| November 30, 2005
Not happy with his malpractice defense, a doctor sues the law firm that defended him.
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About as ridiculous as the overabundance of malpractice suits. But, maybe if this happens more without regard to the actual quality of counsel provided, then lawyers will get a better sense of doctor’s problems with the current malpractice system.
i think all lawyers should welcome an opportunity to represent people who have had a negative outcome in the courtroom because their lawyers did not adhere to SOC (standards of counsel).
What number of malpractice suits constitutes an overabundance? 1?
Doctors have a problem with the current malpractice insurance system. In that they don’t like to pay premiums.
What constitutes an overabundance of malpractice suits?
The great preponderance of research finds very very little correlation between physician negligence and suits.
A study of 14,700 Utah and Colorado patients cared for in 1992 found 18 suits filed. 14 of these claims were found to have no discernible medical negligence.
(Studdert, David, et al. Negligent Care And Malpractice Claiming Behavior In Utah and Colorado)
Reviews of patient data from New York and California have found the same.
1 meritless case is an overabundance. The burden should NEVER be on the doctor to provide the time and money to prove he didn’t do something wrong. That’s exactly what this “throw it all against the wall and see what sticks” type of attitude does…shifts the burden. The system is absolutley atrocious in both allowing frivolous cases to be heard and giving decisions or forcing settlements in these same cases.
Let me be objective though. “Paradoxically, the incidence of negligent adverse events exceeds the incidence of malpractice claims but when a physician is sued, there is a high probability that it will be for rendering nonnegligent care.” The Colorado and Utah study found 133 cases (among 14,700) of negligent care with adverse outcomes. Yet only four of those patients who had suffered negligence filed suit. That’s a 97% chance of those physicians in Colorado or Utah not facing the consequences.
The current adversarial system does not favor true negligence. It favors drama and theatrics and wealthy patients. One need to look no further than the thousands of payments made to cerebral palsy plantiffs, despite the fact that current research now seems to show a lack of obstetrician responsibility for the limitations of these children.
Aside from my feelings on caps and other malpractice issues, the system has to change to protect physician’s from having to battle meritless cases and to give better access to those patients who actually deserve to be heard in a courtroom.
So, yeah, 1 frivolous case, that’s an overabundance.
“One need to look no further than the thousands of payments made to cerebral palsy plantiffs, despite the fact that current research now seems to show a lack of obstetrician responsibility for the limitations of these children.”
Wait a minute. How many CP cases are there? How many payments have been made? Are you saying that malpractice has NEVER resulted in CP? If you don’t know the answer to the first two questions, which you don’t, how can you use the CP cases as an example? Quite simply, you can’t.
But let’s say everything you say is true. For sake of argument, of course, because it isn’t.
What do you propose we do to “protect physician’s from having to battle meritless cases and to give better access to those patients who actually deserve to be heard in a courtroom”?
How do the current proposals that are making it to legislatures actually do that?
And here’s another question, which also assumes you are right. There are studies that show that many people, despite clear negligence, just want the doctor to admit it. To acknowledge what he/she has done. Most attorneys who handle med mal will tell you that the #1 complaint they hear is “We can’t get any answers.” Studies show that a doctor who is honest with people has a much less likely chance of being sued. So what is your profession doing to improve itself? I hear lots of stories about how wrong everyone else is, but other than the anesthesiologists, the physicians only seem to move when it starts costing them money. Which is really all most current tort reform proposals are about – hopefully saving a few premium dollars (no guarantees, of course).
By the way, the “great preponderance” of research finds that it is a small percentage of physicians who are sued, and that malpractice insurance is less than 10% of most physician’s overhead costs.
Lets change things CJD:
“Are you saying that malpractice has NEVER resulted in CP”
Please specifically show me how cerebral palsy is “caused” by malpractice. Please explain the pathophysiology of the process and give peer reviewed journal articles to back this up.
“By the way, the “great preponderance” of research finds that it is a small percentage of physicians who are sued”
If you bothered to really look at those statistics you would see the the odds of getting sued are much much higher if you are an OB, neurosurgeon, or ER doc rather than if you are an internist or pathologist. It is more the “type” of work you do than anything else.
“Please specifically show me how cerebral palsy is “caused” by malpractice. Please explain the pathophysiology of the process and give peer reviewed journal articles to back this up.”
Are there any peer reviewed journal articles on individual malpractice cases? I would refer you to the abstract of this article (note the last sentence):
Even this article, which contains the typical medical provider indictment of the legal system, acknowledges that medical malpractice can result in CP:
No one is saying ALL cases of CP are caused by malpractice, anymore than anyone is saying NO cases of CP can be caused by malpractice. However, since no one knows how many payouts there are on CP v. how many cases there are of CP, no one can say if there is an overabundance of them. If it’s 1 per 1000, that may well be an expected number.
As to the statistics, I think it is you who needs the review. Google “Gerald Hopkins”, the physician responsible for a number of the studies and read his conclusions. While the specialty does matter to an extent, it is not the key issue.
Again CJD shows what an idiot he is by saying that it is a “small percentage” of physicians that get sued. So what’s a small percentage? 70%? 80%? 90%? Depends on the specialty. Show me a neurosurgeon who has been in active practice for 15-20 years and I will practically guarantee that he will have at least a couple of lawsuits (likely meritless) under his belt.
An idiot? He’s just trying to support a point. Name-calling gets you nowhere. Scratch that; it actually hurts your credibility. Refute his argument and leave it at that.
