Kevin, M.D. - Medical Weblog

Hopefully the FP doesn't let this ruin her/his career.

A good lawyer is needed, though.

A requirement for a successful malpractice action is that harm, dependant on the alleged malpractice, have occurred. If it is true that nothing would have occurrred differently despite the delay in diagnosis, then no harm "but for" the delay exists and no basis for malpractice exists. Thats where the good lawyer comes in.

Physicians seem to have a knee-jerk response to denigrate lawyers. But remember, in every malpractice action a lawyer is defending a physician.
 

in other words, the lawyers get paid no matter what. the only losers here are the doctors and the patient
 

So Sorry Works, huh?

I can relate a story from my own practice: A woman (diabetic) gave birth to a 5.400 g baby, there was an impacted shoulder even with the mother in the Gaskin's position and while delivered the baby suffered an Erb's palsy.

The baby was offered an operation but the mother declined.

Six months later, she came to me for contraception. After this was completed, she said:

"I feel really bad about saying this; because you are the only one who has been decent to me throughout all of this. But I'm going to sue anyway, because my child might need the money."

Sorry doesn't work. Nothing works when money is concerned.
 

in other words, the lawyers get paid no matter what. the only losers here are the doctors and the patient

Couldn't be more appropriate.The legal industry- with a lot of help from government and regulation- is structured to ensure that money- a lot of it- is flowing
through its system. The specific concepts of plantiffs or defendants, little guys or big corporations,or let be patients or doctors, justice or injustice, don't actually
have a bearing on the economics of the industry. The money is there regardless of who wins.

And for Samson what was the fate of your case. Did you ever plan to counter sue?
 

No, our system isn't like that; as I work in a public Hospital it really is the government that gets sued, not me personally. What will happen is that in the course of some years, her case with labourously work its way through the bureaucracy, and whether she will get her money or not is a quite random process. So in these cases I am never held economically responsible except as a taxpayer, on an equal basis with every taxpayer.

Most probably whe won't see a dime from this suit; Erb's palsy cases rarely get any compensation. Which is not the same as stating she (it was a lovely little girl, she sat on my knee during the entire consultation and was a real darling; althoug every time I looked at her limp and withered arm it cut me in my heart) will suffer economically, the Norwegian Welfare State will give her ample economical support even without any suit or complaint.

This system stinks.
 

"Couldn't be more appropriate.The legal industry- with a lot of help from government and regulation- is structured to ensure that money- a lot of it- is flowing
through its system. The specific concepts of plantiffs or defendants, little guys or big corporations,or let be patients or doctors, justice or injustice, don't actually
have a bearing on the economics of the industry. The money is there regardless of who wins."

There's nothing like an Anirban tirade on something he knows little about.
 

There's nothing like an Anirban tirade on something he knows little about.

You can’t digest the truth which will only get bitter with time. Anyway I can’t name your tirade without offending others. You know why
 

"Sorry doesn't work. Nothing works where money is concerned."

My first reaction is to cynically agree, but at least Sorry Works is trying to solve the problem. It's not just about greed. It's about an environment where trust has disappeared, and many factors play into that beyond malpractice claims. It's not unusual for a patient to have to wait 6 months for an MRI, even when the physician needs the results before s/he can prescribe the proper meds. In such a system, people are going to get frustrated and they're going to strike back. It solves nothing to view all patients as potential malpractice threats and treat them accordingly. That threat will diminish if access to care improves and care itself is provided with genuine interest and empathy...and the lawyers will have to move on to other targets.
 

"It solves nothing to view all patients as potential malpractice threats and treat them accordingly. That threat will diminish if access to care improves and care itself is provided with genuine interest and empathy...and the lawyers will have to move on to other targets."

Wrong - it solves alot of problems because we test patients out the whazoo to protect ourselves from the potential lawsuit. And you have it backwards - access to care will improve WHEN the threat of lawsuits diminish.
 

"...access to care will improve WHEN the threat of lawsuits diminish."

