"A malpractice trial is like a diagnostic test"

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.

Comments

Anonymous
Kevin,
First, you’re again misstating the statistics. Even the researchers noted that many of those 37% were “close calls”. Given that medicine has few bright lines, it’s pretty difficult to make the firm statement that all 37% of those were “false positives”.
There is no system that won’t have a false positive rate at least that high.
The things you back don’t change that at all. You are a fan of caps – yet there is no proof that caps lower that rate. You are a fan of no-fault – that definitely won’t change it.
If you lower the barriers to filing a claim, then you will only INCREASE the number of unmeritorious claims. And your prescreening panel, which you promote as cheaper, will thus result in a higher rate of “false positives”.
So, if you think we can do better, please explain how. So far, you’re full of criticisms, but light on solutions other than the caps you tout so frequently.
You don’t appear to want to subject medicine to the same high standards you would subject the law to. Wonder why that is? Why is it physicians never look inward to reform themselves?
CJD
Anonymous
One main factor that so many false positive cases are filed is that lawyers are, by and large, ignorant of medicine. A patient with a sense of grievance and a compelling story, or a compelling injury, can be enough for a lawyer to file a malpractice suit, with the threat of a jury decision to push for a settlement. The medical facts are either obscured or unclear to a jury, or for that matter, the “experts” themselves. If uncertainty exists, it is exploited. This generally holds for all lawsuits. Realistically, the best defense is a good offense, a countersuit for court costs, injury to reputation, etc. The best answer, then, may be to play lawyers against lawyers, just as doctors are played against doctors. In that manner, punish lawyers who bring bad cases to trial.
Kevin
CJD,
Even if all 37% were “close calls” – they eventually were found to be wrong. 1% wrong is still wrong.
ANyways, why should a close call excuse the error rate? If I missed an appendicitis because of a “close call”, I’d still be nailed. Sorry, I don’t buy that argument.
“There is no system that won’t have a false positive rate at least that high.”
Really? I can’t prove nor disprove this. I don’t have any data. Do you?
Thanks,
Kevin
sailorman
Thanks for the cite. I’ll respond there:
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.
Well you can get better results as measured by specificity. But just like a scientific test, you’ll get problems.
The law is really a LOT like science. Do you want Type 1 error? Or do you want Type II error? You have to choose one; “neither” isn’t an option.
Let’s say you change the standards for summary judgment. Let’s say that if a judge doesn’t have a “very strong belief” you have a good case, it’ll be dismissed. Then, a judge will be able to throw out more suits at the beginning (cheap) stage of trial.
This is good, right?
Well, it will certainly have two good results.
First, you’ll get fewer weak cases filed in general. Only very strong cases will come to court, because people will know it’s not worth facing dismissal.
Next, if it DOES go to trial, more defendants will settle, and more plaintiffs will win. Your “false positive” rate goes down.
There is also a bad result.
Some number of people who DO have good, viable claims will NOT get past summary judgment (I can explain why, if I have to).
So you will, in fact, be “denying justice” to some number of people who WERE harmed, and who SHOULD HAVE been able to win.
And you know what? There’s nothing wrong with that!!! Deciding how to balance Type I and Type II error in the legal system is purely a value judgment.
Criminal cases favor Type II error: it is much more likely you will be errantly released than errantly convicted.
Civil cases allow for much more Type I error, because the standard is merely “more than”.
As such, I don’t get annoyed when people argue against current medmal. ONLY get annoyed when they imply (or don’t mention) the REQUIRED tradeoffs that you get if you change the system.
A fair analysis can’t only focus on the benefit to medicine.
Not incidentally, there are methods which can make the system “more accurate” and which don’t fool with the balance of error.
You can change the courts. The more complex the issue is, the better the effect. Specialized courts (often found for real estate and corporate law) can have a broader basis of knowledge. A specialized health care court would (for example) be much faster at making decisions regarding whether or not an expert could testify.
The problem? Cost, partially. You also have to be VERY careful in choosing the right judges. It would be a pretty major change.
Also, you lose some control. Remember those “practice standards” in my other post? You didn’t like them, right? you might end up with them anyway except they’d be in the mind of your local judge–you’d have no control over them, and you wouldn’t be able to see them in advance. (juries tend to average out).
You could implement those practice standards YOURSELF. They would reduce litigation cost immensely. But they would suck for doctors.
