The following is a reader take by an anonymous physician.
Defensive testing is not the same as unnecessary testing. An unnecessary test is one that no one needs. A defensive test is one that almost no one needs.
If you have a patient with a problem who you can diagnose 99% of the time without a test, but 1% of the time you will miss a huge problem, then for most people, that is an unnecessary test. Unless of course they are the 1% who suffer a complication, and who are often very unhappy with their doctor. Some patients will actually benefit from all that testing, though you by definition cannot tell ahead of time who they will be.
Our culture will not accept the fact that there may be patients who have bad medical outcomes that could have been avoided if a test had been done. Our society will not accept a level of medical mistakes that the rest of the world takes for granted as part of the unpredictability of life.
When adverse outcomes lead to unbelievable awards, or at least to a painful defense of a malpractice suit, doctors will do whatever it takes to avoid that. A test can be a type of second opinion. It is no longer possible to defend one’s actions by saying that a physician has used their best judgment in a given situation. So tests will be done.
This is why meaningful control of the cost of medicine will have to go hand in hand with tort reform. It is not good enough to say that we will stop frivolous lawsuits, with the implication that for “real mistakes” the full force of American litigation will still come to bear on those involved. For medical disagreements, regardless of the merits of the case, they should be extracted from the tort system and handed over to administrative systems that will not be subject to the vagaries of the jury system.
There should be equal justice under the law for everyone, not just for patients who are inclined to evoke sympathy in a jury. I suspect also that administrative courts comprised of both medical and legal entities would cut through some of the posturing, grandstanding, and maneuvering, and would be more fair to both defendant and plaintiff.
Our medical system has evolved and developed by tort cases over the last century, with less than stellar results as compared to other first world countries. We’ve used the bloated and expansive legal system to control, adjudicate, assign blame, and award money in medicine, with the end result that our system is broken. Why this has happened is outlined in a nice book, The Death of Common Sense, by Philip Howard.
Despite an unbelievably active plaintiffs bar, compared to the rest of the world, our patients do not seem more well. They are less happy with life in general, and they are afflicted with many societal health problems for which they do not take responsibility (obesity, smoking, alcohol, among others). Our legal system seems to foster this sense of entitlement, and lack of self-reliance, that festers in this as well as other areas of our country.
The myth of the American rugged individualist is just that. My experience with other citizens of the world indicates a higher level of personal responsibility elsewhere, sorry to say, contrary to movie characters and TV heroes. Unfortunately, solving this requires the skills of someone with the country’s interests as a whole in mind, immune to entrenched entities, willing to turn the system on it’s head, revolutionary in nature.
And I don’t see that happening anytime soon.
Submit a reader take for consideration.
{ 27 comments… read them below or add one }
I couldn’t have said it better myself. I particularly enjoyed this statement:
“It is not good enough to say that we will stop frivolous lawsuits, with the implication that for “real mistakes” the full force of American litigation will still come to bear on those involved. “
What exactly is the definition of a frivolous lawsuit and what constitutes a real mistake (hence the quotes in the excerpt)? Take a survey of plaintiffs and plaintiffs lawyers and ask how many frivolous lawsuits they’ve filed. At least two people thought that every lawsuit ever filed was justified - even the frivolous ones. In some cases, seven of the twelve jurors agreed.
“Defensive testing is not the same as unnecessary testing. An unnecessary test is one that no one needs. A defensive test is one that almost no one needs.”
The author is absolutely correct. Unfortunately medicine is plagued by both kinds of testing and tort reform will only reduce one of these
What is needed is some type of no fault insurance system. We ought to protect our citizen’s when bad things happen. However, assigning blame and involving the courts while lawyers profit is clearly not working. When the doctor does something clearly careless, like operating on the wrong body part, this is clearly malpractice and a legal system to protect patients makes sense. However, sometimes things just go wrong. Diagnosing cancer is often tricky, and “defensive testing” may yield prevent some bad outcomes, but the cost of defensive testing as a whole to the entire system is not likely worth it. A no fault insurance system would compensate the patient whose cancer was missed, without penalizing the doctor who followed reasonable medical practice.