The percentage of caesarian section births in America has increased from 6% in the 1980’s to almost 30% today.
This is due, at least in part, to doctors’ and hospitals’ concerns about lawsuits and potential future accusations that they didn’t do a c-section quickly enough, thereby causing celebral palsy. This are the kinds of cases that John Edwards got both famous and rich on.
One might imagine that the percentage of children born with CP would have gone down, since so many doctors are doing c-sections earlier and earlier in the birth process….but one would be wrong.
Sadly, the percentage of children born with CP has not budged a single percentage point. Couple that with prospective studies in peer reviewed journals which indicate that fewer than 10% of cases of CP are caused by birth injury (put another way, 90% aren’t caused by birth injury).
It’s tragic that the increased number of c-sections, which are far more difficult for the mother to recover from, hasn’t reduced the CP rate, although it IS pretty telling when you think about it…
“This are the kinds of cases that John Edwards got both famous and rich on.”
Actually, the case that made John Edwards famous was representing a little girl who had her intestines sucked through her rectum by a faulty pool drain. You know, another winner of the “jackpot”! John Edwards got rich because he is very good at what he does. The same reason lawyers for the defense get rich, and the same reasons many physicians get rich.
But your post illustrates how poor physicians are in assessing and understanding their liability risks. Just like increased defensive medicine hasn’t reduced the likelihood of being sued, increased C-sections haven’t either. Yet you still do both despite clear evidence of their futility.
The implication that John Edwards’ cases’ did not involve actual malpractice is just that, an implication. There is no factual basis for it, since John Edwards has probably handled less than 1% of 1% of all the CP cases in the country. Surely we can agree that at least that many could have been the result of malpractice.
CJD do you actually READ the links you post?
Two pertinant quotes from your article:
b) the inherent tolerance or resistance of the fetal brain to intrapartum asphyxia using current markers renders it almost impossible, with any degree of certainty, to offer a legal opinion as to whether an alternative medical strategy could have altered the neurologic outcome or whether the outcome was an unavoidable act.
CONCLUSIONS 1. Perinatal hypoxic-ischemic cerebral injury, secondary to intrapartum asphyxia, resulting in CP, is a rare event in most delivery rooms and neonatal intensive care nurseries.
Also note this is a 1997 article accepted back in 1996, Long before the 2003 ACOG review on the subject. I am also not saying that CP is NEVER caused in the perinatal window (excuse the double negative). I am saying there is still much more that we don’t know than we do on this subject and to crucify OB’s on this is wrong. The right thing would be to set up a fund to help ALL CP individuals. Of course that would knock out the 40% JD cut. Guess that won’t be seen in any state house soon.
I did read them. And I agree with them. It is rare. But note what they don’t say – that it can never be the result of negligence of the physician.
Here’s the problem with your argument, which I’ve tried to explain to you guys before. You don’t know how many CP lawsuits there are v. how many CP kids there are.
The number of suits may be very statistically small. You simply don’t know. Thus, your argument that there are too many fails for lack of factual basis.
Spare me about the right thing to do. When the AMA and physicians propose anything that insurers don’t want them to do, then you’ll have some credibility on the “justice” and “right thing to do” argument. You think your insurance allies are looking to pay more for all those CP kids? Wake up.
Overlawyered had a good post on the Valerie Lakey case that CJD mentions.
“Here’s the problem with your argument, which I’ve tried to explain to you guys before. You don’t know how many CP lawsuits there are v. how many CP kids there are.”
Also the fact is YOU don’t know which CP cases could indeed be caused by malpractice. The fact is WE DON’T KNOW. I’ll repeat it for you WE DON’T KNOW.
“Spare me about the right thing to do. When the AMA and physicians propose anything that insurers don’t want them to do, then you’ll have some credibility on the “justice” and “right thing to do” argument. You think your insurance allies are looking to pay more for all those CP kids? Wake up.”
Oh pleeze. Tell me how many time YOU have done the right thing when it did not mean money in YOUR pocket. You may lip service about “looking out for the little guy” but only when it means money in your pocket. Tell me CJD how much “pro bono” work have you done this week? Who says the money has to come from insurers. Can’t you read? Why did I mention “state house”. Part of the problem is you look as docs as some sort of monolithic entitity? Insurers aren’t my allies. I go to bat for patient’s on a daily basis against insurers. Do you? The one who needs to “wake up” is you.
“Also the fact is YOU don’t know which CP cases could indeed be caused by malpractice. The fact is WE DON’T KNOW. I’ll repeat it for you WE DON’T KNOW.”
Now you’re getting it!! So to say that this case or that case COULD not be caused by malpractice is simply ridiculous. We simply don’t know unless we reviewed the medical records. Nor can you say that there are too many cases because, as you put it WE DON’T KNOW how many there are!! Finally, a breakthrough!
“Tell me CJD how much “pro bono” work have you done this week?”
This week? 5 hours. You’ll see no lip service from me about “looking out for the little guy” because I, like you, do my job to get paid the majority of the time.
” Part of the problem is you look as docs as some sort of monolithic entitity? Insurers aren’t my allies.”
I see you as no more monolithic than you think lawyers are. If insurers aren’t your allies, why are you going to bat for them with tort reform? Who do you think wins with that? When you or your lobbyists put something up in a legislature that actually does benefit patients, come talk to me. It may be YOUR personal goal, but it’s not a goal of your industry. I applaud you for going against the grain, though.
“I go to bat for patient’s on a daily basis against insurers. Do you?”
Are you joking?
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