"We’re losing a war that we didn’t realize we were fighting"

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A physician does everything right, yet is sued. The theatrical plaintiff’s attorney played a scene from Lord of the Rings, equating doctors to monsters:

Five years later I found myself walking into a courtroom to face charges of medical malpractice. The suit said that because of my negligence, a man had been a quadriplegic for four years and then died of sepsis after a decubitus ulcer became infected. The litigation put my career on a stage where lawyers exchanged verbal jabs, each trying to get in a punch for a knockout. To watch this pugilistic debate was mesmerizing. I sat on the edge of my seat, watching nonmedical people try to explain to 12 lay people what I did or didn’t do wrong.
This experience forced me to realize how much my life was out of whack. I had no balance, no boundaries. All I did was work. I took a close look at what was really important to me. Could I accept the sacrifices I made to be the very best that I could be? Putting other people’s needs in front of my own? Would they do the same for me?
It was profoundly enlightening to realize that my career was in the hands of 12 strangers who were expected to understand and interpret in three weeks what had taken me 10 long years to learn; and even longer to practice and internalize. Maybe it was akin to a 400-pound man coming to me as a stranger, asking that I save his life and keep it as it was before he was thrown off that motorcycle going 40 miles an hour.

She wins the trial, and predictably the ordeal has changed her forever:

I have never been the same. I have never practiced the same. Now I’m more careful about my documentation. I discuss things ad infinitum with patients to make sure they understand. And I order more tests than before. Some people would call this defensive medicine, but it’s what we’ve been forced to do to protect ourselves.

Whether you believe in defensive medicine or not, this scenario is repeated countless times daily. Still wondering why health costs are soaring?

