No surprise: A malpractice attorney is against special health courts
“It would be a travesty to undermine our civil justice system based on the faulty premise that lay juries are not competent enough to decide facts ““ after presentation of both sides at trial ““ and that superior results would be achieved by having panels of doctors decide a patient’s right to compensation. True, there are specialty courts for bankruptcy, tax and other types of cases. But those courts were created to deal with special sets of laws, not special sets of facts. Whether a doctor injures a person on the operating table or driving to the hospital, facts are facts. And in America, the sole arbiter of facts is the jury.
The solution to the epidemic of medical errors is not to let doctors preside over malpractice cases against other doctors, adding yet another layer of politics and secrecy to an already failed system. The answer is to let juries of average people hear and decide malpractice cases.
The tort system, which has its roots in the Magna Carta, has served our country well for centuries, and continues to be the best safeguard of the rights of average citizens. On the other hand, secrecy and letting the ‘fox watch the henhouse’ has undermined public safety by covering up problems in order to avoid accountability. Why should this latest physician-sponsored proposal be any different?”
Related posts:
- Layperson juries: A physician’s friend?
- Would you trade your salary for free medical school and "tort-adverse" malpractice?
- Texas tort reform a "national success story"
- Mark Herrmann: Regulation by lightning bolt
- Malpractice systems
- Using the layman juror to the plaintiff lawyer’s advantage
- Health courts, and how they can save our health care system
{ 20 comments }
Why are attorneys allowed to debate the volatility and continuance of a system which only benefits them? It’s like asking a Pimp if prostitution should be legalized.
Why? Because poor people don’t have their own version of the AMA and the insurance lobby on legal issues. And when you’re the victim of negligence which causes an injury severe enough to be affected by caps (what you call “winning the lottery”) you often don’t have a lot of spare time and money. For better or worse, attorneys are all they have.
But I know, your own support of health courts is purely altruistic. The AMA does their work for the good of society.
Can anyone tell me how many cases would be decided differently either way with health courts? If the physician would win more or less often than the 75% of the time they already do at trial?
Didn’t think so. Makes you wonder why people back things they have no clue about.
Here we go again with more ranting from the robinhood superhero CJD. Thinks he is helping the “poor” by destroying the system that takes care of them.
Costs rise so fewere and fewer can afford it.
Doctors can no longer shoulder the risk to be on emergency department call panels that takes care of the indigent, as well as the priviledged.
My insurance carrier has advised me not to do the charity work I do.
Makes you wonder why people back things they have no clue about.
Medical malpractice accounts for 2% of total medical expenditures. Health care costs increase in states with and without tort reform. Looks like you’ll have to find a new justification.
Your own suits against health insurers (which to date have collected over $1 billion in settlements – http://www.hmosettlements.com) are far more likely to price poor people out of coverage. Should we put some caps on those?
Still waiting to hear the statistical support for health courts. . .
“Medical malpractice accounts for 2% of total medical expenditures”
WRONG! This figure may only be medmal premium. It does not take into account defensive medicine which is hard to quantify, but I have estimated at around 50% of expenditures in practice. With the stroke of a pen I spend tens of thousands dollars daily in defensive medicine because it is percieved as “the standard of care”
A demented nursing home patient falls and bumps head. Nursing home doctor doesn’t want the liability of “observing” (he could be accused of elder abuse. So nursing home patient comes by ambulance to ER. ER doctor now obligated to rule serious occult injury. (Lawyer voice says “You mean to tell me doctor that a patient was so badly injured that they had to arrive by ambulance and you didn’t bother to get a CT scan, even though it was readily available”) So CT is ordered. Now patient must go back to nursing home, but the only way is another ambulance ride.
Cost of two ambulance rides, ER visit, CT scan probably about 10,000 dollars. Cost it should have been in a sane world = zero.
This is just one example of minute by minute daily scenario.
And stop asking questions that there are no answers to because they have not been tried — like statistical support for health care courts. It has to be tried first, data collected, analyzed, and compared. Why are you so afraid?
CJD, from your website link
1 billion divide by 900,000 plaintif physicians = 1,111$ per physician paid so far.
Wow, what a windfall! That will pay my medmal premium for nearly a week.
“It does not take into account defensive medicine which is hard to quantify, but I have estimated at around 50% of expenditures in practice.”
So you are billing 50% in unnecessary work? Do the insurance providers know this?
“And stop asking questions that there are no answers to because they have not been tried — like statistical support for health care courts. It has to be tried first, data collected, analyzed, and compared. Why are you so afraid?”
For the same reason the founding fathers thought a jury trial was important enough to enshrine in the Constitution. Why are you so for it? Based on some cases you heard about where you didn’t see the evidence? Of course. It wouldn’t be that hard to get statistical evidence – take 1000 cases, have your star chamber review the medical records and testimony, and see how often their views would have differed.
