Open dialogue on medical malpractice and patient safety

A response to my recent post, The malpractice system doesn’t improve patient safety.

by Brian Nash

In his blog, Dr. Kevin acknowledges that in the “world of medical error, truth is often clouded in secrecy.” He then points out that “… taking the bold step of publicly describing your mistake is a brave one. Some would say it’s long overdue.”

Well so far, Dr. K, we’re on the same track.

He then poses the question:

There have been studies that show an apology and admission of error lead to a lower rate of being sued. Beyond the malpractice implications, it’s simply the right thing to do. So, why isn’t it happening more often?

Dr. Kevin then provides a commentary by Hillary Clinton and Barack Obama in a perspective they “penned” in 2006 in The New England Journal of Medicine to the effect that “many errors in medicine are not due to bad doctors intentionally trying to hurt patients, but on system-wide errors …”

I’m wondering if Dr. Kevin appreciates the difference between the concepts of negligence and intentional tort? If there are physicians intentionally trying to hurt patients, we have a bigger problem on our hands than I ever realized. Whose conduct leads to “system-wide errors”? Answer: the health care providers and administrators of health care facilities whose acts of omission or commission create such system-wide errors and/or permit them to exist.

After citing the now famous statistics of the 1999 Institute of Medicine (IOM) report that told the public that “as many as 98,000 deaths in the United States result of failed system and procedures,” Dr. Kevin then gets to the root cause analysis of his polemic:

The malpractice system does a lousy job to improve patient safety (along with poorly compensating injured patients) … Every error should be discussed in the open, used to improve the care of our patients, and reduce the risk of future mistakes.

The fact that that’s not happening can be chalked up to the adversarial nature of our flawed malpractice system, which encourages secrecy, suppresses apologies, and does little to improve patient safety.

Well, Dr. Kevin, you and I now go different paths.

Open discussion to improve patient safety

So exactly what is this system in place to have an “open discussion to improve patient safety”? Physicians have had a system of policing themselves for a long, long time. I believe you call it peer review. If this system is so effective, why, after decades of having an “open discussion” (that is done in secrecy, by the way) do 98,000 deaths occur in this country annually. The IOM report was ostensibly designed to create a reporting system of errors to identify, analyze and correct these so-called “system-wide errors.” Interestingly, I haven’t seen an update on just how the death rate has decreased in the last eleven years. It’s a great concept but only as good as its implementation. Are deaths, catastrophic injuries, life-altering errors still occurring at an alarming rate? I suspect so – based on the number of calls our firm gets from people whose lives have been turned upside down after suffering from bad medical care.

The indisputable theme of Dr. Kevin’s post is that the reasons patient safety has not improved at an acceptable rate is because of the media (e.g. in its unfair and hyped coverage of “Dr. Ring’s story” ) and “to the adversarial nature of a flawed malpractice system, which encourages secrecy, suppresses apologies, and does little to improve patient safety.”

Really? Let’s take a look at the reasons Dr. Kevin espouses.

Encourages secrecy

The last time I checked, which was yesterday unless something happened after I left work last night, lawsuits are played out in public forums. Where do you conduct peer review, Dr. Kevin? What laws do you have that make the investigations of those peer review sessions not discoverable in lawsuits? In a lawsuit, both sides get to put it out there in public. Seems to me that a bit more of an “open discussion” than your self-policing, which, by the way, doesn’t seem to have done a great job of improving patient safety.

I fully understand the concept behind the protections of peer review. In essence, the protections are premised on the belief that unless peer review is not protected from disclosure, an honest, open assessment of care rendered (for improvement in care) will not take place. What I don’t understand is why, when one’s peers find fault, a health care provider and/or the insurer simply fight to the bitter costly end of litigation in order to prove their peers wrong. Have you done an analysis on the costs associated with defending medical malpractice cases where the care is outright poor? I’ll bet that’s an astounding figure. Maybe correction on that score would improve the cost of medical care.

Suppresses apologies

I suspect what the good doctor is referring to is the concept that if a physician apologizes for his/her malpractice, this might be used against him/her in a court of law as an admission against interest. Well, have you been keeping track of the legislative proposals that would make such “admissions” – inadmissible? I might suggest that the medical profession spend time advocating for that legislative change rather than condemning the “flawed malpractice system.” I would also invite attention to the programs that are apparently still in their infant stages whereby hospitals and health care systems do admit fault and seek early case resolution.

Query: just how well have these taken off? Seems like this is a good idea – in theory. Any particular reason the medical profession hasn’t embraced the concept nationwide? Perhaps some can also share their thoughts on why it is that the care givers think about the legal implications first when they are meeting with a family whose lives have been devastated by outright negligence.

Is this just another theoretical concept that your colleagues have a hard time putting into action? There are ways to apologize and have such apologies remain inadmissible in a court of law. Just a hint: confidential, early intervention proceedings. They would go a long way with the families whose lives have been ruined. But does the medical community really need protection to just admit malpractice has occurred – when it has?

Does little to improve patient safety

I respectfully disagree, Dr. Kevin. Are you suggesting that when a meritorious lawsuit is brought that it doesn’t make at least those involved more aware? Do you accept the proposition that such health care providers might make better decisions/judgments when faced with a similar clinical situation?

Having previously represented physicians and health care institutions for decades before representing the victims of medical malpractice, let me assure you that the message does resonate with many, if not most, defendants in a medical malpractice case.

Interestingly, it has also affected those who are not directly involved. Do you really think that verdicts in cases aren’t discussed by other health care providers? Do you really believe that when bad care has occurred and has seriously injured someone that colleagues haven’t paused and self-examined their own practices – hopefully not repeating the same mistake(s)? I refuse to believe that so-called physician hubris is really that bad? In fact, my extensive experience with physicians has led me to believe that their lives are dedicated to doing the right thing for their patients, which could well include self-analysis of prior conduct.

There are so many excellent, dedicated health care providers who do take stock of the practices of others played out in litigation and change their own practices. I have personally witnessed dedicated, caring health care administrators and risk managers undertaking “root cause analyses” to correct system failures. Many, many times the genesis of these analyses are medical malpractice cases they have had to confront.

I am constantly being told by expert witnesses on both sides of litigation that they have learned so much about practice issues and patterns that it has helped them improve their own practices for the betterment of patient safety.

One of the primary motivations – at least for our clients – for bringing a lawsuit is not about money – it’s about the client’s hope that some other patient won’t suffer the same fate they did. Others just want to know what happened. Maybe if the medical profession were to adopt a policy of honesty, open discussion and willingness to admit fault when it occurs, there would be fewer lawsuits and improvement in patient safety.

An invitation for an “open discussion”

Dr. Kevin, your posts and those of  your guest bloggers have been applauded by me and many others for a long time. They are thought-provoking, well written and – yes – many times controversial. As you know, one of the hallmarks of a good blog post is a call to action. Well – here’s my call to action.

Perhaps a public airing of some of the key issues relating to the malpractice system (which is flawed in a number of respects) and the health care system (which is not free of its own flaws) would lead to improvement in patient safety and the betterment of both systems. You and your readers just might be surprised as to how many things there are about which we might agree. There is no doubt that we may have to agree to disagree, but maybe – just maybe – a public airing of these issues will have the same result – true improvement in both systems.

Brian Nash practices law at Nash & Associates a law firm specializing in medical malpractice and catastrophic injury cases.

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  • http://oncallnurse.com/blog/ Kristina

    I couldn’t agree more with Atty. Brian Nash. On the other side of the fence, the industry would fiercely protect the people making it from such revelation that would cause uproar. People love to believe their doctors are always right. We are talking about life and death after all. People expect doctors to know everything. I am very aware of these errors and malpractice. And this may also be the reason why more and more people refrain from consulting doctors.

    • http://nashandassociates.com Brian Nash

      Kristina – I don’t want the evening to pass without thanking you as well for leaving your comment. Dr. Pho has been the consummate professional in having my blog posted on his site, for which I thank him very much.

      As is evident from your comment and those of the others (many physicians – see below), this is an emotionally charged issue and one, I believe, that is predicated at times on misconceptions by BOTH sides of the discussion.

      Let me ask you this: if there were a no fault system in which a victim of malpractice were fairly and TIMELY compensated and the medical profession did take appropriate corrective action when indicated, would you be in favor of such a system?

      I don’t mean for this to be rhetorical. I suspect I do know the answer. The current system is far from perfect. The cries of defensive medicine, lack of trust in the system to get it right – are, frankly, valid points.

      One of the reasons I wrote this piece and why (I suspect) Dr. Pho graciously posted it is to at least see if there is some commonality of purpose.

      If we all approach the issue as – it’s all about money and the lawyers or these doctors are a bunch of ego maniacal uncaring jerks, where does this get this discussion.

      I don’t take cases I don’t believe in and for which I don’t have solid expert support. Maybe that’s why the vast majority of my cases settle. I’ve seen the ugly, frivolous lawsuits – I represented physicians and hospitals for decades before representing the patients.

      The points I tried to make in my blog are points that truly concern me about this system. I don’t believe there is enough honest assessment of quality of care issues by the medical profession.I do believe there are witch hunts against physicians who have the courage to speak out when they truly believe bad care has been rendered. All that being said, I also believe that there simply must be elements of common ground principles that can lead to a meaningful discussion.

      Do health care providers want incompetent practitioners among their ranks? I think not. Are there bad doctors who just don’t care or who are inadequately trained or lack adequate competency? No doubt there are; however, I have no doubt these are the minority. We are talking about men and women who have devoted their lives to helping people. However, I have a real problem when – being human – errors occur and they are defended to the death for motives that are ill-founded.

      Are all lawyers ethical, competent, not driven by greed – and the list goes on – of course not.

      Who’s at the core of the discussion, however – PATIENT safety. There has to be a system whereby the patient is the beneficiary.

      Thanks very much again for leaving your comment. I’ve enjoyed interacting with Dr. Pho’s readers.

      • pj

        Re- “if there were a no fault system in which a victim of malpractice were fairly and TIMELY compensated and the medical profession did take appropriate corrective action when indicated, would you be in favor of such a system?”

        Mr. Nash- I am a GP and I would at least like to see that system seriously considered. As you noted, the emotions run so strong around this issue that it’s hard to have a balanced, rational discussion anyway. Kudos to you and Dr. Pho for trying to do so.

        I would also like our nation to have a similar discussion about other nation’s health care systems and how we may benefit from their approaches.

        • http://nashandassociates.com Brian Nash

          Doctor – my last reply for this morning (my firm is starting to believe I’ve retired from the active practice of law! I’ll be back at it at the end of today, I guess.

          Much appreciate your “kudos” to Dr. Pho and me. I feel like the Little Dutch Boy at times in this “:discussion.”
          I knew passions ran deep. I guess I should have expected what’s happening here, but frankly – I didn’t.

          I HAVE elected to spend the time and effort to respond as best I can. This is a serious issue for ALL concerned. I’m actually learning a lot from the comments being made. I’m one practitioner trying to do what I can for my clients. You all are in the trenches every day trying to help your patients. Hopefully, your patients will NEVER become my clients. What is alarming is that while we all banty around the term “tort reform” and rale at terms caps, malpractice, peer review standards, apologies, no fault – these are issues that DO affect the fiber of our society.

          Despite the now countless hours I’ve spent on this post, I feel that it has been worth it. I wish there were a real discussion of issues on a national level as do you. Maybe we spend a couple of days hurling names and charges against each other and then we settle down and get to the “common cause.” Maybe this post – in full – should be required reading for our Congress. Does it address of answer all the issues? Hardly. But – it appears to be one of the few – if not the ONLY open discussion I’ve personally seen between the disciplines. There are a whole lot of lawyers out there much smarter than I and a ton of people in the medical community and health care industry who would, in my humble opinion, be well served to give this type of dialogue a real try. Maybe we can at least start the process of meaningful dialogue. That was my hope; it is what is inspiring me to continue on in this venture.

          BTW – Dr. Kevin Pho is a genius – no? He let’s me post this on his website and then he sits back and watches the “action.” [Big Smile inserted here]

    • http://www.legalanchor.com Kaye Miller, RN

      Let us not forget the third guilty party….hospital administration. Physicians are the customers and are treated as such. Hospitals are in competition to sell their services. “Accredited”, “recognized”, and “rated…” are some of the phrases used to lure the consumer/patient. The last thing hospitals want is bad publicity from an ugly legal dispute. Great efforts are in place to maintain the appearance of excellence. This may include job threatening or other means of control and intimidation. While one can understand the need to extinguish rumour and prevent public overreaction, the ways and means give rise to suspicion.

      • http://nashandassociates.com Brian Nash

        I hear you, Kaye, but let me ask – is the public even aware of the “ways and means” used by hospital administration to control and intimidate their “customer-physicians”? If the public at large (as opposed to those like you who work in a hospital) is not aware of such tactics, how does this “give rise to suspicion”?

        You work in the field and I have a closer outsider’s look than many. We know (you better than I admittedly) what takes place behind closed doors.

        What is ironic, I think, is that your comment suggests that hospitals control conduct of physician’s by some means, yet another person in this chain suggests that hospital administration is afraid to take corrective action against physician’s for fear of reprisal by the disciplined physician by way of lawsuit.

        Are both at play? Is it institution-dependent?

        I would appreciate your thoughts on how these control factors you talk about are part of the problem when it comes to patient safety.

        Thanks for adding to the conversation, Kaye.

        • http://www.legalanchor.com Kaye Miller, RN

          I should have been more clear. The physician/customer is always right. The employees are intimidated into keeping quiet regarding unsafe practices. Ethics discussions and disciplinary actions (if they exist at all) are kept under wraps. Staff is not to speak about situations in question. Hospitals will go to great lengths to protect the physician. We will address this another time.

          • http://nashandassociates.com Brian Nash

            Kaye – thanks again. If you get a chance, you’ll see that I address this very issue and how peer review can be used as a weapon to quell competition and for other not so virtuous reasons. You’ve seen it first hand. So have I. Yes, we WILL address “this” another time. Many thanks for adding to the “discussion.”

  • Muddy Waters

    Simple solution – loser pays all legal fees for both parties. This would be a giant step toward deterring frivolous lawsuits.

    • http://nashandassociates.com Brian Nash

      The famous “British Rule” – works for me.

      • http://www.twitter.com/alicearobertson Alice

        I overall like the British rule too……I lived there and lawsuits are blooming there also. But doctors there really do get off with murder (because you usually fighting the government, not a doctor in private practice). My strong fear of the British healthcare system coming here clouds by viewpoint, and the relatives who have died from bad care there.

        Anyhoo………just so others can understand this with it’s perks (for lawyers) and repercussions (for the loser) the distinction should be made that the lawyers get paid no matter what the outcome is? Is that overall the basis? Wouldn’t the free market find a way for us to purchase insurance for the “just-incase” you get sued scenarios? And how does this serve the patients? It seems lawyers can still make a buck and doctors get more freedom? Sounds like a win/win deal for everyone but the patients? Could you please tell me what I am missing as far as patient care goes and how we would gain from this type of system?

        Can you honestly say the patient would find justice within this type of system?

        • http://nashandassociates.com Brian Nash

          Alice, let me be very clear what I was addressing by my comment on the “British Rule.” There is no way I am in favor of adopting the entirety of the British system of jurisprudence (although our common stems from the law of Merry Olde England). We actually have actions that are against the government employed physicians and/or clinics funded by the federal government. They are referred to as Federal Tort Claims Actions. Frankly, I don’t like those claims at all! There are procedural hurdles and a different set of rules that are not, in my opinion, designed with the patient in mind – at all.

          What I mean by the “British Rule” is with respect to fees and costs – loser pays. In current American jurisprudence, we have very few situations where such a concept applies. One would be actions under 42 USCA Section 1983 (known as the Civil Rights Act), in which attorneys fees are paid by the defendant if the plaintiff prevails. Why do I like this concept, because – quite frankly – it deters defendants from mounting silly, time-consuming and financially harmful non-meritorious defenses since these fees are “in addition to” the compensation awarded the plaintiff. There are a few other statutorily and contractually created situation where this concept applies as well, but not common by any means and certainly not in the usual context of a medical malpractice action.

          That’s the part of the British Rule to which I was referring and that is in the interest of the patient.

          Hope this clarifies my prior commnet.

          • R Peavy

            The problem with “loser pays all” is that not all who lose have brought a frivolous suit. One would hope most frivolous suits would be thrown out before they are started. (One would hope an honest lawyer would decline a frivolous suit.) And, whereas those who carry malpractice insurance should be able to withstand being wrong, the average patient has no such fail-safe and risks bankruptcy.

    • http://nomidazolam.blogspot.com J-M

      Loser pays fees here where I live and it has had a chiling effect on lawsuits that are NOT frivolous. Not everybody who sues for malpractice has expectations of a huge payout! They want the Dr. held responsible. There is NO OTHER WAY to do it! Add to that our tort reform, you know that tort reform that everybody says will cause medical costs to go down? Hasn’t happened here. All it does is ensure that patients have no access to a lawyer. There is also a matter of a $25,000 PROFESSIONAL medical witness that must be paid up front, to explain the obvious. There is a little get together prior to filing where the “unbiased” medical people get to tell you that you have no case. Then the case can proceed. The result of all this is poor medical care and higher costs. There is nothing to stop them, no reason to do better. Informed consent is a joke here. They do what they want and then charge you for it. What’s to stop them? They are totally protected by the byzantine laws of our state. Then the hapless patient also has to pay to CORRECT the carelessness of the first procedure. I have opined elsewhere that we need some kind of mediation team to resolve this kind of thing. Some way of holding medical people accountable without the expense and drama of a trial. Just because the patient isn’t dead doesn’t mean that all is well.

      • pj

        J-M,

        “Here where I live….” Is that the UK? When you say, “our state,” surely you don’t mean in the USA, correct?

  • Greg

    Mr. Nash confuses the level of action between peer review and sytem-wide errors. Individual negligent actions by physicians, are traditionally subject to peer review and “self-policing,” which contrasts with the “systemic errors” quoted in the IOM report, which have to do with system-wide errors, i.e. the behavior of healthcare systems, comprising the sum total of behaviors of hospitals, clinics, pharmaceutical companies, doctors, nurses, pharmacists, physical therapists, IT professionals, etc., not with individual physician behavior. Examples of system-wide error include giving a patient a wrong dose of medicine. This may happen even if the physician orders a correct dose, as the pharmacist may make a mistake in procuring the medication, the nurse may give the wrong dose to the patient (or the correct dose to the wrong patient), or the pharmaceutical company may mislabel the medication at the factory. One would expect a physician in this case to be blameless for this particular error, and yet it is the physician who is most likely sued for an ensuing bad outcome. This is partly because it is more profitable to sue doctors rather than pharmacists or nurses, but also speaks to a confusion between peer-review in medicine (for doctors) and system-wide errors which are not directly the responsibility of the physician. The IOM report emphasizes making changes to Systems of care, but until those systems are held responsible for changes, and not the physician patsys who end up actually being the ones sued, is it no surprise that medicine maintains, as Dr. Pho asserts, the veil of secrecy? When you are held responsible for another person’s mistakes, another person over whom you don’t have direct control, wouldn’t you be a little extra cautious too? I think that is one of the critical reasons doctors and lawyers continue to be at odds over medical malpractice.

    • http://nashandassociates.com Brian Nash

      Greg (Sorry, I don’t know your last name)

      I fully understand what the IOM was addressing and the data bank concept for the collection and analysis of that date for implementation of corrective SYSTEM-related problems.

      Let’s take your example of the “dose of medicine.” If the order is correct and the pharmacy makes the error – let’s say through a communication IT-driven error – what is the basis for suing the physician? Do you really think that’s what quality malpractice lawyers do? To what end? I can assure you, not in my law firm. I can’t speak for others, but many competent malpractice lawyers can tell the difference. If it’s a system error and the institution is responsible, that’s who gets sued. Where did this concept of “let’s just sue the doctor” come from? I guess it does go on, but not by anyone who really does understand what they’re doing. These “systems” are held responsible. If we believe the hospital staff is at fault, we don’t “throw in” the physician for the heck of it.

      We have in law a concept of bad faith lawsuits. If there is no meritorious basis for a claim, there is a remedy against the attorney (and potentially the patient). In fact,I attempted the first physician counter-suit in the District of Columbia – Dr. Ammerman vs Newman. Unfortunately, it went no where since the argument was I was going to clog up the docket with physician counter-suits (when exactly the opposite would have occurred).

      That being said, I do believe there is a massive problem on my (the legal) side of the equation, and I just alluded to it. These kind of misdirected, frivolous, costly lawsuits are often brought by lawyers who have no clue what they are doing. That’s a very real problem.

      I look at advertising (print and internet) and I see a host of names of so-called malpractice lawyers. I’ve been doing this work in MD and DC for over 35 years on both sides. I suspect I have a pretty good idea who really specializes in medical malpractice litigation. I don’t recognize MANY of these so-called malpractice lawyers. I’ve been advocating (via discussions with Bar counsel, blogs, forums, speeches – you name it) that these so-called malpractice lawyers, who wouldn’t know a meritorious case if they fell over it, are in large degree at the heart of the problem the medical profession and the legal profession face in this “open discussion.” No, it’s not the complete answer, but it sure is a good place to start.

      The veil of secrecy simply isn’t the answer either! I wish you and others could sit and listen to the clients we represent and how many times they go to a lawyer just to find out “what happened?”

      You perhaps can work on your end of the equation (assuming you are a health care provider); I’ll work on mine. Maybe we can have the common goals I have mentioned throughout my replies to these comments: fair, timely, just compensation for the victims of REAL malpractice and corrective action taken with respect to the SYSTEM or the individual after honest, frank assessment of patient safety and quality of care.

      Thanks for adding to the conversation.

      • http://www.twitter.com/alicearobertson Alice

        Peer reviews? You mean where doctors lie to cover for a colleague? Ugh………it’s the downside to medicine where people who trained for all those years are fearful to tell the truth for fear their own career is harmed. I found myself wishing doctors had some type of witness protection program from their employers………just so they could actually tell the truth. Realizing there seems to be some type of unwritten code of conduct among doctors where a snitch is held in such contempt it reminds me of a gangland type of mentality:)

        The peer review we went through was almost as bad as the actual medical error.

        • http://nashandassociates.com Brian Nash

          Alice – I’ll avoid getting into a discussion of your characterization of peer review being driven by a gangland style “snitch” avoidance mentality. What I will say relates to not so subtle forms of intimidation against those who are willing to review and testify for patients in medical malpractice cases. I do have personal knowledge of how this has happened on a number of occasions.

          I have had physicians who have testified for my clients tell me that they were visited by administration representatives, who voiced their displeasure over the role such physicians were playing against colleagues. Threats – some subtle – some not so subtle – made about future employment at the institution if this kind of conduct continued. Internal review (chart reviews) directed against such physicians – which is a time-proven mechanism to get doctors to clean-up their act when it comes to being patient experts. (If you review enough medical records, it’s easy to find fault with the quality of medical record entries.) Reporting of physicians to national societies because they had the courage to testify against a fellow physician. I just dealt with this issue yesterday, in fact. The means and methods of silencing such expert-physicians goes on and on. Why is this important? Because in 99% of medical malpractice cases, in order to establish a prima facie case against a health care provider, you must have expert witnesses to testify as to breaches in the standard of care and causation between that breach and the injuries claimed. No expert – no case. It’s really that simple.

          This is exactly one of the reasons I don’t have much faith in the concept of determinations of liability by physician-only panels. If they won’t speak out now when they see wrong, how likely are they to find a colleague at fault and award compensation to patients if the system is put in their exclusive control? How in the world does that advance patient safety? Am I really supposed to believe that there will be a monumental change of philosophy if this were the “new system”?

          • http://Www.twitter.com/alicearobertson Alice

            I so agree! Our daughter’s medical error was blatant (the ENT simply did not read the lab notes that said the biopsy was too dry to really test). And not once, but twice he sent us merrilyhome, even when I argued with him. We lost 8 months of time, with an aggressive cancer. My daughter still has cancer, because it was found in a major organ that cannot that cannot be removed. I share this to show the obvious error….not the peers, and the Chair of the department all said the doctor did a great job.

            Ironically, it was the hypersensitive doctor (yes, the one who refuses to apologize) who filed with the Ombudsman to have my relative fired because she had told others about his mess up (yes, his reputation is more important than the damage his negligence caused…and that we are still dealing with). This is at Cleveland Clinic….who wants to even try to fight them? They own almost every doctor within a hundred mile range, and Florida, now in the Middle East.

            I told the truth (felt like a telephone trial) and the ombudsman called me back three weeks later exasperated. She read me the remarks of the specialists and one was from a doctor I love. I confronted him and fell apart….but the original blockhead who is so arrogant was cited. I really am unsure of what that means. I surmise it was something internal and he probably lost a bonus?

            I share this to put a face on exactly what you shared. Even in the obvious these other doctors blatantly lied to cover up. My faith in doctors was destroyed…..risk management seems to place no value on the truth…….and I have not sued, but feel like it!

          • TXMD

            Peer review does work. Due to fear of lawsuits, the public and specifically malpractice lawyers will never get to hear what goes on behind the closed doors.

            Alice’s story is illustrative. She is clearly angry about a perceived wrong diagnosis of a family member. She does not know what went on behind closed doors. Perhaps the doctor indeed practiced within the standard of care and her impression of a diagnostic error is wrong. In any case she is already thinking of filing a lawsuit and I am sure everybody in the peer review process knows that. If they were to let her and her lawyer know about any of their criticisms of the doctor at issue, you know they would be ultimately compelled to testify about this issue. Then of course the doctor could sue the peer review panel as well for their “erroneous” criticisms. Its a lose lose proposition in the current situation for the peer review panel to make any of its information public. Change the system if you want the peer review system to be more transparent.

          • Alice

            Alice’s story is illustrative. She is clearly angry about a perceived wrong diagnosis of a family member. She does not know what went on behind closed doors. Perhaps the doctor indeed practiced within the standard of care and her impression of a diagnostic error is wrong. In any case she is already thinking of filing a lawsuit and I am sure everybody in the peer review process knows that. [end quote]

            Egads…….talk about presumptive medicine…..the type that has wrecked our lives for the past year. Okay…..let me try again…….the actually doctor who did not follow the standard of care (umm……doing another biopsy when the first one is acellular and the ultrasound shows a large calcified growth) was cited. No it wasn’t behind closed doors. It was written reports in a peer review from his colleagues and it was read to me on the phone (didn’t I say it was like a phone trial?). Their exact words……I felt like a brick hit me when they were read…..they were so glaringly false. Yes, a cover up for a rogue doctor, and I can prove that statement.

            Peer review doesn’t work because the peers have a stake in the game. Rat out your colleague and who knows maybe you won’t get a Chair position…..maybe a bad review?

            Doctors are so defensive and they lied in their reports. It is very rare to have an Ombudsman cite a doctor. It worked in my case because I was honest, unlike the doctors. Even the Ombudsman was exasperated at what they wrote it was so blatant the error was glaring. All I had to do was show on the their own hospital website that a non-diagnostic biopsy should be followed by an ultrasound and needle biopsy. Actually, the website said if it’s calcified to take it out.

            I tend to think your post showed why peer review doesn’t work…….doctors are a brotherhood like the police. Sigh…..! And I heard that directly from my doctor friends……and if you read my other posts you will see me give our surgeon’s name and say publicly how much we love him. Some doctors are brilliant and outstanding…….but overall……an injured patient will not find justice among your brethren who seem to have some type of silent blood brothers brothel! Ha! Yeah, I like alliteration…..and facetiousness! :)

          • pj

            Alice- My gosh- so sorry your family had to endure all that- Would you share with us what type of cancer your daughter had?

          • http://Www.twitter.com/alicearobertson Alice

            PJ….how nice….thank you for asking….I only did three blog posts on this and I think if you click on my picture (that I really can’t remember how I got there) it links to the blog.

            She was 16 years and turned her head one night and I saw a growth in her neck…that is when I knew something was wrong…it was thyroid cancer. She just turned 18 years old and we are in the wait and see phase because of the spread that could have been avoided. That was what the peers wrote as an excuse for the misdiagnosis…her age….they wrote it is so rare no wonder the doctor did not do the biopsy again. But something tells me if it had been their child….Sigh!

            Thanks for asking!

  • http://www.BocaConciergeDoc.com Steven Reznick MD FACP

    I have proposed in the past that any bad outcome be investigated by a National Transportation and Safety Board type of panel composed of physicians, scientists, health care providers, attorneys,ethicists. The purpose of the investigation would be to find the root cause of the poor outcome. The panel would have the power to suspend a physician, revoke their license, fine a physician, require re training, require supervision, require a change in policy and procedure of an office, health care facitily etc. Awards would be determined using a Workers compensation type approach. The results and findings and outcome should be public recored. We need to accept the fact that errors occur. We need to make it a priority to find out why they occur and prevent future errors from occurring. We need to root out incompetent providers, retrain providers who need additional training and compensate the injured for expenses and lost income. As long as these cases can drag on in the courts for years and be decided emotionally by juries with little or no scientific background, the patients will not receive the protection they deserve while the health care industry will practice defensive medicine and call for reviews not open to the public.

    • http://nashandassociates.com Brian Nash

      Dr. Reznick – I truly appreciate your taking time to leave your comment and thoughts. Since I have left rather lengthy replies to some of the later comments, in an effort to avoid being redundant, I will not offer the same comments I made to others.

      I would add this based on one of your comments, however. You state, “As long as these cases can drag on in the courts for years and be decided emotionally by juries with little or no scientific background, the patients will not receive the protection they deserve while the health care industry will practice defensive medicine and call for reviews not open to the public.”

      I most assuredly don’t have the knowledge base to speak to all jurisdictions or frankly those where I do not practice. What I have been impressed by is that fact that many physicians and hospital risk managers have a general lack of trust of the jury system. I have zero doubt that this is a well-founded fear in some locales. Let me mention, however, that as a former defense lawyer, I was constantly hearing from my physician clients that they couldn’t conceivably get a fair trial from a jury in the District of Columbia. They were uneducated in scientific matters and could not conceivably understand and fairly decide the issues of a medical malpractice case. I wondered where this fear came from since this was never my experience in that jurisdiction, where I venture to say I had tried well over 100 medical malpractice cases for the defense. I knew what my track record was; I knew just how well my juries understood the issues – they really do talk to the lawyers after the verdict. It is amazing what they do understand.

      Lastly, on this point, I know for a fact that statistics are being kept by the judges in D.C. as to last offer, last demand (settlement) and outcome. I could be off (plus or minus 2, which is better than the political polls), but the latest figure I have heard is that the defendant health care providers are winning about 90% of the cases that go to trial. I suspect this is attributable (for the most part) to good solid claims practices; however, I also know – for a fact, that the run-away ignorant jury fears are at times not well founded. Again, this is in the jurisdictions where I practice.

      I just wanted to give my plug for jurors, who in my experience of over 35 years of doing this type of litigation, really do try – for the most part – to get it right and not be swayed by sympathy in their verdicts. Don’t underestimate that these people really take their oath seriously. Of course, this is not always the case, and I fully recognize this can vary from locale to locale.

      I thank you also, Doctor, for taking the time to leave your meaningful and appreciated comments.

      • pj

        Dr. Reznick usually, no, always, gets it right on the money with his comments.

        Also, Dr. Pho is a genius, indeed. I must be VERY careful to read his engrossing blog lest my practice, like Mr. Nash’s, thinks that I’ve retired .

        • http://nashandassociates.com Brian Nash

          Do what I’ve decided to do – get your iPad and hide it in your desk drawer making it look like you working but all the time reading and commenting on this blog.

  • anon

    your points barely refuted kevin’s claims, using only specific contexts or interpretations.

    as you said, we don’t have an epidemic or physicians purposefully killing people. people are imperfect. medicine is imperfect. no amount of “learning from mistakes”, whether via lawsuits or peer review, will change this fact, or the fact the current malpractice situation is inherently adversarial. any situation where money is involuntarily changing hands is adversarial. add extremely high stakes – the livelihood of all three parties – and no one should be surprised that all sides are entrenched.

    the bottom line is no change, save an extremely drastic, likely impossible, ideal world situation where money does not change hands from any one party – patient, physician, or lawyer – to another, but patients are still somehow fully and fairly compensated, will appreciable better this malpractice situation.

    • http://nashandassociates.com Brian Nash

      I agree – by the nature of the process – being adversarial, high stakes and life-altering, I am not surprised that “all sides are entrenched.”

      What I’m not understanding, however, is how “money doesn’t change hands” but patients are somehow “fully and fairly compensated” takes place. If you are referring to a no-fault system whereby the patient is compensated, those plans seem to be working in some locales, but as I noted, they have apparently not had widespread appeal on national or regional level.

      I was, in fact, contacted by a local hospital system to see if I would be interested in being on a panel of plaintiff’s lawyers, who would represent people whom the hospital felt were the victims of malpractice. The condition was a dramatically reduced fee. I readily agreed to this, but that was the end of the discussion and the adversarial process has continued on. I’m not sure why that was. They approached me, not the other way around. Why is it that these no-fault approaches (e.g. University of Michigan Health System No Fault Program) don’t seem to be taking hold on a broader basis? I truly am interested in knowing why that is.

