A Great American Speaks Out!

[Gene DeMambro]

"and I don't think the patient who died after procainamide was wronged... "

I don't know, Ian. Most folks learned how to do mathematics with fractions in high school, and sometimes even before....

The answer to any posible malpractice situation - whether real or hypothetical - is the standards by which malpractice cases are proven. Remember those? Duty, Breach of duty, Causation and Damages? Prove all four, with expert testimony, and we've got ouselves a successful plaintiff's malpractice suit. If any one of these are missing, the case gets tossed into the can.

Now, here it comes. Does a surgeon have a duty to remove all the surgical sponges and instruments from a patient before zipping him back to one piece? Does a cardiologist have a duty to NOT administer (either on purpose or by accident) a toxic dose of procainamide? Did our doctors cited breech their duties? Did their patients suffer harm as a result, and was that harm the result of their dereliction?

I have no specific knowledge of our napping lawyer, which is why I answered in the hypothetical "if".

Perhaps you can ask hospital legal as to why they settled their cases. They would be better able to answer than me. I have my opinions, however, which I'm not going to share.

Gene

[Bill Glasheen]

Gene

I deal with malpractice as part of my work on a semi-regular basis.

As for bashing lawyers, well it was a tongue-in-cheek remark about Clinton that ended up causing this thread to be hijacked. I wasn't being all that serious at the moment. I am however serious about my disdain for malpractice and personal injury lawsuits - particularly where punitive damages are involved.

- Bill

[IJ]

"Most folks learned how to do mathematics with fractions in high school, and sometimes even before..."

And most people don't have to do split second calculations with someone's life on the line, which gives them the ability to sit back and make snooty comments about other people's math skills. The point was that humans make mistakes under pressure. This is why when I think of friendly fire incidents, I don't feel like condeming the firing soldiers--rather I think about what an awful situation they must have been in, how awful they must feel about the bad outcome, and how systems could be changed to reduce the risk in the future. Others may feel like suing them, however.

"Does a surgeon have a duty to remove all the surgical sponges and instruments from a patient before zipping him back to one piece?"

Here you're handily illustrating your inability to grasp the points we've been making. If I felt like arguing semantics, I could state that the surgeon has a duty to make every effort to do their best, to look for any evidence of a retained sponge or clamp, to hear that equipment counts have been checked and rechecked and are correct, and to do abdominal X rays (when indicated; I am not a surgeon and have not been in the OR in 4 1/2 years)looking for sponges prior to closing. Yes, they have that duty. My point is, that even when best personal and institutional standards of care are followed, there are still occasional retained sponges. There are still medication dosing errors. Still esophageal intubations. And surgeons do NOT, in my simplistic world view, have a duty to be perfect. (fyi it is a widespread not local phenomenon that these cases are not disputed).

In my ideal culture, when nonprofit hospitals and individuals are doing their best to reduce adverse events, when you suffer one, and an explanation and apology are offered, you accept the apology and move on. Just like when someone may run over your dog, or ring up your groceries wrong, or whatever. Instead I hear about a woman who wants MILLIONS because her baby was switched with another at birth (both are fine, mind you), or a woman who wants to sue her OB because he saved her life removing her infected uterus after she did an abortion with a knitting needle, or a man who wants to sue me (then a 4th year medical student meeting him for the first time) because I hadn't done anything YET to save his infected foot, or a family who threatens to sue me if anything happens to their hospitalized relative who is terminally ill (<1 month), or wants to sue the cardiac surgeon because his incision was infected after a surgery was done for FREE. Guess all these people needed to be made whole?

This is the attitude that is spoiling medical insurance in this country. I'm glad there are a lot of thrown out cases and safe guards in the system, because if there weren't, medicine would have ceased to function. That said, there is no incentive that I am aware of for a lawyer to seek reasonable damages when s/he can obtain unreasonable ones, or to mend a relationship when an antagonistic approach is more likely to pay out, or to suggest alternative ways to settle disputes, or to make it easier for doctors to disclose errors to patients and apologize, or to bring them to light so they can be fixed. Right?

