Comments on: Why Howard Dean is wrong on medical malpractice reform

By: Matt

Matt — Thu, 24 Sep 2009 23:04:49 +0000

99, what you’re missing, and what Republicans are going to be duped on, is that with universal healthcare med mal cases will cease to exist regardless. The main thing that drives the awards, past and future medical bills, will no longer be an issue.

Physicians will still be punished though, but by the federal government. And I’m betting it will be a lot more frequently, and you won’t have near the 75% success rate you have when you explain your case to a jury.

By: Doc99

Doc99 — Thu, 24 Sep 2009 14:51:43 +0000

Bob Beckel, Democrat strategist, offers that Med Mal Reform would be the Dems Ace in the Hole.

By: Gerry Oginski

Gerry Oginski — Thu, 24 Sep 2009 12:05:03 +0000

There are so many fallacies in these comments and others on the web that people actually start to believe them after a while. For example, “…maybe arbitrarily limiting pain and suffering damages or letting doctors judge themselves are the way to go.”

Why put an ‘arbitrary’ limit to someone’s pain that they have suffered at the hands of someone who caused them harm? Why limit it only to physicians? Why not create a limit for companies that create defective products? Why not create an arbitrary limit for the amount an injured victim can recover for an improperly designed bridge that collapses as someone drives over it? The analogies are endless.

Business Week reported last week that attempts at tort reform will have little to no effect on health care and medical malpractice premiums. “The Truth About Malpractice Lawsuits. Doctors say the suits send health-care costs soaring, but studies show reforms would have little effect.”
http://www.businessweek.com/magazine/content/09_39/b4148030880703.htm.

By: Matt

Matt — Thu, 24 Sep 2009 02:56:21 +0000

I was responding to your point. Damage caps have resolved none of your fears in 30 years of trying them. Health courts are just backdoor caps but still it’s the foxes guarding the henhouse.

If you want to give the public single payer like Canada we can then talk malpractice in Canada. Until then it’s apples to oranges.

By: Rezmed09

Rezmed09 — Thu, 24 Sep 2009 01:53:18 +0000

Gee Matt, I did write:
“The solution lies in limiting punitive and pain and suffering damages, and ultimately in Health Courts”.

As for your other comments: look at how malpractice and tort are handled in Canada. No need for a conspiracy theory or star chamber fears.

By: Matt

Matt — Wed, 23 Sep 2009 21:30:24 +0000

“because so much of tort is about revenge rather than fixing any problem.”

Perhaps. Of course, there is the little matter of paying for the damages of the person injured by malpractice. You know, like the mountains of medical bills incurred, including future medical bills which will be paid to physicians. The matter of possibly being unable to work and provide for oneself and one’s family. And the matter of the lost quality of life. But I’m sure revenge is the key to most.

But hey, maybe arbitrarily limiting pain and suffering damages or letting doctors judge themselves are the way to go.

By: Rezmed09

Rezmed09 — Wed, 23 Sep 2009 20:24:48 +0000

Guidelines based tort reform would help procedure based specialties. But there are some many points at which, despite overall good care, an error occurs. With a good legal team any bad outcome has some error, somewhere in the chart, that can be capitalized on. The solution lies in limiting punitive and pain and suffering damages, and ultimately in Health Courts.

But not much will change, because so much of tort is about revenge rather than fixing any problem.

By: Radiologist

Radiologist — Wed, 23 Sep 2009 18:27:37 +0000

Patients’ with “unique circumstances” do not fall within many guidelines, though there may be specific guidelines tailored for these circumstances (btw, no circumstances are really “unique”) In fact most current algorithms contain caveats and exceptions for patients with specific risk factors that the research had not accounted for such as history, medication and co-morbidity. To use an example from another post – suppose the child with the fall was also on a blood thinner. The guidelines don’t apply and you’d be clinically incorrect to apply them as the original research didn’t include these patients. Nobody’s talking about applying guidelines to patients where it’s not appropriate. This is common sense medicine which, for the most part, already takes place. The fact is, the patient you describe is a small minority of patients and most patient’s, like it or not, fall into “the herd” and can be treated as such.

By: Medical Student

Medical Student — Wed, 23 Sep 2009 17:59:28 +0000

Evan,
I think the idea is that following clinical guidelines should be an absolute defense agains malpractice, but for patients whose unique circumstances make the guidelines inappropriate, failing to follow them can’t be used as evidence of failing to meet the standard of care.

Without this caveat, physicians would be reduced to simply following algorithms which they may know to be inappropriate, just so that they can benefit from malpractice immunity. It would be better than what we have now, but would essentially lead to another form of defensive medicine.

By: Medical Student

Medical Student — Wed, 23 Sep 2009 17:51:07 +0000

DMS Student,
I have some sympathy for what you’re saying, but I think that it falls far short of what we want a medical malpractice system to be. It’s not just recklessness and wilfull disregard that we want patients to recover from, but also downright incompetence. If your physician causes you harm due to their incompetence, no matter how well-meaning they were, then I think you should be able to recover.

Matt,
Could you go into a little more detail about when a federal law regulating malpractice would apply? If a malpractice case were filed in a federal court, the federal court still applies the law of the state, right? Under what circumstance would federal law be applied in a malpractice case?