      Thanks for your comment.

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

    I agree that the medical profession has policed itself poorly. This provides ammo for those who support the current medical liability system, which functions very poorly, in my view. It also is the main obtacle against physicians being open with our mistakes and misadventures, which the post argues that we physicians should do. The author states, “…if a physician apologizes for his/her malpractice, this might be used against him/her in a court of law as an admission against interest. Well, have you been keeping track of the legislative proposals that would make such “admissions” – inadmissible? ” My understanding is that these ‘apologies’ are inadmissible only if no error or malpractice is confessed. I thought that the statement was inadmissible only if issued in a bland fashion, such as “I’m sorry this happend to you.” They current medical liability system misses most cases of true medical negligence and targets many more innocent physicians than negligent ones. Not a great track record. I disagree with the author and believe the current system decreases medical quality by leading to defensive medicine, which leads patients to a cascade of testing with all the the risks involved.

    • http://nashandassociates.com Brian Nash

      Dr. Kirsch – points well taken but we will agree to disagree that the ‘current system’ decreases medical quality. Do you really render less quality care by leading to defensive medicine? I will readily assume that you are a highly competent and skilled physician and care tremendously for your patient’s safety and well-being. Do you really order tests you don’t believe are necessary to rule in/rule out the processes of your differential? If that’s what my profession has done to people such as you, we really do have a crisis. Why do I suspect you order tests, call in consultants and take other measures you deem necessary because you sincerely believe you need that information to provide good care to your patients, not because malpractice lawyers are lurking in the shadows?

      On the admissibility of “admissions,” you are correct that this is the state of the law in some jurisdictions, not all. That being said, “bland” statements are better than “no statements.” What has infuriated people who wind-up in my office is the refusal of physicians to have ANY discussion with their patients after an adverse event.

      Let me leave my reply to your comment with this – perhaps because I was a former defense lawyer and saw so many non-meritorious cases, perhaps because I do believe in what your profession does to help people – but, whatever the motivation, we decline to even investigate around 97% of the cases for which we receive calls. After very stringent review in-house followed by (if they make it past in-house review) outside expert review (which more quality doctors SHOULD be willing to perform, by the way), we then wind-up rejecting more than 50% of those – easily. What is most interesting is that even when we decline/reject, people are appreciative that we took the time to review their care in detail and tell them what our reviewers believe as to WHY there was no malpractice. If discussions to get to the truth of what happened took place BEFORE they called us, I suspect our phones would not be as busy. That’s what I’m suggesting.

      On the self-policing, might I suggest you see some of my other comments to other people in this post. Is it fear of reprisal by physicians that leads to peer and executive committees not taking appropriate action when indicated? Is that really the product of fear of malpractice suits or just fear of being sued – by the doctor who should be disciplined? How is that justified?

      If no fault systems would identify cases of true malpractice and patients were properly, adequately and timely compensated AND proper corrective action were taken, that’s a system I’m all for – trust me. Lower fees for the lawyers in such a system – no problem. Do you really think I enjoy spending close to two years from beginning to end on each case we accept spending needless, incredible sums of money, time and effort investigating, doing discovery and when needed litigating cases that I simply know are meritorious? Bring on a system of no fault – IF it puts the patient first and takes the appropriate corrective action for system or care giver errors. Why are we not seeing this take root and flourish?

      Even in a no fault system, can we agree that the opposing sides need a system in place by which those cases that can not be resolved have a system to be litigated? Are in-house physician panels truly the final arbiters of which cases are meritorious? When I was a defense lawyer, in cases that we suspected were the product of bad care, these would be sent to outside, reliable consultants for review. If they were of the opinion that malpractice had occurred, we took an aggressive approach toward resolution.

      I was once told the following by one of the most impressive hospital administrators I’ve met in my life: “Brian, the X hospital is not in business to commit malpractice and harm its patients. If we have done something wrong, we will deal with it aggressively and pay a fair price to resolve it.” Those words, spoken over 20 years ago have been an inspiration to me. Why isn’t more of that the norm?

      I thank you, Dr. Kirsch, for your thoughtful comments. Maybe, must maybe, I’ve given you some pause to realize that all malpractice lawyers are not as bad as you may have thought.

  • paul

    is there really any open discussion to be had with anyone who quotes the iom study with a straight face?

    • Nerdy but not a clinician

      What is your point? Do you think the IOM study is a complete crock of garbage? Or are you merely quibbling over the numbers?

      Everyone in medicine knows errors occur, sometimes because of faulty systems and sometimes due to faulty individual judgment, and patients often are harmed or killed by care that was meant to help them. It’s dishonest and disingenuous to imply otherwise.

      If it’s a matter of the numbers, what would be an acceptable level of deaths due to medical error? 50,000 a year? 40,000? 25,000?

      • http://nashandassociates.com Brian Nash

        Paul: Fine – I’m game. Let’s not quote the IOM. Let’s consider the following:

        Wall Street Journal, September 28, 2010, diagnostic errors kill 40,000 to 80,000 patients annually based on autopsy studies over past 4 decades.

        American Medical News, August 23, 2010, an estimated 1.5 million medical errors cost the US economy $19.5 billion in 2008.

        CNBC.com, October 19, 2010, the Colorado Physician Insurance Company found between 2002 and 2008, 25 surgeries were performed on the wrong patient, and another 107 surgeries were performed on the wrong body part. One-fourth, approximately 6 patients suffered significant injury. There was 1 death.

        News from the National Academies, October 21, 2006, medication errors injure 1.5 million people annually. 400,000 injuries occur in hospitals; 800,000 occur in longterm care; and 530,000 occur in Medicare outpatient clinics. Estimates were conservative. Treatment of hospital injuries cost more then $43.5 billion annually. Lost wages, productivity, or additional healthcare costs were not included.

        HealthGrades, April 2008, published 3 years of Medicare data from 2004-2006 in their 5th Annual Patient Safety in Hospitals Study. They found 1.12 million patient safety incidents occurred representing a 3% incident rate; and 270,491 in hospital deaths were directly attributable to an incident. The incident rate was unchanged from the 4 previous annual reports. The incidents accounted for $8.8 billion in excess cost.

        HealthGrades, April 2009, also reported improved data in the 6th Annual Patient Safety in Hospitals Study. Inpatient Medicare admissions from 2005 to 2007 were studied. Only 913,215 patient safety incidents occurred with an associated $6.9 billion in excess costs. Instead of a 1 in 5 chance of dying from a safety incident in 2004-2008; patients’ odds improved to 1 in 10 chance of dying from an incident by 2007.

        These don’t sound like commendable stats. If you don’t want to have a discussion, that’s fine. Do you really just want the situation to continue as it is?

        • paul

          i’m not suggesting that the status quo is adequate, or that there is no value to having an open discussion about the medical malpractice system.

          just that inclusion of personal injury lawyers in such a discussion is akin to hearing what the ascaris has to say before deciding to initiate antihelmintic therapy.

          • Matt

            So having the people that represent the victim in a discussion on what to do to prevent what happened to the victim and compensate for it is a bad idea, but having the physicians who potentially caused the harm be an integral part of the discussion makes perfect sense? Not to mention their insurers?

            If you were the victim, and discussing the merits of something that affected your legal rights, would you not want your attorney to be a part of it?

          • http://nashandassociates.com Brian Nash

            Paul – I most respectfully disagree. The medical profession – or a large part of it – may see plaintiff malpractice lawyers as the bane of their existence. Some in my profession don’t think too highly of their medical counter-parts. OK – that being said, how in the world can the medical profession even understand some of the issues that need fixing without input by the legal profession. Sorry – but the medical profession simply doesn’t have a completely unbiased, perfect solution to even identifying what the issues are – and certainly don’t have a corner on the market when it comes to corrective action. NOR DO WE in the legal community.

            I decided to engage in this discussion with Dr. Pho because I passionately believe the system IS a mess. If we can ever remove the emotional, vitriol from this “discussion,” we actually might get somewhere.

            Dr. Pho yesterday posted a comment on my blog site. I responded this morning in detail. Rather than re-type the “key points,” I invite you to read that dialogue – http://bit.ly/hdrTEf. This NOT to increase my blog’s readership. At this point I could care less – I just can’t find the time to try to engage in this discussion on multiple sites.

            I sincerely believe Dr. Pho does come at this issue with the right intention – the Patient must come first in this “discussion.” I am an ardent advocate of this principle as well, which is precisely why I’ve taken the time from my very, very busy practice to engage in this “discussion.”

            This is a 3 way discussion – the legal profession, the medical profession and last, but far from least – the PATIENT. All three must step back, take a deep breath, but their passions, biases and prejudices in check and figure out how to fix this mess.

          • pj

            paul- You may be the greatest Dr around- I presume you are a Doc- but you really do our profession a disservice when you make comments like that. Please remember this blog is not read by physicians only.

  • TXMD

    Malpractice lawsuits are about money not malpractice. The current medical malpractice system does a poor job of compensating injured patients or removing incompetent practitioners. The system absolutely increases heath costs by encouraging defensive medicine.

    To reform the system we should create a no fault compensation system like with the Vaccine Injury Compensation Program for injured patients. Issues regarding professional complaints, competence, or errors should be evaluated by physician panels under the umbrella of the state medical licensing boards. All physicians should be mandated to serve on such medical juries/panels as in our current jury duty system. Such panels and juries should be able to directly query the physician as issue. The legal system should provide strong legal protection for the physicians that serve on such a panel.

    Based upon my years in medical peer review, the medical community is more than capable and willing to police itself and is uniquely qualified to recognize substandard practitioners. However the current peer review system is inadequate and hobbled by the fear of being sued by the doctor at issue. (See Poliner vs. Texas Health Systems verdict).

    Lets all hope for meaningful reform but I am not holding my breath.

    • http://www.twitter.com/alicearobertson Alice

      After reading through this I have to say Mr. Nash is certainly patient and informative. Better watch out……..you may give your own colleagues a good name! :)

      • http://nashandassociates.com Brian Nash

        Alice – you brought a smile to my face early in the morning (when I read this). Contrary to popular belief, we’re all not really THAT bad – LOL. I admit, I enjoy when people say, “You don’t act like a lawyer.” Thanks for the smile.

        • Alice

          Well…….there are always a few good ones amidst a bad crowd……sorta like doctors! ha! I am a bit of a literature nut and e-mail with some doctors. They really don’t like lawyers……so I wrote a fairy tale where the bad lawyers were put in the tower……yeah….dragon food! ha! They love it! I wrote one about them too…..about a maiden (my daughter) searching for a white knight (a virtuous doctor) and kissing all the frogs in the forest on the way to the Ivory Tower (the Cleveland Clinic). Only one frog turns into the doctor with character…….but I am still trying to figure out if the head CIO is a Wizard or King! Hmmm………..

          • http://nashandassociates.com Brian Nash

            Hmmm…maybe I’d opt for the tower rather than be a frog in the forest. Tough choices, Alice. Do I get any others? No need to reply, they probably wouldn’t be that good a choice any way since I see where this is going.

          • Alice

            Ha! In my imaginary world there are loads of choices…….it’s endless! :)

            Thanks for keeping your sense of humor! I wrote that in an effort to make the doctors get a good laugh……they did. One of them adds to the story. They know it’s no magical kingdom……and they know some doctors think they are God while giving out less than godlike performances.

    • Matt

      “I think no fault injury compensation would be fair to the public and has a proven track record with regard to vaccines.”

      Of course, we’re talking about a very narrow thing, with a limited number of claims. No fault would be vastly more expensive for insurers, as one of the highest barriers to proving claims would be removed – the cost of experts to make your case. If you’re talking true “no-fault” like workers comp no fault, all the little claims that lawyers won’t take because they don’t make financial sense now become viable. And even bigger ones that people pass on because of the trouble of pursuing a claim now become more viable. I can’t see your insurers supporting anything that lowers the barriers to pursuing a claim. Without them, this is a largely academic discussion.

      I’ve heard physicians like Kevin Pho use the term no-fault, but when they discuss it in detail, they don’t really mean “no-fault”. They still want the plaintiff to prove liability. Is that what you mean by it?

    • Matt

      ” However the current peer review system is inadequate and hobbled by the fear of being sued by the doctor at issue. (See Poliner vs. Texas Health Systems verdict).”

      Obviously, it’s dangerous to comment on cases you haven’t seen the full story on, but it appeared the facts of that case were pretty egregious by the peer review group. It would also appear that could be solved by not having your competitors perform the peer review. Perhaps have states set up swapping programs in that situation?

    • http://Www.twitter.com/alicearobertson Alice

      o reform the system we should create a no fault compensation system like with the Vaccine Injury Compensation Program for injured patients. Issues regarding [end quote]

      Alice responds: Emphasis on “like” because that is a poor example considering the reality is the fund runs out of money, so people with real injuries do not get compensated. But the medical community covered themselves there…tell patients the shots are safe then have parents sign a waiver for that safe shot. Wouldn’t doctors love a waiver to completely absolve them from all lawsuits? Then berate the patients that balk, or drop them as your patient. Maybe when we get video conferencing up and running at a greater speed some doctors can mirror the gambling and drug sites that operate overseas and beam their medical advice out to us from some island that gives them immunity? Ack! Or….um…..operate a robot to do operations over the internet from Mars….where they are offering one way tickets? :)

      • TXMD

        Alice,

        I am not aware that the National VICP has ever run out of money. If you have information about such please point me in the right direction.

        If you disagree with my proposals, can I prevail upon you to propose alternatives. If you believe the current system is optimal then will you state such?

        • http://www.twitter.com/alicearobertson Alice

          It used to run out of funds. I am limited with a cellphone because my mom had my dad arrested and I am in-and-out of the geriatric psych ward being the victim of people who think a degree turns them in a Greek god whose word is as powerful as Caesar’s.

          You probably already the article over the summer about the broken promises of the government over this very fund and the testimony about the broken promises? Picking up the pieces afterwards is a very hard job when doctors lie (did you know there is even a post right here on Kevin’s board that sways in the direction of promoting just that… by a doctor who wrote a book about how to fight a malpractice suit).

          So you are interested in my opinion? Hmm………as long as you promise me blind faith and complete adherence I’ll give it! Hmmm……..sounds like a profession I rely on a lot lately…….yeah, I can handle being a Greek god for a day or too:)

  • http://nashandassociates.com Brian Nash

    TXMD: these point you make are all central to the discussion. I fully understand your last point about the current peer review system being “hobble by the fear of being sued by the doctor at issue.” I’ve seen these lawsuits claiming discrimination, lack of due process, etc. Let me ask the following, however: as an employer, knowing that if you take corrective action against an employee you may and probably will be faced with claims similar to those I’ve mentioned (add to that alleged violations of the ADA for failure to make accommodations, etc.) does that mean you don’t take the action. I’ve been there and done that. I took the action, was investigated by the EEOC and luckily had the claims dismissed. Note: I took the action I believe was well-founded and correct. Isn’t that the same rule that should apply for peer review and ultimately executive committees of hospitals? Sure, they may get sued, but why not do what you believe it well-founded and correct?

    I also am not ignorant to the concept of financial waste through defensive medicine. I also would agree that fear of being sued may well motivate that type of waste. Again, the common denominator to this issue you raised is “fear.” Maybe this is simply too emotionally charged a topic to ever reach agreement on. So, let me switch gears.

    If we are going to discuss a no-fault system, I will ask you as I did another person in this chain of comments: why have systems like the University of Michigan Health System – no fault – not had greater appeal in health care systems? This is what you seem to advocate. I also believe it it well worth the effort for others (health care institutions) to attempt. I admittedly have not seen later studies as to how such programs are doing. What I do know is that in the jurisdictions in which I practice, these have not had any traction. Why is this? I ask that sincerely. You, Dr. Kevin Pho and many others advocate for no fault systems of resolution. Perhaps you could share whatever information you may have or know of as to why these programs are not being tried by other health care systems on any meaningful scale.

    Thank you as well for your taking the time to leave you comment.

    • TXMD

      Thank you for your thoughtful comments and queries Mr. Nash.

      In response to your question about taking a peer review action even though one might get sued, let me say that I have done so (in my capacity as chief of the medical staff of my hospital)…..and I have been sued by the physician, as of course was the hospital, the medical executive committee etc. Of course to take action if we believe a physician is a danger to patient is an ethical and moral imperative. However I have also sat in peer review committees and seen a reluctance to take action against a physician due to fear of litigation and the Poliner case often comes up by name. (The intimidation factor of a $200 million judgement is hard to ignore and, as you know, a peer review physician is not protected by malpractice insurance against such judgments.)

      Realistically its easier for a peer review committee to “pass the trash” by encouraging a marginal practitioner to leave to another hospital (with a untarnished reputation) than to start a long peer review action and to deal with the inevitable lawsuit that will follow. An adverse peer review action, as you know, must be reported to the National Practitioner Data Bank. A peer review action is a threat to the licence and the very living of that physician. (A malpractice judgement-more realistically a settlement in a meritorious case-is neither.) While there is a federal law that limits peer review lawsuits it still does not prevent the lawsuits and certainly the one I was involved in dragged on for years before a settlement was reached. In summary, peer review actions have the potential to seriously impede, limit, or end a substandard practitioner’s practice of medicine but the current tort system does not. You ask why not take action if you feel it is well founded and correct. Physician can, and will, take action against marginal practitioners but generally will not if it means the meaningful potential for endless litigation and the threat of a massive judgment. It is easier to just not get involved in peer review as a physician. However the public is very poorly served by physicians avoiding peer review activities as they are uniquely qualified to detect substandard practitioners and to force remedial action BEFORE somebody dies or is seriously injured. The tort system is about compensation after injury.

      I believe this can be fixed. Perhaps you can correct me if I am wrong but our current jury system does not allow the individual jurors to be sued due to their individual verdict vote in a trial does it? A physician panel /” jury” as I proposed (with no conflicts of interest) regarding peer review actions would solve this problem.

      In response to you query about the apology system at the University of Michigan, I don’t think it will ever have great appeal. That focus of that system, if I understand it correctly, is to limit malpractice payments by the hospital system (not necessarily the physician) with a timely admission of error and an offer of payment. The UM system, as I understand it, is not a no fault system. There must be an error, with somebody to blame of course, before the system comes into play. The injured party is still able to sue if they want I believe they do from the reports I read. Perhaps overall less malpractice related cost might be incurred by the hospital system under this program. However thats like telling the physician you’ll get tortured less with this system but you are still going to get tortured.

      I think no fault injury compensation would be fair to the public and has a proven track record with regard to vaccines. If I was to be injured by medical malpractice, I would have to submit my claim to an expert panel who could review the evidence and make a ruling. If they agree, I am quickly compensated (according to a published formulas) to make me as whole as possible from my injury. There does not have to be any proof of fault by a physician or hospital before I am compensated. Let me use a retained sponge after surgery as an example. All I would have to prove was that there was a retained sponge and that I was injured by this to get compensation. I would not have to prove that the nurse was at fault, and the hospital was at fault for negligent hiring or training or whatever the theory, and the surgeon was at fault for not checking for the sponge etc. to get compensation. I just get compensation to make me as whole as possible. Note there is no punitive damages here nor should there be. The issues is to make somebody as whole as they were before the injury if possible not to let somebody hit the lottery.

      Nonetheless the evaluation of fault or error is important to quality improvement and identification of substandard practitioners. This then could be addressed before a peer review panel as I previously specified. In my example above, the physician panel could investigate the surgeon, including his previous track record of quality problems if any and move to take action if warranted. Nursing panels could investigate the nurse as well. Punitive actions here have nothing to do with money but ultimately could result in the loss of one’s license-surely the ultimate professional punishment.

      • Matt

        “A physician panel /” jury” as I proposed (with no conflicts of interest) regarding peer review actions would solve this problem.”

        Does the jury have a conflict of interest? I’m not sure why we would let the foxes judge the henhouse on this, and if we did, why wouldn’t we let every other profession do the same?

        “The issues is to make somebody as whole as they were before the injury if possible not to let somebody hit the lottery.”

        Punitive damages are so rarely a factor in med mal that they’re really not even worth spending much time on.

        “I am quickly compensated (according to a published formulas) to make me as whole as possible from my injury. ”

        That’s the crux of the issue though, isn’t it? The published formulas. The caps, so to speak. That’s the heart of the matter. You want to remove the ability of a jury to determine the value of the injury.

        And we have that in workers comp to some degree, but we also have true no-fault there. If you can prove you were injured while on the job, you get compensated, regardless of fault. Are you prepared to do that in medicine? If I’m injured in a hospital by a physician, or even in their office, regardless of fault – do I get compensation?

        You’re asking me to give up the right to explain my life to a jury, and what I’ve lost if say, I no longer have a left leg for a schedule developed by insurers, physicians, and patient advocates to apply to everyone.

        • TXMD

          Dear Matt,

          I think your “fox guarding the hen house” comment is telling. I suspect you have a dim view of physicians as a group. In fact our profession spends a lot of time reviewing each other’s care and criticizing it. We even enshrine it in Morbidity and Mortality conferences. Why would we do this…we because we want to figure out what went wrong and to fix it. Do we assign blame, of course. You should hear the gossip in the doctor’s lounge when something goes wrong. On the other hand we understand a preventable error vs. a known complication better than any lay person ever could.

          Let me give you a physician perspective. We do not get up in the morning hoping that something will go wrong with the days’ surgery or that we will miss a diagnosis or give a wrong treatment. There are no high fives in the doctor’s lounge when a patient is harmed or dies from our errors. What you will never see as a layperson or lawyer is a physician crushed with guilt (sometime not even deserved) when something goes wrong. While some of our profession are driven by the profit motive (and they embarrass us all), it is my experience that my colleagues generally have an altruistic medical student still buried within their psyche-sometimes jaded and embitter from the frustrations of the practice of medicine and our legal system but still there nonetheless. We do not need a bunch of lawyers, the threat of malpractice suits, or committees or IOM reports to inspire us to try to take better care of our patients. It’s what we we do every day and why we went into the profession.

          With regard to you question about whether we would be willing to have a worker’s comp no fault situation in medicine, my response is YES. In fact that is what I propose. I did not even know that was how worker’s comp works.

          I put it to you an objective educated panel (not necessarily with ANY physicians in it I might add-it could be all lawyers as far as I am concerned) could come up with an appropriate compensation to an injured patient than a lay jury. Keep in mind that I say this with the full understanding that I am not only a physician but a future patient. It could be my leg that is lost by somebody else’s error and I want to be fairly compensated if that’s the case.

          In summary, I propose that we make injury compensation less driven by emotion and fault finding and quicker and equitable. I propose that fault finding and appropriate sanctions be conducted by our profession. As long as conflicts of interest are eliminated by involved physicians this will work and serve the public much more so than our current system.

      • http://nashandassociates.com Brian Nash

        Dr. TXMD

        I have read your post comment with great interest. Please accept my apology for running out of steam tonight. I don’t want to give you a quick, meaningless reply. In case you read this tonight, I wanted to simply acknowledge your follow-up reply and say that I will do my best early tomorrow to give you the courtesy of a – hopefully – meaningful response.

        Thanks

        • http://nashandassociates.com Brian Nash

          OK – I’m back, Dr. TXMD. I had to spend a considerable part of my morning posting a reply to a comment by Dr. Pho to my cross-post of his article on my blog. As I said earlier on this page, in the interest of time, I invite you to read what Dr. Pho said and my reply, if you are interested – http://bit.ly/hdrTEf. My disclaimer – I could care less about what numbers I get on Google Analytics for readers to the blog on this matter. I just can’t find the time to double post comments and replies – I really do have clients who are expecting me to spend some time on their cases.

          You are most certainly correct – jurors, judges and for the most part – lawyers who make statements in the course of the adversarial proceedings (like the legislators) have immunity from suit. Maybe that’s a point of focus for “tort reform” when it comes to peer review. I most certainly don’t know all the statutory and common law protections afforded peer review panels across this nation. Isn’t that a good starting point, however, for this facet of the “discussion.”

          If legislators can’t be convinced to give unqualified immunity to peer review panels to abolish the fear of reprisal factor, perhaps they could be convinced to legislate something like a higher standard of proof – clear and convincing, intentional conduct to do harm- something that would make specious actions by those disciplined by peer review panels not force silence and inaction by a peer review panel out of fear of lawsuit reprisal.

          I don’t envy any peer review panel member’s task. That being said, I suspect you take this role very seriously but the constraints of current law and its lack of protections for panel members, the executive committee and the institution are apparently (yes, I”ve seen this happen myself) real and have a true chilling effect.

          Perhaps I have too limited a view; however, from what I’ve seen in Maryland and Washington, D.C. (my practice areas), the licensing board and the panel members ARE immune from suit in their administrative capacities. I have never seen an action brought against them for their decisions. Of course, there is a right of appeal of their decisions, but they are not able to be sued for those decisions. I do believe that for the most part this freedom to act is not abused because they are not constrained and there is judicial review of their decisions. Due process – while not perfect by any means – seems to work quite well.

          Why are these protections not afforded institutional peer review panels? I don’t know the answer, do you? Why are there legislative bills in the state legislatures to enact such protections? Are there and I just don’t know about them? Maybe I’ll do some research on this topic when I get some time. Wouldn’t this be a good place to start.

          If such a “reform” were enacted, wouldn’t this work? I’m really not suggesting complete immunity from suit. Why? Unlike jurors and judges, who really don’t have a stake in the outcome of their decisions, I have seen peer review used as a weapon to remove competition in an institution. Example: Dr Jones has the audacity to compete for a chair position at a hospital and in so doing takes on the current chair. All of a sudden – after vote politicking takes place in the physician’s lounge, cafeteria – wherever – the current chair orders a chart review of his competitor. You know the rest of that story. Another example (which I witnessed) – a cardio-thoracic practice has the audacity to question the conduct of a competitor group. Open heart surgery being the life-sustaining bread of those practices become a source of passionate reprisal. Mortality rates are examined. Cries of “unacceptable mortality” ring out. No one cares that the group with the higher rate is taking on tougher cases. That’s irrelevant to the end-game – get rid of the competition. Peer review begins and the war is on.

          Under these scenarios (which I have personally been involved in together with other such reprisal peer review actions), a higher standard of proof protects the innocent victims of competitor-initiated peer review from such conduct, yet they must prove in a court of law that this was motivated by malice.

          I don’t know if this is the perfect solution, but it’s a thought.

          I do not believe this is a “no way to fix it” situation. Medical institutions and their administrative committees MUST have protections to act in the best interests of the institution and the PATIENT.

          As I say, Dr. TXMD, this is “just a thought.” This whole issue of peer review protections is also, I recognize, just one facet of a much larger discussion..but perhaps it is a very worthwhile component of reform on a broader scale.

          On the issue of physician panels to adjudicate malpractice claims, I’ll step back from my initial response that would be akin to that of “Matt.” I suspect he and I are of the same core belief – we don’t trust physicians to get it right in an unbiased manner. I also am not for a system that has some formulaic approach to damages either. I’ve done worker’s comp as well years ago. I understand scheduled losses, no fault (with clear exceptions to that rule in existence), speedy adjudications, prohibitions against direct actions against employers except in instances of intentional conduct, etc. Now … since I have tried to step back from my biases and prejudices to respond to those who have taken the time and made the effort to comment – (never really able to divest myself of all those admittedly), let me say this in response.

          As you well know, there are the so-called “never events” of medicine, which is a whole other topic for discussion, I’m sure. Theoretically, I guess, these might be a starting point to see if such a system of “no fault” could work. A Stage III decubitus ulcer supposedly should never happen while in hospital. (Again – we could discuss issues such as bariatric surgery, centers of excellence, and related topics ad infinitum). What about starting there but NOT with a scheduled loss? There simply are too many variable in an patient/client’s case to appease people like me or Matt (I would assume). One compensation simply does not fit all cases. What if there was a right of appeal with the same proscriptions that apply to other “administrative findings” such as in Social Security or Worker’s Comp appeals?

          I suspect Matt will disagree with me, but he is clearly a person who is an experienced, skilled and passionate advocate for his clients. That being said – I still ask: is that a viable starting place? Why am I litigating (which I am) a case where a man, diagnosed with a cancer, has lost 60% of his tissue in his lumbosacral region and spending tens of thousands of dollars to do so? This is the kind of waste in our system that I am all for obliterating. Wrong extremity surgery – do I really need to listen to lame defenses so that an insurer can set a “proper reserve” and needs to buy time because this fiscal year is not a good one and they need to string this case out into the next fiscal year to show a better financial statement? This is the kind of nonsense we as lawyers also face. Wrong organs given to the mis-identified transplant patient; failure to perform diagnostic imaging when neuro deficits are cascading over hours of inattention leading to bladder dysfunction and ultimately to complete paralysis; etc, etc.

          I’ve tried to start a discussion on meaningful tort reform. Caps – I won’t go there other than to say, how in the world is it fair to the victim or the taxpayer and the Medicare/Medicaid system when a patient/victim/client is “capped” at $2,000,000 for BOTH economic and non-economic damages (see, e.g. Virginia) when their past medical expenses are (yes, I have this case) $1.5M, they’re in their 40′s, they are permanently totally disabled with a normal life expectancy and future care costs, reduced to present value, in excess of $15,000,000. I haven’t even mentioned their non-economic damages, which are – no doubt you can see – enormous. How is that fair, rational or a host of other words that come to mind?

          The system – in many respect – but not all – needs fixing. Caps are not the answer, laws that require a showing of intentional misconduct (S.C.’s laws on emergency care malpractice cases, currently being advocated in the legislature of Tenn.) – who in the world intentionally hurts their patients? – I could go on. It’s not only a failed system from your perspective; it’s also a disaster waiting to happen from the legal perspective as well.

          So – let’s put prejudice, mistrust, passion and bias aside to the best of our abilities. Let’s identify – at least start to do so – issues of common concern. Let’s listen to each other and see if there are common grounds where the patient safety issue if first and foremost. Let’s start the repair of the system. Getting entrenched in the belief that tall doctors are malpractice suits waiting to happen or that all malpractice lawyers are scum and money-sucking bottom feeders who could care less about their clients get us absolutely no where. Who suffers? Patients – Clients.

          Before concluding – I just want to commend you for the professionalism you clearly exhibit in this discussion. Perhaps we’ll never agree on everything – could be the nature of this beast. I do believe, however, that there truly are potential common grounds of reform that will advance patient safety that will not imperil the medical profession. Yes, we need the good among your profession. That is one area of NO DISPUTE from me. Both professions allegedly have some rather bright members. Are we really doing to let rancor, discord, hatred, distrust win the day in such a worthwhile cause? I hope not!

          • TXMD

            Dear Mr. Nash,

            I think the root of your concerns about my proposals are from your comment …”…we don’t trust physicians to get it right in an unbiased manner.” I understand why you say this but I think you have an observation bias about physicians. As a lawyer you get involved only when something goes wrong and there is a complaint. The denominator is all that goes right that you never know about.

            I know more doctors than you probably do and I hear them in unguarded moments that you probably never will. (My wife is a physician and two siblings as well for that matter). I have seen my peers take action against marginal physicians (even with the risk of lawsuits) and it makes me proud to see them do this. I will make a plea that you, and the public at large, trust us to police the profession. If not, I guess the public will trust their doctor with their life but the same doctor is not trustworthy enough when it comes to peer review…?

            We want ALL of our patients to do well…that why we went into the profession…and we definitely don’t like seeing incompetent doctors practicing. I suspect the public is much more forgiving of the profession than we are inside the profession. (Your story about losing your case because the jury give a pass to the physician is an example).

            As far as a peer review panel, it can be set up in a fair manner such that it is almost impossible to accuse the panel of a conflict of interest. Hence my recommendation that all doctor be compelled to serve like in a regular jury selection process…random notification for service on a panel and voir dire.

            As far as your complaint about the cost of expert witnesses, this would be eliminated by a physician expert panel. Think about it this way, if you were a neurosurgeon being accused of a technical surgical error, who would you rather have determining whether a mistake has occurred, a lay jury with dueling expert witnesses or a panel of (unbiased) neurosurgeons. The panel doesn’t need expert witnesses to determine if an error occurred-they are the experts, all of them.

          • http://www.twitter.com/alicearobertson Alice

            TXMD said: I understand why you say this but I think you have an observation bias about physicians. As a lawyer you get involved only when something goes wrong and there is a complaint. The denominator is all that goes right that you never know about.

            I know more doctors than you probably do and I hear them in unguarded moments that you probably never will. (My wife is a physician and two siblings as well for that matter). I have seen my peers take action against marginal physicians (even with the risk of lawsuits) and it makes me proud to see them do this. I will make a plea that you, and the public at large, trust us to police the profession. If not, I guess the public will trust their doctor with their life but the same doctor is not trustworthy enough when it comes to peer review…? [end quote]

            Alice who is, obviously, not Mr. Nash responds that I find it interesting that so many of your family members are doctors, yet you think Mr. Nash has an “observation bias”. Could you share more about how you think a peer review can be successful, and please tell me you would have peers that do not know the doctor on a personal basis, or who work in that same system, and maybe even a lawyer or two included, and some patient advocates?