You could ask Congress to implement practice standards for you, by passing laws about medmal:
“You may not sue for neglect in prenatal care unless the doctor 1) does not do an ultrasound; 2) fails to measure fundal height; or 3) does not get you to sign an informed consent to natural childbirth form”
Of course, this is just as bad as the practice standard, and you have to trust Congress.
Anonymous
Actually, if you miss an appendicitis and you missing it was because your actions fell below the standard of care, you will be nailed. That’s it.
“Even if all 37% were “close calls” – they eventually were found to be wrong. 1% wrong is still wrong.”
Considering you can’t know all the facts until the claim is filed, because you can’t get a deposition of the physicians until that time, why is it surprising that it turns out some are false?
Do you criticize how your state medical board investigates the claims that are filed because some of them turn out to be unfounded?
This seems to me to be the weakest of all your arguments. This nonpartisan study has gutted so many of them, though, that I can understand why you would be reaching like this.
Your strongest argument remains the cost, but any system that requires experts will be costly. And I doubt you’re advocating eliminating the expert witness cost. Even with the various “neutral expert” proposals, they will still have to be paid by someone, and both sides will probably still want their own expert to review the case to be prepared to dispute the findings of the alleged “neutral” expert.
Thus, you’re left with caps (which is all you really had anyway since insurers don’t back the rest of your proposals), and I think deep down you know the injustice there to the grievously harmed and how little it truly does for the individual physician. And I think, as someone who cares about people, this really bothers you.
Whether it will inspire you and similar physicians to look at reforming medicine, and developing bright(er) line standards for treatment in common situations and other things that will truly reduce your risk in a malpractice case, I don’t know. I hope so.
Anonymous
Sorry, last comment was me.
CJD
Anonymous
You guys are bandying about these numbers as if they were the holy Bible. Where is your scientific skepticism, your caution in interpreting the numbers?
Studdert’s study involved 1,452 closed claims from five med-mal insurers. He looked at four clinical categories which make up 80 percent of all malpractice claims: surgery, OB, medications, and missed or delayed dx.
This study is *one* snapshot using *one* set of data. It’s not even a particularly comprehensive study; he looked at fewer than 1,500 closed claims. Would you accept those numbers if you were evaluating a new drug or treatment protocol? Of course not.
I personally believe that “close calls” belong in a different category from “unequivocally frivolous.” For accuracy’s sake, I don’t think they should be lumped together.
Anonymous
“And I doubt you’re advocating eliminating the expert witness cost.”
thats EXACTLY what I’m advocating.
Did you know that a doctor who testifies in court as an “expert” witness makes 10 times more money per hour than he would in clinical medicine?
Thats outrageous, and it needs to stop. It gives “experts” and enormous incentive to lie/mislead a jury.
Lets take a typical internal med doctor. Average salary is about 150k across 52 weeks or so.
Did you know that an IM “expert” can get paid up to 70k for ONE WEEK of court work? Thats right, he can make HALF HIS ANNUAL SALARY IN ONE WEEK by testifying in a big case.
Anonymous
“Did you know that a doctor who testifies in court as an “expert” witness makes 10 times more money per hour than he would in clinical medicine?”
I am well aware of what experts cost. What would you charge to testify?
“Did you know that an IM “expert” can get paid up to 70k for ONE WEEK of court work?”
Who got paid $70K for one week of work? Give me a name. If it even happened, that is far from the norm. Experts are expensive, but none are worth that. There is competition in that market as well.
Anonymous
“You guys are bandying about these numbers as if they were the holy Bible. Where is your scientific skepticism, your caution in interpreting the numbers?”
You obviously haven’t been following this debate long. Many physicians have swallowed EVERYTHING the AMA and their insurer tells them without question, and now you’re asking for a more skeptical look at a truly nonpartisan study?
One can criticize any study for not being large enough, but there’s no doubt this study is one of the most on point, comprehensive, and bias free examinations of the issue to come out since the GAO report a few years back.
Anonymous
I guess if you don’t know how to read, that is true.
Kevin
“One can criticize any study for not being large enough, but there’s no doubt this study is one of the most on point, comprehensive, and bias free examinations of the issue . . .”
I completely agree. I’m happy that Studdert did this study. It goes a long way to confirming many suspicions.
Thanks,
Kevin
Anonymous
That’s exactly right Kevin.
