A Great American Speaks Out!

[benzocaine]

I never saw it either, Ben. Perhaps Gene is unaware of continuing education requirements that MDs, NPs, PAs have to keep their licenses.

Sorry Bill but I was being sarcastic Good point about CEU's though. From my experience though you can get a CEU at a medical conference.. not sure if a test after the classes are required for MD's. All we have to do is attend.

[Gene DeMambro]

We've talked about Six Sigma before Bill. I've even posted an example or two direct from the Six Sigma website regarding how they helped certain hospitals solve certain problems. One of the first procedures they instituted was "develop written SOP for all to follow" or some such thing. That got you jumping up and down (figuratively), lambasting "cookie cutter medicine" and how it only benefits the so-called "ambulance chasers". Which tells me you want it both ways - use Six Sigma, but really don't use the substantial parts of it that make it work. Which is it?

I'm convinced on some stuff, Bill. We ought to modify the collateral source rule, as well as eliminate joint and several liability. All states should have a tribunal system to weed out claims that should go no further, and should involve ALL who work in healthcare-not just the politically connected or the loudest. But to limit the amount of monies those injured can collect to truly make them whole again is a complete anathema.

And if over two-thirds of med-mal cases get tossed at tribunal, what is it about the rest that is causing all this fuss?

And this, as you all bitch about so-called "ambulance chasing" lawyers and all that gutteral nonsense. No doctor ever lost a malpractice case who actually didn't harm a patient. Remember that.

As for me, through some dilligence and timely opportunities, I've done all my credit requirements for the year.

And if my theory is not on target (after all, it's just a theory but probably more like a hypothesis...), then what is causing the quantifiable number of screw-ups by medical professionals, resulting in this possible crisis?

A25, which happened to be third page in on entire section devoted to "Rebuilding Iraq" and World affairs. Not front page, to be sure. After all, there are stories indiginous only the the Bay State and the Boston metro area that need coverage as well ("All politics is local"...), but certainly it was not ignored.

Amazing how threads morph!

Gene

[Bill Glasheen]

No doctor ever lost a malpractice case who actually didn't harm a patient. Remember that.

I know there are many physicians who would argue with you on this one, Gene. Remember - people (and babies) REGULARLY used to die from childbirth. Having an OB deliver the baby in a facility reduces the chance, but babies die anyway sometimes. Humans are humans, and stuff happens.

So is the answer to sue everyone you can? After all, the biggest winners are rarely the victims. The lawyers are the ones that profit the most. And worrying about blame MISSES THE POINT when it comes to improving quality. Six sigma isn't about finding bad guys. Six sigma is about finding the flaws in a PROCESS that cause human error. You need to document flaws to find ways to improve quality. And the only way that will happen in medicine is for those data to be protected from the eyes of greedy lawyers. Right now that doesn't happen, so what we have is a situation where quality doesn't improve, patients get hurt, and lawyers get rich. Not satisfactory to me!

BTW, everyone resists six sigma initiatives in the beginning. Change doesn't come easy.

- Bill

[RACastanet]

'BTW, everyone resists six sigma initiatives in the beginning. Change doesn't come easy.

- Bill'

Very true. I was a 'Change Acceleration Coach' during my last few years at GE. That required about 40 hours of training. Whenever there where pockets of resistance at GE or a client I'd go in and work the process.

The formula was simple: E = Q X A, or the Effectiveness of the new program was a product of the Quality of the program multipied by the Acceptance of the persons involved. So, the best program in the world had zero effect if no one was willing to accept change. We found that new programs or challenges need not be rocket science to work, just be accepted as necessary and reasonable.

Six Sigma required lots of coaching as it was a major process shift and not at all an easy one. Hundreds of hours of trainng was required by every salaried individual. When acceptance was lagging, getting to the green belt level became a condition of employment for salaried personel. Sometimes the 'A' part requires a bit of arm twisting. 'No' was not acceptable!

Rich

[IJ]

Whoa, hardcore stuff on here whilst I was away. On call now, but briefly:

--this is another thread
--the fact that some lawsuits were needed does not mean that all lawsuits are needed
--no, not all doctors who lose cases harmed patients
--no, not all cases of harm to patients require lawsuits, or deserve punishment or compensation
--lawsuits have not been shown to improve care
--lawsuits ARE sapping funding for quality improvement efforts
--doctors in good practice sites are working damned hard to improve care, and lawsuits are not the reason.
--lots of people practice defensive medicine who aren't idiots, thanks very much.

Hey, Gene, I asked this one before, and got no reply: I saw a show on a woman EXECUTED and DEAD who had shot someone else. Lawyer fell asleep in trial and forgot to mention the state had advised and failed to provide psych treatment for marked disinhibition from brain injury. NEVER would it occur to most people to sue this lawyer. YET, people frequently threaten to sue doctors prophylactically ("Hi, I'm Mr Jones, screw up and I'll sue") and also view bad outcomes as causes to sue, when in fact bad outcomes are part of life and part of exquisite care.

