Discussing malpractice with lawyers

15

Category : Malpractice

This rant is a direct followup to yesterday’s. Aaron, our frequently commenting lawyer (see his blog – The Stopped Clock) parrots the classic lawyer misunderstanding of this issue. In a effort a fairness, I am quoting one of his comments (go to the comments section to read much interesting back and forth):

Here’s the rub: If you believe that patients should receive reasonable compensation for their injuries, why do you spend so much energy advancing caps on damages which deprive the most seriously injured of reasonable compensation?

Would you deem $250,000.00 to be “reasonable compensation” for your “pain and suffering” if somebody were to surgically sever your spinal cord at the neck? $500,000? How much money would you demand, before you would allow yourself to be paralyzed in such a fashion? How about for reflex sympathetic distrophy so severe that it leaves you in a state of constant pain that cannot even be controlled by narcotics?

Also, if such compensation is “reasonable”, why aren’t you campaigning for such limits across the board, as opposed to only for malpractice cases?

Aaron makes several assumptions here. First, he assumes that the outcome is due to malpractice. One of his examples is classic – reflex sympathetic dystrophy. We do not understand what causes that syndrome, but it is generally more likely an unfortunate complication of a procedure than secondary to malpractice. I like this example, because it illustrates the problem of malpractice. Procedures have risks and benefits. Even when we do everything “right”, patients may have undesirable outcomes.

Our current system allows a jury to call and undesirable outcome malpractice. The best example of such practice is found in John Edward’s resume. He claimed (without medical evidence) that obstetricians caused cerebral palsy – while good research shows that that is not the case. His clients got huge awards.

I would certainly want to raise the standard on pain and suffering. Lawyers are very good at posing hypotheticals and worse case scenarios. Some patients may “deserve” a higher compensation for pain and suffering, but I would like to see those compensations standardized. Currently “pain and suffering” judgements represent a lottery. I object to the random nature of these awards.

And how is it the trial lawyer’s fault that your medical lobbies focus their efforts entirely on measures which will deprive the most severely injured patients, with the most patent proof of malpractice, of adequate compensation? You think that there is justice in that?

Additionally, why would you care what a lawyer charges? Lawyer fees have no impact on the size of verdicts. Should the state be encouraged to impose limits on medical fees? At least a cap on medical fees would have some relationship to the cost of medical care – and doctors on the whole make vastly more than lawyers.

If a patient deserves pain and suffering compensation – then he/she deserves that compensation – not 70% of the compensation (I am assuming that the lawyer is receiving 30% of the settlement). Why not have a global fee? Why should the lawyer (again John Edwards is an easy target) become a millionaire trying such cases?

The government does have a de facto limit on doctor’s fees. I can increase my fees as much as I want, but insurance companies set my reimbursement. Our reimbursement system is another serious problem, for which I cannot blame the lawyers. However, this system prevents us from increasing income to offset malpractice costs. As my malpractice increases 15% each year, I must pay that increase, i.e. expenses are increasing faster than income.

In terms of needing a wholly different system, I think you should turn to the remarks of Richard Boothman, at the University of Michigan Medical Center’s recent symposium on these issues.

Please provide a reference!

In another comment Aaron has this great quote:

Given that the average physician pays about 3% of his income for malpractice coverage, other than in a few high risk specialties, your argument about not being able to afford coverage is “stuff and nonsense”.

Knowing current malpractice rates, Aaron must be using old data. Malpractice costs have increased signficantly, except in those states with caps. Primary care physicians are probably paying 5-7%, while specialists are paying a much higher percentage. Malpractice costs are decreasing access in some areas.

I am certain that Aaron means well. Trial lawyers believe that they are helping patients and society. There is no evidence (of which I am aware) that malpractice cases advance patient care. Our current system, in my opinion, hinders the quality movement. We need a new system, but until we develop a new system, we need reasonable caps on both pain and suffering and lawyer fees.

Thanks to Aaron for stimulating conversation. We are unlikely to agree because our perspectives are almost radically different. Of course I am right and he is wrong (insert a smiley face here).

