Sailorman rebuts my thoughts on the recent Studdert malpractice study:
A trial is much like a diagnostic test, actually. In general use, you don’t do a test because you KNOW there is something wrong, you do a test because you WANT TO KNOW if there is something wrong, or because you THINK there is something wrong.Similarly, you usually don’t sue when you know all the facts of the case. You sue because there’s some important stuff–REALLY important stuff–in dispute. Was the procedure done right? Was a mistake made? Was the drug prescribed correctly? And so on. One person thinks yes, the other thinks no. Only the judge (or jury) can decide.
Nice points. So, let’s assume the reason we go to trial is to find the “truth” (i.e. whether medical error lead to the injury). We “test” with a malpractice trial. It has a false positive rate of 37 percent according to Studdert. This leaves us a test with a 63 percent specificity. Furthermore, the costs of performing this test are ridiculously high, which everyone agrees on:
. . . a LOT of expense in medmal comes from the requirement to prove what SHOULD have happened. A lot of cases progress because people think something should have happened that didn’t happen (or that something happened which should not have happened). This is really expensive. You need experts. You need experts to fight with the experts. You need lawyers to talk to them all. You can have days of debate about what the “proper” procedure is to treat X, and why Y is (or is not) as good or better.
So, all I ask – is this the best we can do? An expensive test with 63 percent specificity? Some may think so. I happen to think we can do better.
Related posts:
- A doctor is sued, and blogs his malpractice trial
- Charlie Weis: Malpractice trial reactions
- Not every medical error is malpractice
- Charlie Weis’ malpractice trial
- Poll: Should a doctor blog his medical malpractice trial?
- John Ritter and the $67 million malpractice trial
- Single payer to fix malpractice?
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“I was referring to non med mal cases, where you’re treating the plaintiff for injuries that occurred in a car wreck”
What do you mean? As an ER doc I get bullied by the DA office all the time to testify for free about these type of cases on a regular basis.
Now if you are talking about slip and falls at WalMart where findings are completely subjective and God only knows the extent of any causation — not many are eager to get into that fraudulent cesspool. “Herniated discs” seen on an MRI doesn’t mean they weren’t there before the slip and fall at Mcdonalds.
So if you think you should be paid whenever you have to testify in court, how do you propose this should work? Who should be paying you – your attorney? Your practice? Your insurer? The plaintiff’s attorney? The court system, i.e. the taxpayer?
Do you realize this will ratchet up the cost even higher to defend a lawsuit?
Then again, maybe you think this is OK as long as it’s your pockets being lined.
“So if you think you should be paid whenever you have to testify in court, how do you propose this should work?”
This must be CJD, the artist twisting words. Never said that. I have lost track of how many times I have testified for the DA for free. Really don’t mind doing it as a civic duty so that justice is served. But hey why should I not get paid. Attorneys for each side are getting paid whether they are hired by the client aor a public defender. The police officer is getting paid. The judge is getting paid. If you are so concerned about the legal costs then why don’t lawyers drop their fees and judges take a pay cut?
Actually I am not CJD.
Nice try at jumping to conclusions, though.
If you’re on salary (and I don’t know if you are) or have a fixed fee contract, then you ARE getting paid, just like the judge or the officer. The officer may not be getting extra to be there.
“”Herniated discs” seen on an MRI doesn’t mean they weren’t there before the slip and fall at Mcdonalds.”
Thank you for making my point.
anon 817,
what are you smoking? Few physicians are on salary. I’m not. If the DA calls me in to testify for a criminal case I am not paid for that, nor would an employer. I spend that time on my day off.
It’s a real pain in the ass doing your civic duty, eh? I thought exemption from society’s rules was part of getting a medical degree.
Why do you guys waste your time debating this jackass. He brings nothing to the discussion except smartass one liners. He doesn’t even practice medical malpractice law so I doubt he has little clue as to what he is talking about. Just ignore him.
Pot, meet kettle.
and yet another meaningless one liner.
Give me a break. There is no civic duty to testify one someone’s behalf for their civil lawsuit.
You’re confusing this with serving jury duty or as a witness in a criminal trial.
You’re right – testifying on behalf of a rape victim has nothing to do with your civic duty.
Umm, did you miss the line where I said civic duties include jury duty and serving as a witness in a criminal trial?
I’ll repeat it slowly for you… No. Civic. Duty. To. Testify. In. A. Civil. Lawsuit.
I’ll type it slower for you.
Why. would. you. not. want. to. testify. for. your. own. patients. in. a. civil. lawsuit?
I have no idea whether my patient’s complaints against a defendent are justified. I can treat them for a pain or injury, but without knowing whether it was caused by the incident in question or whether the party they are suing did anything wrong, I have no interest in helping them sue for money.
