An against-the-grain study suggesting that health courts actually would be tougher on physician defendants:
A jury’s lack of medical expertise, Peters says, tends to favor the doctor, not the patient.“Critics assume that the ‘battle of experts’ frees juries to award unjustified recoveries,” he writes. “The data suggest that it is more likely to shelter negligent physicians.”
One proposed solution — to turn cases over to specialized health courts — might result in less-favorable results for physicians, he suggests. Studies have consistently found that malpractice plaintiffs fared better in front of judges than in front of juries.
{ 20 comments… read them below or add one }
Whose grain is this against? Insurance lobbyists?
“Studies have consistently found that malpractice plaintiffs fared better in front of judges than in front of juries.”
Sounds like Elliott, making claims without proof, references or sources. Another example of poor journalism.
Isn’t this what most studies show?
1. Physicians don’t get sued when they make mistakes in general.
2. Physicians who do get sued do not face groundless suits in general.
3. Physicians generally win at trial.
4. Physicians with multiple malpractice judgements continue to practice.
5. Physicians with personal knowledge of incompetent colleagues do not report their concerns.
BUT the chorus at this site is always, “Poor little, put upon doctors. Nobody loves us. We’re going to take our license and go home.”
As I said, sounds like Elliott. No sources, no references. No proof.
Number 2 statement according to recent NEJM article is not true.
My theory is minimize argument with stupid, anonymous people. The NEJM study found only 3% had no harm. In other words 97% had harm. In 67% of the cases, there was error. My son learned that 1/3 was greater than 1/2 before he entered kindergarten. He knew that 97% was almost the whole pie before he entered pre-school.
Should be: 1/3 is less than 1/2. All errors are my own and not my son’s
Even if it’s accurate, it would only apply to cases that actually make their way to trial. I would think a “health court” system would have effects on malpractice litigation beyond those cases that go to trial.
There are certainly people that file malpractice suits solely because they know juries can be confused into ruling in their favor even if malpractice never occurred. This would be harder to do with a health court system, and these types of claims would occur less often.
So it might be fair to suggest that doctors might lose a higher percentage of cases that make it to trial, but the number of claims actually made ought to go down, reducing the number of settlements and perhaps the number of cases making it to trial.
That argument is counterintuitive and likely incorrect. In fact, the bias juries have in favor of doctors tends to suggest that settlement is less likely to occur or at a deeper discount than warranted. Mr. Phillips earlier work was along those lines.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=891120
“The NEJM study found only 3% had no harm. In other words 97% had harm. In 67% of the cases, there was error… 97% was almost the whole pie before he entered pre-school.”
Elliott, read with comprehension.
3% had ho proven medical injury.
In 33% of all those sued, there was no error.
Harm in 97% did not mean medical error in all of those cases. You can have harm without medical error. An example is having P.E.(pulmonary embolism)after a hysterectomy or renal failure after repair of an aortic abdominal aneurysm.
So 1/3 of doctors who have been sued should not have been sued.
That’s a lot of doctors.
One more thing Elliott, you are as anonymous as every anon in this blog.
This a such a load of bull! Everyone knows there are tons of frivolous lawsuits. The majority arent won PRECISELY because of that. And since there are so many goddamn lawyers trying to make a buck ,they’re willing to ‘go for broke’.
But lets pretend like lawyers are the REAL patient advocates. They care soooo much.
Please.
Tons? How many?
Let me know when doctors line up to pay the hundreds of thousands of medical bills and ordinary expenses of someone one of their colleagues has injured. One of their colleagues who they would never send their own family to.
“There are certainly people that file malpractice suits solely because they know juries can be confused into ruling in their favor even if malpractice never occurred. This would be harder to do with a health court system, and these types of claims would occur less often.”
So you believe that a lawyer, who is financing his client’s case, and who works for free if he/she loses, is going to file a case they know has no shot on the outside chance they can “confuse” a jury? Even though they still have to survive a summary judgment motion, a well funded defense, and, of course, the fact that doctors win 3-1 in front of juries?
Are you serious?
Health courts are just disguised caps. Nothing more, nothing less.
So you believe that a lawyer, who is financing his client’s case, and who works for free if he/she loses, is going to file a case they know has no shot on the outside chance they can “confuse” a jury?
No. I believe that a lawyer, who is financing his client’s case, and who works for free if he/she loses, is going to file a case when they suspect their chances of winning money (through settlement or winning the case) multipled by the likely amount won is less than their costs of pursuing the case. Basic economics.
If you change this equation, either by reducing the probability of a win or the likely amount won, you change the amount of “merit” the lawyer must prove in order for it to be economical for him to pursue it. If he is more likely to win the case (as the article suggests), he can afford to take on a case with less merit and still win enough cases to cover his costs and make a profit.
However, unpredictability of juries frequently pads risk estimates when physicians decide when to settle, and for how much to settle. Even if juries side with physicians more often than not, awards are all over the place. With a more predictable system geared toward the merits of the case, and less toward the performance of the lawyers, settlements will be more accurate (reflecting the actual harm) and the risks of winning or losing more precise/predictable.
This will lower or eliminate many “high-end” awards (and consequently the average award, though not necessarily the median award), and our financially-savvy lawyer will realize that his cases must have more merit on average for him to make money.
