More from Aaron

http://netec.mcc.ac.uk/WoPEc/data/Articles/tprqjeconv:111:y:1996:i:2:p:353-90.html

the cost estimate of defensiv e medicine is about 100 Billion dollars/year

this 40 page article will cost 20 dollars to have mailed by publisher, but I would think a typical unversity libray will contain.

defensive medicine also includes , consults with specialists or subspecialists to re-assure patient or practitioner. Sugeestions to go to ER when a pt calls after office hours and the clnical scenario sounds ok but there is any doubt on the part of patient and doc on call.

it includes pregnancy tests on women who insist that they cannot be pregnant but are going for some radiographic procedure. it includes checking labs , just to be sure. and so on.

Australia (and Queensland in particular) have been working to limit quantum of damages and attorneys taking a percentage of the damages for some time.

With our system, the losing side does pay for the legals of the winning side, but it’s on a scale and never covers all of the costs, so some does come out of the plaintiff’s damages award usually.

Check out http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/CivilLiabA03.pdf and http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/P/PersonInjProA02.pdf for more info on the legislative framework.

I’m sure there’s plenty of articles around as well – it was a very big deal here a couple of years ago because rural women couldn’t get access to an ob/gyn because they couldn’t afford to run a rural practice.

Of course, we haven’t had jury trials for civil matters for some years here and that seems to have made a bit of a difference from the US model.

- OLS

Aron states
“Defensive medicine, when defined so broadly as to include abject stupidity (as in, giving pregnancy tests to infertile women), will no doubt be “costly” -
and
“We get nowhere if we define pretty much everything beyond “take two Tylenol and call me in the morning” as defensive”

These desciptions are silly.

why do you associate such silly decritptions with the issue of defensive medicine.?

this article provides a another understanding of what defensive medicine is:

http://www.pipatl.org/resume/hauser/malpractice.html

or a more scientific assesment
http://www.law.duke.edu/shell/cite.pl?60+Law+&+Contemp.+Probs.+81+(Winter+1997)

Certainly the cocept of Defensive medicine is a very complex issue and some commentators might argue that defensive medicine by way of excess tests/referalls/hospitalizations is not a significant issue.

But many physicians clearly do alter their actions in many situations.

Ordering tests in a low pre-test probablity situation is all too common.

Harris poll did a survey, I beleive one year ago…that showed this happens at a significant rate.

As a patient, I have to ask why, if the system is set up so I can get the outcome I want, why can I not opt out? The lawyers have it set up so I can’t sign a waiver to modify the standards for risk and malpractice and get the lower premiums passed along to me. No, any possible waiver would be “unconscionable”, an arrangement that I was “unable to negotiate” because both me and the doctor didn’t have $300/hour nannies to help them. (Seriously: go look up the legal definition of “unconscionable contract”. The lawyers get to decide after the fact whether something was too dangerous. Their sophistry has the system closed off at both ends.)

Listen, don’t blame Aaron. He has no concept of what we do every day, and it’s unfair to expect that. I work in an ER, and there’s simply no question that physicians order a ridiculous number of CT scans for borderline (or no) reasons. Ten years ago, I could’ve called a surgeon to operate on a patient with appendicitis on the basis of my exam and a CBC. Now, they basically refuse to see the patient unless I’ve ordered a CT scan that is almost always unnecessary. They don’t want to take the chance of operating on the 1 out of 10,000 case that’s not appendicitis.
If lawyers think that this system improves quality, we all know that they are deluding themselves.

(m, I responded with specificity to the points you made. I agree with you that they were “silly”, but they were your points, not mine.)

(‘Daniel Newby’, perhaps you should educate yourself as to the history of such agreements, and why they are universally held to be contrary to public policy.)

My comments, harsh? I think I’m pretty easy on you guys, actually. I sometimes feel like I’m talking to a group of people who have their fingers stuck in their ears and are humming random tunes such that they can avoid being confronted with facts and different opinions. You’re the quintessential hostile audience. Even when Joe concedes the absurdity of arbitrarily low damages caps, he can’t resist saying that I’m “dumb” because I want facts and evidence, instead of relying on his gut instincts.

Your philosophical objection to contingent fees is fascinating, but out-of-touch with the realities of litigation. Litigants cannot afford to bankroll their cases against well-funded defendants and insurance companies. The contingent fee was developed as a means of providing access to courts, and it has worked. Nations which don’t have contingent fees typically do exclude most of their people from being able to seek legal redress for wrongs committed against them. Nations which long attempted alternatives, but which see the importance of allowing injured persons access to the court system and legal redress, have been introducing contingent fees for injury cases.

As for your having to miss work “for several days” if you are sued, that’s true of any litigant in any type of case. It’s also true of witnesses, even those with no stake in the proceedings. It’s true of jurors. (The nominal witness and juror fees they might receive are typically token in amount.) It’s also true of the plaintiff – assuming the plaintiff is still capable of working. What makes you so special?