Nor is there a must-serve law and ethic for people who need legal services, or a commitment to reducing the need for lawsuits in this country--although this is true of medicine. And why is that 2/3 error rate ok again?

[Gene DeMambro]

Malpractice cases sometimes boil down to semantics....

I don't blame soldiers for friendly fire incidents, either.

Find a way to properly compensate victims of malpractice AND improve care and I'm in, big time it.

Find a way to properly compensate victims of malpractice AND improve care and I'm in, big time.

Find a way to properly compensate victims of malpractice AND improve care and I'm in, big time.

Find a way to properly compensate victims of malpractice AND improve care and I'm in, big time.

There it is, again, four times. What part of this point are you unable to grasp?

Gene

[Doug Erickson]

I'm neither a doctor nor a lawyer, although my wife is an attorney and I asked her to read this thread because I thought she'd find it interesting, as I have.

From a layman's perspective, it seems like the problem is with the incentives. Ian pointed out that the current incentive for lawyers is to sue, even if the case is meritless, because there's always the chance that the case could sneak through the system and result in a large payout.

Along these lines, my wife tells me of law firms who do only one thing: use computer programs to monitor stock prices, and anytime a company's stock price drops by 5%, they file suit against that company for securities fraud. Seriously. And yes, 99 out of 100 of these cases get thrown out, but for that one that gets through...big companies settle cases like this for millions of dollars all the time. It's less costly to settle for millions than go to trial. All these law firms need is for one of these cases a year to get past summary judgement, and they've made their money for the year.

Anyway, it seems like one possible solution to reduce frivolous lawsuits, malpractice and otherwise, is to create disincentives to bringing them. How about creating a board of judges before which doctors who are wrongfully sued could send cases that have been thrown out? If the board determines the suit to have been frivolous, the lawyer who brought it is fined. Stiffly.

Alternatively, if we don't like the idea of fining them, how about a three strikes type of deal where if a lawyer brings three frivolous suits, s/he gets disbarred or suspended?

I don't hate lawyers, and I'm not in favor of capping damages. There ARE cases where multi-million dollar settlements are appropriate for the victim, in malpractice and other kinds of tort cases. But whereas doctors can be sued for making mistakes or doing their job poorly, maybe it's time for the small percentage of lawyers who are unethical to be more accountable for their actions.

Find a way to properly compensate victims of malpractice AND improve care and I'm in, big time.

I'm assuming, since I haven't heard otherwise, that legitimate victims of malpractice are usually properly compensated already. If so, then reducing the volume of meritless lawsuits might result in money and energy that is now spent by doctors/hospitals on defending against needless lawsuits being used to improve care instead. Probably a gross oversimplification of the situation, but maybe at least in the ballpark?

-Doug

[IJ]

Here's what I still don't get Gene:

--Why does a bad outcome, that occurs in a certain percentage of surgeries despite best efforts and top notch care, in a case the patient signs a consent for, count as malpractice?

--Why do you give mistaken soldiers a pass and not mistaken doctors? You could be suing all those soldiers in friendly fire incidents for quite a lot of damages. What's the difference?

--Why is our culture one that (instead of forgiving doctors who make honest mistakes, or views errors as warning signs, especially since they are broadly distributed among doctors) seeks revenge and punishment?

--Why is it considered the norm for extremely high settlement figures to be decided by juries, and why are the individual awards increasing so rapidly? How can there possibly be no monetary limit to the amount of damage one person can inflict?

--Why is a 2/3 error rate acceptable for lawyers and an occasional error rate viewed as a serious problem in medicine?

--Why are we just accepting as fact the proposal that an antagonistic system, my lawyer against yours, is the best way to make people "whole," after bodies and relationships are damaged?

--How often are drunken or careless or sleepy drivers charged with wrongful death or injury to the tune of millions and how often do the victims collect?

[Bill Glasheen]

Interesting thoughts, Doug. These IMO are steps in the right direction.

I presume most of you caught this in the news today. I had to go to the Wall Street Journal to get a coverage of it that wasn't dripping with some liberal's HMO-bashing anecdote of how Mrs. Jones was denied care by her insurance company. (BTW, health plans don't deliver care. Doctors deliver care. Health plans make contractual decisions on what care they will pay for).

