An interesting malpractice perspective

At the risk of becoming tedious, I’ll say again that the problem is medical error and not malpractice lawyers. You’re hitting the cart and not the horse. How do expect to control malpractice rates when 45% of doctors queried report medical errors in the last six months?

Roberson and colleagues sent a brief, anonymous survey to 2,500 members of the American Academy of Otolaryngology-Head and Neck Surgery, and received 466 responses (19 percent). Of these, 210 physicians — 45 percent — reported that a medical error had occurred in their practice in the past six months. Errors occurred in all phases of patient care; 78 (37 percent) caused major injury or harm, and 9 (4 percent) were fatal. Both adults and children were affected.

The Florida Medical Association decided last year to propose a constitutional amendment which would limit lawyers’ contingency fees to 30% of the first $250,000 in malpractice awards, and 10% of any amount exceeding $250,000. This was done after a cap of $500,000, instead of $250,000 for non-economic damages, was approved by the legislature. This was felt to be still high, with ways for lawyers to get around it and get bigger awards. Furthermore, malpractice premiums were not expected to go down, but in fact went higher this year.

In retaliation, the Florida Trial Bar came up with three of its own amendments, one of which had been withdrawn. Of the remaining two, one that concerns physicians is the so-called “three strikes and you are out.”

What is clear at this point is that settlements are not included as part of those strikes. There are still two points of contention: (1) the trial bar wants this amendment, if passed, to be retroactive, and (2) physicians argue that the Board of Medicine, acting on behalf of the Department of Professional Regulation, has the sole authority at present to discipline physicians, including stripping of their licenses.

Further clouding the issue are threats from both sides to contest the constitutionality of the contending amendments if passed by the voters.

Trial lawyers are willing to withdraw their amendments if physicians withdraw theirs, but the FMA said NO, thanks, but we are proceeding with ours. Physicians think the public is in their favor this time as shown by favorable polls.

With a massive budget of $12 million, the trial lawyers are concentrating their efforts at fighting the doctors’ inititative, apparently paying little heed at promoting their own two proposals against doctors.

This is expected to be another bitter fight between doctors and lawyers, reminiscent of their previous war about 17 years ago when the doctors first went public with an amendment to cap non-economic dmages at that time. The lawyers won that first round, but the odds are against them at this time.

A victory by the doctors this November would be a significant breakthrough and may pave the way for other states to do the same if no meaningful tort reform, either locally or nationally, is achieved. This would, among other things, provide malpractice victims a major share of the awards, wipe out the lottery mentality prevalent in the current tort system, and inhibit the number of frivolous lawsuits.

I know there are people questioning the wisdom of doctors battling lawyers again, but Florida physicians, already saddled with the highest malpractice premiums in the country, were left with no other alternative.

Inaction would have spelled further erosion in access to medical care at a time when the Medicare population is swelling, coupled with limitations of vital medical services in obstetrics, radiology, neurosurgery, and trauma care from withdrawal of specialists in those areas.

Bernie,
All people make mistakes, we are all human. We will never be able to eliminate mistakes as long as Doctors are human… remember that we aren’t perfect and you can’t expect us to be. There is no perfect medical practice and the attempt to get us to be perfect will fail….remember that the enemy of good (enough ) is perfect.

The comment from Bernie Simon was quite silly, I thought.

That study he is quoting shows exactly the opposite of what he wants it to show.

The malpractice lawsuit is a very bad way to address medical error.

The fact is, most lawyers and consumer groups want people to belive that only a small group of “bad” doctors make “mistakes”. So if we could sue them/get rid of their practices, everything will be fine and dandy.

This is a ridiculous fantasy. At some point in their careers, ALL doctors will make some “error”. Part of this is a human characteristic, but a HUGE part of the problem is something doctors cannot do much about – as the IOM report said, the main causes of medical error are SYSTEM Problems.

Using lawsuits is just plain stupid. It is not doing anything to solve the problems for patients.

The current system penalizes great doctors who do high risk work – because what these patients are punishing is not malpractice, it is any outcome that is less than 100% what they wish.

If you have been dUI and crash your car and break your skull, if a neurosurgeon can’t make you whole again, he must be “negligent”. If your baby has cerebral palsy, then the OBGyn MUST have done something wrong. Never mind that science shows that CP has nothing to do with birth difficulty.

The famous statistic that 75% of ALL ObGyns have been sued proves that. Is Bernie suggesting that virtually all US ObGyns are incompetent?

In D.C. a few years back, every single Neurosurgeon, that’s right,***100%***, had been sued!!!

Are you saying they are ALL incompetent? Funny, our neurosurgeons are the most intensely trained professionals of any type anywhere on the planet. But I guess 100% must be incompetent, huh?

Maggie:

Minor point, but being sued does not mean you are incompetent. Even being found guilty of malpractice does not, to my mind, mean you are incompetent. If I were a doctor, and I am not, working for hour after hour seeing patients presenting with a wide range of symptoms under the time pressures of a modern practice, I can promise you that I would make some mistakes. I would hope to be lucky enough that those mistakes would not have horribly bad results, but there would certainly be an element of luck involved. And, when I was unlucky, I might get sued. And I might lose. But that would not mean I would be incompetent. Over a career, that could absolutely happen 3 times, and I suspect (again, without knowing, and I’m not a doctor, and I don’t play one on TV) many, many doctors have made a lot more than 3 mistakes over their careers.

Incompetence is not demonstrated by accusations of malpractice, or even by actual malpractice.

probably even more important is to realize that physician’s do not want to be sued. recent goverment estimates suggest physicians order about 100-160 billion dollars/year in excessives tests and referalls for defensive purposes. Osama bin laden would envy such a wasteful cost to our society

Access to affordable healthcare ?? Or access to an affordable lawyer??? Ya can’t have both… Now which group cares more about people and donates a significant amount of time to charity care ??? Remember it’s not pro bono if you work on a contigency basis.

what is relevant is that the
comments above (nd) are occuring in practices in all communities.

the costs associated with the current med mal practice environment are now a major reason why employers are not hiring or offering health insurance. When the true costs of this wasteful medical/legal environment outweigh the benefits, our current sytem will collapse. Change is already occurring.

check out http://www.cgood.org
this is a legal organization that does see the damages related to the current sue happy environment