If we believe this article, it would seem to be a win-win situation here. More patients will win cases, because juries aren’t being sympathetic toward doctors. Doctors will pay fewer non-economic “jackpot” awards, and will pay less in settlements due to inflated risks caused by unpredictable juries.
The only “losers” here are the occasional plaintiffs that are awarded far more than fair compensation for their harm, and perhaps the lawyers that are forced to turn away cases with less merit than they used to take previously.
The problem with your theory David is that you can’t estimate which ones you might be able to *trick* a jury with. First, because you don’t automatically get a jury - you’ve got the judge as gatekeeper. Then, you’ve got the appellate court. And since there are no constants in either judge or jury, much less clients, there’s no accurate way to assess the risk reward. Not to mention the fact that you’ve got to attract some seriously, seriously injured clients to make significant money in this arena.
You’ve got literally no proof that “awards” are all over the place, in fact, of the limited studies that are out there, most show that they track medical bills, which is not surprising.
Given the distinct nature of most med mal cases, I’m unsure what the desire for “predictability”, however you’re definining it, is. Unless you’re an insurance company, that is. In that case, you have ample statistics at your disposal to determine where your risk is.
Your other problem is that you’re assuming verdicts equal payouts, which they rarely do.
“Doctors will pay fewer non-economic “jackpot” awards, and will pay less in settlements due to inflated risks caused by unpredictable juries.”
Doctors don’t “pay” anything, their insurers do. And typically they don’t pay what’s awarded, because when they do lose, they appeal, and settle sometime during the appeal. And I’d challenge you to find an unjustified “jackpot” award, where you would trade the injury suffered for the “jackpot”.
You’ve got a number of assumptions that simply aren’t supported by the facts.
And, all current proposals of “health courts” include arbitrary damage caps, which give justice to no one. Plus, no one has dealt with the cost of these things, which will be significant based on most of the serious proposals for them. I’m unsure why the taxpayer should shoulder the insurers’ burden when there is no evidence that it will be a significant improvement over our current system.
I’m pretty skeptical of health courts because of doctors like Kevin support them and Republicans. These are the kinds of people I don’t trust. On the other hand, the funding is definitely there. The health courts could be funded by a tax on awards and malpractice insurance premiums with a related (mandated) reduction in contingency fee arrangements. Additional costs would be associated with fees paid by the litigants. There is no reason to suppose that the cost of health courts would be greater than the cost of the current system so there must be a redistributive mechanism (by definition) that achieves the same result. Of course, this emphasis on malpractice is really just a BS framing issue that has nothing to do with real healthcare reform.
Anon, you make valid points (worthy of further debate and study at least; issues like this aren’t going to be solved in some blog’s comments). But consider that it’s not “most” of the awards that cause problems, it’s the outliers: even if you correct for the amount of “actual” harm (cost of medical bills), you still end up with a minority of awards that skew the average and standard deviation enough to affect decision-making. That’s really what I was referring to. Median awards should remain roughly the same (but even those are skyrocketing, so I’m not too sure the problem isn’t more systemic).
As far as identifying awards that people would gladly accept along with the injury, consider http://www.kevinmd.com/blog/2006/10/jackpot-malpractice-verdict-fires-up.html. Yes, I would consider giving up my *life* for $217M, provided that money were used to improve/save the lives of others. Far more good for my family and my community could come from that $217M than I could ever hope to accomplish alive.
(Though since the case was litigated by family members and not the deceased, perhaps it is sufficient for me to say that there are plenty of people who would gladly allow a family member to die in exchange for $217M.)
When you say doctors don’t pay, you seem to forget about awards that exceed the coverage provided by the insurance. Either way, you’re nitpicking. The physicians are the ones sued, not the insurance companies. The fact that an insurance company is usually going to be the ones writing the checks ought to be irrelevant.
How much of that will actually be collected. That number is just hype. The doctors have filed bankruptcy. The insurance company has disclaimed responsibility. (The doctors claim less than $100,000 in assets.
Wait… The rich doctor who whines about declining reimbursement, make 150K or more a year and is among the wealthiest profession in our society has less than $100,000 in assets?
I guess he’s lying. Doctor’s all have plenty of excess wealth that they never have to spend on malpractice trials, judgements or settlements, and they alll make much more than they are worth. What a liar! It’s inconceivable. Anything hew says about what he did for his patients is a lie. He can;t be trusted.
Actually, he is probably lying. Go type “protect your assets” and malpractice into a serach engine.
David,
Even the occasional large award doesn’t mean that much, it’s a payout that matters. And of all the physicians in the US, probably less than 1/10 of 1% have ever paid on an excess judgment-that’s hardly a reason to go revamping a constitutional right.
As for your “median awards are skyrocketing” claim, are they rising any faster over a 20 year period than the rate of medical inflation/cost of care? If not, then the increase is to be expected as the bulk of awards is for past and future medical bills.
“ere are plenty of people who would gladly allow a family member to die in exchange for $217M.)”
You’ve identified the rub. Plus there’s the fact that the $217 million amount likely never was paid. Tell me, of all the awards you believe are “jackpot” awards, how many are unjustified, and how many are there compared to the overall number of awards? It should be pretty significant before you go tilting the scales toward the insurers even more, shouldn’t it?