And as previously noted, at present you don’t pay attorney fees. A contingent fee comes out of the recovery. (As for the person who complained that the victim should get the full recovery, that’s a powerful argument against damages caps – which by their nature deprive the victim of full recovery – or for adding an attorney fee on to any verdict for the plaintiff – but you all seem quite opposed to any such measures.)

As for the effect on the doctor-patient relationship, of course I understood your question. But rather than speaking to a somewhat rhetorical and self-serving query, I exploited your ambiguous wording to speak to a different issue. (Do I really have to explain this? I thought it self-evident.)

So some doctors become wary at the possibility of being sued for malpractice, with some undefined sequelae? That’s no doubt true – the same could be said of any class of potential defendants – but it’s hard to respond to such a nebulous assertion.

I am also not sure how to respond to claims such as “many doctors order unnecessary tests” – a class of doctor the speaker usually notes does not include himself. And managed care companies gladly pick up the tab for these medically unnecessary tests? Interesting, particularly givne how diligent managed care companies seem to be when it comes to paying for tests they deem unnecessary, and their skeptical treatment of self-referrals for medical testing.

Additionally, just because you deem a test to be unnecessary, it does not necessarily follow that the physician ordering the test deemed it unnecessary. It is easy to declare a test “unnecessary” in retrospect, when it comes back negative or when an established diagnosis seems “obvious”. That’s frequently deemed “20/20 hindsight” or “armchair quarterbacking”.

I have not previously seen the claim that “ohn Edwards almost singlehandedly increased the C-section rate with his cerebral palsy suits”. If you have a source for that assertion, please share it. (As it is a peripheral issue, I have addressed birth injury litigation elsewhere.)

I do agree with you that lawyers are good at finding doctors who agree with their positions, but to the extent that doctors put their opinions up for sale, it seems that the problem lies more with the medical profession than with the legal profession. And to the extent we’re speaking of valid differences in medical opinion, what’s the problem?

I do have a problem with doctors who sell their opinions. The place this is most often seen appears to be within the context of injury and workers’ compensation litigation, where insurance companies use a particular class of physician to perform “IME’s” on claimants, knowing full well that these doctors almost never bite the hand that feeds them – that is, put their large IME fees at risk by giving the insurance company an opinion it doesn’t want to hear. Certainly, this is not true of all doctors who perform IME’s, but there is a significant subset that is more than happy to sell opinions. And when you hear them describe their IME-related income at deposition, it is easy to understand why – it is highly lucrative.

Studies of juries indicate that, despite the approach of many lawyers of trying to have a counter-expert for each expert presented by their opponent, juries don’t bean count the experts. And juries are right to dismiss the notion that the side with the most experts should win. The fact that the defense has incredibly deep pockets, and can put on five, ten, or one hundred experts for every plaintiff’s expert is not relevant to the underlying medical issues.

Doctors have done a very good job of securing litigation narrowing who can serve as a plaintiff’s expert, and creating bizarre, localized “standards of care” so as to exclude competent experts from testifying against them. These hurdles are imposed not to help find the truth, but to impede even meritorious malpractice litigation.

Why should juries make decisions on criminal issues? On scientific issues? On any issues? That’s the nature of our legal system.

I would not oppose a system where any malpractice claim were first channeled through some form of public inquest – as long as the inquest was set up to be truly objective, and the cost of the inquest was fair to the petitioner (or was borne by the state). That might be incorporated into a form of modified “loser pays”, whereby the party which rejects the findings of the inquest would have to bear the other side’s costs and attorney fees in the event that a jury ultimately concurs with its findings.

Risk management systems should be put into place in hospitals. If fear of tort liability does not inspire doctors, clinics and hospitals to develop “a system to catch all errors, and then determine which errors have led to harm”, what will?

And why, again, is your profession refusing to propose or endorse any such system? Why instead are the so-called “tort reform” efforts univerally directed at limiting access to the courts, and limiting damages, for bona fide victims of medical malpractice?

All malpractice laws are a “state by state” thing. It’s not so much a “locality” rule, as it is a “standard of practice” rule, which perhaps is reasonable in the grossest of senses (that is, it may not be appropriate to apply the same standard of care to a clinic in rural Alaska as one would apply to the Mayo Clinic), but gets bogged down in irrelevancy as applied (e.g., matching up the size of the hospital and its surrounding demographics to that of the hospital where the defendant practiced.)

I believe that, although more than one standard of care may be warranted based upon demographics (e.g., remote rural, small town, and urban center standards), it would be beneficial to the medical profession to enunciate broad standards of care for doctors to follow, so as to obviate concern that failing to order that extra unnecessary test might give rise to liability. However, I must have it wrong, because it is the medical lobbying groups and malpractice insurance carriers which have worked overtime to prevent such national standards from emerging.

Incidentally, I did not suggest that hospitals don’t have risk management systems – just that if, as our host suggested, they don’t have one designed to catch all errors (or as many as possible) and to determine which errors led to patient harm, they should – and that the existing tort system should provide an enormous incentive to implement such a system.