Comments

KipEsquire
“During closing arguments she played a scene of the Lord of the Rings: The Return of the King and equated the doctors in the case to the monsters.”
I’m not a litigator, but I would have been objecting every fifteen seconds and would have appealed any verdict against my client based on this alone.
Even in closing arguments, irrelevant and prejudical evidence is not admissible.
Anonymous
Been there, done that, and can’t wait to retire.
Anonymous
Why is it a bad thing that she does a better job with documentation and explaining things to her patients?
And can we please get rid of the “my career was in the hands of. . . ” nonsense? Many physicians have multiple judgments and no sanctions from the medical board, and vice versa.
And are we really blaming soaring health costs on “defensive medicine”? If the lawyer was half as dramatic as this physician he’d have won an Oscar.
Anonymous
“Why is it a bad thing that she does a better job with documentation and explaining things to her patients?”
Explaining things is great.
“Better documentation” does not mean better care. It just means taking more time to cover your ass and lawyer proof the chart. It takes more time away from other patients. “Better documentation” also usually translates into a higher billing code and higher bill to whoever is paying
Anonymous
I agree. When you are waiting to be discharged from the ED or admitted to the Hospital, “Better Documentation” probably means more time at the nurses station writing and less time evaluating/talking with patients.
Anonymous
“”Better documentation” does not mean better care. It just means taking more time to cover your ass and lawyer proof the chart.”
I do the minimal in terms of documentation and charting. I dictate standardized surgical dictations and rarely deviate. My friend’s wife is a litigator and she basically told me that the more I put in the chart and the more I document, the more I give to the lawyers to use against me. Therefore, my rules are minimal documentation. Saves time too…
Anonymous
When it comes to oligopolies… Sauron and the current provider first crop are pretty comparable.
Anonymous
Oh the oligopolies. I forgot…
Anonymous
“Still wondering why health costs are soaring?”
No, but I suspect that “defensive medicine” has very little to do with it.
Good stories are just that – narratives – not the basis for decision making. The plural of anecdote is not data.
Poor doctor was sued and . . . the system worked . . . she won, but – boo hoo – she is changed forever. . . defensive medicine. . . 12 lay-people and 2 lawyers . . .I am doctor . . . I went to med-school . . . how could they understand. . . I am a victim. . . boo-frickin’-hoo.
Here is a narrative for you:
4 year old Rebecca Riley gets polypharmed to death . . . but I am sure that it was the trial lawyers or defensive medicine that is to blame.
Anonymous
“Poor doctor was sued and . . . the system worked”
Did you read the article? If the system had worked she would have never had been sued in the first place. Does the phrase “400 lb man cycling without a helmet lands on his head” mean anything to you? You clearly have no understanding of head trauma. Of course neither did one of your leach brethran which is why there was a trial.
Anonymous
Here is a narrative for you:
4 year old Rebecca Riley gets polypharmed to death . . . but I am sure that it was the trial lawyers or defensive medicine that is to blame.
4-year old Rebecca Riley was under the care of physically and sexually abusive parents who are now being charged with her murder; if anyone else screwed up it was DSS, and regardless the prescribing physician is now toast.
Not to mention she’s a one-in-a-billion anomaly as opposed to the lawsuit abuse stories of which every doctor seems to have at least three.
Supremacy Claus
The doctor should review the malpractice liability contract. Many allow settlement without consent. All such contracts should be boycotted, and rejected by the doctor. This is not a matter of dignity, pride, or anger. If a claim succeeds, it sets off a host of similar ones. Thus not settling prevents dozens of similar future meritless claims against oneself, against one’s peers.
Beyond resistance in court, I have told my defense attorney, I intended to sue an attorney, him or the plaintiff’s, berated his lawyer skills on a daily basis. These slackers need total supervision by the doctor defendant or by a separately hired private attorney. The latter will learn the facts, going along. He can sue the insurance company as well. The defense attorney and the insurance company are mostly adversarial in their interests to the defendant.
Next, a list of unprofessional conduct by the plaintiff expert should be compiled. The list of licensing states should be compiled. One by one, each month, a complaint should be filed. These reports are immune in most states if confidentiality (except from one’s personal attorney). So, if one finds 6 instances of false testimony is found, and the expert has 4 licenses, for the next 24 months, he can face a licensing investigation.
Read the Rules of Conduct for the licensed lawyers of the state, set up the same matrix and schedule of complaint against the Disciplinary Counsel. Follow the plaintiff lawyer’s cases. File more complaints if justified by the Rules of Conduct.
If any illegality has been committed by the plaintiff, it should be reported to the authorities.
If any party is deemed at fault, including the plaintiff, one must insist the defense files a cross or counter claim before pleadings are closed. These may always be withdrawn later. It also prevents the other defense parties from settling, and being traitors to clinical care. If they admit guilt, let them compensate you as well.
Do not allow any doctor co-defendant settling to agree to a forebearance in the reporting of his settlement to the National Practitioner Data Bank. Report the traitor yourself.
Supremacy Claus
“The theatrical plaintiff’s attorney played a scene from Lord of the Rings, equating doctors to monsters.”
This behavior violates an established rule of evidence, “May not liken any party to famous heroes or villains.”
The lawyer should be investigated by the Disciplinary Counsel.
The judge allowing it should be investigated by the Judicial Review Board.
Anonymous
“Not to mention she’s a one-in-a-billion anomaly as opposed to the lawsuit abuse stories of which every doctor seems to have at least three.”
I hope that you don’t base your medical opinions on this type of analytical reasoning.
The first claim (one-a-billion): empirically measurable . . . and wrong.
The second claim (lawsuit abuse): “every doctor seems to have three”? The plural of anecdote is still not data, and that is actually less than an anecdote. It doesn’t seem to me that every doctor has three such stories, but it does seem to me a doctor would find your story plausible.
Between 1996 and 2001 the proportion of TennCare children who were new users of antipsychotic medications increased from 23 per 10,000 children to 45 per 10,000. Cooper, W. Archives of Pediatric & Adolescent Medicine, August 2004; vol 158: pp 753-759.
Why? Any shred of evidence to support the propriety of treating children with these drugs? Without even discussing safety, is there any evidence of efficacy? It is certainly not approved for such. Add risk to the ratio and that is not justifiable by any logic.
“Does the phrase “400 lb man cycling without a helmet lands on his head” mean anything to you? You clearly have no understanding of head trauma.”
You clearly have no understanding of boo hoo.
A doctor’s professional judgment was called to account and it was vindicated in a court of law? Boo hoo. That was a self-absorbed self-important melodramatic lament about the burden of one’s own selflessness and the indignity of being judged by layfolk and lawyers . . . without a hint of irony.
