I love how the media is making David Studdert look like an idiot

in Uncategorized | 35 responses

I was reading this piece in the Boston Globe about a new malpractice proposal. Of course, Studdert’s malpractice findings are trotted out:

A study released by the Harvard School of Public Health earlier this month found that about 40 percent of the medical malpractice cases filed in the United States are groundless. Many of the lawsuits analyzed contained no evidence that a medical error was committed or that the patient suffered any injury, the researchers reported.
The vast majority of those dubious cases were dismissed with no payout to the patient. However, groundless lawsuits still accounted for 15 percent of the money paid out in settlements or verdicts.

A 40 percent groundless case rate and a 15 percent chance of a payday in these baseless cases – sounds pretty broken to me. But here’s the next paragraph:

The study’s lead researcher, David Studdert of the Harvard School of Public Health, said the findings challenge the view among tort reform supporters that the legal system is riddled with frivolous claims that lead to exorbitant payouts.

Huh? Again, Studdert’s biased conclusions completely go against the results of his own study.

Comments

Anonymous
Those crazy biased Harvard researchers!! Clearly, he’s just another arm of ATLA!
Good stuff, Kevin.
CJD
Anonymous
Actually, Kevin, your problem is that YOU didn’t accurately read the report.
They did not call 40% of those cases “groundless”. You did.
Elliott
Like I said, doctors need to understand statistics and they don’t
Elliott
You are misrepresenting his research. “Lacked evidence of medical error” is not the same thing as “groundless”. Furthermore if you were to see this kind of efficacy for any medical procedure, you would be ecstatic.
Anonymous
You still didn’t read it correctly. But of course, you don’t want to read it correctly because it doesn’t suit your agenda.
A truly nonpartisan study is performed by someone with no benefit to be gained, and it goes against what you want to believe. So rather than change your thinking, you intentionally misread to discredit it.
You sound like a creationist in front of the local school board.
Anonymous
“Like I said, doctors need to understand statistics and they don’t’
Don’t you love it when someone makes generalizations about a whole group.
Kevin
Anon and Elliott – you avoided the question.
“For 3 percent of the claims, there were no verifiable medical injuries, and 37 percent did not involve errors.”
Tell me plainly and simply how you can defend a malpractice system where 37 percent of cases did not involve medical errors.
Thanks,
Kevin
Elliott
Kevin, why do you continue to misrepresent the research. “Lack of evidence” is not the same as “no error” and certainly not the same as “groundless”.
Elliott
Even “no verifiable medical injuries” is not right. I went in for minor surgery (mostly cosmetic). I informed the doctor that a previous doctor had declined to operate because of concern that the site was “communicating” with the blood supply. The surgeon confidently diagnosed a totally different issue (without having ever seen me and no examination beyond visual). He then proceeded to make an incision after using a local anesthesia. He was wrong in a significant way. The problem was a venous malformation (?) which proceeded to bleed profusely, required him to pull another surgeon in from down the hall, cut significant areas without any anesthesia. He then sutured it closed unevenly in a way that would have left a disfiguring scar.
I have no doubt that this doctor made several significant medical errors (verified by both nurses and doctors who removed the offending stitches and properly reclosed a day later), but I had no medical injury as a result.
Anonymous
“Tell me plainly and simply how you can defend a malpractice system where 37 percent of cases did not involve medical errors.”
That’s still a misrepresentation of the research, because of that 37%, nearly 1/2 were what the researchers called “close calls”. But regardless, your answer follows.
Think about it – these are claims MADE. There is no way to tell if the claim is legit or not until it’s made. That’s the purpose of the system – to sort them out. If we knew which ones did and didn’t involve negligence up front, then we wouldn’t need ANY system.
No matter what system you come up with, there will be claims made that turn out to not constitute negligence or error. That’s what the system, any system, will be designed to do. The important question is how well the system sorts those out. And our current one, as the study points out, does a pretty good job of it.
CJD
Kevin
Elliott,
I am quoting directly from the study itself – I am not twisting nor misrepresenting any words. The paper itself states:
“For 3 percent of the claims, there were no verifiable medical injuries, and 37 percent did not involve errors.”
“Overall, claims not involving errors accounted for 13 to 16 percent of the system’s total monetary costs.”
These are Studdert’s own words.
So I ask again, how you can defend a malpractice system where i) 37 percent of cases did not involve medical errors; and, ii) claims not involving errors accounted for 13 to 16 percent of the system’s total monetary costs.
Anyone?
Thanks,
Kevin
Anonymous
“For 3 percent of the claims, there were no verifiable medical injuries, and 37 percent did not involve errors.”
As pointed out above, claims made does not mean much. And the 37% figure is somewhat incomplete.