Add another component to your argument and it will be more credible: Give patients an option within the walls of your clinic or hospital to pursue and hear the truth so that courts don’t NEED to be involved. Don’t hand them over to risk management attorneys who will deny, deny, deny even in the face of overwhelming evidence that a mistake was made. You underestimate just how infuriating that is.
If your focus is only on tort reform, you’re not solving the cause of the problem. You’re treating a symptom. You may propose that tort reform will encourage the “business” side of medicine to allow the medical side to be more open. I say BS. They should be parallel and concurrent movements.
frivolous lawsuit what a wonderful piece from you well i promise to talk more other time
This is a brilliant entry! To me it seems as though Americans (much more so than those living in South America or Europe, from my interactions) are either unable or unwilling to accept the fact that our health, as part of a biological system, can be quite unpredictable, and “bad outcomes” and even death can just happen. We’re convinced everyone needs to live to 80…no, 85…no, 100… And that any death even a minute earlier than we wish is a crime and deserves a lawsuit. Healthcare workers are forced to predict the unpredictable, and if they are wrong even once, they will likely be sued. This is different from gross negligence. With many of our congressmen and senators being trial lawyers, there is little chance of this changing any time soon. The same politicians who trumpet “healthcare reform” (a nice buzzword that means absolutely nothing) also made their millions on frivilous lawsuits against healthcare providers. I wish for healthcare for everyone, but I’m quite convinced that a socialized system will only work if as a country we come to the realization that there are calculated losses in socialized healthcare systems, and folks in those societies understand that bad things can happen, even with the best care available.
Truly wonderful post.
In Australia, for example, they have Medical Tribunals- panels comprised of administrative judges, doctors and others, to appraise the merit of a complaint from a patient against a doctor.The outcomes of their hearings are fairly predictable- the nonsense complaints are dismissed, the real ones can lead to a loss of one’s license
Docblogger:
That system well never be present in the states. Lawyers make big bucks of the present system and everytime “med-mal court” system is proposed the legal industry shoots it down. Personally, I think it would be better for patients victimized and seeking appropriate claims, doctors who may be victimized by inappropriate claims, and society as a whole for removing bad doctors/maximizing moneies to the injured. But that’s not the point. It’s about the legal system making $$$.
It is a good entry, and it makes some great points. I’d imagine a high percentage of patients would want to do the test especially in the current “just find it early and you’ll live forever” message one constantly gets from the media. I’d imagine a fair number of jurors would indeed think along the lines of - if there is 1% chance that the test would save a life, why didn’t the doctor order the test.
What is completely missing in this post is the potential harm this test may have on some small percentage of the 99% who don’t benefit from the test. Let’s say hypothetically the test has 1% rate of serious complications. Then for every person with a serious problem, one healthy person will be harmed. Is doing the test in this type of situation ethical? Additionally, wouldn’t the person that is harmed by the test be able to sue the doctor as well saying that “the test wasn’t necessary”? If I remember correctly just the other week Kevin mentioned one such lawsuit: and I don’t know if the test was actually necessary in a particular case.
OK, 1% rate of complications from a test may be unrealistically high. Let’s say the test itself is harmless, but has 10% rate of false positives. Let’s say the following invasive test has 1/100 rate of very serious complication. Then the probability a person is harmed by the first test is 1/1000. So every time you find some problem in 1 person out of a hundred, 1/1000 healthy people will be harmed. Sounds like a good trade, except for finding something early doesn’t always make a difference. Sometimes it just increases the time during which one is sick; at other time detecting something later is still OK; yet in other time, you may find something that would’ve never caused a problem. When you count not just the chance that you’ll find something bad, but the actual chance that this will make a difference, the comparison of risk/benefit will get the whole lot fuzzier.
I agree with most of the things said by other posters. At the same time I think - and maybe I am way too naive - that more emphasis on tests’ risks - both in the media, during lawsuits and in doctors’ offices would lead to at least better educated juries. I also think that doctors should give patients a choice before ordering a defensive test. Don’t just order the test, tell “I don’t think you have X, there is only 1% chance of that, but I’d like to order it”. Most of us don’t know when a test is defensive, nor do we know a probability it’ll find something. We certainly rarely know much about a particular test’s risks.
