A thoughtful comment which deserves reading

A lot of the “white wall” is fear of being sued or being dragged into a long, ineffective berurocratic process.

If doctors were able to comment on their collegues behind closed doors with the intent to help (not harm) their peers, and were able to do this easily, the “white wall” would fall.

But no one I know is going to risk being branded a “troublemaker” or a lawsuit for criticizing a collegue and making it more difficult for that person to earn a living.

Of course, the real point here is that there is literally nothing stopping medicine from improving itself, as I pointed out in my response to this post. Nothing whatsoever. In fact, that anesthesiologists have shown exactly what can happen when medicine looks inward.

The problem for DB and others seems to be that they are offended that they have to explain themselves under oath. It’s as if the patient should be satisfied they worked on them at all. JK states that the defendant in a lawsuit “has been harmed”. Well what of the victim? What of the injured person who has been shut out by the medical establishment? How exactly are they supposed to figure out what went wrong when you won’t tell them?

“At the very least, I think it would be helpful if we had the English rule which provides that a plaintiff who sues and loses must also pay defense costs. If he or she cannot afford to, the law firm that took the case should be on the hook for them.”

In other words, you want to make it impossible for a poor person to ever take a case to trial. It’s interesting how physicians want to adopt the English model of law, but don’t want to give people the universal health care enjoyed by the English. Again, their “improvements” never seem to effect themselves.

Here’s a question that none of you have been able to answer so far – why should pain and suffering be compensated according to a “standard schedule”? Is there anything more arbitrary then having a group of people who know none of the facts of a person’s life or the case decide what their pain and suffering is worth? Is the 80 year old with the broken leg’s pain and suffering the same as the college football star’s?

It does make me chuckle that a few posts below this one DB was astute enough to observe that when drug companies fund trials, they unsurprisingly come up with results that tend to favor them, yet none of you see the problem with physicians judging their own. Perhaps you see a speck in the pharmaceutical industry’s eye?

Excuse me, JK may be a patient, and I mistakenly identified him as a physician.

I cannot speak for all physicians but I can say that many physicians look at the state of malpractice as one part of a severely broken system.

Too often physicians are required to make decisions under a state of fatigue, pressure with enormous work loads that keep us on a treadmill that we cannot get off. I recall a couple of years ago that a NEJM article highlighted that more deaths occurs on weekends. Similar articles point to more errors when people are working more than 60 hours/week ( which is a light week for many physicians) or after working a 12 hour day. No surprise that an error will occur at midnight on friday night, especially as it is likely the physician has already worked 60 or more hours that week and is girding for another 20 left before the week is over.

This is a direct result of a system of health care that is pushed to its limits. It is routine to for one physician to be on call for 48 or more hours in a row to provide needed services for a significant portion of the week. Some industries (airline pilots, etc…) have strict mandates of work hours restrictions in order to minimize errors of fatigue. Unions then negotiate compensation contracts for the pilots and the system works.

As we face a tremendous physician shortage, estimated to be 20,000-50,000 in just a 10 years it seems we will not be able to restrict work hours unless we walk away from patients when we reach our work hour quotas. I doubt physicians would do this.

The proponents of the current system point to cases of obvious neglect…Yet a large number of cases brought against physicians are not related to neglect..but rather bad outcomes.

I strongly endorse removing physicians who would intentionally harm patients. I strongly oppose a system where a physician is penalized for trying their best but err as a result of overwork and fatigue.

Hence we see the increasing specialization trend where physicians, physician assistants and now nurse practitioners are avoiding fields of medicine that involve broad responsibilities.

Obviously a remedy must be found. Physicians are finding micro remedies such as ordering excess tests or requesting unnecessary consults, limiting scope of practice, avoiding high risk situations ( ie… record numbers of OB/GYN’s have dropped obstetrical care) and wasting precious time by dictating excessive documentation so as to better protect against a lawsuit that might come several years later.

A medmal attorney finds the current system of dysfunction just fine. The system favors the overworked physicians to press on despite fatigue. The more fatigue, the more time pressure, the more patients requiring evaluation in a limited time frame means the more income potential for the attorney.

This scenario is very frustrating to physicians because it happens all the time.

