Health Care Blog comments favorably on a critique of the malpractice system - QUALITY/MALPRACTICE: Change malpractice system to patient safety system, say Pfizer doc. He references an article from Health Politics - The Road from Medical Malpractice to Safety: You Can't Get There from Here. Quoting from the original article:

A head-to-head comparison tells the story. The tort system uses litigation as its lever for change. The safety movement uses quality improvement analysis. Tort law focuses on the individual. Safety focuses on the process. The tort system's punitive and adversarial style drives information down, encouraging secrecy. The safety movement uses a non-punitive and collaborative approach, which encourages openness, transparency, and continuous improvement. With tort law, exposing oneself can end one's career and harm one's mental health. In the safety movement, contributing is career-enhancing and therapeutic.

It may seem counterintuitive, but for medical malpractice to achieve its stated social purpose it must abandon the emphasis on a tort-based approach and embrace safety. Alternate dispute resolution, no-fault systems, raising fault to the institutional level, and exploring the use of medical courts all merit consideration and could begin to break the cycle of blame and provide a level of security necessary to ensure openness and transparency.

I do believe that most physicians would endorse a true safety process. The Health Care Blog finishes their rant

The AMA and the rest of organized medicine need to take the lead here, get off their high horse about the malpractice issue, and while they have a very sympathetic (i.e. Republican) Congress, develop some real bipartisan consensus on replacing the current tort system with a legally mandated patient safety system. That system will need real teeth to assure the public that it's not biased in favor of physicians and providers. And of course we need a neutral public education campaign about why such a system is required; reason number one being that most malpractice currently goes on unimpeded, and this system will stop that.

Physicians support malpractice reform - including a safety system. Do not attack physicians and Republicans here. Rather attack the Democrats and the trial lawyers who apparently have no interest in safety, rather an interest in the tort process.

Iowa governor might not sign tort reform bill

Iowa physicians cleared two of the three hurdles needed to enact a $250,000 cap on noneconomic damages awarded in medical malpractice lawsuits. But it looks as if the third obstacle -- the governor's signature -- will be a stumbling block.

After failing to pass tort reform by one vote in early April, the Iowa Senate April 12 voted 27-21 to pass a bill that would cap the amount injured patients could receive for pain and suffering. The House already had passed the measure.

At press time, it was a long shot that Iowa Gov. Tom Vilsack would sign the bill into law.

" The governor is a past president of the trial lawyers association ," said Iowa Medical Society President Tom Evans, MD. "We knew that going in, but we are hopeful it will be signed." Dr. Evans said Iowa doctors need the relief.

Hmmmm

Malpractice Legislation Remains Stuck in the Senate

Republicans say their measure could help reduce unnecessary lawsuits and higher malpractice premiums that make it harder for doctors to practice. They tried last year and again earlier this year to force votes on similar measures.

"The crisis faced by obstetricians, gynecologists and emergency and trauma care professionals illustrates the urgent need for national medical liability reforms," the White House said in a statement.

Democrats accuse Republicans of playing up to their donors in the medical and insurance lobbies and say that limiting damages is unfair to injured patients and their families.

Now this represents an interesting problem. Justices Hear Arguments About H.M.O. Malpractice Lawsuits

With the debate over patients' rights stalled in Congress, the issue moved to the Supreme Court on Tuesday in an argument about whether patients can invoke state law to sue managed-care companies for medical malpractice when treatment recommended by their doctor is withheld.

The federal law that governs the health insurance that millions of people receive through their workplace does not authorize such lawsuits. The question for the court is whether that law, the Employee Retirement Income Security Act of 1974, or Erisa, pre-empts the growing number of state laws that do.

The ability of patients to sue health maintenance organizations for damages for the denial of needed care is one of the most contentious issues in the health care debate, and this case has drawn intense interest from the industry and consumers alike.

Two managed-care companies, Aetna Health Inc. and Cigna HealthCare of Texas, are appealing a federal appellate decision that permitted patients' lawsuits to proceed under the Texas Healthcare Liability Act. President Bush was governor of Texas when the measure became law in 1997, without his signature, and he embraced the law during his last presidential campaign.

Now, however, the Bush administration is supporting the managed-care companies in arguing that the Texas law and others like it are invalid. Nine other states — Arizona, California, Georgia, Maine, New Jersey, North Carolina, Oklahoma, Washington and West Virginia — have enacted similar laws. These laws threaten to upset the "very careful balance" that Congress struck in the federal law, James A. Feldman, an assistant solicitor general, told the court.

As I consider this problem I do feel some conflict. I dislike legal solutions to these problems, but ... many managed care companies put physicians and patients into undesirable situations. While I understand the law, I disagree with the reasoning underlying the law. Thus, I must strongly disagree with the Bush administration on this issue.

Whenever I consider such a conflict, I try to consider first principles. In this case, patient care should trump everything. If that assumption is true (and I understand that some would debate that assumption), then it follows that managed care companies should not restrict necessary care.

First, I will start with an absurd hypothetical. A patient comes to the office with severe pneumonia. You calculate a pneumonia severity score - Improving Treatment Decisions for Patients with Community-Acquired Pneumonia - and determine that the patient needs hospital admission. The managed care company refuses admission and thus you try treating the patient as an outpatient. The patient dies. Who gets sued? Can the managed care company make this decision for financial reasons?

Now that example clearly rates as aburd, however, I have heard similar anecdotal stories over the years. What are the boundaries of medical decision making without liability for a managed care insurer?