            Another “observation” is that our trust with our life should be placed in the doctor. Isn’t that what they are paid to do? You need to differientiate between medical, mental, and morales (yes, more alliteration…can’t help myself).

            Sometimes commonsense is lacking…….are you saying if a drunk driver hits your family tonight you will trust the other drunks in the car to testify in a peer review that he wasn’t drunk? Dramatic example……maybe…..but it’s still within the realm you are suggesting. Take this to any profession……will other sport’s player say a player acted badly in the locker room? Do policemen testify against each other when internal affairs calls them in?

            The public doesn’t understand this line of thinking. If a contractor came to your home and you placed trust in them to build an addition like they said they would…….what would you do if they screw up your sewage lines and refuse to fix it? Do you think the other union employees whose jobs depend on that person are going to say he was a screw-up? Will you not sue for damages?

            Why do doctors expect carte blanche? Yet, they don’t give it?

    • http://www.twitter.com/alicearobertson Alice

      TXMD: If they wish to bypass or reject the panel’s findings they could engage in a traditional lawsuit just like in the vaccine injury compensation program. This panel does not need to consist of any physicians. It could be all lay people or even lawyers as far as I am concerned. It just has to unbiased and objective. [end quote]

      Alice: There is so much information here I am just trying to figure out why you used the VICP as model? Long day, so forgive me if you answered this already. Why is this panel allowed to be run by non-physicians, but not peer reviews? And would people be approved for compensation and still wait four or more years? You are recommending more bureaucracy? Doctors make mistakes…….the taxpayers pay??

  • http://nashandassociates.com Brian Nash

    While I truly hope this discussion does not end here, I do NOT want to miss the opportunity to thank Dr. Kevin Pho for the opportunity to share my thoughts and concerns with his readers. It is a unique opportunity for which I am grateful. Maybe each of us has learned that our perceptions are not always based in reality; unfortunately, maybe some are. Perhaps it is those issues on which we can devote our efforts toward reform – on both sides of the medical-legal equation.

  • http://doctorrw.blogspot.com/ Robert W. Donnell

    The IOM report (the IOM didn’t do the study) was pure spin. Even the lead author of the Harvard study cited by the IOM expressed regret (in a NEJM editorial) at the distortion of the data. Scholarly articles which challenged the IOM report were ignored by the popular media.

    If you are seeking fair and nuanced handling of the data on medical harm stay away from the popular media and go to the primary sources.

    • http://nashandassociates.com Brian Nash

      Fair point. So what data is there from the primary sources about the number of medical errors per year?

      • http://doctorrw.blogspot.com Robert W. Donnell

        For starters see my guest post on this blog from yesterday. The IOM spin on 98,000 patient deaths is about as scholarly as Sarah Palin’s death panels.

        • http://nashandassociates.com Brian Nash

          Will do. Thanks. I’ll be back on the topic. Sorry I didn’t see it when you posted. As you can see, I’ve been a bit “occupied” in responding in this blog and allegedly practicing law and trying to represent my clients in the meantime.

        • http://Www.twitter.com/alicearobertson Alice

          Oh, oh…..now your slip is showing.   Did you see the ABC interview with award winning economist Paul Krugman from the NY Times and his direct quote that in order to pay for healthcare we will need a VAT like the UK (yeah the Jane Austin plan Dr, Berwick romanticized over..Egads….he’s a piece of work that escaped the usual appointment process…there isn’t much romantic about socialized medicine)….amd Krugman said we need “death panels”.  Makes complete sense from an economists viewpoint….but…..

          Anyone up on Obamacare would know appointed panels are a realistic option because the last six months of a person’s live are extremely expensive.  These panels can override a family and their desires.  

          Death panels are a reality no matter what you want to label them…..but it’s okay..doctors just rarely know how to admit they put their foot in their mouth…far less apologize…..isn’t it great you gave me this segue for this particular topic about doctor’s and negligence?

          • http://nashandassociates.com Brian Nash

            OK, Greg just made me smile – you made my outright laugh. I’m going to start having you do ALL my replies to others’ posts. I’m still chuckling. So…does my “slip” clash with the rest of my “outfit.” Damn lawyers can’t dress right either.

        • http://nashandassociates.com Brian Nash

          As promised, I did read your guest post – “A postmortem on the patient safety movement.” I also read the linked articles/posts referenced in your blog. Here’s the good news – I’m a convert – the IOM report will not longer be cited by me as authoritative on the incidence of death or adverse events. Here’s the bad news: in the article by Cox and Woloshin, “How many deaths are due to medical error? Getting the number right,” the following quote appears:

          “In conclusion, harm to patients resulting from medical care was common in North Carolina, and the rate of harm did not appear to decrease significantly during a 6-year period ending in December 2007, despite substantial national attention and allocation of resources to improve the safety of care. Since North Carolina has been a leader in efforts to improve safety, a lack of improvement in this state suggests that further improvement is also needed at the national level.”

          So while the Palinesque characteristics of the IOM report are clearly and definitely called into question, the same theme still persists – patient harm from medical care is still “common” and the rate persists despite the concerted efforts of a state such as North Carolina – which is described as a patient safety conscious state.

          Take Home Point – as this source likes to say: harm and concerns for patient safety related to medical care still persist. I’ll use these “authoritative sources” as my references, not the IOM study.

    • Matt

      This is an interesting criticism, in that physicians routinely rely on “pure spin” data regularly. Look at the “stats” on defensive medicine. Or the stats on “crisis states”.

      If you want to toss aside the IOM study, that’s fine. But be prepared to cast the same critical analysis on the studies cited by tort “reformers” and promulgated by insurers.

      • http://nashandassociates.com Brian Nash

        Love it, Matt (frankly). I’m going with the flow on this former reply. How do you just “toss aside” the IOM report? Was it perfect? Probably not. Was it alarming? Definitely so. Was it pure fiction? I doubt that strongly. That’s why I made the query: “So what data is there from the primary sources about the number of medical errors per year?” I haven’t seen a reply yet.

        Thanks for jumping in.

        • Solomd

          Mr. Nash, I would appreciate your opinion on defensive medicine. Doctors say they are afraid of getting sued for millions of dollars if they don’t have proof (ordered every single test imaginable) that they did everything possible to prevent the negative outcome. I have heard lawyers say their view is that if the doctor thought a certain test was necessary enough to order it that it wasn’t “defensive” medicine, it was rather practicing good medicine. Is this thought by the legal profession very common? Given all this testing is expensive and adds up, what is your take? Thanks.

          • http://nashandassociates.com Brian Nash

            Solomd – let me hasten to say that I’m not speaking for “the legal profession,” just one lawyer sharing his opinions and perhaps those of a limited group of lawyers in the jurisdictions in which I practice.

            With that caveat/disclaimer, here’s my reply:
            Trying to be conservative, I am confident that I have reviewed well over 2,000 medical records in my career. Admittedly, this spans the 70′s, 80′s, 90′s and from 2000 to the present. I have interviewed countless physician clients in my defense practice days and experts galore over this period of time. Frankly, I just have not seen examples of needless tests being ordered for the sake of “defensive medicine.”

            Doctor, we don’t know each other so you have no basis to believe or disbelieve what I just said – but it simply is the truth. What I have experienced is the failure to perform tests on a somewhat large scale basis (e.g. failure to do CT’s, MRI’s, plain films being one of my favorite clinical mishaps – as a defense lawyer – in a person who’s had a head trauma, GCS of 10-11, altered mental status, questionable use of alcohol – or a person with worsening neurological functioning with loss of lower extremity function, then bladder – yet no studies being done to rule out a mass effect on the cord. … these are just two examples (there are numerous examples of such “failures” to order tests.

            That being said, I also accept as true that I may have a myopic view of the situation since I see only cases of catastrophic injury – death, paralysis, brain injury, etc.). I admit, therefore, that my view is skewed.

            What I hear the medical community saying is that they are certain the fear of lawsuits is forcing doctors to practice defensive medicine. I accept this since there must be a valid basis for it. I can’t believe this is pure myth to create a strawman for the argument that malpractice lawsuits drive physicians to practice defensively.

            In one of my other replies, I commented that I assumed the doctor (to whom I was replying) was truly a skilled, caring physician. I posed the question [paraphrased]: Are you really ordering tests you know are unnecessary out of fear that there’s a malpractice lawyer lurking in the shadows?

            Is this really happening on some large scale? I’m really not trying to be argumentative – i really would love to know: is this really happening or is it more a matter of conjectural concern that it could be happening?

            What tests are going to be ordered by a physician when he or she knows they have little to no clinical yield? I guess one example might be if a clinician examined a patient with a history of trauma to the upper extremity and the extremity was rigid. Would the physician really need a pressure check of the arm to prove compartment syndrome or just go straight to a fasciotomy? Is that the type of “unnecessary test” we’re talking about? Are we talking about getting cultures on a patient who is afebrile, VSS, not diaphoretic or having any other sign or symptom of a potential infectious process?

            Again, I’m biased perhaps because I’ve known so many really good physicians over my career. I just find it hard to believe that skilled doctors have a fear of guys like me suing them because they didn’t do some totally useless test that would have no benefit to the patient’s plan of care.

            Again – permit me to send the question back to you (not personally, but what you have observed) – is this REALLY happening? How are such people not being called out by Quality Assurance, Medicare, Medicaid, insurers – or even the patients from time to time when their bills are reviewed? If you have some time, I would sincerely love to hear the basis for the claim that malpractice lawsuits cause physicians to practice defensively by ordering unnecessary tests.

            I suspect I’ve answered your question with a question – sorry about that! Unfortunately, that’s about the best I can do from my limited experience geographically and professionally. As someone noted, I don’t have to worry about making the clinical calls and judgment real time. I get to sit in my office with a retrospectoscope (yeah – they give them to us in law school [small humor]). You are there in the trenches. Is this really going on?

            Great issue. You may well have the better answer.

          • Matt

            The other factor in the “defensive medicine” claim is that usually it’s made in conjunction with the claim that damage caps will reduce the amount of defensive medicine. Yet despite decades of damage caps, there’s no evidence that tests are ordered any less in those places that have them.

            So the defensive medicine discussion is largely a pointless one, until we get some new proposals to combat it. Clearly, the centerpiece of the existing proposals has failed in that area.

          • pj

            Mr. Nash- Hearing of your experiences has been insightful indeed. Re- your question to solo on, is defensive medicine being practiced? I say absolutely. I don’t think it’s as cut and dried as you make it seem. eg. I don’t see Docs including myself, ordering tests we know are unecessary, telling ourselves, “I’m only doing this in case I get sued.”

            It’s more a cultural issue. One of the things I hate about medicine is how many of us do things only because that’s how we were told/trained to do them. Evidenced based medicine seems to be helping this somewhat, but I could cite many examples of tests and treatments that are done mainly for “defensive” reasons. CBC’s and UA’s seem to be a knee jerk reflex test often ordered for no particular reason on asymptomatic healthy adults. Antibiotics for a cold is another common one. Even more frustrating is the pt/parent who demands an MRI for acute low back pain, “to see what’s going on” despite my assurances it will not change the treatment. If I refuse, they find a Doc who will.

            Dr. Phos’ blog has an entry about an $11,000 ED bill for a 29 y/o with indigestion. The posts on that one are illustrative of the issue.

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

    Mr. Nash,
    There is no doubt that you have good intentions, but rhetoric does nothing to get to the “root cause analysis.”
    By its very nature, law is a retrospective profession. The defense of every lawsuit necessarily involves overcoming the bias of the retrospectoscope.

    You encourage openness in admitting malpractice. If a nurse gives a medication 5 minutes later than it was ordered and the patient dies the following day, is that “malpractice”? After all, there was an error and there was a bad outcome.

    Yes, there are obviously medical screw ups. Wrong site surgeries are one of those screw ups. Patients need to be compensated quickly and fully for those obvious cases. But for the plethora of cases in which reasonable people can disagree on whether or not a mistake occurred or whether that mistake actually caused a patient’s damages, how do you propose that medical providers act? And how do you propose that medical providers clear those actions with their malpractice insurers when an inappropriate admission of “guilt” could cost the insurer tens of millions of dollars, could clean out a retirement fund that the physician has worked decades to establish, could get the doctor a NPDB report, and could even render the doctor unemployable?

    By the way, do you practice what you preach? Do you notify your clients that you really haven’t researched the case law in every jurisdiction to create more persuasive authority for your legal briefs? Do you notify your clients about your failures to obtain each and every jury verdict report from all over the nation to justify your settlement demands? I’m sure that there are allegations you fail plead because you haven’t obtained a proper specialist to go over all of the specialized issues in each of your cases. How would your malpractice insurer respond to those admissions?

    Just yesterday, I wrote about an instance of “inevitable malpractice” on my blog. I challenge you to recommend how that case should be managed in prospective manner. I would bet that even you – with your vast experience on both sides of the courtroom – won’t give a straight answer on that case.

    • http://nashandassociates.com Brian Nash

      Doctor “Whitecoat”
      Let me start of my reply by hopefully setting the right tone. I actually found and read your blog “inevitable malpractice” – just to let you know, I made the diagnosis of vascular occlusion in about 5 seconds, not 5 YEARS. Now, can I get into your residency program? Light humor to start -because it’s evident you are passionate and frankly angry when it comes to this “open discussion.”

      While a reply of substance to your many points might better be the subject of a law review article than a blog comment reply, let me give it a whirl.

      You say that “rhetoric does nothing to get to the “root cause analysis.” I’m really not sure what you’re saying. Of course, I use rhetoric, argument, language, tone, etc. – those are my tools of the trade. I guess you are suggesting that I’m not getting to a “root cause analysis” because this blog post and my replies are just “rhetoric.” Sorry – but I’m not sure how to have a discussion without the use of language, argument, point-counter-point – or – rhetoric. What do you use when you are doing when you make treatment option recommendations? What do you use when you do peer review? If rhetoric is defined as the art of using language effectively and persuasively, then guilty as charged. I suspect, however, that no matter what I say – my rhetoric is not going to be persuasive to you.

      You took the time to write your comment, so at a bare minimum, I owe you the courtesy of an attempted meaningful reply (which I do with foreknowledge that I’ll never convince you no matter what I say).

      You state the absolute truth when you say law necessarily involves the use of retrospectoscope. It’s your use of the word bias that actually fascinates me. I assume you mean bias in the sense that because I know the outcome, my retrospectoscope has a distorted lens looking for wrongdoing. Sorry, Dr. Whitecoat, you couldn’t be farther from the mark. I’m speaking personally, not for the entire legal profession,which very admittedly has the good and the bad.

      My “bias” is that matters of clinical judgment are just that – judgment, not necessarily and probably not – medical malpractice. Of course, the use of “judgment” in my niche practice is a buzz word to justify conduct that you would never consider consistent with standards of care. I give the clinician – you and those like you – the biased benefit of the doubt in situations such as you narrate in your “inevitable malpractice” post. Let me assure you, I wouldn’t proceed with that case in a million years – at least not the way you presented it. Most of my colleagues, who have a clue what they are doing, wouldn’t either. Are there marginal players in my profession who might? I’m sure there are. I litigated against them in defending doctors for decades. How would I have handled the recommendation to the client to settle or defend in your hypothetical case: defend. I’ve handled cases like this – judgment calls, co-morbidities, potential bad outcomes – for many, many years. Didn’t do a bad job at it either. This is a case that has defense verdict written all over it.

      What you are perhaps suggesting is – it should never have been brought in the first place. What I’m saying is – you may not be able to stop someone from filing a frivolous lawsuit, but you sure as hell can defend good care. Trust me – I’ve been there and done it more times that I can count.

      Now on the plaintiff side (long story on why the switch – won’t bore you – actually driven by an ethical decision I had to make when my clients (neurosurgeons) were hung out to dry by their insurer on a case that couldn’t be successfully defended – exposed VP shunt for 7 weeks, leading to meningitis, seizures, brain damage – all because the insurer had a “no settlement” scorched earth policy to prove how “bad” they were. – I digressed – but I refuse to let you think/assume it had anything to to with “the money.”

      Back to where I was – on the plaintiff side of my career, I doubt – in fact, I know – you have no idea how many potential lawsuits I have discouraged and probably prevented. As I said to another physician – because doctors many times won’t be frank and discuss “what happened” – your (not personally – but your profession) patients come to US for an answer. Now, that’s a sad state of affairs but it happens all the time.

      I get thank you cards from people whose cases I have rejected – thanking me for just taking the time to review their case – at my expense – and tell them what our review has found and trying to give our best effort to just tell them what WE believe happened. Why are they in my office? Why doesn’t the medical profession figure out a way to protect itself but still encourage frank, open analysis with the patient as to why a bad outcome happened? Is that going to stop them from seeing a lawyer? We’ll never know, will we. It will slow down my phone calls and intakes. Why don’t you advocate for creating a confidentiality protection for such “root cause analyses”?

      You ask if I practice what I preach. Well – I’m happy to say that I sure try to do just that. In either 1982 or 1983, a former client referred his mother to me. She was injured at a hotel in the northeast during ski season. Turns out there was a two month statute of limitations, which I knew about. I sued the company that was listed in the land records as the owner of the property. Turns out they were a franchise and I had the wrong party, which I sadly found out after the statute ran. Yes, Dr. Whitecoat, practicing what I preach – i called her immediately after the dismissal ruling, told her I screwed up, apologized for what I had done and told her she was always free to contact a lawyer and make a claim against me. For whatever reason, she didn’t do that. She thanked me for my honesty and that was the end of it.

      I’m not sure how to respond to the other examples you give. You’re not a lawyer, I assume, so your points don’t really have a meaningful ring – which I respect since I’m not a doctor and have a layman’s understanding of what you do. Some of my examples are clearly wanting.

      No, I don’t research every case in the American jurisprudence for my legal brief. No, I don’t use every verdict report across the country to justify my settlement demands. But guess what – that’s standard of care NOT to do such a thing in my profession. Judges in D.C really don’t care what courts in Wyoming or Texas have to say about an issue that is the settled law in D.C. Mediators don’t really care about what a jury in Hudson County, NJ had to say about an amputation case when a case is pending in – let’s say – D.C. I DO get a listing of all known settlements and verdicts for amputations in D.C and surrounding jurisdictions such as Maryland and VA. They have some relevance. That is good legal practice.

      Am I perfect? Hell, no. I hope my mother isn’t reading this; she’d be disappointed. Just like you, I try to practice good (and hopefully better than most) practice standards. But I am NOT afraid to admit if I make a mistake that affects a client’s case, which – thankfully – I can honestly say has been a very rare occasion to my knowledge. Could I ask better questions in court or deposition? No doubt! Could I possibly miss a great theory in a case because I didn’t retain the right specialist – no doubt. I practice what I believe to be good solid practice standards by hiring multiple, highly qualified medical specialists to identify which potential areas of specialty need to be retained to review a case to avoid this error. Has it happened? Perhaps – I don’t know that it has – but I’ll admit it’s possible it could have.

      I trust you get the point. This is not just rhetoric. There are actually lawyers who give your profession a fair assessment and analysis. If you get sued by someone who doesn’t get it and files a frivolous claim, well make sure you have a lawyer who does get it – i.e. what you do – knows what to do and cares about your case – oh yeah…and is competent in a courtroom. Just like I would choose a healthcare provider – do the same if this lawsuit misfortune befalls you, which I sincerely hope never happens. Defend a case. You just might be surprised how well the system does work. Many if not the vast majority of my defense clients were pleasantly surprised!s

      Your “challenge” on giving a straight answer to your question – I think I’ve done my best to give you a straight answer. Not sure which question you mean – I doubt it’s the one about what would I do if I were the surgeon? Trust me, Doctor, you wouldn’t want me treating you. What you might want, however, is me representing you and for sure, you don’t want me to be the one suing you!

      Sorry – couldn’t help the last comment. You’re passionate about your beliefs. So am I.

      Thanks for the discussion. I’m sure I haven’t convinced you at all, but at least I fulfilled my pledge – try to give you the courtesy of a frank and considered response – or is that “just rhetoric”?

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

        I can tell you that I have dealt with many attorneys and your ethos is not shared by a majority of the legal community.

        A few comments on some of the statements that you made, though.

        “This is a case that has defense verdict written all over it.” Perhaps. But I have also reviewed many other cases that had “defense verdict” written all over them. The only problem was that they didn’t end up as defense verdicts. They ended up as plaintiff verdicts. Off the top of my head, one case was for $17 million and another was for $5 million. And behind those verdicts were doctors that behaved appropriately, patients who thought they were wronged, and attorneys who wanted to “make sure this didn’t happen to someone else.” Funny. I have never heard of a plaintiff attorney who admits that money is a factor in their cases.

        Of course there are cases where doctors have obviously screwed up and get away with it. Those don’t resonate with physicians, though. Its the multimillion dollar judgments that are bragged about on law firm web sites, posted in news releases, and reported on jury verdict reporters that fuel the notion that doctors just can’t practice reasonable medicine – they have to practice perfect medicine. Whether such a belief is appropriate is irrelevant – that is what our current medical legal system begets.

        You also fail to address the early apologies for marginal cases. Yes communication needs to be better. What would you advise your client who wanted to apologize for a medical error when there was a question as to whether a medical error really occurred? What if the medical error caused no harm? Do you advocate apologizing for not washing hands for 15 seconds? Giving medications 5 minutes late? Giving NSAIDs without first checking a creatinine? Giving antibiotics before getting blood cultures rather than after doing so? The last example is not a “mistake” but is a violation of a CMS “quality indicator”. Should we be apologizing for those as well? Where does your theory of apologizing for mistakes end? And how do insurance companies come into play with those apologies?

        Finally, my challenge was for you to provide me with a prospective course of action in the “inevitable malpractice” case that I presented. Knowing the risks of what could happen, what should the doctor do?

        • Nerdy but not a clinician

          “Of course there are cases where doctors have obviously screwed up and get away with it. Those don’t resonate with physicians, though.”

          I would humbly submit that the “cases where doctors have obviously screwed up and get away with it” are exactly the ones that SHOULD resonate with physicians.

  • Matt

    Whitecoat,

    Your claims lead one to the question of how many plaintiff attorneys have you ever spoken to outside the realm of a ase you were involves with. I know many, and EVERY one admits money is a factor. After all, money is what pays the bills for the past and future care resulting from the negligence – your bills. Although come to think of it, I’ve never heard a physician admit their support of tort reform was about putting premium dollars back in their own pockets.

    You say this is what the “system” begets because you heard about this or that case. And you say whether your perception is correct is irrelevant. How for one satisfy a person who doesn’t form opinions on a risk based on the actual risk? It’s reminiscent of a person whowont vaccinate their child because they knew someone once who had a terrible reaction to them. If the true statistics don’t matter, then there is nothing you can say to them is there? So the bad acts of physicians don’t resonate, bit the verdicts resulting from those bad acts do? That makes little sense.

    Why do you ask a lawyer what the non-negligent way to act in that situation is? If your question is serious, why not have the major organizations in your specialty promulgate a standard of care there?

    As to your question about apologizing if theres no harm, why wouldn’t you apologize in that situation? No damages mean no claim.

  • http://nashandassociates.com Brian Nash

    Dr. Whitecoat – Matt apparently has more stamina than this old saw. I finally had a chance to find a few minutes to formulate – as best I can- a reply. Might I invite you to see a discussion between Dr. Pho and myself on my blog page – http://bit.ly/hdrTEf As I said in an earlier comment/reply this a.m. – at this point, I could care less about building hits on my blog site. I just can’t find the time and practice law to say the same things about my core beliefs in what IS wrong with the system.

    Unless he has completely hoodwinked me, I do believe Dr. Pho is truly concerned about patient safety in general and specifically in the context of medical malpractice litigation. Apologize for being presumptuous, but you truly have a deep-seated disdain for all things legal – particularly malpractice lawyers. A common theme throughout your comments is we’re driven by money, not interest in our clients. Of course money plays a role in what I do. I wasn’t born rich (and still am not) nor do I have a huge trust set up for my long overdue retirement. Yes, I have employees who like to be paid and so do I. Yes, I have overhead and I venture to say it’s a heck of a lot more than your personal overhead. I wrote a piece (blog) this past Sunday on the issue of the economics of a potential claim. I addressed this very issue in my reply to Dr. Pho’s comment on my blog page this a.m. (link provided above).
    If you and the medical profession really believe we truly don’t give a damn about patient safety and have true concerns for our clients, this discussion is going nowhere fast. If you suspect that my motivation is simply and solely monetary gain, marketing or the like, I might as well end here in attempting this reply. Simply put, I understand anger, distrust, and a host of other emotions. I might just hold some of the same with regard to members of your profession. That being said, I’m willing, and frankly have tried to exhibit in my responses to the comments in this posting, restraint, some degree of open-mindedness – and – a willingness to continue to believe that the vast majority of the medical profession cares tremendously for their patients health, well-being and safety. I simply don’t know how many more ways to say this. You talk about posting big verdicts, etc. Might I suggest you check out the video on my website – see what I talk about in my “marketing” – it’s the same message over and over – bad outcomes do not equal malpractice. Doctors should not be sued unless the case is meritorious, and on and on and on. I’m not the lone soul in the wilderness on this philosophy. Hell – we ALL need you and your colleagues many times throughout our lives. I’ve got to believe you care tremendously to give good care, and I do. However, if one of your colleagues screws up and hurts a client of mine, I will sue and bring every skill I possess with passion to make sure a wrong is righted for them. I would suspect that if someone in your family was maimed by bad care, you would want a lawyer with the same attributes to represent your family member. Maybe you wouldn’t and you’d just write it off to “stuff happens.” That would be your choice, but I don’t get the sense that you are against meritorious malpractice cases.

    If I can get you to believe, even for a day or an hour, that there are many in my profession who really care a hell of a lot about our clients and their well-being (oh yeah…while getting paid for it just like you do), then maybe all this time on this blog are worth it. I’ll have at least one (temporary) convert. Do what I have done for 37 years and put up with half the nonsense I’ve endured and maybe, just maybe, you’ll suspend your distrust and dislike (need I say hatred) and accept that some of us – many of us – care a ton for the people who entrust their case and many times their future to our “care.”

    OK..now to the substance:
    You stated: .”You encourage openness in admitting malpractice. If a nurse gives a medication 5 minutes later than it was ordered and the patient dies the following day, is that “malpractice”? After all, there was an error and there was a bad outcome.”

    My reply: I just don’t seem to be getting MY message across too well. Do you really believe I would engage my firm in a case such as this? If you’re asking me if I might consider a case where a patient in an OR become massively hypotensive and a nurse anesthetist sat around charting and not noticing the monitor/alarm going off (if she set it) and failed to address this and the patient suffered severe disability as a result (or maybe died), sure, I’ll look at that case. If you’re asking me if I would take a case where a diuretic that was ordered was delayed 5 minutes and the patient died the next day from an underlying unrelated co-morbidity – do you really need me to answer that by this time in our “relationship.” If you do – the answer is – NO.
    Parenthetically, I WAS involved in a case where a PACU patient suffered massive brain injury following a tummy tuck when the nurse went to attend to another patient and left to find a warming blanket and forgot to turn on the alarm on the monitor. Yeah…5 minutes, as you well know and better than I know, can mean the difference between disaster and non-disaster in a given clinical situation.

    You next say/ask: “But for the plethora of cases in which reasonable people can disagree on whether or not a mistake occurred or whether that mistake actually caused a patient’s damages, how do you propose that medical providers act? And how do you propose that medical providers clear those actions with their malpractice insurers when an inappropriate admission of “guilt” could cost the insurer tens of millions of dollars, could clean out a retirement fund that the physician has worked decades to establish, could get the doctor a NPDB report, and could even render the doctor unemployable?”

    I wonder how you interpret anything I’ve said to suggest that I’m advocating for an “inappropriate admission of guilt.” If you read again what I’ve said seemingly over and over by this point is that IF there is a true screw-up (wrong side surgery, etc.), admit it. Be done with it. We’re all human. If it’s a questionable and tough clinical setting, which is probably the vast majority of these “claims,” why not sit down with the patient or the family and go through what happened, what decisions were made, why they were made – no need to stupidly say – I’m sorry, I’m at fault when that’s not the case. As I have tried to say clearly, but apparently have failed miserably – many, many times – our clients and prospective clients just want to know “what” happened. You’re the doctor with the skill and knowledge base they don’t possess. They’re uneducated in the complexities of medicine. All they know is that their loved one went in for an elective procedure (hypothetically) and they came out dead, maimed, brain dead – whatever. Don’t you think they would like to know – what happened?

    Get Risk Management involved or a Patient Advocate or – I don’t care who it is that fits the bill – if that’s what it takes. If you didn’t – after honest introspective analysis – do anything wrong, what’s wrong with a compassionate statement concerning the outcome – not some “apology” that is groundless and ill-advised. Is it really that difficult to do?

    I don’t believe it is – call me crazy. I would share this with you – I have won – in my past career – many times cases that were “too close to call going into trial. How – my strategy was simple – was my client (usually a physician) well trained (i.e. they knew what they were doing), had a rational plan of action (they executed on it and were pro-active in the care) and they truly cared (which they did for 99% of the time) for the patient’s well being. It was a winning formula! I’m not talking about defending some 5 minute delayed pill cases – I’m talking death, paralysis, amputation, brain damage (adults and children) cases. The so-called sympathy cases you are addressing. So – do you really think that juries didn’t like it and believed my client cared (item #3 on my defense strategy) when they heard that the doctor sat down with them, tried to explain what happened and expressed sorrow over the outcome – not guilt. How do you think jury’s respond when they hear that a client, who lost his child of 6 weeks, tried to sit down with the pediatrician to go over the autopsy results and was ignored repeatedly in his quest to find out “what happened”? Without getting into the case’s allegations – which were meritorious – how hard was it for a jury to award my clients $2,000,000 in less than an hour? Sympathy – I tried that case in one of the most notoriously conservative jurisdictions in Maryland. It DOES matter how a physician conducts himself/herself in these situations. I believe that and you will never convince me otherwise.

    Now to your final point: the hypothetical blog case of the 87 yr old lady with vascular occlusion of her lower extremity. Doctor Whitecoat – don’t you think it would be rather presumptuous of me, as a lawyer, to answer this question. I’m not a physician, you are. Do I doubt you and your colleagues find yourselves in horrible situations (particularly in the ED) day in day out? Why in blue blazed do you think I give you the benefit of the doubt in situations like this – we pray for doctors like you and what you tried to do to get a vascular consult, force anesthesia to take a chance on an ASA rated disaster – you were a patient advocate in that situation. So some lawyer ties to make a buck if the outcome is bad – how am I supposed to respond to that hypothetical? All lawyers are bottom feeders? Afraid not! I can only say what I said before – did you have the skill? Did you have a plan that you executed on? Did you care? Well – yes, yes and yes – three strikes – plaintiff SHOULD be out. Do all cases wind up advancing justice? You can’t seriously be posing that question. I suspect even as a doctor you’ve heard of the Dred Scott decision or perhaps the internment of the Japanese as a race during WW II or some other luminary sanctioned activities by our SUPREME COURT.

    No, my profession and the courts in which we practice don’t always get it right. I suspect you’ll agree your colleagues and profession don’t always get it right either. I don’t condemn your profession for screw-ups by both competent and not so competent practitioners, why do you apparently condemn my system and those who practice in it as a whole?

    OK…I’ve tried my best to reply. If not good enough, then I’m sorry. Hopefully, you’ll ponder some of the things I’ve advanced in these replies and in my other postings and maybe we can all advance to fix both systems – yours AND mine, neither of which are perfect when it comes to advancing patient safety.

    • igloodoc

      Mr. Nash
      I appreciate your attempt at objectivity and opening yourself to other realms of possibility.

      The teaching in medical school and beyond is no longer “if the lawsuit arrives” but “when the lawsuit arrives” say nothing. Risk management and malpractice lawyers advise us to say nothing to the patient or the codefendants. Say nothing to your coworkers. Hide inside the “legal bubble”. I’ll bet you have advised your physician clients the same. Discussion of apologies are therefore moot. It was enough for our state legislature to pass an “I’m sorry” law, so we could apologize without the apology being a presumption of guilt.

      In reference to Whitecoat’s arterial embolus case, your reply is simply why many physicians distrust plaintiff lawyers. You decline to insert yourself prospectively into the equation to harbor us from your profession’s wrath, but after the outcome is known you insert yourself in the process. Your profession “would not presume” to tell WC what to do in the situation referring it back to our profession’s guidelines, or evidence based medicine, or something along these lines. Fair enough. However, WC, and all physicians are up against situations like this every day and there are no rules to cover these situations.Medicine is art as much as science, and you will always be able to find an “expert” who does not like my art, and disagree.
      While I am grateful that you personally would not take action against WC, please forgive me if I am not optimistic about your brethren. If the IOM study shows 98,000 deaths are the result of medical system failures and errors, I would postulate that, given there are an equal or larger number of lawyers in the US, there are 98,000 cases where the legal system fails in a similar manner. Perhaps you can enlighten us on that number. And I would also be interested in the malpractice rates of physicians vs malpractice rates in lawyers. I would argue that while you personally are responsible and would not take the case, there are many more who would. We physicians feel, rightly or wrongly, that we have little or no protection from you. It may be starting to get better, but like the flawed IOM report, it is imprinted in our DNA.

