. This is analogous to the simple man who lost his keys in the dark but when asked why he's looking under the street lamp, he replies "the light is better over here."
3
Patient safety can pay.
Test result communications failure is an increasing source of malpractice payments, associated with $6 billion in malpractice payments annually, demonstrated by malpractice claims data.
Will carrots work better than sticks to improve test result notifications to physicians and patients? We've found that communications auditing speeds up test result communications. Healthcare providers and facilities can earn malpractice premium reductions when they participate in our communications monitoring program.
Making test result communications speedier and more reliable enable patients to obtain effective therapy faster, and avoid unnecessary harm that results when actionable test results are missed.
Brian Gale, MD
Managing Member
SaferMD, LLC
Test result communications failure is an increasing source of malpractice payments, associated with $6 billion in malpractice payments annually, demonstrated by malpractice claims data.
Will carrots work better than sticks to improve test result notifications to physicians and patients? We've found that communications auditing speeds up test result communications. Healthcare providers and facilities can earn malpractice premium reductions when they participate in our communications monitoring program.
Making test result communications speedier and more reliable enable patients to obtain effective therapy faster, and avoid unnecessary harm that results when actionable test results are missed.
Brian Gale, MD
Managing Member
SaferMD, LLC
1
provide a social safety net with medical care and money to live on for people too injured to work, and most malpractice claims go away
4
There is much MORE malpractice than that small fraction that results in a lawsuit. Patients usually don't know when malpractice has been committed. They just assume that a "complication" was a risk of the procedure, and no doctor will tell the patient otherwise.
Five years ago I worked at what US News and World Report labeled the least safe academic medical center in America. I left because it was too dangerous for me to entrust my patients' care to other doctors there. The rallying cry there was "malpractice reform," when it really should have been "be more careful." I taught the residents the simple secret to avoiding malpractice suits: Don't screw up.
Five years ago I worked at what US News and World Report labeled the least safe academic medical center in America. I left because it was too dangerous for me to entrust my patients' care to other doctors there. The rallying cry there was "malpractice reform," when it really should have been "be more careful." I taught the residents the simple secret to avoiding malpractice suits: Don't screw up.
13
Patient safety is expensive to implement but, of course, is essential. Even then, best intentions can go wrong. About 20 y ago, the big cry was that we were not giving patients enough pain meds....pain levels were too high. Pain became the 4th vital sign. A 10 point pain scale was developed. Lots more opiates were given....and lots more folks became opiate addicted and some died in bed from opiates. The efforts to use far fewer opiates are frustrated in some ways. Patient safety with opiates is a big need that is not yet broadly being addressed.
6
Died in bed from opiates?
Reality: In medical malpractice cases, the deck is severely stacked against those injured by the errors or negligence of a doctor or health care provider. Lawsuits are no fun & people rarely file frivolously.
Doctors usually bury their mistakes: no autopsy is performed, the family never learns of the medical error, patient is dead. No case sees the light.
MDs & insurers could make fair & reasonable settlements pre-lawsuit. Instead they refuse, forcing the injured to sue if they are to have any hope of getting just compensation for their injuries --- which can range from a brain injury resulting in the worst nightmare drooling semi-vegetative lifetime care to organ damage from infection to multiple surgeries to correct errors. Insurers will choose to spend $200,000 fighting a case they could have settled for $25,000.
The laws, as shaped by insurance company money, tilt far in favor of MDs. Long before trial, the injured has to prove damages, injury, causation and that the MD acted below the standard of care. Proving the standard, which is what MDs say it is, requires experts who charge $600-1200/hr. Insurance companies can afford to buy more experts than wage earners can. Also, MDs are unwilling to testify against another doctor, might hurt referrals.
Insurers drag cases out hoping the injured will die, give up, run out of money. This is not justice. Medicine is a human business. Humans make mistakes. That is why we have insurance: to pay for mistakes.
Doctors usually bury their mistakes: no autopsy is performed, the family never learns of the medical error, patient is dead. No case sees the light.
MDs & insurers could make fair & reasonable settlements pre-lawsuit. Instead they refuse, forcing the injured to sue if they are to have any hope of getting just compensation for their injuries --- which can range from a brain injury resulting in the worst nightmare drooling semi-vegetative lifetime care to organ damage from infection to multiple surgeries to correct errors. Insurers will choose to spend $200,000 fighting a case they could have settled for $25,000.
The laws, as shaped by insurance company money, tilt far in favor of MDs. Long before trial, the injured has to prove damages, injury, causation and that the MD acted below the standard of care. Proving the standard, which is what MDs say it is, requires experts who charge $600-1200/hr. Insurance companies can afford to buy more experts than wage earners can. Also, MDs are unwilling to testify against another doctor, might hurt referrals.
Insurers drag cases out hoping the injured will die, give up, run out of money. This is not justice. Medicine is a human business. Humans make mistakes. That is why we have insurance: to pay for mistakes.
14
I agree that the frequency of baseless malpractice suits is exaggerated. But I would go further than the author does in prescribing a remedy to the malpractice problem. He is correct in saying that the problem lies with the medical profession rather than the legal system. But it isn't all about P.S.I. rates. Many malpractice suits are initiated because doctors do not communicate clearly and honestly with patients when something goes wrong or when an outcome is not as expected. Instead, they too often dodge any conversation or worse, hide behind some hospital "risk management" bureaucrat, thus sowing the seeds of anger, mistrust, resentment & desire for revenge. If doctors only realized that what most patients want is honesty from their doctors, especially when things go wrong, they might find that patients are far more forgiving and understanding than doctors give them credit for. It's the dodging and weaving that leads many people to sue. Treat patients with honesty and compassion and you might be surprised at the drop in lawsuits.
But a cap on malpractice awards is unjustified. If a jury finds there has been malpractice, the compensation should be commensurate with the damage done. Medical malpractice can lead to horrific, irreversible injury, disability or death. Money cannot solve every problem, but if someone needs lifelong care due to a doctor's error, it's only right that they be justly compensated.
But a cap on malpractice awards is unjustified. If a jury finds there has been malpractice, the compensation should be commensurate with the damage done. Medical malpractice can lead to horrific, irreversible injury, disability or death. Money cannot solve every problem, but if someone needs lifelong care due to a doctor's error, it's only right that they be justly compensated.
8
I'm a trial lawyer, although I don't do medical malpractice. I suspect that a large number of the malpractice cases in which there were no errors are dropped voluntarily--they were brought where there was significant harm, but an error was not clear, and are dropped or settled for a small amount when it becomes clear that no major mistake can be proved. Malpractice cases are brought typically on a contingent-fee basis, so that the attorneys do not get paid if the plaintiff does not obtain compensation. Most malpractice defendants (and insurers) fight hard and try to get almost all cases thrown out; some states also put conditions in the way of bringing cases. Attorneys who represent plaintiffs are very selective in choosing which cases to accept--they have to be. So the idea that plaintiffs and their lawyers reap large rewards from meritless cases is fiction.
10
Attorneys must put up hundreds of thousands to contest a malpractice case. This is true of any civil suit against a wealthy doctor or a big corporation. Read "A Civil Action" by Jonathan Haar or see the movie*. The lawyers do not want to recoup this money from the funds needed to treat the victim or from the part for pain and suffering. They take these funds from the punitive damages. Cap the punitive damages, & attorneys cannot afford to take the risk. The main result of tort reform is that injured people cannot seek redress for their ills. This is madness.
