by Michael Kirsch, MD
Physicians and plaintiff attorneys have philosophically divergent views on our tort system. I know the attorneys’ views on this issue well. There are lawyers in my family who have prosecuted physicians for alleged medical malpractice. Sometimes, there hasn’t been enough antacids in our house to douse my flaming heartburn after some of our discussions.
Obviously, one reason that lawyers support the current system is because it enriches them. However, there are purists among them who truly believe that the tort system, despite some flaws, is the best means available to pursue justice and to compensate injured people. They point out that the medical profession has been lax to monitor itself and to sanction incompetent physicians. Too many medical mistakes, they claim, are ‘buried’. Without aggressive legal advocacy, what recourse would negligently injured individuals have against the powerful and well financed medical profession? In addition, they argue that the system is a powerful deterrent, which improves medical quality.
While I concede there is a “white coat wall of silence,” the argument that our tort system improves medical quality is absurd. Indeed, there is no fair-minded individual who can possibly support it on its merits. It is not designed to narrowly target negligence. It is patently abusive and unfair to conscientious, competent and caring doctors across the country. The system ensnares scores of innocent doctors in order to capture a few rogue practitioners. It’s a hatchet job, when a scalpel should be the right tool.
As a statement of fact, the vast majority of true medical negligence never enters the tort system. These patients are never compensated and the medical perpetrators are never discovered. Additionally, most medical malpractice cases that plaintiff attorneys review are rejected because the lawyer does not feel that negligence has occurred or can be proved, or that the damages are insufficient to merit a legal proceeding. So, the current system only compensates a small fraction of negligently harmed patients. Can we defend a system that only provides relief to only a minority of those who deserve a legal remedy? Would we applaud our government if it provided food stamps to only 10% of those eligible, or would we demand a higher performance level or a new system?
In addition to its failure to reach most potential plaintiffs, the current system also punishes too many innocent doctors. Few other professions can truly empathize with our predicament. Most folks on the job do not fear that they can be successfully prosecuted for doing their job well. Do store clerks, cab drivers, teachers, entertainers, union workers, journalists, zookeepers or candle stick makers punch their time clocks in the morning and worry that they might be sued if an adverse event occurred that was not their fault? Doctors do.
Lawyers state that innocent physicians are ultimately dismissed proving that the system works well. A just outcome, however does not mean that the system is just. Recently, the U.S. government released several Guantanamo prisoners, who were cleared of being enemy combatants, to the island of Palau. Do these new islanders, who were captured in 2001 and endured years of misery, feel that our system is fair and true to American ideals just because they were ultimately exonerated?
I do not suggest that being wrongly sued is similar to being wrongly incarcerated, but there is a parallel theme. The innocent physician who is ultimately dismissed from the case or prevails in court does not feel like a winner. He emerges from his ‘victory’ as a battered and angry practitioner who returns to his practice with renewed cyncism and wariness. His relationships with his patients inevitably suffer and he practices more defensive medicine for legal protection. The current tort system fails in its mission to improve medical quality. Paradoxically, it diminishes quality by generating excessive and medically unnecessary care from worried doctors, which costs money and risks complications.
Lawyers don’t understand why we physicians take litigation on such a deeply personal level. If they lose a case, they shrug it off and move on to the next client. To them it’s just business. Not so, for physicians. When we are unfairly attacked, and our reputations are publically sullied, it becomes a wrenching personal ordeal.
How would lawyers feel if they feared a lawsuit after every case they lost? Would it be fair if innocent attorneys had to spend years and money defending against an outcome that was not their fault? Perhaps, then, they might understand better why we physicians are so hostile to the present system. Of course, if this sweet ironic turnaround occurred, there would be dividends. Attorneys and physicians would then finally be alligned. We could commiserate with each other. We could plot joint strategy for tort reform. We could be allies. And, we could share antacids.
Michael Kirsch is a gastroenterologist who blogs at MD Whistleblower.