      • http://nashandassociates.com Brian Nash

        I hear you, Doctor, loud and clear. If you’ll permit me to restate your point with what I’ve said to physician clients and experts for over 3 decades (and I hope you will appreciate the difference in the DNA aspect of this). A physician’s training and a lawyer’s training are 180 degrees different. You are in the practice of trying to get to the right answer (via a differential, tests, etc.); lawyers already know the answer – we just need to prove it to the jury. What answer that is, some would argue, depends on which side we’re representing. Doubt you’ve ever read that admission before!

        Now to qualify the “admission” – there are some of us – I can certainly NOT quote any number that has any validity – who don’t just go – Oh, great injury, let’s comb the chart and figure out how we can make a case, contact an expert witness service, pay the fee and away we go. I’m only one guy trying to do what’s right. Trust me (and you probably know a lot better than I), there’s enough REAL malpractice out there to keep me more than busy. That sounds cold, and I don’t mean for it to sound that way.

        Here’s what I concluded after reading, thinking and responding to these many posts: there is a basic distrust among the professions – probably in some respect well-founded; whereas in other respect, no so well-founded. While I don’t know the number of lawyers who think and act like me, I simply can’t be alone.

        I recently had a trial against an ED doctor – she won, I lost – even though she admitted that if the chart was right – the one she created, she did fail to meet the standard of care. After the verdict, in speaking with the jury, they felt that while she may have been wrong, she was so young and inexperienced, she deserved a break. OK…I’ll put aside my commentary on the verdict. I tell you the story because I want to share what occurred afterward. She was a class act. I was feeling anger, frustration, sorrow for my client who just lost – and who knocked on my hotel room door as I was packing to leave – the doctor I had just sued. We had a wonderful conversation, we talked about what we’d just been through, we parted wishing each other well.

        Was this a non-meritorious case? I’ll never believe that – nor did the jury with their pass for “youth” verdict. Did it have to get down and ugly – no, I’m a professional, so is she. I put on my case; her lawyer presented hers – she won; I lost. Morale of the story – even in the heat of a very personal – about as personal as it can get for a doctor – and for me representing someone – we put our DNA biases and prejudices aside and had a meaningful discussion. She was – as I said – pure class; I tried to return in kind.

        Would that have been the response of most people I sue – not by a long shot. I get that too.

        The point that i believe is apropos – even though it can very personal between our two professions, even though it can affect our very lives deeply – there are those out there (hopefully I’m one of them) who is willing to listen, share and discuss. You can hate me and what I do – that’s your right. I can think some healthcare provider should be removed from the ranks of those rendering care (which is the vast minority of those I sue), or I can distrust or have disdain for members of your profession on an individual basis. I do believe, however, that our two professions – as I’ve now said a million times it feels – have a common goal: the good care, protection and safety of those who have entrusted themselves to us in our respective positions.

        That’s the tone I’ve tried to convey throughout this conversation. If you’ve read these posts, you can imagine that as a lawyer, fitting into whatever model you think of when you hear “lawyer” – I wanted to “act like a lawyer” and respond differently. I didn’t or at least tried not to do so. That’s what I’ve been trying to elicit from the medical professionals who have been good enough to leave comments – get it out of your system. You’ve had your shot at a lawyer – great! Now – let’s both get real on this issue of patient safety and think about how this system – mine AND yours, which is broken or at least heavily damaged – and let’s start figuring out what can be done to get the perspective right – your Patient – my Client.

        If I’ve been able to convince any of you or anyone who has read this but not commented that it’s at least worth trying, then – as someone once said – Mission Accomplished.

        Appreciate your comment(s) and the professionalism with which you delivered your message.

        • http://nashandassociates.com Brian Nash

          Sorry about the typo’s – “morale” – hmmm – must be getting bilateral carpal tunnel syndrome from typing all these replies, which is affecting my fingers on the keyboard.

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

        Well put, IglooDoc.

      • Matt

        Igloo, if you won’t look at the actual facts, how do you remove a belief from your DNA?

        Look at your positions – because there are a lot of people with law degrees there should be more malpractice cases? You know that doesn’t make sense. Simply because one has a law degree doesn’t mean they know the first thing about how to try a malpractice case. Or want to. Just because you have a medical degree does that mean you are a neurosurgeon?

        You criticize him for not answering a medical question based on a blog post. Yet when a plaintiff’s lawyer dares say anything about how the treatment should have gone you criticize their lack of background to know such a thing. You know that.

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

      I appreciate your response in trying to answer my questions, but apparently I know what I want to ask in my mind, but am not expressing it appropriately.

      IglooDoc came to the crux of one issue in his comments to you below. No one wants to prospectively suggest how doctors can practice reasonable medicine without worrying about what multimillion dollar lawsuit waits for them around the corner. When put into a doctor’s shoes and having to make a tough decision without the benefit of hindsight, no one has the gonads to make the call. However, once a bad outcome occurs, people line up to criticize how the call was made. You want to know one source of animus between our professions? Look no further.
      And I was right. You still didn’t give a straight answer about what should be done in my hypothetical “inevitable malpractice” case. You tap-danced around the issue and gave us all the reasons you couldn’t make the decision because you didn’t know the outcome. Try giving this case to your experts next time that you consult with them. If they don’t give you a straight answer, they have no business testifying.

      Regarding the second issue, I’m not suggesting that all of the minor “errors” I listed are – or should be – actionable.
      Your initial article stated “There are ways to apologize and have such apologies remain inadmissible in a court of law. Just a hint: confidential, early intervention.”
      My question to you is where do we draw the line? Do you suggest that we disclose every single error and compensate patients for every single error that occurs in medicine?
      If so, you are advocating strict liability and the perfect practice of medicine – which I believe is what some juries have come to expect.
      If not, then what “errors” need to be disclosed and how do we determine whether there really was an “error” if reasonable minds disagree about the existence of an “error”? At what point should your “hint” of “confidential early intervention” take place?

      • Matt

        ” No one wants to prospectively suggest how doctors can practice reasonable medicine without worrying about what multimillion dollar lawsuit waits for them around the corner. ”

        Why do you keep asking other people to solve something that the physician community has complete control over? It’d be like lawyers asking physicians to support a revamp of summary judgment standards.

        You want set standards – you and your colleagues promulgate them. You’re the only one with the expertise. Yet you won’t do that, because you’d apparently prefer to blame everyone else for what you’re uniquely qualified to do. That makes little sense.

      • Matt

        “My question to you is where do we draw the line? Do you suggest that we disclose every single error and compensate patients for every single error that occurs in medicine?
        If so, you are advocating strict liability and the perfect practice of medicine – which I believe is what some juries have come to expect.”

        This is an odd post. Many physicians have advocated for no-fault. What do you think no-fault is? Compensation for every error.

        And if you think some juries have come to expect perfect medicine, that would be an odd belief.

        • http://nashandassociates.com Brian Nash

          Perfect medicine? Come on, White Coat. I’ve now also told you and this forum repeatedly some statistics you apparently care to ignore. Do you suspect that there may have been a “bad outcome” in the hundreds of malpractice cases I DEFENDED in my career? What do you think we were doing in that courtroom? Talking and litigating a GOOD outcome? I told you the stats in D.C. -90% for the DEFENSE. Juries don’t expect perfect outcomes – that’s just a myth that has no basis in reality. Why do people call me for possible representation? Good outcome again? Me thinks NOT. Why do I reject – in the final analysis – about 95 – 98% of these? Because I DO practice what I preach – contrary to one “mystified” doctor who recently posted a comment I have yet to get to – but I will! You want a perfect system or at least one that’s a heck of a lot better than we do now so that these “inevitable malpractice” lawsuits don’t destroy your profession and the health care system. So – I’ll throw it in this reply as well. Tell all of us what you are advocating. No – so you don’t think I’ve side-stepped the issue or whatever other interesting term you want to use – I am NOT advocating a no-fault, every injury gets compensated. I’ve tried to have at least a meaningful dialogue with TEXMD on proposals for change both to the tort system and the peer review process. I’m happy to do the same with you. I AM open-minded on change – I posted exactly why. It’s in here if you want to read it – I’ve written on now several times.

      • http://nashandassociates.com Brian Nash

        White Coat – you and I are having a classic “failure to communicate.” What is not clear about my reply? YOU are the doctor – you deal with matters prospectively – which I have repeatedly said I respect, appreciate and do my best to take into account when I review a case. I am a lawyer – I deal with the medical profession’s after-results. They don’t call me because the care was wonderful and all is well. I deal with bad outcomes. I then do my best to determine, through people who are trained in YOUR specialty, if that injuries were caused by breaches in acceptable medical standards of care.

        What are standards of care? I suspect – since you do medical negligence review and testifying – that you fully know what is meant by this term. You also know that we enter a world of gray – plaintiff experts say – that was substandard care: shockingly – defense experts say otherwise. Let’s not be so naive to claim – in a public forum, that ALL defense experts are spotless and blameless when it comes to rendering opinions that are bogus at best just to come to the aid of a fellow physician. Note please – i said ALL. Of course, there are numerous times that experts can fairly disagree on what is and what is not substandard care. Is that your point? Are you saying that in those cases where there is a reasonable basis to disagree NO claim should be brought? If you are – just say it so I don’t have to try to figure out what you’re saying and why you now accuse me of “tap dancing around” the issue. What don’t you get about when a lawyer looks at a case? Of course it’s after the fact – you know some other way this happens? What is it that most sticks in your craw – any case in which tough calls are made with the best of intentions, the efforts you describe in your “inevitable malpractice” scenario, a plan is executed in the best available means and you may still “inevitably” get sued? Is that it? I’ve told you what I would do – do you expect me to speak to what ALL lawyers would do? Do you really expect an answer to that type of question? I don’t have a clue what John or Mary Doe, Esquire would do. You apparently do – they’ll sue you because of a bad outcome – is that it?

        What ARE you saying should be done to replace this “inevitable malpractice” system? You state the problem, you offer no solution that I can see. TXMD at least put a proposal out there. What’s yours. No-fault? Define it. What’s does this mean – some universal/national compensation system for ALL bad outcomes regardless of fault?! Is that what you want? If not, then tell ALL of us what it is you think fixes the current system. Are you asking for arbitration – binding? appealable? Who makes up the panel? We all get the problem – at least most of us get most of the issues? Great – now let’s move on from there. You obviously have given thought to this. You obviously are very intelligent – so share – tell us where we begin to fix it.

        On your second issue disclosure, you say: “My question to you is where do we draw the line? Do you suggest that we disclose every single error and compensate patients for every single error that occurs in medicine?
        If so, you are advocating strict liability and the perfect practice of medicine – which I believe is what some juries have come to expect.
        If not, then what “errors” need to be disclosed and how do we determine whether there really was an “error” if reasonable minds disagree about the existence of an “error”? At what point should your “hint” of “confidential early intervention” take place?

        I haven’t gone back to count how many times I have said in these posts (something to the effect without quoting myself verbatim) – they just want to know what happened. What is so unclear about this? Have I ever suggested (I don’t think so, but if I did or you infer that I did) that every bad outcome calls for an “apology” ? I am NOT saying this. What would you be apologizing for if you did nothing wrong? Does that translate for you into saying “nothing at all”? If so, that’s where you and I have an issue. Explanations are sometimes warranted. You were there, you saw what happened – explain it as best you can. If you do and they go to some lawyer who sues you (let’s say in your “inevitable malpractice” scenario), that’s where you believe (and I personally wouldn’t disagree with you on this one – I’ve said that now several times) that the system has failed the medical profession. So – i ask you again: what are YOU proposing to fix this?

        Talk about tap dancing! Seems like you your tap shoes out and ready to go. Fine – you’ve identified the problem with these kind of clinical situations – I am – for the umpteenth time – agreed with you. So…share the fix – we get the problem.

        Just so you don’t accuse me again of ignoring your challenge, your question, the solution – whatever it is – I’ll do this – I’ll print it out and see what it is I keep missing. Be back…got to polish my dance shoes apparently in the meantime.

        • http://nashandassociates.com Brian Nash

          OH…OK..(I hate computer screens b/c I think I’m done replying and then I see you raised another issue – “where do I draw the line?” I don’t have any magic formula for that. Doesn’t a skilled, caring doctor have a clue when something has gone wrong (yes, outcome) that it would be helpful to explain what it is that happened and why it happened. That doesn’t call for beating your chest with a mea culpa in each and every instance – it just means an explanation. If it’s a screw-up by you or a member of the team – what’s wrong with at least admitting that to risk management or the insurance claims person for starters. I get the problem with admissions of fault and admissions against interest. You don’t want to do that? Fine – at least don’t waste everyone’s time and money by trying to defend bad care when risk management comes around trying to assess if this is a clam that needs to be settled or defended. If it’s gray, OK – if you think the conduct was appropriate, then I guess that’s your answer. Are you really asking me how I would propose you and the medical profession should handle every conceivable clinical situation and adverse outcome? I suspect not, but if you are – I’m not capable of doing that. There’s my admission for the day! What i do suggest is that the old line: “well the operation went really well but the patient died” isn’t sufficient. Why did they die? Don’t know? I get that too. Autopsy? No autopsy? No answer – I’m also not so naive that the etiology for every bad outcome is discernible. Sometimes – since I do see families who want to know the “why” part – many times – we can’t give them an answer – from our reviewers – why. We at least try to say we’ve looked at the care and we think it was good care with just a bad outcome – and we DECLINE the case. No – not all lawyers apparently. One firm doing what it believes it. Are we back to a system error/failure? if so…same question you are now tired of hearing – tell me/us how to fix it.

  • Greg

    Just want to say thanks to Mr. Nash for opening up the dialogue and for responding to comments…adversarial as many might have been. I often think of the rift between doctors and lawyers regarding malpractice as similar to the ongoing rift between Israelis and Palestinians – each side is not exactly wrong, but not exactly right, either – and only through open dialogue can any hope for the status quo exist. Thanks!

    • Solomd

      I second that. Doctors and lawyers are like oil and water, but it would be nice if there were more lawyers with Mr. Nash’s perspective and conduct.

      • Matt

        Doctors and lawyers really aren’t like oil and water, except on this issue. And really, we’re talking about a pretty small subset of lawyers. Most plaintiff’s (and defense) malpractice lawyers are generally very intelligent, very thoughtful people. Obviously the other party in any case isn’t going to like the opposing lawyer, but the tendency of physicians to demonize all of them is really unnecessary.

        Both groups have far more in common than they have differences. Particularly from a business standpoint.

  • http://nashandassociates.com Brian Nash

    Greg
    Appreciate the post and had to smile when I saw your comparison to the Israeli – Palestinian “rift” – I had a similar thought myself when I was in the middle of posting yet another reply. Tell you what I’ve enjoyed, even though I’ve had this same “discussion” with a number of physicians, PA’s, nurses, etc. – it’s been fascinating to see the comments, passion, thoughts of people I don’t know personally. Agree – if we don’ t start talking to each other, where is this going to end? No place good – for either side of the “aisle.” So – again, thanks for the kind words and your involvement in this “conversation.”

  • ElaineM

    Wow, this discussion has been absolutely mesmerizing. Thank you Mr. Nash, the docs, and other posters for all the food for thought.

    • http://nashandassociates.com Brian Nash

      Thanks, ElaineM – now I don’t feel my efforts (other those of the doctors and other posters) is in vain. I assuredly don’t have all the answers or even a small fraction of them. These are very complicated issues that – while they obviously arouse a lot of passion and a few other emotions – need to be aired. Comments like yours in the midst of this sometimes “heated” but pleasantly cordial discussion between lawyers and doctors are most welcome. So – thanks again.

  • Matt

    TXMD, I don’t have a dim view of physicians at all. I don’t much care for some of their politics Nd their vitriol directed at lawyers gets old, but that doesn’t mean I don’t respect the profession. If you were to propose that only lawyers sit on legal malpractice juries I would say that’s a bad idea a well. Or contractors on defective building cases.

    Personally undone believe lawsuits change what you do much at all. Physicians routinely act as of the jury system fails because it doesn’t “improve” medicine. Of course it doesn’t. It’s not designed to. Only medicine can improve itself.

    As to “experts” being better able to dcide the value of a case, I’m not sure how you reach that conclusion. As if additional degrees make you better able to understand what someone’s lost quality of life is. You also seem to say that people without these degrees can’t be trusted to be rational, an are driven purely by emotion. There’s literally no evidence for that on a regular basis, and with physicians winning far more than they lose at trial the evidence points the other way. Somehow these uncredentialed saps are able to see through devastating injuries and tricky plaintiff lawyers to agree with the physician and his attorney as to the facts.

    With regard to expert witness cost, your panel doesn’t make it cheaper, it just shifts the cost. These people will still want to be paid, but now the taxpayer picks up the tab. Good for insurers and plaintif lawyers I guess, not so good for us taxpayers.

    Your no fault proposal has some merit if I understand it correctly, but it’s not me you have to convince. It’s your insurer. You have to go to them and say “Here’s my proposal to pay more people faster with fewer hurdles to filing or proving a claim.”. Think they want that?

    • Matt

      Excuse the spelling errors. Typing on Iphone is not the best for catching those.

    • TXMD

      Dear Matt,

      I am not writing in this forum with ideas to save money but with proposals to improve our current system. Agree with me that our shared goal is to improve the quality of care and minimize errors that harm people. I hope you will also agree with me that it is impossible to eliminate all errors in medicine at least as long as fallible humans are involved in the healthcare system. WHEN errors occur, the injured party deserves to be compensated with an eye to making them as whole as they were before the injury.

      My proposals are two fold. One is an objective panel to determine if a compensable injury has occurred and, if so, to quickly award compensation according to published criteria. The public can set the compensation rates. As a physician I don’t even want to be involved in that determination. Let the economists or lawyers determine that if they want. I would just demand that the panel act in a fair and proportionate way to the injury. Injured patients do not have to give up a right to sue. If they wish to bypass or reject the panel’s findings they could engage in a traditional lawsuit just like in the vaccine injury compensation program. This panel does not need to consist of any physicians. It could be all lay people or even lawyers as far as I am concerned. It just has to unbiased and objective.

      The second component is peer review to conduct investigations, assign fault, and recommend sanctions. Really peer review is the ONLY answer and as a society we need to promote it and strengthen it. If you disagree with the value of peer review to police the medical profession then would you advocate we abolish it? If so, what would you replace it with?

      The only way to accomplish my proposed changes will be through changes in our nation’s laws governing these issues. That’s why I am writing here. I can’t accomplish any meaningful change on my own nor can my malpractice insurance company. “We the people” can make changes but we must agree that change is needed, propose changes, and then decide. If any readers disagree with my proposals, then please make an alternative proposal or state that you think our current system is not in need of change.

      • http://nashandassociates.com Brian Nash

        Ok…I thought I was taking a “pause” – but since there have been 7 more comments posted since I tried this and this is one of the latest – I’m back in it to respond to TXMD’s first point. Second – for later. (I realize that there’s a follow-up by White Coat [that IglooDoc thinks is “well put”) but time constraints of today mean a later answer – if I can get it “right” this time.

        TEXMD – you say: “One is an objective panel to determine if a compensable injury has occurred and, if so, to quickly award compensation according to published criteria. The public can set the compensation rates.”

        My issue is with the word “objective” – who constitutes this “objective” panel? How many of them are there? Any lawyer/law or lay representative? If all or mainly medical members, where are they from geographically? Who picks this panel? Is their finding binding with no right of appeal? If an appeal, is it to a jury with a presumption of “correctness”? Is it strictly an administrative appeal, which means governed by the same legal principles applicable to other administrative findings (e.g. Social Security Administration – ALJ determinations). What are the protections for the claimant against a biased panel? Is the claimant represented? What rules of evidence apply? Will experts be required? Who bears the cost of the proceeding? What are the due process protections? is there evidence presented or is it based solely on record review? Discovery? If so, to what extent?

        These are some (really many) of the issues that need to be fleshed-out for this to be viable on non-viable suggestion/proposal.

        BTW – Agree on “we the people” concept. Since none of us is apparently named Obama, or any of the other political leaders who can propose real legislation, this grass-roots discussion is about all that can happen, but at least it IS a discussion. Who knows how and if it gets grabbed and someone runs with it.

        If you have some time or need clarification on any of my legal/procedural questions, let me know; I’ll do my best to clarify.

        • Matt

          TX, I don’t have anything to add to Brian’s comments on “objective”. And I think our founding father’s recognized the objectiveness of jury trials when we first went to war for being denied them, then enshrined them in the Constitution.

          If I proposed that a panel of architects decide whether your architect designed your house in a defective manner, would you find that panel “objective”? Particularly if they all shared a similar insurer?

          ” I would just demand that the panel act in a fair and proportionate way to the injury.”

          That’s what the jury already does. Why do we need another jury to do that? And why do we need a “schedule” when we have 12 folks not interested in the outcome of the case hearing all the evidence and making that determination? Do you have some evidence that they’re consistently and regularly getting it wrong?

        • TXMD

          Thanks for your constructive input Mr. Nash.

          From the perspective of the panel, I would propose that it be all lay people and that specifically none be a physician or connected to the healthcare field. The panel could even be all lawyers if you want as I personally feel that, if unbiased and with no conflicts of interest, lawyers are highly educated, certainly understand the concept of malpractice and injury as well as causation links, and can render objective and fair rulings about injury and appropriate compensation. The panel could be appointed by the state governors or by national government or congress. The panel could consult with (unbiased) medical experts, of the panel’s choice, when they feel the necessity for medical expertise input. The panel findings should be public and not binding and certainly claimants should be able to request a panel member recuse him or herself if they feel he or she may be biased.

          Evidence should be records and testimony….really anything the panel wants to help it come to a determination. These broad rights to investigate should be backed up by the law and adequate funding to facilitate an investigation should be available. Claimants should have the RIGHT to legal counsel throughout the proceedings before the panel. Financially disadvantaged should be provided with the equivalent of a public defender as per the criminal justice system. Legal counsel should be paid by the system…until the claimant decides to reject or bypass the panel.

          I think the injured person should have a right to appeal but I really must defer to those of you in the legal profession to help design an appropriate fair appeal process. This appeal mechanism should include the right to file a traditional malpractice suit.

          The cost of these proceeding should be funded through the current malpractice insurance payments from hospital and doctors-it’s got to be in the billions of dollars being paid into this system. This should not necessarily increase malpractice insurance “costs” to the system and potentially could even decrease them. If it does increase the costs then just raise the malpractice TAX on the hospitals and doctors etc. (That may sound like physician heresy but really all malpractice insurance costs come from the consumer anyway.) Any financial awards would come out of this pot of money whether from the panel awarding the money or the claimant winning a traditional malpractice lawsuit.

          • Matt

            That is interesting. Now there’s DEFINITELY no way the insurers let this get passed. But I like where you’re going with it.

      • Matt

        Also, if you want to do “peer review” within your own profession, by all means proceed. There is nothing stopping you from doing that. Every profession does.

        You can claim this or that case, but without knowing all the facts of that case it’s hard to say how useful it is. What we do know is that for the most part peer review occurs all over the country every day without litigation. Is it always perfect? Of course not. Nothing involving humans ever is. But if you want to strengthen it as a profession, by all means do so.

        • TXMD

          I do want to strengthen it as a profession but there must be more legal protection for better medical peer review to occur. Legal protection can be provided by the legislature. Personally I have done medical peer review consultant for the Texas Medical Board for years and that’s why I think peer review is so critical to protect the public. The Board tells me that I can be sued, of course, for my opinions but that the State will defend me (indemnify me too I hope) me as long as I have acted in good faith.

          • Matt

            So far, your position that there is not sufficient legal protection relies on just a few cases, where it’s not clear you know all the facts. In the one you mention, from a brief review, it appears some competitors made up the peer review board and were working to get someone out of business.

            Before we go granting immunity, and having taxpayers indemnify you, don’t you think we should have a better grasp of the actual risk you face?

          • http://nashandassociates.com Brian Nash

            TXMD – I’m going to ponder your proposal and get back to you on that in some detail. I’ll share w. you the mandatory arbitration panel experience we had (and allegedly still have in MD – either party has a full right to waive unilaterally) in MD. Not a pretty story. That’s for tomorrow.

            One thing you said (Doctor) TXMD that caught my attention immediately, however – “The Board tells me I can be sued for my opinions but that the State will defend ((indemnify me too I hope) me as long as I acted in good faith.”

            Are you sure that’s correct? You do not have immunity in Texas (which is where I believe you are from or I don’t understand acronyms)? That’s insane! Not you – that policy!

            I’ve appeared before both licensing boards in DC and MD on a number of occasions, less in D.C. MD’s Board of Medicine, although not perfect by any means, has been a very strong protector of the public. They possess emergency powers (imminent threat to public safety, etc), hold full evidentiary hearings, a Resolution Conference, with appeal to the full Board of Medicine and limited but still available appeal to the Circuit Court (trial court) and thereafter to the appellate courts of MD. While I sometimes wonder about the so-called prosecutor associated with the process (way too cozy with the Board), for the most part, they do an admirable job and protect our public. I am dumbfounded that in Texas such a Board member can be exposed to suit.

            As indicated, there are a number of points I want to discuss re your comprehensive alternative plan. It raises a number of issues in my mind I would love to discuss with you. Matt – don’t stroke – I’m, not contacting my legislators yet or sending them a copy of this as a blueprint to replace the jury system. No harm discussing. Tell you what I am sick of, Matt (not sure what your experience is in this regard) – insurers and self-insurers running up the expenses, delaying because of (a) year-end-profit determinations (2) ridiculous reserving on claims – using time and delay as a catch-up “reserve adjustment” mechanism; (3) defense counsel running up time and thus income doing totally useless depositions, motions, etc; (4) posturing at mediation sessions when there are multiple defendants with different insurers (5) the list goes on and on. Total waste of money for the net recovery to the client – total waste of valuable time to resolve the case for ALL concerned. I’m at least interested in hearing the full breath of an alternative to what’s at play right now. There simply has to be enough experience in the various states to analyze and critique any alternative system. Why do I also suspect that the insurance industry, which cries “poor mouth” to raise doctor’s rates and then lobbies for caps ad nauseam would NEVER participate in and fight to the death any proposal that took them out of play. I really wish we could get a valid – and i mean VALID – assessment of how many dollars are wasted by stupid, delaying tactics, poor reserving practices, waste by defense counsel (another example being having to travel to take the deposition of an expert whom they known and used for 10 -15 years. If that waste (and I saw it from the defense side and now suffer it on the plaintiff side) and the money associated with it could be put back into the “pot” for lowering rates for the doctors/institutions – why – WHY – do I suspect we would at least lower the din of a “malpractice crisis.”

            (Doctor) TXMD – thanks again for your comments and insights as well. I for one (Matt may leave my side on this – he’s been a great ally so far in my otherwise one-man battle with the medical profession) am happy to discuss, analyze alternatives. If you think your profession is not happy with the current system – are you getting a sense of my disgust?!

            P.S – i had one defense lawyer tell a mediator that he/she didn’t want to settle the case “too quickly” because there was a lot of money to be made by doing more depositions and stringing the case out some more. Not made up – flat out reality law! I told this “lawyer” – via the mediator, who was a judge – “no problem, the demand increased $50K a day. Guess what case settled THAT DAY?!!! That’s the kind of nonsense that goes on in our world – thought you and the other medical folks might like to know.

            I don’t want to lose sight of the concept we started out with – patient safety – but this fork in the discussion is worth the travel. At least I think so.

          • TXMD

            The problem with medical peer review (in my state) is that it is mostly LOCAL HOSPITAL based. I think that there might be That is to say each hospital writes its own bylaws and rules about peer review and the process. Only local hospital medical staff members serve on the medical executive and peer review committees. That means that that any peer review committee is uniquely vulnerable to an accusation of anticompetitive behavior. Of course there is no doubt in my mind that such occurs. However those of us who participate in peer review are not so trusting as to not cast a jaundiced eye on a physician criticizing an economic competitor. However recurrent complaints by non competitors is a worrisome issue.

            I think peer review needs to be restructured so that there is no possibility of a conflict of interest in the peer review process. Peer review should be disconnected from hospital staff membership and the process standardized in each state.

      • Matt

        ” I can’t accomplish any meaningful change on my own nor can my malpractice insurance company.”

        Nonsense. Your insurance company can and does. Those states that have had damage caps (with no discernible effect on care, costs, or access I might add) got them because of the very effective lobbying of your insurer and their cohorts. Physicians are generally the public face, but the insurers draft the legislation and fund the tort reform groups (along with the tobacco industry).

        Your insurer very much knows how to make legislation happen. However, its real goal, no exposure at all to the public, remains prevented by our Constitution.

        • TXMD

          I think you overestimate the power of the malpractice insurance companies. If you look at my proposal, you will realize that it would end the malpractice insurance industry. I don’t think any physicians will complain about that. They won’t care if their malpractice premium dollars goes to a malpractice insurance company or a compensation fund.

          • Matt

            How would it end that industry? If Obamacare has taught us anything, it’s the power of the insurance industry to profit in any situation.

            A government managed fund is no more likely to be cheaper than a private insurer. Especially if it’s paying more claims faster. You don’t think physicians will complain about that?

            I really don’t see how your plan works outside the realm of single payer, even if we could get around the 7th Amendment.

          • TXMD

            If the people will it, then there is no legal barrier to reform or change. For example, the Texas State Constitution has been amended 467 times according to Wikipedia. We even have a sunset provision in this state and I think the Department of Insurance is up for review this legislative cycle. However I don’t think this type of reform is probably practical on a state level. It probably would have to be national.

          • Matt

            We are talking about the US Constitution and one of the original Bill of Rights. Not a State Constitution.

          • http://Www.twitter.com/alicearobertson Alice

            TXMD is a romantic….he used the model of vaccine injury compensation where the last twenty years have shown us shots increased, so the funding increased, then the claims increased and the compensation increased to about 2 billion (about a hundred fold)…and it didn’t even come near helping the truly injured. But it sure absolved doctors at the expense of others, and a few lawyers made some money. The irony is the shots are safer, claims went up, and doctors give shots with no worry. Patients lose under this model he gave that helpsdoctors, but not patients.

  • http://nashandassociates.com Brian Nash

    Just taking a “pause” in the action this morning so I can attend to some client needs (finally!).

    I want to share what I posted on Twitter this am for all of you who don’t “tweet”
    1. So appreciative to Dr. Kevin Pho for this opportunity!
    2. Awed, amazed and endless thanks to all of YOU, who have made me re-think some/many issues, shared some incredible thoughts, and feelings with passion and professionalism. As I said on my Twitter post – YOU have taught ME so much, for which I am most grateful.
    3. I am well aware I need to respond to some lingering issues from this post- e.g. “what I said to medical clients re “silence is golden” – the always considered thoughts of TXMD and Matt (apparently my only lawyer-back-up w the where-with-all to add to the discussion from “our side”) – reflections on well understood reactions of a mother (Alice) who loves her suffering daughter and is not particularly in love with EITHER the medical or legal community – White Coat, Igloodoc, Dr. Donnell, Dr. Kirsch, Paul and others, who have put me to the challenge of opening my eyes even more to the angst/anger lawyers cause the medical profession over issues they live with “prospectively” day-in/day-out.
    4 I also appreciate the calming (yet still informative) voices of those who ratcheted down the discussion between the the oil and water/Israeli-Palestinian crowd (one of which I’m a member) – pj, solomd – to name just a few.

    5. To those I may have inadvertently failed to mention by name – my apologies – your contributions are not over-looked (it’s just getting more difficult to follow the “thread” with the 80 plus comments) – You’ve all added to the conversation so much.

    We’ve been dealing with very deep-seated emotions, biases, prejudices – and very difficult issues.

    I’ll be back to respond to open issues because as I said – you took the time to share your thoughts, criticisms and issues with me. I owe you the courtesy of a meaningful reply, which I assure you I will do.

    • pj

      Mr. Nash, thanks again for “opening up” this issue.

      To all those who have had bad outcomes, I praise you for courageously sharing your experiences, I truly hope that 2011 will be your best year yet and apologize on behalf of any of my colleagues who rendered substandard care.

      As a physician who’s never been sued- perhaps that’s why I bring no animosity to this dialogue- I like to see myself as open minded, but as well informed as possible. These opportunities where attorneys, health care providers and patients come together are frankly, vastly more informative than only talking/complaining amongst ourselves. Not trying to blow my own horn there- As a rural general practitioner and occupational medicine Doc, I have much less “malpractice risk” then an OB GYN in Miami.

      Mr. Nash, I believe you implied Matt is an attorney. I didn’t get that impression.

      Matt, would you please let us know, for “full disclosure” (and it also puts posts in context), what your education/profession are/is? Thanks.

  • http://nashandassociates.com Brian Nash

    Special Mention Thanks to Kristina for getting the “discussion” going – seems like a while ago – and to my RN FB friend, Kaye Miller, RN – for bringing a nursing perspective to the posted comments.
    No, Nerdy but not a clinician, anon, Muddy Waters and ElaineM – I didn’t forget you or your contributions. I just couldn’t initially find your “names” so I got the spelling right….Thanks!