This Supreme Court decision was unanimous. It's the second such unanimous decision. They were saying "Hello!!! The government meant it when they created HMOs to address the problem with rising health care costs."

Somehow when it's a single payer government system (e.g Medicare), you wouldn't consider suing for refusing to pay for a certain type of care. But put it in the private sector, and it's fair game? Amazing...

Ruling Limits
Patients' Right
To Sue HMOs

High Court Decision Will Restrict
Amounts Patients Can Win
When Health Benefits Are Denied
By SARAH LUECK and ROBERT S. GREENBERGER
Staff Reporters of THE WALL STREET JOURNAL
June 22, 2004; Page D1

A Supreme Court decision yesterday significantly limits patients' rights to sue their health plans.

The ruling, which was unanimous, addressed the long-standing issue of whether patients who are harmed because of coverage decisions by their health insurers can sue in state court. That's an important limitation because in federal court, the amount of money patients can be awarded is far lower.

In state court, malpractice cases can result in huge punitive damage awards as well as compensation for additional medical problems that a patient develops. By contrast, in federal court, patients can only receive the actual amount of the benefits they were entitled to from the health plan.

These cases typically involve disputes that arise when a health-plan gatekeeper or HMO refuses to pay for a particular procedure or drug. This is a separate issue from botched treatment, such as a doctor's failure to diagnose a particular ailment.

With health costs continuing to rise, consumer advocates said the Supreme Court's decision could prompt some companies to be tougher about denying coverage to their employees. That's because they wouldn't run the risk of big legal liabilities in state courts, where juries tend to be more sympathetic toward consumers. "We don't want to give HMOs and others a green light to deny coverage," says Sally Greenberg, senior counsel at Consumers Union.

Employers and insurance plans said that, rather than causing them to limit coverage, the court's decision will lower health costs by removing the threat of onerous jury awards. "It lessens the risk that they will be subject to the randomness of the tort system," said Miguel Estrada, the attorney who argued the case on behalf of insurers Aetna Health Inc. and Cigna HealthCare of Texas Inc.

The ruling addressed two consolidated cases. One involved Juan Davila, a worker whose managed-care plan is operated by Aetna Health Inc. Mr. Davila's Aetna Health doctor prescribed the drug Vioxx to alleviate arthritis pain. But under the plan's coverage rules, he was ordered to first try each of two drugs that are similar but less expensive. Mr. Davila had an adverse reaction to one of the drugs and was rushed to an emergency room, where doctors found he was suffering from bleeding ulcers, according to his court filing.

Aetna successfully had the case transferred to a federal court. But the federal appeals court in New Orleans reversed that decision, saying the state court had jurisdiction. Now, however, the case will go back to federal court. Aetna Health Inc. is a unit of Aetna Inc. of Hartford, Conn.

The other case involved Ruby Calad, who received health-care coverage through a Cigna-administrated plan provided by her husband's employer. She sued Cigna for negligence after undergoing a hysterectomy.

Cigna determined that only a one-day hospital stay was "medically necessary," while her treating physician recommended a longer hospital stay. She didn't protest Cigna's decision and went home but returned to the emergency room a few days later with complications from the surgery.

Private health plans that are sponsored by employers are governed by the Employee Retirement Income Security Act of 1974, or ERISA. The court concluded that ERISA pre-empts state-court action in favor of federal courts. The decision was written by Justice Clarence Thomas.

Consumer advocates urged Congress to enact a federal patients' bill of rights that would allow patients to sue their health plan over coverage decisions. Lawmakers have struggled with the issue for years and came close to finding a compromise three years ago. But the legislation stalled due to differences over the details.

It isn't likely to regain momentum in Congress any time soon. Democrats attempted to make it a campaign issue yesterday. Sen. John Kerry of Massachusetts, the presumptive Democratic nominee for president, said the Court's decision "underscores the need for a real patients' bill of rights, one that would hold HMOs accountable for decisions that harm patients by denying necessary care.

Now we need relief for the doctors AND the will to apply process improvement (such as six sigma) for poviders of health care (physicians and hospitals).