In sum, I am inclined to listen more to lectures on quality improvement from people who know how complicated working in medicine truly is.

[IJ]

Three important malpractice questions:

1) have malpractice lawsuits improved or worsened obstetric care in Florida, where OB's are generally not acceping new patients due to extremely high costs of insurance (approaching or even exceeding revenues from the covered work) forcing many women to seek their OB care from ER's--and was this situation generated by some gawdawful standard of OB care there or other forces?

2) Is the care worse in California? Because there's a cap on damages there, and it's made the state one of the healthiest in the nation as far as malpractice costs, despite large state budget problems in other arenas.

3) If a surgeon leaves a sponge or clamp in your belly or accidentally staples closed your common bile duct during a laparoscopic gallbladder surgery, or you lose your airway and die (or have other complications and die) from gastric bypass surgery, is that malpractice? As it turns out, there is a predictable rate of these complications in the best of hands. Doctors are working quite hard to reduce the rates.

For example, for lost instruments, they've started doing Xrays in the OR to detect lost items and they count all instruments--twice. Yet, still they show up in people's abdomens. When they do, there isn't a debate; fault is assumed and settlements are arranged. But frequently there isn't any fault; there's just an inherent error rate to the procedure, which has been shown to jump up when the surgery is emergent, complicated, or the person is obese. Kinda expected. Just like there's always going to be a new bulb that burns out quickly. Anesthesia has done a wonderful job of driving down rates of such errors by modifying their equipment to detect tube malfunction and to prevent delivering 0% O2, and to standardize the knobs, for example.

So how do we get these kinds of changes made? Lawyers would tell you the answer is that lawsuits will force doctors to improve. The evidence that that approach works will be cited by Gene, if it exsits. I am unaware of any. I am also entertained by the fascinating lack of imagination come lawsuit time--a nurse, a tech, a lab worker, a PA, all can make errors, but of the dozens of people involved in each patient's care, somehow it's always the physicians who get sued. Why? $.

I can tell you that berating or penalizing an individual doctor for leaving a sponge in a patient isn't helpful. That doctor wasn't being careless or a heel. It'd be a lot like suing an airtraffic controller for failing to prevent a crash, when they only had binoculars. The problem is in the system, not in the individual, most of the time.

And the more we spend on lawsuits the less we spend on better systems or research. It's worth pointing out that medicine is generally a nonprofit industry. My hospital isn't there to make $. (why do malpractice driven law firms exist?) Like most, its a charity. There isn't a fund of cash that's going to my CEO's lexus that this lawsuit $ comes from. It comes from general operating expenses, basically. In the last two years my hospital has:

--created a computer order entry system which is the best I am aware of
--revamped its monitoring so someone is always watching the monitors and responding quickly to alarms; plus we've modified indications for monitoring so that only people who need it get it so the number of false alarms drops and people don't get numb to the alarms
--changed many pieces of equipment to make them safer
--instituted evidence based sepsis and diabetes and other condition managment systems so that indicated therapies are rapidly and precisely given
--instituted 24-7 intensivist staffing to the ICUs
--created a procedure service so all procedures are more safely done
--changed resident work hours to reduce fatigue
--ramped up cross coverage schemes for night care
--reviewd the indictions for every blood transfusion to check them against national standards
--etc etc

Want to guess why? Because they want to do a good job. This is not lawsuit driven. This is physician driven. There are many areas for improvement and certainly I personally would be hyperaware of everything doctors did to me or relatives should I or they be hospitalized--making sure everything was done right, hands were washed each time i was touched, etc. But I'd much rather have the hospital spend its pool of cash on quality improvement than on malpractice insurance which far too often goes to settlements for bad outcomes and expected complications rather than for true errors. That would be money better spent.

And it would also be more pleasant to work knowing that doing my best and doing a great job--but being fallible--does not constitute a reason to be sued. I could have made a lot more money in business, sooner, and with less work, and less stress. But I've never heard of an advertising company getting sued for a failed ad campagin. Did that "new coke" guy get sued? Do lawyers who lose cases get sued? Do politicians who fail to best serve their state or protect our health thru environmental laws and health and job safety spending get sued? What's with the obsession with suing the doctors?

Gene, there are certainly killer doctors out there--people with substance abuse problems (just like everyone else), or impaired by psychiatric problems (just like everyone else) or who just ******. One was detailed in Gawande's recent "Complications" (notes on surgery, from a brigham doctor). They're in the recent reader's digest the RNs have laying out. And there's a great discussion in Bob Wachter's (hospitalist medicine pioneer) recent book on hospital safety. These people need to be kept away from situations that put patients at harm. It's worth noting that 5% of them accounted for 54% of suits. One, in the reader's digest article, had been sued 70+ times, and settled >13 million in fees. One wonders, however, why none of those lawsuits actually kept him out of the operating room. Only a state medical board did that (too late!), eventually proving my point that lawsuits didn't prevent him from injuring anyone.

