Physician malpractice deposition observations

Emergency physician WhiteCoat continues the chronicles of his concluded malpractice trial.

A recent episode focused on the deposition at the plaintiff attorney’s office. Along the way, there are observations on whether doctors with thick foreign accents make good witnesses (according to WhiteCoat’s lawyer, “juries are not very forgiving of foreign doctors”), or if the bathrooms were bugged. Cloak and dagger stuff.

But importantly, with the deposition focused on whether WhiteCoat ordered more timely tests, or more urgent consults, he begins to question himself.

In fact, when thinking about how he treated his recent patients, he writes that, “My doubts sometimes affected my clinical practice. I noticed that especially with critically ill patients, I tended to worry as much about the potential liability I could incur as I did about the patient’s medical problems. For a while, I found myself practicing defensive medicine – almost as if I would be able to compensate for this lawsuit by being ‘extra careful’ with future patients . . . I can’t think of one instance in which those hundreds of thousands of dollars in extra tests made any difference in the patient’s diagnosis or treatment. All they did was penalize the patients on whom I ordered them.”

Folks, that is the defensive medicine mentality in action, and as President Obama himself says, we need to “scale back the excessive defensive medicine reinforcing our current system of more treatment rather than better care,” and that, “these changes need to go hand-in-hand with other reforms.”

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  • http://www.consentcare.com Martin Young

    I agree, but…

    Is being proactive not better than being reactive to a potential problem in medicine? Are you not less likely to be sued for being proactive when ordering tests? I can’t help feeling that a litiginous society gets the doctors and the healthcare it deserves!

  • http://www.futurewaredc.com Chuck Brooks

    Wouldn’t be suprised if this interesting disclosure gives the tort lawyer a trump card.
    Chuck Brooks
    FutureWare SCG

  • http://vendorMD.com vendorMD

    Defensive medicine can only go hand in hand with tort reforms. It is not possible to beat these two drums separately.

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  • Supremacy Claus

    Modest ideas on managing the medmal expert for review with the attorney. These are conversation starters.

    http://supremacyclaus.blogspot.com/2009/06/experts.html

  • Bad medicine not a hedge

    Less likely? It depends on the context. It depends upon what is concealed from the patient or the patient’s proxy. An unecessary test, with bad outcome from that test, can be judged – fairly- to be malpractice.

    Physicians can be too slow to react, they have their own forms of denial and thinking errors to contend with and but for pressure of consequences for failing to exert themselves on a patient’s behalf they would be avoiding care to avoid work, as is human nature, and to please other forces interested more in cost-containment than outcome for an individual patient.

  • http://www.meyersmedmal.com jimeyers

    he emergency physicians trial chronical reveals the common misconception that a physician’s fear of being held acccountable is somehow an excuse for ordering unnecessary tests. This physician did not get sued for failing to do an unnecessary test. Moreover, performing unneccessary tests can subject a patient to needless risk. If he now feels the need to be extra careful isn’t that what his patients deserve? Being extra careful should not be equated with doing unnecessary tests.

  • Supremacy Claus

    The plaintiff had a condition officially called a rare disease by the government. There is no duty for an ER to diagnose a rare disease. The claim should get dismissed on first pleading. I doubt the defense lawyer will be that assertive. He needs a trial to make money.

  • MD

    I agree as well….
    but where do we draw the line between excessive testing from practicing defensive medicine and carelessness on the physician’s part??

  • Anon

    “Defensive medicine can only go hand in hand with tort reforms.”

    There has been tort reform in some states for 30 years. Is there less defensive medicine in those places? Are there more doctors per capita? Specialists in every rural area?

    You’d think, if all the claims about what tort reform will change were true, that there’d be this large body of decades old evidence proving it true across the 20-25 states that have it.

  • skepticus

    There has been extensive research as to the effect of tort reform–and, while it’s hard to summarize this vast body of research, there is little detectible evidence that reform 1. reduces premium, 2. improves outcomes, 3. reduced “defensive medicine” (Whatever that term means other than a projection of physician anxiety about accountability). 4. significantly effects quantity of doctors.

