Kevin, M.D. - Medical Weblog

Putting aside the one sided view of this case, look at the economics. This guy has been practicing medicine for 12 years. He tells us his rates are $245,000 a year. That means the insurer already covered this loss in premiums alone, regardless of whether they made anything on the float, with room to spare.

And we're supposed to feel sorry for insurers because. . . .?
 

"one sided view of this case"

Though you wouldn't understand, part of this physician's life was ruined by the lottery systems intrusion into his chosen career. I'll bet if he could do it all over he would have chosen a less targeted profession, like psychiatry. I personally would rather be assaulted by a thug then have to stand in a courtroom and be insulted by lawyers. But like I said, you wouldn't understand this because for lawyers, it's not personal, it's all about ringing the register.
 

Wow! I never knew that anonymity conferred the ability to read minds and discern truth in any situation.
 

This story raises some interesting questions. Spinal surgery does carry risks, and even in the best hands, there is a chance of paralysis.

The interesting question is, when is that paralysis a result of negligence, and when is it not? Is it always negligent if a foreseeable risk is realized? Or does there need to be some action or lack of action that can be identified, and that, in the hands of another (or most) surgeon would not likely have occurred? We don't really know the facts of the case in question.

This reminds me of an argument about screening mammograms on another blog. Screening mammos have a sensitivity of about 95%, meaning that for every 100 women with occult breast cancer, 5 will be missed on mammogram. One comment was that a 5% miss rate was appalling. So, is a failure to diagnose breast CA on a mammo always malpractice, even though it is expected to occur in 5% of cases? Are physicians being held to a higher standard than the technology they use can realize?
 

Looks like there was an argument as to whether the hospital was liable for Hurley's actions:

"http://www.state.il.us/court/OPINIONS/AppellateCourt/2002/1stDistrict/June/Html/1011227.htm"
 

"This reminds me of an argument about screening mammograms on another blog. Screening mammos have a sensitivity of about 95%, meaning that for every 100 women with occult breast cancer, 5 will be missed on mammogram."

Actually it's probably closer to 30%. Mind you many of these are truly occult but the plaintiff's "expert" can always find them - for the right amount of money.
 

Just for clarity:

From USPSTF (2002):

For a 1-year screening interval, the sensitivity of first mammography ranged from 71 percent to 96 percent. Sensitivity was substantially lower for women in their 40s than for older women.
 

"I personally would rather be assaulted by a thug then have to stand in a courtroom and be insulted by lawyers."

Facts be damned. It's all about doctor's ego. rich, md & anon make the same errors about the law. Doing a risky procedure does not make you automatically liable in tort. Making a mistake that a similarly situated doctor would not have made makes you liable.

Mistakes happen in medicine as in everything else. Usually, in our economy, those who make mistakes pay. Only doctors feel they should be different--back to original quote.
 

Mistakes happen in medicine as in everything else. Usually, in our economy, those who make mistakes pay. Only doctors feel they should be different--back to original quote.

Your problem is a common one: you do not know what you're talking about.

Doctors are not at all opposed to victims or actual malpractice getting compensation. They're usually more disgusted than lay people with the minority of their fellows who practice with abandon and endanger their patients.

What doctors are opposed to is the current situation, which is a crisis rapidly becoming a catastrophe. In certain specialties, every single doctor is being or has been sued. In OB GYN, the average doctor can expect to be sued 2.5 in his or her practice lifetime. In some states, every single neurosurgeon in practice has been sued. Every single one. According to lawyers, only a tiny minority of doctors are sued, and these guys are the "bad docs" the profession is doing so little to address. Some minority. They are suing everyone.

Doctors are being made to practice with a gun to their heads. It is reasonable to be asked to practice on the condition that if you practice irresponsibly and your patient suffers as a result, you will be sued.

However what is happening now is that doctors are being asked to be responsible for things that are simply beyond human control - like outcomes. It is possible for doctors of every specialty to perform a procedure or diagnostic maneuver perfectly by the book, and still have a poor outcome. This is usually due to something known as a complication, or in other cases simply a result of technological limitations (see mammo example above). That is to say, in a certain % of cases, no matter how expert your hands, a poor outcome can be the result.

Now, today, these are the things doctors are being sued for. A general principle of justice is that if you find someone guilty of wrongdoing, you are saying that he could have chosen to act differently, and if he had he would be innocent. The manifest injustice of so many lawsuits today is that doctors are sued for things they cannot humanly have prevented, and they are being found guilty or forced to settle.