[Gene DeMambro]

--the fact that some lawsuits were needed does not mean that all lawsuits are needed

And the ones that aren't needed get kicked at tribunal or are dismissed.

--no, not all doctors who lose cases harmed patients

Then, by defininion, they wouldn't have lost. Find me a single case, anywhere, where a doctor lost who didn't cause harm.

"I know there are many physicians who would argue with you on this one, Gene."

And for every physician who would argue, there is also a tribunal, a trial judge, a jury, and probably an appelate court and maybe even a state supreme court that would argue with said physicians.

--no, not all cases of harm to patients require lawsuits, or deserve punishment or compensation

And those that don't deserve punishment or compensation are kicked at tribunal, or at summary judgment, or at trial.

--lawsuits have not been shown to improve care

Which may be an issue, but a lawsuit primarily is to make someone whole. And tell me that care isn't improved as a result of patient protections such as informed consent (brought about by lawsuits) or the right to refuse medical treatment (brought about by a lawsuit), or any number of other patient protections brought about by lawsuits.

--doctors in good practice sites are working damned hard to improve care, and lawsuits are not the reason.

And they ought be praised, big time.

--lots of people practice defensive medicine who aren't idiots, thanks very much.

There's just no need for it. Do what we are all supposed to, and we're covered. I'd like examples otherwise.

"The problem is in the system, not in the individual, most of the time."
Then fix the system. I'm in. What else do you want me to tell you?

5% of doctors causing 54% or malpractice cases? Well, perhaps another issue is what the hell the Board of Medicine is doing. Maybe they are protecting doctors? Who knows...

Rich,

What happens when Six Sigma is institued, and people exclaim that it can't work in MY field because it's too "restrictive" and I need "flexibilty"?

Gene

[Bill Glasheen]

Interesting debate. This is exactly what I would have hoped for - experts in the field joining in.

My comments...

--the fact that some lawsuits were needed does not mean that all lawsuits are needed

And the ones that aren't needed get kicked at tribunal or are dismissed.

--no, not all doctors who lose cases harmed patients

Then, by defininion, they wouldn't have lost. Find me a single case, anywhere, where a doctor lost who didn't cause harm.

Gene, you baffle me. You place so much faith in a flawed system.

Answer this, Gene. How come the lab tech never gets sued? Etc., etc. The answer is "Sutton's Law." When asked once why he robbed banks, Willie Sutton said "It's where the money is."

It ain't about the harm; it's about the money.

Whether or not a patient was harmed is beside the point. The goal is to minimize the risk of harm, and not to make the malpractice driven lawfirms richer. (BTW, it is absolutely impossible to eliminate the risk of harm)

Before you continue on your argument that lawsuits improve the practice of care, please read the six sigma book I suggested. It's an easy read; you should be able to do it in an afternoon. No math or statistics presented. Just a conversation between a guy who ran a burger chain and another who ran a pizza chain. Ian and I are using six sigma language and analogies, and you aren't getting it. He's saying system; I'm saying process.

Using your analogy, I could argue that horses get us to work faster than walking. If government were full of horse owners (like it is full of lawyers), we might find that we'd still have to go out in the barn every morning and shovel $hit before riding to work on horseback in the rain. With the lawsuit argument, it's just a different kind of $hit, and an equally relatively inefficient method to serve a basic need.

Ian and I are telling you the same thing. People make mistakes. All the lawsuits in the world will not make them infallible. That's doesn't make them negligent.

a lawsuit primarily is to make someone whole

Binding arbitration would be cheaper. But don't expect lawyers in politics to advance that notion.

And as for making someone whole, well...WHY??? What's with the victim mentality in this country? Why must the physicians bear all the risks, and the patients receive all the benefits? That's just plain not fair, Gene.

Life is full of risks. I reject the notion that we need to find means for compensation whenever bad things happen.

Bad things do happen. People lose their jobs because change happens. Lightning strikes and burns homes down. People are born with birth defects, or risks of contracting illnesses and getting into accidents.

Patients get sick and die. Patients die because of medical procedures, drugs, care, and absence of care. In my book, informed consent and adherance to standard of care is the best we can ask of hard working physicians. Asking them to compensate patients when outcomes turn sour is unjust.

--lots of people practice defensive medicine who aren't idiots, thanks very much.

There's just no need for it. Do what we are all supposed to, and we're covered. I'd like examples otherwise.