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{ 37 comments… read them below or add one }
There’s a lot of truth (not all, but a lot) in the above. I look forward to physicians proposing something to address the issues raised that doesn’t just arbitrarily cap damages, but in fact seeks to compensate more of those injured by negligence, and compensate them faster.
“Lawyers don’t understand why we physicians take litigation on such a deeply personal level. If they lose a case, they shrug it off and move on to the next client. To them it’s just business. ”
We absolutely understand the personal toll litigation takes, because we spend hours upon hours with the other side of the litigation. And unlike the defendant physician, who is often more or less going on with their life, we are sometimes dealing with a person whose life has been irrevocably changed and see us as their only lifeline and only person who can help them out of their present situation. A situation they may not have had anything to do with in creating.
Physicians ought to understand that it is not as personal for the attorney in the case, for they too deal with gut wrenching situations every day. And while something may be completely tragic for a family of their patient or the patient themselves, the physician, while sympathetic, goes on about their business because they have to. It’s their job.
Good post. Spot on.
First point: “Lawyers don’t understand why we physicians take litigation on such a deeply personal level.”
Puhlease. It’s kinda personal when they shake that tree – viciously attacking your abilities/reputation and going after your every asset. And OBTW, how many lawyers have you heard of being sued for malpractice? That deck is stacked. The lawyers make all the rules and run the show.
What’s worse is we’ve let them.
You can say all you want to about the oversight of physicians being dismal (and it is), but the oversight of lawyers (and judges) in this country is the worst kind of joke. The North Carolina State Bar is USELESS as a client advocate (despite resting on their laurels of the Duke-”rape”-case-that-wasn’t). My own case is proof enough of that. Gross legal negligence? No problem. Suborning perjury? No problem. Prosecutorial misconduct? No problem.
Second point. I’ve been banging my head against “the White Wall” for well over a decade. IMHO, we as physicians actually do not deserve tort reform (and I daresay the public will not let us have it) until the profession starts doing a much better job at policing our own. HCQIA (peer review) has needed serious revision for YEARS, and the AMA (so eager for a seat at the Congressional kiddie table) has been determinedly oblivious. Likewise JCAHO is a pointless dog and pony show – driven by hospital dollars (you really think they will bite the had that feeds?). Medical whistle-blowers need more than empty rhetoric and empty promises when they find themselves on the wrong end of a hospital’s wrath.
You wanna talk about real reform? Pull up a chair. Trouble is, I’ve found that most people don’t want to know how bad things really are (in this case, ignorance is comfortable) – and most physicians are loathe to come out from behind that veil and sign their name (what’s it’s going to take) for anything to change).
>>the damages are insufficient to merit a legal proceeding.>>
That’s exactly what my attorney told me in my case. All I wanted was compensation for my medical costs out of pocket as a result of the medical error – most of which weren’t covered by my insurance, since the insurance company didn’t want to cover the cost of the medical error. Meanwhile, the physician responsible for the error faces no consequences – she didn’t even apologize.
The purpose of tort law is not to “improve medical care,” even in the case of malpractice claims specifically. It is to provide civil redress for physical and financial harms caused by a tortfeasor. A jury trial for civil damages is an enumerated right in the constitution.
It is not meant to perfect the practice of medicine, although it is a disincentive to intentional and negligent acts.
>>IMHO, we as physicians actually do not deserve tort reform (and I daresay the public will not let us have it) until the profession starts doing a much better job at policing our own>>
Slightly off topic but re: policing our own.
One of my colleagues who has had a number of recent personal problems is currently exhibiting impaired judgment and bizarre behavior. We tried to consult our state’s hotline for impaired physicians and found out that not only do calls go straight to voicemail, the mailbox is full and won’t take calls! Sigh. At least no patients have been harmed. Yet. And we’ll keep trying to find help for our colleague.
“A jury trial for civil damages is an enumerated right in the Constitution.”