“ii) claims not involving errors accounted for 13 to 16 percent of the system’s total monetary costs.”
Again, any system is going to spend money on claims that are ultimately shown to be unfounded.
What percentages do you believe should be achieved?
CJD
Anonymous
100% sensitivity — because that is what plaintiff lawyers expect
100% specificity — because that is what patients and healthcare consumers expect.
Anonymous
If you don’t deliver it, though, why should anyone else have to?
Kevin
CJD,
On the contrary, a claim made does mean a lot to an individual physician.
I’m not sure if you’ve been sued before, but a single claim made against a physician is hugely disruptive life event affecting both the physician and his/her family. Read here for more details of what a lawsuit means to a physician:
http://catholic-mom.blogspot.com/2006/05/malpractice-suits-never-feel-trivial.html
The fact is that 37 percent of these disruptive events are not even the fault of the physician (“did not involve medical error”). That is simply unacceptable, wouldn’t you agree?
“Again, any system is going to spend money on claims that are ultimately shown to be unfounded.
What percentages do you believe should be achieved?”
I don’t have a number. But at 13 to 16 percent, don’t you think there is room for improvement?
Thanks,
Kevin
Anonymous
“On the contrary, a claim made does mean a lot to an individual physician.”
No one ever said it didn’t. Now you’re changing the discussion, which is fine, but we’re talking about Mr. Studdert’s study and findings, and this issue was not addressed within them.
“I’m not sure if you’ve been sued before, but a single claim made against a physician is hugely disruptive life event affecting both the physician and his/her family.”
Again, I don’t doubt it. And I have been sued before. The complaint requested $2 million. It was for something that would NOT have been covered by insurance and I had about $10,000 of net worth at the time. But again, this has nothing to do with the study you originally were complaining about.
“The fact is that 37 percent of these disruptive events are not even the fault of the physician (“did not involve medical error”). That is simply unacceptable, wouldn’t you agree?”
Not at all. Because again, how else do we determine if they are “unfounded” (and at least 1/2 that 37% were “close calls”) How many complaints to medical boards are determined unfounded? Should we get rid of them simply because people make claims?
“I don’t have a number. But at 13 to 16 percent, don’t you think there is room for improvement?”
There is room for improvement in everything, but every system has administrative cost. What’s the percentage in yours?
Anonymous
All the lawyer double speak on this topic is ridiculous.
Look the bottom line is that to prove medical malpractice, you MUST have 2 components:
1) Medical error
2) patient injury as a result of said error
Thats the BARE MINIMUM. NO LAWSUIT SHOULD EVER BE FILED THAT DOES NOT MEET THAT BARE MINIMUM THRESHOLD.
the fact that 40% of total claims lack this FUNDAMENTAL, BARE MINIMUM THRESHOLD is absolutely ridiculous.
So that means out of all claims filed, 40% were MISTAKES that should have never been filed.
Anonymous
How does one determine medical error if the parties involved won’t speak to them under oath?
Anonymous
“How does one determine medical error if the parties involved won’t speak to them under oath?”
The answer to that is easy. Set up a non-biased panel of doctor’s (and non doctor’s to keep the system honest) payed by the state to review cases. Those cases that have merit can move on…those that don’t get thrown out. Give them subpeona power if necessary.
Anonymous
“A single claim made against a physician is a hugely disruptive life event.”
Boo freakin’ hoo. Tell that to the individuals or family members who’ve been on the receiving end of a medical injury resulting in disability or death. I’ll bet it was a damn disruptive life event for them too.
Who’s paying the bigger price here? When the dust settles, *your* lives will go on as usual. That’s more than you can say for your unwitting victims.
sailorman
Kevin, you’re making some assumptions which are incorrect, and your conclusion is wrong. Rather than spmment here I am busy writing a post on my blog which will explain it, so you don’t have to take my (very short) word for it. I’ll let you know when the post is up; I’d be interested to read your response.
Kevin
Thanks all for the insightful comments.
I want to address Anon 5:18. It is this “someone has to pay” mentality that many physicians have problems with.
Yes, there are unfortunate tragic medical outcomes. If the doctor is responsible, I have zero problem with having them pay.
However, in 37 percent of cases, the physician is not responsible. “Having them pay” by dragging them through a malpractice claim is simply not acceptable. Believe it or not, many physicians do not intentionally harm patients.
If you’re concerned about patient compensation, then current system is ridiculously poor. Again quoting from the study:
“For every dollar spent on compensation, 54 cents went to administrative expenses (including those involving lawyers, experts, and courts).”
“The average length of time between the occurrence of the injury and the closure of the claim was five years.”
These facts alone should make you consider malpractice system reform.
My solutions – for those who care:
1) pre-screening panel – who can throw out the 37 percent of baseless cases more efficiently than the current system, perhaps saving some of the 13 to 16 percent of dollars wasted on these claims.