Contrary to what folks believe, there is no perfect diagnostic test. Every test has a known false positive and false negative rate. Consequently, a physician is never 100% certain a person has a particular disease, or has ONLY that disease. You can get close enough in most cases, but in many cases you can't. At what point is enough enough? Right now if I were an MD, I'd err on the obscene side of too much testing to cover my butt when the lawsuit comes after a bad outcome.

And bad outcomes happen. No procedure is 100% effective. No drug is 100% effective. There is a known complication rate for most of them, and even a known death rate for some.

A physician is occasionally in a "Sophie choice" with some patients. Patients can present with numerous issues, and the physician is often only reasonably sure of what those issues really are. It's always an educated guess. Even the best of computer models aren't perfect. That's why we have things like C statistics.

By the way, there's some compelling research done that shows that a major driver of malpractice lawsuits is bad bedside manner. Hell, there are a LOT of people in this world that I might like to ding because they are a$$holes. Why physicians? Once again, it's Sutton's law. Medicine is in the middle of the flow of a lot of money. Doctor's just happen to be a weak link where lawyers can tap into the money flow. They've tried going after HMOs, but so far the government won't budge. Consequently the HMOs are one of the few who can play "bad cop" in the medical system. Doctors must play good cop - hence the defensive medicine.

5% of doctors causing 54% or malpractice cases? Well, perhaps another issue is what the hell the Board of Medicine is doing. Maybe they are protecting doctors? Who knows...

Maybe they are. Maybe they NEED to. Send the dogs out, and don't expect cooperation or civility. It's human nature.

And speaking of facts of nature, did you know that I could have quoted Ian's statistic without knowing anything about medicine? What he said follows what is commonly referred to as Pareito's law or the Pareito principle. You've probably heard of it by the "80/20" rule. Here's how the curve goes.

Top 1% account for a quarter of all events.
Top 2% account for a third of all events.
Top 5% account for a half of all events.
Top 20% account for 80% of all events.

I have shown this to be true with real medical data. It is a reason why I developed a predictive model to identify who would be in the top 1% of costs next year. It's a great way to do more with less in the care management arena.

No matter what you do, Gene, that law will always be in effect. It's human nature. It's nature - period.

The best way to attack it is to shift the curve, and not assume you can violate the laws of nature. The best way to shift the curve is to create a free flow of information on defects so process improvement can take place, and not make those defect data never come to fruition because it's food for the lawyers.

- Bill

[RACastanet]

'Rich,

What happens when Six Sigma is institued, and people exclaim that it can't work in MY field because it's too "restrictive" and I need "flexibilty"?

Gene'

This was a challenge at GE. Six Sigma was pioneered by Motorola, Allied Signal (now Honeywell) and a few other companies for use in a manufacturing process. GE's chairman, Jack Welch' recognized the value of the process, adopted it for GE, and said we need to drive Six Sigma quality at all levels and functions in the company... manufacturing, finance, engineering, sales, marketing, transportation, retail etc.

Many said Jack was nuts! Many grudgingly pretented to get excited. Some jumped right in (me)! Whatever the initial feelings, the company was commited from the top down and created the tools that would allow the use of Six Sigma processes in all functions. And it worked. GE did not create the process, but had its own licensed and copyrighted version.

Not all processes can be Six Sigmatized however. First, You needed to be able to measure all operations and outcomes. If you cannot measure it, you cannot control it, and therefore are wasting your time. Also, if you could measure it, but the actual process was so small or specialized, statistical methods were not reliable. The rule we had was if you cannot capture and measure at least 20 data points, it was not a good Six Sigma project. Some things you left alone or utilized other tools on, such as 'Lean Manufacturing'.

So, look at dispensing pharmaceutacals as an example. There are likley some drugs that do not get used 20 times in a year. However, all drugs are still prescribed in the same manner. So, look at the common elements of how any and all drugs are prescribed. Count the total number of actions (which are all possible opportunities for errors) and see where the problems are. Once you identify the problems you create a fix, measure after the fix, and if the change improved the process, put in controls to moniter the process to keep the problems from creeping back in.

If you had enough data points, you could in fact predict when and where the errors would likely occur. Then you could monitor those areas more closely.

Rich

[IJ]

Perhaps one of the reasons we MDs get sued, besides the fact that we are insured, and deal in a risky business, is that many or most of us are happy to admit how many mistakes we make. We work in a system which makes it extremely easy to make mistakes. In a days work, I might write dozens and dozens of orders on 15-20 patients, all of whom have compicated medical conditions requiring a lot of time to review, all of whom may have adverse reactions to what I prescribe or do. Meanwhile, the "right" thing is frequently debatable in the best of circumstances. Even in a generic situation, experts argue over how much, what, how long, how often... and each patient is different from the average patient in the clinical trial that established that x and y work for condition z, so x and y may not work as well in that patient. And there is no system telling me the results of all the clinical trials that apply to each patient. I have been studying often l hours a day in addition to my work trying to learn and keep up with this--and I'm not even in "school!" Toss in pretty heavy human emotions, patient noncompliance and educational levels and resources, and its pretty complicated.