Tell us.
It also will not ever be present in America because of Drs. refusal to police their own profession. It can not be more evident than when reading these various medical blog posts. It is never that you actually hear about the patient or that you see any empathy or compassion when it is really a genuine lawsuit. Until Drs. can learn to police their own they will not ever (rightfully so) be allowed in lawsuit decision making.
Yes, please. Let’s let the lawyers police the medical profession.
“Members of the American Bar Association have been debating for months whether a ban on sex with clients should be written into its model rules for lawyer conduct. Those rules are important because they are widely used by state courts for guidance in deciding when to discipline lawyers.”
from:
http://query.nytimes.com/gst/fullpage.html?res=9F0CE4D6103CF936A3575AC0A965958260
So, yes, please. Let’s let the lawyers police the medical profession. They are so good at policing their own. Any doctor or nurse that had sex with a patient would face sever discipline, and lose their license in the US. And that is medical profession policing their own. Policing the medical profession happens, just not to the “scorched earth” that a few elements of the bloodthirsty public desire. Could the policing be better? Sure. It is already better than the lawyers. Oh yeah, and just who protects doctors from the lawyers? Remember, as pointed out above, at least 2 people think the lawsuit was not frivolous or persecutory… the plaintiff and his lawyer.
A physician friend of mine who practiced in India and Europe prior to emigrating here once commented, “The problem with Americans is that they think death is optional.” I think that says it all.
A frivolous lawsuit is not by definition, one that is lost; you’ve heard the term used in law discussions by lawyers and court wonks, and co-opted it improperly to a case where the plaintiff doesn’t prevail. A “frivolous” lawsuit, is one where there is no legal basis for bringing suit.
For example, that might be a case where a person has no standing, or no valid legal theory under which to prevail - (for example, I sue you for cutting your bushes in your lawn, because they were so pretty and I liked to look at them and now my property value can’t be as high because it doesn’t overlook you pretty hydrangeas.) it might include imaginary or vexatious claims with no basis in reality, for instance, you have made me trip repeatedly by casting spells on me.
Often that “one percent” isn’t such a “one percenter” when all the clues you had (or ignored) are evaluated. Absolution for treating the herd instead of the one patient is not a very good argument for absolution of errors.
While this is the true definition of frivolous lawsuits, these type of suits account for a vanishingly small percentage of all medical liability cases. However, if you ask many doctors about lawsuits they’ve been involved in they would consider them “frivolous” based on medical criteria (whether won or lost). Would the highly publicized cerebral palsy cases that John Edwards is famous for pursuing be considered frivolous, particularly now that we know that they were based on “junk science” and very questionable medical evidence that has been widely refuted? From a medical perspective these were frivolous, though not from a legal perspective. That’s the problem with attacking only “frivolous lawsuits” - narrowly defined they only scratch the surface of the problem.
And evidenced-based medicine is not treating the herd (there are countless articles referred to on this site refuting your assertion). I’ve heard this claim time and time again and it’s usually by lay-people who have never studied medicine in any capacity. Of course doctors take in to account personal variation (such as risk factors) when diagnosing and treating patients - in fact there is often very focused evidence-based data referring to specific risk groups or variations in patient presentation (i.e. breast cancer screening studies). The alternative to evidence-based medicine is anecdotal medicine (continuing to practice “how you’ve always done it” despite the fact the studies refute its efficacy). This haphazard approach would be disastrous to our health care system. We need guideline and we need doctors to practice responsibly, not only with their patient’s interest in mind, but that of the system as a whole. The emergence of antibiotic resistant strains of bacteria due to indiscriminate use of antibiotics is testament to what happens when this approach is abandoned.
“Any doctor or nurse that had sex with a patient would face sever discipline, and lose their license in the US.”
True for psychiatrists, for other physicians its more variable from state to state.