2) no-fault – to compensate injured patients more efficiently than the 5 years it takes in current system.
No, I do not have data for these reforms etc. etc., but we DO have data for the current system, and it is simply not working.
Thanks,
Kevin
Anonymous
Kevin, your prescreening panel won’t throw out those 37% of cases. Really, how would it save any money? We’d still need the panel, to pay them, to request the records, to have experts review them, etc.
As for your no-fault idea, that’s great. But right now it’s a legislative dead end. So you might have well have proposed a million dollars for everyone.
I don’t blame you for not being all that excited about the actual proposals that go to the legislature, though. They do nothing for you.
CJD
Anonymous
I’ll second the sentiment about the “someone has to pay” mentality. Tragic events befall the human race every single day. Some are dumb luck and accidents (struck by lightning, sudden unpreventable heart attack, falling off your roof), some are intentionally caused by others (murder, assault, rape) and a whole lot more fall into a grayer area.
No matter the cause, the end result is a “damn disruptive life event”. I’m sure there is a lot of hardship, pain, lost wages, medical bills, etc. associated with being struck by lightning, and yet who takes care of it for them? Who do they sue? God? To walk through life is to accept the risks of accident and misfortune. There may not always be someone to sue.
In our society, though, we’ve gotten to a point where someone has to be responsible for everything, where someone always has to pay. Slipped on a wet floor? Well if you’re lucky enough to be in a store at the time, jackpot!- its their fault! Sue the owner for millions! If you’re unlucky enough to have been in your own home- sorry, no jackpot for you. Take care of your own pain and suffering. But hold that thought- maybe you could sue the contractor who built the room or the manufacturer of your floor wax.
In medical tragedies, there are cases of pure dumb luck (the aforementioned heart attack), cases of pure gross negligence or malicious intent (a surgeon who operates while drunk or high), and a whole whole lot that fall in the middle. Whether you want to believe it or not, doctors really don’t intentionally cause damage, they don’t intentionally fail to follow a standard of care… sometimes unforseeable complications happen or diagnosis that seem obvious in hindsight but were puzzling initially. Sometimes a surgeon, despite being as careful and attentive as possible, slips and nicks something. Did they mean to? Is it reasonable to expect that it would never happen, that all surgeons will have 100% perfection over a lifetime? Much like life itself requires that you assume a certain risk of accident or tragedy, consenting to medical treatment means that you are putting yourselves in the care of humans, fallible and all. Yes, there will be some patients who have the dumb luck to be the one in a thousand for whom things don’t go well, but that is simply not avoidable. Spare me the lecture about how their lives are affected- we all know. But again, what makes their suffering any different from the millions of others who suffer “devastating life events” every day and have no one to sue?
My husband cheated on me- who can I sue for all my emotional pain? I was born with asthma- who can I sue for my lifelong medical expenses? My baby cousin died last year after slipping on ice and cracking his head open. He was on his own porch, and his parents were completely devastated. But too bad he hadn’t made it out to the sidewalk first though, because then they could have sued the city and all that money would have made things better, right?
Anonymous
“Kevin, your prescreening panel won’t throw out those 37% of cases”
How do you know? Do you have a reference? It may not throw out 40% but how about half of that number.
“Really, how would it save any money? We’d still need the panel, to pay them, to request the records, to have experts review them”
Again how do you know it won’t save money? Specifics of this panel have not been proposed. It seems to me very possible that a suit thrown out in a “panel” stage in which non-biased experts review the case could significantly cheaper than the present system especially if it goes to court. The reality is you don’t know. Additionally, you might be surprised how many docs would “volunteer” time or get paid less than the “market rate” if they knew it was in creation of a better system for doctor’s AND harmed patient’s with legitimate cases (I know I would). Of course the lawyers would lose $$$ so I am sure some lawyer-derived challenge would come up.
Anonymous
I’ve never been the victim of malpractie, but just imagine if you receive a bad outcome while being treated by a doctor. You have no knowledge of medicine. How can you know whether or not a medical error was made? I don’t think anyone here would deny that doctors are not exactly known for their eagerness to admit errors to patients. For many patients who feel they or their family members may have been victims of medical malpractice which resulted in a bad outcome, filing a lawsuit is often the only way they can get to the bottom of what happened. If doctors could address patient concerns in these cases without fear of being sued the matter might be settled before the case is filed.
Anonymous
“If doctors could address patient concerns in these cases without fear of being sued the matter might be settled before the case is filed.”