I only ask Aaron to consider the unintended consequences of malpractice awards. How do huge rewards affect the doctor patient relationship? What impact to awards have on test ordering? How many good physicians leave practice prematurely? How many areas have insufficient neurosurgeons, or obstretricians?

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Comments (15)

Trial lawyers believe they are helping patients and society? Come on! They couldn’t care less about either. Otherwise why would they triage their selection of cases strictly by the size of the potential settlement?

As I stated in my CodeBlueBlog (http://codeblueblog.blogs.com/codeblueblog/2004/09/we_demand_to_kn.html)the system in place is not designed to root out malpractice, it is designed to address cases that can win awards. Real malpractice and tort cases only intersect by accident.

In fact, most cases taken by torters (better than lawyers, I think) are exactly those hazy/gray cases that are difficult to decide objectively so the lawyers know they can extort the insurance company or sway a jury with emotional appeals that don’t rely on clear cut data or standards (like Edwards’ channeling fetuses to prove neglect in the case of cerebral palsy).

Most torters I have met or dealt with are more uninformed about the medical realities of the case than the patients they represent, and it is always clear what the torter’s objective is: money. End of story. Whatever else we may let the torters argue over, let’s not allow them to hide their avarice behind the veil of doing good for mankind. They don’t deserve that.

RSD is poorly understood and has no real causation aka “bad surgeon” Perhaps Aaron can explain the mystery of cerebral palsy and how all of these cases are the doctors’ fault.

Bob Montgomery, one of the leading malpractice litigators in Palm Beach County had this to say when he won part of the big attorney’s fee associated with tobacco legislation there:

”I had a nice shack in Palm Beach before this happened,” said Montgomery, who lives in an oceanfront mansion and drives a Rolls-Royce, after stepping off the golf course on Friday. ”It’s not going to change my lifestyle at all.”

See, the malpractice litigation is about weeding out the “bad doctors”.

Take the OB/GYN who delivered my son, and my wife still sees. As in, we trust him. He got sick of the insurance cost, and more important, got sick of practicing with a gun to his head. The risk that one day, one bad case will wipe you out, everything you worked for, saved for, retirement, kids college, etc.

So why take the risk?

He dropped obstetrics. Now he does just gynecologic surgery, outpatient women’s primary care, and the low-risk cosmetic work that people pay cash for. The low-energy laser work, the superficial peels, vein sclerotherapy, botox, etc.

Not the high-risk cosmetic stuff, face lifts or liposuction or mammoplasties, that goes to real plastic surgeons. The cosmetic work he does is office-based, low risk, and I’ve seen the work, he does a good job and is busy with it. The only hospital work is gynecology, so virtually no emergency call.

So the obstetrics now goes to the more “qualified”, “low-risk” practitioners.

You know, the midwives. And when they get in trouble, they send to the hospital where the one remaining obstetrician gets the hit. So statistically, he’s the “bad doctor”, while the midwives remain “low risk”, and my wife’s GYN is a “good doctor”. We’re done with kids.

We’re better off than one town south of us, they lost ALL their obstetrical services, they now send about 60 miles away, through a mountain pass on the road, at least when the road doesn’t wash out.

And the best part is, these docs improved the quality of their medical care by not providing medical care. Can’t do malpractice if you don’t practice.

And on paper, the docs are still there. So the trial bar says the docs are lying when they say docs are leaving the state, see, no one has moved out.

Well, except the patients, who I now send out-of-town for obstetrics on a routine basis.

Yep I’ll stop worrying about malpractice costs when my insurance goes down to 35 of my income. Come to think of it, I’ll make a deal. I’ll continue with my same med mal premium ($40K — trauma/critical care surgeon with NO cases brought ever) and let John Edwards pay me my $1.3 million salary. I’d come out about 5 times better off.

I for one like the medical malpractice “crisis”. In fact I think it should be applied to many other fields like, say, lawyering. Especially joint liability: that’s one of my favorites. I think if the court clerk misfiles a document, then all the lawyers and paralegals on both sides–and the bailiffs, come to think of it–ought to take it on the chin.

Oh, and Santa, I want a pony too.