“We ought to protect our citizen’s when bad things happen”
From a comment above. The base of the problem. The idiotic belief that “bad things” are an anomaly that we should all collectively act to prevent, rather than a fact of life that we should all grow up and face.
“We ought to protect our citizen’s when bad things happen”
Who will one sue in the future, when they’re suffering from an acute stroke or MI, and doctors & ER’s aren’t within reasonable access? the AMA?
We have a no-fault insurance system now that will compensate people impaired by undiagnosed illness, accident, or adverse medical outcome–personal disability insurance and social security disability. People who want to further collectivize the risks of existing can also purchase life insurance, long-term care insurance, etc.
What we are discussing is when something bad happens due to alledged professional negligience. Not erroneous judgements or mad luck but neglect. A big problem are “expert” witnesses who don’t understand that themselves. Who will call what most docs do in a certain situation “substandard”, in effect constantly raising the standard of due diligience in doing so singlehandedly in a sort of ratchet fashion, thereby constantly increasing the amount of testing that is considered “state of the art”.
Quite often the “expert” is someone who hasn’t done full time clinical in years and so is completely disconnected from the clinical arts the supercede testing and through which tests are selected and interpreted. In fact, in my own specialty, those who go into “forensic” work and make their livng with such court testimony are usually those who never mastered or felt comfortable with the doctor-patient relationship and the art of clinical medicine.
“For medical disagreements, regardless of the merits of the case, they should be extracted from the tort system and handed over to administrative systems that will not be subject to the vagaries of the jury system.”
A medical “disagreement” never results in a tort judgment. Every state I know of follows the “two schools of thought” doctrine in which, if there are differing opinions within the medical community, and the defendant physician followed one of those opinions, the court/jury must find in favor of the defendant physician.
Tort liability is reserved for breaches of the standard of care that cause harm to the patient. All of that, both the breach and the causation, must be established by expert medical testimony.
I get the author’s point, but it has nothing to do with the tort system. It has to do with unclear standards within the medical community. Is a test worthwhile or not? Lawyers can’t answer that, doctors have to. If they don’t, or it’s ambiguous, it may end up in the courts, just like every single other monetary dispute in society, as it should be.
There’s no evidence some vague “administrative” court would do any better. Every time a study has had a panel of experts review medical malpractice judgments, that panel has returned the same result as the jury in two-thirds or more of cases. Indeed, in fewer than 5% of such cases did the panel agree there was either no malpractice or no causation or both.
That’s a pretty good system. Vague references to a book — The Death of Common Sense — that itself is nothing more than a compilation of supposition and assertions doesn’t make the post any better.
I think that I would feel better about this post if I hadn’t read so many of these other blogs. A lot of med folks take one look at someone and they “know” what’s going on with the patient immediately. Even if they don’t. Especially if they take a dislike to the patient, which based on these blogs, seems to happen a lot — given the vast categories of people who don’t qualify as “legitimate patients.”
The guy who was passed out in the street in DC, that the ambulance folks figured for a drunk — turned out to be a robbery victim with a closed head injury. But oh, those drunks.
Then there’s THIS episode:
The mentally disabled guy “whining” about peritonitis.
The tort system is different from the professional disciplinary system. It is very easy for an attorney to get his license yanked. It takes an act of God for a medical professional to get his license yanked, even if he IS incompetent.
The tort system doesn’t stop incompetent professionals. It compensates people who have to live with the life-long consequences of a medical professional’s mistake.
It doesn’t matter to the person totally disabled that it was a “mistake.” That person needs to find some way to make a living that was taken away by the ::shrug:: mistake.
“From a medical perspective these were frivolous, though not from a legal perspective. “
Do you not see the danger to intellectual honesty from grabbing a term with specific meaning and applying it to legal cases, but using a layman’s imprecise understanding of the term?
Frankly I think this application is done with willful ignorance, to get the emotional lurch tied to the word. I can think of dishonest reasons user’s WANT to apply a non-legal standard …even to cases that win and survive appeal.