Yeah right, Strawman, tell me another good one. What happens when the system is corrupted (in my CIVIL case, by perjury – a CRIMINAL MATTER, contempt & fraud) and NO ONE on the lawyers’ side is inclined to do anything about it? And they’re mostly not inclined because they vitually NEVER get sued for malpractice themselves?
And how about that right of “redress” for doctors – done wrong by the bogus/false claims of patients – or hospitals trying to bury badness?
Anon 5:08, my point kind of was/is, you’re not off topic at all. But the trouble, with your “hotline” (apart from the part about it being unmanned by actual humans), is that if/when your message did get through, your friend would probably not be “helped” by the “help” offered, but professionally eviscerated. We can’t have anyone being “disruptive”.
Now, in the short term, this might “protect” patients who potentially could be harmed, but in the long run, another doctor who might have otherwise been rehabilitated (and in that rehabilitation, help more patients) bites the dust. That’s a lot down the drain in this era of physician shortages.
Good luck. But do not count on the medical powers-that-be to be “helpful”.
It’s a small part of your argument, but I have a problem with this reasoning:
We can, and should, defend such a system if no better alternative is known. If the best treatment for an otherwise terminal patient only offered a 10% chance of survival, would you withhold the treatment?
I keep coming back to the business side of things. For attorneys it is business. They see legal costs as merely the price of doing business. How often are demanded settlements pushed beyond the limit of insurance? This is about what people can get away with more than right or wrong.
When patients fail treatment and I cannot affect the course of their care, I still see them. I still listen to them. I help them with their life for years. But what attorney does this after the case fails? The system is unfair, and more like the lottery than a mechanism of justice. Caps are the way to go, because the lawyers will block health courts to their last breath.
Physicians are getting angrier with all the assaults on multiple levels. Tort is just another irritation. Do you really want to be cared for by a doc just named in a lawsuit last week – even if you know he will be exonerated?
“A jury trial for civil damages is an enumerated right in the Constitution.”
Not so sure about that, Strawman. Presumably, you are talking about the 7th amendment; however, the Supreme Court has never ruled about “complex issue” cases. It is quite possible, in complex areas (like medmal), by allowing the typical jury to decide the case, the defendants (ie, drs, hospitals, etc) may be deprived of due process.
IMO, just like we have specialized courts for tenant/landlord, traffice, etc, we could have specialized courts for medmal. Let’s be honest, most medmal cases are dedided by pulling on the heart strings – remember, John Edwards with his claims that cerebral palsy was caused bcs dr did not order c-section. The common man jury just does not have enough background for complex issue cases. Seems to me, specialized courts would eliminate lots of baseless cases and thereby, allow those with some true merit to make their way to trial. The real victims would be better served.
We do not need caps. We need a better way to handle complex issue cases.
>>the trouble, with your “hotline” (apart from the part about it being unmanned by actual humans), is that if/when your message did get through, your friend would probably not be “helped” by the “help” offered, but professionally eviscerated.>>
Yeah, that’s why we would prefer to speak with an actual human and wouldn’t leave our names… even if we could, which we still can’t! (we’ve been trying the hotline for over a week now).
>>Now, in the short term, this might “protect” patients who potentially could be harmed, but in the long run, another doctor who might have otherwise been rehabilitated (and in that rehabilitation, help more patients) bites the dust.>>
Sure. Makes us wonder about an acquaintance who died of a drug overdose a few years ago, though. Those close to him knew he had problems, but he obviously didn’t get the help he needed. Now he’s dead at the age of 30. What a waste, and very sad.
>>Good luck. But do not count on the medical powers-that-be to be “helpful”.>>
Sigh. One colleague knows the spouse of the troubled colleague and is planning a quiet, tactful chat in the very near future. It’s sad that it’s so difficult to obtain assistance BEFORE a patient is harmed. It would be best to avoid medical negligence altogether when possible, methinks, but this is proving difficult.
We have three concerns: safety of patients, safety of the troubled professional, and preservation of professional dignity/livelihood. In approximately that order, with the first two obviously being more important than the third.