I’ve treated plenty of “back pain” patients who want my help when they get involved in disability or workman’s comp lawsuits. I treat their medical complaint, I don’t sign on to be their advocate in a trial. I’ve also had former patients who divorce and want me to testify against the other for a child custody hearing. I have a strong suspicion that a lot of these resultant lawsuits are bull. I’ll provide the medical record documenting a diagnosis and treatment, beyond that, I have no interest in getting sucked in to their sordid legal squabbles.
You don’t have to be an advocate, o holier than thou. You just have to describe their injury.
Believe it or not, sometimes responsible parties won’t pay for the harm they caused, and sometimes there is a dispute about the injury. How dare they go to the person with the most knowledge about it to explain it to the fact finder. Don’t they realize you are above normal society?
I wonder how you’ll feel when it’s you on the wrong end of a car wreck wanting your physician to testify for you. Oh, wait, you demigods are indestructable, right?
Why would the physician need to testify? Why aren’t medical records (copies of diagnostic test results, consult reports, etc.) enough to describe an injury? If the illness/injury is so ill-defined that it cannot be accurately understood through written records, then the legal team should arrange to have their own expert examine the patient and give testimony.
Back to reality, though, the majority of depositions I’ve been asked to give have more to do with disability/workman’s comp issues. I had a 21-year old female seek treatment from me for shoulder pain she claims began when she lifted a heavy box at her job the wrong way. I saw no consistent symptoms of major injury, but sent her for imaging studies and an ortho consult anyway (none of which identified any real problem either). But after a week off work (which I wrote a note excusing her for) she continued to complain of debilitating pain, so I prescribed percocet (which she promptly used and asked her an early refill) as well as physical therapy (which she never bothered to go to). After writing her a work note for another week out, I get a ten-page FMLA document faxed to me from her work, which I was expected to complete on my own time for no charge (I did). She was eventually released back to work by me “light duty” three and a half weeks later, and not two days beyond that, she sues because her company won’t give her workman’s comp and the subpoena arrives in the mail. A week after that the lawyer handling her long-term disability sends his own. No way in hell am I giving up a full day or more of my own practice time to testify on her behalf. My clinical notes, test results, consults and extensive FMLA documentation would be plenty if she was legitimately injured (but, dare I say, I suspect she was not).
“Why aren’t medical records (copies of diagnostic test results, consult reports, etc.) enough to describe an injury?”
Seriously, have you read medical records? They are about as incomprehensible to most people as many legal pleadings are to laymen.
” If the illness/injury is so ill-defined that it cannot be accurately understood through written records, then the legal team should arrange to have their own expert examine the patient and give testimony.”
Are you serious with this statement? I thought physicians hated the expert system – thought we needed to get rid of the paid “whores”. Yet now you’re advocating it because you don’t want to testify? I think you just unwittingly illustrated the hypocrisy of the physicians’ position.
An expert who has not treated the patient over time and probably has only reviewed the records and met with the patient once will not have near the impact or credibility of the treating physician. Wouldn’t you want your treating physician to testify for you if you were the injured person?
That’s a great story. So because you don’t believe on patient you’re making a blanket decision on all of them? Should the same standard be applied to physicians?
“Are you serious with this statement? I thought physicians hated the expert system – thought we needed to get rid of the paid “whores”. Yet now you’re advocating it because you don’t want to testify? I think you just unwittingly illustrated the hypocrisy of the physicians’ position.”
No this is an “expert” to review and decipher the f/ing chart for you since you can’t read or understand it.
Don’t be so high and mighty because those that aren’t physicians aren’t familiar with the jargon in the field. You certainly have the stereotypical arrogance, that’s for sure. No wonder you won’t deign to assist your fellow man except when you are subpoenaed to do so. Luckily, not everyone is like you.
because of doctors who wont admit another doctors wrongdoing and this code of silence- it is now over 3 years since i delivered a baby girl and through complete negligence epidural injury etc I have brain damage, full damage to the right side of my body, seizures, heart damage, almost full blown renal failure, liver failure, partial loss of vision on right side, partial hearing loss, tons of infections, etc. for 3 years i tried to get a doctor to tell me what happened and not one would they just gave me more and more narcotics so i would be comfortable. it has now come to light through further testing what actually happened so i went to an attorney seeing as i will never work again and at the time i went out on disability i was up for a vice presidency postition 6 figure salary had bought a new house had everything going for me. no attorney would help me and now one reviewed the records and found many counts of malpractice and negligence but the statute has expired and the discovery rule will not apply seeing as I have been sick from the beginning and there was no way i didnt know something was wrong- so you tell me all you higher than mighty doctors out there that are keeping this code of silence- how many people are you letting die because you wont speak up, how many lives are you ruining from postponing diagnosis and admitting what went wrong when it is your field of expertise- tell me what is the purpose of doctors and medicine at this point in our society- the laws protect doctors only- lay people have no rights anymore and trust me i know there is scum out there that have staged injuries and successfully sued but more often than not the ones that are truly injured are being screwed over- put that on your conscience.
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