Required reading: Our malpractice system punishes bad luck and negligence the same way. “. . . The plaintiff’s attorney tried to make him look incompetent. Witnesses were called to the stand – other doctors with fancy titles, some of whom make a business of criticizing other physicians. They said some damaging things that were not accurate. I felt the very real urge to stand up and shout a warning to the jury.

Then my friend spoke in his own defense. His strategy was brilliant: He taught the jury a class about the medical facts involved. He is a gifted teacher, and he was in his element. The lawyers made their final statements and suddenly, it was over. The jury was sent out to deliberate.

After just minutes, the verdict came back: The jury absolved my friend of any wrongdoing.

While he was immensely relieved, it did nothing to restore the two years he spent agonizing about whether he would be bankrupted or whether he would be able to continue working with this charge on his record.”

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  • Anonymous

    Yeah, your physician was drunk – bad luck for you!! Sucker!!

  • Anonymous

    The article actually says: “I tried to explain that if an American doctor was CONVICTED OF MAKING A MISTAKE, not only would he have to pay for any medical costs and lost wages but that he likely would have to pay for the pain and suffering incurred by the patient and family. Coming from an environment where pain and suffering are the norm, [THE AFRICAN DOCTOR] could not comprehend that such a system should exist. ‘But THAT IS JUST BAD LUCK, he said, ‘WHY should you have to PAY SOMEONE FOR THEIR BAD LUCK?’ ” [CAPS are mine, for emphasis.]

    Kevin’s header ‘Our malpractice system punishes bad luck and negligence the same way’ is misleading — one doctor in the linked article was talking about negligence ['mistake'], which the other doctor called simply ‘bad luck’, a conflation of two terms that don’t mean the same thing. The article doesn’t support Kevin’s comment.

  • Anonymous

    “Kevin’s header ‘Our malpractice system punishes bad luck and negligence the same way’ is misleading”

    Actually, it’s not misleading. The point is that this physician was dragged through hell because of “bad luck”, not negligence. And there are a hell of alot of lawsuits over bad outcomes, not from negligence, but from bad diseases that caused bad luck.

  • Anonymous

    How many?

  • Anonymous

    How many? Way too many.

  • Anonymous

    How many?

    As least as many as judgements for defense (70-90%) since CJD has so much faith in jurors. This does not count the number that don’t make it to trial.

  • Anonymous

    ‘Actually, it’s not misleading. The point is that this physician was dragged through hell because of “bad luck”, not negligence.’

    Wrong. There is nothing in the recitation that indicates the outcome was bad luck instead of negligence…except that the defendant doctor SAID it wasn’t negligence. Sayin’ it don’t make it so.

  • Anonymous

    “There is nothing in the recitation that indicates the outcome was bad luck instead of negligence…except that the defendant doctor SAID it wasn’t negligence. Sayin’ it don’t make it so.”

    So the jurors didn’t know what they were talking about? They judged that no wrong was done. Geez, I guess that means the jury was stupid or something – but, no, wait, after all, CJD and his ilk tell us that the juries of our peers can’t be wrong. Don’t think you can have it both ways.

  • Anonymous

    So you don’t know how many? How about this? What percentage of all med mal suits lack merit?

    Looking forward to the answer.

  • Anonymous

    “So you don’t know how many? How about this? What percentage of all med mal suits lack merit?”

    About 85% result in no payout whatsoever so at least 85% are meritless and many of the other 15% are without merit but are settled to avoid a costly trial. This probably leaves about 10% or so having some merit.

  • Anonymous

    85% of all claims or all suits? Or do you mean 85% of all that are tried?

    And what is the source for that 85% claim? The highest I’ve ever seen was 75%, and that was only on cases tried. Which of course undercuts the ignorant jury theory that physicians believe justifies health courts.

  • Anonymous

    When a doctor wins a med mal case, why is the assumption then that the case was ‘meritless’? It’s simply not true. The question of what constituted wrongdoing is not black and white, and that’s WHY there is a trial, so figure it out in the particular circumstances. If you’re going to complain about the legal system, at least understand it first.

  • Anonymous

    “Which of course undercuts the ignorant jury theory that physicians believe justifies health courts”

    And “how” does this undercut the health court theory? Any info to back up you statement or just your “personal opinion”.

    “When a doctor wins a med mal case, why is the assumption then that the case was ‘meritless’? It’s simply not true. The question of what constituted wrongdoing is not black and white, and that’s WHY there is a trial, so figure it out in the particular circumstances”

    thank you a perfect argument for “Health Courts” in which trained judges (panels) and nonbiased experts can sort out what happened and whether it was malpractice rather than hired guns from BOTH SIDES singing a given tune based on who is paying them and a jury that may or may not be able to weed through the crap to figure out the truth. Don’t forget about the 40% of expenses that the lawyers suck up while they are “fighting for the little guy”.