I do not understand how I can be held liable for a decision for which I have incomplete responsibility. Thus, at least at the extremes, the insurer who refuses care must take some responsibility (and thus liability). I cannot understand any law which would prohibit this responsibility.

We will follow this decision with great interest.

Juan Davila, one of the two patients whose suits led to the Supreme Court case, was prescribed Vioxx by his doctor for arthritis but was required under his Aetna health plan to try two less expensive medications first. One of those drugs caused severe gastrointestinal bleeding that sent him to the emergency room.

The other patient, Ruby Calad, was hospitalized for a hysterectomy and other abdominal surgery under a Cigna HealthCare plan that authorized a one-day stay for those procedures. Though her surgeon recommended a longer stay, Cigna's hospital-discharge nurse refused to authorize it. Ms. Calad suffered complications at home and had to make an emergency return to the hospital several days later. The two cases, consolidated for the argument, are Aetna Health Inc. v. Davila, No. 02-1845, and Cigna HealthCare of Texas v. Calad, No. 03-83.

George P. Young, the patients' lawyer, said the inability of people like his clients to recover damages under federal law had necessitated the state's action. " What Texas has done is to fill a vacuum and say we are going to set out a professional medical standard of care when H.M.O.'s make medical necessity decisions," Mr. Young told the court.

He said that under the companies' position "they would be free to say we're going to use the medical-necessity standard of a witch doctor or whatever we decide it is."

What is malpractice? What are the costs of malpractice cases? Why does the legal system frustrate physicians so much?

One physician's malpractice battle: Dr. Diakos on trial

Despite the "win," Dr. Diakos said she didn't feel like celebrating. "I'm glad it's over," she said a few days after the trial. "But this was not a cost-free case for us."

The insurance company had to pay to defend the suit and Dr. Diakos lost about a week's worth of office time, using vacation days for the deposition and trial.

And she was clearly innocent.

Having been an expert witness on 2 occasions, I have chosen to no longer participate in the process. I have had colleagues who do this frequently. Being an expert witness is financially lucrative.

Because of the financial benefits we have a class of expert witnesses for hire. Reforming the "expert witness" system.

Medical malpractice civil trials often involve so-called expert witnesses in order to provide testimony on the current standards of medical practice and whether they were adhered to in a specific case or whether the actions of the physician where likely to have contributed to or directly caused injury to the patient. Such expert testimony is needed because of the insane way our justice system organizes civil trials.

=================

Therefore both the plaintiff and defendant use "expert witnesses" to provide testimony that supports one side or another and it is here where the problems start. The irony is that the same bias that the court wants to avoid in jurors by excluding peers of the same profession is accentuated in the form of expert witnesses who are paid for their testimony. This has created an entire industry of "expert witnesses for hire", many of whom have highly questionable credentials and are too willing to "stretch the truth" or even simply state their "expert opinion" without any evidence to base such an opinion.

Such testimony enables their side to win the case and this may, in turn, lead to the witness being hired for more cases by the same law firm (it is considered unethical to pay expert witnesses based on the outcome of the trial). An example of such abuse of the system involves Jetta Brown MD who was hired by trial lawyer Ramon Garcia to provide "expert testimony" in a lawsuit involving cardiothoracic surgery;

Go read his entire rant. He highlights a feature of the malpractice problem on which we rarely focus. And that feature is very important.

Texas Company Removes Web List of Malpractice Plaintiffs

Tort reform debate best served by truth

Here's another e-mail: "Peer review may be one part of the solution, but it should be serious, responsible peer review of doctors and hospitals. ... Shining the light of investigation on negligence incidents would do more to reduce medical errors, thereby reducing malpractice claims."

The Institute of Medicine and the Health and Human Services Dept. say most medical errors are not failures of physicians, but failures of the system. Even when doctors do their jobs correctly, most errors would still occur.

A better approach to fixing the problem of system errors would be to dispel the fear of physicians, hospitals and nurses that open discussion on adverse events would be discoverable in lawsuits.

That's why we support the Patient Safety and Quality Improvement Act (S 720), a proposed federal law that would allow the voluntary, confidential reporting of errors to patient safety experts. The result would be advice on how to improve the system and therefore patient safety. This system fix would be shared with all in a de-identified manner. This model works for the Aviation Safety Reporting System. It would work in the health care field, too.

The AMA also helped launch the National Patient Safety Foundation in 1996 and has supported it since with more than $6.5 million dollars. Despite our repeated public challenges to match our donations, the Assn. of Trial Lawyers of America has not contributed a dime.

If this excerpt whets your appetite, go read the entire article.

Thanks for all the comments. As I have thought through the issues, I would like to be more explicit in my dislike of the web site.

My problem relates to diagnostic test performance. Of all the people (lawyers, unethical testifying physicians, and litigious patients) that one might conceivably like to exclude from ones practice, they would all be there. However, many people on the list do not deserve the scorn that one would give to anyone on the list. Thus, the list is sensitive, but not specific.

This listing sets a danger precedent. I am against similar lists of physicians have been sued, for exactly the same reason.

If one could look at each case, and classify the lawyer, testifying physician and patient as legitimate or not, then they might have a decent argument. However, in the absence of complete information this list does not meet my fairness test.

MDs Urged to Denounce Malpractice Site

Dan Lambe, executive director of Texas Watch, said the site is attempting to scare patients.

``This type of blacklisting runs counter to the Hippocratic Oath to the ethical and moral goals and obligations of medical professionals,'' Lambe said.