Should that be expanded to include the increasing number of doctors who are suing their own clinics? Two doctors recently sued their own clinic associations here in Illinois...one allegedly because he was denied hospital privileges after pointing out some quality issues, and other (an orthopedic surgeon) due to "lack of insight" issues. You're telling me that in an environment where doctors are filing suits against each other, it's still all the greedy patients' fault?
 

A comment from a patient's perspective.

From 9/99 through 3/02 I underwent seven surgeries from the same surgeon for a recurring lesion. Each time, he removed it, sent it to the pathologist, results came back benign, and within weeks the lesion had returned.

I did not complain. They were minor surgeries and I believed the surgeon was looking out for my best interests.

After the seventh surgery, the doctor sent me an e-mail to say that I should consult with either of the other two surgeons in his department for any further recurrences. About a year later, another physician told me that I should have the lesion checked out again, so I contacted the surgeon's office to find out which doctor I should see. I was told someone would call me back.

Five days later I received a certified letter informing me that I was terminated from that surgical group for "past interactions."

No, I don't know what those interactions are, because no one would have any further communication with me. As a result of the termination, I have to travel 100 miles for insurance-covered care in that specialty.

To make this even more confusing, while a patient of that surgical group I had donated over $1,000 to a fund which sends their nurses and residents on "Operation Smile"-type missions.

If this is how doctors are dealing with malpractice fears -- by terminating patients who never complained, just because of circumstances they had no control over -- it really, really stinks.
 

It's not unusual for a patient to have to wait 6 months for an MRI, even when the physician needs the results before s/he can prescribe the proper meds. In such a system, people are going to get frustrated and they're going to strike back

But they strike the wrong target. Will they sue the MRI clinic then ? Oops the clinics already have much in their plate and there is a long queue . So will they sue those patients, sorry their doctors? Yeah those doctors prescribed MRI even it was not needed ,Will they sue those Doctors? Alas they had nothing to do but to exclude the rarest of the rare and who knows what comes up. Why the doctors are behaving in such a way. If the patient has got the answer I will be happy if they strike the right one.

It solves nothing to view all patients as potential malpractice threats and treat them accordingly

Our culture demands that . no country other than USA had endeavored the slippery slope of solving everything legally . there are plenty of lawyers and record number of lawsuits and Americans seem happy about it . newzealand has almost similar malpractice incidents ,corrected to the population, what we have here, with out so many cases being filed. The traditional idea of Doctor-patient relationship and an adversarial legal system doesn’t gel. But that is the way of life here. I am skeptical that your dose of ‘empathy’ and ‘genuine interest’ has any thing to do with that or to those ‘other targets’, you hope will pacify lawyers, if they leave you. Let Americans decide what they want.
 

"there are plenty of lawyers and record number of lawsuits and Americans seem happy about it ."

Anirban, why do you continue to post about this subject? Every post makes you look more foolish.

Tort filings are actually down over the last decade.

And how would you prefer we resolve disputes if not in courts? Gunfight at dawn? Every first world country decides disputes in some form of a court.

Try just doing a LITTLE bit of research.
 

"Tort filings are actually down over the last decade"

Give me some data about how it fares compared to rest of your first world countries.

"Every post makes you look more foolish"

Are you looking in the mirror?
 

"not unusual for a patient to have to wait 6 months for an MRI, even when the physician needs the results before s/he can prescribe the proper meds. In such a system, people are going to get frustrated and they're going to strike back"

The main reason for the delay? Insurance companies refuse the MRI. Of course with our great Supreme Court, insurance companies cannot be sued. In the immortal words of Justice Souter "They are only the payer". If he really believes that he is really a moron. With an idiot like that in the supreme court nothing will change. But hey sue the docs whether or not they have power to changethe situation. "Somebody" has to pay right. Who cares who.
 

"Give me some data about how it fares compared to rest of your first world countries."