Ratrace, I agree with everything you said up to a point. But your beef should not be with the malpractice system as much as the compensation system. That is what has changed your model from a care based one to a procedure/volume based one. Yet you hear very little of physician lobbying on that subject. Why is that?

Here’s where I disagree with you:

“Yet a large number of cases brought against physicians are not related to neglect..but rather bad outcomes. ”

To an extent, this is true, because why take a case if there is not a bad outcome? It’s likely the patient will never even suspect negligence. But that doesn’t mean the majority of cases that are filed don’t have a legitimate issue of negligence – in fact that Harvard study recently out put the number at over 75% of all cases filed having a legitimate question of negligence.

“I strongly oppose a system where a physician is penalized for trying their best but err as a result of overwork and fatigue. ”

Would you oppose a truck driver being held liable for the damage caused if he ran over your wife and children because his company had a shortage of drivers and he was tired after having worked too many hours?

“Hence we see the increasing specialization trend where physicians, physician assistants and now nurse practitioners are avoiding fields of medicine that involve broad responsibilities. ”

Do you think this has anything to do with the fact that specialization pays much, much better?

I agree with you – it is frustrating. But if you want to improve it, you should be changing how your compensation is determined. Where are the physicians protesting that? Where’s the AMA with its “crisis map” showing how much primary care physicians are paid v. specialties? I see physicians eagerly and vocally carrying the banner for liability insurers, but where are they and their lobbying groups when it comes to themselves?

CJD you ask

“Would you oppose a truck driver being held liable for the damage caused if he ran over your wife and children because his company had a shortage of drivers and he was tired after having worked too many hours?

the analogy is not quite perfect but close, as the physician shortage has nothing to do with employers but it has to do with the demand for physician services outstripping the supply.

I do not refer to the medical cosmetic industry, (seems there is a marked trend of doc’s choosing lower liability ,higher income . less stressful cosemetic crap than ever before.)

In your truck driver analogy it would be more accurate if you stated that the employers were unable to find drivers.

Then I would say, that if the driver was transporting equipment needed to possibly save someones life, ( that must arrive in 60 minutes,) then I would be much less willing to sue the driver but to fight for fixing the sytemic ills which keep the work demands of drivers at ultra high levels.

If the driver was transporting beer and pretzels to the local convenience mart, then I would fight to keep these drivers off the road, suit or no suit. (Intersting to note that truck drivers have work hour restrictions.)

I think the physician renders services akin to transporting goods designed to save lives, rather than transporting goods to supply parties.

I you look at the ratio of college applicants to medschool, the past 15 years have seen all time lows. A “B” average will get you into most schools. Many private schools have unfilled spots as tuition costs approach the 40,000/year mark….more spots will go unfilled astuition costs rise.

We also have had an acute drop in foreign trained physicians since 9/11.

as for physicians demanding increased compensation…this is a struggle being fought on all sides and even cursory review of the AMA news highlights that national , state and local medical societies are fighting and often losing this fight.

The average medical student debt is well above the 100,000 dollar range, this certainly pushes for subspecialization.

Delayed susbespecialization is occuring at a alraming rates, ie…doctors are restricting their practices to narrower and narrower areas…not to make more money but narrow risks. An OB/GYN dropping OB stands to loose money, but the overall stress reduction is worth it.

anyway , thats the sentiment a lot of physicians have.

You can easily dismiss this as not your concern and this will lilely be an ongoing debate.

Interstestingly, as physicians try to walk away from terrible compensation schemes they are opposed by…lawyers.

Recently , I read in Florida where district attornies are investigating doctors who charge annual “concierge” fees (where the physcician charges extra money and in return promises to deliver extra ordinary care. )

Seems like the district attornies are saying this amounts to caring for those who are well to do and slighting the less fortunate and using some legal arguments that have been outlined in some of the newpapers in Florida recently.

Not to mention the legal notices sent by the large health insurance companies to physicians who charge extra monies for services. For for those physicians who do still charge extra fees, they are being dropped by the national plans…which can have practice ending implications. So on the one hand we try to free ourselves from the grip of insurance companies and find that they are pulling the strings.

Hence the drop in the academic requirements to get into med school, and hence the more likely medical mistakes will happen under complex dynamic situations, which means a good future for the med mal lawyers.

Universal health care has its proponents and detractors, that may come but probably not until 10 years. So until then field is fertile for mistakes and those who sue those for making mistakes.