Dr. John Shannon Jones, a radiologist who created the database, could not be reached by The Associated Press for comment Friday. He told The Wall Street Journal that people who sue doctors are going to find their access to health care may be limited.

``That's a harsh thing to say, but this is a war,'' said Jones, who has settled two malpractice cases.

I understand it, but I cannot support it.

In Texas, Hire a Lawyer, Forget About a Doctor?

For months, an obscure Texas company run by doctors has been operating a Web site, DoctorsKnow Us.com, that compiles and posts the names of plaintiffs, their lawyers and expert witnesses in malpractice lawsuits in Texas and beyond, regardless of the merit of the claim.

"You may use the service to assess the risk of offering your services to clients or potential clients," the Web site says.

For fees listed as low as $4.95 a month for the first 250 searches and thereafter 2 cents a search, subscribers are invited to search the database "one person at a time or monitor any sized group of individuals for litigious conduct." They can also add names to the database "from official and unofficial public records." Whether that could include a doctor's own files is not clear.

"They can sue but they can't hide," says the Web site.

So I ask, is this strategy akin doing a credit check, or is this an excuse to deny service. Some malpractice suits are legit.

I understand this strategy, but I do not think that I can personally endorse it. What do you think?

Senate Democrats Block Caps for Malpractice

For the second time in less than a year, Senate Democrats on Tuesday blocked a White House-backed effort to impose strict caps on jury awards in medical malpractice cases. But Republicans vowed to bring the issue up again later in the year.

The backers of the measure, which would curb jury awards in medical liability cases against obstetricians and gynecologists, fell 12 votes short of the 60 necessary to have the bill considered by the Senate. The final vote, 48 to 45, fell mostly along party lines; the outcome was a foregone conclusion.

"We're going to keep going until we succeed," said Senator Elizabeth Dole, Republican of North Carolina, at a news conference before the vote. Senator Bill Frist of Tennessee, the majority leader, said after the vote, "I want to keep the issue out there, because I think patients are being hurt."

You know how I feel about this issue. While caps will not solve the malpractice issue, they would help keep obstetricians practicing.

Again I will use MQ's words to stimulate a rant:

It was the role of the docs' defense team to convince the jury (and I agree here) that not providing the CT scan was appropriate care.

The defense team failed. And you blame the plaintiff's lawyer for effectively arguing his case.

If only people who feel that they've been the victims of medical errors would hire incompetent lawyers! That's the solution to the malpractice.

So MQ, you agree that the physicians made the correct decision. Then you blame the defense lawyers.

This is my problem. Malpractice cases should not be a game between competing lawyer teams. My lawyer is better than your lawyer!

As original conceived, tort cases should arrive at truth. The goal of the law (not the practice unfortunately) is to provide justice.

I, and my physician readers, are interested in justice and equity. If I commit malpractice, the patient should receive a reasonable compensation.

Where we differ, and where I differ with the trial lawyer lobby, is in the venue for achieving justice. I shudder when I think of malpractice cases as a battle of wits between lawyers. They can become battlegrounds of sophistry, hyperbole, and obfuscation.

Trial lawyers who use these techniques can become rich, and even run for President. But I contend that the public suffers from this perversion of the tort philosophy.

We need a better method for judging claims. We need a method which looks at the data dispassionately, and seeks truth. We do not have that method in 2004.

Each time I find another of these cases I become more astonished. Thanks to Overlawyered for finding them. Doctors on hook for $5M

On December 4, 1998, 11-month old Jack Sprague, while with his babysitter, suffered a subdural hematoma that has left him disabled. A Maryland jury just awarded $5 million against three doctors who saw Jack a couple of weeks earlier--the theory being that if they had performed a CT scan on the infant, the parents would have discovered the babysitter's alleged abuse earlier, preventing the injury. .... Never mind that all three doctors diagnosed the asymptomatic infant as healthy: "What harm could it have done to do a CAT scan?" a juror asked. Well, even aside from the cost, and the risk of an anesthetic on an infant, doctors warn against unnecessary CAT scans to children because of the radiation exposure. How many healthy children will end up with cancer because of defensive medicine in response to this verdict?

Just another example of the problem of our tort system. This case makes no medical sense. The lawyer's argument defies evidence based medicine (the cry that I keep getting as to the solution to the malpractice problem). I use this case to point out that many cases having nothing to do with evidence as physicians define evidence. Outrageous!!!

"His tactics in winning cases using an unreliable tool in cerebral palsy cases demonstrate once more the triumph of junk science in the courtroom, and of how unreliable the jury system is in judging malpractice cases."

If the defense (the medical community) couldn't demonstrate that Edwards' methods were "junk" (and the patients weren't ahrmed), then the victim of the alleged malpractice deserved to win. Are you insinuating that juries are too stupid to make decisions in malpractice cases? What about murder cases?

With the current error rates in treatment decisions (~45% of the time) and with the needless death of tens of thousands of Amercans per year as a result of medical errors - and only a SMALL percentage of them ever seeing a court - the idea that docs are the helpless victims in this is myopic.

I just had to copy this comment - because it defines our problem exactly! Yes, I do believe that most juries are too unsophisticated to evaluate malpractice cases. These cases are often extremely technical, and require understanding scientific evidence.

Physicians are not receiving juries of their peers. The junk science which Edwards uses would not pass muster in any scientific medical journal. We (physicians) are taught to evaluate evidence carefully. Juries have no such training. Lawyers must disregard the scientific evidence in such cases, and replace it with emotional appeals and sophistry. That is exactly what distresses me.