Meanwhile, at the computer chip factory, your job is to operate the machine that does the same thing a million times in a row. Well, no surprise the error rate is lower.

In contrast, Gene is sure that his system is flawless. Every MD whos settled a case IS guilty of harming a patient OTHERWISE they wouldn't have lost!! Well, there's a rock solid case for the death penalty. Without errors, we don't have to worry about false conviction.

Another charming assumption is that all harm caused by MD's deserves punishment. Actually, even if every case won (or settled case, or BROUGHT case, which waste a lot of time and money) involved harm, that doesn't mean justice was done. Here's some cases since you asked:

A doctor prescribes blood thinners: aspirin, clopidogrel, heparin AND a powerful platelet inhibitor integrilin. FOUR blood thinners in one patient, who becomes unconscious, and is found to have an enormous bleed in her head. Well, all those therapies were indicated for her heart attack (on the basis of sound controlled trials). MD was sued nonetheless. If he hadn't used the integrilin, he could have been sued for improper treatment of the heart attack, right? In both cases, harm was done.

A doctor gives a patient a gastric bypass. Guy wakes up violent, and 6 orderlies are trying to restrain him; if he pulls the breathing tube, the airway might be lost, but trying to sedate the 450# guy is also hazardous to him and to staff. They note he meets all criteria for breathing tube removal and decide to pull it--a sound but snap decision made in a crisis. He takes a few breaths, then stops breathing. Despite every preparation for such an event (a team immediatwely ready and armed with the right equipment) he dies. Harm was done, best possible care was given--and the family sues.

These are real if simplified cases; I am not aware of the outcome in each, but trust me I could find a few physicians willing to testify something wrong was done--and I vehemently disagree with them.

Or take the ones I already mentioned: common bile duct stapling or lost sponge or clamp. Despite best efforts these things occur in surgery and lead to cases being settled. The event is presumed proof of guilt. But what if every step was taken to prevent this and it just happened? People get sick and die despite our best efforts, just like people fail in every other human endeavor (I should note that we are destined to "fail" eventually since mortality remains 1/person despite western medicine's best efforts) but we seem uniquely predisposed to getting sued for sometimes providing flawless care and sometimes for making human mistakes.

Definitely there should be systems to remove dangerous doctors sooner. It so happens that 1) medical culture and 2) a litigious society are current roadblocks to this happening. If we did a trial of an intervention (lawsuits) for getting something improved (dangerous docs out) and looked at the results (doc settles 13 million in cases prior to losing license) we'd conclude that current malpractice law doesn't work and it wouldn't be covered under our hospital's formulary.

Maybe it's naiive, but I'd like to see doctors and patients contract thusly: "I will do everything in my power to provide safe and effective and humane medical care to you, while keeping you informed as to treatment choices, limitations, risks and adverse outcomes as you would like to be.

In return, you acknowledge that medicine and those that practice it are imperfect, and that a good outcome cannot be guaranteed, and agree not to sue for punitive damages, and to obtain separate insurance for possible disability, reserving lawsuits for cases in which the doctor was not acting in good faith or was clearly and objectively impaired. You agree to make your medical care your own priority and to take responsibility for following or carefully declining recommendations.

In turn, we will look at bad outcomes and invest 100% of the savings from malpractice insuance in making your care as good as it can be. We believe this is the best way to provide you the kind of care we would want to receive ourselves, and to prove it, we will seek care in the same system without any special treatment and abide as patients by the same agreement you do."

[Gene DeMambro]

In some cases, lawsuits improve care by forcing changes. Doctors were forced to involve patients in their treatment decisions via lawsuits. Doctors were forced to allow patients to refuse medical treatment, even for an irrational reason via a lawsuit. And I'm still waiting for someone to explain to me otherwise. Those cases aside....

In some case, improving care is irrelevent to the purpose of the lawsuit. Too late for the maimed or dead as a result of an inexcusable medical error. What do we say to the family of a malpractice victim? "So sorry, but we're going to use the information from his death to help improve things" doesn't cut it in my book.

Find a way to properly compensate victims of malpractice AND improve care and I'm in, big time. How many times do you want me to write it?

Who says the lab tech never gets sued? I good lawyer would be able to find out everything about a person's care, and be able to pinpoint where, if anywhere, something got screwed up - lab techs included. And before some continue to bitch about "ambulance chasers", ask the typical "ambulance chaser" who many potential clients he/she turns away, saying "No case here. The doctor did nothing wrong".

"Whether or not a patient was harmed is beside the point."

