Medical malpractice from both a doctor and lawyer perspective

A video excerpt from The Vanishing Oath, a film directed by Ryan Flesher, MD.

Medical malpractice is a major issue that divides doctors and lawyers — with patients often left in the middle. I wrote last year in USA Today that reform is sorely needed, mainly to help injured patients be compensated more quickly and fairly than they currently are:

Researchers from the New England Journal of Medicine found that nearly one in six cases involving patients injured from medical errors received no payment. For patients who did receive compensation, they waited an average of five years before their case was decided, with one-third of claims requiring six years or more to resolve. These are long waits for patients and their families, who are forced to endure the uncertainty of whether they will be compensated or not.

And with 54 cents of every dollar injured patients receive used to pay legal and administrative fees, the overhead costs clearly do not justify this level of inefficiency.

In this clip, perspectives from both sides are given, and it’s easy to see why this contentious issue isn’t going to be resolved anytime soon.

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  • d

    Are we supposed to sue lawyers for messing up or for a bad outcome? Double standards, oh my!

    • Anonymous

      Except lawyers have built a moat around themselves and you basically can’t sue them for that.

  • DocB

    What?? i dont see anything “contentious” in this clip at all.

    The fact that anyone gives credence to the junk spewing from the lawyers mouth is yet another example of whats wrong with the system.

    • http://supremacyclaus.blogspot.com Supremacy Claus

      I totally oppose a workmen’s comp system for patient injuries. The latter will game the system as workers did 100 years ago, and total payouts will explode. The overwhelming majority of cases (80%) of medmal claims are weak. That is the failure rate at every stage of litigation. The filing of a weak claim is lawyer malpractice. The doctor should be able to sue the tortfeasing, negligent lawyer for legal malpractice. Does the plaintiff lawyer have any duty to the adverse third party doctor? You bet, dozens of duties enumerated in the Rules of Conduct, of Evidence, of Civil Procedure, and in dozens of case precedents. If any of these duties can be shown to have been breached, the malpractice is automatic (per se), and only damages need be argued at trial.

      A partial list of these enumerated duties:

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

  • http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.

    I heard from my daughter today that a woman is suing Google, because she followed Google’s directions on foot and was hit by a car. I haven’t yet ‘googled’ this to make sure these are the correct facts, but this case is an example of why the world is laughing at us. McDonald’s Hot Coffee – move over!

  • http://Meyersmedmal.com Jimeyers

    False advertising. This film did not offer a plaintiff’s lawyers perspective or. A victim’s perspective.
    The suggestion that this is about a few bad physicians is perposterous.
    Departures from standard of practice occur in virtually every hospital admission that lasts more than a few days. Fortunately, it usually takes more than one mistake for a patient to suffer a serious injury.
    The reason that such a small percentage of victims recurve cpensarion is that physicians do not confess to there errors and experts are easily found to defend any conduct however egregious.
    If doctors order needless procedures and tests because they fear they will be sued, what has happened to medical ethics. Are physicians dfending the cowardice. Of those that commit insurance fraud to avoid suit that almost allways is resolved within insurance coverage. I was 38 yrs ago a. Respiratory therapist working in a teaching hospital. I loved being involved in helping patients as a part of the health care team. Unfortunately I witnessed many patients injured by negligence and sometimes. By ignorance..
    I have devoted the last 34 years to the representation of patients whose loves have been devastated by medical mistakes. I have suffered the outrageous seining of physicians who believe they are accountable to no one.
    Why can’t you admit that peer review processes have been a complete failure. A plaintiff’s lawyer may be inadequate In a particular case. If they are they have Spent a great deal
    of money on medical experts who have either misinformed them of failed to present a convincing case to a jury.
    I screen 1200+ malpractice inquires each year. I take on fewer than 25 cases a year. This is not because the 1200 were wrong to call. Physicians are unwilling to explain honestly a bad outcome.
    Lawyers, for the most part, struggle to find the truth. I am begining to believe that doctors have become so arrogant and self-absorbed that they no longer care about the truth. They have forgotten the hippocratic oath. They should be ashamed.

  • http://www.epmonthly.com/whitecoat WhiteCoat

    Jimeyers –

    Your rambling brash generalizations prove Kevin’s point.

    It’s good that we have omniscient former respiratory therapists to set the world straight on what appropriate medical practices should be from admission to discharge … retrospectively, of course.

    Yes, medical malpractice occurs – just like legal malpractice occurs. At least like I think legal malpractice occurs. Don’t hear too many lawyers calling for legal reform and legal malpractice compensation for injured clients, do we? Why don’t you “confess” to everyone when the last time you committed malpractice was. Not when you were last sued – when you last committed malpractice. How many of your clients have lost cases because you weren’t prepared? Or are you so “arrogant” that you would have everyone believe you are an example of both medical and legal perfection for the past 34 years?

    You screen more than three cases per day, but accept only two per month? To me, that sounds like either malpractice is occurring in less than 2% of all patients with bad outcomes or that you’re eschewing an awful lot of patients injured by medical malpractice so that you can cherry pick the cases with big payouts. Which is it? If the former, your argument goes “poof” and if the latter, you’re no better than the doctors you belittle.