*"A Civil Action" concerns the town of Woburn, MA whose drinking water was being polluted by 3 factories & whose children were dying of leukemia, & it concerns a young lawyer who tried to get funds from one of the companies so that the people could afford treatment for their children.
The company hired an old semi-retired lawyer who happened to be the teacher of the judge in the case. Robert Duvall plays this old lawyer in the film.
At one point, depositions are being taken from the sick kids and the parents of those who have died. As you may imagine, it is heart rendering. As the people are leaving the room, Robert Duvall's character turns to one of his associates and says in the most chilling voice, "This testimony must never see the light of day." And it didn't.
The company managed to draw out the case so long that the young lawyer ran out of funds and was forced to settle for a pittance for the towns people,
*"A Civil Action" concerns the town of Woburn, MA whose drinking water was being polluted by 3 factories & whose children were dying of leukemia, & it concerns a young lawyer who tried to get funds from one of the companies so that the people could afford treatment for their children.
The company hired an old semi-retired lawyer who happened to be the teacher of the judge in the case. Robert Duvall plays this old lawyer in the film.
At one point, depositions are being taken from the sick kids and the parents of those who have died. As you may imagine, it is heart rendering. As the people are leaving the room, Robert Duvall's character turns to one of his associates and says in the most chilling voice, "This testimony must never see the light of day." And it didn't.
The company managed to draw out the case so long that the young lawyer ran out of funds and was forced to settle for a pittance for the towns people,
9
The whole medical system is the problem. If anything, doctors are the bright lights in the gloom. How many hundred of thousands of people are needlessly killed and injured by the medical system in the US each year? If those were terrorists at work the nation would be totally mobilized.
The problem is the administration, the nurses and all the many others who are involved in patient care. The first line of defense is always secrecy, don't let anyone know what's happening. Every nurses station has a shredding machine so no documents escape. The HIPAA laws are not there for patients privacy but to make sure no incriminating information gets out.
But the argument is that we don't need regulation because this malpractice marketplace exists. Of course, it's mostly a mockery, but capping the recovery amounts just heightens the ridiculouslness this already astoundingly ineffective system.
The basic problem of medical malpractice is that, even if it worked well, it's not proactive. It can't kick in until after the damage is done. All it can do, at best, for the system, is to provide a monetary incentive to fix things. But, especially with the weak system in place, it's likely to make a lot more sense to just pay an occasional small fee than to change anything.
The problem is the administration, the nurses and all the many others who are involved in patient care. The first line of defense is always secrecy, don't let anyone know what's happening. Every nurses station has a shredding machine so no documents escape. The HIPAA laws are not there for patients privacy but to make sure no incriminating information gets out.
But the argument is that we don't need regulation because this malpractice marketplace exists. Of course, it's mostly a mockery, but capping the recovery amounts just heightens the ridiculouslness this already astoundingly ineffective system.
The basic problem of medical malpractice is that, even if it worked well, it's not proactive. It can't kick in until after the damage is done. All it can do, at best, for the system, is to provide a monetary incentive to fix things. But, especially with the weak system in place, it's likely to make a lot more sense to just pay an occasional small fee than to change anything.
4
1. The total of all malpractice insurance premiums amounts to 0.56% of health care costs.
2. The CBO has examined the idea of defensive medicine. They found no difference in practice between states with limits on tort settlements and those with no limits.
3. There is no correlation between the price of malpractice premiums and the amount given out in malpractice settlements.
4. The price of premiums does (anti) correlate with interests rates.
5. If you take all the money given out in malpractice settlements over $250,000 in NJ ( a state without caps) in a year and give it to physicians, each doctor would get $15.
The first four come from the book The Malpractice Myth by Peter Baker (U of Chicago Press) while I believe the last is from Uwe Reinhardt (sounds like him).
Thus the doctors are wrong on almost every count. Malpractice premiums are not a significant factor in health costs. Physicians order unnecessary tests and treatments even when there are draconian limits on lawsuits as in Texas. Caps would save us nothing. The price they pay for insurance has nothing to do with the large settlements given out, and the total amount of money involved in these settlements is trivial. What they believe is a fantasy.
2. The CBO has examined the idea of defensive medicine. They found no difference in practice between states with limits on tort settlements and those with no limits.
3. There is no correlation between the price of malpractice premiums and the amount given out in malpractice settlements.
4. The price of premiums does (anti) correlate with interests rates.
5. If you take all the money given out in malpractice settlements over $250,000 in NJ ( a state without caps) in a year and give it to physicians, each doctor would get $15.
The first four come from the book The Malpractice Myth by Peter Baker (U of Chicago Press) while I believe the last is from Uwe Reinhardt (sounds like him).
Thus the doctors are wrong on almost every count. Malpractice premiums are not a significant factor in health costs. Physicians order unnecessary tests and treatments even when there are draconian limits on lawsuits as in Texas. Caps would save us nothing. The price they pay for insurance has nothing to do with the large settlements given out, and the total amount of money involved in these settlements is trivial. What they believe is a fantasy.
16
I couldn't agree more, the HBO documentary 'Hot Coffee" was an eye opener, many times doctors order more tests because they make money on them in some form of fee splitting. We need to move from a fee for service system .
So, the New England Journal of Medicine (i.e., something put out by the medical establishment aligned with the defendants in medical malpractice suits) comes up with a number - 37% - which supposedly represents the number of frivolous medical malpractice lawsuits, and the author simply swallows that as unbiased?
Really? Anybody actually familiar with medical malpractice litigation knows it's a long hard road, with insurance company defense lawyers making sure it is very, very costly to proceed. They simply do not pay nuisance fees to go away. Experts, whose hourly fees can easily exceed $500, are always necessary to prove that care fell below the standard. Since most patients can't afford the costs of such litigation, trial attorneys must take these cases on contingency - they don't earn their fee unless they are successful.
So, to bring a meritless claim, the plaintiff's attorney would have to commit to hundreds of hours of work, and tens of thousands of dollars in costs preparing a case, for what? To go to trial and lose?
This is absurd. No, the GOP is doing the medical profession's bidding. And imagine if you are 12 years old, and a doctor's error causes you to become a quadriplegic. You are limited to this arbitrary and obviously unfair limit of 250k for pain and suffering, for decades in a wheel chair?
The best way to keep patients safe it so make sure the medical profession knows that errors are costly.
Really? Anybody actually familiar with medical malpractice litigation knows it's a long hard road, with insurance company defense lawyers making sure it is very, very costly to proceed. They simply do not pay nuisance fees to go away. Experts, whose hourly fees can easily exceed $500, are always necessary to prove that care fell below the standard. Since most patients can't afford the costs of such litigation, trial attorneys must take these cases on contingency - they don't earn their fee unless they are successful.
So, to bring a meritless claim, the plaintiff's attorney would have to commit to hundreds of hours of work, and tens of thousands of dollars in costs preparing a case, for what? To go to trial and lose?
This is absurd. No, the GOP is doing the medical profession's bidding. And imagine if you are 12 years old, and a doctor's error causes you to become a quadriplegic. You are limited to this arbitrary and obviously unfair limit of 250k for pain and suffering, for decades in a wheel chair?
The best way to keep patients safe it so make sure the medical profession knows that errors are costly.
23
There are a few reasons that the natural checks on the tort system don't always work out in real life in the manner that you describe.