Now, what do you propose to identify the most glaring error he found? The cost? How do we reduce the cost – or do we have enough info to isolate what the administrative expense consisted of?
Because the accuracy of juries turned out to be very good. As we suspected.
CJD
Kevin
Lol CJD – this study can be used to support both sides of the tort reform argument.
Tort reform supporters will have to thank Studdert for showing that 37 percent of lawsuits don’t involve medical error. It’s a pretty powerful stat that really speaks for itself.
Again, we’ll agree to disagree – and I’ll leave it at that.
Thanks,
Kevin
Anonymous
You’re right – 37% of suits filed ultimately did not involve error. That’s true.
You’re just chuckling because you know I’m right about the juries, like the study showed. I know that particular result had to sting.
But moving beyond that discussion – I think you see the real beneficiaries of the current legislative proposals, and you know it’s not physicians.
So how do you propose to reduce the costs of malpractice cases? And do you think it’s possible for medicine to develop more bright line standards to reduce the dueling experts scenarios? Do you think physicians should submit to depositions pre-suit, so that 37% can be reduced?
CJD
Anonymous
If this study showed that doctors make mistakes in 40% of patient visits, you lawyers would be in an uproar.
So quit throwing all this “awww shucks we cant be perfect” routine at us.
Anonymous
You are misreading the findings.
A more accurate analogy is this. Filing a lawsuit is akin to showing up at the doctor’s with a specific complaint. The doctor may or may not be able to tell you what’s wrong and he performs tests and/or refers you to a different specialist. The physician often won’t figure the problem out just from the patients’ description and one test, will they? Of course not. They gather the facts and then suggest a way to remedy the problem.
The discovery process in a lawsuit is similar to the process of figuring out what is wrong. You’re gathering the facts and then presenting them to the fact finder – the jury, to determine the steps to take to remedy the problem.
As the physician, even with all the facts, may not get it right sometimes, the jury also occasionally gets it wrong. But the study shows that doesn’t happen very often. And it certainly doesn’t stand for the proposition that they get it wrong 40% of the time. In fact, it shows that they get it right 85% of the time for sure, and possibly more given the “close calls”.
Anonymous
Thats a load of BS. Quit pretending that hte ONLY way to find out “what happened” is to file a lawsuit.
Medical records are easily obtainable. Every patient has a right to their full medical record via HIPPA laws.
This study used medical records to determine if medical negligence and patient injury occurred. Thats what the plaintiff lawyers SHOULD be doing as well, because you dont need to file a lawsuit to get medical records.
What this study showed is that lawyers are misinterpreting the medical records, failing to meet hte MINIMUM THRESHOLD TO FILE A SUIT.
Essentially, in 40% of the cases, the plaintiff lawyer said “well the medical records dont show anything here, but instead of just dropping it and pursuing other cases, I’m going to force a lawsuit anyways”
Thats blatantly wrong. If there is no evidence of patient injury or medical negligence in the medical records, then the case SHOULD STOP RIGHT THERE.
Anonymous
A more accurate analogy is this. Filing a lawsuit is akin to showing up at the doctor’s with a specific complaint. The doctor may or may not be able to tell you what’s wrong and he performs tests and/or refers you to a different specialist. The physician often won’t figure the problem out just from the patients’ description and one test, will they? Of course not. They gather the facts and then suggest a way to remedy the problem.”
No a more accurate analogy is this:
Patient goes to a doctor with the idea that they have lupus.
The patient is a male teenager, with no malar rash, arthritis, general fatigue/malaise, no serum Rh factor or anti-DNA antibodies. In other words, the chances that this guy has lupus is about one in a billion.
Yet instead of walking away, the doc/patient decide to run a battery of expensive tests despite the fact that their pretest probability is very low for lupus.
Thats EXACTLY hte analogy for lawyers. The medical record is an excellent prescreening panel. If no patient injury or medical error is shown there, then the lawyers “pretest” probability of finding true medical malpractice is very low.
Yet instead of dropping the claim and pursing other more promising cases, the lawyer files suit anyways.
Anonymous
In my area, “experts” get about $500 per hour. Thats a lot more than they would get in private practice, and gives “experts” perverse incentives to lie/mislead juries in court.
Its even more outrageous than you realize. “Experts” organize into companies that are on retainer with law firms. The same experts float around to different lawyers and are used over and over again.