“Wow, what a windfall! That will pay my medmal premium for nearly a week.”
Wait, I thought you were concerned about the general public’s access to health care. And a billion dollars out of health insurers pockets will certainly cause premiums to rise won’t it? Do all the judgments affected by caps for a decade even come close to that?
You mean it’s all about putting more money in the highest paid profession’s wallets at the expense of people with devastating injuries? Who knew? How funny it is that caps won’t even do that!
By the way, did you catch the study that was recently released that showed of the 15 largest med mal carriers their premiums tripled while claims stayed flat? Based on the insurers own filings to state insurance commissions? And that they were sitting on some of the largest reserves in history, 2x what their own industry groups say is necessary.
Oh, you missed it? How surprising. Google the “Angoff study”.
“So you are billing 50% in unnecessary work? Do the insurance providers know this? ”
Here’s a new take on this. Female Patient comes into my hospital with a backache. Nothing else. Gets seen in urgent care, Urgent care doc does an Ultrtasound to cover is ass, it shows a small ovarian cyst. Pt. goes home with OB-GYN follow up arranged. A week later she comes back very sick, fever, etc. I see her and I repeat US, do labs. SHe has a Tubo-ovarian abscess now. Ends up going to OR and have her ovary removed. Not that uncommon.
Insurance company sends a letter to the hospital 6 months later: States they believe the patient’s first ED visit was negligent (it wasn’t). THE INSURANCE COMPANY says in the letter if we don’t drop all billing they will contact the patient, and TELL HER to contact a lawyer to sue the hospital for malpractice. THE INSURANCE COMPANY!!! Talk about terrorism!
“So you are billing 50% in unnecessary work? Do the insurance providers know this?”
It is necessarry because you and plaintiffs have made it so.
“Wait, I thought you were concerned about the general public’s access to health care.”
Tell me CJD. How many poor patients or “victims” as you call them did you help today? How often do you when a case? Once a week, once a month, once a year? Oh but if you do — it of course is never about money but rather about “we never want this to happen to anyone else again” Wrong. It just leads to less disclosure and discussion of problems, increases premiums, increases defensive medicine, which further puts affordable care out of reach. So tell me how many have you helped — give me a number. I will altruistically take care of 500 or so for free this year. Not tooting a horn, many do much more or less. Just throwing out something for comparison. You think you are doing good by chopping down the forest to save the tree. Don’t think so small, understand the big picture.
“You mean it’s all about putting more money in the highest paid profession’s wallets at the expense of people with devastating injuries?”
You are so hung up on this it is comical.
I googled the Angoff study, read it and many of the links that expose it’s flaws, misguided assumptions and comparisons. In no way do I defend or have sympathy for insurance carriers — but on balance, I am not very impresssed by your Angoff study.
“It is necessarry because you and plaintiffs have made it so.”
Do the health insurers know this?
“How many poor patients or “victims” as you call them did you help today?”
Of med mal – none. I’ve handled maybe 3 med mal cases in my office. All were clear liability and settled. I can’t afford to finance them on a regular basis, so I refer them to firms with more financial resources.
“How often do you when a case? Once a week, once a month, once a year?”
I handle all kinds of cases, from family law to real estate to personal injury. Which ones are you talking about?
“It just leads to less disclosure and discussion of problems, increases premiums, increases defensive medicine, which further puts affordable care out of reach. “
Why don’t we give complete immunity to everyone for all their acts, and then we won’t have to have insurance? That appears to be what you’re arguing about. The premium increases claims have been debunked time and again. But I appreciate your persistence, even though you can’t even tell me how much claims have gone up for your OWN carrier. You have a severe fact deficit in your reasoning.
“I will altruistically take care of 500 or so for free this year.”
Are you on a salary? Are you paid a per diem? Or are you paid individually by each patient you seen (from them directly or through their carrier)? I will probably have about 100 consultations (typically an hour’s worth of work) for free this year, and probably handle 20 cases that involve at least 10 hours work minimum.
” You think you are doing good by chopping down the forest to save the tree. Don’t think so small, understand the big picture.”
If you knew the first thing about insurance, what your insurer takes in on premiums on a regular basis, or what they make on what they take in, or what they pay their execs, or what surplus they currently have. If you don’t know these things, how can you lecture me on the “big picture”?
“You are so hung up on this it is comical.”
Says the guy who is always talking about how much lawyers make while conveniently forgetting the injuries underlying their pay.
“I googled the Angoff study, read it and many of the links that expose it’s flaws, misguided assumptions and comparisons.”
Such as. . .?
the original article is a joke.