BTW I just saw something in the news today about this. Apparently one hospital now has doctors autograph the body part of the patient they will cut while the patient is awake. THIS is a great example of process improvement that avoids serious errors (operating on the wrong body part or the wrong patient). Everybody wins here!

- Bill

[Gene DeMambro]

The HMO case was justly decided, from a purely technical point of view. Congress has power over interstate commerce, insurance companies are interstate commerce and whatever Congress says in this case, generally, goes. A correct decision, and I would have been surprised if the result was the other way.

Can enrollees sue Medicare? Is Medicare subject to Sovereign Immunity?

Drunken or careless drivers are sued all the time for wrongful death or injury.

Civil trials are decided by juries according to that pesky little document every loves called The Constitution for the United States of America. And every loves to bitch about outrageous jury awards, but how many of those awards are upheld upon reconsideration by the trial judge and on subsequent appeals? And how many of those jury awards are lessened when the losing defendant makes a settlement offer for a lesser amount after the verdict, and before the appeals process?

Come up with a better system than the antagonistic system, where patient's rights are fully preserved and I'm.

Patients can't recover, just from an unfortunate medical result. Period.

Doug,

Can your wife provide us with any type of numbers of law firms that operate in the fashion you mentioned? Are they in the majority? Minority? The problem with using these outlandish firms as an example of what's wrong with everyone is that sometimes folks are so far outside of mainstream practice (and legality) that they aren't good examples of much of anything.

There are already plenty of disincentives to winning a lawsuit and recovering money. A lawyer must judge the suit to have merit, then one must counter (and win) a motion for summary judgement, then convince a trail judge, a jury and maybe at least one appeals court to uphold a verdict. Gathering evidence and experts, preparing exhibits, deposing witnesses and making all the other preparations for trial is a lengthy, time and money consuming process. Any lawyer worth his (or her) salt knows it is not an activity to be taken lightly. But, I don't have to tell you that. Your wife can explain it much better than I can. The problem with the malpractice reformists is they want to raise the bar so high to make it practically insurmountable.

Judges already have the capacity to sanction lawyers and plaintiffs who bring frivolous suits. But just because a suit gets tossed before trial, does not mean it was "frivolous". And just because a plaintiff might lose a lawsuit does not mean it was "meritless" either. A lawsuit just means there is a question to be decided.

"maybe it's time for the small percentage of lawyers who are unethical to be more accountable for their actions."

I agree. Always have and always will. But the medical malpractice reformists among us will have us believe that ALL malpractice and personal injury lawyers fit this bill. They'd just assume see them all killed....

Definitly in the ballpark.

Gene

[Bill Glasheen]

They'd just assume see them all killed....

Only in our dreams, Gene.

Humor is humor and people should not be taken seriously when talking in extremes. However if all of the present malpractice system went away, I wouldn't lose any sleep. There are alternative solutions.

The thing that you keep forgetting here, Gene, is that when someone wins in defense of a lawsuit, he still loses. It costs time. It costs lots and lots of money. It takes a tremendous emotional toll. It takes time away from work and family.

This is a big reason why many suits are settled. Sometimes it's strictly economic. If you can throw some money at a nasty litigator and they go away quickly, well then that's less overall money and time (equals money).

Now if you won in defense of such a suit and the losing attorney had to pay all legal fees, well then NOW you're talking.

- Bill

[Doug Erickson]

Doug,

Can your wife provide us with any type of numbers of law firms that operate in the fashion you mentioned? Are they in the majority? Minority? The problem with using these outlandish firms as an example of what's wrong with everyone is that sometimes folks are so far outside of mainstream practice (and legality) that they aren't good examples of much of anything.

Those firms are clearly in the minority, and a very small one at that, I'm sure. My intention was not to use those firms as an example of what is wrong with lawyers in general; it was to point out that the existing incentives give rise to these types of firms and the nonsensical suits they bring. Yes, most of those suits are dismissed. But as has been pointed out elsewhere in this thread, there is an inherent error rate to anything people do. Some of these suits are going to get through, and then companies pay hefty sums to settle when they did nothing wrong, simply because it's cheaper than going to trial.