Do your own research. Of course, with different legal systems and larger social safety nets, it's hard to compare from country to country, unless you're doing, say, Canada and Great Britain.

"Of course with our great Supreme Court, insurance companies cannot be sued."

What are you talking about? Insurers are sued every day.
 

"What are you talking about? Insurers are sued every day."

Do you own reading of supreme court judgements. I am not going to spoon feed recent (2004) supreme court judgement's for you. If you are a lawyer you clearly are an uninformed one.
 

Correct anon, the Supreme Court ruled that patients do not have the right to sue health insurers or HMOs in state courts. I wish CJDlite would know a little more about his own field. He would look less like an idiot. Before you start CJDlite I know you can still sue in federal court but as you know (I would hope), in federal court you can only get the cost of the service or been benefit that was denied or maybe an injunction against the HMO to provide the service that was denied.
 

This is the problem when physicians practice law. It doesn't say that HMOs can't be sued. It says they can't be sued for MALPRACTICE by patients. They can be sued for benefit denials.

And it's only those which are ERISA plans. The blanket statemet that insurance companies and HMOs cannot be sued is a false one.

Settle down, gentlemen.
 

I believe it has already been conceded that insurance companies can be sued to recover the benefit, or the cost of the test in question.

What we're actually discussing, though, is who "pays" when a six-month delay in testing causes a harmful (or even just frustrating) delay in treatment. It was rightfully pointed out that in many cases, the cause for the delay in testing is due to insurance denials for prior-authorization (i.e., refusal to cover). Ultimately most doctors can get most tests approved if they really feel strongly, it just takes a lot of time and appealing and navigating the bureaucratic layers of the insurance's claim departments (usually, the job of reviewing requests for MRIs are farmed out to another company). I

In the end, even if the insurance ultimately agrees to cover a test and/or a patient successfully sues to have it covered, the insurance can never be held liable for the damages associated with the delay in treatment.

BTW, you could lose the arrogant attitude yourself. Citing the law (or in this case a judgement) hardly qualifies as attempting to "practice law". If I state that there are laws against murder in my state, am I practicing law too? Just like its hardly "practicing medicine" for a mother to give her kid a cough drop or a middle aged man to that exercising more would be healthy, a layperson can certainly be capable of determing what it or is not the law.
 

What kind of idiot are you anon 10:12? By denying benefits that a doctor ordered the HMO is essentially practicing medicine. Is this concept really that unclear to you? For instance, pt with back pain (example above) doesn't get an MRI for 6 months that a doctor has ordered (talk to any outpt doc this happens ALL the time). Six months down the road the pt develops lower extremity weakness, presents to the ER gets an MRI and has a structural lesion resulting in surgery and permanent deficits. The patient goes after the DOCTOR for failure to diagnose not the HMO even though it was the INSURANCE COMPANY that refused in MRI in the first place. I myself had a patient after a CVA go to lower level of care than he needed (thanks to a cheap ass insurance company and an idiot for a medical director). Within 24 hours he was back in the ER/admitted. The fact is by denying care that a medical professional has deemed needed an HMO is practicing medicine.
 

"This is the problem when physicians practice law"

Read for comprehension CJDlite. How is citing the law practicing law?
 

"The fact is by denying care that a medical professional has deemed needed an HMO is practicing medicine."

Hey, I agree with you guys - I think they should be liable.

But can you point me to a case where a physician has been held liable for a test that an insurance company would not approve?
 

Spare me the lectures on arrogance. You may be seeing the speck in my eye, and missing the board in your own.
 

"Read for comprehension CJDlite. How is citing the law practicing law?"

The law was not cited. It was misstated.
 