The “expert” industry is a perverse sham and should be disbanded. There should be laws stating that experts cant get paid more than the standard going wage for their profession.
in other words, if a doctor makes $100 per hour, he cant charge more than that to be an “expert” whore.
Remove the ridiculous incentives for experts to lie/mislead people. “Experts” should be working their private practice job 95% of the time, testifying only rarely in lawsuits.
The current system favors creation of this “expert” industry whose sole purpose is to testify in court. Thats outrageous and should be disbanded.
Anonymous
“Medical records are easily obtainable. Every patient has a right to their full medical record via HIPPA laws.”
Several problems with this.
1) Records are only as thorough as the people who create them.
2) Records are usually completed after the fact, based on the best recollections of the physicians and nurses.
3) Records can be quite illegible and filled with abbreviations/shortcuts that are meaningless to anyone but the provider.
4) Lies can be placed into the record. Unfortunately, this does occur, as physician bloggers on this site have freely admitted in threads about patient terminations.
5) In communications with the Patient Relations/Risk Management office of our local clinic, I was told that they keep separate “medical records” and “business records”. What goes into each? Are both equally confidential? Is a patient allowed access to his/her “business record”?
Anonymous
Anon 8:47
“Records are usually completed after the fact”
Duh…we dictate after evaluation and treatment, not before..
“Records are only as thorough as the people who create them”
Depositions 5 years after the incident are worse than the medical records. Typical answers are “I don’t recall”, “If that’s what the record says, that’s what happened”
“Records can be quite illegible and filled with abbreviations/shortcuts that are meaningless to anyone but the provider”
We dictate and the records are transcribed. Where have you been this past 20 years? And those abbreviations and short cuts?.. every medical book store has a pocketbook that tells you what they mean. SOB does not stand for trial lawyers, it stands for shortness of breath.
“Lies can be placed into the record.”
Lies are very easy to detect. Example of this is your number 5 statement.
Anonymous
“This study used medical records to determine if medical negligence and patient injury occurred.”
Are you sure the study didn’t utilize deposition transcripts as well?
“Essentially, in 40% of the cases, the plaintiff lawyer said “well the medical records dont show anything here, but instead of just dropping it and pursuing other cases, I’m going to force a lawsuit anyways”"
That makes no sense economically. Read the study. You’ll see the error of your assessment.
“Depositions 5 years after the incident are worse than the medical records.”
Rarely will the depositions be taken 5 years later.
“Duh…we dictate after evaluation and treatment, not before..”
Have you really never heard of records being changed, redacted, or removed?
Anonymous
Every record I dictate is given a time of completion and a job number and stored electronically. I would have no idea how to try and change a dictated record that is stored electronically. If I do an addendum that will be timed and stored as well. I could take “white out” to a copy in the chart but that would be very obvious and not change the electronic record. The stupid docs are the ones that try to falsify the record and always get caught and damned. It is highly emphasized in medical school NOT to falsify the record. To think that it happens alot is very biased because this is usually very easy to ferret out and these are the cases that become known publicly precisely BECAUSE they were altered.
Anonymous
I, therefore, conclude that malpractice can be determined by simply reviewing all the medical records.
Anonymous
“To think that it happens alot is very biased because this is usually very easy to ferret out and these are the cases that become known publicly precisely BECAUSE they were altered.”
Who says it happens a lot? But again, if you were the insurer and found out your insured had altered records, wouldn’t you want the settlement to be confidential? Of course not. So they don’t become public that frequently.
Do physicians never call another physician to ask about a patient they’ve treated? Why do that if you can see all you need from the medical records?
Anonymous
“”Lies can be placed into the record.”
Lies are very easy to detect. Example of this is your number 5 statement.”
Be happy to fax you a copy of the letter which made that very statement, sir.
Anonymous
Sure. Here is a common example. An internist might say to the GI doc. Can you consult on a patient up in room 313B? That is the extent of the 5-10 second conversation. The GI doc will then go and spend 20-30 minutes looking through the medical record. We don’t stand around and talk about regurgitated minutia that is in the records.
Anonymous
It seems like even if the plaintiff’s lawyer got a hold of the medical records and everything was legible and accurate, he still wouldn’t know whether malpractice had occurred. He would have to hire some expert to look through the record and tell him their opinion. But that’s the whole point of the trial, different experts have different opinions. I think that the process is overly expensive, but it’s probably the only way. It seems like a better solution than damage caps would be a “loser pays” legal system…
Anonymous
The problem with the expert system is that you dont have to have an expert BEFORE you file the claim, you only need it for a trial.