I cannot speak about murder trials. My impression is that trial lawyers use evidence selectively in murder trials also (e.g., the jury ignoring the DNA evidence in the OJ trial).

When a physician's career is on the line (and sometimes malpractice cases are that serious), then we need a higher standard of judging than our current system.

Most critics of physicians quote the flawed medical errors study. But even if that study were true (and I believe it greatly exaggerated), our current malpractice system does nothing to address errors. The randomness of awards and suits does not change practice for the better.

Rather we need a system that makes physicians accountable and provides fair compensation to patients. We do not need lawyers raking in a high percentage of malpractice settlements.

The commentor and I clearly have fundamental differences in how we view malpractice. I believe that a better system would reward more patients and challenge more physicians to fix our current system. The problem is that for us to really fix the current system we would need dramatic changes in reimbursement for medical care.

But then, these issues occupy a central theme of this blog almost daily. Daily readers know my positions. I am just so frustrated about the damage that malpractice attorneys do to health care that my fingers are obliged to type and type. Posted by at 12:42 PM | Comments (16) | TrackBack (0)

Letters to the Editor - Feb. 16, 2004

Drop current medical tort system in favor of arbitration boards
Recently I spent two weeks in a courtroom, and the two months prior in preparation for that appearance. Going to the courthouse every day, I was comforted, in an uncomfortable way, at the sight of other physicians. I nervously joked that it was like attending grand rounds. They, too, were there for malpractice cases.

After an emotionally arduous two weeks, the jury returned a verdict in my favor. The system seemed to work in the end, but I submit that it failed miserably for letting my case go as far as it did.

And

Absurd tort system pushes physicians to countersue

Regarding "Ob-gyn sues W.Va. trial lawyers" (AMNews, Jan. 26): While I agree that it seems reasonable to give lawyers a taste of their own medicine, unfortunately it degrades physicians by forcing us into playing their game.

However, until realistic reforms occur in this country (which take lawyers and juries out of the picture), countersuits appear to be the only way to bring attention to the absurdity of our medical tort system.

As Howard Beale said in Network - I'm mad as hell, and I'm not going to take it anymore. And that is how we physicians feel. We are tired of the absurdity of the current tort system.

Lawyers who play the liability lottery must be stopped

A small subset of the legal profession makes fortunes for themselves -- and creates costs for the rest of us -- by suing physicians. Whether it is justified or warranted is, for them, beside the point. It is an abuse of the legal system -- and it affects everyone.

This abuse is in the form of disingenuous lawsuits aimed at getting money from someone else -- instead of seeking compensation for someone with legitimate claims. Some might call it legalized extortion.

These abuses are choking the health care system. They are sending medical liability insurance premiums soaring for thousands of physicians, making it impractical, or impossible, for them to practice in many parts of the country.

These lawsuits lead to other agonies as well. For a physician, a wrongful suit can cause great harm -- embarrassment, loss of time, defense costs, injury to reputation and resulting loss of practice, stress and anxiety.

Meanwhile, cases with merit can take years to navigate an overloaded, confusing court system -- as they wait their day in court behind a traffic jam of frivolous suits -- brought by lawyers looking to win a litigation lottery -- and then taking a huge chunk of the award.

Authoritative studies have shown that awards do not correlate with negligence and noneconomic damages can't be objectively predicted. This creates an unstable environment akin to a chain reaction.

The trial lawyers who file the suits that breed this chaos operate in a system that imposes neither accountability nor restraint. The law puts up major obstacles to countersuits, and statutes that authorize sanctions for lawyers are rarely applied in medical liability cases.

More than 125,000 cases against physicians clog our nation's courts on any given day. Yet 70% of cases filed are closed with no payment -- and physicians win 80% of the cases that do go to trial.

Imagine the outcry if a physician had a record like that. As a surgeon, if 70% of the appendices I removed were normal, I would not be allowed to operate. Which is why I believe the medical community can agree that the time is right for a little peer review for the lawyers who file these worthless complaints.

We must fight back. We must oppose these lottery lawyers at every step. They are a curse to public health!

Readers know my feelings about our current tort situation. Ohio physicians are fighting fire with fire - Ohio physicians fight back: Panel documents frivolous lawsuits

Wanted: Blatant examples of frivolous medical malpractice lawsuits filed against Ohio physicians.

Reward: A chance to recover the money spent defending the lawsuit and put lawyers on notice that physicians are going to stand up to meritless suits.

"We are looking to find the most egregious cases to bring forth as test cases in the court and shed light on the issue," said Almeta E. Cooper, the Ohio State Medical Assn.'s general counsel.

OSMA hopes that its newly formed Frivolous Lawsuit Committee will give Ohio lawyers a disincentive to file baseless cases. The committee is believed to be the first of its kind formed by a state medical association.

OSMA is responding to an increasing number of physician members concerned that they are being named in "shotgun" lawsuits that include every physician listed on a chart. They also know of a few instances in which physicians were included even when their names weren't in the chart.

Frivolous suits are a common complaint among doctors nationwide. Physicians and insurers say these cases are contributing to rising medical liability insurance costs that are forcing doctors to retire early, discontinue high-risk services or move to states that have enacted tort reform.

They point out that it still costs insurance companies thousands of dollars to defend lawsuits that are eventually dismissed.

"More than the money, physicians have to shut down their offices to defend the suits, and it's an emotional strain," said Findlay, Ohio, internist William Kose, MD, who has a law degree and is serving on the Frivolous Lawsuit Committee. "Physicians take lawsuits personally. Someone is telling them they did not do their job properly."