1. The practice of medicine often is done in gray areas without clear guidelines. When you pay someone enough money to do something (expert testimony), it will be easy to argue that, hindsight being 20/20, one shade of gray would have been preferred over the other.
2. Devastating complications occur despite a lack of negligence on the part of the provider.
3. Liability insurance companies can decide that it is cheaper to settle a case than to defend.
These conditions are sufficient to create unjust lawsuits and settlements.
1. The practice of medicine often is done in gray areas without clear guidelines. When you pay someone enough money to do something (expert testimony), it will be easy to argue that, hindsight being 20/20, one shade of gray would have been preferred over the other.
2. Devastating complications occur despite a lack of negligence on the part of the provider.
3. Liability insurance companies can decide that it is cheaper to settle a case than to defend.
These conditions are sufficient to create unjust lawsuits and settlements.
5
That's right. There are tremendous gray areas in the law and also cause and effect when somebody gets injured by a doctor.
Not only can this lead to lawsuits in the fringes of the gray area, but it also leads to defense verdicts in cases that are undisputedly have merit - a plaintiff might lose a case that would have been won in front of 99 out of 100 juries, except that in this case, she happened to get some dumb/biased jurors. It happens.
It's an imperfect system all the way around.
But if that's the case, how does limiting pain and suffering to 250k solve any problems?
Certainly there are intelligent reforms that can be made, but a limit on damages isn't one of them.
Not only can this lead to lawsuits in the fringes of the gray area, but it also leads to defense verdicts in cases that are undisputedly have merit - a plaintiff might lose a case that would have been won in front of 99 out of 100 juries, except that in this case, she happened to get some dumb/biased jurors. It happens.
It's an imperfect system all the way around.
But if that's the case, how does limiting pain and suffering to 250k solve any problems?
Certainly there are intelligent reforms that can be made, but a limit on damages isn't one of them.
6
It escapes me how artificially limiting recoverires to people who have demonstrated a meritorious case-- either by judgment or persuading a wrongdoer to settle-- will reduce so called frivilous cases. The cap by definition only applies to cases with at least some merit and places cost of malptactice on the victim.
It also is a source of wonderment how those conservatives who speak in terms of the benefits of states rights are perfectly willing to abandon them to preempt state law when it suits the purposes of their insurance company supporters.
It also is a source of wonderment how those conservatives who speak in terms of the benefits of states rights are perfectly willing to abandon them to preempt state law when it suits the purposes of their insurance company supporters.
4
What percent of health care expanses are due to unjustifiable malpractice suits. In a letter to Senator Hatch, the CBO computed that an ideal system of tort reform would reduce health care costs by less than 0.5%, 0.2 % due to savings in the courts & insurance and 0.3% due to defensive medicine.
You can easily see this by comparing the costs of health care in states with tort reform (Texas is a good example) with that in states with no such reform (e.g. Mew Mexico). There is little difference.
Defensive medicine is a myth. Even if malpractice suits are drastically reduced as in Texas, the frequency of tests and treatments remains pretty much the same, much of which is medically unnecessary.
You can easily see this by comparing the costs of health care in states with tort reform (Texas is a good example) with that in states with no such reform (e.g. Mew Mexico). There is little difference.
Defensive medicine is a myth. Even if malpractice suits are drastically reduced as in Texas, the frequency of tests and treatments remains pretty much the same, much of which is medically unnecessary.
8
I practice medicine daily and am recognized as a quality provider. Data from insurance companies demonstrate I order fewer procedures and spend less money than my peers. That said, defensive medicine is extraordinarily real. It is not captured in the CBO report to the slightest degree. There are many tests, follow up tests, and better-safe-than-sorry tests because doctors don't want to be the one that misses an unusual cancer in an otherwise healthy young person. All these tests are justifiable and, hence, not captured in the flawed CBO data but how many tests do I need to do on a 35 year old to find that one unusual cancer? As a frontline practitioner, defensive medicine is incredibly real.
4
Tom. you miss the point. I do not doubt that you give all these teats, but if you say they are defensive medicine, that is usually taken to mean that they are medically unjustifiable, that you give them to avoid being sued.
The proof of the pudding is that health care costs and, indeed, the frequency of tests and treatments are no lower in states with tort reform that reduces the number of malpractice suits than in states with no tort reform and more suits. That is what the CBO found.
You tell me why the physicians in this country give so many more medically unnecessary tests than in other countries.
The proof of the pudding is that health care costs and, indeed, the frequency of tests and treatments are no lower in states with tort reform that reduces the number of malpractice suits than in states with no tort reform and more suits. That is what the CBO found.
You tell me why the physicians in this country give so many more medically unnecessary tests than in other countries.
3
I am a physician in practice for 30 years doing inpatient critical care and teaching at a major university medical center. I will state what is obvious to any of my colleagues. The cost of defensive medicine is almost laughably underestimated. It is bred into the genetics of any graduating doctor form the moment they enter medical school much less 10 years later when they finish their training. Put them in any state any environment any country for that matter and they will be ordering multiple tests to check and double check and cover their conclusions. Having a state outlaw all malpractice would do nothing to change this ingrained approach to their profession. People on the outside looking in are making uniformed stabs at wrong conclusions. The US healthcare system has been entirely shaped by the legal and cultural backdrop in which it evolved.
9
There are two emotional drivers also involved in the argument over medical malpractice/tort reform: the supreme arrogance of the professional class ("How dare you doubt me!"), and the ignorant financial envy of the trailer class ("I work for a living! He hit the lottery for nothing!")
1
There is no question that there are acts of malpractice in the medical field, but the question is whether it justifies a system such as the current one. You state "It’s also undeniable that defending against malpractice suits gets costly.Even defending claims that were dropped, withdrawn or dismissed cost $15,000 per claim.". Well , that money adds up, and while physicians end up paying exorbitant premiums, it gets passed along to the patients either directly or through higher medical insurance payments, as well as the practice of defensive medicine.
NO one argues against increasing safety measures. However, best practices and malpractice reform are not mutually exclusive. A multi-pronged approach needs to include malpractice reform.
NO one argues against increasing safety measures. However, best practices and malpractice reform are not mutually exclusive. A multi-pronged approach needs to include malpractice reform.
2
It would be very interesting to see whether improving patient safety indicators across the board led to a decrease in the number of suits. I suspect that the legal profession and patient litigiousness will also evolve and adapt to the change in medical practice.
And Lkf is entirely correct that the practise of defensive medicine in order to avoid lawsuits has become a matter of course and it is this practice that drives the cost of health care in the US. There is no doubt that both hospitals and practitioners benefit financially as well from excessive, unnecessary testing. In the end, lawyers and doctors have evolved to take advantage of the circumstances of a litigious culture. And insurers have contributed to this as well.
This is probably why tort reform has never amounted to much despite years of effort to achieve it. But as health care in the US continues to increase in cost despite the ACA, there is only one way to control those costs and tort reform is it. Asking physicians to shoulder the entire blame for the situation is unfair and will not be effective.
And Lkf is entirely correct that the practise of defensive medicine in order to avoid lawsuits has become a matter of course and it is this practice that drives the cost of health care in the US. There is no doubt that both hospitals and practitioners benefit financially as well from excessive, unnecessary testing. In the end, lawyers and doctors have evolved to take advantage of the circumstances of a litigious culture. And insurers have contributed to this as well.