This should be changed. Expert testimony evidence of malpractice should be something that happens BEFORE filing a claim.
There is absolutely NO good reason to file a claim BEFORE you have expert testimony to back up your claims.
Anonymous
That all depends on whether or not you think that there is more evidence than is contained in the medical records that might need to be compelled by the courts. Maybe the surgeon was drunk during the operation, that wouldn’t be in the medical records…
Anyway, as has been mentioned before, this only affects the ability of a case to go to trial, not its merits at trial. Maybe one of the lawyers lurking around here can say whether or not they would consult an expert before filing the suit. It seems like there would be an economic incentive for them to do so, but I’m not privy to the real workings of a law firm.
In terms of physicians misdiagnosing simple problems, or neglecting to order important tests, or neglecting to counsel the patient on serious side effects, or any of the other things we normally associate with malpractice, aren’t there AMA guidelines associated with these things that can be used instead of expert witnesses? A physician should answer this question: Why is it necessary to pay ungodly amounts of money to an expert witness for him to say that it’s good practice to do an MRI in situation X, or that most physicians should talk to their patients about colon cancer? Why can’t the attorney simply refer to the latest evidence-based consensus promulgated by the AMA and be done with it? The only issue left would be an issue of fact, whether the physician followed the guidelines.
jerry
I am all for the practice of evidence based medicine, but I have found “guidelines” to be of very little help. These guidelines from specialty societies are often in conflict with other “guidelines”, have interpreted the data incorrectly, or with bias, or are merely opinion because the data is not very good. Sometimes big pharma bias gets inserted such as with widely accepted ACLS guidelines.
Guidelines are may also be good from a population standpoint of treating a particular disease but not for a particular patient. Say a guideline states that every patient above 35 years who comes to the ER with chest pain should have an EKG. If a 32 year old patient comes in and I don’t get an EKG and this person subsequently dies from an indiagnosed heart attack will the lawyers exonerate me because he did not fit into the guideline? NO!
Or what “guideline” do you actually choose for the 40 year obese female that doesn’t speak English or know her regular medicines, with a history of Hep C, diabetes, fibromyalgia, IBS, headaches who comes into the ER for chest pain, SOB, feeling jittery, nauseous, vaginal bleeding, with pain radiating from the right ankle to the left shoulder after doing a circle around the head, after an argument with the boyfriend and taking someone elses “little white pills” because they thought it might help. Someone find me a freaking scientifically sound guideline to follow for that! It is very hard to always be right when a large part of medical practice is “art” rather than objective science.
jerry
ps.
pardon my grammar. I just finished a shift with 10-15 such patients.
Anonymous
If that’s the case, then expert witnesses will always be necessary in our system.
How could health courts solve this problem? The costs associated with expert witnesses would remain, which would seemingly still have to be paid by the parties to the suit. So what would reduce the cost of the trial? I’m sympathetic to the health court idea in theory, I’m just not clear on how exactly it would solve any problems.
Anonymous
the health courts would in theory be an unbiased panel of expert reviewers rather than a “hired gun espert witness”
Anonymous
Also I expect you could get health-court expert witnesses at a fraction of the cost of hired-guns. You could also make it a requirement for license renewel. Make an X amount per year time frame mandatory for licensing (kind of like CME). I think many docs would jump at the idea (I would) of giving a time requirement with the knowledge that it is changing the present system to one that is better for docs and patients.
Anonymous
If new doctors comprised each panel, and different doctors may hold different opinions on what constitutes malpractice, how would this make the system any more consistent than the current one?
At least in the current system the jury hears one expert’s viewpoint for the plaintiff and one against him. In the proposed system it would be totally arbitrary if the jury would get to hear both viewpoints or not, depending on who made up the panel. It doesn’t seem as fair to the plaintiff to me.
Also, what incentive would the panel have to find for the plaintiff? I suspect that the loyalty that physicians rightly feel for the members of their own profession might interfere with their civic duty. If there is any purpose to voir dire it’s at least to make sure that the entire jury isn’t composed of physicians at a medmal trial… That’s not to say that physicians can’t be objective in these cases, but the suspicion would always remain.