I just would like the incentives changed to discourage unethical lawyers from essentially "spamming" the legal system with these suits that they *know* aren't legitimate, but are merely waiting for that error rate to work in their favor.

Judges already have the capacity to sanction lawyers and plaintiffs who bring frivolous suits.

True, but they never use it. That's why I like the idea of a board of judges whose job would be to determine what's frivolous.

But just because a suit gets tossed before trial, does not mean it was "frivolous". And just because a plaintiff might lose a lawsuit does not mean it was "meritless" either.

I'm with you so far.

A lawsuit just means there is a question to be decided.

But what if an unethical lawyer creates a question out of thin air? A stock price dropping by 5% is NOT, in the absence of any other information, a legitimate reason to a sue a company. Yet this is what happens. So too with medical malpractice: as has been said earlier in the thread, an unfortunate outcome does not, in and of itself, merit a lawsuit. And while ethical lawyers won't bring such a suit, you can always find one who will.

Again, my point is not to tar the entire legal industry with the same brush. But the spam analogy works pretty well with respect to unethical lawyers. If spam email had a 0% response rate, spammers would stop sending it. But as it is, given the low cost of sending spam, even a miniscule response rate is enough incentive to keep sending it, because even though most people see it for what it is and can't stand it, the spammers aren't doing anything they aren't allowed to do. And thus spammers, representing a tiny fraction of all internet users, bog down bandwidth and drive the cost of using the internet up for everyone.

-Doug

[Bill Glasheen]

Doug

With your spam analogy, you've articulated the argument better than you know.

Statisticians who provide information to solicitors who fill our e-mail and mail boxes with trash are in the business of helping spammers target their efforts to maximize return on investment. One of the first steps done is to fill out costs in what's referred to as a confusion matrix. You want to know the cost of sending out an item, the average return of a positive hit, etc., etc.

From a statistical standpoint, the predictive models tell you that you maximize profits by spamming EVERYONE. Otherwise you leave money on the table.

Now... Significantly increase the cost of a false hit, and the whole statistical model changes drastically. Suddenly the model no longer tells you to spam everyone. The model tells you to choose your targets wisely. Similarly if we cap rewards, you will also shift the activity in a manner that makes someone target more carefully. However you get the greatest benefit here (specificity of a lawsuit) by increasing the cost of a false hit. Bottom line - slam the spam lawyers (bottom feeders, ambulance chasers, etc.).

And in case you are wondering, this is statistics, and not my personal opinion.

- Bill

[IJ]

Thanks to Doug for several good points.

Gene, if people have the power to sanction lawyers who bring frivolous suits, and 2/3 are promptly thrown out, someone is not doing their homework and judges are not doing their sanctioning. (Just as medical boards ought to be more strict with problem doctors). There's a fair solution we can apply to both sides, eh? As for the costs of lawsuits being so outrageously high, they obviously aren't high enough to keep the 2/3 of cases thrown out for being groundless from being filed. Not sure how these two pieces of information could ever be compatible....

"Drunken or careless drivers are sued all the time for wrongful death or injury." Good. Now is the penalty amount appropriate for the crime? That is if a well intentioned doctor screws up, is s/he blasted with higher settlements than a totally negligent drunk? Or even similar penalties--that would seem unfair too. Or as I suspect are damages in large part determined by ability to pay, in other words, "s/he has malpractice insurance, let's make a hefty buck, no one's harmed, right?"

"Patients can't recover, just from an unfortunate medical result. Period." You seem to have dodged the nuances of the last dozen posts, where I've explained many times that unforunate outcomes in surgery, no matter how good the care is, are presumed malpractice and pursued and paid out as such. I've tried several times, so I guess I'll just give up.

[Gene DeMambro]

Nothing is "presumed malpractice". That is decided in court. If the defendant elects to settle, for financial considerations or in cases where they are sure they are going to loose, what of it?

Just because 2/3 of the cases get tossed by tribunal doesn't mean they are frivolous.

Lots of subtle nuances getting missed here. I agree. Let's drop until a someone kicks up this dust storm again....

Gene