CJD I commented about concierge fees in direct response to your statements about compensation schemes being the root cause of these problems

1.”But you’ve allowed your compensation scheme to be so messed up that normal laws of supply and demand no longer apply. Which is why I believe we’re headed to universal healthcare, which will render most of these debates moot.”
2. “Your compensation scheme has so severely damaged your profession that we are headed for a major shift in medicine, which effects us all, patients and physicians.”

I just resonded to your statements

sorry

CJD,

You still seem to have your blinders on again.

1.I am not a physician. I thought that I made it pretty clear that I have been on the receiving end of medical care. My educational background is in engineering and I currently work at application development. If you want to attach someone’s argument based on their job, you might want to make sure you know what they do for a living first. In fact, you might just want to drop the ad hominem aspects of your arguments. They got old a long time ago.

(To be fair, considering the way that “intellectual property” is used/abused these days probably makes people in the IT profession as hostile towards the litigation industry as doctors.)

2.You have mischaracterized my statement (right after quoting it, which is amazing to me). I did not say that it was the legal system’s job to police physicians. I said that the medical malpractice system should not be a part of the legal system. I’m saying that the medical malpractice system should be based primarily in the system that licenses and disciplines doctors (or nurses or pharmacists for that matter). I said that the primary purpose of the system should be to identify practitioners who need to be removed from practice (or retrained or whatever) and to identify systemic problems. These are goals that benefit society as a whole.

Compensating people who have been harmed is an important goal but it is a secondary one. Dealing with “bad doctors” is a more important one and one that the current legal system based malpractice system does a poor job of that.

3.You said “JK states that the defendant in a lawsuit “has been harmed”. “ Well, once again, you have mis characterized what I said in such a way to change it’s meeting. What I said is that when you sue some one who didn’t do what you are alleging, then you are harming that person.

The person will have legal bills. They will have to take time away from earning a living. The best case for them is that they eventually “win” or are dropped out of the lawsuit and are only out thousands of dollars in legal fees and lost wages. (It may be hard for you to understand, but it’s no fun to be on the other end of billable hours.)

If this isn’t harm, then why do corporations use SLAPPs to shut up their critics? (For those of you out there who are not familiar with the term, SLAPP stands for Strategic Lawsuit Against Public Participation. It is the use of litigation by a corporation, a large organization, or an individual plaintiff, to intimidate and silence a critic by burdening them with the cost of a legal defense so that they abandon their criticism. )

4.As to a standard schedule of compensation, yes I do think that it is more fair. We do this in lots of areas now. My life insurance at work pays according to as set schedule. I believe that worker’s comp is usually that way (for non-economic damages). Do you really think that it fair the little old lady gets more than the single Mom just because she could hire a more skilled layer or pulled a “better” jury.

The example you gave between the football player and the little old lady was disingenuous, because difference between the two was not in pain and suffering (Who are any of us to judge who suffered more?), but in economic damages. As I stated in my original post, economic damages, if the parties did not agree, would be an appropriate issue for the court after it had been determined that there was malpractice.

I could respond to more of CJD’s posts, but the level of sophistry is starting to raise my blood pressure. Hum, maybe I should sue CJD. :>)

JK

P.S.
DB,
Thanks for spotlight. I’ve gotten the chance to be attacted by CDJ before. I feel special. :>)

CJD,

I’ll get to your other points in a minute, but as to your statement:
“I don’t know why you feel attacked. Are you so opposed to disagreement on an issue that anytime the weaknesses in your claims are pointed out that you feel “attacked”? That would seem to require quite a sheltered life.”

You might try looking at the emoticon at the end the end of my statement. I have no idea how long you have been on the Internet, but as far back as I can remember (and that goes back to when USENET was something other than a spam delivery system), that has usually been used to indicate that a statement was meant to be taken in a light hearted fashion.

JK

CJD,
1 You said:
“The fact that you think you can equate the two speaks volumes. They are completely different and governed by completely different legal schemes, as IP litigation is wholly statutory.
You act as if it’s the lawyers’ decision to file IP suits, rather than engineers or those who run engineering entities just like yourself. “
The fact that you can’t see the parallels also speaks volumes. I won’t get into the whole “IP” debate as it is way off topic, except to say not necessarily talking about law suites coming from “engineering entities” as you call them. I am speaking of companies that collect portfolios of questionable patents, then use law suites or the threat there of to extract “licenses” fees from companies that produce useful products. But again, off topic.
And yes, I would hold the law firms/lawyers partially responsible.