This fool honestly believes taht layperson juries (the average of which barely graduated from high school) can dissect complex medical testimony and decide which expert is right among the “dueling experts?”
What a joke. Layperson juries dont understand jack about science. You have to understand science and medicine to decide a malpractice case. 95% of malpractice cases are about medical science. The other 5% are about stuff like drunk doctors and cutting off the wrong leg.
Conclusion: in order to properly decide a malpractice case, you MUST understand how science and medicine works. Expecting a layperson jury to understand those issues is a total and complete joke.
It’s almost like expecting a jury of laypersons to determine if an insurer has properly reimbursed a physician.
The defendants should be entitled to a jury of insurance adjusters. It’s a joke otherwise!
Right – it takes 4 years of graduate school and 3 years of post graduate training to see that the check is less than the bill.
” Medical malpractice accounts for 2% of total medical expenditures. “
That is ridiculous, if you are referring to the cost of defensive medicine. Easily over half of imaging tests I performed as a radiologist were purely defensive. The percentage cost of defensive medicine is easily in double digits.
Hi CJD,
Perhaps your arguments are not having more success in this forum because you’re missing an important point. You call Anonymous a Chicken Little, but you need to remember … physicians, like lawyers, are people first. And, the vast majority of people don’t look at the data accumulated from large groups and make good individual decisions. If they did, there would be no cigarette smokers, no STDs, and no people who don’t save enough for retirement.
Getting sued for medical malpractice, from what I’ve heard, from what I’ve seen, and from my limited experience with the legal system, is so personally unpleasant that I NEVER want it to happen to me. Am I irrationally afraid and relying on anecdotal data? Perhaps … although through your contributions to this forum, I’ve realized I’m actually more afraid of the process than the verdict. The facts that I’d most likely prevail, or that malpractice insurance is a rip-off, are really secondary for me. If you’re hoping to win converts, you’re going to need to convince docs that if they do get sued, they’re not going to end up a cardiac case, like RichMD’s friend, or on tranquilizers and in therapy, like my friend and colleague.
Perhaps the ATLA needs to work on bedside manner?
And, while you can say I need to just suck it up, be a big girl, and grow a spine, I would say that, were you to find yourself in my clinic, suddenly facing a uncertain future, and likely months to years of nastiness, humiliating and confusing procedures, worry, and grief before an outcome becomes clear, I would understand your fears and work to alleviate them, to the degree possible. Scared people make bad decisions.
“That is ridiculous, if you are referring to the cost of defensive medicine. Easily over half of imaging tests I performed as a radiologist were purely defensive. The percentage cost of defensive medicine is easily in double digits.”
Can we just agree to disagree on defensive medicine and let it drop? It exists in states with and without caps, and none of you can say with a straight face that the fact that the noneconomic damages would be limited to only $250,000 would change what you do.
Let’s just let it go on that issue, for both sides. You guys don’t need to prove to me anymore that it exists and I won’t try to prove that you’re overstating it by miles? We can each find studies to support our position – yours the Kessler and me the GAO.
Dr. Darcy,
I give the anonymice the same courtesies they give me. If you want to have a cordial discussion, I am willing to engage you cordially. They are not, as their posts indicate. And many physicians are not – the discussion on this issue always goes back to how much lawyers make. No one seems to want to acknowledge this is about hurt people, or even about the fact that it’s about how much physicians make. We can talk all day long about defensive medicine, but the real reason we are having this discussion is because physicians are facing higher malpractice rates. They aren’t really sure how insurance works, so they’ve turned to a convenient scapegoat, spurred on by the insurers.
Getting sued IS unpleasant – I’ve been sued myself. The truth is, though, I can’t change how a person deals with stress. You either can handle it or not.
I think it’s even tougher for professionals like physicians because they lose the element of control. It was tough for me for that reason. I’m usually the attorney, the one who you turn to for the answers, but I had my own attorney. And no matter what my assessment of the case against me, I understood that I didn’t have complete control.
And, as you sort of acknowledge, a lot of this stress is inflicted by your own lobbying agency, the AMA. They are scaring the bejesus out of you guys. The truth is that the really scary part of the process for a physician seems to be that their judgment is being questioned, and the other side won’t simply agree with them.
The odds of losing everything and ending up bankrupt are miniscule. The odds of being unemployable are miniscule. But how can I change the mentality that you shouldn’t be challenged.
Like any other form of stress, you couldn’t let it consume you. There’s little I can do about that. To some extent, you DO have to suck it up. We all do in all facets of life. Sometimes we screw up, or others simply don’t agree with us. Sometimes people get fired because of someone else’s mistake. Sometimes people fall asleep at the wheel and end up in the other lane and kill someone. All crappy things. I can’t coach you on how to deal with those things.