  • Anonymous

    “And “how” does this undercut the health court theory? Any info to back up you statement or just your “personal opinion”.”

    Because the theory behind health courts is that juries aren’t smart enough to get it. Yet they rule in favor of the physician 75% of the time, which physicians say is correct.

    “Don’t forget about the 40% of expenses that the lawyers suck up while they are “fighting for the little guy”.”

    If you were injured today as a result of medical malpractice and couldn’t work, how exactly would you pay all your regular bills and fund your medical malpractice case?

  • Anonymous

    “If you were injured today as a result of medical malpractice and couldn’t work, how exactly would you pay all your regular bills and fund your medical malpractice case?”

    So is that statement a justification for lawyers taking 40% of the award?

  • Anonymous

    What percentage do you think is appropriate, considering the cost, risk, and time involved?

  • Anonymous

    “Because the theory behind health courts is that juries aren’t smart enough to get it. Yet they rule in favor of the physician 75% of the time, which physicians say is correct.”

    So in other words your “personal opinion”.

    “If you were injured today as a result of medical malpractice and couldn’t work, how exactly would you pay all your regular bills and fund your medical malpractice case?”

    The idea is to leave lawyers out of the process. You tell me which system sounds better. A judge with expertise and a panel of nonbiased experts reviewing the information or the present system in which each side brings in biased “experts” who are paid for their testimony. Throw in a jury which may or may not understand the complexities of a given case. Before CJD brings up the 7th amendment right to a jury trial remember that there are a number of precedents for this in the U.S.: administrative systems for workers’ compensation, Social Security disability insurance, vaccine injury liability, as well as for maritime, tax, and bankruptcy-related matters. Also arbitration in disagrements with brokerages.

  • Anonymous

    “So in other words your “personal opinion”.”

    Actually, it’s the logical conclusion to YOUR personal opinion. Now if you want to call yourself wrong, feel free.

    “Before CJD brings up the 7th amendment right to a jury trial remember that there are a number of precedents for this in the U.S.: administrative systems for workers’ compensation, Social Security disability insurance, vaccine injury liability, as well as for maritime, tax, and bankruptcy-related matters. Also arbitration in disagrements with brokerages.”

    This is where your legal training has let you down. All of what you mention above are not suits at common law which existed at the time of the enactment of the 7th. And you can still sue under the VICP. Most people don’t, however.

    Arbitration is a contractual agreement which has no bearing on the issue of the Constitutionality. If you want to make it part of your contract with your patients, you can (broadly speaking).

    Putting all that aside, though, health courts so far haven’t gotten anywhere in the legislatures because the insurers aren’t backing them. So it’s an academic discussion at best.

    And you would still need lawyers to present the case, to elicit testimony, etc.

    CJD

  • Anonymous

    To think CJD I am actually advocating something the “insurers” are not. This may be hard for you to fathom but some of us docs don’t care for “insurers” anymore than you do. In fact believe it or not some of us docs actually thinks the “caps” are a bad idea in that it is nothing more than a bandaid on a bad system which may result in seriously injured not being compensated appropriately. The idea is to look at a whole new system that is better for patients and doctors. The problem is a “new” system may not include you and your buddies. Then the real fight will begin.

  • Anonymous

    “Actually, it’s the logical conclusion to YOUR personal opinion. Now if you want to call yourself wrong, feel free.”

    Actually I have seen NO statistics that support (or not) the above contention which is why I was asking the above writer for statistics CJD. Additionally I never said this was my “personal opinion”. How about you keep your snide comments to yourself CJD.

  • Anonymous

    Anon 12:34, the problem with being an anonymouse is that it’s impossible to distinguish you guys.

    “The problem is a “new” system may not include you and your buddies. Then the real fight will begin.”

    If physicians were to propose a program that didn’t infringe upon constitutional rights, there wouldn’t be much anyone can say. The percentage of lawyers who do med mal is so small that you wouldn’t get much fight at all. And those guys can make just as much money doing other things as well.

    The problem for you is a “new” system will likely take away the limited amounts of autonomy you enjoy today, and probably reduce your income.

    CJD

  • Hippocrates

    The problem is our “All or Nothing” system for evaluating doctors. Instead of having a flexible rating scorecard it encourages lawsuits. More at: Pay-for-Performance: The Good, The Bad and The Ugly

  • Malorie

    “The idea is to leave lawyers out of the process. “

    But then you’re just fixing one problem and creating another. So now the jury won’t believe the doctors because they don’t understand. They will believe them because they do, and NOW regular people like me won’t know how to defend ourselves real well because we don’t have a lawyer to help us…

    so how does that help us?