Medicine is less than an exact science

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“Most of the problem is that medicine is by nature something less than an exact science – and our society can’t deal with that – and our civil justice system requires docs to pay for it.”

That my friends, is the bottom-line on the why there is a malpractice controversy surrounding us today. It is something that I have mentioned before (here and here).

Comments

Saint Nate
Are you saying that any attempt to impose order in an inherently chaotic universe is ultimately doomed to meet limitations based on the inherent imprefections associated with the human and our own current lack of scientific and legal development which, althugh advanced beyond all precedent, is still woefully limited due to circumstances beyond our control, thus leaving us powerless to do anything more than accept the conclusion that “life isn’t fair?”
Because, if so, I kind of agree with that.
Anonymous
Actually, what he’s saying is that he doesn’t believe physicians should be held accountable for their negligence unless they want to be. They are, in effect, demigods who should not be subject to the same rules as the rest of society.
Anonymous
^^^ Proving Kevin’s point exactly: Society can’t deal with the fact that medicine is an imperfect science. Mistakes are made, and someone has to pay – that’s the American way.
Anonymous
So if juries find for the physician 75% of the time, how does that affect your theory that “Society can’t deal with the fact that medicine is an imperfect science?”
Seems like society gets it just fine.
Saint Nate
Hey, if 75% of malpractice lawsuits find for the physician, that means there sure were a lot of meritless cases out there, doesn’t it? Maybe physicians aren’t being held to the same laws the rest of us are – they’re being held to far harsher ones where they’re presumed guilty unless they can prove their innocence when they were acting with the best knowledge at their disposal (almost all of the time – there are some cases of genuine malpractice out there) .
And bear in mind that even when the physician wins, just being sued causes a great deal of stress and financial expense, both in legal fees and lost revenues in court. It’s not like they get it all back when they’re exonerated. Lawyers, though, make out well regardless of the outcome.
Anonymous
In every case, from a contracts dispute to a child custody dispute, there is a loser (or someone who didn’t win as much as they asked for). Does that mean every litigant who loses had a meritless claim?
If you say the other driver ran the red light and he says you did, and you’re both convinced you’re right, but the jury believes him, does that make your claim meritless? For all the complaints that lawyers don’t understand medicine, physicians have just as meager an understanding of the law.
What evidence, other than your statement, do you have that physicians are being held to a higher standard? If anything, the legal standard is less for physicians, since the standard of care is limited to their locality. You can’t get out of a car wreck case by saying all the drivers in my little town are shitty. And if they’re presumed guilty (which is really a criminal standard) they must have some pretty good lawyers on the defense side to overcome that presumption 75% of the time.
If a lawyer fronts all the costs, puts hundreds of hours of time into the case, and still loses, recovering nothing for either his costs or his time, how exactly does he “make out well regardless”? Again, this illustrates how little physicians understand about what goes on in a courtroom.
Anonymous
I thought this would be an appropriate place to post this. You may be interested in this perspective.
http://interface.audiovideoweb.com/lnk/avwebnjwin9536/congress/judiciary/full_hearing.wmv/play.asx
–dag–
Saint Nate
Wow, anonymous, you sure have some issues with doctors. I mean, saying they regard themselves as “demigods” while hiolding them to a more-than human level .. how’s the average MD to win? Where does this animosity come from? I’m genuinely curious.
Yes, every case has a loser. I hate to blow your metaphor out of the water, but malpractice court and traffic court are entirely different. And if a physician wins a case, they still have to pay their lawyer’s fees. That ain’t cheap. Not to mention all the lost revenues, which I guess you didn’t notice I mentioned.
Are they held to a higher standard? If I screw up in my job, we run a correction and life goes on. One would have to prove malicious intent to win a libel suit against a journalist like me, and even then the odds are in my favor. If a doctor makes a human error, he or she could get sued out of a career by an injured patient. Heck, in some cases a doctor can do everything right according to medical procedure and still get sued. Yeah, I’d say that’s a higher standard.
Anonymous
Nate,
Really, a car wreck case and a malpractice case aren’t so different in terms of how they are typically paid for. In both cases, insurance pays for the defense lawyer, and any damages.
That’s why we buy insurance, and insurance cos. sell insurance because they know it’s a way to make money over the long term if you price your product correctly and know the statistics.
If I sit through a 3 day car wreck case and I’m any kind of professional service provider working on my own, then I have lost revenue. If I sit through jury duty, I have lost revenue. If I’m on salary, though, I don’t have any. What are you saying? That small business owners shouldn’t have to go to trial?
Nate, if a semi truck driver screws up in his job, he’s held liable. Often for as much or more as the average med mal case. If you screw up driving home from your job, you can be held liable. What’s your point? The standard for negligence remains the same. Duty, breach, causation, damages still have to be proven.
Your job comes with additional protections related to the First Amendment. If you want to make health care a Constitutional right, then advocate for it.
Anyone can file suit, with or without a lawyer. That’s a whole different topic and if you want to talk about it we can. But it has nothing to do with caps or any other current tort reform proposal.
If it’s so career ending to be sued, why are so many physicians still practicing who have multiple payouts? The Washington Post ran an article the other day talking about how they can just up and move because there is no state to state communication.
Curious
Saint Nate
Really, a car wreck case and a malpractice case aren’t so different in terms of how they are typically paid for. In both cases, insurance pays for the defense lawyer, and any damages.
That’s why we buy insurance, and insurance cos. sell insurance because they know it’s a way to make money over the long term if you price your product correctly and know the statistics.
Actually, the laws are very different. I’ve never heard of a frivolous traffic lawsuit, but then I never needed a professional witness to say someone hit me and drove off. As far as insurance companes … hey, I hate ‘em too. They definitely need to be reformed.