Maybe I’m mistaken, but I think there’s a tendency in the medical profession to move further and further away from providing patients with any specific information about their cases LONG before any real indications of potential lawsuits come up.
I started paying attention to informed consent forms about six years ago after a lengthy series of minor surgeries. There was a place on the form for the surgeon to write in specific potential complications from the surgery that the patient should know about. My surgeon wrote “Continued problems” in that area. Wow, how informative.
I signed it partly because the doctor was standing over me with a pen, cap off, waiting to get the form back right that minute…partly because I wasn’t sure he’d do the surgery if I didn’t…and, I wasn’t expecting any problems, so why not?
It’s a strange environment that forces both doctors and patients to go through motions like that.
Anonymous
It seems to me if prescreening panels are set up:
A: they would weed out the BS.
B: They may have the effect of more people who are legatimately injured filing and having cases being initally taken by lawyers with the knowledge if a the screening panel determines there is no evidence of wrong (since they would be doing much of the footwork) doing that it would be dropped at that stage. Would it be cheaper. Maybe or maybe not but I do think it would do a better job of weeding out the crap and helping more legitimately injured people getting compensation. However, with a whole legal industry dependent financially on the present system don’t expect the lawyers to offer solutions here.
Anonymous
The present system rarely pays on non-meritorious cases. So if it wouldn’t be cheaper, what is the point?
Anonymous
The public needs to understand what a sock in the gut it is for a physician to be sued, and they need to understand how the litigious climate affects the practice of medicine.
The medical community needs to understand that it’s distressing to patients and families when there’s a bad outcome, and that people want to be talked to, not talked down to or avoided or ignored.
So who’s gonna take the first step here?
Someone on here posted awhile back about a health care injury but said he didn’t sue. He was promptly slammed for being self-righteous.
Damned if you do, damned if you don’t. Where’s it all gonna end??
Kevin
“The present system rarely pays on non-meritorious cases. So if it wouldn’t be cheaper, what is the point?”
The study suggests that 13 to 16 percent of payouts go to suits not involving medical error. That doesn’t really count as “rare” in my book.
This shows that lawyers have a nice chance to still get paid whether the suit has merit or not, so they don’t have any incentive to change the system.
To be honest, if I were a lawyer, I wouldn’t want any change either. I wouldn’t want pre-screening panels to throw out non-meritous cases pre-trial, since that give zero chance of any payout. At least now, lawyers have a 13 to 16 percent chance of getting something for bringing non-meritous cases.
I don’t blame them one bit for wanting the status quo. The current system is a nice ride.
Thanks,
Kevin
sailorman
See here for reply:
http://moderatelyinsane.blogspot.com/2006/05/economics-and-reliability-and-medmal.html
Anonymous
“The study suggests that 13 to 16 percent of payouts go to suits not involving medical error. That doesn’t really count as “rare” in my book.”
Actually, we don’t know if those 13-16% were “close calls” even. But still, 84% correct is pretty good. Do you agree with your medical board’s assessment of cases 84-87% of the time? Reading Rangel, I’d bet not.
“This shows that lawyers have a nice chance to still get paid whether the suit has merit or not, so they don’t have any incentive to change the system.”
Assuming, as the insurers claim, that the average case costs $100K to try, and from the above, you have a 1 in 6 chance of getting a win on a case with no error or even close calls, and the average payout on those was what, $300K? That appears to be a net loser even at a 50% contingency fee.
Better check your numbers. I don’t know how you figure that’s a “nice ride”, but to me a negative cash flow isn’t that nice at all.
CJD
Anonymous
I was friviously sued a couple years ago. I was devastated. The incompetent plaintiff lawyers have been allowed to file separate conflicting causes of action and are now on their fifth amended complaint. It has been very frustrating and stressful. However, now I am enjoying it immensely as I know expenditures are mounting for the clueless plaintiff firm. I will be very disappointed if it does not go to trial to reveal the foolishness. Can’t wait! Can’t wait!
Anonymous
“I was friviously sued a couple years ago. I was devastated.”
I was terminated by a physician group for reasons they never disclosed, although according to an administrative secretary and personal friend it had something to do with malpractice fears. I was devastated.
In fact, I was treated so harshly by their risk management attorney (imagine being pulled over and arrested by a police officer who never sees a need to tell you what you’ve done wrong)that I seriously considered quitting my job and moving out of state just to get away from the clinic’s incessant advertising about how wonderful and caring they are…all B.S.
The helpful advice given to me by the clinic? “Get over it.”
Sorry that some docs get unfairly accused, but it goes both ways.

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I love how the media is making David Studdert look like an idiot

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