But few physicians have challenged lawyers, and the success rate among physicians who have is small. OSMA hopes to change that.

Here is one blogging doc who is rooting for OSMA.

Edwards scares me. He scares Sydney also - Our Edwardian Healthcare System

Malpractice cases often are about the money, not justice. Read this article for some outrageous examples (I know the Bloviator will argue that the exceptions are just that - but these cases are real and do hurt physicians). - Lawyers try new tacks in malpractice suits

• Last year, an Ohio jury awarded $3.5 million to the family of a man who died of a heart attack.

  His family claimed that the physician didn't do enough to help the man lose weight and stop smoking, given that physicians now know how smoking and excess weight contribute to heart disease and given the significant advances in treatment.

• Florida resident Miriam Kamin, along with her husband and son, filed a medical malpractice claim against Baptist Hospital of Miami and several of its physicians in 2002. Instead of claiming the standard of care wasn't met, the woman argues that she should have been referred to a hospital down the street to have a low-grade pancreatic tumor removed.
• In Ohio, the basis of a case against a Dayton physician practice is that a medical test was not performed according to the standard of care. But the facts leading up to the claim offer a different twist on the law.

  The patient, John Dobran, is suing because he says he is being denied the best information possible on whether his melanoma could return. The Ohio Supreme Court is poised to decide whether he has a claim.

  When doctors discovered that a mole on Dobran's arm was malignant melanoma, Dobran decided that he wanted a sentinel lymph node biopsy. By harvesting the lymph nodes first encountered when melanoma metastasizes, doctors can determine the chances of the cancer coming back.

  The tissue had to be sent to a lab in California. But it thawed before it arrived, making it untestable, and Dobran now wants to be compensated for the emotional pain and suffering of not having those results.

These examples are (in my not so humble opinion) outrageous! We need a filter prior to jury trials - or no jury trials at all. Our system encourages lawyers to gamble on the big hit. They know that they can convince jurors, regardless of the facts. From Webster's

sophistry

n : a deliberately invalid argument displaying ingenuity in reasoning in the hope of deceiving someone [syn: sophism]

The fundamental underpinnings of our legal system have nothing to do with sophistry. Yet sophistry wins cases. We need a system that protects us against these tactics.

A vote for Edwards would be a vote against malpractice reform. A reader emailed me to comment on Medpundit's post from yesterday. I can only say - brilliant - Fortune's Son

Fixing American health care requires a basic shift in approach in the system of justice. What's needed is fundamental: deliberate standards that everyone can rely upon -- standards governing not just the amount of damages but what is good care and what is not. A growing consensus among patient safety advocates and other credible health care experts holds that a new system of medical justice is needed, including a special health court or administrative compensation scheme that could deliver deliberate, binding rulings on standards of care.

Defenders of the current system argue for juries because they are "democracy in action." But that is exactly what's wrong. Justice is supposed to be rendered by the rule of law, not a kind of running plebiscite.

William Sage, a health care expert at Columbia Law School, recently observed that it would be a shame to waste the current crisis. American health care finds itself in a "perfect storm" of needless errors, unaffordable cost increases, declining access, inadequate accountability and fearful and frustrated professionals. Millions of people are being hurt. Instead of frittering away the moment in an effort to solve one part of the problem, we should seize the crisis to do what's needed.

Now go read the entire Op-Ed from the Washington Post - Heal the Law, Then Health Care.

This Op-Ed lays out the problem and the solution beautifully. They echo my opinions.

And here is another editorial about the topic - not as complete - but the point is made - Ending legal maltreatment Posted by at 06:24 AM | Comments (6) | TrackBack (1)

He virtually defines the problem of malpractice lawyers - Edwards' persuasive powers and Junk Science Warrior.

Edwards' is smooth, ruthless and apparently unconcerned with data. He scares me. The Mr. Nice Guy routine does not ring true after reading these two entries.

I remain upset over the malpractice case which the Bloviator pointed out to me yesterday. It seems like thoughts of the malpractice problem have caused an obsession this week.

What obscenity has 11 letter?

According to Miriam Webster:

1 : a dereliction of professional duty or a failure to exercise an accepted degree of professional skill or learning by one (as a physician) rendering professional services which results in injury, loss, or damage

2 : an injurious, negligent, or improper practice : MALFEASANCE

We all abhor malpractice. We all want to improve the quality of care that patients receive.

Unfortunately, our current tort system acts against improving care.

The current system has many losers - patients, physicians, and access to care amongst others. Patient care does not improve because malpractice claims are random, unsystematic and only someimtes related to true malpractice. Even if we commit malpractice (and I will assert that this designation is a hazy one), we are unlikely to be charged, and if charged we are still likely to win our cae.

Several problems exist with our current system. The first is in defining malpractice. I see malpractice as a very complicated label. To prove that someone has committed malpractice should require an extremely high standard. The default should be innocence.

Medical care is complex. It takes 4 years of medical school and 3-6 years of residency before one is ready to start practice. We continue to learn throughout our careers.

Judging another physicians care as malpractice requires a thorough understanding of the alleged activity, taken in the context of the interaction. I have written before, and still believe, that a random jury in this country cannot (and should not) be expected to understand the medical issues involved.

We must develop a system of accountability that helps patients and fairly evaluates medical care. Such a system would require a trained panel, probably including both health care professionals and other judges (here I use the generic meaning for judge rather than the legal meaning).

True malpractice has such great complexity that we need a separate and specific system for evaluating such cases. The system should have two functions - redressing patient and improving future care.