The reason why people like CJD and Elliot will never have the respect of doctors on this blog, and will never be able to convince doctors of anything, is that they refuse to acknowledge the wrongdoing on the other side (ie. lawyers and plaintiffs). Doctors acknowledge that mistakes happen. Doctors acknowledge that there are some really bad doctors out there. Doctors, more than anyone else on the planet, have worked hard to improve safety initiatives in healthcare.

But that is only one side of the coin of the current crisis. The other side is unscrupulous lawyers and plaintiffs who bring lawsuits for the most ethically bereft of motives. You have not felt disgust until you've seen what these people are capable of doing.
 

An anonymous rant with no citations and several factual errors which misspells my name and falsely asserts beliefs that I don't have ... telling me that I will never get any respect.
Wow, I'm so put in my place.
 

Making a mistake that a similarly situated doctor would not have made makes you liable.

How is a doctor who reads a mammogram with the foreknowlege that a cancer is present "similarly situated" with the one who read in without the same hindsight? That is the case with expert testimony. It's all too easy for an expert to say, "see that shadow? Any good radiologist should have recognized this as a cancer."

But the fact remains that in even the best hands, screening mammograms MISS (at least) 5% of cancers. That's not opinion, it fact based on studies of the current technology and it's limits.

A good study would be to take mammograms that have been missed and resulted in suits, and mix them with other "normal" mammograms, and have them all read by a panel of mammography experts. Two endpoints: 1. Does the panel detect the tumors that resulted in lawsuits? 2. What is the intraobserver variablility on the panel for the mammograms in question?
 

"Doctors are not at all opposed to victims or actual malpractice getting compensation."

Sure you are. You support measures that directly prohibit injured people from being compensated. Don't lie about that.

"They're usually more disgusted than lay people with the minority of their fellows who practice with abandon and endanger their patients."

Cheap talk. If a patient asks you - Is X a good doctor? - you'll not give them a straight answer. But what you will give them is liability protection.

"In certain specialties, every single doctor is being or has been sued."

Lie.

"Doctors acknowledge that there are some really bad doctors out there."

To each other they do. To the public? Not a chance.

The respect of an anonymous person is not really what we're seeking. What we're seeking is an honest discussion of the merits of the proposals. Not the "lawyers are evil, doctors are saints" dreck you usually come up with. An honest discussion of the merits of the actual proposals on the table.
 

CJD -

Let's be fair. There are doctors who will tell their patients (the public) about doctors they should avoid. I know. I have done it. It is my responsibility.

Further, I and others I know have served together on disciplinary committees at the request of local hospitals. These usually result in some form of censure and reporting to the state medical board. I chaired one such committee.

So if someone asks me, "Is X a good doctor?" I respond truthfully. If I don't know I say I don't know. If I respect him/her, I say so. If not, I say so and recommend that the patient seek consultation elsewhere.
 

rich, MD makes an interesting point "1. Does the panel detect the tumors that resulted in lawsuits?"
Well, the tort standard pretty much is 1. And that's why most medmal cases are lost. The doctor just has to show he meets the standard of care.

rich, MD's second point: 2. What is the intraobserver variablility on the panel for the mammograms in question?" is more interesting--but undermines his argument with curious jd.

Suppose there is a lot of variability in the reading and suppose further that this variability is non-random over numerous samples, i.e., some radiologists are consistently better than others, despite the large v. Does a patient have a right to recover for substandard care even if a lot of doctors are substandard?

That turns, I would say, on the information about doctors' performances. If we could avoid the bad doctors, I'd say no recovery is appropriate. But, CONSUMERS HAVE VIRTUALLY NO INFORMATION ABOUT DOCTORS. Unlike virtually every other service, the medical profession practices a mafia-like silence about its performance. A casual comment, if asked, about a doctor as rich, md says he makes doesn't cut it. Indeed, under the hypothetical, he wouldn't discipline a substandard doctor if variability were sufficiently high--after all he might have to discipline 1/4th of the profession.

I want complete disclosure--or at least as much as I would if I went to a fertility clinic (which, as they operate in true markets, do disclose.)

Until then, I want medmal lawyers to keep doctors honest.

Dr. Caligari
 

Dr Caligari -

I happen to agree with MOST of what you wrote. Your argument about variability and discipline seems circular - if the variability is high the large group would not be substandard because they set the standard. But it would be interesting to see if a panel of blinded experts agreed frequently with experts giving testimony on trial.

It would be nice to know more about doctors, I agree. But what measure? A fertility clinic can give a concrete rate of conception/delivery etc. What would you measure for radiologists? General internists? Gernal surgeons? Oncologists?