Matt,
Do you think that there could be a constitutional way to have medical malpractice trials without a jury? I have an intuition that simply allowing the judge to decide the facts of the case might go a long way to normalize verdicts.
“We do not need caps. We need a better way to handle complex issue cases.”
Yes, indeed. But the “solution” the reformers are pushing seems to be to put it all into the hands of a government that so far has dropped every ball it’s been tossed. The pencil-pushers I’ve dealt with in my own ordeal (which, in the beginning, could have been stopped with one or two well-placed phone calls from Bethesda) simply are not capable of dealing with complex. I cannot tell you how many times I’ve been told to put an incredibly complicated case into 100 words or less!?! It’s maddening.
“We have three concerns: safety of patients, safety of the troubled professional, and preservation of professional dignity/livelihood. In approximately that order, with the first two obviously being more important than the third.”
It’s a nice/noble sentiment – until it’s your livelihood that takes the hit – all because you stepped on the toes of a “troubled professional” in order to do right by a patient.
“I have an intuition that simply allowing the judge to decide the facts of the case might go a long way to normalize verdicts.”
Ah, the naivete of youth (no offense). It is far easier to corrupt/buy one judge (especially in North Carolina) than an entire jury.
Eleven years, people. Eleven years. The powers-that-be in Washington and Raleigh have lately been all over my blog. But the almighty justice system has yet to do right by me . . .
. . . because NO ONE wants to own up that they screwed up.
Med Student,
Why do you think verdicts aren’t “normalized” now using juries? Juries find for the defendant the vast majority of the time – should we normalize that to 50%?
“When patients fail treatment and I cannot affect the course of their care, I still see them. I still listen to them. I help them with their life for years. But what attorney does this after the case fails?”
If I lose a case I still see clients, listen to them, still help them when I can, etc. What makes that so different?
” The system is unfair, and more like the lottery than a mechanism of justice. Caps are the way to go, because the lawyers will block health courts to their last breath.”
What is unfair about a system where two parties with a dispute present their best case to a jury of people without a vested interest in the outcome? And why would allowing politicians to pick the value of a case without ever hearing the evidence be more just? Or allowing physicians to judge their own in all disputes? When physicians sue health insurers, do they think it would be fair if we had insurance courts made up of juries of health insurance execs?
“IMO, just like we have specialized courts for tenant/landlord, traffice, etc, we could have specialized courts for medmal.”
Except we don’t have specialized courts like that. You can take a traffic or landlord/tenant dispute to a jury.
” Let’s be honest, most medmal cases are dedided by pulling on the heart strings – remember, John Edwards with his claims that cerebral palsy was caused bcs dr did not order c-section.”
If your claim is true, why do doctors win the majority of med mal cases before a jury? And if you haven’t read the evidence in Mr. Edwards’ cases, how do you know whether they were wrongly decided or not?
“The common man jury just does not have enough background for complex issue cases.”
That’s fine. Define “complex issue” and tell us what the requirements are for rising above your “common man” status and being smart enough to understand them.
Matt name a single statistic that the current system benefits patients. The majority of the award does not go to the patient, only 46% in fact. Medical errors have not went down despite the promises of attorneys. The majority of those truly harmed are not compensated. If it is the best malpractice system in the world, surely there would be a single statistic to back it up.
jenga, I’m not saying it’s the best in the world, because you really can’t compare it to those where there’s a universal healthcare system. After all, if you have universal healthcare, there’s not as much need. Whether it’s the best in the world depends on what your important metrics are, just like when you try and compare healthcare systems. In some respects, other countries will have better rankings and in others we will.
However, it’s the best we have on the table right now. The only serious “reform” on the table is damage caps. I can’t see how allowing politicians to set the value of a case when they haven’t heard the evidence is better than allowing a jury to do it.
As to the 46%, I think you mean of the total cost of the system, which would include defense costs, insurer overhead, etc. I don’t know how you change that number much. And remember, much of the award goes back into medicine in terms of paying for past and future care.