Dr. Rangel is exasperated
…with funny numbers on malpractice. CodeBlueBlog is losing patience more generally. And DB of MedRants is trying to be fair….

ARF,

Spectacular post.

recentor, with all due respect, you could at least make a token effort to argue based upon fact, as opposed to your wild speculation.

First, it is not my assumption that doctors are responsible for malpractice, or that verdicts in excess of $250,000.00 are warranted as a result of the serious injuries caused by those doctors. That is primarily the determination of the doctors themselves, in conjuction with their defense lawyers, when they choose to settle larger malpractice cases. Secondarily, it is the determination of the nation’s trial and appellate courts. One can also note that, despite the rhetoric from “tort reformers”, you guys aren’t presenting any case studies to back up this type of claim, let alone any you might argue are representative. Unless you can back up your claim with more than your idle speculation, you’re really just making stuff up.

As for “medical evidence” that shows one thing or another, the fact is that lawyers can’t even get into court without a medical opinion to back up their claims. (Are there any states left which don’t require pre-certification of cases by a qualified medical expert?) And doctors know how to defend themselves, and their insurance companies spare little to no expense in providing defense experts to present their side of the case. Unsubstantiated medical theories can’t get into court post-Daubert. So what you’re really complaining about is a divergence of opinion in the medical community – which isn’t the fault of lawyers.

Your argument on damages is beyond silly. You are arguing that it is fair to deprive malpractice victims of their ability to retain counsel, because their attorney receives a contingent fee? Here’s a solution – we’ll tack on an attorney fee to the award given to the victim, such that the victim gets the entire award. Oh… no good, you say? You don’t want the responsible party to pay the attorney fee? The only system that works for you is one where the attorney is underpaid or unpaid, or the victim can’t afford to litigate? [eye roll]

I was not aware that I needed to provide more of a reference than to give you the name of a speaker and the location of his speech. What more do you need? The UM Medical Center is anything but obscure, and I’m not here to spoonfeed you every time you’re too lazy to spend thirty seconds on a Google search.

I thought I referenced my source on malpractice costs as being the Congressional Budget Office’s report on “tort reform” and medical costs. Presumably you followed the link to that Jan. 2004 report. But please – if you for once want to present a fact as opposed to your standard guesswork and self-serving speculation, please share “current” figures.

On this much you are right – as long as I rely on facts and reality, and you disagree on the basis of guesswork and mythology, we are unlikely to agree.

Your final questions:

“How do huge rewards affect the doctor patient relationship?”

Few patients have any interest in going back to a doctor who has committed malpractice upon them. So there’s little left of the doctor-patient relationship to be damaged by providing fair compensation to the victim.

As you probably know, one of the leading factors in whether or not a doctor is sued for malpractice, or if the patient writes it off as a forgivable human error, is the quality of the doctor-patient relationship and the doctor’s “bedside manner”.

“What impact to awards have on test ordering?”

How many unnecessary tests do you order each year? The managed care and insurance companies which limit your fees let you prescribe whatever unnecessary tests you want, and reimburse for them? C’mon.

There’s a lot of speculation about the cost of “preventive medicine”, but (as the “study” you criticized about patient deaths attributable to poor medical care) they are speculative.

Also, there is absolutely no evidence that any such ‘preventive medicine’ will be affected by damages caps or attorney fees. So how is this even relevant to your larger point?

“How many good physicians leave practice prematurely?”

I have no idea. But the medical schools seem to be full. Go ahead and let us know.

“How many areas have insufficient neurosurgeons, or obstretricians?”

I guess that depends upon your definition of “insufficient”.

As you are almost certainly aware, Michigan has had damages caps and other severe restrictions on medical malpractice cases for years. Yet Michigan’s obstetricians still pay some of the nation’s highest malpractice premiums. Still, I haven’t had any trouble finding one to care for my wife. So… from where I literally stand, this looks like something of a red herring.

Here’s a question for you – do you agree with the studies that indicate that only 12% of actual malpractice incidents result in litigation? What system do you propose which will fairly identify and compensate all victims of malpractice, while costing less that the present system?