2 No. I did not say that it was the job of the legal system to police doctors. You are putting your mis- interpretation of my words in my mouth. I said that the malpractice system needs to be (mostly) moved out of the legal system. Please make arguments against my case, not the one you want me to make.

3 I never said that some changes couldn’t be made in the current system. I said that moving the focus outside the legal system would allow it to concentrate on the more important aspects. However, if you want some reasons, here are a few. I don’t claim that they are exhaustive
By eliminating the need for lawyers and the costs there in, it would allow cases that would not be profitable enough for our current system to be examined and the victims compensated.
It would add transparency: No settled cases where the terms are sealed.
It would make it easier to learn from cases that would never make it into the court system, because there was no damage done.
It would move the determination of malpractice to those with the knowledge to judge it, which should lead to more accurate decisions.
I have not made the argument that this the only way to do it, just a better one. And hey, we have a federal system of government. Why not take advantage of the nature of that system and try different systems in different states?
We don’t handle all issues negligence the same way. Worker’s comp is one example.

4. I’m not really sure how you interpret this as as ad hominem, but OK. My point still stands. First insurance does not cover all costs. There are deductibles to meet and, as I understand it, this can run in to thousands of dollars when you are talking malpractice insurance. Perhaps I’m wrong here. Can anyone chime in on the size of these deductibles? The other costs of defending yourself, lost wages etc. still apply.
5. I still say the example applies. If all you had to do was pop down to the court house (or where ever the deposition was being held , etc) and speak the truth, then SLAPPS would not work.
6. My question still stands. Is it more fair to determination the value of someone’s pain and suffering by the quality of their lawyer? I don’t think that it is. Do you?

7.I have to disagree with you here. The age difference can be taken into account in a standardized schedule. Whether or not it should be and how much weight it should be given is another argument. But apart from the time that they are likely to live with the problem, I don’t think that we can judge who will suffer more. The 80 year old will probable lose what independence she has left. The young guy will loose a big part of his life, but is more likely keep his independence.

JK

CJD,

I hope you don’t mind, but I have a couple of more questions.

First, I think you said in the past that you have been involved in settling many hundreds of cases. Assuming you are, in fact, referring to malpractice cases, how do these breakdown between patients who had health insurance and those who did not? I ask this because I think you have suggested in the past that malpractice litigation would be much diminished if we had universal health insurance as in Europe and Canada. If many malpractice cases are brought by people who have insurance now, why wouldn’t they still be brought if we had universal coverage? Could it be that culturally, we are just a more litigious society, though, no I cannot prove this by citing some academic study?

I also have some trouble understanding why you insist that juries are so accurate in not only finding whether or not malpractice occurred but what the appropriate amount of damages should be. Don’t you think juries can be swayed, especially by a skillful lawyer, to award a large sum of money out of sympathy for a victim who had a bad outcome, whether due to malpractice or not?

In Philadelphia, PA, between 1999 and 2001, there were 87 malpractice verdicts of $1 million or more vs 101 in the entire state of California during the same period. Do you really think there was that much more malpractice in Philadelphia than in California than or at any other time?

You insist that the current system is fine and dandy, while I and many others believe that it is in need of at least some repair.

While many people argue that the cost of malpractice litigation, even including defensive medicine, accounts for a very small percentage of total healthcare costs, I find it fascinating that threads related to the topic on this and other blogs seem to generate the most (or at least among the most) comments and passion. Does anyone have any idea why this seems to be the case?

Good question, BC. Why does it generate the most passion from physicians? I’d guess several reasons:

1. Easy to demonize opponent in lawyers.
2. A lawsuit says you did something wrong, and no one likes to be told that.
3. Many physicians are not used to being contradicted, and certainly not by someone who is not a physician and they see it as the lawyer contradicting them.
4. Scare tactics which lead physicians to believe that they could lose everything.
5. A lack of understanding of the true nature of the risk of being sued and the potential of the outcome.

Those are my guesses based on the comments I’ve read.