    Ahh . . . but remember how little of medical treatment is evidence based. Do you really think doctors would look to evidene to base their policy prescriptions?

  • Supremacy Claus

    Mr. Meyers: You are an extra careful lawyer. Please, tell us the fraction of the claims that you filed had the plaintiff prevail? This is in the public record, anyway.

    And if accountability is so helpful, why is the lawyer depriving himself of its great benefits with self-dealt immunities?

  • GGFreeman

    Indiana has it right. They have a special grand jury of physicians that review all Medmal cases BEFORE they are even ALLOWED to be filed. How is this not possible in all 50 states?

    And this isn’t fox meet’s henhouse, it’s physician examine thyself and then cast stones where true malpractice has taken place.

    If just that was in place OR it was made illegal for lawyers to charge % fees for cases settled out of court (just a flat fee based on costs to litigate) … that would eliminate MOST lawsuits where the physician wasn’t actually negligent.

  • Matt

    Actually that’s the very definition of the fox guarding the henhouse.

  • Supremacy Claus

    Matt: Explain to me in facts, policy, or philosophy. Why is the lawyer profession the only one that regulates itself, and has granted itself virtually total immunity from accountability to anyone but its hierarchy? I am having trouble grasping that concept in the face of the total failure of every self-stated goal of every subject in the law.

  • Matt

    I’m not really sure 1) I understand your question; or 2) that this is the forum to get into grinding your particular axe, given how it’s unrelated to medicine.

  • Supremacy Claus

    You were the one who brought up the fox guarding the chicken. Those with filthy hands should not be pointing fingers.

    The lawyer judges, regulates, and condemns all others. No one may judge the lawyer but another lawyer. The adverse third party may not sue the lawyer for legal malpractice for the filing of a weak case. The privity obstacle precludes that claim. No one else has had a privity obstacle to tort liability for 100 years. This is in the face of dozens of duties of the lawyer to the adverse third party enumerated in the Rules of Conduct, the Rules of Evidence, the Rules of Civil Procedure, the Rules of Criminal Evidence, and countless appellate decisions.

    Even the client of the lawyer, who has privity, will find it impossible to successfully sue for damages from the carelessness of his lawyer. He must prove damages, deviation from professional standards, a legal causation link between the two. Once proven, he must then prove that he would have won the original trial that he lost.

    Once he has proven the negligence, the favorable verdict in the original matter, then, he must prove that he could have collected his verdict from the original defendant. He must get the original defendant’s finances. The lawyer has no obligation to carry malpractice insurance, in contrast to the lawyer forced purchase of insurance imposed on the doctor. The lawyer profession is totally irresponsible to anyone but its own hierarchy. Victims of lawyer carelessness have impossible obstacles to climb.

    There is no public accountability for the lawyer. If the lawyer offends a member of the hierarchy, for example, by being late to a conference by 20 minutes, the lawyer hierarchy will destroy the lawyer, with no recourse in a court.

    The doctor should be aware of this sweet scheme of self-dealt unlawful immunities, airtight preclusion of any recourse against just about any lawyer, even his own, and the total irresponsible lawyer profession.

  • Matt

    I’m going to indulge you – once. I am not going any further because I expect it will degenerate into a rant about Bill Clinton, 9/11, New World Order, etc.

    ” No one may judge the lawyer but another lawyer.”

    This is incorrect. A jury in a legal malpractice case will be the judge of all fact questions. Same as in a medical malpractice case.

    “The adverse third party may not sue the lawyer for legal malpractice for the filing of a weak case. The privity obstacle precludes that claim.”

    The lawyer has no duty to the adverse third party. You can’t establish a claim for negligence where no duty exists. There are, however, sanctions for filing truly frivolous claims. Your problem is you use the phrase “weak” case, which will presumably be defined by . . . . you. Well, everyone in a lawsuit thinks the other side has a “weak” case.