No I meant that 54% percent of awards go to the attorney not to the patient. You can’t quote a single metric that the current system serves patients well. If you were truly looking for the best interests of the patient, you could quote a single statistic that proves it. So go ahead, I’m waiting. Quote a relevant statistic that proves the current system is a benefit to patients.
“No I meant that 54% percent of awards go to the attorney not to the patient.”
I’m not sure where you got your numbers. The typical med mal fee contract is 40%, and occasionally 50% at the highest. Perhaps you think that the case expenses “go to” the attorney. That’s incorrect. Do you have a link to your claim?
“You can’t quote a single metric that the current system serves patients well.”
In the aggregate, no I can’t. I believe the majority of malpractice goes uncompensated, as Dr. Kirsch mentioned above. The system works pretty well for those who enter it in that the right cases are generally the ones that get compensated, as the NEJM study by David Studdert reflects.
But on the whole, it’s very expensive and very time consuming. If you’ve got an idea for one that pays more people who are injured by physicians’ negligence, and pays them faster, and doesn’t arbitrarily cap their damages at whatever insurance lobbyists think is fair, I’m all ears.
The best thing for patients and doctors are specialized med-mal courts. One where you submit your case to a judge (or even a committee) that is familiar with how medicine works. The judge reviews the case and makes the settlements. This way there are no “professional” witnesses and sob stories. Just cold hard fact.
I think Matt would agree that this would be less time consuming, less expensive, and less biased to emotional pleas. I believe that with this model less money would go into legal fees, more money going into patient hands, and less doctors being unfairly convicted. Because of the decreased amount of hoops patients have to jump through (through a jury trial) more people who were wronged by their physician would open up claims. This is also an option that Matt refuses to acknowledge.
Matt says that the current conditions are “the best we have on the table right now”. Really now? I thought that this is the ONLY legal process we have now. Does this mean that we can’t work for a better system?
Good post. I’m still stuck on the purpose of the issue and the definition of terms. There is malicious intent, malice of forethought, malpractice, less than desired outcome, bad outcome in my mind.
The first two should be prosecuted before a criminal court, malpractice before a health court and the last two are the unfortunate realities of being a human patient and a human health care provider. If there are consequenses to the last two, why is there a right to recover any loses anyway?
Is it malpractice insurance or is it patient loss insurance that we work under?
I agree that practicing defensive medicine may lead to unnecessary test and procedures. This will make our healthcare even more expensive and lead to even more complications. Yet, if there is a real risk of being sued for what perceived to be malpractice, you simply don’t have a choice. There is no doubt that medical negligence should be punished, but do you trust a group of people with no medical background (trial by jury) to decide on complicated medical issues?
>>It’s a nice/noble sentiment – until it’s your livelihood that takes the hit – all because you stepped on the toes of a “troubled professional” in order to do right by a patient.>>
Are you advising us to stay out of it in order to avoid the wrath of our troubled colleague?
Believe me, we wish we weren’t aware of this problem, as we don’t go looking to meddle into our colleagues’ private affairs. But it’s too late – the colleague contacted my friend, who has become increasingly alarmed over a period of about six months and thus shared the communications with me to see if it was an overreaction (no). At this point we feel obligated to do SOMETHING that may lead to our colleague getting some help and, we hope, not doing anything that may jeopardize retaining a license to practice. We are proceeding very cautiously and got some good advice from an attorney who handles guardianship cases – which we’re hoping won’t be necessary. Our next step is to talk to a family member, very tactfully.
Maybe we’re idealists. We’re trying to help a friend.
” One where you submit your case to a judge (or even a committee) that is familiar with how medicine works.”
Won’t you still be trying it to this judge? You’ll still have to put all this evidence on.
“I think Matt would agree that this would be less time consuming, less expensive, and less biased to emotional pleas.”