This is probably why tort reform has never amounted to much despite years of effort to achieve it. But as health care in the US continues to increase in cost despite the ACA, there is only one way to control those costs and tort reform is it. Asking physicians to shoulder the entire blame for the situation is unfair and will not be effective.
3
The question is not about defensive medicine. It is "what would a reasonable person expect should be done?" In the USA, that may be a much longer list of tests than in other parts of the world...I think it is. I think that is our culture both in terms of what we learn in medical training and in what we have brought the public to expect.
It is a mistake to focus on just the dollar value of malpractice claims as the primary driver. A more likely driver is the encouragement that the fear of a malpractice claim gives to the practice of 'defensive' medicine. This encouragement can take the form of extra tests, procedures, consultations or second opinions in cases which may not require them and the cost of all of these extra unnecessary services likely exceeds the actual plaintiff's awards by multiples.
The practice of defensive medicine also gives substantial cover to unscrupulous practitioners who, in our fee for service world, benefit financially by ordering such procedures under color of fear of malpractice claims.
Better medical practices will reduce the number of medmal claims. However the hidden costs of defensive medicine are insidious. Evidence based medicine and increased use of best practices may ameliorate the situation in the short run. However elimination of the bogeymen of lottery-like settlements in an uncertain judicial environment will go a lot further.
The practice of defensive medicine also gives substantial cover to unscrupulous practitioners who, in our fee for service world, benefit financially by ordering such procedures under color of fear of malpractice claims.
Better medical practices will reduce the number of medmal claims. However the hidden costs of defensive medicine are insidious. Evidence based medicine and increased use of best practices may ameliorate the situation in the short run. However elimination of the bogeymen of lottery-like settlements in an uncertain judicial environment will go a lot further.
8
I cannot figure out where in your prescription the injured patient would fit. Tough luck? If the medical profession really wants to deal with their cost and "lottery" problems, it needs to come up with a better answer for the injured patient than just the fantasy that they don't exist.
5
I think the message here should be that lawsuits are a very blunt instrument. The article does not point to the evidence that bedside manner matters, owning mistakes matters. The first line of defense against bad medicine is not a lawsuit but better medicine and better patient doctor (or hospital patient) communications. Restricting malpractice payments may lower the cost of malpractice insurance for some. There is no evidence that it improves patient care. To separate the two is to do the patient population a huge diservice
5
Doctors need a standard of care, just like pilots, bus drivers and everyone else. Doctors claim they are forced to practice "defensive medicine" but the truth is many order expensive tests and recommend expensive (and less safe) drugs to line their own conflicted pockets.
And yes, I'd also like my doctor to be a little defensive with my body and my life. Good thing we have lawyers keeping watch!
From seat belts in cars, to safer medicine, and cleaner hospitals, lawyers and the threat of being held responsible for a violation of standard of care have kept this country evolving every year. Doctors, unlike pilots, and bus drivers, want a free pass. They're already among the richest lobby groups in the country. Now, they are paying off Congress to be excepted from common standards of care that apply to all other professionals.
And yes, I'd also like my doctor to be a little defensive with my body and my life. Good thing we have lawyers keeping watch!
From seat belts in cars, to safer medicine, and cleaner hospitals, lawyers and the threat of being held responsible for a violation of standard of care have kept this country evolving every year. Doctors, unlike pilots, and bus drivers, want a free pass. They're already among the richest lobby groups in the country. Now, they are paying off Congress to be excepted from common standards of care that apply to all other professionals.
8
Shame on New York Times editors for such a one-sided article o this topic. Half of the states have instituted a cap and their healthcare costs have significantly subsided. As a practicing orthopedic spine surgeon for the last 15 yrs, it's clear to me that physicians still practice "defensive medicine", which indirectly adds to the cost of healthcare and skews the data on the reporting of PSIs that this illustrious author refers to. All states need to have the cap. Then we can have further discussions on the merits of a single payer, etc. Let's fix the immediate problem when we know the solution has worked in half of the states.
11
Well, heck yeah, you have to cut a few oranges to make marmalade or prevent a victim from being compensated if it results in a malpractice premium being reduced by 10%.
Who cares if an injured patient can't get a lawyer because the costs of hiring experts and other expenses of trial preparation make it economically unfeasible to bring a case subject to those caps.
Make no mistake, doctors want de facto immunity for their acts of negligence.
A reasonable step would be for, in exchange for those those caps (limits not applicable to any other acts of negligence), the victimized patient to recover all costs of trial preparation if he's successful in court.
Who cares if an injured patient can't get a lawyer because the costs of hiring experts and other expenses of trial preparation make it economically unfeasible to bring a case subject to those caps.
Make no mistake, doctors want de facto immunity for their acts of negligence.
A reasonable step would be for, in exchange for those those caps (limits not applicable to any other acts of negligence), the victimized patient to recover all costs of trial preparation if he's successful in court.
14
Another doctor who wants to repeal the 7th amendment civil jury. You don't want to be held responsible for negligence, I get it. Who would, if provided the opportunity to bribe the Congress for immunity, I'm sure every profession would jump at the chance to be immunized from lawsuit.
You wanting immunity is another reason for you not to have it.
You wanting immunity is another reason for you not to have it.
18
"Half of the states have instituted a cap and their healthcare costs have significantly subsided."
Absolutely false.
http://www.latimes.com/business/hiltzik/la-fi-mh-another-study-shows-why...
Absolutely false.
http://www.latimes.com/business/hiltzik/la-fi-mh-another-study-shows-why...
1
The biggest fun for attorneys must be the malpractice claim where the doctor did everything right and the harpo representing the patient simply sells the sad story, basically saying, ''But aren't you going to give these poor nice people SOMETHING?''
The lawsuit industry collects a thousand dollars each year PER every American citizen. Enough said.
The lawsuit industry collects a thousand dollars each year PER every American citizen. Enough said.
11
Can you cite one single case (by name and location) where your fantasy case is actually a reality?
4
Hogwash.
Attorneys are not stupid; they want winning cases. Bringing a case that will not succeed is pointless and would cost a lawyer money. Further, courts impose fines and sanctions on attorneys who file frivolous cases.
When a medical malpractice client comes into a law office, one of the first things the lawyer does is get the client's medical records. Next, she has a medical expert review the records to answer questions: What happened here? What caused the injury? Was the doctor at fault? Is there a case? If the expert says nothing was done wrong or below the standard of care, then there is no case and it ends there.
If there is a case, then it is a matter of fighting with the well-heeled insurance lawyers getting paid $400-$1,000 an hour to fight like a crazed mongooses to keep the injured from receiving any justice. Plus, you get people like this author and the so-called tort reformers (i.e., insurance industry lobbyists) poisoning potential jurors with untruths about greedy injured people, frivolous suits and the idea that doctors should be immune from responsibility for the harm they do.
It is rare, given the law, which has been written mostly by insurance lobbies, that anyone injured by their medical provider ever prevails.
Pick your physicians very carefully. Because if a doctor's error leaves you paralyzed, in chronic pain or brain-dead, chances are good that you will never see a nickel, this thanks to the powerful insurance/doctor lobbies.
Attorneys are not stupid; they want winning cases. Bringing a case that will not succeed is pointless and would cost a lawyer money. Further, courts impose fines and sanctions on attorneys who file frivolous cases.