We have neither today. The case we discussed yesterday proves the flaws in our system.

Quality care has too much importance for us to ignore. A fair impartial system, one not prone to sophistry, obfuscation and hyperbole, rather one which dispassionately examines the facts and determines fair remedies, would advance our goal of having the best possible health care system.

Our current system wastes resources and makes lawyers unncessarily wealthy. Our legal system cannot have intended to treat medical care in this way. The current process has too much potential for financial reward (for the lawyer, rarely the patient). Finally, our current system negatively impacts access to care and quality of care.

The current tort reform goals of capping penalties for pain and suffering would only represent a short term financial bandaid. Until we transform our conceptualization of malpractice we will never make progress on providing the highest quality care possible.

I cannot stop thinking about this article and my rant (see just below). We must make this story a cause celebre. Any suggestions on what we can do?

Ross the Bloviator has a post which will make anyone shudder - Medical Malpractice: Evidence of An Imperfect System

The plaintiff's attorney, in essence, wants to reward those physicians who are behind the curve of adopting widely-accepted principles, and punish those who follow the latest literature. In his closing argument, the attorney makes what can only be described as outrageous claims:

During closing arguments the plaintiff's lawyer put evidence-based medicine on trial. He threw EBM around like a dirty word....He defined EBM as a cost-saving method and stated his belief that the few lives saved were not worth the money. He urged the jury to return a verdict to teach residencies not to send any more residents on the street believing in EBM.

I'm flabbergasted by this argument. Granted, it is an effective argument for its ability to tap into the current zeitgeist about the health care system -- average folks losing their health care coverage, managed care companies taking away benefits to make more profits, and our system's tendency (Don Johnson's going to love hearing me say this) to "give the people what they want" irrespective of what the science says is appropriate. In other words, no one should stop you, members of the jury, from having Cadillac care for Hyundai prices.

On the other hand, this flys completely in the face of two central tenets of our health care system -- a desire for an informed, autonomous patient who is able to effectively manage and participate in their own care, and a desire to have our health system adopt the latest medical evidence and, by doing so, improve patient safety.

At this point (and please read Ross' entire rant), I am just as flabbergasted as he. I have argued that the current jury system cannot fairly judge most malpractice cases. This case stands as testimony to my viewpoint.

Here a jury was obviously swayed by the hyperbole, obfuscation and sophistry of an attorney. There is no verdict here based on facts.

We must fix our system. Otherwise we cannot improve medical care. This case proves (as much as any one case can prove anything) that our legal system can impede quality improvement. The medical resident and the residency practiced excellent medicine. They followed guidelines.

These cases (albeit anecdotes) have a tremendous effect on our thinking. This case is wrong, but not as wrong as the legal system which allows it!

I was rightly chastised for not explicating my position on malpractice in last night's post. When I found this link, I blogged in anger - a major mistake. This issue requires careful thought and a listing of all the problems. I made the mistake that a calculus professor might make, I went from equation A to equation F and skipped all the obvious steps in between.

The crux of Dwight Meredith's argument:

When discussing tort reform, and particularly medical malpractice reform, it is helpful to know the size of the problem. How much money is paid out each year in medical malpractice judgments and settlements? That would seem to be a basic fact that needs to be established at the beginning of a public policy debate. After all, if we do not know the size of a problem, how can we ever decide on a solution?

The tort reform lobby and the scare tactic media almost never report that basic fact. If you do not believe me, go to Google News or Google and try to find the answer.

In my post, I noted that medical malpractice payments total a little over $4.2 billion per year. As I have previously noted, the total of all sums paid out in medical malpractice settlements and judgments is approximately the same as Estee Lauder?s sales of makeup. The total of payments in 2002 would have paid interest on the national debt for about eight days.

This argument assumes that we can quantitate the cost of malpractice simply by counting pay outs. If the malpractice problem was just lost court cases and settlement, then Dwight would have a good argument.

The figure he cites greatly underestimates the costs of malpractice. As most physicians know, the vast majority of malpractice suits are won by the defendant (the physician or physicians involved). However, these cases still require significant financial resources (which the insurer pays). Even more cases are filed and withdrawn - still with significant legal costs.

Now I do not know the cost of defending a malpractice case, but these costs are not insignifcant.

The threat of malpractice permeates medical practice. It clearly influences physicians to order more expensive tests than are necessarily indicated. It can hamper the doctor patient relationship. Many physicians now fear malpractice so much that it has influenced their care.

Another issue that Dwight overlooks is the inability of physicians to pass on costs. If Chrysler loses a lawsuit, they can raise the price of cars. Physicians work in an artificial market. Our income is controlled by third party payors. We cannot successfully increase fees.

Malpractice insurance costs are rising. No one can dispute that. If it were a lucrative field, we would see more companies offering this insurance. The decrease in malpractice insurers speaks much louder than the hyperbolic quote above.

I am still angry over this issue. I hope this explication has done a better job of making my arguments. Tort reform is a complex issue. One figure of approximately $4 billion does not describe the issue. It reminds my of having a blind man describe an elephant from one touch.

One should always worry when someone uses hyperbole and obfuscation to make points. Scare Tactics Part II. The scary thing here is Dwight Meredith's post!

Pennsylvania tort crisis: Lawmakers fiddle, doctors burn

In order to attract younger physicians and keep older physicians from retiring early, physicians say Pennsylvania needs to pass a constitutional amendment that would allow noneconomic damage caps. And they say lawyer fees need to be curbed.