Where is the evidence juries are biased to emotional pleas? And why would it be less easy to convince one person on emotion as opposed to 12? Juries find for the physician 75% of the time – are they responding to the physician’s emotional pleas? You are basing your change on a belief in something that doesn’t appear to be a problem.
” I believe that with this model less money would go into legal fees, more money going into patient hands, and less doctors being unfairly convicted. Because of the decreased amount of hoops patients have to jump through (through a jury trial) more people who were wronged by their physician would open up claims.”
This statement stems from a lack of understanding of the process. You will still have to put on evidence, you will still need expert testimony, lawyers will still have to prepare, etc. All of these “hoops” remain.
“There is no doubt that medical negligence should be punished, but do you trust a group of people with no medical background (trial by jury) to decide on complicated medical issues?”
If you guys want courts where only the defendants get to judge themselves, that’s fine, but let’s give it to everyone. For example, a physician sues an insurer for improper reimbursement – the jury gets to be made up of insurance execs. Only fair using your logic.
” and the last two are the unfortunate realities of being a human patient and a human health care provider. If there are consequenses to the last two, why is there a right to recover any loses anyway?”
Are you suggesting we abolish claims for all professional negligence? Because it’s an unfortunate reality that sometimes professionals are negligence? Why would we stop there – wouldn’t we abolish all negligence claims on that basis? It’s an unfortunate reality of being the driver of a car that sometimes accidents happen, after all.
If we’re going to “reform”, let’s reform for everyone. Although we all know this is pretty much bs, since the only “reform” every proposed is a damage cap regardless of the harm caused or the merit of the case.
Responding to Anon 3:21
“Are you advising us to stay out of it in order to avoid the wrath of our troubled colleague?”
No. But I am telling you that you do so at your own peril – especially if this colleague is powerful/influential or important to an institution – and/or there is medical ugliness to cover up.
And I am reminding you that I did intervene to stop such a “colleague” (who was not so much “troubled” as suffering delusions of grandeur), and for my trouble, have spent eleven years of my life mired in medico-legal quicksand – with NO ONE (not the NC Medical Board, not JCAHO, not DHHS, not state or Federal law enforcement, not the press and certainly not bloggers) giving a rat’s tail.
It’s a “60 Minutes”-type case. In fact, “60 Minutes” actually did a puff piece on the NHSC several years ago – laying on the benefits of the program (and none of its pitfalls) with a trowel. I guess my story does not fit the fluff.
I was an idealist once. It was beaten out me – by a bunch of businessmen trying to cover up medical ugly – and their dishonest, lying lawyers.
Matt,
Informed consent is obtained. A procedure is performed without “your negligence”. There is a bad outcome, which is a known risk of the condition and procedure that was consented to. What do you propose should happen at this point?
Paul, it would seem nothing should happen. Your next statement is “why am I sued then”? The answer is two reasons:
1. Your interpretation of the events may not be correct. You assume they are, but sometimes people are mistaken.
2. You, or the provider, may not share with the person what happened, or it may be unclear and the provider may not be willing to share what happened. No provider is going to give a statement under oath without suit being filed first and them being compelled to give testimony. Thus, while your interpretation may be correct, filing suit is the only way to get those involved to explain themselves. Obviously, if you’re the attorney, you don’t want this because you’ve spent a lot of money to determine there was no claim.
And sometimes, if everyone is agreed that harm was done, there may be a dispute as to the value of the damages.
Matt,
Calling yourself a respectable Libertarian, do you support that physicians and patients be allowed to voluntarily agree ahead of time on their own binding limits and terms of dispute resolution?
Physicians who favor patients who agree to reasonable caps might lose out on patient volume because those patients who insist on high caps would then choose to see some other doctor instead. It sounds like a very fair system.
This would best apply to situations where there is on urgent duress, so it would not apply to Emergency medicine cases.
Absolutely. The only rub though is that because of the payment method physicians have bought into, I don’t know that just those two parties can make that agreement since it would infringe on the subrogation rights of the third party payor. Physicians tend to forget that a successful malpractice case often results in a substantial part of the award going to an insurer or medicare/aid for sums already expended due to the harm caused by the tortfeasor. That’s a contractual or statutory right depending on the payor.