Nooo, once again it was not. Your inability to read for any type of meaningful comprehension means you failed to appreciate the context in which the statement "the insurance can't get sued" was made. For the third time, yes we are aware that insurance can be sued to recover the cost of a denied test. Yes we are aware that insurance companies are sued every day Conceded. Debate over. But that is not what anyone was really talking about. (In case you need it spelled out: HMOs CANNOT be sued for any malpractice claim or damages sustained as a result of their coverage decisions.) Clearly the statement was in response to the idea of damage (again, physical or emotional) incurred by the patient when an HMO refuses to auhtorize testing and treatment. If a doctor were perceied to be responsible for this kind of "damage", they'd be sued for malpractice. But because insurance is "just a payer" (albeit a payer who gets to also make medical decisions) they CANNOT be sued. Read Anon 9:10- "people are going to get frustrated and they're going to strike back." The question is- can they "strike back" at the appropriate source (their insurance)? No, and this is exactly what that supreme court decision pertained to. And so the worry becomes that patients take their frustrations out on the doctor and their staff... I have had many patients bitch at me and my employees when their insurance denies a prescription or test. They definitely misplace their anger, but I am an accessible and immediate target, their HMO is not.

Do you get it YET? Or shall I explain a third time...

And BTW, you've yet to defend your ridiculous and sarcastic claim that any physician in here was "trying to practice law." Arrogant indeed.
 

"Correct anon, the Supreme Court ruled that patients do not have the right to sue health insurers or HMOs in state courts."

This was the statement. It is incorrect in that it is too broad. The ruling only applied to ERISA plans.

"The question is- can they "strike back" at the appropriate source (their insurance)?"

If by "strike back" you mean be rude to you, then yes they can. If by "strike back" you mean have a malpractice claim against, you, then the answer is no.

Perhaps it was a question of specificity that led us astray. But as you know from reading reports of medicine in the media, lack of specificity can cause some huge misunderstandings.
 

I sincerely don't mean to offend anyone here, but for those of you who are medical professionals: Are there systems in place at your hospital/clinic that give patients an opportunity to work out questions and conflicts without resorting to other measures (which may well be extreme and inappropriate, as you have said)?

My own experience at a large local clinic was that concerns are directed to a Patient Relations office which reports to clinic Risk Management attorneys. They would simply not discuss the question I asked (involving my inability to get test results from a surgeon, who felt that telling me "it's just benign" was sufficient...since the problem recurred, I felt a little more detail was appropriate and did not think I should have to pay $20 for a copy of my records just to get test results).

I had and have no intention of suing anybody. I'd have happily signed away any right to do so just to get a straight answer.

Anyway, it seemed to me that the clinic was a bit eager to slam the door in my face. If that's not an exception to the rule, I'd hesistantly propose that maybe such attitudes contribute somewhat to the problems here.
 

Patients rarely seem to understand their rights concerning medical records very well. Records are the property of the physician, not the patient. Test results are the property of the physician who requests (orders) the test, not the patient whom the test is performed on. Now the law does allow patients the right to receive copies of their records, but both HIPAA and state laws provide for doctors to charge and collect a records copying and/or handling fee. A fee can't be charged for records to be sent to a specialist that they've been referred to, but any other purpose (changing to a new doctor or moving, personal uses, etc.) can be charged for. The maximum amount chargeable varies from state to state, but in my state, you may charge $15.00 up front plus $0.35 per page for copying, plus any postage expenses.

Now, with all that said, I DO feel that your doctor obviously owes your more of an explanation than "its benign". I don't know what to tell if you he won't though, other than to purchase a copy of the record yourself. BTW, did you contact them by phone asking that the doctor talk to you with more explanation or did you schedule an appointment to go over the results in person? Doctors often may resent being asked to give additional explanations by phone (for free) when they could be paid for the time at an office visit. Not saying its right or wrong, but that's how it is. Good luck.
 

Thanks. No one explained that records are the physician's property so I assumed (it being my tissue and my having paid both the surgeon and pathologist to get the testing done) that maybe I was entitled to more specific results. If not, OK, I'll pay for the records. I did leave a message for the surgeon that I'd pay a consult fee to go over the results in more detail, but if he got it, he never responded. Anyway, thanks again for the perspective.