Not surprisingly, the Pennsylvania trial bar disagrees. Instead, it points to the cyclical nature of the insurance business, noting that insurance companies have gone through a spell during which they are receiving lower income on investments. Attorneys also say the state should focus on improving patient safety.

It's been an ongoing argument in Pennsylvania for several years now. And doctors say that as more of them leave the state, retire early or cut high-risk services, the state is growing ever closer to a meltdown.

Would you start a practice in Pennsylvania? Would you stay?

AMA vows united voice in battle for tort reform

Go over and read Rangel's take. He has been on a roll recently, and this particular rant is great. Howard Dean: compromising on tort reform? I like this line particularly:

But the rest of this statement seems as if Dr. Dean had two henchmen from the DNC looking over his shoulder making sure that he didn't stray too far from the party line. First he evokes the trial lawyer's favorite "scientific" study of all time that appeared to show that as many as 98,000 people die in US hospitals every year due to medical "errors". The problem is that the study is deeply flawed and total bullshit and most physicians know this. Or does Howard really believe that our hospitals "mass murder" almost 100,000 patients a year?

Making Malpractice Harder to Prove

Slowly and quietly, the rules regarding expert witness testimony in medical malpractice cases have been changing: a handful of states have passed legislation in the last two years that generally requires physician experts to work in the same field as a defendant doctor, while professional doctors' groups are setting up committees to review the testimony of their members.

A medical expert is indispensable to a medical malpractice case. To show negligence, the plaintiff must demonstrate that the "standard of care" has been breached by the doctor in question. And who knows more about that standard than another doctor? Without a medical expert, there is no case.

As I say repeatedly, we need a new system. The current one does not work. Comments on the article??

Robert Prather writes:

I have a question. I don't know if you read this post: Regulation Through Litigation but a friend went to a surgeon's office and the doctor won't provide service to plaintiff's attorneys or their employs. In a political / philosophical sense I agree with it since you could make a good argument that these guys have been enemies of the healthcare industry.

However, I'm wondering if it's ethical. Any thoughts?

What a great ethical dilemma! I will cheat on this one and give two answers.

For elective care, i.e., normal office consultation, physicians have no obligation to accept any patient. The physician can elect to see only private insurance, only indigent patients, or only patients who live in their town. If one assumes that the potential patient pool is large enough, then these are legitimate decisions.

Physicians can even fire patients for any variety of reasons.

Physicians should not abandon patients. Thus, if a patient has an ongoing relationship with this physician and then goes to work for the lawyer, he/she should continue the doctor patient relationship.

All discretion ends when emergencies arise. If the surgeon is on call for the emergency room, and the lawyer comes in with an emergency, then the only ethical standard that I know would require the surgeon to provide the emergency care.

There are probably more intelligent ethicists who could expand on this quick and dirty analysis.

Apparently lawyers and juries can look back in time better than physicians and hospitals can look forward. Following the standard of care?

Perhaps they should have read Malcolm Gladwell's article from the New Yorker (I have cited this article previously, but it is so good and so relevant that I provide the link once again) - Connecting the Dots The retrospectoscope always works better than any other scope. Our challenge is in learning how make better decisions prospectively. Lawsuits such as the one cited here do not help the decision making process.

Doctors hope law boosts patient care

Texas doctors hope last month's narrow passage of Proposition 12, a law that gives the state Legislature authority to cap non-economic damages, will make it easier for them to practice medicine.

Texas is one of a few states that have recently tackled soaring medical malpractice claims and the booming malpractice insurance rates that accompany them.

Other states have adopted similar laws this year, including Idaho, Oklahoma, Florida and West Virginia, following Mississippi and Nevada in 2002. President Bush is pushing Congress to pass legislation that would limit damage awards in medical malpractice lawsuits.

Texas is one of 19 states considered to be in a "full-blown" medical liability crisis by the American Medical Association. Numerous physicians in these states have retired, left high-risk practices or changed practices because they feared litigation. These states also have high malpractice insurance premiums, an increase in jury awards and settlements, and numerous lawsuits.

The Association of Trial Lawyers in America, however, says laws capping medical malpractice claims may only benefit insurance companies without driving insurance costs down. And, they say, limiting damages only punishes the most severely injured.

If indeed malpractice cases had a positive effect on medical care, then the lawyers would have a reasonable argument. However, all evidence that I have read shows that malpractice acts more like a lottery. I have argued often that malpractice awards and higher insurance rates have a negative effect on health care access. We have a laboratory now - what happens with access in Texas compared with other states which have not passed a cap on punitive damages.

Beyond the Blame: A No-Fault Approach to Malpractice

The truth, of course, is more complex. Most physicians, even those whose skills are excellent, make terrible mistakes at some point in their careers.

Most doctors are genuinely committed to their work and carry their mistakes with them, secretly, for the rest of their lives. Unfortunately, a vast majority do not tell their patients when they have made mistakes that harmed them.

It is not surprising that so many doctors who are successful and usually ethical will cover up their mistakes. And it is not surprising that many doctors, as well as patients, find the current system of accountability unworkable, especially in medical malpractice cases.

Fear of malpractice is rampant. Research studying physicians' responses to being named in malpractice suits has revealed that the experience is traumatizing for most and that 20 percent of doctors who are defendants describe the experience as the most traumatizing of their lives.

Part of the trauma is financial; doctors are personally responsible for damages beyond the amount that malpractice insurance will pay.

The trauma is also psychological, as most physicians derive much of their self-definition from their knowledge that they are good doctors. In suits, it is to the plaintiff's advantage to characterize the doctor as uncaring, negligent and unskilled. Physicians who have been trained to expect perfection from themselves usually find this battering.