I have to counter your assertions about evidence-based medicine. I know how you mean evidence based medicine to be used, and don’t mean to dismiss its value when evidence is adeqaute and not simply missing, or contrary to the interests of any given individual.
Unfortunately human nature has a way of perverting its proper application. Too many physicians and insurance companies look upon it as a way to avoid responsibility for treating individuals instead of herds, or exculpate themselves from payment for a treatment, or test.
And I don’t mean to single out “evidence based” treatment. More accurately thinking errors that result in mistakes and preventable harm, or loss of opportunity to treat.
A simple danger would be it’s use to JUSTIFY treatment of some larger group, that benefits the group in any way ( whether it be financial benefit or overal health of that population) at an individuals expense, or to relieve a physician of effort of understanding a patient’s particular history or risks. Evidence based medicine, depending on the “evidence” is only a guidepost, and no subsitute for clinical judgement.
” It has to do with unclear standards within the medical community. Is a test worthwhile or not? Lawyers can’t answer that, doctors have to. If they don’t, or it’s ambiguous, it may end up in the courts, just like every single other monetary dispute in society, as it should be.”
Therein lies the problem. It is the exception in medicine when a question has a clear-cut, unequivocal answer. Most questions in medicine have ambiguous answers subject to debate. There are always two sides to every controversy and the fault of the tort system is that we allow a group of layman with no medical background to settle the dispute. Doctors themselves often have difficulty defining the standard of care, why do we expect jurors to deliver fair and rational judgments? Instead the verdict is dependent on the skill of the lawyer’s cross-examination and how well the jurors ‘connect’ with the expert. When the facts are contradictory and confusing, people resort to intangibles to make their decision - was the expert convincing, trustworthy, composed, articulate - all subjective assessments of their performance on the stand. I would gladly take a system where medically correct judgments are rendered 33% more of the time. Anything is better than what we currently suffer with.
A contrarian, curmudgeon, Devil’s Advocate position:
Let me clear that I despise 2/3 of attorneys as corrupt extortionist land pirates who belong (literally) in prison, and the essentially unregulated trial industry is utterly lacking in justice for physicians, especially front line trauma care, emergency neurosurgery, and (the biggest goldmine) completely innocent obstetricians.
Having said this, I have to strongly oppose any linking whatsoever of liability reform with cost control. This will produce the worst of all possible worlds: no patient choice, a stifling of innovation, severe damage to private practice, intimidation of physicians via access to liability insurance, and no proper recourse for patients injured by aforementioned cost containment.
My basic assertion is that the malpractice system also protects private practice in ways most physicians do not appreciate.
If you want reform, stick to the California and Texas models. They work great for patients and physicians.
Doctors serve as experts to establish the standard of care. Additionally, in quite a few states, in-state physicians have to prepare pre-suit expert opinions to be served on the defendant physician prior to the filing of a lawsuit. This pre-suit screening by a physician guarantees that a frivolous lawsuit is not filed.
On top of all this, medical malpractice suits are extremely expensive to bring and have a small margin of success. I believe this small margin of success to be the fault of poorly prepared lawyers more than anything else.
Lets cut to the chase. This tort reform effort has been an effort by a bunch of money lovin’ docs to become lawsuit proof.
“This tort reform effort has been an effort by a bunch of money lovin’ docs to become lawsuit proof.”
The Big Lie approach: The truth does not seem to be this
land pirate’s strong suit.
I found this post doing research for a college paper. Reading it, and the comments thread, has helped me to realize that I would be a fool if I were to continue my current course of study and become a physician. It’s a no-win situation.
“Why this has happened is outlined in a nice book, The Death of Common Sense, by Philip Howard.”
So a defense attorney at one of the largest lobbying firms in the country writes a book and is to be believed about the evils of litigation, but the people who represent the actual victims of malpractice aren’t?
Hmmm.
“If you want reform, stick to the California and Texas models. They work great for patients and physicians.”
Unless of course you’re a patient injured by malpractice who doesn’t have a job at the time. Then you’re royally screwed.
Health care in those states is no cheaper for the residents. Perhaps you meant physicians and their insurers?