When a medical malpractice client comes into a law office, one of the first things the lawyer does is get the client's medical records. Next, she has a medical expert review the records to answer questions: What happened here? What caused the injury? Was the doctor at fault? Is there a case? If the expert says nothing was done wrong or below the standard of care, then there is no case and it ends there.
If there is a case, then it is a matter of fighting with the well-heeled insurance lawyers getting paid $400-$1,000 an hour to fight like a crazed mongooses to keep the injured from receiving any justice. Plus, you get people like this author and the so-called tort reformers (i.e., insurance industry lobbyists) poisoning potential jurors with untruths about greedy injured people, frivolous suits and the idea that doctors should be immune from responsibility for the harm they do.
It is rare, given the law, which has been written mostly by insurance lobbies, that anyone injured by their medical provider ever prevails.
Pick your physicians very carefully. Because if a doctor's error leaves you paralyzed, in chronic pain or brain-dead, chances are good that you will never see a nickel, this thanks to the powerful insurance/doctor lobbies.
3
How did Fmr Senator John Edwards make his zillions? Was it by suing over cerebral palsy cases where negligence is seldom the cause but he was successful in convincing juries? Imagine a crumpled child in a wheelchair and a passionate, persuasive attorney intoning a jury...could you as a juror resist such?
2
I have 13 doctors insult and nearly killed me. For almost 3 years I had a large watermelon sized fibroid become necrotic and black inside of me after I had my son. I begged pleaded doctors to find out why I was unable to walk why u was in pain. They told me it was all in my head, there are 3 different psychiatric wards I could go to around their office, how do I know my husband wants another baby with me, stop going to the E.R. I'm making them look bad. They blatantly had a nurse practitioner erase things out of my medical record in front of me and my mother-in-law. I had a pain management doctor inject my spine with Kenlog, and another injected my spine without his equipment working. I had one inject me over and over again in my spine 3 times fishing before he called the anesthesiologist. The fibroid tore my uterus apart and I bled out for over 3 months. I had a miscarriage, I picked pieces of large parts of my uterus off the floor. I thought I was going to die, I was diagnosed with Lupus and put on chemotherapy. I have on going nightmares and I am in constant pain. I can't afford to have another child or even pay for my long term care. This has all happened in 3 years time! My lawyer is dragging his feet and I am deathly afraid to see anymore doctors or to even have my 3 year old son see a doctor .
7
I served as defense counsel in many medical malpractice cases.
In two cases, there were doctor-defendants I thought should not only be found liable, but needed to be taken out and shot. The negligence was egregious - one also involved attempted fraud - and the results devastating. (One patient died; an infant was born with severe, permanent disabilities.) How can anyone in good conscience cap those damages? In cases of simple negligence, the results can still be horrendous.
It is basically impossible to win a medical malpractice case without an expert witness, i.e., a physician qualified in the field, supporting the plaintiff. One measure that to me seemed effective in reducing frivolous cases was to require that a med mal complaint be supported by an affidavit from an expert validating the plaintiff's claim. Another possible tool would be to allow reimbursement of defendants' costs (including attorneys' fees) by a plaintiff whose case was determined by a court to be baseless.
These measures provide a barrier against a predatory plaintiff without further hurting those who have already suffered harm.
In two cases, there were doctor-defendants I thought should not only be found liable, but needed to be taken out and shot. The negligence was egregious - one also involved attempted fraud - and the results devastating. (One patient died; an infant was born with severe, permanent disabilities.) How can anyone in good conscience cap those damages? In cases of simple negligence, the results can still be horrendous.
It is basically impossible to win a medical malpractice case without an expert witness, i.e., a physician qualified in the field, supporting the plaintiff. One measure that to me seemed effective in reducing frivolous cases was to require that a med mal complaint be supported by an affidavit from an expert validating the plaintiff's claim. Another possible tool would be to allow reimbursement of defendants' costs (including attorneys' fees) by a plaintiff whose case was determined by a court to be baseless.
These measures provide a barrier against a predatory plaintiff without further hurting those who have already suffered harm.
48
Here is my proposal, for what it's worth.
All doctors have to pay in 3% of their revenue to a state compensation fund. Anyone who gets an injury or bad result can file a claim, without needing to hire a lawyer. Each state will appoint a board of experienced physicians to examine the claims, and pay out the money in proportion to the injury or damage.
The money will be paid out on a no-fault basis, but the board of claims will note which doctors are making avoidable mistakes, and give them warnings, followed by suspending or revoking their license to practice medicine. These doctors won't be allowed to move to another state and start practicing there, either.
This would remove lawyers from the process, eliminate frivolous claims, and allow incompetent doctors to be more quickly identified and removed.
All doctors have to pay in 3% of their revenue to a state compensation fund. Anyone who gets an injury or bad result can file a claim, without needing to hire a lawyer. Each state will appoint a board of experienced physicians to examine the claims, and pay out the money in proportion to the injury or damage.
The money will be paid out on a no-fault basis, but the board of claims will note which doctors are making avoidable mistakes, and give them warnings, followed by suspending or revoking their license to practice medicine. These doctors won't be allowed to move to another state and start practicing there, either.
This would remove lawyers from the process, eliminate frivolous claims, and allow incompetent doctors to be more quickly identified and removed.
30
Tried to pass something similar in Georgia. Both the plaintiffs' lawyers and the doctors opposed it.
Made to much sense.
Made to much sense.
2
Jonathan,
How about having experienced tort lawyers sit on the arbitration board instead of physicians? Sound reasonable?
How about having experienced tort lawyers sit on the arbitration board instead of physicians? Sound reasonable?
2
@Jonathan, I generally support your idea. However, I think that every physician has to serve on this board at some time, not just a small set of appointed experts. To be effective, the panel has to represent practicing doctors who are most likely to be able to judge correct practice. Reading what your proposed narrowly, with a small board of physicians, I think that such a board could be too easily captured by the industry (medicine it is regulating. Thus, I suggest a broad-based pool of claim evaluators.
2
The folks who write these articles never analyze from the standpoint of a claims executive. The legal system was not designed to also be a risk management system. Quite frankly plaintiff's lawyers don't give a dam about improving medicine. If they did they would put themselves out of business. The second point most cases lost in court involve no deviation. The reason the matter was tried is the carrier believed the case to be a "winner." All you have to do are watch the commercials and the bill boards. We see attorneys seeking high value claims such as dystocia, brain damage and cancer. All though I do agree "caps" are not the answer. There are many ways to improve the physician's position in a malpractice case. When someone wants to learn look me up. I spent 35 years handling 40,000 malpractice claims. Most of these claims were dismissed.
4
"Quite frankly plaintiff's lawyers don't give a dam about improving medicine. If they did they would put themselves out of business." I am not sure I understand this statement. How would the act or state of mind of giving a damn about improving medicine put the attorneys representing someone with a errors and omissions claims out of business, by finding other employment? "There are may ways to improve a physician's position in a malpractice case[,]" and the E&O defense industry has put substantial resources into perfecting techniques and tactics of legal defense. I doubt that many of these ways involve improving the practice of medicine as suggested by this article. Indeed, if measures such as those suggested here were followed, the position of the doctors and other care providers and the institutions they practice vs. E&O claims would improve: They could show due diligence and adherence to a higher standard of care.
1
More hogwash propaganda from the insurance industry.
