Comments on:

By: Curious JD

Curious JD — Fri, 09 Sep 2005 13:07:00 +0000

"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.

By: Anonymous

Anonymous — Fri, 09 Sep 2005 11:06:00 +0000

“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.

By: drdarcy

drdarcy — Fri, 09 Sep 2005 03:46:00 +0000

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.

By: Curious JD

Curious JD — Fri, 09 Sep 2005 02:34:00 +0000

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.

By: Curious JD

Curious JD — Fri, 09 Sep 2005 02:21:00 +0000

“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.

By: drdarcy

drdarcy — Fri, 09 Sep 2005 01:47:00 +0000

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.

By: Anonymous

Anonymous — Fri, 09 Sep 2005 00:38:00 +0000

” 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.

By: Rich, MD

Rich, MD — Thu, 08 Sep 2005 23:36:00 +0000

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.

By: Curious JD

Curious JD — Thu, 08 Sep 2005 23:02:00 +0000

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!

By: Anonymous

Anonymous — Thu, 08 Sep 2005 21:43:00 +0000

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.