It isn't to the person whose wrong leg or arm was amputated, or was grossly misdiagnosed. "We'll do better next time" doesn't cut it for them.

"Before you continue on your argument that lawsuits improve the practice of care"

See above. And remember that it was you Bill who exclaimed that Six Sigma results in "cookie cutter" medicine that the malpractice lawyers just love.

"What's with the victim mentality in this country?"

Because if you suffer harm that is not due to your fault, but mostly as the result of someone elses fault, shouldn't you deserve to at least be fairly compensated for that? And physicians don't bear all the risks. Look at joint and several liability, Bill. Look at how the tribunal laws are written in those states that have them, Bill. Look and see which professions are included - and which ones aren't. And maybe physicians do bear increased risk compared to others. Well, that comes with being physicians, with all the power and authority that goes with it. And everyone needs reminding that if there is just an unfortunate bad outcome, then no malpractice exists.

But apparently Bill thinks it's okay to hurt someone and get away with it.

"Life is full of risks. I reject the notion that we need to find means for compensation whenever bad things happen."

If it's an unfortunate bad outcome, you're right - and I've always said as much. But whenever bad things happen as a result of an inexcusable error by someone else, then those harmed deserve, as a matter of simple justice, to be compensated - no matter how small or large justice dictates.

"Maybe they are. Maybe they NEED to. Send the dogs out, and don't expect cooperation or civility. It's human nature."

So we can bitch all we want about lawyers supposedly not suing other lawyers for legal malpractice, but it's okay for doctors to do nothing about other bad doctors?

Ian, by all means I'd be keenly interested in exploring the ultimate disposition of the cases you cited when they become known. Please do keep us informed. Do they have case cites if we want to research them ourselves?

And Bill, What exactly aren't I getting? I'm all for improving processes. I'm all for every health care facility, no matter it's practice or nature - be it a large hospital or a doctor's office or MRI center or the corner drug store - be equiped with the statest of the art equipment, systems, training and staff. Healthcare economics today may not allow this, with Medicare and Medicaid chiseling down their payments and private insurance companies as well. And I didn't get your horse$hit analogy. But if it's just another way to zing lawyers, I'm wholly uninterested. Tell Al Kunian or Mario Rizzo they are full of horse $hit then I'll perk up a bit. But your're getting no where with me by continuing to insult layers, just because they're lawyers.

"Another charming assumption is that all harm caused by MD's deserves punishment."

Harm caused by MD negligence does deserve punishment. But harm caused by MD's that is the result of an unfortunate bad outcome where there isn't negligence probably doesn't deserve punishment - and I've always said as much.

And Ian, please don't use the "Every MD whos settled a case IS guilty of harming a patient OTHERWISE they wouldn't have lost" canard. It was you who brought up the case of the doctor settling 13 million in lawsuits as evidence of a pretty bad seed. And I'm also opposed to the death penalty, now that you mention it....

I've never said the system is perfect, or that it doesn't need reform. But we can't reform it so that people who legitimately deserve compensation - dictated by simple principles of justice - are screwed out of what they deserve. I keep getting the feeling that those who want malpractice reform want to act with impunity. This is what baffles me.

Do I want a better process? You bet. This past evening, I had to deal with an illegible prescription written by a doctor who has left for the weekend. But I dare anyone to tell me that illegible handwriting on prescriptions is just part of "people making mistakes", but that it "doesn't make [the prescriber] negligent". On the other hand, prescriptions from most of the teaching hospitals in town are computer generated and neatly typed - no legibility issues there.

Gene

[Bill Glasheen]

Find a way to properly compensate victims of malpractice AND improve care and I'm in, big time. How many times do you want me to write it?

How about this?

THE FIRST THING WE DO, LET'S KILL ALL THE LAWYERS

- William Shakespeare

Lawsuits aren't the answer.

I mentioned binding arbitration, but you didn't comment.

I suggested you read a book on six sigma to understand where we were coming from by addressing process rather than individual fault, but you haven't yet told me you've read it.

And remember that it was you Bill who exclaimed that Six Sigma results in "cookie cutter" medicine that the malpractice lawyers just love.

This was taken out of context, Gene. My point is that you can do all the right things to improve care, and the problem (yes, PROBLEM) of the parasite litigation in medicine and healthcare still exists. In fact when you get the improved care but more readily available information, you get more lawsuits. What does that tell you about the merit of litigation?

At the end of the day, I still have to pay more for healthcare because the malpractice insurance premiums of my doctors are too high. Why? Because this same oversupply of lawyers in search of cash will look to guidelines and process, and attempt to sue doctors whenever things go wrong and they did not follow process. Guidelines were meant to be guideposts, and not hitching posts. Each patient is unique, and sometimes care means stepping outside the boundaries of treating a single disease because the patient is complex.

Oversupply of lawyers is a problem. Fix it. Without addressing that, you still have a problem.