When because of a lawsuit, a 70-year-old surgeon who has no business operating anymore because he too often is puncturing the wrong organ, the public is safer from bad medicine. When a lawsuit reveals an unsafe hospital practice, or gets rid of an alcoholic or drug-addicted doctor, people are safer. Some estimates are that as many as one in 10 doctors are impaired, they have easy access to drugs, too many have addiction problems.
The reason lawyers bring lawsuits is to get their clients compensation for their injuries. In some cases, medical malpractice turns a normal person into a quadriplegic who needs 24/7 care and when a doctor's error or negligence does that to a person, the insurance should pay.
If doctors did a better job of policing themselves, there would be less malpractice and fewer lawsuits. Did you know that most hospitals, when they give a surgeon privileges to operate at the hospital, never review that surgeon's bad outcomes figures, or require review when the surgeon passes 65 or 70 years of age; there are hospitals and medical practices that instead only look at revenues and how much the doctor is making for the company? Yep.
And there are great doctors and good doctors. And there are incompetent doctors, alcoholic doctors, drug-addicted doctors, there are good doctors who just made an error.
If I injure someone by negligent driving, I should pay. When an doctor hurts someone, he shoudl pay.
When because of a lawsuit, a 70-year-old surgeon who has no business operating anymore because he too often is puncturing the wrong organ, the public is safer from bad medicine. When a lawsuit reveals an unsafe hospital practice, or gets rid of an alcoholic or drug-addicted doctor, people are safer. Some estimates are that as many as one in 10 doctors are impaired, they have easy access to drugs, too many have addiction problems.
The reason lawyers bring lawsuits is to get their clients compensation for their injuries. In some cases, medical malpractice turns a normal person into a quadriplegic who needs 24/7 care and when a doctor's error or negligence does that to a person, the insurance should pay.
If doctors did a better job of policing themselves, there would be less malpractice and fewer lawsuits. Did you know that most hospitals, when they give a surgeon privileges to operate at the hospital, never review that surgeon's bad outcomes figures, or require review when the surgeon passes 65 or 70 years of age; there are hospitals and medical practices that instead only look at revenues and how much the doctor is making for the company? Yep.
And there are great doctors and good doctors. And there are incompetent doctors, alcoholic doctors, drug-addicted doctors, there are good doctors who just made an error.
If I injure someone by negligent driving, I should pay. When an doctor hurts someone, he shoudl pay.
4
Pete, its don't give a damn.
There is another reason for malpractice suits--the high cost of medical care. If a doctor makes a mistake, the patient pays for the resulting expense, sometimes to the point of bankruptcy. If our medical insurance system were more effective, people would be able to avoid legal suits. As it stands, if this avenue is limited then patients bear the full financial costs of errors. Putting a cap on awards is unacceptable for those who may end up with a need for millions of dollars in care over a lifetime. Remember that it doesn't take much in our system to get you to that level of expense for a chronic condition or injury with long-term effects.
23
And then there's another reason for malpractice suits - the incalculable cost of a patient death caused by medical error, and the grief, trauma, and economic cost to the patient's family. In our case it was our 47 year old dad and husband and his widow and two nine year old children who were left behind to put shattered lives back together. The opening sentence of this piece reads, "Congressional Republicans have recently revived efforts to overhaul malpractice laws, including capping certain kinds of suits at $250,000" leaving me wondering what "certain kinds" of suits are even meant. In our case we received no damages for pain and suffering, and economic damages in the high six figures as calculated by an economist. We've lived about as comfortably as we would have had he not died as a result of a doctor's negligence 15 years ago.
6
Medical Errors are however not the only Medical Malpractice events that cause damage. Doctor abuse is commonly experienced by mental health patients. It affects patients gravely – usually lifelong. It changes the patient's image of themselves and prevents them from seeking necessary medical care. It can ruin a patient's life. In some cases it leads patients to suicide, as they are often not believed and may be subject to abuse for prolonged periods. What percent of Medical Malpractice cases are the result of intentional abuse rather than unintentional errors?
2
Based on family experience, I wish I could sue the entire mental health profession for malpractice. I have zero confidence in their ability to identify, diagnose or treat mental illness. Dispense pills, surely.
we have had more understanding from the criminal justice system.
we have had more understanding from the criminal justice system.
1
As much as we might like to believe otherwise, doctors are human and make mistakes. We don't accept that and so grievously penalize those who make errors to the detriment of the entire medical system. The fundamental question here is how to separate clearly avoidable errors from those based on judgement. It is never acceptable to operate on the wrong eye or lung. It may be wrong to diagnose a patient who has lung cancer as simply having an allergy but that should not trigger a law suit. Some doctors will inevitably be more skilled than others. Suits will never fix the problem. By applying a more rational basis for permitting suits we can avoid the high cost of our widespread use of defensive medicine which is clearly driven by our tort law.
7
" It may be wrong to diagnose a patient who has lung cancer as simply having an allergy but that should not trigger a law suit. "
May be?!? Under what circumstances would it be okay to tell someone who has lung cancer that it's only an allergy?
And why should the patient bear the entire financial cost of this late diagnosis? It will likely lead to bankruptcy and the hospital making a claim on the patient's house and other property, which can be devastating to the future of patient's dependents.
May be?!? Under what circumstances would it be okay to tell someone who has lung cancer that it's only an allergy?
And why should the patient bear the entire financial cost of this late diagnosis? It will likely lead to bankruptcy and the hospital making a claim on the patient's house and other property, which can be devastating to the future of patient's dependents.
16
It is my experience that doctors pretty much have carte blanche to do whatever with impunity. You almost have to brag about cutting off the wrong leg to be held accountable for doing it.
After 33 years of cardiology practice, as far as the carriage of justice is concerned, it is my belief there are too few malpractice suites rather than too many.
After 33 years of cardiology practice, as far as the carriage of justice is concerned, it is my belief there are too few malpractice suites rather than too many.
47
Maybe in your generally conservative, very Republican, doctor-friendly state. Point your crystal ball North of the Mason-Dixon and let me know what you see when the smoke clears. It will be remarkably different. Many valid cases . . . diluted in courts supersaturated with the alternative.
1
Perhaps you hold your opinion because of Texas' malpractice laws that are some of the most favorable towards doctors in the country. Most other states are not nearly as inclined toward protecting doctors, and many in fact are biased toward being unfavorable towards doctors.
April 17, 2017
The New York Times
To the Editor,
Re “For Malpractice Reform, Focus on Medicine First (Not Law)” (The Upshsot, April 17):
Even if every doctor were perfect and never committed an error there would still be allegations of malpractice. Patients’ often unrealistic expectations of doctors’ capabilities, the unpredictability of medicine, and the too-human fallibility of physicians make it so.
Of course the same applies to attorneys.
Malpractice reform involves law as much as it does medicine. Putting in safeguards that minimize medical error is important of course. But, to achieve the greatest success, it should proceed in parallel with safeguards that minimize legal errors as well.
Edward Volpintesta MD (general practitioner)
The New York Times
To the Editor,
Re “For Malpractice Reform, Focus on Medicine First (Not Law)” (The Upshsot, April 17):
Even if every doctor were perfect and never committed an error there would still be allegations of malpractice. Patients’ often unrealistic expectations of doctors’ capabilities, the unpredictability of medicine, and the too-human fallibility of physicians make it so.
Of course the same applies to attorneys.
Malpractice reform involves law as much as it does medicine. Putting in safeguards that minimize medical error is important of course. But, to achieve the greatest success, it should proceed in parallel with safeguards that minimize legal errors as well.