    ” He must prove damages, deviation from professional standards, a legal causation link between the two.”

    Same as a medical malpractice case.

    “he must prove that he could have collected his verdict from the original defendant.”

    This is incorrect. You need not prove you could have collected in a legal malpractice case.

    “The lawyer has no obligation to carry malpractice insurance, in contrast to the lawyer forced purchase of insurance imposed on the doctor”

    Many states, and maybe all, do not require physicians OR lawyers to carry insurance. Or a number of other professions.

    “If the lawyer offends a member of the hierarchy, for example, by being late to a conference by 20 minutes, the lawyer hierarchy will destroy the lawyer, with no recourse in a court.”

    What profession does have a penalty for being 20 minutes late? Lawyers are at least subject to penalty from the court.

    Clearly, you were on the losing side of a case at some point, and couldn’t get anywhere with your legal malpractice claim, and maybe even had a lawyer show up late during the process. And you’re now using your experience to extrapolate it into a larger policy you want to pursue. I commend you for your zeal, but several of your facts are incorrect. Nevertheless, I have now answered your request for response, and I wish you the best of luck.

  • http://www.meyersmedmal.com jimeyers

    Mr Claus,
    Of cases “filed” I have failed to succeed for my clients 6 times in 35 years of practice doing only this work. My personal experience is irrellevant. The hundreds of victims I have represented are a small proportion even collectively of the patients harmed by careless medical and hospital practice annually in my state or nationally. I needn’t provide examples because all of the physicians who read this blog have been witness to tragic outcomes resulting from careless medical care. My clients have never been offerred the slightest assistance by those who harmed them prior to my invovlement. Self regulation has failed miserably. Outside of the investigative tools available to a plaintiff’s lawyer in such cases the hospital staff is helpless to get to the bottom of a problem. The focus is to often on the personal feelings of thoose involved or politics. We should all be on the same team. Good medical practice is what we all want. Hospital sylstems have taken the power from most physicians. The PCP is helpless asnd facing a continued decline in revenue. Specialists regretably have to focus a wasteful percentage of t6heir time, noot responding to lkawsuit, but dealing with a maze of forms and insurance carriers constantly bundling this and that.

    I remember the family doctor of my childhood. His hands were strong and cool. However worried my parents, they came away from a visit with doctor “T” feeling that everything was going to be ok. When the unexpected occured, explanations assurances and help was always present.

    That was then and this is now. We are all responsible for where we are and hopefully with candor and undertstanding we can all find a better place.

  • Supremacy Claus

    Not only should the lawyer have a duty to the adverse third party in a standard of care, he does in many statutes. These duties are per se (automatic malpractice if violation of the rule is proven).

    Here is a partial list. I got tired of going through textbooks.

    http://supremacyclaus.blogspot.com/2007/05/ending-lawyer-immunity-from-legal.html

  • Supremacy Claus

    Mr. Meyers: You sue hospitals then berate them for the cover up.

    Every medical error is the fault of the lawyer. The hospital has a duty to all other patients to survive. A thorough investigation would be used as an admission against interest, an exception to the hearsay rule in the legal system that is totally rigged in favor of lawyer rent seeking.

    Medical errors will end with continual improvement methods, and when the lawyer has been stopped.

  • susanh

    President is speaking now, insisting healthcare must be reformed, and his silence on tort reform is deafening.

    The NRA succeeds in its mission because it is single minded in purpose: give us what we want and we will vote for you. We don’t care how you vote on abortion or healthcare or endangered owls, but if you vote against guns, we will make sure you are never again elected dogcatcher.

    Can’t the one body of professionals with the power to literally cripple the nation if it so chose to strike find one single voice, one single request?

    Simply ask that the legal profession be required to operate under the same risk/reward liability as medicals; with similar potential (unlimited) damages, similar governmment scrutiny and price-fixing…

    No p.i. lawyer has walked an inch in a doc’s mocs. Make it happen, then see if things change.

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