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.

I thought locality rules were thrown out years ago, or is that a state-by-state thing? In Massachusetts, they were overturned in the late 1960’s as I recall.

“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?….”

Is there anyone here working in a hospital that DOES NOT have a risk management system?

(‘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?

Without scrolling back… If you want to talk about facts and analyze issues, I’m here for you. If you want to complain about how I don’t understand the psychological impact of litigation, well, you’re wrong. But I really can’t do much about that, and it has absolutely nothing to do with “damages caps” and other restraints directed at the most meritorious of medical malpractice suits, so I’ll have to defer on the issue to any psychiatrists who happen to be reading along.

1.Government by the wealthy.
2.A wealthy class that controls a government.
3. A government or state in which the wealthy rule.

? the number of state/national legislators are lawyers ?

think carefully when you vote

But most of what he’s saying is so bizzarely… the best word is dumb – that its scary to think that other lawyers might be as poorly informed as this.

The way he downplays the phenomenon of defensive medicine is not just inaccurate, it’s so incredibly wide off the mark that it’s beyond belief. Denying the evidence on the sheer scale and costs of defensive medicine is almost like denying the evidence that the Holocaust, or WWII, or 9/11 happened. He is seriously misinformed. BTW, that 39 page JSTOR paper is excellent, although some of the econometric models were a bit over my head.

As someone who has practiced in 3 countries (US, Canada and third world), I can tell you that American doctors are very very different in one respect – they are worried out of their skins. We literally practice in the States as if there is a gun being held just behind our ears, and we can feel the cold metal, just waiting for the trigger to be pulled. The element of patient –doctor trust, that altruism so many of us started out with, the feeling that you are doing a great and good thing, the affection for patients – for many of us most of the time, all that went out the window long, long, long ago.

Every patient is not someone you care for like your own child, she’s just another potential hand-grenade. So we practice the way any human would in that circumstance. The motivation is not anymore to heal and to comfort. It is to get through the day without having the grenade go off in your face. To do that, we order every imaginable test. Whatever the Mrs. Grenade wants. Needless blood draws? Sure, no problem, we can arrange that. Invasive procedures? Sure, go ahead and have it. We’ll explain the risks to you, and document that we did, and get you to sign a form as well just to make sure, and then you can have all your procedures that you insist so much on, that every “good doctor will order”. When things go badly, hey, we explained everything to you, but I guess these days we’re just technicians to sign off tests, and patients and their lawyers are better “doctors”.

100 billion a year wasted? Huh, not surprised in the least.

Thousands of people die every year from complications of tests they didn’t need? Well, you asked for it, Ma’am. You and your lawyers.

You see you cant ever beat the laws of nature. You reap what you sow. You reap what you sow.

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.

You guys run the legal system, and we are powerless when we get involved. Don’t forget that we run the medical system. We worked day and night for most of a decade to get to where we can help you if you’re sick or injured, and we work day and night to help you now if you need us. We’ll do everything we can to help you, but we’re not going to destroy ourselves in the process. You’re the one who’s gonna pay for this monster that you and your legal colleagues have created. You and millions of innocent Americans are paying the price. When your pretty teenaged daughter comes to my office with a breast lump, and I know with .9999 certainty that it’s a (benign) fibroadenoma, there’s no way I’m going to treat her like I would treat my own daughter, with reassurance and a recheck in 3 months. First, your daughter is going to get an ultrasound exam, then she’s going to get a pregnancy test, and then she’s going to get a breast biopsy, which will cost a few thousand dollars, leave her with a scar on her breast for life, and extend her lifespan not a minute. Oh, and she might get a wound infection or a hematoma, or die from an anesthetic complication. Nosirree, I’m not going to take the risk that she’s the 1 in 10,000 teenage girl who gets cancer. Multiply this scenario by 10,000 per day, and soon you can see why we’re in such a mess. We didn’t start this fight, but we’re learning how to survive in it.