Edward Volpintesta MD (general practitioner)
11
There is an extremely simple solution for this, and most of the other ills affecting our " healthcare system " :
MEDICARE for ALL-2020. Period.
MEDICARE for ALL-2020. Period.
34
Until the doctors refuse to add any more Medicare patients.
They tend to lose money on these cases and the cash is the slowest in the world coming to the doctor's offices.
We might have to have doctors' med school costs reimbursed to go to Medicaid for all because they'll go where the grass is greener, as would you.
They tend to lose money on these cases and the cash is the slowest in the world coming to the doctor's offices.
We might have to have doctors' med school costs reimbursed to go to Medicaid for all because they'll go where the grass is greener, as would you.
L'O - For Medicare payments being insufficient, you can find results with data at http://healthaffairs.org/blog/2012/10/02/do-medicare-and-medicaid-paymen...
The author, a private practice orthopedic surgeon, looks at orthopedists and family doctors. He finds that an orthopedist who had only Medicare patients would have a take home income of $411,000. I could live on that.
A family doctor who had only Medicare patients would end up with $137,000, a lot less, but you know I could live on that, too (which is more than I ever earned) if I didn't serve Chateau Petrus on weekdays.
The author, a private practice orthopedic surgeon, looks at orthopedists and family doctors. He finds that an orthopedist who had only Medicare patients would have a take home income of $411,000. I could live on that.
A family doctor who had only Medicare patients would end up with $137,000, a lot less, but you know I could live on that, too (which is more than I ever earned) if I didn't serve Chateau Petrus on weekdays.
Len, do you owe $250,000 or more in student loans, as many family docs do upon graduation, as well? Also, don't forget compounding interest...... I'm sure many family docs would be more than happy to work for that amount, if you forgave all their student loans, as well as took care of their malpractice premiums, and ensured their retirement was paid for. The issue in this country is we want to set up a European-style medical system, which is fine, but for it to work, you need to do it all the way. European docs get free schooling all the way through and generally also get pensions for retirement, as well as no malpractice liability payment. This allows them to have a lower salary, since they don't have to financially cover any of the above, as American docs do. You can't have it both ways. If physicians can't make their student loan payments, save for retirement, and cover their malpractice premiums, many will quit and find other work, and ones in training will go into more lucrative fields than family medicine, in order to cover the above.
It is the insurance costs for your everyday doctor who is never sued that is the big problem. This is because of the ridiculously large awards given and for the frivolous lawsuits, on top of jurors who often don't understand the complexity of the issues involved and are swayed by emotion. And lawyers don't even want to take cases that don't involve big bucks. A broken system all around.
10
The attorneys know where the Stupidville, USA places are and move heaven and earth to get their Mercedes money earned running cases through those backwaters.
ALL lawsuits should have to go through a committee to week out the clear goofball suits. The $250K limit sounds right, at least for immediate payments after a suit is settled. The might need to be continuing money for treatments of education, etc.
ALL lawsuits should have to go through a committee to week out the clear goofball suits. The $250K limit sounds right, at least for immediate payments after a suit is settled. The might need to be continuing money for treatments of education, etc.
2
cca - I forget who did the computation (It may have been Uwe Reinhardt), but for a recent year in NJ if you took all the money given out in malpractice settlements over $250,000 and divided it equally among the physicians in NJ, each one would get $15.
1
Yep, I'm sure you'd support that if the doctor burnt your new born son's penis off during a botched circumcision or you were left a quadriplegic through an act of negligence.
2
I agree that causality is likely, but still not necessarily so. Higher malpractice rates can lead to lower safety ratings if the people who are measuring the more qualitative of the Patient Safety Indicators are aware of the malpractice rates and are unconsciously adjusting their final ratings accordingly or if adverse events are merely under-reported unless malpractice complaints arise.
The author states that the malpractice system works "reasonably well" based on the cited 2006 NEJM article because "most" claims without demonstrable injury or error did not result in a payment. "Most" in that article was 84% and 72%, respectively. That still leaves an awful lot of practitioners who have had their reputation, careers and family finances devastated by an unjust lawsuit. Think of what it would be like to be convicted of a crime that you did not commit. These settlements must be reported by practitioners on all future job and credentialing applications and they are carried psychologically for the rest of your life.
Just as we do not trivialize the devastation that medical errors leave on entire families and communities of people and say we are doing "reasonably well" with our current rate of medical errors, we should not apply this same lackluster standard to our tort system.
Just as we do not trivialize the devastation that medical errors leave on entire families and communities of people and say we are doing "reasonably well" with our current rate of medical errors, we should not apply this same lackluster standard to our tort system.
14
"Think of what it would be like to be convicted of a crime that you did not commit"
A civil suit is not a criminal conviction.
"we do not trivialize the devastation that medical errors leave on entire families and communities of people "
Actually we do trivialize devastation of medical errors in the settlements that are given out when the medical error is one that will result in a lifetime of further medical expenses.
If you ever hear of a doctor putting forth extra effort to help someone get disability benefits, it's frequently because a medical error was involved.
A civil suit is not a criminal conviction.
"we do not trivialize the devastation that medical errors leave on entire families and communities of people "
Actually we do trivialize devastation of medical errors in the settlements that are given out when the medical error is one that will result in a lifetime of further medical expenses.
If you ever hear of a doctor putting forth extra effort to help someone get disability benefits, it's frequently because a medical error was involved.
4
I agree that a system in which 84% of groundless claims get thrown out or 84% of truly wronged patients get compensated (or pick your percentage) is not good enough. I just never understood how the blunt instrument of a damages cap is supposed to improve things. Someone who is grievously injured by a doctor performing well below standard (sometimes even intoxicated) and who went through agonizing pain, or might have to spend the rest of their life in pain - $250K?
Watch out - I'm sure there are super-rich sadists in the world who would love to main and torture you if that was the guaranteed price!
Watch out - I'm sure there are super-rich sadists in the world who would love to main and torture you if that was the guaranteed price!
6
The fact of the matter is that 35 of the 50 states have already instituted laws, caps and other measures to reduce med/mal suits and costs. And guess what, healthcare costs have not gone down as a result. This is yet another red herring tossed about by the right to avoid having a real discussion about the benefits of a single payer system that will actually reduce healthcare costs. We have the evidence of what will and won't reduce the costs.
43
Right. Here is a reference:
Page 150 ff of http://www.cbo.gov/ftpdocs/99xx/doc9924/12-18-KeyIssues.pdf, and http://www.cbo.gov/ftpdocs/71xx/doc7174/04-28-MedicalMalpractice.pdf,
Also the book, The Malpractice Myth by Peter Baker (U of Chicago Press) .
Page 150 ff of http://www.cbo.gov/ftpdocs/99xx/doc9924/12-18-KeyIssues.pdf, and http://www.cbo.gov/ftpdocs/71xx/doc7174/04-28-MedicalMalpractice.pdf,
Also the book, The Malpractice Myth by Peter Baker (U of Chicago Press) .
2
There is a very easy solution.
The losers of a malpractice case,be they plaintiff of defendant, have to pay the bills of the opposing party. When lawyers have skin in the game they will vet cases for substance, that will likely be settled fairly and earlier - everyone wins, except the lawyers who bottom feed - and that account for about 75-90% of the cases.