You might like to read some of the classic work by Wennberg on supply-induced demand. It is meant to imply that more unneccesary procedures will be done when you have too many proceduralists, but it applys aptly to the serious litigation problem we have today.

One thing is clear to me, Gene. When I read how many times you use the term "fault" in your posts, it's clear we have philosophical differences. I believe the "fault" mentality is a disease in the United States - especially when it means looking for money. The disease makes lawyers who don't produce anything richer. The disease makes the job of people who DO produce something useful in this society (a service or a product) more difficult. And the victims quite often rarely see a substantial amount of money. And they are never made whole by money. And the quality problems often are never fixed.

This is a philosophical chasm that will likely never be bridged.

And contrary to what you are trying to tell us again and again with your anecdotes, Gene, the disease is an inefficient, harmful, and quite often counterproductive means to produce improved quality. It most cases, the quality mantra is merely an excuse to rob industry.

Read about six sigma, and then you may continue to disagree if you wish.

- Bill

[IJ]

Re: waiting for someone to dispute that a few lawsuits brought about revolutions in patient rights, no one is going to dispte the facts. Case law has also given us the right to forcibly sterilize people we didn't like, if I recall. So? As it stands doctoring is quite heavily policed by ethicists and institutional review committes, and we spend tons more time wringing our hands and holding meetings about how we can better serve and accomodate people from all cultures with all conditions than any like industry I can think of. Doctors used to dictate everything; that doesn't mean we need a million bucks for everyone who's had a sponge left in their belly at surgery. It doesn't follow, even remotely. One is about authority, the other is about error.

"So sorry, but we're going to use the information from his death to help improve things." Actually, that's what the lawyer told the family of the woman who was executed when he screwed up (and see below). No one thought to sue him. On the other hand, LOTS of people get automatically litigious when death naturally and unavoidably nears despite optimal care. I just don't understand the value of punitive damages--provided the charitable institution, and the people involved, doctor and otherwise, were doing their best. Somehow doctors are uniquely singled out in this "someone must pay!" culture.

"And everyone needs reminding that if there is just an unfortunate bad outcome, then no malpractice exists." You should remind the lawyers! Were you napping when I explained that in cases like the cholecystectomy and the lost sponge, fault is assumed and damages are paid, even if only state of the art systems and well intentioned and qualified people working their hardest are involved. There's a mistaken perception that in western medicine, you either get a great outcome or a settlement. On what is that mistaken perception based? I think it's eloquently stated by Gene, who implies mens rea in every case of bad outcome or human error: "But apparently Bill thinks it's okay to hurt someone and get away with it." Jesus H, Gene--have you pooled me here with muggers and assassins? People are mad at the system, and they want to be paid for being mad.

When one of my peers was faced with a difficult decision (was confusion in an elderly woman the result of alcohol withdrawal (improved by valium) or some other causes (worsened by same), he made a choice, and there was a bad outcome. He didn't speed away in a waiting car wearing a stocking on his head; he presented the case to 100 peers at conference and everyone talked about how we can improve care in the future. The result brought him to tears, he still has bad dreams about it, he's apologized to the family. These aren't the kind of people who broke someone's jaw for kicks and ought to pay restitution (although the thugs in that UVA event paid 3k, far less than this well intentioned, well trained doctor might have paid out for doing his best.)

Re: who's sued--never heard of a lab tech getting sued. Maybe you meant the lawyer went after the HOSPITAL where that lab tech worked. Re the cases I cited, the doctors involved lost, because of the time and stress wasted over the cases. I don't know if the CASES were lost--we don't tend to trade case numbers and pry into such details, we just think about how it could happen to any of us.

"I'm all for improving processes." Swell, maybe with tort reform we'd have more resources for that--until then, the lack of resources for improvements might justify lawsuits.

"But harm caused by MD's that is the result of an unfortunate bad outcome where there isn't negligence probably doesn't deserve punishment." Swell, so you clearly WOULD punish doctors who are human and make mistakes despite best intentions, and you evidently sometimes would punish doctors who aren't even negligent nafter all. Wow. I mean, WOW.

Gene, lots of times cases are settled when they could be won by doctors because fighting them is costlier. Sad but true. Deal with it. Insurers want to make money, and when two women in a low speed fender bender with a friend of mine suddenly developed back pain without exam or test findings on the LAST possible day to submit a claim, insurance didn't fight. Would have cost more than paying up. Thank god a lawyer stepped in!

"...those who want malpractice reform want to act with impunity. This is what baffles me." I'm baffled too, since many to most people who want reform aren't doctors and CAN'T treat--with or without impunity. Maybe they want lower premiums.

Here's more on why you're baffled--a real case.