All I ask is that you don’t make it worse on the people who are already suffering.
Hi CJD,
Thanks for the response. I’m sorry you were sued, I agree that the issue of control is a huge part of what’s so disturbing about the idea.
And, I do not doubt that you personally practice ethically and do your best for your clients.
I do disagree, however, that all or even most malpractice cases are about helping people who have been genuinely harmed. I think the 75% or greater defense “win” rate suggests that there are a lot of weak cases out there. Obviously, these people are suffering, but in the cases I’ve seen in my (anecdotal) experience, I have not seen the same causal relationships the plaintiff’s attorney has seen.
For example: my friend was sued for complications that could have arisen as a result of her course of treatment, but most likely were the result of the patient’s constant use of methamphetamine and god knows what all else, including likely during the plaintiff’s inpatient stay. The case settled for a small sum (but certainly enough to buy a few weeks worth of crank, even minus attorney’s fees). Yes, that plaintiff is suffering, but whose “fault” is it?
Or the plaintiff suing my non-psychiatrist colleague because he failed to increase her husband’s SSRI in a single sub-specialty consultation 6 months before her husband suicided? Yes, this woman is very much suffering. But, I can’t see how it’s my colleague’s “fault.” But, my colleague works for the “big rich academic medical center”.
I agree with you that some physicians are incompetent, do irreparable harm, and should not be practicing. Do you agree that some lawyers are unscrupulous and will sue a large self-insured academic medical center like the one where I work, because they know they’ll be likely to get *something* out of it, as says our in-house council?
How many people are harmed to the degree where, if all of their future medical expenses are covered forever, and they are paid for lost wages, etc, etc, $250k more isn’t enough?
For the guy where the surgeon amputates the wrong leg, or the woman who loses a baby to a drunk OB, does the money really help? Does becoming rich ease the suffering?
Or is it about the perception of justice?
Is it about making sure that the bad thing never happens again to anyone else?
Do non-economic damages, capped or not, contributed to a feeling of justice or to system change? It doesn’t seem like they do, given how screwed up the system is.
In my speciality, I work with a lot of people who become totally disabled as a result of illness. Free medical care forever and payment for lost wages is a really good deal- much better than the one available to folks who just get sick.
How does more than $250k in non-economic damages really make things better? For the system as a whole? Large punitive judgments perhaps punish bad actors, but the bad actors don’t seem to be modifying their behavior.
“The truth is that the really scary part of the process for a physician seems to be that their judgment is being questioned, and the other side won’t simply agree with them.”
I don’t give a damn about my judgement being questioned. I’ve been robbed many times, I hate the feeling of a knife to my throat, and the bottom line, is like being robbed, being sued is so unfair. Those who do the work we do know it’s already so hard, then some stranger comes in and says they’re going to make alot of money because a patient had a bad outcome, which happens no matter what science can do. It’s just got to change.
“I do disagree, however, that all or even most malpractice cases are about helping people who have been genuinely harmed.”
I think you’d have to know more of the statistics about claims made and settled to come to that conclusion. You couldn’t just go off trials. But if you were to go off the trials, I would think that would give you a lot of confidence in the jury system. At least some cases that go to trial are over disputes on value, not liability.
I have no doubt there are bad suits and bad lawyers out there. We’re only human out there. And I couldn’t begin to comment about the merits of your friends case. But one thing – damage caps wouldn’t change a case like that. It was unlikely to reach them anyway.
As for suing just because of a deep pocket, I’m sure it happens. But in my experience, few insurers will settle a bad claim. They just don’t want to be known as soft. And as expensive as med mal claims are to litigate they seem the worst arena for just filing deep pockets claims.
As for your damages questions, they are all good ones. Can money ever give you your life back? Not at all. But as a society, we have determined that the lost arm still has value, and money, imperfect as it is, is all we can give you.
How many cases are there where the noneconomics are that severe? Very few. And that’s the way it should be. Is $250K enough? I don’t know, but shouldn’t that be for a jury of 12 people to decide? People who have heard the evidence as to the damages (even if we say they aren’t smart enough to determine liability) and can weigh the value as opposed to a legislature that’s never met anyone involved?
You ask if “becoming rich” eases the suffering. But really, are they rich? If you’re not a wage earner, you’re not getting rich. Let’s say a physician’s negligence causes you to lose that arm at 10, and you get a million dollar non-economic verdict. You’ve got 60 more years to live. Would you trade your arm for that amount of money?
As for punitives, they are just such a rare thing in individual physician’s malpractice actions, I don’t even consider them in that debate. They are included in the HEALTH Act the President is promoting because that allows for protection for any type of medical or medical products provider, including drug manufacturers.
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