Matt,
We shall have to agree to disagree on the subject of tort in medicine.
Dr. Kirsch,
That was a wonderful article. Your last paragraph, in my opinion articulates the primary problem and its best practical solution.
As a practical suggestion, what about a Washington D.C task force(like the one investigating alleged Medicare fraud), with protections for the ‘whistleblowers’, to investigate healthcare fraud of a different sort: non-meritorious, predatory lawsuits? There seems to be no method for recourse against attorneys who take free shots at greenmail settlements. If some centralized agency could gather confidential information from (medical professional)victims, perhaps there would arise a method to isolate and eradicate the few bad-apple attorneys who are gaming the med-mal system.
Susan, it was a good article.
The biggest problem in terms of any kind of real tort reform, is that the medical establishment does not want to admit that there is a big underlying problem . . . i.e., physician oversight & discipline is largely an unstandardized joke – and depends on what state and what hospital one works in. Moreover, the AMA and JCAHO and DHHS and the Medical Societies/Medical Boards have been ignoring and/or white-washing the problems that medical whistle-blowers face (most specifically, the “white wall” of silence) for decades.
The careers and lives of good people have been destroyed and they did not care.
I am all for a Washington task force. But I’m even more for some of these cases (like mine) – which have legitimate unresolved criminal elements – to be agressively pursued by the US and State Attorney Generals. If they were, it might make some of the businessmen and lawyers really running the show to take notice and change their behavior.
On what planet is it okay for me to have been fired for saving a baby’s life? Or reporting what happend to peer review? On what planet is okay for me to have been sued for telling the government I served the truth?
This planet.
The public and the politicians all say they want physicians to put ethics/patients first. Well, I did. And I’ve done nothing but pay for it ever since. People who have not been there and who have not done that want me to shut up and go away. And if I don’t, I’m some kind of bitter wack-job/troll.
Well, I’m not going to just go away. And I guess I’ll just have to be a bitter, wack-job/troll.
Matt, I respect and agree with your point about the third party payer complicating the situation. That’s part of the problem. But it would be morally valid in a cash-pay situation.
In any cash-pay medical transaction and in other everyday nonmedical transactions, there should be an enforceable opt-out clause where two parties can agree to VOLUNTARILY waive their rights to sue. This would really create a lot of new opportunities for good mutual cooperation. And in practice, this is what we had decades ago in the friendly world before the climate change of litigation and government regulation permeated our lives.
So many lost opportunities for cooperation are lost due to fear of being sued. So much energy is wasted on “defensive transactioning”, analogous to defensive medicine.
Hypothetically, if I hire a photographer for my wedding, I would be very upset if he messed up or didn’t show up, so I would want to retain my right to sue. However, if there’s another photographer who has a good reputation and is trusted by my friends but who has decided not to “waste money” on business liability insurance and will knock $500 off the price in exchange for my waiving any right to sue, I may or may not do so, depending on how much I want to gamble. That should be my choice. Having some sort of fullly enforceable but voluntary “give up the right to sue” clause would create a lot of potentially great choices.
The re-emergence of free medical clinics would be just one obvious example, going back to the good old days when doctors would allocate a half day each month to pro bono work.
Dr. Mary Johnson,
The careers and lives of good people are destroyed, and nobody cares.
Nobody cares.
Now you have a tell on the adversary; the individuals involved,the system, people at large…don’t care.Knowing about that apathy, or egocentric tendency, could you redirect your resources toward a better outcome?
Please don’t promote the marginalizing label of wack-job troll. I would guess that when your fight began you had faith in truth and justice.Now you know better. Your writings are powerful and ring of truth.But, is your commentary being read, or is it effectively dismissed because ‘the adversary’ has successfully labeled you a wack-job? I think it is impossible to survive in a conflict if constantly on the defensive.