Patient X is an elderly man with a bad heart, prone to life threatening irregular beats. These recur, and each is an emergency, and an expert advises the next episode be treated with an unfamiliar medicine called procainamide which has dangerous side effects but is his only chance. The beats recur, the doctors race in, the patient is getting sicker by the moment. They take the vial of proc, which one reads as "X mg" and administer it as he needs X amount. The man continues to worsen, then dies. After, they notice the bottle actually said "X mg/ml" and they gave him 10 times the right dose. They are mortified at their error.

I asked my law student housemate what should be done. She said without hesitatation, "Sue him for everything he's worth." Direct quote. We discussed the case at conference and someone asked what the family said when they learned of the death, and the error. The physicians at fault said it was extremely difficult to say, but ultimately took a huge weight off their consciences. They explained the death, and the error, and that there may be a connection (he could likely have died anyway, or within days). The family was deeply saddened, accepted an apology, and thanked the doctors for doing their best. The doctors replied by explaining what steps they were taking to improve the safety of medication administration in such situations.

And that is the canyon between your approach to human error and ours.

[Gene DeMambro]

I'll make a deal with you, Bill. I'll read up more on Six Sigma and Wennberg IF you read up on malpractice law - find scholarly works on the subject, complete with seminal cases and statistics on the issue. Do we have a deal? But if you're still going to bash lawyers, and use that as your primary reason d'entendre for malpractice reform you're never going to convince me of much of anything.

In 1986, Masaschusetts gave doctors much of what they wanted in malpractice reform. We gave them a tribunal. We required bonds if the plaintiff wanted to continue pushing a tribunal-rejected case. We gave them hard caps on lawyers contingency fees. We gave them soft caps on monetary damages. We gave them tighter restrictions on expert witnesses. We gave non-profit hospitals charitable immunity. The US Supreme Court has even issued rulings on how much punitive damages can be in relation to compensatory damages....and malpractice premiums still went through the roof. So either something is still wrong with the malpractice system (maybe - like joint and several liability and collateral sources) or there is something else, completely unrelated to malpractice jurisprudence.

"The doctors replied by explaining what steps they were taking to improve the safety of medication administration in such situations."

Let's say the family did sue the doctors. Would the doctors NOT take steps to improve the safety of medication administration in such situations in that instance? I keep hearing that medical malpractice litigation and quality system improvements are mutually exclusive. I maintain they don't have to be.

"There's a mistaken perception that in western medicine, you either get a great outcome or a settlement."

This mistaken impression is a mistaken impression. Talk to any malpractice lawyer. Find out how many cases he/she turns away every year, telling the potential client, "There's no case here. The doctor did nothing wrong". And two-thirds of all cases filed get rejected at tribunal anyway. So only 1/3 of cases filed are causing the problem. What is it about those 1/3 cases?

Our napping lawyer? Yes, if it can be proven that his napping and inattention to the case resulted in malpractice and an avoidable bad outcome for the condemned, maybe he ought be sued and go into another line of work....

Forced sterilization? An entirely regrettable American experience. Forced sterilization laws are still on the books, seldom (if ever) used nowadays and are subject to procedural and substantive due process as well as judicial review.

Gene

[IJ]

1) So the malpractice lawyers turn away most cases, then 2/3 of what is left over are rejected at tribunal. This means that:

--lots and lots of people in this country have the perception that they deserve a big cash settlement when they don't, just like I said.

--lawyers are wrong about meritorious cases 2/3 of the time. If they were dealing with matters of life and death, they'd be getting sued left and right. However, their errors don't involve health, and the culture is that lawyers sue and don't get sued. That's lucky. Perhaps those (plus profit) are reasons why (correct me if I'm wrong here and lawyers spend tons of uncompensated time trying to reduce their 2/3 error rate) the MD quality improvement ethic and movement is far more actice than the legal one.

2) "I keep hearing that medical malpractice litigation and quality system improvements are mutually exclusive." No, you were hearing that cash spent on punishing doctors doesn't go to quality improvement where it might help. There needs to be a continuing QI revolution in medicine. I agree that compensation is due people who were wronged--and I don't think the patient who died after procainamide was wronged... but I think the adversarial model that lawyers embrace is NOT the best way to improve medicine.

3) "Yes, if it can be proven that his napping and inattention to the case resulted in malpractice and an avoidable bad outcome for the condemned."
Oh lordy. Tell me that a anesthesiologist who fell asleep during a life or death surgery in which the doctor failed to administer a key drug (key evidence) and the patient died wouldn't be found liable.... "If." When is falling asleep at trial and forgetting to do your job NOT malpractice? On the other hand, you still haven't commented on whether a hospital and surgeon, doing an operation with an unavoidable (with best practice and best attention) complication rate (lost clamp) should still be sued. As I mentioned these aren't even cases that are disputed. And I would not define best practice and best efforts--best personal and systems approaches--as "malpractice," but sued they are.