Anonymous
anon 920,
you don’t think a consensus among a panel of doctors would hold more weight and legitimacy than the dueling opinions of “expert witnesses” for each side??? Often these “expert witness” doctors are washed up non-practicing losers trying to make a buck.
Anonymous
Here’s the setup:
Have a rotating panel of 3 experts culled from the various local medical specialties. Make it similar to jury duty. Doctors get called at random to hear cases. Participation would be mandatory and get counted as continuing medical education credits.
Eliminate all expert witness fees, so that the sham known as the expert witness cottage industry falls apart.
Of course the lawyers retort with “doctors protect their own and will never find any doctor guilty.” Thats a load of crap. If that were the case, then plaintiffs would always lose in court, because every single case thats brought to court is required to have a plaintiff expert.
Anonymous
If physicians decisions about what constitutes medical malpractice are used as precedent in future cases, though, it seems like they would have an incentive to set the bar pretty low. After all, if their own precedent could be used against them in a future suit every instance of malpractice that they found would be like ammunition in an opponents gun.
Anonymous
“Often these “expert witness” doctors are washed up non-practicing losers trying to make a buck.”
You know this because you’ve tried a lot of cases, eh?
Anonymous
This whole “panel of experts” would be more fair is a bunch of nonsense. Look at http://www.rangelmd.com and see the bitching about the medical board daring to investigate complaints. Simply put, physicians don’t want to be second guessed – by anyone, including their own. And they’ll just turn on the panel experts like they do the ones in the current system.
As a group, they resent the possibility of having to explain their actions.
Anonymous
Why does anyone think that health court “experts” would be any cheaper than any other experts? Is their time less valuable?
You guys bitch about testifying in malpractice trials about experts, but most of you won’t even take the time to testify in cases where your own patient is the victim. You’ll charge exorbitant rates even to give a deposition just so you don’t have to testify and explain the condition of YOUR OWN PATIENTS.
So spare us this all experts are whores and we need to do X,Y, & Z to change it. Look in the mirror.
Anonymous
You know this because you’ve tried a lot of cases, eh?
No, just been the defendant in a lot of frivolous cases where the “expert” is far from an expert.
Anonymous
Really? How many?
Anonymous
7
Now tell me how many malpractice cases you have tried and how many you have won
Anonymous
None. I don’t have that kind of practice.
You’ve been the defendant in 7 cases? What’s your area of medicine? Have you settled any of them? Been dropped pre-trial? Have you taken any to trial?
Anonymous
“most of you won’t even take the time to testify in cases where your own patient is the victim. You’ll charge exorbitant rates even to give a deposition just so you don’t have to testify and explain the condition of YOUR OWN PATIENTS.”
Geez – in that kind of situation, we’re usually FORCED to testify, WITHOUT compensation. That’s because we’re usually sued along with all the other doctors on the chart.
Hellooo???
Anonymous
Sorry, I should have been more clear – I was referring to non med mal cases, where you’re treating the plaintiff for injuries that occurred in a car wreck, for example.
If you’re FORCED to testify in those cases, it’s as a last result. No plaintiff’s lawyer wants to force the best witness for his client to testify. You have the ability to absolutely sink a case with your testimony.
Anonymous
“You’ve been the defendant in 7 cases? What’s your area of medicine? Have you settled any of them? Been dropped pre-trial? Have you taken any to trial?”
emergency medicine practice for 18 years
-4 to jury trial
-3 on the very cusp of trial
-multiple cases dropped early on (?10-15)
-zero settlements or payouts
these numbers are on the upper limits of average for our group.
Anonymous
“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.
Anonymous
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.
Anonymous
“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?
Anonymous
Actually I am not CJD.
Nice try at jumping to conclusions, though.
Anonymous
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.
Anonymous
“”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.
Anonymous
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.
Anonymous
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.
Anonymous
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.
Anonymous
Pot, meet kettle.
Anonymous
and yet another meaningless one liner.
Anonymous
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.
Anonymous
You’re right – testifying on behalf of a rape victim has nothing to do with your civic duty.
Anonymous
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.
Anonymous
I’ll type it slower for you.
Why. would. you. not. want. to. testify. for. your. own. patients. in. a. civil. lawsuit?
Anonymous
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.
Anonymous
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?
Anonymous
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).
Anonymous
“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?
Anonymous
“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.
Anonymous
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.
Anonymous
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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