(Daniel – I’m not sure what point you are trying to make. Lawyers pay for malpractice insurance. Lawyers get sued for malpractice. Lawyers aren’t shielded by “certificate of merit” requirements or damages caps. Yet lawyers don’t seem to whinge all the time about how life is unfair to them because they may get sued.)

I would also appreciate the following: A sample table, correlating specific injuries and disabilities to the amount of compensation you would deeem “reasonable” as compensation for “pain and suffering”.

“…and doctors on the whole make vastly more than lawyers.”

“On the whole,” you say? Gosh, I can’t wait to be “on the whole!” MDs don’t make the so-called big bucks until after 3-10 years of training. Until then, they’re paid about the same as dishwashers, if you break it down to an hourly basis.

Show me the lawyers who “on the whole” would accept that level of compensation after graduating law school!

Medical Errors
“A Minnesota health insurer says it won’t pay the bill when doctors make serious mistakes…”

Gentlemen:
Three brief points:
First, on caps: Caps do nothing, really, except increase litigation, because a defense lawyer will know that a plaintiff’s case can only net X amount in general damages, so why should the defense make an offer? As a subissue, caps discriminate against those who do not have income, i.e. the unemployed, a stay-at-home parent, or a child. Recall that wage losses are not capped in most states. So, the system hits those who can least afford it with a double whammy- in essence saying you, child, are worth less than a CEO. Perhaps, but certainly not a “just result”
Second, I ask that you review the actions of certain professional associations, that penalize those docs who testify for plaintiffs and do not penalize those who testify for defendants. Why, other than enforcing “groupthink”?
Third, It has been reported that less than 10% of doctors are alleged to have nearly 50% of claims, yet the professional standards boards do little if anything. Why?
I pose these thoughts and questions as an attorney and counseler at law (the Old Englsih term)that does not do med mal. I do people law- people come to me after an injury, usually a car crash. I see the same defense doctors time after time- the ones that take 5 minutes or less to proclaim that my client wasn’t injured, and that another treating doc “overtreated” or treated “excessively”. My belief is that for the past thirty years, the insurance companies have been feeding America a line decrying the “tort system” as an excuse for profit, pure and simple. it’s not the doctor, it’s the insurance company. Oh, and when I graduated law school with 45K in loans, (I worked, so it was less) I was offered a position doing public defense for 30k. It did not pay overtime, and I worked 50+ hours a week. Not as bad as interns, but after nearly 10 years, I am still not as “well-off” as my doctor peers. I expect that I will be derided for this last comment, but I ask that before you judge, search on the Web for the crisis in the criminal defense bar of Mass.- If you take a public defender contract in Mass, your practice will lose money on every case. Even health insurers aren’t that cheap.

Frankly, as a trial attorney, I think doctors are being duped by the same insurance carriers that are ratcheting up your E&O premiums. Premiums have gone up in all states, even the ones with caps. In California, rates did not significantly drop until they passed a law requiring insurers to open their books and justify their rate hikes. Rates are heading north because insurers have to replace lost income from their stock and bond market losses, and from poor underwriting decisions when they were scrambling for all the premium dollars they could to invest when the markets were hot.

Even though doctors are experiencing enormous and unfortunate hikes, imposing caps and giving immunities or special prvileges to insurers, manufacturers, etc. is no cure for medical malpractice. Doctors complain that juries are not equipped to determine malpractice, but then why do insurance defense attorneys uniformly ask for juries. Instead of caps, perhaps we should have some agency similar to the National Transportation Safety Board determine if malpractice occurred, and take steps to compensate victims on that basis. Perhaps medical board could take better steps to get rid of incompetent doctors (surely you agree there are some out there?). In the meantime, tort deform is hurting your patients and will have little lasting benefit for you as doctors.

And please, give us a break about being venal. If you practice medicine solely to patient care purposes, why aren’t you out on some missionary work, working in the inner city for cheap, or giving away your services. You practice medicine for the same reasons we practive law, in part for the human benefit, in part for the challenge, and in part to make a living for our families. Give me a break with all the whining about money. Instead of doing harm to your patients that are injured, do something positive to rid your profession of arrogant and incompetent doctors. You would be doing everyone a favor.

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