Some person was paralyzed and died within four years. Do we – the layfolk – not have the right to question a doctor’s professional judgment? Best intentions do not excuse doing one’s job poorly and making bad decisions. If you want to put trial lawyers out of business, you should follow the example set by the anesthesiologists in the 80′s: stop whining about trial lawyers and just do your jobs better, and you won’t get sued as much, your insurance goes down, and – oh yeah – it is also good for us lowly layfolk too.
I’m not a trial lawyer. I used to be a research neurochemist and yes I am actually a leach, though I have no brethran (sic) because I am an only child.
Anonymous
“Did you read the article? If the system had worked she would have never had been sued in the first place”
What system would you propose for sorting out claims before they are even filed? Will Bill Frist lay his hands on all patients and then commence to determine whether they have a meritorious claim before they even are finished treating?
abg
“just do your jobs better, and you won’t get sued as much”
“Just sue the doctors carefully and you won’t lose 70% cases on trial, do a better job.”
Oh my stupid monster mouth ,How can I know any thing about law . Lawyers are our heroes & will teach us medicine as well.
Anonymous
Though not as lamentable as – say – when someone is falsely accused of murder (meloldramatics aside), being falsely accused of medical malpractice is understandably traumatic and not in the interest of anyone.
It certainly is not an efficient use of resources, and I certainly would support changes: (a) pre-trial screening panels; (b) even special courts; and/or (c) switching to a standard of avoidability or preventability instead of a standard of negligence.
At the end of the day, the ultimate vindication may have to come at trial because no system will be perfect.
Ultimately, if doctors would regulate themselves better, rather than circling the wagons, everyone would be better off.
Reform (or even dialogue) is very difficult when doctors reflexively react like petulant children whenever the topic is malpractice and liability (stupid lawyers telling us how to do our job).
One step would be for doctors to take action against the small proportion of doctors with multiple judgments against them, who drive up the cost of insurance, and who do a disservice to the integrity of their profession.
Apply basic risk management techniques and empirical risk analysis, like anestheiology. The first step is to stop blaming malpractice itself on trial lawyers or uneducated layfolk.
Yes, medical intervention is inherently variable and the most appropriate course of action is seldom balck-and-white. But preventable mistakes and blatant professional sloppiness are simply unacceptable and much more common and costly (in health and dollars) than “lawsuit abuse.”
abg
May be as physicians we fetishise a lot about the medical malpractice issue but the bottomline is that it does and can put many circumscribed cohorts of people , who are sued most often and always at the receiving end. They would not definitely see it in a lawyer’s perspective.
the dirty little secret of an American legal system is that anyone who feels wronged, or wants to feel wronged, for any reason, is protected from any risks you might think exist in bringing a lawsuit against another individual , that everyone is a victim at some point in time, and every circumstance has a victor and victim. Sure, frivolous cases may be thrown out fairly quickly(Although it didn’t in this particular case ) but that’s not the point. The point is you vindicated yourself by forcing your enemy to part with quite a bit of money. It’s a frightening amount of completely unchecked power the average citizen has .We can just wish strings of responsibility would be attached to this ‘power’ ,but that doesn’t seem to be the case. This notion that a losing plaintiff never has to pay flies in the face of the entire concept of a justice procedure which supposedly can assess a monetary loss caused by any action, and if necessary, require an offending party to compensate the “victimized” party for that loss.
We wish the bottom dwellers of any profession including medicine be priced out from the market . And Medical establishment doesn’t do that due to host of reasons including “lawsuits” , are appaling, but it can never legitimize that if almost every Obstetrician and almost half of the surgeons found to be sued and its corollary that somehow we are infested with butchers , the recourse is a lawyer like this cunning ‘return of the king’ baby, who would never be disciplined as well.
These common wisdom has been allowed to congeal based on a faulty assumption that if you threaten someone, they will improve their behavior, That might be true if someone is deliberately acting badly (we already know it doesn’t even work in criminal cases) ,but there are already enough professional and personal reasons for trying the best to help someone, no threat like that can improve anyone’s behavior. People who are trying their best are not made better by holding the “ Sword of Damocleis” of a lawsuit over them , What you do is you reduce their ability to concentrate at the task at hand and they actually perform worse .
Any enterprise as complicated as medicine is bound to have errors How hard one may try . I prefer to focus my wrath on a system that, in my opinion, does more to enrich the middlemen than help those who suffer from those errors or reduce future errors
loser pays, A good place to start not ,as someone once said “thousand of lawyers at the bottom of the sea”
Anonymous
Facts to consider:
1. We already have loser pays.
2. No one knows how much or how little defensive medicine costs.
3. As a result of #2, you can’t claim defensive medicine is the reason costs are “soaring”.
Anonymous
1. We already have loser pays.
Please explain. Does the loser reimburse the doctor, the doctor’s lawyer, and the court?
Must be CJD, with all his lost credibility, spewing his “facts” again.
Supremacy Claus
Anonymous: If the losing lawyer or the judge has deviated from professional standards of due care, as attested to by expert’s certificate of merit, then the lawyer and judge must pay the doctor for the damages done by their carelessness.
No lawyer or judge should retain any immunity or barrier to tort claims. Laws are needed to end all lawyer and judge self-dealt immunities. These are unconscionable. To deter.
In this case, the lawyer violated a rule of evidence. The judge failed to stop it or to call a mistrial and assign all legal cost to the careless plaintiff attorney. They should be forced to pay the doctor punitive damages for their misconduct. Big time.
Anonymous
“They should be forced to pay the doctor punitive damages for their misconduct. Big time.”
But will they….no of course not.
Just like “loser pays”. In reality little more than a fanciful farce that is rarely invoked.
Anonymous
If the defense rarely invokes something that is readily available to them, whose fault is that?
Anonymous
“Please explain. Does the loser reimburse the doctor, the doctor’s lawyer, and the court?
Must be CJD, with all his lost credibility, spewing his “facts” again. “
I’m sure with your ample knowledge of the law, you at one time knew this but forgot, but nearly every state has a loser pays mechanism in their Rules of Civil Procedure.
Why would the court be reimbursed? Its expenses would exist whether that one case was there or not?
I know you can’t tell the difference between facts and opinions or speculation, but do try and at least have a basic understanding of what you speak of.
Anonymous
“Poor doctor was sued and . . . the system worked . . . she won, but – boo hoo – she is changed forever. . . defensive medicine. . . 12 lay-people and 2 lawyers . . .I am doctor . . . I went to med-school . . . how could they understand. . . I am a victim. . . boo-frickin’-hoo.”
Is this a lawyer who said this? If so, I’m ashamed.
The fact that a fellow lawyer took this case and sued under these circumstances makes me sick. I have nothing but compassion for this doctor.
michael i
A necessary reform…
Cases of lawyer malpractice should be tried by physicians.
In anticipation of a flood of ad hominem attacks, I’ll admit I’m neither a doctor nor lawyer but on occasion a customer of both.

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