What measure for performance can you give that does not incentivize doctors to avoid high risk patients?

Finally, I am not sure how medmal lawyers keep doctors honest. Doctors found negligent continue to practice, and other negligent doctors are never brought to trial. Non-negligent doctors are also brought to trial, and don't need any help keeping "honest". If there really was an altruistic drive on the part of medmal attorneys and others, then suits would not end with a verdict. There would be a move to sanction, censure, or whatever. The plaintiffs bar would lobby for legislation against these bad doctors, or file complaints with the medical board, to keep them out of practice.
 

Kevin posted a Cornell Law Review study that concluded that medmal keeps doctors honest, but so what? If you don't count defensive medicine (and I don't) then the cost burden imposed on the system by medmal is relatively small compared to the hundreds of other ways our current system wastes money. What we get out of it though is something we value as a society and that is the right to sue. If someone injures us then we can sue and that's a right worth having even at the cost of some inefficiency and unfairness in its actual execution. (Digression - the right to vote in an individual case is not worth much, but people go to great lengths to preserve their right to vote.) Here is an article where the Arizona Supreme Court thought it so important that they said a waiver AND a release of liability did not prevent someone from filing a lawsuit.

http://www.dailystar.com/dailystar/news/75890.php
 

The same Cornell Study that Elliott refers to says:

Liability encourages producers of goods and services to exercise due care by forcing them to internalize the costs of their negligence ... We do not contend that the civil justice system creates optimal incentives for providers to protect patients from avoidable errors. It does not and, in all likelihood, it never will. [Emphasis mine.]

This reinforces my point that the medmal system does not really help to improve quality. It just goes after those who provide poor quality (and sometimes those who do not), and leaves everyone else guessing what they can do to avoid providing what is perceived to be poor-quality service (defensive medicine).

The same article goes on to say:

Our point is that unless and until changes in compensation arrangements create a business case for quality, providers will continue to provide low-quality care to many patients, and the health-care sector will under-perform the rest of the economy.

Is this a case for pay-for-performance? It still begs the question as to what to measure.
 

Start here! www.ihi.org

I assume that you are aware of Berwick's work already. If you aren't then you should become familiar with it.
 

Thanks, Elliott.
The measures provided by IHI are a good start, and IHI provides tools to help make measurements for physicians and hospitals. But it is by no means comprehensive. The criticism against performance measurements to date for hospitals and also for private offices is that they look at only a subset of diagnoses or clinical situations, and that attention toward improving thses few scenarios may be occurring at the expense of other, unmeasured ones.
 

Rich, obviously my original comment was overboard - I should have been clearer that I don't mean ALL doctors. There are probably the same number of doctors who are consistently "bad" doctors as there are lawyers who routinely file truly meritless cases.

On your other point, as to whether the civil justice system "improves" health care. That's not its purpose, so it will never do that well. Its purpose is to compensate those injured by another's negligence for the harm they've suffered. Any other good is an incidental byproduct - at least with regard to cases against individual physicians.

So when assessing it, we should ask ourselves does it do that for the people who make a claim. Are people who settle with an insurer or file suit receiving compensation for the harms suffered as a result of negligence. It's hard to say, since no one has comprehensively looked at that question.

We also need to focus on the actual proposals that are out there. I mean the text of the bills. We end up in tangents, and I'm as much at fault as anyone, when we go off on attacks against professions.
 

My mom just had a surgery, and well she came out of the surgery worse than she was before. She's considering suing.

She's not so mad that there was a complication, she understand people make mistakes. What she's mad about was that the doctor refused to address the problem for two months. When he knew there was a complication, in her two week check up, the doctor only had his assistant check her. Then, eight weeks later told her that her problem had nothing to do with the nerves, while another doctor said it did. My mom feels lied to and used, and well her other doctor isn't listening to her.

She's also worried, she needs her arm for work, and well they didn't really talk about those problems to her, before surgery. But, the think that ticks her off the most is the cover up, ignoring her etc. She received a copy of the disk chart and found the doctor didn't even put her complication in his report.

New studies are showing that one reason a lot of patients sue, is partly how doctors treat them after the surgery. In my mom's case after the doctor won't even address or admit there's a problem, she has a real hard time feeling sorry for this doctor. My mom's whole livelyhood is at stake.
 

With all said Doctors like Dr. Hurley are rightly proud of the surgeries they perform correctly, but when they seriously injure a patient they often refuse to accept responsibility for the suffering they cause. Rather than opposing full compensation for victims, they should look at what they can do to prevent future tragedies.