  • http://Www.twitter.com/alicearobertson Alice

    I was reading a book last spring titled, Blink…about split second judgement calls. They discuss the apology method that is worth the risk…then a malpractice attorney shares that no one sues a doctor they love. If a client believes doctor B caused damage, but the lawyer discovers the damage was done by doctor A sometimes a client will say to just forget it because they love Dr. A and no way will they sue someone they love.

    Does medical school teach the Warren Buffett life lesson? After his wife died the kids quit coming around. He found out they felt he was difficult to be around. He was advised that to be loved….one needs to be lovable! It works most of the time. My doctor said he does not worry about a lawsuit. He is so focused on patient care he loves his job, and most of his patients…and it shows…they love him back. I seriously doubt he will ever be sued.

  • imdoc

    Mr Nash, I am mystified by the account you gave regarding your legal malpractice incident:
    “i called her immediately after the dismissal ruling, told her I screwed up, apologized for what I had done and told her she was always free to contact a lawyer and make a claim against me ”

    How is this practicing what you preach? I keep hearing about need for compensation. Inviting a lay person to try to sue a lawyer is not an attractive prospect. Why not just make a monetary offer if you have erred? I would bet she would have taken it. Last month, I backed into a parked car. I left a note, then called the insurance company and admitted fault. They paid for his damages and it was over.
    Here is what did NOT happen:
    1. A peer-review of my driving by other motorists
    2. Cancellation of my insurance
    3. Entry into the Bad Drivers Data Bank
    4. Mandate of disclosure to every state in which I have had a driver’s license
    5. Threat of losing Driver’s license
    6. Listing on websites warning others not to ride with me in my car

    Certainly auto travel is dangerous – more so than air travel, yet the regulations, standards, and expectations for pilots are more rigorous. I assert this is due to the fact that there are relatively few pilots and many auto drivers. As a society we (irrationally) ACCEPT the inherent risk of auto travel because of frequency and familiarity. As most of us are not pilots or doctors, it is human nature to mistrust and place higher expectations on situations with which we are less familiar and sense more vulnerability.
    Curiously, both you and Matt have asserted the “fox in the henhouse” argument regarding expert juries. Is the corollary then that in personal injury cases involving vehicles, jurors who are licensed drivers have an impossible conflict of interest?

    • Matt

      Maybe I just missed it, but I’m not sure what you’re getting at with your auto example. Can you perhaps explain in a different way?

      • http://nashandassociates.com Brian Nash

        Matt

        You and I crossed paths on this one. I think I “get it” – although I suspect most of the medical folks will disagree that I get “anything.” Check out my reply to approved and posted at 2:38 pm (below).

    • http://nashandassociates.com Brian Nash

      What are you “mystified” about, imdoc? You say: “How is this practicing what you preach? I keep hearing about need for compensation. Inviting a lay person to try to sue a lawyer is not an attractive prospect. Why not just make a monetary offer if you have erred? I would bet she would have taken it. Last month, I backed into a parked car. I left a note, then called the insurance company and admitted fault. They paid for his damages and it was over.”

      What system of compensation are you talking about? I’m not advocating – as I said over and over again – all bad outcomes deserve “compensation.” Is that what you’ve taken from all of these 100 plus posts? Not by me – I will stand by what I’ve been saying for hours now.

      So let’s take your car accident scenario: you did what? you left a note?! Oh, so you gave NOTICE of what you did. So did I. Then what happened? You turned it over to your insurance company as a POTENTIAL claim. So did I. I suspect you also said something like – “i’m sorry in the note.” I said it personally. I must have missed it but I didn’t see where you left a check for the damage you caused – you turned it over for someone to pay on your behalf IF the person filed a claim for property damage? Hmmmm….I didn’t hand-over a check either – just admitted my fault, notified my insurer of a potential claim – for which I would not have tried to dream up some lame excuse – and she WOULD have been compensated IF she elected to make a claim.Sounds pretty much to me that you and I handled both of our situations pretty much the same way!

      You refer to Matt and I using the “fox in the hen house” analogy – not sure I did, but I’ll accept I could have. I ask if you have not read my repeated references to MY belief that the peer review panels/board in DC and MD, the two jurisdictions in which I practice – have done a very good job for the most part with advancing patient safety. If you didn’t read it elsewhere – then I’ve just said it again.

      My concern is in-hospital peer review. Read the comments by TXMD – who does peer review. That doctor recognizes that matters such as competition can lead to unbiased, inappropriate peer review. Are you suggesting that you have no concern/issue when – if you have ever been called upon to do so – you see substandard care and it’s swept under the rug because of motives such as – well, I don’t want to cause trouble for another colleague, or there but for the grace of God go I, or this doctor will sue us if we take disciplinary action – or any other wrong motive for failure to take action. Are you really suggesting this doesn’t happen at all? Seems your colleagues might take issue with your perspective – forget Matt and me – the lawyers.

      I totally agree that for reasons pre-dating you and me and growing worse (it seems) by the day, there is an inherent mistrust between our two professions. Why do you think I’m taking the time to engage in this discussion? Maybe, just maybe, you’ll at least start believing that there really are lawyers of some experience in this area that affects your profession, who are willing to attempt a dialogue between the two professions to see if there is some common ground between us or at least some open-mindedness to identify what it is that leads to the distrust, anger – whatever. Does anyone think the Israeli-Palestinian conflict (or whatever word it is you want to use to describe that situation) will just work itself out? I’ll rely on history for that answer. Do I think that by the time the last keystroke is struck in this forum that we will have figured out all the problems with your system and mine? Unfortunately not. I was and am willing to maybe give you, the medical profession, some insight into what ONE lawyer, who authored this post, thinks so that maybe – just maybe – we can both step back and see what MIGHT be done to get to a common cause – which is what this is really all about – patient safety! If you don’t think our current legal system promotes it, I respect your opinion. I just happen to disagree with it – as I do Dr. Kevin Pho’s, who agrees with you and many others. At least Dr. Pho was willing to post my counter-post so that this discussion could take place. That’s commendable – in my opinion.

      In your jury of drivers “corollary” – I would have a problem if the jury consisted of some former girlfriend who hated the driver-defendant because she was a scorned former lover, or a neighbor who hates my client’s guys over a property line dispute or any other person who had a reason to be biased or prejudiced so as to unjustly reach a verdict not based on the facts in the case. Know this – I’ve had doctors on my juries – I like them better than most lawyers sitting on juries – another story for another day. I made the same argument to a judge one day who called us to the bench in a malpractice case i was defending years ago. He whispered, “Are you all aware that there’s a DOCTOR in the jury panel? Guess we need to get rid of him for cause. You all agree – don’t you?” I told him I had no problem getting rid of the doctor if we could get rid of all the people in the jury pool who were at some time in their life a PATIENT. He didn’t think too highly of my retort – but the DOCTOR was not struck for cause.

      So – I am NOT saying I mistrust all physicians to sit in judgment of their peers. I just want to know what he/she brings to the table in terms of competency, bias, prejudice – nothing more than I require of lay people when they are chosen for a jury.

    • http://Www.twitter.com/alicearobertson Alice

      For those reading who are lost in the sea of words from experts on both sides here….but feel too intimidated to jump in and ask the commonsense questions that are begging to be asked….here goes…..and for those who did not get the moral of the story here…….Mr. Nash apologized and was willing to accept the consequences….why is it doctor’s are so defensive and dramatic about this?  They act as though their life is over if they confess to an error (knowing that stats show almost half of all malpractice suits are dismissed,  and only one out of eight injured people sue.  The odds are quite good that a doctor will not be sued because like drunk drivers it’s the repeat offenders who are the real problem.  Real menaces to society).   And that is bothersome now….. it will be with torte reform, and will continue under no fault.  There may be lesser degrees of it in certain situations, but I asked this question several months ago and the doctor’s responses are still posted.  Basically, the honest ones said…..hell no……I am not ruining my career and ratting myself out.   The career was utmost….not sure how no fault will deal with egotism.  The argument for no fault auto insurance isn’t persuasive enough to make it move to a national level and that is usually just a car you  are dealing with….this is people’s lives and health on a no fault plan?  Would no fault work like an auto insurance claim with an adjuster…or a type of health court (on the surface a health court beats the deck stacked peer review) doctors have proven themselves very poor at policing their own, far less blaming greedy doctors from the past or who play in their backyard right now…they lack objectivity when it comes to error…as Dr. Jerome Groopman writes in his book, How Doctor’s Think…..every doctor has made errors and they are usually overcome or hidden…..this makes it very hard for them to nail a colleague because these colleagues often know who did what and what was done to make sure the patient does not find out…..yes, it is like the pot calling the kettle black when it comes to doctor’s ability to snitch).   And, yet, we blame lawyers…we claim no fault knocks the lawyer’s fees down, but who is testifying for clients of the lawyers?  Other doctors you probably do not mingle with.   And why is that?  Altruism?  Hmmmm….?  Money?  The same accusation you throw at lawyers is in your own courtyard.

      Yes….let’s limit settlements…knock lawyers down to size….keep doctor’s insurance premiums down so they can make more money with less fear…while lawyers and injured patient’s get less money and less ability to sue.  Wow…where can I sign up for this?  Oh wait a minute…..I have a daughter with a much more extensive pre existing condition from doctor error.  He is practicing daily…has not apologized….I owe money to the hospital…I await loads more testing and possible operations…or radiation from his negligence…..and the peers involved in the review never had to face us or hear me cry…..the doctor lied….and I have not sued.   Now tell me again how poorly the system treats doctors?  Where’s my violin………I am sorry…..but sometimes it seems doctors put their fingers in their ear’s while we talk….and they shake their head back-and-forth saying, “I can’t hear you,” while we plead.  Yes, the system doesn’t always work, but please make sure your suggestions put the patient first….I think I feel another fairy tale is in order:)  

  • http://nashandassociates.com Brian Nash

    TXMD – Apparently no more html capability to reply to chain you, Matt and I have created. Hope you see this!

    If I reading correctly what you wrote, you do NOT have a state licensing board that has peer review authority and disciplinary powers over doctors licensed in your state? ALL peer review is hospital-based? Now I see what you’re up against in terms of retaliatory lawsuits. OK…now I’m in total agreement with a national program of peer review – at least in this regard. Hey, it’s a start. That strikes me as a system fraught with issues and problems.

    Are there any other doctors out there reading these posts or participating in the forum,who practice in a state(s) where the same is true? Love to hear from you if that’s the case.

    On your proposals/thoughts: Been thinking about them. I must say, I wonder how many of your colleagues (even those posting on this blog site) would agree that this independent panel could consist totally of appointed lawyers and/or lay folks. I was expecting you to say that the panels would be exclusively constituted with medical specialists. You caught me off guard there – I admit.

    Non-binding arbitration: we tried that in MD. It really became – more often than not – a discovery exercise. You got to hear the other side’s case and then used that information to retool/refocus your case for the trial court. Appeals were de novo to the trial court – but the jury was told about the panel’s finding and told it was presumed to be correct, but was not binding. The tale of how this became abused is only matched by how the tax code has become abused. There are some pretty clever (that’s one word, I guess) people out there that made the system dysfunctional. It still exists but now it’s just a condition precedent (jurisdictionally) to get to the trial court. A certificate of qualified expert is required. No certificate, no case – dismissal. The arbitration proceeding is subject to waiver by either side provided a CQE (certificate of qualified expert). What this step does do, however, is get rid of cases that have no expert support. Yes, we can discuss forever the issue of “expert support.” For another day perhaps.

    If more than 1% of cases remain in arbitration any more (i.e. through decision), I’d be amazed. You go there, file your CQE, and head to the trial court for resolution.

    On the funding issues, I have absolutely no idea if this is viable or not. I suspect, however, that the premium dollars paid to insurers annually is a matter of record (although I’ve seen some fascinating accounting reports by insurers). We can also have that discussion some other day. One company, that was screaming they would be going out of business unless the legislature passed a cap (which they did), had its books re-examined some time later. The money ultimately found in their profit column was astounding.

    Anyway – back to the issue at hand. Here’s an issue I see with the funding by this national fund unless and until the claimant/patient rejects or by-passes this panel – this still does not remove insurers from the process. Who would be paying for the costs of defense, related costs and indemnifying in the event of an adverse verdict (or settlement) if the “panel process” were by-passed or rejected? I can’t see how you, as physicians or medical institutions, could fund a national panel, the administrative costs associated with such a system, pay the lawyers, experts and those related costs, and compensate patients deemed to have been injured by negligent medical care. If the claimant rejects the finding, then you’re really at square one, aren’t you? If so, the same costs (including premiums) are still being incurred. Haven’t you just added a layer of most costs to be defrayed by the medical profession? I apologize if I missed something. How does inure to the benefit of both the patient and the physician and/or medical community? Further admission: one of the reasons I went to law school is because I have no expertise of economics!

    I do believe you are definitely on to something in terms of peer review. Notwithstanding the protestations of some of your colleagues, who have posted here, I believe (and have personally witnessed) abuses in and by the system. I don’t seem to be getting across to others (maybe simply because it’s a lawyer saying it) that I am not condemning the peer review system. One more time I’ll say it – my experience in D.C. and MD is that “for the most part,” they do a lot to advance patient safety. Nevertheless, the nationalizing of standards, legal review, immunity protections, bias challenges and the like are all elements of reform with which most could not argue. At least I don’t think so. The real sticking point is in hospital-based peer review. Again, so I’m not misunderstood, mischaracterized or misquoted: I am NOT condemning the efforts, good intentions, good will of those who devote their time to this process. Are you suggesting that the problems that are inherent (we’ve been through those) in these hospital-based peer reviews be replaced by outside peer review panels? national panels? Just wondering. If you said so, my apologies, TXMD, I just flat missed this point in my efforts to stay up with all the posts.

    Lastly, in thinking about all this, let me throw the following naked, raw – whatever – concept out there. Hasn’t the federal government been suggesting and advocating for the implementation of pilot programs to see what just might work? What about a voluntary program (maybe that’s the death knell right there – voluntary), whereby lawyers representing patients would voluntarily submit cases (of their choosing and with the full knowledge and understanding of the client/patient – maybe with a bill of rights/understanding laying out this option) to a national review panel. In this digital world, records could be submitted digitally, the patient could “appear” before the panel via videoconference of video-taped deposition, expert reports (as in federal court) could be submitted and “outside” expert opinions be obtained by the panel if and when desired.

    In DC some years ago, we did a pilot project whereby a jury was chosen, heard the essentials of the case, heard time-limited testimony, which was presented as seen fit by the lawyers for each side, and then the jury rendered an “advisory” verdict. This, from my vantage point, had a very telling effect on resolving cases. This jury was allowed and, in fact, invited to share its observations in open court with the litigants. It was a fascinating process. It have guidance on what others thought about the case. I don’t know why it died – probably funding like so many things.

    What if there were a pilot project but this time, it was a panel – I haven’t thought about its constitution long enough to say anything worthwhile. Lawyer, doctor and lay? I don’t know.

    What if that panel rendered (in its initial phase) an advisory finding? Sure, the same abuse could occur as occurred in the Maryland arbitration process I described before. I haven’t thought out totally if this should be appealable to a trial court with a presumption – who knows…jus throwing it out.

    Haven’t decided yet if this would simply be a finding as to liability or that plus damages. I doubt the latter – my brethren at the bar probably wouldn’t buy it. What about – possibly – a pure recommendation of compensation. At least the litigants could get the matter decided much more quickly, costs would be lowered (hopefully) – there would have to be a quid pro quo, which I’m not astute enough to figure out. Wouldn’t the medical profession be more likely to accept the finding of such a panel than they are hearing it from only a jury? Wouldn’t this address in some part the “gray areas” I keep addressing with doctors such as White Coat and IglooDoc in these posts? It would have an effect on my side of the table if I knew that my “theories” were unsound – at least in the eyes of the panel. I just might convince myself and the client that we are barking up a very bad tree – depending on the quality of the panel’s decision. Anything rational to minimize the absurdity of the costs, time-delays and abject waste of the current system would be something I would consider recommending to a client.

    Anyway – just a thought – a pilot project that we’re all supposed to be somehow figuring out in today’s world.

  • http://Www.twitter.com/alicearobertson Alice

    Mr. Nash…your ability to communicate, and get through to us was just fine. I was reading a book about using jokes to teach philosophy (I know…I know…..scientists like Hawkings would argue that science has trumphed philosophy). They gave the example os Watson’s power of reasoning, compared to Sherlocks. Make your own mind up, but lawyers seem more like Watson to me…..
    Snippet:
    A Study In Scarlet Cheeks… Deductive Reasoning, Dr Watson style!!

    Taking a well-earned break from the detective business, Sherlock Holmes and Watson were on a camping/hiking trip. They had gone to bed and were lying there looking up at the sky.

    Holmes said, “Watson, look up. What do you see?”

    “Well, I see thousands of stars.”

    “And what does that mean to you?”

    “Well, I suppose it means that of all the planets and suns and moons in the universe, that we are truly the one most blessed with the reason to deduce theorems to make our way in this world of criminal enterprises and blind greed. It means that we are truly small in the eyes of God but struggle each day to be worthy of the senses and spirit we have been blessed with. And, I suppose, at the very least, in the meteorological sense, it means that it is most likely that we will have another nice day tomorrow. What does it mean to you, Holmes?”

    “To me, it means someone has stolen our tent.”

    • http://nashandassociates.com Brian Nash

      Alice – I’m still pondering. Frankly, I like Watson’s “reasoning” – maybe that’s why I AM a lawyer. The practical deductive reasoning of Holmes? I already figured out the practical application – I move on beyond the trees and view the forest as a whole and wonder at the glory of it.

      I get the “practical” of this discussion, Alice – as do you – painfully so. I like to think there’s a meaning and purpose to all these circular arguments and discussions – but – perhaps like Holmes noted – someone HAS stolen the tent.

      If I were to come up with a suggested plan of action for discussion about “what happened” or “when to apologize” or “when to lay our the fault of your peer for the betterment of patient safety,” why do I know I’d be reading another 50 posts “cutting and pasting” some snippet of what I say – or what someone thinks I said – and some metaphorical analysis that has zero to do with advancing the discussion.

      I’ve tried to focus primarily on the “thousands of stars” – to use you your quote from Sir Arthur Conan Doyle’s work (BTW – Is it A Study in Scarlet – the novel that introduced the character Holmes? – just wondering)

      Read the comment by “martin” that follows this. Note a similarity- “been hearing the same for over 30+ years” – bingo – me too! 37 years to be exact!

      Sometimes I think people claim they hear (this is NOT a reference to “martin” whatsoever) – but they don’t listen. Where do some of the writers on this forum get the idea that lawyers hate doctors? I don’t hate doctors at all. I respect them tremendously. Hell, when I need one, I’m praying I get a good one (who’s note tired or a 1st year July 1st resident special).

      Read “martin’s” – Docs questions, but please don’t overlook the following:
      Lawyers good, bad and ugly…everyone of you need to sit on a hospital board of trustees, board of a physician business, and any related committee you can get on and EDUCATE them. Doctors are very important to all of us. They spend their lives taking care of with worst of us. They don’t have the perspective they need to overcome the hurdles — so many of the hurdles are legal in nature — and you need to be active — BOTH PLAINTIFF and DEFENSE. YOU SEE it all and are the only ones who can paint the picture with clarity.

      Until the fighting stops and coalitions form with specific improvement goals agreed upon by the major healthcare associations — ya’ll aren’t gonna get anywhere!

      AMEN – join me on the ground “martin” and check out the sky! That’s precisely what I’ve been doing – or TRYING to do here. I do educate, I lecture very often at the hospitals. Yes, I love saying this (for a number of reasons) – some of my very dearest friends are DOCTORS! I don’t like a lot of lawyers – personally that is – they like to talk about nothing but law most of the time and many are too busy preening about their latest win (do they ever lose?) –

      Alice – I could say this another 100 times and I’m not sure many would notice. This is their turn (SOME of them!) to take their shot at the profession they hate the most on this planet.

      Didn’t we start this discussion about “do malpractice suits advance patient safety”?

      Again – check out martin’s comments – he’s DEAD ON….but that’s just MY opinion. Malpractice is horrible – if he means the “act of” – I agree. If he means the “system of malpractice suits” – well I keep waiting for someone to lay out a cogent alternative. Note: some have dropped off the discussion when I made the challenge (several times!). Docs do a pretty good job of peer review – AMEN – been saying that repeatedly too!

      Why don’t they communicate – martin says. AMEN, AMEN, AMEN – that’s what I’ve been trying to do. Some just want to moan and groan how lawyers are bottom-feeding jerks, who all they care about is the money – we won’t go there again – please!

      Then martin says: “All the while healthcare in US remains the most expensive in the world, the most inefficient, and patients are not more protected from injury then they were 30 years ago.”

      I LOVE THIS GUY! I’m going on the road with him and we’re taking you, and a few others on this forum.

      OK…If you set out to tell me my head was in the stars, Alice (smile) – so be it. I’m with Martin, you and a number of others. LET’S TALK – where have we been getting for his 30+ years and my 30+ years with all the venom, distrust – you name it. WHO has suffered – ALL of us.

      I’m not done – Alice – my soapbox is still standing firm – but enough for now! Signing off – and proudly so – Brian (Watson) Nash

  • martin

    Just reading all this. Been hearing the same for over 30+ years. Yeah. Old practitioner here. Nothing new. Docs hate lawyers. Lawyers aren’t fond of docs. Malpractice is horrible. Expensive. Must be something better. Docs do a pretty good job at peer review. But why don’t they communicate. All the while healthcare in US remains the most expensive in the world, the most inefficient, and patients are not more protected from injury then they were 30 years ago.

    Docs:
    Who’s doing onging outcome or process peer review of private practitioners in offices or stand alone facilities?
    Does your hospital or practice know exactly how many patients suffered ontoward iatrogenic injuries last year?
    % of these patients who were injured sued your hospital last year?
    Have you identified the top 10 adverse physician care trends needing immediate remedial action in your medical staff practice body – impatient/outpatient/private practices?And to do have board level committment to getting them resolved in the next year?

    Until you are able to do this…do you really think you can afford the incredible cost of no fault insurance? Do you think your hospital administration is going to open the door to all patients and offer them immediate compensation for an injury? Hospitals are well versed on the need to be up front with patients — 1970′s read your history lesson. Why do you think they can’t!
    Furthermore, if you really don’t know the precise injury experience and it is all a BIG guessing game when time to buy insurance very year — how can you expect malpratice insurance companies to rate your good practice? All they can do is look at others in your specialties who are not doing a good job and GUESS at their risk exposure.

    Lawyers good, bad and ugly…everyone of you need to sit on a hospital board of trustees, board of a physician business, and any related committee you can get on and EDUCATE them. Doctors are very important to all of us. They spend their lives taking care of with worst of us. They don’t have the perspective they need to overcome the hurdles — so many of the hurdles are legal in nature — and you need to be active — BOTH PLAINTIFF and DEFENSE. YOU SEE it all and are the only ones who can paint the picture with clarity.

    Until the fighting stops and coalitions form with specific improvement goals agreed upon by the major healthcare associations — ya’ll aren’t gonna get anywhere!

    • http://nashandassociates.com Brian Nash

      Martin

      May I kindly refer to you my reply to Alice (right above your comment – at least it is when I’m doing this reply). I agree with exactly what you are saying. The most telling part (and the conclusion I’ve been reaching since this reply to Dr. Pho was posted a week ago today) is pretty much summed up by your last sentence: “Until the fighting stops and coalitions form with specific improvement goals agreed upon by the major healthcare associations — ya’ll aren’t gonna get anywhere!” Precisely!

      Every now and then in the course of this “forum,” someone has suggested “specific improvement goals.” I’ve tried to solicit from some (who seem to have dropped out of the conversation after the question was put – so tell me what YOU would recommend be done to fix the current system. Some (e.g. TXMD) has stepped forward to at least lay some ideas out there for discussion.

      As I indicated to Alice (in mentioning your comment), I have been very active in trying to (1) understand the issues confronting physicians and (2) sharing the legal issues that relate to those issues – by doing (for example) grand rounds by invitation, claims committee reviews, speeches to residents in various specialty and subspeciatly groups, presenting legal issues to large and small audiences of physicians, etc. Many days I feel like Sisyphus – and you can figure why. Lawyers THINK they understand all of your issues – needless to say we don’t. I’m still trying to get a handle on the depth of the so-called defensive medicine. Doctors – as you said – “don’t have the perspective they need to overcome the hurdles — so many of the hurdles are legal in nature…”

      What I can not figure out is how to get this discussion converted to some meaningful larger platform. Is it done by the way you’ve suggested – on a local level, then to the identification of “specific improvement goals agreed upon by the major healthcare associations” – and then where? This “discussion” needs to get to how healthcare and the legal system can BOTH improve patient safety. I just don’t know how to get them there. Maybe this whole discussion HAS run its course.

      I’ll keep doing “my thing” on a local level. If you have experience with a process to advance these goals, I’d love to hear about it – or are you just as frustrated as I am?

      Thanks for your comments – nice summary of the problems and the POSSIBLE fix.

      • http://nashandassociates.com Brian Nash

        Martin – a thought – this whole issue (however you define it) is so big, I’m convinced (you?) that it may have to start with a relatively small issue and go from there. Let’s discuss – what some insist on calling – the apology – and I keep referring to – the explanation of what happened. By now, I forget who it was in this post that asked “what did I tell my clients (as a former defense lawyer) about admitting fault?” This was followed by – “so what do you (me) suggest when and how this be done?” – yet not expose the medical community to incredible financial risk or whatever other fallout might occur – e.g. the insurer or risk management department (of a hospital) going ballistic should this occur. Yeah – truth be told – I wouldn’t have been happy if I found out a doctor just assigned to me for the defense of a case had an admission of fault that I had to deal with in defending him/her. Yet, now on the “other side” I encounter – time and time again – the frustration, anger and resulting distrust of patients, who REALLY want to know “what happened.”

        A thought: is there a process that could be discussed – locally, nationally (preferable the latter) whereby in some formal/semi-formal setting there was a condition of confidentiality – in which the doctor, the patient, their lawyers – and a neutral person – met to discuss “what happened”? In D.C., there is a mandatory early mediation provision in the law. It is subject to confidentiality – nothing said there can ever be used in later proceedings. Admittedly – a bit too little to late since suit has already been filed for this to occur. That being said – is there some process, which could be proscribed by legislation – whereby the doctor could be protected yet openly discuss what happened, express concern, remorse, or just plain – I’m so sorry this happened to you (without fault if that’s the case), the patient could get an idea of “what happened”?

        Maybe I’m whistling in the wind here – I don’t know; however, until I “switched sides” – I had NO idea how big a motivating factor this whole issue (“what happened? met with silence by the healthcare provider) was!

        You thoughts? …. or those of others?

  • http://advocateyourself.blogspot.com Cheryl Handy

    As a former medical malpractice defense attorney and a current patient begging a doctor to fix errors that other doctors have made, I have seen 2 of the 3 sides.

    My surgeon friends tell me to stop blogging and “create an environment where the surgeon will want to help you.” Before I ever post a blog, I talk directly with the physician and risk management. The post is a last resort – a sort of c’mon on doc – someone else is gonna get hurt. (advocateyourself.blogspot.com)

    I have told the doctors I will never sue. I just want them to acknowledge that they should communicate better, not send me home with dead tibia none and a raging infection, etc.

    It is really all about trust between the physician and patient. When I go the doctor or I take my dad to the doc, I am completely vulnerable. I am exposing myself or my precious dad to another human being. I am admitting frailty, limitations and neediness. If the doctor ignores me (or dad), refuses to treat, abandons or mistreats then I feel a personal attack.

    Now, when we get into the realm of medical error that happens because sometimes “sh*t happens” like nerves get pinched etc, that is a different story.

    I am talking about flat out, doctor could have prevented the adverse event if he had done the minimum of standard of care. THAT requires a face to face apology and an assurance to the patient that procedures are in place t prevent it recurrence. (I need to know if I take mom to doc she wont get hurt).

    But I am at a point where I get NO apology, NO assurance it wont happen again, DOCTOR sending letters to my 2nd opinions berating me so I cannot get any medical care for a life threatening condition (that dad died of in 01/2010).

    And I still have no intention of suing. Patient safety is not improved in courthouse. I will try to help other local patients know their rights as long as my body holds out! :-)

    • http://nashandassociates.com Brian Nash

      Ms. Handy – I sincerely hope many, many people read your comment! This is PRECISELY what I’ve been trying to get across on this aspect of the discussion. Your frustration, anger – I just want doctors to hear what you’re saying. You have elected to not pursue a malpractice suit. Obviously your right to not sue – but what the medical community needs to hear is what happens when they go silent (or even worse go on the offensive against you – letters to second opinion doctors – berating you).

      THIS is precisely what I just addressed in a reply to martin.

      You are a “former defense lawyer.” Suggestion(s) on how to fix this veil of silence?

      THANKS so much for you post!

  • Nerdy but not a clinician

    I’ve been an injured patient. The injury was severe enough to require surgery. Some of the damage unfortunately ended up being permanent. I had to file two written complaints with the hospital to get any response. Surprise, surprise – it was the first they’d even heard there was a problem. There was *nothing* about it in the medical record. They said they would “review” it. A few days later a hack from their administrative office – a nonclinical person who didn’t know me and knew absolutely nothing about my case – called me on the phone, at work, to essentially say, “Gee, this just isn’t our problem.”

    I understand why physicians feel so defensive about this issue. What I don’t understand is why so many of you continue to be tone-deaf to the shabby, dishonest way in which patients are treated after an adverse event – and then have the cojones to criticize patients for not liking it.

    Patients have been almost completely absent from this discussion. I’m reading a lot of “me, me, me, pity the poor beleaguered doctors.” I’m seeing very little consideration of the impact of medical harm on patients. Are patients truly at the center of the patient safety movement, or is this all about the physician’s ego?

    Mr. Nash, there is no need to stop citing the IOM report. It was, and remains, a landmark document. Critics who accuse it of spinning the issues might be equally guilty of spinning the issue themselves, you know? Although it has its limitations, you could say the same for virtually every other report and study that have been published. The recent NC study on wrong-site surgery relied almost entirely on self-reported data from physicians and retrospective review of records. There is no guarantee of accuracy with this methodology. In fact I know from hard personal experience that adverse events are sometimes excluded from the chart. Think I’m making it up? Consider the hospital in California that was fined earlier this year for a wrong-site surgery that went unreported. The patient had to undergo a second surgery which was never documented. That’s right – a surgery that was swept under the rug and omitted from the record. I wonder how they explained it to the patient. So tell me again why the public should just blindly trust you to provide safe, quality care.

  • http://advocateyourself.blogspot.com Cheryl Handy

    Nerdy/not clinician:

    Truth – medicine has changed, many physicians behaviors have caused the breakdown of trust.

    Most physicians are resentful that we sick patients exist and if they screw up then they hate us even more.

    Lose, lose.

    The medical profession protects bad docs. Even state disciplinary boards are private and don’t even include the complainant. Injured patients feel abandoned by the process. I can understand why they feel need to sue. The med board should explain WHY there is no discipline.

    Lawyers are disciplined in public with the world watching.

    • pj

      Ms. Handy,

      I’m sorry to hear of your bad experiences.No disrespect intended, but I STRONGLY disagree with a few of your asserions.

      “Most physicians are resentful that we sick patients exist and if they screw up then they hate us even more.”

      ?????? Most of us are resentful that you exist??????
      Please- think about that- Why would most of us continue practicing if we resented the very reason for our training?
      I gave up my 20′s and went into debt $100k + so I could have the priviledge of using medical science (and art, it turns out) to help sick folks. And I graduated med sch. in ’95. The kids nowadays often incur $250k + of debt.

      True, the training can scar us. Many of us didn’t realize how much art there is to the practice, and it is very frustrating to slowly discover, there is no algorithm for every situation in health care. And then, we have to learn to balance compassion with efficiency, availability to patients with getting enough sleep, etc.

      “Even state disciplinary boards are private and don’t even include the complainant. Injured patients feel abandoned by the process”

      Every board is different, depending on that state’s laws. I can say at least one, MO, gives the Pt and Dr the same info, at least with the complaints made about me. All were “dismissed for lack of evidence.” That is all the letter to me said. A patient showed me their copy and it was identical.

      Please consider the apt analogy posted by imdoc-

      Last month, I backed into a parked car. I left a note, then called the insurance company and admitted fault. They paid for his damages and it was over.
      Here is what did NOT happen:
      1. A peer-review of my driving by other motorists
      2. Cancellation of my insurance
      3. Entry into the Bad Drivers Data Bank
      4. Mandate of disclosure to every state in which I have had a driver’s license
      5. Threat of losing Driver’s license
      6. Listing on websites warning others not to ride with me
      in my car

      You see what she/he’s getting at? Contrary to the belief of many who’ve posted, there are several significant consequences to any Doc who admits to malpractice. As you may know, the corrolaries (sp?) are-

      1. Peer review by the facility’s medical director/review committee.
      2. Loss of malpractice insurance coverage.
      3. Entry into the Nat’l practitioner data bank.
      4./5. Doc is required to notify other state boards in which they practice, or are licensed, risking loss of right to practice.
      6. Negative online references to the Dr. on social media and health rating sites, among others.