If I sit through a 3 day car wreck case and I’m any kind of professional service provider working on my own, then I have lost revenue. If I sit through jury duty, I have lost revenue.
Life ain’t fair, and no number of lawyers will ever make it fair. That was my first point. Complain to God.

If I’m on salary, though, I don’t have any.
What are you saying? That small business owners shouldn’t have to go to trial?
Dude, you just flamed me for putting words in your mouth! At least all I did was rehash your old arguments; you jumped to a major conclusion. I don’t believe I said anyting like that. Should small business owners called into cases? They will whether they want it or not. Most small businesses, though, aren’t besieged by frivolous lawsuits.

Nate, if a semi truck driver screws up in his job, he’s held liable. Often for as much or more as the average med mal case.
Well, if I get run over, its not like I need any more proof than the tire track down my back. Medical cases are not so black-and-white. You can oversimplify them all you want, they will remain more complicated than your examples.

If you screw up driving home from your job, you can be held liable.
That’s funny, because this one time these three deer ran out into the road and I … well, I dodged two of them. The deer died and I had no one to sue for the deductable for car damage. I could do nothing more than grunt and swallow the loss. If only you were there, I’ll bet we could have sued the antlers off its dad. My car would still have been dented up, though. At least it was ruled a “no fault” accident and I didn’t get any points.
What’s your point?
You’re apparently making my point … you tell me.
The standard for negligence remains the same. Duty, breach, causation, damages still have to be proven.
That’s real easy to do in a traffic case, much harder in a malpractice case. Didn’t you just complain about reading through piles of medical records?

Your job comes with additional protections related to the First Amendment. If you want to make health care a Constitutional right, then advocate for it.
Yeah, it’s great being me. To be fair, though, the specifics of our first amendment right were hard-won in countless court cases. That’s called media law, and it’s a whole lotta gray area.
Actually, I don’t want to make health care a Constitutional right. I’m against soclalized healthcare. I don’t mind it being run as an industry; I just think it sucks the middle-men and the lawyers are making more while the people actually providing healthcare are netting less every year (and will soon be grossing less every year too). Bear in mind these are the people who are literally keeping us alive and trying to advance our knowledge of health who are being given the short end of the stick.
Anyone can file suit, with or without a lawyer. That’s a whole different topic and if you want to talk about it we can. But it has nothing to do with caps or any other current tort reform proposal.
But as soon as caps are mentioned, you appear like the caped crusader to the bat signal. Besides, we’ve already discussed reform and caps, and you were just as frustratingly stubborn then.

If it’s so career ending to be sued, why are so many physicians still practicing who have multiple payouts?
Is it “so many” or “a relative few?” Please clarify, and remember that exceptions are not rules. I won’t deny it happens; there is some genuine malpractice out there.
The Washington Post ran an article the other day talking about how they can just up and move because there is no state to state communication.
That article is right here:
http://www.washingtonpost.com/wp-dyn/articles/A44899-2005Apr11.html
Notice the numbers: hundreds of physicians have done this, yet there are 769,000 practicing physicians in the country ( http://pn.psychiatryonline.org/cgi/content/full/39/24/23)
That means fewer than one in 100 have done this. Again, they are the exceptions, not the rule. Do you want me to judge all lawyers by a few particularly unethical cases and present what they did as an accepted practice? That’s exactly what you’re doing to doctors.
Orac
Of course that’s what he’s doing.
But he would scream bloody murder if we tried to do the same thing with lawyers.
Curious JD
Just because you’ve never heard of a “frivolous” traffic case doesn’t mean they don’t exist. Haven’t you seen those Allstate commercials where they talk about the guy who stops short in front of you trying to make a claim? The fact that you’ve never heard of things doesn’t mean they don’t exist. Unless you’ve read the records in a med mal case, you really don’t know whether it was frivolous, do you?
Your belief that medical malpractice is the most difficult thing to understand is well, wrong. While a rearend accident may not be difficult, that’s not the extent of car wreck cases. Just like med mal cases don’t end with cutting off the wrong leg.
You ought to know this, but not everything is as simple as they make it seem in the paper.
As for the number still practicing, we’d all love to know. But while insurers are glad to trumpet stats that help their case, they won’t say boo about the ones that don’t. You’d think physicians would want to know, since that affects the cost of their insurance.
But if it’s so devastating to one’s practice as you keep claiming, how about some examples? You’ve made the claim, back it up.
Isn’t judging all lawyers, litigants and cases by a few exactly what this “crisis” is all about? We’re putting a blanket cap on good cases and bad regardless of the facts, right? Because of a few allegedly “outrageous” ones?
I think I’m already used to it, Orac.
Curious JD
By the way, just because you keep saying that lawyers make more than doctors doesn’t make it true. In fact, it’s demonstrably false. As a journalist, I’d think you’d have more regard for the facts. Physicians remain the higher paid profession by FAR. Now, they may not be up there with hospital administrators, but no one is putting forth legislation about those kinds of things, are they?
I’m sorry you find it frustrating that I am “stubborn” on caps. I am actually not that stubborn on other reforms. I just believe that the right to have a jury of your peers decide the value, or lack thereof, of your case is part of what makes America great. I’m stubborn on the First Amendment, too, if it makes you feel better.

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