This may explain why so many mistakes go unreported. In 1999, Dr. David Studdert, a Harvard researcher, published a paper in which doctors and nurses reviewed 14,700 medical charts from Utah and Colorado for evidence of negligent care.

Then Dr. Studdert and his colleagues tracked how often bad medical care resulted in malpractice suits. "Of the patients who suffered negligent injury in our study sample, 97 percent did not sue," they wrote.

The author goes on to suggest a solution.

A better plan would call for motivating physicians to report their own mistakes by offering them no-fault judgments in exchange for their disclosures. This will work as a "carrot" only if there is also a "stick" waiting for those doctors who chose to cover up their errors.

In such a system, instead of physicians' paying for malpractice insurance, the doctors and patients would pay into local injured-patient compensation funds. In this way, the burden of reimbursing injured patients would be shared, and everyone would enjoy the benefits of better care resulting from changes in the way medicine is practiced.

Physicians making serious mistakes would voluntarily report them to local commissions.

The commissions, which would consist of physicians and patients, would strive to compensate the injured patients according to guidelines established to ensure that reimbursements were uniform.

In exchange for disclosing mistakes, physicians would be granted no-fault judgments and avoid liability. If the commission agrees with the physician that harm has occurred, the patient will be compensated according to guidelines designed to ensure uniform compensation.

The compensation would be more modest than the occasional enormous judgments in the courts today, but many more patients would be compensated, because the reporting onus would be on the doctor (who is in a better position to perceive the mistake), rather than the patient.

Very interesting ideas are presented here. I am skeptical that they would work, and even more skeptical that the trial lawyers would allow such a system (which would apparently take them out of the financial loop). But I do recommend that we all consider this proposal, and perhaps even debate the ideas.

What Crisis?

But a new study by the General Accounting Office (GAO), the investigative arm of Congress, has reached a very different conclusion about the effect of rising malpractice premiums on consumers. Investigators who studied nine states found instances of localized but not widespread problems of access to health care mostly in "scattered, often rural, areas" that have long-standing problems attracting doctors.

And many of those highly publicized accounts of doctors who have retired or moved are, according to the GAO, either "not substantiated," temporary or involved only a few physicians.

Great, we will wait until we have a major crisis in health care rather than an impending crisis. The GAO both asked the wrong questions and used the wrong analytic techniques.

The AMA news also covered this story - GAO report calls liability crisis localized.

Bernie writes

The contentious and adversarial system by which we investigate, prosecute and compensate for medical errors is at the heart of our incapacity to build an effective performance and quality improvement system in this country.

Maufacturers don't seem to have any problem improving the safety and reliability of their products despite the fact they are liable to be sued over these issues. Why is it so different for medical practitioners?

Bernie, Bernie, Bernie. You still do not understand.

Manufacturers have several advantages. They can raise prices to pay for safety (or increased insurance costs). Physicians have fixed pricing (with variable expenses). Manufacturers generally control a significant portion of a market. Each physician represents a very small business. Manufacturers focus on making a specific product (or two or even 10). Physicians have patients with unknown problems coming for diagnosis and treatment. The complexity of the human body leads to a real probability of undesirable outcomes - even when we do everything right.

Medicine is complex. We can do better. We should do better. But we will only improve when the system rewards us for quality. And currently there is no clear way to measure quality consistently nor is there a way to reward quality. If a car manufacturer really has better quality - many consumers learn and preferentially buy cars from that manufacturer. The individual physician cannot expand his/her practice to accept the increased business.

There are just too many dissimilarities here to even consider this question. We are not manufacturers. We are physicians - and there lies the beauty and the problem.

Can't we all just get along? Let's talk more, litigate less

This interesting article written by two negotiation experts, tries to bring common sense to the malpractice crisis.

The irony of course is that, bottom line, most stakeholders voicing an opinion on these issues want slight variations on the same theme: high quality, cost-effective care that is accessible and affordable to all.

Getting there is the problem. We have been fighting about health care in this country for years. Might this not be the time to propose a health care cease-fire, to get the sides talking, and out of it, to find solutions reflecting what is best for and best about the country?

The matter of performance improvement provides a pragmatic illustration. Performance improvement is directly tied to adoption of a linked series of clinical protocols, behaviors, expectations and routines. Clinical decision-making must be based on evidence and sound science. Care must be measured and caregivers must be accountable for their decisions and actions. The measurement process must create information that can be used to meaningfully assess and improve the quality of care.

Problems and errors in the course of care are likely and perhaps even inevitable. Every reasonable effort should be invested to reduce their likelihood, and when they do occur, what is learned from those errors should be used to generate information, corrective actions, and changes that will decrease the likelihood of recurrence.

These activities taken together represent a simple formula that would save lives, money, and an enormous amount of distraction. And yet, adoption of such a recipe has been elusive at best. Why?

People are not talking. The mantle and impact of medical malpractice is about far more than just the verdicts and awards in the courtroom or negotiations on the courthouse steps. And it is about far more than the high costs involved in financing this expensive system.

The contentious and adversarial system by which we investigate, prosecute and compensate for medical errors is at the heart of our incapacity to build an effective performance and quality improvement system in this country. The tort system essentially creates a "wall of silence." Physicians are discouraged from discussing a medical situation openly and honestly for fear of harsh and punitive legal ramifications. As a result, the litigious nature of error identification and assessment has hindered efforts to fully disclose and translate important findings into new knowledge that can be shared, learned and adopted.