      True, the injured pt may not have full access to all these details concerning an incompetent Dr., but maybe this will shed some light on the reluctance of Docs to deal with allegations of malpractice- Some of us probably see it as “calling the cops on myself.”

      • http://www.twitter.com/alicearobertson Alice

        PJ: Some of us probably see it as “calling the cops on myself.” [end quote]

        Alice: I think this is quite honest on your part……and yet…..do you admit if it was a doctor who felt this way after injuring someone you love you would find this insulting? Doctors are not in this business for charity…….and it is a business………indeed, an honorable business when done properly and well. But it’s not done properly and well when you protect your own butt first.

        In the insurance analogy you seem to understand better than the rest of us…..you seem to want from others what you are unwilling to provide to your patients…….accountability for negligent actions? And, yet, if I hit your family tonight with my car and was negligent you call me to task? You would be offended if I did not call the police and left the scene of the crime, then even when caught refused to admit with the hopes I could bargain, plead, or ignore the accident I caused and I know it in my heart I caused it. I hope doctors don’t raise their children to believe that just because you sacrificed to get somewhere you are allowed to do harm and not belly up and be accountable. If your children steal I would hope you would take them right back in and rectify it……..or else the law may have to deal with you. And so it is with malpractice…the law is a task master…….so do your tasks exceedingly well and take accountability and trust in doctors will be restored.

        • pj

          Point taken, Alice. I should’ve said, “No good deed goes unpunished.” The ‘good deed” being admitting a mistake. I’m not saying I raise my kids not to admit fault- just pointing out the “behavior modification” that the current system generates with the stick being so much bigger than the carrot…

          I have to ask, though time doesn’t permit me to read all of your posts as you are quite prolific, from what I’ve read you and your family have extensive experience and bad outcomes as patients in the US and the UK. Is it fair to say you think the US system is better? I admit I’m biased toward the UK system, or at least the Canadian one, but I’ve only read and spoken to pts and Docs from both nations. But you’ve lived in the UK, correct? Thanks for your thoughts.

          Sorry for the “topic drift” but I’ve wanted to ask Alice this for months.

          • http://www.twitter.com/alicearobertson Alice

            PJ ….I am so sorry but I didn’t read your question earlier. I am just now playing catch up:
            PJ wrote: it fair to say you think the US system is better? I admit I’m biased toward the UK system, or at least the Canadian one, but I’ve only read and spoken to pts and Docs from both nations. But you’ve lived in the UK, correct? Thanks for your thoughts.

            Sorry for the “topic drift” but I’ve wanted to ask Alice this for months.[end quote]

            You are always free to write to me. Sometimes I post my e-mail address, but some people click on my name and it takes them to Twitter where it is listed: arobert6@juno.com

            Okay, back to the UK. Yes, you are right I lived there. Went there with my grandfather and lived with my aunt and met the guy nextdoor, went back and lived there. He immigrated here from Scotland. I didn’t live in England as long as Scotland. All his family and most of mine are there and several times I have went back and lived there for only a month at a time. That system terrifies me! :)

            You know I am willing to discuss anything…..so I don’t mind discussing the UK system. You probably already know the stats I am going to share.

            Let me just say this…..I have racked up about $100,000 (probably more…….I prefer denialism with that….and my husband racked up about the same amount, so we are in the quarter million phase) in bills to the Cleveland Clinic and even if I had no insurance and the UK treatment was free I would have worked out a payment plan and stayed right here for my daughter’s cancer operations and treatment. My husband feels the same way.

            Ever visit a pub in the UK? The stories would knock your socks off…..out of one side of their mouth they tell you about the neighbor or aunt who went for a hip replacement and never came home, or the cousin who was on the wait list so long for a biopsy she is dead (I share this because that just killed our cousin who was in his fifties……..his wife is an emotional wreck and your heart breaks because I believe if he lived here he would be alive. I realize there is error right here….I know it firsthand…..but I still believe it would have been worse there). Then out of the other side of their mouths they will tell you it’s the best system in the world. That Guiness sure is mind-bending! ha!

            Are you like Dr. Berwick who has a romantic notion about the UK plan? I call it the Jane Austin plan….it’s a great idea….but reality certainly stomps all over our romantic ideas. Ask anyone whose been married for awhile!:)

  • Cheryl Handy

    Txmd -

    No, you are wrong. Med Mal is not about money. It is about patients regaining some control over life after trying to get doctors to accept responsibility. Prob is Risk Management Offices are reactive rather than proactive.

  • http://nashandassociates.com Brian Nash

    Grrrr – I’m G-NASHing my teeth – I’m praying someone will listen to Nerdy but not a clinician and Cheryl Handy!!!

    How can we properly protect the medical community but ADDRESS this PROBLEM?!!!! Communicate – honestly – do whatever is appropriate under the circumstances (apology, don’t apologize if not indicated BUT EXPLAIN!)?

    One other comment – Ms. Handy says, ” Prob is Risk Management Offices are reactive rather than proactive.”

    Admittedly I have limited (myopic) perspective here; however, I have represented in my past career eight hospitals. Therefore, I DO have some perspective on this issue.

    Ms. Handy – have you noticed that Risk Management in hospitals has at least a two-fold function – handling of losses (including day-to-day chores such as responding to discovery, interviewing those involved, reporting, conducting chart reviews – and on and on) AND then there supposed to be involved in “proactive” risk management – namely – creating and implementing programs to actually improve methodologies to advance patient safety? We’re talking about – what? – 2 to 4 people (sometimes ONE) assigned these tasks in a huge hospital.

    Maybe I was fortunate but the hospitals I worked for (did defense work) and the health systems of which they were member institutions actually spend an enormous amount of time, resources and money to do root cause analysis. They need to receive credit for what they really do try to accomplish – are they playing catch-up? I think so – but they really do try to catch-up….again – at least the ones I’ve had the pleasure to know. Are they perfect? I doubt they would even think so.

    That being said – are they doing enough to get the word out to the public? No! Are they acknowledging fault when it’s there and moving proactively to deal w. fault, compensation and correction when needed? Sometimes yes; many times no. Do they too often put a cloak of defensiveness up and cause hostility and distrust with the affected patient – way too often.

    So WHAT in the system could be fixed to advance these efforts? That’s the discussion – in large part.

    You elected – Ms. Handy – to not sue. Nerdy keeps trying to get his institution to listen and wake up and do something to fix a situation personal to him (and potentially something that might protect FUTURE patient care). I’m doing my thing – suing and protecting those who just won’t be heard, who have been injured through fault.

    My experience:
    Institutions – particularly healthcare systems – do work to proactively identify and fix system issues that affect patient safety – Perfect: of course not. What brought a large number of system errors to their attention: LAWSUITS.

    Insurers (private medicine): my experience (limited but real) – are all about reactive/not proactive. Are a huge part of the problem. Sure – they hold risk management “seminars” and promote attendance through premium reduction. I’ve addressed those groups multiple times. Let me put it this way: only reason most were there was to reduce premium – not to improve safety for patients. Not everyone but MOST – that’s my assessment – hopefully others have had a better experience. Policies/practices of insurers – absurd in large part. A “we don’t settle, sue us and try to win” scorched earth policy – I dumped that insurer and switched sides. What arrogance, stupidity and major step backwards to this whole process. Pathetic – but again – just my opinion. They all the same – I sincerely hope not!!!

    No matter what institutions implement toward patient safety – will there still be errors – of course! They are staffed by human being who are make mistakes. Then what’s done about those errors that cause fault? Lawsuits – what form? no fault (whatever that it), traditional malpractice suits (admittedly needs fixing but has its definite role in not only identifying issues for correction (i.e. patient safety) but also compensates victims of malpractice, who DESERVE to be compensated. Got a better system – so tell me what it is and I’ll discuss it.

    Patients DO feel a sense of control are Cheryl Handy says. You just don’t get it if you think otherwise. OK – you haven’t been there; I have. It’s real. Patients through med mal lawsuits DO have an effect on patient safety issues – get a grip – I’ve seen it for decades and you’re deluding yourself to think otherwise or you just so arrogant that you can’t see what’s happening around you – or won’t!

    My system perfect? Of course not. You wan’t to replace it or improve it – stop trying to fight all the time with us — the lawyers. Some of us (maybe more than you think or refuse to belieive) are willing to listen. Why? I’ve given the reasons throughout this forum over and over again.

    Peer review: grade? who knows – guess depends where you are. For me – C+ maybe a B- …. but that’s my perspective. How can you improve it? What are the issues that prevent improvement? Well stop screaming “foul” and all the other petty nonsense and work constructively to fix it.

    Doctors and institutions – you exist – hopefully to help people, to advance cure when possible, to care for the sick and all the other fantastic things you do for ALL of us. Why are you so entrenched or blinded by your hatred of all things legal? You don’t have a clue how to work within the framework of the legal system. You think you do but you really don’t! I don’t know how to do what YOU do – thus expert reviews. Why don’t you stop moaning and berating and get on with it – talk to us and talk to your patients. You just might learn a whole lot that you don’t know and have no reason to know.

    IOM report – NC report – nerdy not a clinician – I hear you. Who cares what report?! Are physicians really claiming that regardless of the numbers that there are (a) system failures (b) individual acts of malpractice (c) people who should be compensated?

    We can point/counter-point forever. Get with the program. Get over it and start working on fixing it!

    Ok…I’m caught up on the comments for now.Going to meet a new client this a.m. Met one on Saturday too. I’ll apply my principles of understanding, listening, making ethical decisions about whether a meritorious claim lies or not. You may not agree with what I decide, but that’s why we have courts, juries and a system in place. Get over it – help fix it. Be part of the solution, not more of the problem.

    • pj

      Mr. Nash- Somewhere above, I think you “admitted” that when you practiced med mal defense, you would’ve been unhappy with a Dr who’d been assigned to you after admitting fault to the pt/family.

      Well- There’s the rub, no? How do you suggest we communicate w/pts then? Is it realistic to think a defense Atty in this day and age would advise/permit a Doc client to do anything of the sort?

      • http://nashandassociates.com Brian Nash

        Dear pj – you’re memory is correct. Agree – that’s the “rub” if there’s an admission of fault. That’s precisely why I’ve been trying to share some ideas about how to avoid the rub and accomplish this objective. You may also recall that I mentioned a process of early mediation in D.C in which all the parties signed an agreement that whatever was said there could never be used by anyone once the session was over. I asked what you all thought of some similar concept so that you could have the “protection” of an admission in some early dialogue (call it whatever) session with the patient (maybe legislatively protected), discuss what happened and how the error occurred, etc. I also mentioned that the DC program was a bit too late since it was after suit was filed. I also understand that unless there is a protected system in place, an insurer would be less than thrilled and might even claim prejudicial conduct if you did admit liability.

        I have never suggested this is easy. I’ve been trying to get all of you to make some suggestions on what might work for you, the lawyers to comment on what might for them and the patients to give their insights into whether this had any value to them. An “open discussion.” There are a heck of a lot of smart people posting here. I was interested in seeing if someone or some of us could forge some ideas that just might work and meet the needs of protection for the doctors and satisfaction (to some extent) for the patients. I’ve not seen much in response to my idea (which is not perfect or perhaps even possible – but it was an attempt to bridge the divide – or should I say “chasm.”

        On the other hand, since I know you’ve read a lot, or most if not all of what’s been written here, you know I’ve also not been saying that there should be an admission of fault when there really is no fault to admit. Such conversations would be about “what happened” to the best of the doctor’s ability to discern what led to the adverse outcome. Does that really need protection. That’s the scenario I’m really most concerned about – as I’ve said – why do they feel left abandoned for an explanation so many times (again – this had NOTHING to do with admission of fault when it’s really not a “fault” issue.

        Anyway, that’s what I’ve been trying to address, but with no overwhelming success apparently. Maybe there isn’t a way that’s acceptable or feasible. I hope that’s not the case. Some have suggested a no-fault system where there’s no fear of retribution is in order. Check out the patient’s replies to that concept. Is that feasible from even an economic standpoint? Doubt it, but not sure.

        You ask is it reasonable to think a defense lawyer in this day and age would advise/permit a physician client to do anything of the sort (i.e. admit fault/negligence/guilt). No, if it can be used against the physician in court – thus the reason for my “thought” regarding legislatively proscribed early intervention (i.e. before lawyers) w. conditions of strict confidentiality. Again – don’t know if this is feasible.

        Does this mean that there is no solution to this problem in the current system? No idea – I’ve given my idea – not getting a lot of feedback on it. Haven’t heard many others except in context of no fault (which I’m still not sure – truly not sure – what that entails or actually means. Does it mean ALL adverse outcomes – regardless of fault – are compensated? Is that feasible – financially? who sets the compensation? You’ve seen the “discussion” on that topic.

        To use a prior metaphor – maybe I’ll pass along from this world and neither the Israeli-Palestinian conflict AND the current debate over “tort reform” in all its glory will still be the subject of debate without resolution.

        Hey, at least I’m trying to see if there’s common ground. There are a whole lot of folks a heck of a lot smarter than I who may have some better suggestions.

        Best I can do….for now.

        • pj

          “I asked what you all thought of some similar concept so that you could have the “protection” of an admission in some early dialogue (call it whatever) session with the patient (maybe legislatively protected”

          If I didn’t say so before, I agree w/this approach!

  • http://nashandassociates.com Brian Nash

    Know what? I”m NOT done – I’m on a roll and have some time left before I have to engage yet another family who has suffered miserably and wants to know “what happened.”

    I almost want to tell you the name of the institution I’ve been writing about, but I don’t have their permission so I won’t. I will tell you this, however.

    In addition to their day-to-day attempts to resolve or defend claims (and render quality care – let’s not forget!), they hold monthly meetings. In attendance are over 20 people from top management, to the risk managers of every institution that’s part of their network, their defense counsel and their INDEPENDENT reviewers. Cases are honestly evaluated, trends are identified, new risk assessment protocols are created and implemented, etc, etc. – they GET IT! Are they perfect? They’d be the first to tell you they are not, but they try to improve patient safety constantly. They try (my opinion) to honestly get to root cause analysis, they in good faith analyze claims pending and make good faith assessments of defend or pay. They are CONSTANTLY trying to improve their providing of health care. They work within the current system. Do they love the current system, I doubt it but they get on with the program. I was proud to have been part of that system. Unlike some of my other experiences with certain insurers – read above!

    Now – before I put away the soapbox for this morning. Let’s examine the anatomy of a potential lawsuit from an interview just 2 days ago.

    Married 28 years to the love of his life. She died about a month ago. His daughter, on leave and getting ready to “shop out” on military assignment finds her mom dead at 5 am. The day before, visited the doctor – long history of migraines. On fentanyl patch and a few other drugs – some of which also have a respiratory depressant side-effect. Wife/Mom has been having a lot of trouble sleeping. Doctor prescribes off-label use of anti-psychotic drug – huge dose – none that I can see justified in PDR or any other pharmaceutical reference book. She takes one pill that night as instructed. Dead within hours. Husband lays the pills out on my conference room table, tells me details of what happened, tears running down his face – guilt ridden because he thinks HE did something wrong by letting her take the pill – that was prescribed! Frustrated, infuriated, guilt ridden, puzzled – what happened? was it the sleeping pill? – you name it. He just wants help in so many ways.

    Do I think there a potential case here? I sure do. Am I going to run off and file this without further analysis and investigation? You should know the answer by now. Was this “judgment” by the clinician – a gray area – I guess so since it doesn’t fit to so-called “clear case of malpractice”- i.e. operated on the wrong limb case. I’ll hire (at my expense at least initially) qualified pharm D’s, internists – whatever it takes. If there’s a case, I’ll sue the hell out of this doctor for what he/she has done. If there isn’t, I’ll do my best to explain what I found through my investigation to the family.

    Why go through all this? Oh yeah…it’s all about the money, that’s what I head ad nauseam. By the way – I’m in a capped jurisdiction on non-economic damages on this one. There are 5 potential clalmants – after fees (which are lower than many of my colleagues) and expenses, I’m HOPING that I’ll be able to recover for these family members – what – maybe $50K – $75K each. You love caps? Oh yeah, there wonderful. The life of this woman (wife and mother) is maybe $50K! That’s with max recovery. Great system from my perspective.

    That’s what WE do as malpractice lawyers. Am I advancing patient safety? Too little too late for this family (if there’s a valid case). Tell you what, though – IF there’s a valid case and I prove it, what are the odds that THIS doctor is never going to be casually handing out samples of this drug again without taking the time to pay attention to what’s being prescribed, what the potential synergistic effect could be for this patient (or ones to come). Yeah…assuming all the above, we’ll never know how many others benefited. There are no stats, but please don’t try to convince me that what I do doesn’t effect future patient care!

    We can talk theory all day long. That’s fine. I deal with not only theory but people whose lives have been devastated.

    Dear Medical People: I wish I had a statistic/count of the number of people who say to me, when asked “why are you here? what do you want to accomplish by possible bringing a lawsuit? The answer – over and over again: “I don’t ever want something like this to happen to someone else.”

    No – it’s NOT all about the money. When you start “hearing” what I’m saying instead of turning a deaf ear to what’s being said because it’s just more nonsense babble from a TRIAL LAWYER and some disgruntled family with a bad outcome, then and only then will be be able to work together to advance patient safety – just like I tried to do and hopefully did do with the administration of the health system I was proud to represent in my past life.

    I’m done….now I’ll head in and try to positively affect someone else’s life of pain and misery.

  • http://nashandassociates.com Brian Nash

    I just read what I typed and I do apologize for the numerous typo’s. Unlike Matt – I’m not on a cell phone w. a tiny keyboard. Passion, frustration and bad editing led to these stupid mistakes. Sorry…but I’m NOT sorry for the message!

  • http://advocateyourself.blogspot.com Cheryl Handy

    Hey wait a minute Mr. Nash. I have been everywhere but with an MD after my name. Suing did zero but label me as a “problem patient.”

    I sued the first Central IL orthopedic surgeon who performed the unnecessary surgery. The surgeon even said under oath “I dont know why I did the surgery.” 10 years later, I have dead tibia bone, no surgeon, no medical care and will die from osteomyelitis eventually.

    My problem was that the AMA would not let my NC orthopedic surgeon testify against the IL surgeon because it would be considered practicing medicine in IL (and my NC surgeon only has license in NC).

    So that is when I decided that I would be damned if the surgeon in Central IL (or any physician) would hurt another patient. Period. I would first contact the state medical board, Joint Commission, AAOS and, failing that, I would tell the truth on the Internet.

    If the surgeon or physician thought I was lying he can sue me. Fine. Then I get my day in court!

    But I remember representing doctors. We would settle and have nondisclosure agreements. The injured patient could never talk about the settlement. I never thought that helped patient safety.

    I try to work with Risk Management. I try to work with Patient Advocates. It has *never* been my experience that these offices work with patients *unless* the patients have an attorney with them. It should not be that way.

    I consider myself part of the solution in the best way I can – trying in the only way I can to make doctors accountable for their actions. And I am willing to do it without suing (because it did not work for me in 2000 – it only backfired) and knowing that by telling my story (that even big fancy hospitals hide mistakes, violate HIPAA, abandon patients) I will not get medical care and I will continue to be bedridden and will die.

    I am not a martyr. I just accept the truth and I do not want my dad’s death and my disease to be for absolutely nothing. I am just speaking the truth so that someone else can get strength when I am gone.

    Shame on anyone for saying I am not doing my part to improve patient safety in the only way I know how.

    • http://nashandassociates.com Brian Nash

      Ms. Handy

      I saw the first sentence of your reply and had to get right back to you. I think you or I (or maybe both) have misinterpreted what each other wrote.

      Maybe I shouldn’t read others’ posts and try to reply around 4:30 a.m.

      When you mentioned you have told doctors you would never sue, I guess I latched on to that. I have NO problem whether you did or did not sue. Simply pointing out that this is a person’s right to choose and they should not be castigated by anyone for making that personal choice. Now it turns out you did and ran into the AMA issue regarding your potential expert. I’ve been there as well in terms of representing people and trying to find good, quality experts to testify especially in ‘strict locality rule” jurisdictions or people, who have been threatened by national organizations for being willing to testify for patients.

      Here’s where I’m concerned you misinterpreted what I said or maybe I just need to say in more clearly. I’ll take the blame because I have zero issues with your decision either way or with ANYTHING you said.

      Please note what I first wrote: “I’m praying someone will lister to Nerdy but not a clinician (that’s his username) and YOU! I was trying to point out that your message is one that must be heard. I believe, if I wasn’t clear before, that you are definitely part of the solution, not the problem. You’ve been pro-active all the way and continue to be. Kudos!!! Please don’t misunderstand what I was trying to say (and apparently not saying it clearly).

      My reference to you in the context of Risk Management was meant to involve you in the discussion since you and I are the only two lawyers who have dealt with Risk Management (at least that’s what appears to be the case). I was actually trying to solicit your affirmation of what I was saying: they’re over-worked (probably under-paid) and are trying to do the best they can (in my limited experience). I wasn’t being critical of you at all. I was actually hoping you would share some of your experience “as a lawyer” with the readers of this blog. Then I note you have the unique perspective of a patient who felt the lack of responsiveness when you tried to work with them as a patient. I was actually very happy – not with what you went through – but that the readers were exposed to a person with a very unique experience base – working with them to defend claims and then as a patient TRYING to work with them to resolve your own medical issues and the care you received or didn’t receive.

      I meant (but apparently once again didn’t accomplish) to be laudatory of what you did, tried to do and are doing to promote patient safety for those who will come after you.

      I moved from that discussion to simply get across to some of the critics of the legal profession (read White Coat and a few others) that I do try to be balanced. Again in my experience, I don’t condemn the entire medical profession as some of the doctor responders apparently like to damn the entire legal profession.

      I don’t know…maybe it was sequencing of my points… I was trying to make very early this am, but know this – at NO time was I being critical of you. If it reads this way, then I’m sorry – I’ve done a poor job of communicating.

      Frankly, I was thrilled to see a lawyer who had first-hand experience with Risk Management and on the defense side add to the conversation.

      I actually love the fact you are continuing to get the message out re what you’ve been through, the issues you had to confront (e.g. the confidential settlement agreements that do NOT ADVANCE patient safety as you point out and with which I agree)…. etc.

      Somehow or other – the message was lost, which was evident by your first sentence. My bad…as they say today. Hope this clarifies somewhat what I meant by my reply. If not, let me know and I’ll try again.

      Best….

  • http://Www.twitter.com/alicearobertson Alice

    I am rushed…dealing with doctors, social workers, and soon lawyers…..just can’t get my dad out of the observational psych unit. My typos are from the iPad I wish I had never bought, and the keyboard broke. Anyhoo…..this conversation has been highly educational…but I fear many doctors feel if we do not like their prescription we are not worthy of their time?

    I, too, like most doctors, and immensely like some….who like lawyers feel like they are swimming through the sewage of the system. A few are my staunchest supporters here and want me to say what they cannot. I do not have a career to worry about, but find a few ironies here, some post anonymously, yet if they do not like what you are saying they play kill the messenger. Well…at least this messenger has a face and can be found. They say they must post anonymously because of their jobs, then go on to protect and defend the system that has turned them into a type of cyber Deep Throat. Are we to assume they are in a hospital parking garage posting!? :)

    Why do the doctors clam up if they want change and are often posting under an anonymous name? What have they got to lose? There is so much to be gained if they educate us about what we do not understand, and we educate them about what they need to understand because stand off’s mean more wasted time.

    There are two doctors who have wrote best sellers…Dr. Groopman, and Dr. Gawande. On the surface it is curious…I mean what patient wants to buy a book that will scare them to death? Yet, what patients see in these two doctors is honesty….empathy for people just like them…not defensiveness, or blame on patients. Patients feel completely understood on a human level with both of these privileged doctors who openly admit they are treated better than the average patient (something in the water in Boston where they both work….a chemical that works like truth serum).

    Once after going a few rounds with doctors here and being treated to their snide remarks a doctor wrote me privately. Thanking me for the reality check and sharing that doctors should go back and read their letter they wrote to gain entry to medical school. What they wanted was to treat people and help them get well. Somehow that is getting lost in the vision of medicine.

  • TXMD

    Dear Ms. Handy,

    I am sorry to hear about your health problems. I think we agree that the current malpractice system does not improve healthcare for patients. I hope you will agree with me that it does not encourage transparency or honesty when errors are committed either. The core question is what to do to change the system so it will do both.

    I don’t know if it will help you to see the system from the perspective of a physician but let me try. I write this only so you can understand that without meaningful change in our system you will never get what you aspire to with the system. You can sue a million times and win every time and nothing will change.

    When physicians are sued we take it personally. Contrast that with a lawsuit against a corporation. It doesn’t take it personally. It’s just business and they don’t care about winning or losing just how much its all going to cost them. A malpractice lawsuit is a direct attack on a physician’s core self image. One goes into the profession to help another fellow human, but now gets to read over and over a malpractice complaint calling us greedy, evil, careless, incompetent, and…my personal favorite….malicious. Think about it, after committing an error (who’s perfect anyway) you not only get to feel bad about committing the error you get to be told that you are a screwup and that you intentionally and willfully caused the error. To expect a physician in such a circumstance to be happy to discuss the matter and to freely admit error is to expect saint like behavior in physicians.

    Let’s ignore the personal aspect of a malpractice lawsuit and discuss the financial aspect of it. As you well know from your practice of law, the system is adversarial. For the plaintiff to win, he or she MUST PROVE A FAULT by the physician that is causative of the injury. A you may know, a physician is PERSONALLY LIABLE for any malpractice judgement….there is no corporate shield of liability in the practice of medicine. Depending on what state you live it that means you could lose almost everything you have except maybe part of your house and maybe retirement savings. Property, cars, clothes etc all at risk. Therefore every patient you see as a physician has the potential to lead to a malpractice suit and ultimately bankrupt you and your family if you loses. So when you sue a doctor for malpractice, he or she if fighting for his or her very financial life. To expect a physician in such a circumstance to not mount the most vigorous of defense (irrespective of whether he was a fault or not ) to protect his family’s financial circumstances is irrational. We physicians do have children and we want our children to be able to go to college etc, we have bills to pay like everybody else…is it really so bad to want to protect your lifestyle and family. Thus even if I was at fault in a malpractice case, I would not take the risk of sinking the financial future of my spouse and children by a free admission of guilt. Not saintly behavior or ideal for the injured patients but don’t we physicians have a duty to our family too?

    In sum, my proposed “no fault compensation” idea would allow quick and reasonable compensation of injured patients without having to prove fault by the physician. It would not put the doctor’s personal financial status at risk (unless there was criminal behavior) and allow the physician to discuss the error without committing financial suicide. An average physician will probably never discuss a malpractice errors as long as his financial life it as risk.

    Let me close with a true story regarding a physician I knew professionally to illustrate my point. Philip Adam Ticktin, M.D., at age 44 a well respected (by me at least) and competent ER physician, killed himself in 2004 apparently over an ongoing five-year malpractice lawsuit. If my memory serves me correctly he had a 7 year old daughter at that time. Surely more was going on in his life than the lawsuit to make him take such drastic action but none of it could have warranted the death penalty. However any physician who has ever been sued for malpractice understands how the lawsuit made him feel.

    I write none of this to ask for sympathy for physicians but to hopefully allow you to see through our eyes what the process is all about and what motivates us.

    If you have better ideas about how to fix our system than I do then please suggest.

    • Alice

      I write none of this to ask for sympathy for physicians but to hopefully allow you to see through our eyes what the process is all about and what motivates us.* [end quote]

      I can completely sympathize. I wrote a few weeks ago on a board about depression here on Kevin’s site that a medical error, and the diagnosis of the spread of cancer that another doctor agrees the delay caused nearly drove me to suicide. The hamster on the wheel in my brain ran wildly, non-stop, no sleep, I lost weight, I blamed myself for not getting a second opinion faster, for trusting a mere mortal……I watched the effects from radiation hit my daughter in an unexpected way. I used to wish a gas leak would kill the whole family while we slept. I considered street drugs just so I could pass out for two days and give my brain a rest.

      I can’t dissect why a doctor would not settle, or apologize, but I can share the depths of his despair and my daughter did nothing to deserve her pain and suffering that could have been avoided.

      Enough misery all around…….so let’s look at the foundation and cause of it and how to prevent it. Picking up the pieces afterwards is so painful it’s hard to even deal with it.

  • http://advocateyourself.blogspot.com Cheryl Handy

    I think physicians are terrific. I organized reasonable healthcare reform rallies before ObamaCare. I hate that physicians are marginalized and considered an interchangeable commodity by the current administration.

    I want university physicians to do amazing research. My dad was a medicinal research scientist. I appreciate the knowledge and art of medicine.

    At some point, physicians and pts stop trusting each other. I don’t think it’s just lawsuits. It’s class envy, govt misinformation, even my horrid profession (attys) & some bad docs.

    The solution will be complicated bc how our country got so twisted is complicated. For starters – sorry does work.

    In 1985 I had suffered for 3 years after an incomplete volvulus surgery. An amazing Duke surgeon Dr William Peete saved my life my completing the procedure. For several months after the surgery I had an oozing hole in my belly. Appt one & two, Dr Peete advised me to be patient and I was. On appt three Dr Peete took an xray & simply said a tube must have broken off inside my belly.

    Dr Peete scheduled me for surgery. I don’t even recall if he said he was sorry for “problem” – but I could tell he cared. He never blamed me (like orthopedics surgeons have in last 10 years), he took control and made me feel safe and (most important) he just fixed it and we moved on.

    I was in my 20s. My parents never saw a bill but they would have paid it if they received one.

    All I ever wanted was a surgeon to look at my leg – look at what they did and fix it. They don’t. They don’t at discharge when the wound is open or days later. They hide and refer me to Risk Management.

    This isn’t about me preventing me from allowing a surgeon to reap the benefits of his hard work & feed/cloth/educate his children. This is about the surgeon accepting responsibility for an error and maybe in so doing providing his children with the best life lessons – Always act with integrity and character

  • Cheryl Handy

    Txmd:

    I feel a bit like Columbo now … By the way …

    Why *can’t* a physician admit an error? Admit it before the Med Mal case is ever filed. Then fix it and make it right. If you were in a car accident you’d just accept and move on.

    You are human – you make errors. Accept it, fix it, move on.

    Patients (that includes me), find someone who can fix, move on.

    I don’t want to sue anyone. I just would feel safer if the best Hosp in NC would accept when make error – not for $ – to reduce likelihood it will happen again.

  • http://advocateyourself.blogspot.com Cheryl Handy

    Alice-

    God bless you, your family and give you strength and peace. I really understand your pain.

    Physicians are just mortals. They are just human beings. Even on the best day of the best surgeon or physician, there will be human errors.

    When an error is made, we hope that the physician will discuss the error with us immediately. Then we can make a plan to heal.

    But if the physician hides under his desk, your body or your child’s body is not beyond your control. You are still able to get medical care, treat the body with kindness and respect. You are still able to live and set examples for your chil of character and integrity.

    You can’t blame a doctor for your stage in life. You make your life the best it can be and live in the moment. Every breath of air is a gift.

    I understand pain & illness. But you must seek help for depression & enjoy your life. No one – not even a doctor – can destroy your life unless you give him permission to do so. So don’t do it.

    And frankly, no settlement dollar amt is going to make dianosis errors with cancer any easier. I have been there. It doesn’t matter and the doctor just gets defensive & gun shy. Moreover, you still don’t get the apology and patient safety isn’t improved.

    Cherish time. Cherish moments, live in the moments.

    Maybe it will take us patients taking control of our own lives even after a medical error for physicians to start trusting us enough to just be honest with us — and stop looking at patients as potential lawsuits everytime we walk in the door.

  • TXMD

    Who likes to admit a mistake….nobody likes to call attention to their errors in any profession or even in their personal life. Throw in the possibility of a lawsuit, even a tiny possibility, with the financial risks attendant to a malpractice lawsuit and you guarantee the physician circles his wagons and denies all-not exactly admirable professional behavior but all too human a reaction. Most of us get sued eventually in our career-recent October study says 61% of physicians 55 years old or older have been sued at some time in the career. 90% of all surgeons get sued in their career. Every year 95 malpractice suits are filed for every 100 physicians in practice. Having said that, its likely a small group of physicians that gets most of the suits in any given year. It is that group that should get extra scrutiny with peer review and by the licensing boards. I heard that the Texas Medical Board will start an investigation on its own if it finds out about a high number of at fault malpractice lawsuits against any specific doctor. When suits settle with no admission of fault by the doctor, the Medical Board may never hear about it. Another reason why the current system is inadequate for peer review.

    We need to disconnect compensation for injury from fault determination. Trust the medical profession/licensing boards to discipline substandard physicians. This can include fines, limitations on scope of practice, requiring proctoring for a space of time, retrospective random sample chart reviews, additional continuing medical education, or ultimately license revocation. See link here to see what Texas Medical Board did recently-this is completely public information by the way.

    http://www.tmb.state.tx.us/news/press/2010/090210.php
    Get past the informational stuff and look toward the bottom for actual names of physicians disciplined.

    By eliminating the hammer over the doctors’ heads of massive unpredictable malpractice awards they will be more willing to talk about errors, to apologize as well, and to meet with families after a bad outcome and go over what went wrong.