You have a hard-won knowledge about how the legal system really works. You have the attention of many people, and a powerful message to convey. I hope your administration of that message finds the right route.
And I hope you find peace for yourself.
“We shall have to agree to disagree on the subject of tort in medicine.”
Paul, we didn’t really discuss that, but we may well agree on the impact. Our civil justice system affects everything we do, in both good and bad ways. As would any justice system in a free society.
“That should be my choice. Having some sort of fullly enforceable but voluntary “give up the right to sue” clause would create a lot of potentially great choices.”
In most situations involving business transactions between equally weighted parties I would agree with you it might create some potentially great choices. Although I just don’t think it would happen, because at the end of the day many people want the right to recover if damages are caused through no fault of their own.
“And in practice, this is what we had decades ago in the friendly world before the climate change of litigation and government regulation permeated our lives.”
And I would agree with this to an extent. If you look at what has really driven the litigation “explosion” it is businesses suing businesses, not personal injury filings. Last I looked those were down.
I also think physicians have some blame to shoulder in terms of government regulation of their industry. They allow themselves to be trapped by this third party payment model where the govt. is the payor. It’s not all their fault, but they do have some responsibility. And when you take the government money, you take the government regulations. It’s nice to have a solvent party to collect from, but there’s going to be a downside.
Susan, I appreciate you kind words. I really do. But I’ve been in this blogopshere since 2005 – the day after my Father died (without seeing justice for his daughter). I came here for help (at the behest of a local journalist promoting “citizen journalism”) – because the system just does not work. And I’ve been treated like dirt – placed on the defensive since day one by people who (locally, at least) had a vested interest in shutting me down/up.
I’m certainly NOT “promoting” the notion that I’m a “wack-job” or a “troll”. I’m simply repeating what people in this supposedly enlightened and “progressive” blogosphere have called me for telling the truth – and for not backing down/giving in (apparently to prove my mental health, that is what I should do).
My message IS (don’t you just love that word?) very powerful – not to mention that IT IS THE GOD’S HONEST TRUTH (why do you think I have not been sued again by the hospital/executives who did me wrong?).
Morevoer, I did what the public and (more importantly) ANY parent would have expected me to do (and probably would have sued me for not doing). What happened to me NEVER should have happend. So WHY haven’t the AMA and JCAHO and DHHS and the state Medical Societies & Boards done anything to (1) specifically address my situation and (2) generally plug the holes I feel through?
Why can’t the medical blogosphere be something besides a fricking ECHO chamber? I mean, what has the medical blogospehre really accomplished?
Yesterday, when Obama did his dance for the cameras and announced that the AMA was supporting his healthcare reform bill, I just wanted to cry. Like the AMA has EVER represented doctors like me!
On the heels of that, I got an e-mail yesterday that showed Congressmen & women playing Solitaire and checking baseball stats as one of their compatriots spoke on the House floor. These are people who might better spend their time actually reading the legislation they want to cram down our throats – and/or holding hearings to listen to people like me (as opposed to the traditional dog & pony show of healthcare “victims”). But hey, let’s mindlessly flip the cards on a computer. Those three-day work-weeks are a real bear.
It’s all a joke. Just a joke.
I have to wonder how many colleagues knew that the psychiatrist who killed/shot dozens of people at Fort Hood yesterday was a loose cannon – literally ready to blow (I’m still trying to wrap my head around the fact that this doctor was TREATING other sick minds – and was going to be deployed).
I wonder how many of his colleagues might have felt more comfortable coming forward with their concerns – saying or doing something proactive and preventative – if they knew they could rely on the law/governement to protect them from retribution?
In terms of the service obligation, my stint in the NHSC was, in many ways, not a whole lot different from a stateside assignment in the military. All any of those people had to do to see how government whistle-blowers are really treated/regarded is pop on over to Dr. J’s Housecalls.
But they don’t have to really. They already know.
I will not find peace until I get justice. But I very much appreciate the thought.