The losers of a malpractice case,be they plaintiff of defendant, have to pay the bills of the opposing party. When lawyers have skin in the game they will vet cases for substance, that will likely be settled fairly and earlier - everyone wins, except the lawyers who bottom feed - and that account for about 75-90% of the cases.
13
It's a nice argument, in theory. In practice, it doesn't make sense.
Medical malpractice lawsuits are extremely expensive. With attorney's fees and costs, the cost of litigating a case through trial can easily exceed 100k. Given the risks inherent in litigation, many cases that are undisputedly meritorious will not be brought because plaintiffs simply would not risk such a staggering judgment against them. Because of this chilling effect, not only would the plaintiff not be compensated for his/her injuries, but the medical profession would only be more careless, knowing that they are less likely to be forced to pay up. This adds up to a lot of injustice.
And lawyers do have skin in the game. Because litigation is so costly, few plaintiffs have the funds to pay a lawyer out of pocket. That means that the lawyer must invest hundreds of hours and thousands of dollars prosecuting a case. Which is why your claim that 75-90% of cases are frivolous is ridiculous. Lawyers don't make money for taking loser cases.
Medical malpractice lawsuits are extremely expensive. With attorney's fees and costs, the cost of litigating a case through trial can easily exceed 100k. Given the risks inherent in litigation, many cases that are undisputedly meritorious will not be brought because plaintiffs simply would not risk such a staggering judgment against them. Because of this chilling effect, not only would the plaintiff not be compensated for his/her injuries, but the medical profession would only be more careless, knowing that they are less likely to be forced to pay up. This adds up to a lot of injustice.
And lawyers do have skin in the game. Because litigation is so costly, few plaintiffs have the funds to pay a lawyer out of pocket. That means that the lawyer must invest hundreds of hours and thousands of dollars prosecuting a case. Which is why your claim that 75-90% of cases are frivolous is ridiculous. Lawyers don't make money for taking loser cases.
5
How about both. No pain and suffering money to lawyers or individuals, go to charity. Reduce mistakes and improve process.
4
Right. Something tells me that if you had to spend the rest of your life in a wheelchair because of a doctor's mistake, you would feel deserving of the pain and suffering money. Why shouldn't you be compensated for somebody ruining your life?
2
What is not included in these analyses are the tests and referrals that are made and drugs and treatments that are prescribed as part of "defensive medicine". As I review my own care, I find that much of what is done is simply protecting against law suits. I am eminently qualified to assess this as having spent several decades of my life as professor of pediatrics
35
So obviously you don't bill the patient for this unnecessary treatment you are performing solely to cover your own interests rather than for the benefit of the patient? Or perhaps do you certify under penalty of false statement to the payor that these are medically necessary and continue to cash those checks for treatment you are telling everyone here was not for the benefit of your patient? Please do explain.
4
Mr. Leydon -Dr. Brunell does not profit from his defensive medicine. He is not "cashing checks". He does not get paid to order an MRI scan or a blood test. In fact ordering such costs him time and office resources. It is all well and good for you tell him not to order tests, but paid legal experts will roast him and try to end his career should there ever be a question of a missed diagnosis - even is he was in the right for not ordering that test.
22
How about we ask people to pay for their own medical care, out of their own pocket, up to some reasonable level based on their wealth/income? How about we then develop a national catastrophic plan that reimburses patients for their out of pocket health care costs which exceed that reasonable level? Watch how fast the “unnecessary” testing goes away when everybody has their own skin in the game.
As for malpractice reform, how about no-fault insurance for the cases in which a good doctor makes a mistake, and how about the medical profession finally gets serious about sanctioning and removing the very small but dangerous group of physicians who are egregiously incompetent, driven by the wrong incentives, etc? A lot of good docs are forced to practice in a malpractice climate driven by a few bad apples.
Finally solving the whole “malpractice” issue is largely a distraction compared with many other issues that would have a far greater chance for improving health care. The economics speak for themselves. Malpractice costs constitute less than 3% of overall healthcare costs.
As for malpractice reform, how about no-fault insurance for the cases in which a good doctor makes a mistake, and how about the medical profession finally gets serious about sanctioning and removing the very small but dangerous group of physicians who are egregiously incompetent, driven by the wrong incentives, etc? A lot of good docs are forced to practice in a malpractice climate driven by a few bad apples.
Finally solving the whole “malpractice” issue is largely a distraction compared with many other issues that would have a far greater chance for improving health care. The economics speak for themselves. Malpractice costs constitute less than 3% of overall healthcare costs.
4
I have seen countless, stories, studies re this topic.
The Republicans rail that it is killing our health system (but say nothing re them killing it with their de facto criminal policy of be rich, don't get sick and/or don't have a bad life event.
The Democrats say there is nothing wrong with the system but roll over in glee when there is a multi million dollar settlement on somebody who lost a pinky.
Bottom line here....get rid of abuses on both sides.
Republicans must learn malpractice does go on. I read a study once that pathologists say that said that doctors bury most of their mistakes ie there should be more cases but also juries love big settlements although courts bring them down and the lawyers are usually the winners.
The Republicans rail that it is killing our health system (but say nothing re them killing it with their de facto criminal policy of be rich, don't get sick and/or don't have a bad life event.
The Democrats say there is nothing wrong with the system but roll over in glee when there is a multi million dollar settlement on somebody who lost a pinky.
Bottom line here....get rid of abuses on both sides.
Republicans must learn malpractice does go on. I read a study once that pathologists say that said that doctors bury most of their mistakes ie there should be more cases but also juries love big settlements although courts bring them down and the lawyers are usually the winners.
13
" The Democrats say there is nothing wrong with the system but roll over in glee when there is a multi million dollar settlement on somebody who lost a pinky."
??? Why would large settlements benefit any political party?
??? Why would large settlements benefit any political party?
6
How does the U.S. Compare to wealthy, "advanced" nations with disease care systems?
13
Nobody should care.
"Nobody should care"
Oh yes! Why should an exceptional nation such as ours benefit from the mistakes or profit from the successes of other nations? Let's just continue to blunder along making the same mistakes all the others have made while we continue to insist on our superiority!
Oh yes! Why should an exceptional nation such as ours benefit from the mistakes or profit from the successes of other nations? Let's just continue to blunder along making the same mistakes all the others have made while we continue to insist on our superiority!
10
Causality and reverse causality are not the only possibilities. PSIs and adverse events could both be influenced by a common cause, such as the imperfect but still valuable concept of safety culture. If there is a common cause, work that improves PSI numbers could easily have no effect on adverse events.
3
He starts by citing a 2006 study conducted by the NEJM, and focuses on the malpractice findings, which he cites to infer that 40% of the cases were without merit, which is not what the study cited found at all. In fact the study clearly states that most people who suffer injury at the hands of a medical practitioner do not even file a claim.
This fact is backed up by his link to a 2005 New Yorker article by Dr. Gawande who comes to the same conclusion: the majority of injured patients do not receive just compensation under our current system, and only 1/100 injured patients file a claim.
The author than cites the reduction of medical malpractice lawsuits in FL, which he bases on improved medical safety, when it is more likely that the reduction has more to do with the obstacles most patients face when attempting to file a claim than it has to do with "improved" safety standards.
The doctor claims a fix to problem that does not exist, except in the minds of most State and Federal GOP lawmakers, and the links he provides make it very clear that our current malpractice system has little to do with improved safety and more to do with its failure to protect the majority of injured patients.