  • Alice

    Cheryl I am grateful for your understanding, but it’s incomplete. I didn’t sue. I am trying to get a grip on all the posters and postings. Did one of your posts mention suing? Did if fail? Sorry for not rereading, but I am dealing with doctors and a geriatric psych ward, three social workers…they are on my side but even then they work for the system….everyone protects their own career.

    The doctor was cited by the Ombudsman and my goal is to keep giving input so the doctors who use denialism can’t get away with it. Nothing like a real life story that can be proven.

    Until you believe your child is going to die because a doctor failed to read the lab notes…..not once, but twice…..and you argued with them because in your heart you knew something was wrong. It’s going to be very hard to understand in completeness.

    I don’t like victimhood, I don’t like pity, but the dark side of medicine needs exposed not covered up, and I plan on shining a light there despite the pain in the rear I present!

  • http://www.twitter.com/alicearobertson Alice

    Throw in the possibility of a lawsuit, even a tiny possibility, with the financial risks attendant to a malpractice lawsuit and you guarantee the physician circles his wagons and denies all-not exactly admirable professional behavior but all too human a reaction. Most of us get sued eventually in our career-recent October study says 61% of physicians 55 years old or older have been sued at some time in the career. 90% of all surgeons get sued in their career. Every year 95 malpractice suits are filed for every 100 physicians in practice [end quote]

    Can you give a citation to these stats?

    And I did ask this once, but no answer……..why are doctors desiring the carte blanche you don’t offer other occupations? It just seems too self-serving. If I were a doctor I would probably debate from the exact standpoint you are taking. Practicing in less fear would create an atmosphere of more freedom to practice and more money……and, yet, it’s really hard from a patient’s standpoint. It’s only fear of the criminal or civil consequences of the law that keeps me in line. It’s the very foundation of keeping civilization under control. Why is this type of control wrong for doctors and doctors only?

    Surely no-fault will increase injury? To a doctor that may seem ignorant……but not to the average reader of this blog…and we are here to be a type of iron-sharpens-iron and can’t assume people know what is between-the-lines from an occupational standpoint. Truly…. I’m listening and I have to commend you for continuing dialogue.

    I am friends with a plastic surgeon who claims malpractice never crosses their mind because they are so patient focused. They have practiced for years without ever having a suit placed against them.

    Could you differentiate between private practice and doctors in large hospital systems……like the Cleveland Clinic who really don’t seem worried at all about malpractice. How would no-fault affect these parties, and patients, or is there no difference?

    Another interesting comment was made on conservative radio….they made a joke twice about doctors who are moving to Texas. Then the host said it’s not a joke. I found the comment curious. Of course, I travel around with three teenage girls who chatter incessantly, so concentration is not at a premium at times. Was it just a joke or substance?

  • Dr. C

    Mr. Nash,
    Thank you for for taking the time and effort to write on this blog. I’m a cardiologist practicing in Maryland. From my personal experience and from my serving on our hospital credentials committee, I can assure that the “mistrust” between physicians and trial lawyers is very well founded and based firmly on the fact that the vast majority of physicians (the vast majority of which are dedicated and caring professionals) have been sued. I have had the opportunity to review many cases and have concluded that the cases that go to trial are not due to malpractice but primarily due to bad outcomes that are unavoidable and sometimes “just happen,” despite excellent and diligent care.
    The cases that seem to settle fall into two groups: cases that are so egregious (yes, I will freely admit that some of my colleagues are bad docs) that no defense attorney would dare try them (these are thankfully rare but do unfortunately occur); and cases that are essentially legal blackmail to try to force a settlement for a frivolous claim that would cost more to try than pay out.
    I don’t think that plaintiffs attorney’s can play a constructive role in the process of med mal reform; it’s too big a conflict of interest. They would be working against their own interest and livelihood.
    You’re posts are rational, well written, and fascinating to read. You clearly have a wealth of experience and knowledge and an extremely keen legal mind.
    I lament that you have applied your talents to suing physicians. We need lawyers like you to write the policies to reform our system, not to perpetuate its worsts excesses.
    Your posts are very appreciated. Please keep writing.

    • Nerdy but not a clinician

      When you say “the vast majority of physicians have been sued,” what percentage of the doctors licensed to practice in Maryland does this amount to? 50 percent? 75 percent?

      Out of curiosity, I ran a search at my local courthouse of how many malpractice cases have been filed in the past 5 years. There have been 8. Two are still open; 4 were dismissed in favor of the doctor; 1 went to trial and the jury found in favor of the doctor; 1 went to trial and resulted in a mega-verdict.

      Over the same 5 years, I would venture to guess there have been thousands of patient encounters and hundreds of mishaps that did not end in a lawsuit.

      I understand it’s hard to keep the emotion out of this, but at some point the facts have to be part of the discussion. When the rhetoric is allowed to escalate, it has a way of making everyone lose their perspective.

      If I ruled the world, I would advocate for a combination of solutions. Some form of non-adversarial dispute resolution should be available to patients who have been harmed, giving them a chance to have an honest discussion with providers about what happened, have some of their costs waived or additional medical expenses paid for – whatever it reasonably takes for everyone to walk away from the table and not feel they have been screwed.

      I would advocate for some kind of impartial panel to screen med-mal cases before they can actually be filed, to determine whether they’re truly meritorious. Ideally this panel should include a couple of laypeople so the patient’s perspective is fairly represented.

      Finally, I would advocate for better systems of support, both for patients/families and for clinicians involved in a bad outcome. Ideally, this would include education and dialogue about each other’s perspective and the tough emotions that accompany medical harm. There is no way a patient is not going to be angry after a bad outcome. It’s normal and it’s part of the process. But too often we’re blamed for being angry and upset (or it’s assumed we’re going to be so angry that we’ll refuse to be reasonable), and instead of allowing people to work their way through the emotional process, the dialogue remains stuck. When people feel they are not being heard, the discussion tends to shut down and the chance of resolving the situation in a non-adversarial way is greatly diminished.

      Breakdown of the doctor-patient relationship is one of the single biggest contributing factors to the patient’s likelihood of suing. This is a fact. Look it up at PubMed if you don’t believe me. It has nothing to do with the existence of lawyers and everything to do with the fact that when patients don’t get answers or when their queries are met with hostility, disrespect and stonewalling, at some point they begin to feel they’ll be better off with legal representation.

      If doctors feel they’re getting the shaft from the legal system, try being a patient who’s been injured. I’ve had to accept the fact that I’m never going to know what really happened and that there’s never going to be any accountability. If you hate lawyers, you can always avoid them (at least to some extent) but I can’t avoid being a patient for the rest of my life. At the end of the day I think we all want the same thing – good care for patients.

      It’s time to get past the knee-jerk blaming and defensiveness and actually listen to one another.

      • http://nashandassociates.com Brian Nash

        BRAVO, BRAVO, BRAVO – yes, I’m yelling with the caps! A suggestion with some real (my opinion ONLY) potential – or at least some points worthy of discussion.

        Maybe I’m just starving for the rhetoric (at times) to die down and we get to potential solutions. “It’s time to get past the knee-jerk blaming and defensiveness and actually listen to one another.” AMEN, AMEN and I say – AMEN.

        I actually got to the point not long ago (like this morning) when I considered printing this out (yeah…there go a bunch of trees), doing a spreadsheet of the “concerns, issues, solutions, suggestions, whatever” – I haven’t figured out the right format yet and seeing where this has taken us.

        Bottom line: sorry – but to hell with the lawyers AND the doctors who don’t want to be part of the solution FOR THE PATIENTS. (I must be getting tired or frustrated or both – whatever).

        Quote: “If I ruled the world, I would advocate for a combination of solutions. Some form of non-adversarial dispute resolution should be available to patients who have been harmed, giving them a chance to have an honest discussion with providers about what happened…” Yes, a partial quote but it’s got the essential message I’ve been writing (any of you treat a lawyer’s carpal tunnel from all this typing? – just kidding) about for over a week.

        I have no clue what the total experience has been for this group in terms of suits, claims, mediations, etc. Sounds like if the doctors on here haven’t been sued, they know someone who has.

        Well, note the following quote – see above for full context: “It has nothing to do with the existence of lawyers and everything to do with the fact that when patients don’t get answers or when their queries are met with hostility, disrespect and stonewalling, at some point they begin to feel they’ll be better off with legal representation.”

        How many, many times have I been trying to get this across?!!!

        OK…so now what system can there be to accomplish this – again – READ WHAT Nerdy but not a clinician has taken the time to propose. Do any of you realize that if you analyze these 150 plus posts/comments that some of these concepts have been referenced by some at various and sundry times.

        If you want the current system to continue on, then just keep blaming us the lawyers and we’ll keep blaming you and we’ll get nowhere. You hire your lobbyists, we’ll hire ours – we’ll waste a ton of money, see what party we can get in office and go from there. But – ask yourself – what lobby do the PATIENTS have? What the heck (I’m being politically correct although I don’t feel like it very much by now) voice do THEY have in all of this? Oh, I guess there are patient rights groups but can they really be heard over the din of the legal and medical professions and their attack dogs?

        Maybe it’s the buzz words we use: tort reform, caps, fault, compensation, admissions, peer review – who knows. But Nerdy not a clinician is right – I’ll say it one more time – let’s listen and see if we can’t put them FIRST. You care about your patients or you wouldn’t or shouldn’t be doing what you do, Docs. Yeah…the cynics among you won’t believe it – but by this point I could care less – there are many lawyers – if not MOST – who really do care about their clients. When you start believing that, maybe we can make some more progress. If you refuse to think it’s all about the money for the lawyers – and even the clients – then why don’t you just gracefully exit stage right and let the rest of us get on with the program. I’m growing so weary of this childish argument. You obviously don’t understand the first thing about what motivates me – and MANY of my colleagues.

        Anyway – BRAVO – Nerdy (I’m starting to use a nickname for you I’ve read and written to you so much – smile). Nicely done.

        • http://nashandassociates.com Brian Nash

          My passion got the best of my mind: I wrote: If you refuse to think it’s all about the money for the lawyers – and even the clients – then why don’t you just gracefully exit stage right and let the rest of us get on with the program. I’m growing so weary of this childish argument. You obviously don’t understand the first thing about what motivates me – and MANY of my colleagues….”

          Read: If you refuse to get off the concept that it’s just all about the money….” You get it, I’m sure….

  • http://advocateyourself.blogspot.com Cheryl Handy

    Dr C

    The physicians have been sued for reasons that have zero to do with trial attys. The mistrust is primarily b/t pt and doc. Physicians are (as stated on this board) starting to consider patients as potential lawsuits when they walk through the door!

    When there is an adverse outcome, pts do not as a general rule turn first to a trial atty —- they turn back to to physician. But the physician is already in defense mode, written incident reports, discussed the matter with risk management, etc.

    Mr Nash is helping those who feel there is no where else to turn.

  • http://nashandassociates.com Brian Nash

    Dr C – good to hear from a fellow-Marylander. Tx for your kind words re this post.

    Take to heart what Cheryl Handy just posted this am in reply. That’s what I’m doing now. I’m NOT suggesting that folks should turn to a trial lawyer first. That’s precisely why I keep trying to find a middle ground or solution to the natural instinct of doctors and the medical profession in general to “go defensive” when a bad outcome takes place.

    I get the frustration of White Coat, the anxiety of TXMD – all the other emotions and concerns. However, just because I think I understand their concerns doesn’t mean I turn a blind eye toward the concerns of patients/clients, who are so distraught, frustrated, angry and scared because they can’t get an answer or help because of the defensive posture being taken by the people they need the MOST – their healthcare providers.

    I’ve been striving throughout this post to see if there are some new, fresh thoughts on how to achieve this without abdicating the rights of patients, which MUST be protected.

    Again…good of you to take the time and post your comment. Any ideas?

  • http://advocateyourself.blogspot.com Cheryl Handy

    My first suggestion is that the AMA and other organizations (like AAOS) stay out of the medical liability issues. They should focus on improving medicine and not encourage/fund litigation against brave physicians who testify as experts witnesses against defendant physicians.

    My second suggestion is that State medical boards should have actual public disciplinary hearings and involve complainants in the hearings. Attorneys go through it. Why not physicians? Lets not protect the bad doctors.

    In house procedures can be confidential but state procedures should be open. In that way, the patients are protected from bad medicine, incompetent physicians, etc. And, in any particular situation, the patient gets to know why the particular result happened.

    Now I get to my third and most important suggestion involving resolving the patient’s health issue. So far I have not mentioned pain, suffering, bankrupting anyone. I am just talking about getting incompetency issues resolved and answers addressed.

    Now lets talk about getting the patients healthy and well. That should be the primary focus. Just do it. If the patient no longer trusts the particular doctor or the doctor does not have the skills then lets find someone and lets get the patient healthy if possible. ASAP. That’s all. Period.

    If the patient is dead then there are other questions. Was it inevitable? Painful? Then maybe in those cases we need arbitration and privacy.

    Finally, I am sorry Alice if I offended and/or misunderstood. I was a medical malpractice practice defense attorney, worked for hospitals and physicians for many years.

    In 2000, I allowed an orthopedic surgeon to perform an unnecessary surgery to tighten my lateral ankle ligaments so I could run faster. Bad idea and it failed miserably because God made me with very loose ligaments. I needed bilateral high tibial osteotomies to match the new ankles. I couldnt work. I sued. He fought, insulted me, I got depressed.

    10 years and multiple repair surgeries later, I have serious osteomyelitis, no physician and am bed ridden. I beat cancer 3 years ago. The bone infection will be what kills me. That I get.

    But ultimately I am an adult. I understand informed consent. I of all people! I trusted and worked for these exact physicians!

    Now I see physicians and I wish I could make them understand that I just want to get the infection resolved and live.

    But they look at medical records and they see that the last surgeon discharged me with an open wound after trying to fix the bone infection. They see that the last surgeon is from Duke and he left the hardware in for 5 years as I complained about pain.

    Every surgeon who looks at me knows that if I do not get surgery I will die. But they say the Duke surgeon messed up. I can see it in the surgeon’s eyes. I tell them I dont want to sue anyone.

    I just want my leg fixed and I want to live. I tell them my dad just died from this infection in Jan 2010 and I dont want to die. I say I will sign anything.

    Not enough. The surgeons are just too scared of the risk of litigation to help me. And I will die.

    So, my solution — patients come first always. Help the patient. Get the patient well no matter what. Some doctor in the group or hospital should just step up and make sure the patient lives.

    Thanks to all of you Dr Kevin for providing the forum and physicians, non-physicians and even (actually especially) evil attorneys (Mr Nash) for engaging in the discussion.

    It begins with how we interact with each other today.

    Cheryl Handy

    • http://nashandassociates.com Brian Nash

      Evil Attorneys (Mr. Nash) – ow!!!

      Well done, Ms. Cheryl Handy.

  • TXMD

    Dear Alice,

    Here is the link to the recent AMA study about malpractice suit frequency. http://www.ama-assn.org/ama1/pub/upload/mm/363/prp-201001-claim-freq.pdf.

    In response to your question about physicians asking for carte blanche, I don’t think I am asking for that. I don’t think fear of a malpractice suit and personally bankruptcy motivates physicians to practice better medicine. It does motivate us to practice defensive medicine. Nothing I have proposed will decrease the costs/increase the income that physicians face in medicine…some might argue that it might even increase the costs/decrease physician income.

    I disagree with your underlying assumption that only fear of civil or criminal consequences keep me or my fellow citizens in line. I believe that most people are decent moral people motivated to do well and to get along with their fellow citizens. It is not fear of the law that keeps me from murdering and stealing from my fellow citizens. Unfortunately not all people are of like mind and that is why we have a criminal justice system and use it to banish anti-social individuals from society at large and put them in a rigid social structure called prison. I think if we have physicians who practice good medicine only because they fear a malpractice suit or license revocation by a medical board then we selected the wrong people to practice medicine.

    In response to your concern that…”Surely no-fault will increase injury? ” I think this is not likely. This would imply an underlying assumption that a physician starts the day with intent to commit injury of his patients and only fear of a malpractice lawsuit and financial judgement keeps him from causing harm. It has not been my experience over the many years of my practice and interaction with physicians that this is what motivates any physician in the practice of medicine.

    In response to your statement “I am friends with a plastic surgeon who claims malpractice never crosses their mind because they are so patient focused.” That sounds like a marketing statement to me and I am skeptical. I’ll bet he has been sued at least once on a statistical basis.

    With regard to physicians moving to practice in Texas ever since the malpractice caps went into place, the objective data I have seen suggests that is true. I know that my malpractice premium, after increasing by 100% over the preceding years, has come back down to what it was prior to the caps. I am not necessarily advocating award caps but just stating my understanding of the facts.

    • http://www.twitter.com/alicearobertson Alice

      Dear Alice,

      Here is the link to the recent AMA study about malpractice suit frequency. http://www.ama-assn.org/ama1/pub/upload/mm/363/prp-201001-claim-freq.pdf. [end quote]

      Alice responds: I want to say upfront I am certain you are a great physician. I relish this type of conversation, and firmly believe others are learning. I have these discussions with a few physicians I love (and they definitely don’t like lawyers……until they need one………sorta like patients who yammer on about doctors……..until they need one, and they hope and pray they can get the best). I fear we are shouting past one another…..and I don’t want that. I waited until late at night so I could truly read and not skim what you shared. And, please know, if you get one response here…….remember hundreds will read this……several times I have opened my e-mail with a subject line that will read like this; “Your posts at kevinmd.com”. Lawyers, doctors, nurses, patients have all wrote to me (not that I am that popular…..ha..the thought amuses me….opinions as passionate as our own will not make one wildly popular…….but to thine own self be true)…….trust me your voice is being heard……and more importantly…….for Brian to understand…..people are listening……even when it seems they are not. It’s too important an issue to just let simmer.

      Okay…….okay…….I’ll get back on track…but then again…..ha!

      Hmmm…….this study was just surveys and it says no outcomes are listed and then it says:

      *Sixty-five percent of claims were dropped, dismissed or withdrawn, 25.7 percent were settled*

      That’s very good odds! I read on a physician site that only one out of eight injured people even file. That’s even better! Because only about half of those will be settled. I would surmise the actual facts are different from these surveys…….but, in truth, I am way too tired to check it out for comparison sakes. I am an insomnia, so if I can’t sleep I will come back online read more to try to understand your insights.

      It seems we are both sitting in the same arena…but like the usual witness scenarios our recollections and viewpoints are quite different depending on where we sit? With patient trust of physicians so low I realize it is difficult for you……but being a patient is difficult too…. I don’t think physician’s understand the fear of the unknown a patient suffers. This is why I love Dr. Jerome Groopman. He was misdiagnosed and everything he learned as a doctor went out the window. He was told a mark was on his xray. His mind raced with fear as he thought of a cruel death. His wife is a physician and he could not contact her. He could not comfort himself because now he was a patient…..he had lost control….complete and utter fear for hours until his wife called him and was able to be rational and comforting. But because he is a physician he was able to use his clout and find out the next day it was an error in radiology (apparently, quite common considering the vast amount of reading they do) and he was fine.

      As a patient you read his words and you suddenly feel a type of vindication…..finally, you are understood on a such a human level I………quite honestly……fell desperately in love with him! :) Empathy personified……..magic……for a patient who understands fear all too well.

      TXMD: In response to your question about physicians asking for carte blanche, I don’t think I am asking for that. I don’t think fear of a malpractice suit and personally bankruptcy motivates physicians to practice better medicine. It does motivate us to practice defensive medicine. Nothing I have proposed will decrease the costs/increase the income that physicians face in medicine…some might argue that it might even increase the costs/decrease physician income.

      Alice responds: You really don’t think it will decrease your premiums (?)…….I don’t foresee the cost of medicine going down. I like the Wall Street Journal writer PJ O’Rourke who said the famous quote; If you think healthcare is expensive now……wait until it’s free.

      So, let’s just assume for a moment……if insurance premiums go down you will make more money? I guess if you are not in private practice and your paycheck is salaried from a large hospital what you say would be true??

      Fear not a catalyst for better treatment? I fear a speeding ticket and the cost of it. If not for that law I would be hell on wheels (actually, most days I am…….and I am getting too old to keep batting my lashes! :) ). If the consequences of breaking the law were not being upheld I would be a horrible beast………actually……..oh let’s not go there…..ha!

      Seriously, doctors order loads of preventative tests just to avoid a lawsuit. Obviously, most of those tests are empty……..waste of time……..but in some cases they hit pay dirt….the patient is genuinely helped…and so is the doctor who helped a patient and protected themselves. The fear of the lawsuit does serve a small percentage of patients and keeps doctors out of court. I am somehow not understanding how fear of the law doesn’t help all of mankind, far less doctors? The psychiatrist who was my dad’s doctor this weekend told me he would do whatever I say except he was fearful of a lawsuit. It’s a double-edged sword because it hampered me and helped the doctor.

      Alice previously said: Why debate no-fault if your freedom won’t increase? I don’t see how it could help the patient?

      TXMD: I disagree with your underlying assumption that only fear of civil or criminal consequences keep me or my fellow citizens in line. I believe that most people are decent moral people motivated to do well and to get along with their fellow citizens. It is not fear of the law that keeps me from murdering and stealing from my fellow citizens. Unfortunately not all people are of like mind and that is why we have a criminal justice system and use it to banish anti-social individuals from society at large and put them in a rigid social structure called prison. I think if we have physicians who practice good medicine only because they fear a malpractice suit or license revocation by a medical board then we selected the wrong people to practice medicine. [end quote]

      Alice responds: Overall you are right……but it’s fallacious to assume physicians are on some higher degree of the food chain they don’t need policing or fear of a financial settlement for a negligent action. We could argue this forever……we could say man desires so strongly to live they will wear a seatbelt without coercion from the law…..we could say parents love their babies enough to use baby seats because the consequences of the inaction is enough to send fear up our spines……but it’s not…..therefore…..with resignation I say we need laws and regulations on occupations such as doctors and (realizing we agree) on mankind (and I gag saying that because I am a libertarian leaner who understands what Teddy Roosevelt meant when he had to bend his capitalist views around the fact that sometimes the capitalists need policing…….and so it is with mankind).

      TXMD shares: In response to your concern that…”Surely no-fault will increase injury? ” I think this is not likely. This would imply an underlying assumption that a physician starts the day with intent to commit injury of his patients and only fear of a malpractice lawsuit and financial judgment keeps him from causing harm. It has not been my experience over the many years of my practice and interaction with physicians that this is what motivates any physician in the practice of medicine. [end quote]

      Alice: I would like to continue this conversation, but I need more time because I am basing what I said on reading about what works and what doesn’t in the healthcare industry (I will share I volunteer at a Judeo-Christian think tank who is fighting hard to repeal Obamacare).

      The only thing I can do with my excess energy, firsthand experience, and passion is to try to write and advocate for change. I want to understand where you are coming from. If I could see how this helps the patient I would be your biggest fan for this plan.

      If your plan is so meritous can you share why it isn’t being accepted? I need more information because what I read tells me differently, although, again I really believe from your seat in this arena it makes complete sense. I just need to see how a patient will be served better…….not just that a doctor thinks it’s a good idea.

      TXMD shares: In response to your statement “I am friends with a plastic surgeon who claims malpractice never crosses their mind because they are so patient focused.” That sounds like a marketing statement to me and I am skeptical. I’ll bet he has been sued at least once on a statistical basis.

      Alice says: I don’t have their permission to give their name…..but let me say this doctor is an award-winning doctor whose name is published……they are the best doctor I know…..completely committed and honest…….and, sadly, honesty has been lacking in my experience with many doctors. I, genuinely, feel you are fighting a mislabeling based on the public perception of your own colleagues bad behavior (you have probably visited the site, Doctors Behaving Badly?). If you only knew how deeply in my heart I want to like the doctors who I depend on. I send notes of encouragement and appreciation to the ones who deserve it…..and move on from the ones who………um…….are burned out…..sitting on my hands for a moment….

      TXMD: With regard to physicians moving to practice in Texas ever since the malpractice caps went into place, the objective data I have seen suggests that is true. I know that my malpractice premium, after increasing by 100% over the preceding years, has come back down to what it was prior to the caps. I am not necessarily advocating award caps but just stating my understanding of the facts.[end quote]

      Alice: That’s really interesting. Thank you! Again…….you really are to be commended for your patience and willingness to answer the questions that are surely rolling through the minds of the readers.

      Please don’t be discouraged by constant questions…..I am not disingenuous…..I have wrote on these boards before that sometimes to the average patient it seems doctors speak a type of Rosetta Stone language….and as a patient I longed to crack through it. If more physicians patiently answered questions in this manner we would experience true communication…….because we know it’s a two-way street to truly communicate. And kudos to Mr. Nash and others who are willing to freely give of their time…….my goodness…..it’s downright enlightening! :)

  • Thomas A. Amoroso

    Mr. Nash,

    You raise a few good points, and your conclusion is entirely true in my opinion. You do so, though, with a tone which, to my ear, doesn’t have a lot of love for physicians in it.

    More seriously, while I agree that the health care system is flawed, one of the truisms of human behaviour is that making fun of it won’t make it better. For instance: yes, lawsuits play out in court – but the goal of every physician is to *never go to court*. George Annas and Leonard Glantz were my Law & Medicine professor at BU (I was extremely fortunate); George opened the course with the question posed to him by every doctor ever: Given $SET_OF_FACTS, can a patient sue? George’s answer was, he said, always the same. Of course they can sue; the question is, can they *win*?

    And as a physician, I argue that that’s wrong. I am certain you’ll disagree, and in some cases you’re right, but in most cases, the adversarial nature of the tort system *works against* the reform we *must* have, by making everyone too frightened of coming forward, because as soon as they do, a plaintiff’s attorney comes forward to represent the injured party. You will say they deserve this representation-perhaps you are correct, but that changes nothing about the fact that physicians *are never, ever* willing to do ****ANYTHING**** which makes it more likely they’ll see the inside of a courtroom. So they will hide, they will obfuscate, they will stonewall, because they are *TERRIFIED* of the very *threat* of suit.

    I say this as a physician who, while I’ve never been sued, shares that terror, to the point that, if I ever am sued, I will likely leave the practice of medicine permanently. (I’m trying to leave it now, for that and other reasons. I can handle the pay cut, fortunately for me, if I am forced to do it).

    Unreasonable? I agree. But that’s the environment which exists. You can say we shouldn’t be that afraid, but the fact is we all are, and your encouragement to come out into the light is countered by the many, many circling sharks which we can see from our hiding place. I’m not sure how to change the culture-I suspect we will both (attorneys and physicians) need to do some changing. And I’m very sure it will be slow. Be patient with us-we’re deathly afraid of you, and you aren’t giving us many assurances of friendship which sound trustworthy at all.

    >T<

    • http://nashandassociates.com Brian Nash

      Dr. Amoroso

      Please don’t forget doctor that I spent a lot of time representing doctors. I saw the fear – palpable. I saw the anguish, the depression, I’ve seen a suicide while a jury was out, I’ve seen doctors go for counselling as a result of lawsuits. I often felt that one of the bigger parts of my job wasn’t winning the lawsuit, it was getting my clients through the process! Don’t think for a moment I don’t appreciate what my profession and the legal system does to the psyche (if not the financial and physical well-being) of those who are sued. I’ve represented so many of you, I’ll use your term: TNTC!

      I get your pain, do you – as a result of this forum – which is just a sampling of what many of your (not you personally, of course) patients and my clients feel. One emotion that is also common for them is – GUILT! It takes many forms – but a common thread is – “why did I listen to the doctor? My child (read – wife, husband, sister, brother) would be alive if I hadn’t done that!” Please don’t think this is rhetoric!!! I hear this over and over again. Why in the world should THEY feel guilty? Trust me – many do. Just had it Saturday and Monday of this week. Happens a ton of times. You ever go to my website (no – hardly a marketing ploy as you can well figure since you know what I do for a living) – check out MY video and what I talk about – it’s the same message I’ve been leaving here. It’s not about “let’s sue the bastards” or “I just nailed a doc for $X – million. It’s the same message as here – not all bad results are malpractice; we need doctors; when they do wrong, we’ll sue and bring all we can – I narrate on one of my fondest memories – holding a dad after a large verdict in a very conservative jurisdiction whose child died at a very early age – and asking him, “will you stop blaming yourself finally?”

      So…BOTH of us -medical and law DO need to change our attitudes.

      Listen – I’ve been doing what I do for a long time – almost 40 years. I’m 64 years old. I’ve seen so much pain and suffering on both sides of the courtroom that maybe it has tempered me. Maybe I’m not the “traditional” malpractice lawyer you all envision – maybe I am – I know who I am and what my principles and ethics are and what I care about. Why can’t the two professions (I know, I keep asking the same old question) just understand each other better and work together to the extent humanly possible and get to where ALL of us – at least those on this forum (I can’t be held accountable for all my brethren -nor can you for yours) are trying to achieve – less pain and suffering, better outcomes, better compassion when people get hurt at your hands (fault or no fault). Are we all that mired in our preconceptions and petty emotions that we can’t see through this haze and get to what counts. I suspect you and many others come from the place in which I reside: do we really want to leave our professional lives and not felt that we left a mark on what we all set out to do? So it’s slow – OK…but let’s get it started at least.

      If you haven’t done so already. take a look at the later post by Nerdy not a clinician. Some interesting food for thought. Read the leit motif of many of the comments by the patients – it’s all there. We just have to listen, tap into it and move on – together for their good.

    • http://www.twitter.com/alicearobertson Alice

      I say this as a physician who, while I’ve never been sued, shares that terror, to the point that, if I ever am sued, I will likely leave the practice of medicine permanently. (I’m trying to leave it now, for that and other reasons. I can handle the pay cut, fortunately for me, if I am forced to do it). [end quote]

      Alice: I can understand your “terror” many people live in “terror” of losing their livelihood, terror of…..whatever……but I am struggling to put this into proper perspective. I was terrified of becoming a mom…terrified while pregnant…..and, yet, I have six kids I am so thrilled to share my life with. I am terrified one will die……terrified a doctor will make another error……but can’t we see beyond that for the greater good? If you are making a difference and helping others?

      I was in the ghetto recently (Cleveland Clinic is surrounded by some of the toughest areas for crime) and jumped out of my car to help someone (long story). I, too, was terrified, but I did it. A gang was there, someone else ran to help me, so I could help the lady who needed help……but we, ultimately, overcame our fear of the possibility of being murdered…..and we were able to accomplish good.

      You really don’t think what you are doing is worth battling your inner fears?

    • http://Www.twitter.com/alicearobertson Alice

      To T…..I am curious….I think I am assuming something from your post that surely….I am wrong….my terror level alert system has been raised because I agree with your law professor about the right to sue. Do you realize the repercussions from your perceived suggestion is a bit terrifying? Are you suggesting the law limit this right? If so, it may bite back at you. See the suggestion through…ideas have consequences.

      I think the law should protect us, not limit our rights…and yes the law can be a cruel taskmaster at times. It hurts, but when done well it helps.

  • Dr. C

    Thank you eveyone for your replies. I will try to address some of your points:

    Nerdy: I don’t have statistics to offer you with respect to % of doctors sued. I can only say that after reviewing hundreds of medical staff appointment and re-appointment applications over the past years I have rarely found a physician who hasn’t been sued. I agree with most of your suggestion with respect to changing the system and will try outline some those below. I have no illusions with respect to how realistic an expectation that meaningful reform will ever take place.

    Cheryl: Your response is very valid. Please keep in mind that the knee jerk defensiveness of doctors and hospitals is a symptom of the problem, not the root cause. It is learned/conditioned behavior after being burned in the past. The doctor/patient relationship has been severely strained by the current system to the detriment of both. In my response to Mr. Nash below I will outline who I think are the real victims and real beneficiaries of this current med mal system.

    Mr. Nash:
    The current system truthfully only really benefits attorney’s (both plaintiff’s and defense) to the cost and detriment of physicians, but moreover to the cost of patients, who are the real victims of this system.
    Physicians go though the trauma of the legal system, get their names dragged through mud, are stigmatized, but in the end will move on. Our attitudes after a law suit are more jaded, we have more difficulty trusting our patients and their families, but the practice of medicine continues, albeit with much less job satisfaction and much more stress.
    Don’t get me started on the out of control defensive medicine that the system encourages.
    Occaissionally some physicians and their families are financially ruined by verdicts that require lifelong garnishing of wages. Some physicians that are foolish enough to practice without a malpractice policy are forced into bankruptcy. For most physician the scars are psychological and professional.
    Patients who have been wronged and have a legitimate claim are the real victims. Moreover I would contend that the most ignored patients are the ones that may have a rightful claim to damages that are low to moderate in amount, but would have a major impact on their lives. The cost to a malpractice trial and their vigorous defense makes it harder for patients to find attorneys willing to take cases that don’t promise significant payouts. The current system has little offer a patient who may be entitiled to, for example, a $15-20,000 settlement. This sum may not be enough to interest and attorney but may have a significant impact on an individual’s life. There is also no reason that a wronged patient should have to wait years to receive a just settlement. By then some may have suffered financial hardships and may have had to go through a bankruptcy.
    We need a system that disposes of cases quickly, efficiently and fairly. A jury trial is lengthy, contentious, ineffient, and benefits only the plaintiffs and defense attorneys. The notion of judging a physician in a jury trial according to a “standard of care” is laughable when each trial reinvents this standard with the use of dueling “expert” witnesses.
    A rational solution would be a med mal tribunal consisting of one physican, one lawyer, and one juror/lay person who could dispose of these cases more fairly and effieciently.
    Given the vested intererest of trial attorneys, their organizational might and lobbying efforts, and general reluctance of law makers (most of whom are lawyers) to address this issue, I have no illusions regarding the future of med mal reform.