    Don’t start throwing stones when you work in a glass office.

    • Elizabeth

      Every month I get a bar journal that includes a complete list of everyone in my state that was disciplined for attorney misconduct (not always rising to the level of malpractice), with the details of what they did and how they were sanctioned. How often do you find out about misconduct of other doctors, and is it by reporting of the medical board or by gossip in the hospital stairwells?

  • d

    –Jimmeyers

    Comments like yours make me fearful or sad for being a medical student.

  • http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.

    @Jimmeyers, I agree with some of your points, namely that the medical profession has been lax on holding its practitioners accountable and establishing and enforcing robust internal quality standards. However, in my view, you misunderstand, and misstate the role of a lawyer. You state: “Lawyers, for the most part, struggle to find the truth.” This is false, as lawyers know and admit. Their role is NOT to seek the truth, but to defend the interests of their client, using any legal means to do so. This is exactly what trial lawyers are trained to do. Physicians, in contrast, are trained to seek the truth, and most of us strive to do so every day. This stark difference between the roles of the two professions is a principal reason why physicians are so hostile to the bar.

  • W

    I rarely see anything mentioned about the role of the risk management attorneys, and how they also distort in order to protect their clients’ (the hospital or clinc) interests.

    This is what frustrates me about the medical malpractice issue. As much as I do sympathize with the doctors whose livelihoods and reputations are greatly harmed by frivolous suits, I hear no one sticking up for the patients who are steamrolled by overzealous risk management lawyers, sometimes for as little reason as asking the wrong question to the wrong person at the wrong time and raising so-called “red flags”…reasons every bit as frivolous as those latched upon by ambulance chasing JDs.

    No big deal? Try regaining your trust in humanity after you’ve been chewed up and spit out by a lying, arrogant, condescending healthcare risk management JD. Holding them accountable for legal malpractice would be a good place to start.

  • BD

    >>Physicians, in contrast, are trained to seek the truth, and most of us strive to do so every day. This stark difference between the roles of the two professions is a principal reason why physicians are so hostile to the bar.>>

    Especially since the circumstances under which physicians are LEAST likely to seek the truth are those in which the physician suspects he has personally erred and harmed a patient, partly because of the advice and influence of the legal profession. Every physician makes mistakes, and every physician has harmed patients, though this harm is usually minor and most physicians are not incompetent. Conflict with the legal profession ensues because patients are particularly intolerant of being harmed when they sense obfuscation on the part of the physician(s) involved.

  • http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.

    @BD, I acknowledge your point, but you have missed mine. You are correct that physicians who are sued may withdraw from their truth seeking mission. However, my point is that physicians and lawyers have a different mission in the course of their ordinary encounters with patients and clients, not with regard to a medical malpractice allegation. When a sick person presents to a physician, the doctor will try to seek out the truth. When a client hires an attorney, the lawyer’s charge is to protect the client’s interest, which may be quite different than a search for truth. The medical profession’s mission is to pursue truth, although sometime physicians stray from this. Lawyers, have no such mission to begin with. Indeed, a lawyer who exposes the truth at his client’s expense may be negligent.

  • http://Meyersmedmal.com Jivavanmeyers

    Michael Kirsch,
    you certainly know as little about the practice of law as you claim I know about the practice of medicine. You prove my case by the arrogant manner with you think you dispose of me because of my experience as a resipiratory therapist. I don’ have to represent any particular victim. I search for those I can help. I do not need to represent a patient whose case lacks merit.
    Those lawyers who defend doctors do not enjoy the luxury of deciding who they represent.

  • BD

    Actually, I think you missed my point. We’re actually in agreement.

    If you re-read what I wrote, I first agreed with you that physicians indeed are trained to seek the truth. I then extrapolated upon the occasions when physicians most notably fail to do: malpractice cases. Seeking the truth when the physician has harmed a patient would conflict with the physician’s best interests – frequently regardless of the best interests of the patient. Self-protection is human nature.

    I think some physicians probably do feel internal conflict when they cease to behave as they were trained to do – seek the truth – and instead protect their own interests – as their attorneys advise them to do. It’s a betrayal of the patient, who even in many cases of overt malpractice continues to trust the physician, but it’s not uncommon. I suspect this internal conflict also fuels resentment towards attorneys, whose training allows them to defend their clients without guilt, using any advantage, regardless of true liability.

    >>You are correct that physicians who are sued may withdraw from their truth seeking mission.>>

    See above.

    >>However, my point is that physicians and lawyers have a different mission in the course of their ordinary encounters with patients and clients, not with regard to a medical malpractice allegation.>>

    This is a discussion about medical malpractice allegations. I merely tried to expand upon your concept in this context, because I think your comments were perceptive. Under ordinary circumstances I agree that the missions of attorneys and physicians differ, but these two professions also generally do not directly conflict other than in the context of medical malpractice.