    • http://nashandassociates.com Brian Nash

      Dr. C
      Before I get to your current post – you made one comment on your initial post I failed to address:

      You said:
      I don’t think that plaintiffs attorney’s can play a constructive role in the process of med mal reform; it’s too big a conflict of interest. They would be working against their own interest and livelihood.

      I have to disagree with you on this one. I doubt you’re surprised, but try to consider this: BOTH the medical and legal community have a “conflict of interest.” We are also the only two professions who deal with these issues that affect patients. You may have had experience (even substantial experience) acting as an expert, but with all due respect, you are not trained nor have you experience in *representing* patient’s and protecting their rights. No doubt you care for you patients tremendously and do all within your power to give them quality care and – make them better to the best of your skill and ability. That being said, physicians simply cannot be the sole guardians on ensuring that the patient’s rights are protected in some system you envision designed to protect their rights. You’re an outsider to what I do – perhaps a skilled and knowledgeable one – but nonetheless, you don’t do what I do. Your skill levels, knowledge base are not those of a patient representative/protector. You speak to the vested interests of trial lawyers – don’t doctors have “vested rights of self-protection” in these reforms you hope but doubt will be formulated. That is a rhetorical question! Of course, you do; so does my profession.

      The system you refer to as a “rational solution” is – as you probably know, what we used to have here in MD back decades ago. It has become so eviscerated due to unilateral waiver, etc. – that it never really got a fair run – did it? You may recall how it was abused when we had it here in MD. One side or the other not putting on any case, getting a ruling and then taking an appeal and mocking the arbitration process before a jury. I for one thought it had a real sound foundation in its conception; it just needed to be modified so that it was more of a meaningful process.

      Take a look at some of the suggestions of TXMD or Nerdy not a clnician or Alice, or Cheryl Handy or the host of other fabulous contributors to this discussion (no slight intended if I failed to mention you specifically – but you should know that by now). Is there not a essence of a building block with our now-failed MD system – with some real reform/modifications/additions?

      One final comment you make that is somewhat new to the discussion: you reference a key group – “[a] patient who may be entitiled to, for example, a $15-20,000 settlement. This sum may not be enough to interest and attorney but may have a significant impact on an individual’s life.”

      I’m going to respond with this caveat: anyone, and I mean anyone, who wants to do the “bash the lawyer gig” and write a reply about – see – it’s all about the money, I’m telling you now – post away. I won’t waste my time or the other readers to this forum by dignifying your comments with ANY reply. That’s just an old, sorry song that’s below your intelligence quotient.

      OK…now…back at it – you are absolutely RIGHT ON about this issue. It is the one part of my practice that I despise. I did a post within the past two weeks about the unfortunate fact of economics and medical malpractice lawsuits. Take your $20K example – forget the fee – experts, records, transcripts – the money in this world of litigation is GONE – nada for the injured patient. I despise the economics of representing people. It just turns out that I have overhead, employees who have homes and families and a couple of my own bills to pay. Do I do pro bono – oh yeah, I do. I just can’t afford to make a career out of it. These folks are injured too – some by outright malpractice. There needs to be a system for them too! It’s awful that this current process deprives them of their rights just as much as the, six, seven or eight figure plaintiff. Something needs to be done for them and done fast! Maybe we can discuss this some day… someone needs to discuss and address it and soon!

      Thanks for YOUR meaningful and well stated comments. Really glad you joined us here.

      You say you have no illusions – OK…maybe so…but don’t give up hope. There just might be more than one of me out here in the *tawdry world* of medical malpractice lawyers.

  • http://advocateyourself.blogspot.com Cheryl Handy

    As an attorney and an injured patient, I am ashamed of some of you physicians.

    The only reason an injured patient would sue a physician is because we feel we have no alternative. Part of what we as patients try to do (at least me) is communicate the frustration with the doc.

    Tough tootsies doc if you think the injured patient will sue or cry or call you a bad doc. Your primary concern should be the patient’s wellness. Just make things right and patients won’t sue.

    Caution – this is harsh: if physicians are afraid of patients & aren’t putting
    patients first then it’s time to find another profession.

    Here is great example of docs protecting bad medical practices & me running outta options: I had surgery for bone infection & was discharged with open wound to tibia. I asked to speak with surgeon before dc. Resident said no, but you can talk to risk management.

    Then I said I will get second op before IV antibiotics. Surgeon sent ltr berating me to 2nd. Now I have no surgeon and I will die.

    I call state hospital association & tell them pts should not be dc-ed with open wound and then prevented from getting care. They saw zero wrong with what happened. I just cared about patient safety. No lawsuit. No money. Just patient safety.

    Who protects patients from surgeons that dc sick pts with open wounds, dead tibia bone and no explanation? This is why pts sue!

    People like Mr Nash have to protect pts when doctors stop caring about us. It is just basic patient safety

  • http://www.twitter.com/alicearobertson Alice

    Cheryl….thank you for writing….what you are saying is valuable…..though, I understand quite hard for physicians to understand when they view the law as a sword, and we view it as a shield….they want it to be a staff.

    I tried to write to you privately because I am the Watson type and liked something I saw on your blog. But I couldn’t find a contact button. Of course, hanging out at the psych ward all these days has left me a bit tired, so it could be me.

    I was not offended……I understood your advice…and understand now that a time of grieving has passed that all my struggling led to a type of healing…..and because the doctors cared……encouraged communication…..reached out…..gosh……I love one of them in particular……(and another doctor I met here who reached out to me and has become a beloved friend….problem is some of them feel their colleagues behavior is flustering …..several doctors rah rah me….probably not a good thing….but they laugh heartily with me because sometimes I say what others wish they could……and being on the receiving end of arrogance that led to cancer spreading means it’s very hard for doctors to plead ignorance. Not suing has given me freedom of voice…which is more important to me) and maybe what I shared came off as dramatic……it is! :) Being injured is dramatic……to watch your child suffer needlessly is downright mental harassment for a mom who spends her life protecting her child.

    It does take time to absorb all that has happened. Your mind clicks and spins at a rate that only CS Lewis has summed up well for (oh do I love that man…….a shabby, old Brit who creates music of the heart) when he said it’s like, “a monotonous treadmill march of the mind”. And so it is…….but time is a great healer……and I know that this too shall pass…….fear is truly like grief……you grieve because a part of you is so injured emotionally it’s as if a death has occurred within your mother’s heart.

    Again, thank you!

  • http://nashandassociates.com Brian Nash

    pj – your new post came across my screen via email and I simply can’t find it on here. (Kevin – would you mind putting a ‘FIND’ function when the forum gets this long – hmmm!)

    I wanted to reply so figured I’d just quote what I saw on my email notification. Here you go:

    Author: pj
    Comment:
    Mr. Nash, thanks again for “opening up” this issue.

    To all those who have had bad outcomes, I praise you for courageously sharing your experiences, I truly hope that 2011 will be your best year yet and apologize on behalf of any of my colleagues who rendered substandard care.

    As a physician who’s never been sued- perhaps that’s why I bring no animosity to this dialogue- I like to see myself as open minded, but as well informed as possible. These opportunities where attorneys, health care providers and patients come together are frankly, vastly more informative than only talking/complaining amongst ourselves. Not trying to blow my own horn there- As a rural general practitioner and occupational medicine Doc, I have much less “malpractice risk” then an OB GYN in Miami.

    Mr. Nash, I believe you implied Matt is an attorney. I didn’t get that impression.

    Matt, would you please let us know, for “full disclosure” (and it also puts posts in context), what your education/profession are/is? Thanks.

    MY REPLY:

    I’m thinking that maybe I’ll move to wherever it is you are, stop fighting with your profession. stop fighting with lawyers and judges, stop holding my breath for jury’s to decide my client’s legal fate, stop having sleepless night making sure I can do the best I can for the client, stop paying exorbitant sums of money for medical records, experts, depositions – you name it – and write a book based on this forum! Oh what I life that would be. Maybe I can help you with the rehab patients – no, I won’t sue you; I’ll even sign a full waiver!

    Ok…seriously (although that did sound quite good as I was typing it) – this has been most informative. Maybe its the anonymity of most of the usernames that has permitted a lot to put their raw emotions and true feelings out there. I’ve never been in such a dialogue with doctors and patients before – I assure you.

    I have either heard the doctor’s side of the story when I was representing them or the patient’s side of the story now that I’m representing them. Sure – some things we all know coming to this discussion. Docs don’t like lawyers; some patients are very angry at their physicians or other healthcare providers…and perhaps you doctors all thought that all lawyers hate you – wrong on Count III. It’s actually been a lot more interesting to me to just be an observer/reader of the interplay between the medical folks and the patients. Docs – have you now gotten a taste of what I hear from them?

    Ok…packing up my bag of tricks and heading to the rural land of pj.

  • http://nashandassociates.com Brian Nash

    I just have to quote Alice, whose post just flashed across my screen (are any of you addiction counselors? I may need your help by the time this is done!) -

    She has a special way with words and deserves to be quoted:
    “though, I understand quite hard for physicians to understand when they view the law as a sword, and we view it as a shield….they want it to be a staff.”

    We are their shield. You may not like it, but in the current system – that’s exactly what we are! I’m fine with the concept of changing the “look, appearance or fabric” of the shield, but you can’t just close your eyes and hope we’ll just vanish. Not going to happen! Make us part of the solution, not your problem. You want to talk to us – we’re here. Some may just want to sue you and could care less what you have to say or what you feel. Don’t be so close-minded to think that’s a universal truth. If you do screw up – everyone of you admits it happens – then the patients need to have their rights protected. Why is it that some of the more outraged calls we get are from PHYSICIANS, whose family members have been mistreated in their eyes. You want stories – I’ve got stories – real stories! Guess it’s all a matter of perspective, don’t you think!

    The issue is HOW can they be properly protected and at the same time re-build what appears to be a somewhat common theme here of patient -mistrust that so many of you seem to harbor. Some have said they fear not only the lawyers but their patients – they’re a lawsuit waiting to happen. How sad! Maybe true – yeah…because of lawyers, right – but so sad!

  • imdoc

    Mr Nash -
    I think you are right that this conversation is rare. It may never have occurred anywhere with such candor. Most of what I have seen in public gatherings degrades into political posturing or is in some fashion muted. There is novel opportunity here.
    Recurrently, I hear you and others stating that patients want mainly ‘answers’. That is very reasonable and I must say is owed to patients if they perceive poor outcome. I think one barrier which exists is that communication between doctor and patient gets cut off completely as soon as the legal system is involved. The risk management training tells us if an action is filed to not contact the patient or family and speak only through counsel. I wonder if there is a way to penetrate that and actually enhance communication.
    Another observation regards the expert witness system. Everyone knows the outcome before seeing all of the information. Suppose we had a system in which the expert had to get information the way the treating physician did? For example, require the expert to correctly identify the missed abnormal x-ray from among 10 others. It seems that would be more powerful.

    • http://nashandassociates.com Brian Nash

      imdoc
      Two excellent points.
      On your first one – let me quickly share a parenthetical story. This erecting a wall of silence got so interesting at one point in my career – here’s what happened: a doctor, insured privately but working as an employee of the hospital (yes, those days did exist you may recall), was threatened by his insurance company that they would potentially put coverage if he spoke to the hospital’s risk management. Risk management warned him not to speak to his insurance carrier because they wanted him to only speak to RM, not his insurer. TRUE story. Note: this didn’t even involve the patient issue. I got called in to deal with this logjam. I suggested – how about the doctor, RM and the insurance rep all meet TOGETHER and I’d be there to assist. It was a thought that never struck them before I mentioned it. Hmmm…is there a moral in this story.

      I think you raise an excellent point – one I’ve somewhat alluded to but not so pointedly. I would be an advocate for such an early intervention. The patient could decide whether they wanted a representative (lawyer, outside patient advocate, a friend-physician to assist – whomever) to be present. If there needed to be some form of confidentiality agreement – akin to what we all sign at mediation sessions – for candor to rule the day, I’d even be for that.

      Some hospitals are really pretty good at doing that – on occasion. They will be contacted by a lawyer, whom the family has contacted – and do early claims assessment (unfortunately that’s my limited context since that’s when we’re involved). Most unfortunately – in today’s milieu, that seems to be a relic of my past career. There should be more of it. The key to success, however, always was CANDOR by all participants. Anyway – I’m for it. You may have thought more about it than I have. If you have and if you’ve thought of some mechanisms that would work for the doctors/healthcare providers, I’d love to hear what you have in mind. Maybe this is ONE ASPECT of “reform” this forum could at least get moving forward. I don’t know – it’s worth a shot – No?

      On your second point – prospective analysis of care. I actually do this but it usually is in situations involving two specialties: radiology and pathology. I’ve used a method that the clinician faced: I only will send the expert the requisition and the films/study/path specimens. I don’t even send the “official (or even the “wet”) read/report.

      When I’m dealing with other specialty issues – it gets a bit tougher. Usually – here’s the scenario: when a lawyer contacts a potential expert, one feature is already known – the outcome wasn’t good. Most experts want to know – “who is your office representing – the patient or the doctor?” As you probably know, many doctors will not review for patient’s/plaintiff’s lawyers. Just about all of you will review for the defense – that was NEVER a problem getting expert review. (OK – that’s another area of major irritation for me since I want quality reviewers, who will tell me the truth – not what I want to hear or they think I want to hear – for another day, but a MAJOR problem in getting an honest assessment and making the “right” decision to proceed or reject).

      Once either I or my staff tells them who we represent (we won’t lie about this), there’s another potential bias built in.

      Now from a clinical standpoint – it’s really difficult to segregate the medical records to get a “prospective read.” You are well aware how records are put together – especially in the modern, ever-growing world of EMR’s. Honestly, I don’t have the time or resources to cut out later labs, later progress notes or whatever that kind of “tells the outcome” when I put expert review packages together. That would be a daunting task as you might well imagine. While my staff is excellent, I really can’t review each expert packet to make sure later information is de facto excluded. It’s unfortunately the reality of the everyday world I live in.

      so – another great idea and as I said – one I do when the clinical situation permits (radiology and pathology). One other area where this can be done is when we’re investigating a potential claim against a PMD or outside practice consultant. We can easily segregate (and do many times) those records and don’t include “the end of the story” records (hospitalization, op notes – although those are many times part of the PMD’s records, autopsy). So – just wanted you to be aware – we do make an effort – when feasible – to get a “clean” prospective review – but it’s not easy for these and some other reasons that would take a lot of time to discuss.

      If you have other suggestions how to accomplish this without being too overly burdensome on my staff and my resources – I’m happy to hear them. Believe it or not – we really do try to get good solid opinions of “fault” in a fair review by quality reviewers – as best we can or as best as time, money and resources will allow. It just makes our assessment and the eventual outcome all the better.

      • Solomd

        To help remove the bias, what if there were a central body of various medical specialists available to review the chart/record and give their opinion. Three members of this body would simply be receiving a bundle of documents to review and a post office box number to mail their final report to. This way, the plaintiff or defendant would be having the same body reviewing the evidence and giving a recommendation; this recommendation could be more trust-worthy because the reviewer wouldn’t know which side their report was going to. That should cut out the influence of “Since you just paid me a very nice amount of money, yes, my opinion is that the doctor did screw up/did not screw up”. The members of this central body could be elected by both the legal and the medical professions. Having three people review any one medical record would cut down on the chances of a “plant” giving consistently biased opinions.

        What do you think of this?

    • http://Www.twitter.com/alicearobertson Alice

      Sometimes the medical records are “doctored” . I had to approach a doctor about removal of notes that were fictional.

      On the surface your points make sense, but not so sure about the corrective suggestions. I see problems with communication when the contact receives their paycheck from the perceived guilty party, or their employer. As we have seen time and time again it is not the lawyers it is the doctor’s career that is utmost….the patient’s getting help is fine as long as everyone involved can keep their job.

  • imdoc

    Cheryl Handy-
    I am saddened by your situation in many ways. I must say my experience with lawyers as patients has uniformly been positive. In general, my experience is they are more compliant, ask good questions and do not have unreasonable expectations. I sincerely hope you find a doctor who can get your problems resolved.

  • http://Www.twitter.com/alicearobertson Alice

    If this site and stats were given already I apologize for this…but if not…I was reading an article in support of no fault..and MedMal came up and a doctor linked to this 2007 report.  I will sum up the findings then give the link.

    Payments for insignificant injury is less than one third of one percent of malpractice payments…64% of payments involved deaths….but about 44,000 to 98,000 die each year from malpractice….which means less than 10% of malpractice deaths are filed as suits, then about two thirds of those are settled…which is what…..less than 7% actually get something from the doctor’s insurance (thinking that 64% of the 4500 who filed is less than 3000 deaths that will receive payment).

    Million dollar verdicts were less than 3% of all payments.  And malpractice claims are down 15%.  

    My son had a dinner party in Chicago last year.  His job means association with millionaires, doctors, rock stars….really neat eclectic crowd.  Across from me a woman announced she would soon need a job.  She would be an unemployed malpractice attorney in Chicago.  What she shared was nothing close to the fears doctor’s express…and her stories of settlements that are not paid…risk management willfully leaving injured people out in the cold over money, etc., etc. was really eye opening.  She had no animosity towards doctors….but I don’t know how some risk management employees sleep at night.  Malpractice is not the fear it once was…that is why she was getting laid off.   

    I share this because it is odd to watch doctors call lawyers to task…yet it would be rare for a doctor to publicly share that risk management often resembles urchins.  Is their lying behavior acceptable?  Risk management admits most suits are dismissed because they do not exist to expose the truth (unless it’s a James Bond type of for your eyes only deal).  They exist to prevent loss…not…to protect patients.   

      http://www.citizen.org/documents/NPDReport_Final.pdf

  • http://advocateyourself.blogspot.com Cheryl Handy

    PJ – Yup, physicians prefer “clean slate patients.” Patient A has been injured by physician error or oversight OR if Patient A has been through 10 years of poor doctoring. Patient A goes to Physician C or D who had zero to do with the prior 10 years. But Patient A has dead tibia, recent history of aggressive cancer, 9 prior orthopedic surgeries with hardware & both acute and chronic osteomyelitis.

    Physicians C and D are reluctant to answer Patient A’s questions about the osteomyelitis. Physicians consider Patient A “messy” and not worth the effort. Patient A is a walking liability.

    That’s me. I am messy. I do not want to sue anyone. I just want to live.

    Wipe away all the financial issues and personal attack issues. Why do patients like me suffer and die just because I had bad doctoring in the past and I choose NOT to sue.

    Why do I have to hear about how you physicians don’t want your malpractice insurance to go up? Why do I have to hear about how evil attorneys (like myself and Mr Nash) are?

    Unless I can walk into an orthopedic surgeon’s office and someone cares enough to help me then *yes* I say the empirical evidence from my experience is that physicians dont like really sick patients.

    No one (other than Mr Nash) has answered my question – *who* protects the patients like me? How do patients like me get the medical care I need to live?

    I tried:
    1. doctors
    2. hospital and insurance advocates
    3. medical board – to get care
    4. hospital board – to get care

    Now what? I either dont get care and I die or I sue (to hope that attention is brought to my situation and no one else is hurt or at least my bills are paid before I die).

    What should I do?

    Alice: handylaw@mac.com I am glad you werent offended. I love Cleveland :-)

    • pj

      Ms. Handy,

      I REALLY doubt you have interacted w/ a greater number of Docs than I have, only because of our chosen professions. So I must insist that MOST of us do not resent sick patients. In fact, most of my colleagues like a challenge.

      Maybe it seems that way to you only because, logically, we are not able to offer as many alternatives to a pt who has already tried most of the treatment options we’d normally offer to a “clean slate” patient. So you may be picking up on some internal discouragement which the Doc isn’t able to hide as well as they think they can. I’m guilty of this at times.

      Surgeons (including orthopods ) are known to be less skilled at gently counseling and reassuring unfortunate people who have endured what you have.

      But again, considering most hospitalized patients are “sick,” your argument would have to mean most Docs who treat hospital patients dislike those they are entrusted to care for.

      I assure you, it is not so! :)

  • http://advocateyourself.blogspot.com Cheryl Handy

    Alice -

    ” . . . the patient’s getting help is fine as long as everyone involved can keep their job”

    Okay, now I am officially scared. Again, who protects the patients? You know that its not a rhetorical question.

    Docs? Really? No one? No one protects patients? Why have a medical system.

    We cannot wait for the tort reform system to change to deal with the immediate issue of patient lives. Can we?

  • TXMD

    I completely agree with the thoughts and sentiments of IMDOC, Dr. C, and Dr. Amoroso and I thank you all for articulating the physicians’ perspective for those that might not already understand it.

    I will disagree with Mr. Nash’s statement that the law is the shield for our patients. In fact I think the patient’s primary care physician (PCP) is the best medical shield for the patient. I am a general internist/PCP-a dying breed of physician unfortunately. I look at PCP’s as the ultimate patient’s advocate/advisor. We give my patient’s advice and refer them to specialists, when needed, who we believe are competent and ethical from our long standing interactions with them. I am sure my colleagues will agree with me that you figure out quickly which of our colleagues to too quick to cut or treat and those who may be unduly influenced by the profit motive vs. best cost effective best patient care. Patients consult with their personal physician when they have questions about what various other doctors recommend. Anybody in primary care has patients come to see them because some other doctor has recommend to them a test, surgery, or some new a medication etc. They come to find out their PCP’s opinion of the recommendation. The patient trusts his or her PCP because they feel he or she is objective with no conflict of interest, knows their personal medical history, and has a better insight as to the usual and customary practice of medicine and so can tell them if the recommendation is reasonable and should be followed. PCP’s-really all doctors-constantly render an opinion about the care our colleagues recommend to our patients. We review other doctors’ records daily and, of course, will guide our patients away from another doctor that we feel has not managed our patient’s care appropriately.

    We physicians absolutely understand the patient’s perspective about bad outcomes and the questions they have about what happened to cause the bad outcome. We absolutely understand patient anger against physicians. Most of my “new” patients are not switching to me because they are happy with their previous doctor and they are not usually shy about telling me why they are not happy with their previous doctor.

    The ultimate question is how do we improve this system. I do think one small way to improve our healthcare system (besides what I have already proposed) is to strengthen primary care and the physician patient relationship. Certainly this sounds like a self serving suggestion but I think true nonetheless. Perhaps the new heath care reform, medical home model, and accountable care organizations will do so but that remains to be seen. I believe our healthcare system undervalues the long term physician-patient relationship to the detriment of medical care. Consistency and continuity in medical care is critical to quality of care. Mr. Nash will probably agree with me in that many of his inpatient malpractice cases seem to disproportionately occur during the hand off of care from one physician to the next. Anybody who practices, knows that on call rounding on Saturday, when you don’t know your partner’s patients and have never seen them before, is slow and a great opportunity to make an error. Sunday always goes much quicker when you have a basis to compare the patient’s status from the previous day.

    In close- and to Ms. Handy in particular. If you do not have a good PCP to help advocate for you with various ID or ortho specialists etc, then find one. If you don’t like the one you have, then change. I think you will find your interaction with the healthcare system will go much better if your PCP is fighting for you to get you the appropriate care by the right specialist. Having said that, my advice is not meant, nor should it be construed by anybody, to establish a physician-patient relationship between us………………..y’all know why I just wrote that.

  • imdoc

    Mr Nash-
    You have invited further thoughts on the problem of communication after an event. Here is something else to ponder. Just as in law, a doctor may not always know early on if an error was committed. It is not reasonable to immediately take a ‘mea culpa’ stance at every adverse outcome. Sometimes the facts have to be developed for even a physician of highest integrity to determine for himself or herself if there is culpability. I know I have seen situations, which were not litigated, but turned out with complications. It can be hard to know if there was error or just an unforeseen event. Believe me, we all review things in our head and hope and pray whatever happened wasn’t our fault, litigation or not.
    Then there is the issue of risky situations. I am glad there are high risk obstetricians and trauma surgeons. The painful fact is there will be more undesired outcomes for these doctors because they are starting out against the odds. If communication could occur after an untoward event between doctor and patient without everything being “discoverable evidence”, there would be more understanding on both sides. We don’t know how to speak like attorneys to avoid saying things which will be used against us.
    Certainly, apprising patients of risk prior to engaging a treatment plan is useful. I find some people have a ‘no-risk’ expectation which is not always realistic. The other hazard is the idea that medicine is algorithm based and if one follows a protocol all is well.
    So, how to improve communication? I am trying to envision a system in which all parties work together and overall cost and ruinous consequences are mitigated.

    • Nerdy but not a clinician

      Does everything have to be about avoiding blame? What is so d@mn hard about saying, “We’re sorry this happened to you. Obviously we’re concerned and we’re going to review your case. We will keep you informed as we know more. In the meantime, don’t hesitate to contact us if you have questions or concerns. We want to be your partner in this.”

      See? Empathic yet not pointing fingers. You don’t have to have all the answers before reaching out to the patient and family after an event. Mostly what people are looking for is some reassurance they aren’t going to be abandoned and that the organization is taking the incident seriously. Of course they’ll have questions, but what matters most is the reassurance that you’re still on their side. This initial conversation needs to happen right away. If you wait too long, the silence can be very upsetting to patients and it starts to make them wonder what you’re hiding and why you aren’t talking to them. Maybe you aren’t hiding anything – but this is their perception. I mean, in the absence of any dialogue or information, what the he!! else are they supposed to think?

      An organization called Sorry Works! has done a ton of excellent work in this area. I highly recommend you check it out, since there is no need to reinvent the wheel here.

  • http://advocateyourself.blogspot.com Cheryl Handy

    For the most part, I am disappointed (yet not surprised) at the tone of this discourse.

    I appreciate the physicians (such as imdoc and many others) that seem to understand improved communication is necessary. Communication can be improved by honesty, integrity and removing middle-men (patient advocates, risk management, etc).

    I remain frustrated with physicians such as TXMD. Comments such as “I think the patient’s primary care physician (PCP) is the best medical shield for the patient. I am a general internist/PCP-a dying breed of physician unfortunately. I look at PCP’s as the ultimate patient’s advocate/advisor” are just plain naive. In large pseudo educational facilities such as Duke, the PCPs are told by the specialists (ie. ortho surgeons) what “advise” to give/tell patients.

    At least if you are NCMD, the PCP is not an independent “advocate” for the patient. The NC PCP are small players in a large medical world.

    And TXMD’s parting comment “Having said that, my advice is not meant, nor should it be construed by anybody, to establish a physician-patient relationship between us………………..y’all know why I just wrote that” just amplifies the “them and us” distinction drawn by physicians. Very nice, doctor. :-( And, unfortunately, very reflective of the current attitude of most physicians towards injured, suffering human beings.

    The “us” (patient) could be the physician’s mom, dad, sibling, friend in a different situation.

    I contributed to this board as a former medical malpractice defense attorney, caregiver of a elderly dad and current frustrated patient. I tried the lawsuit route many years ago. I dropped the lawsuit because it became a game for the attorneys & I was still injured.

    Ten years later I am not just injured, I have an infection. And, because physicians made errors and the medical community (as reflected in this discussion) is more scared of lawsuits than helping patients, innocent people like me (who have no intention of suing anyone) suffer and die.

    My Christmas wish would be that physicians could understand that most US patients who suffer adverse events do not want to sue their physicians. We just want to get well and live. It really is no more complicated than that.

  • http://Www.twitter.com/alicearobertson Alice

    And TXMD’s parting comment “Having said that, my advice is not meant, nor should it be construed by anybody, to establish a physician-patient relationship between us[end quote]

    That was an interesting comment coming from an anonymous poster! Ha! I got a chuckle out of it, because what TXMD did was the usual bollocks from doctors….then……the usual….if you are a good little patient and listen to me… fine….otherwise bloody well pish off!

    They may get applause from their fellows….but let me say from the rest of us it looks like a load of tripe!:)

    Kevin started a new thread so get your cyber hankies out docs…and run over there! Yes, I still like facetiousness….and once I finally get over my hurt I may find room for some pity for you.

  • http://Www.twitter.com/alicearobertson Alice

    I have to run to see a doctor who is rare…he is kind, empathetic, brilliant….great communicator…stays late on his own time to make sure the patient understands exactly what they are facing…speaks in gentle caring tones when he gives you bad news, makes himself available and encourages email because he understands that a patient needs emotional as well as physical healing…..my daughter anticipates her visits with him and says he always makes you feel welcome…yeah…he has the Midas touch…..and only PJ and another doctor I have not seen post in a long time have exemplified that here…his name was Bob.

    Why do doctors claim such empathy, claim they get it….,but as we have seen they do not listen…they preach.

    What I have seen is a lawyer with such willingness, patience, and wit try to communicate….trying to communicate, to advocate….almost in vain…. It was fascinating to read…a rare treat for patients….truly educational…and what happened is patients are reading and seeing that patient posts are answered arrogantly, if at all…the lawyer is answered in a….gotcha fashion…that is easily seen for the phisod it is…it makes patients wonder how the doctor can treat them when they can’t see beyond the tip of their own nose.

    There is no cure for this malody of arrogance their education has afforded them…so they will continue trying to gather sympathy, defending wrongs, and patients will sue, and the government will regulate you even more. Remember…it was your colleagues who got you to this point. They committed fraud, they were neglectful, arrogant to patients, over billing, not giving us our records, moving the meat mentality….not the patients. We are the ones who should (and are) complaining…and you may win your caps…torte reforms (which I tend to agree with on most levels), but you will lose rights and freedoms as the government takes more control.

    Too bad, because the government doesn’t usually regulate when the people are being served…and that’s the whole gist….not just your PR….you are being paid to serve.

  • http://advocateyourself.blogspot.com Cheryl Handy

    pj-

    1. I base my opinions on my interactions with doctors I represented as med mal defense attorney and health care law attorney, patient advocate and patient. Over 25 years.

    2. I could care less about an doc being less than perfectly articulate or sensitive. I am talking about being my being flatly denied medical care bc doctors do not want to risk being involved in lawsuit.

    Every competent orth surgeon knows what must be done to save my life. But I suffer & die bc doctors are scared of lawsuits – I think that is unethical.

  • Anonymous

    Thanks so much, Brian, for your thoughtful piece. 

    As we all know,  some of the problems with litigation in medical error situations are prohibitive costs and tremendous time delays.  Assuming there is some learning by experts and healthcare systems/physicians in litigation, that learning takes place, not openly in our healthcare systems and communities, but in depositions/discovery and trial, accessible to only a few.   I recently read of a case in NY state that went to litigation and trial, involving the tragic death of a child.  Depositions, other discovery, and trial testimony were made available to investigators for review and analysis.  I believe the parties had to agree to the release of some of the materials, although I’m not sure about that.  Sadly, this was years after the error and the death of the child, missing, as does so much of litigation, the tremendous opportunity for learning, improvement and healing.  As we all know, trials are public; however, how many medical malpractice cases go to trial?  My understanding is less than two percent of med mal cases filed go to trial.  Many settle or are dismissed.  Those that settle often involve “gag” clauses of one sort or another, i.e., plaintiff agrees to dismiss (or not file) a complaint against physician/hospital with any regulatory body, plaintiff agrees not to disclose names of the hospital/physician/nurse/healthcare provider sued, plaintiff agrees not to disclose amount of settlement, defendant(s) does not admit liability, and more.  So, much of the litigation process involved in medical malpractice cases takes place in secret, or, at the very least, in private (vs public).    With transparency and openness in healthcare after medical error, time and learning are not lost.  Acrimony, worry and mistrust don’t have years to develop and grow as the parties sit through (or on the sidelines of) the litigation process.  What if the parties sat down together soon after medical error to take part in a confidential, non-adversarial process to discuss the adverse event(s), responsibility, apology (when appropriate), learning, improvement patient safety and damages?  Such a process allows the parties to be heard and to make their own decisions, removing that powerlessness that generally follows when litigation begins and continues.   Also, studies indicate that physician defendants in litigation are more likely to have a second claim or second litigation filed against them during the time they are involved in litigation, due, presumably, to distress, worry and distraction.This is not to say that litigation doesn’t have its place; sadly, there are cases/parties that won’t/can’t proceed in non-adverarial forums due to any number of factors, anger and heartbreak to name but a few.    Once litigation begins, it takes on a life of its own, with the parties forced to live with the tragedy of medical error, day after day, year after year.    It doesn’t have to be that way.   The way forward for patients/families and physicians/healthcare providers can be in the direction of healing, as well as learning.   Finally, processes associated with medical error don’t have to be pursued in secret; attorneys and physicians can work together to promote openness and learning in a blame-free process. 

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