Malpractice fails when it comes to medical errors

Here’s your multiple choice question to set the stage: what percentage of all physicians do you think should be sued for malpractice?

Would you say one-in-ten doctors ought to be sued? Or one-third? How about every single one of them? Let’s make it one claim per doctor, nationwide. Does that sound reasonable? Keep in mind that even defending yourself against a suit will cost on average $40,649 per claim, ranging from a low of $22,163 among claims that were dropped, dismissed or withdrawn, to a high of over $100,000 for tried cases – even if you win. And these costs will be borne not just by the insurance carrier, but many times also by the individual physician who must hire their own lawyer. While making your choice, keep in mind that many (if not most) primary care providers are now bringing home less pay than elementary school principals.

Before we get to our results, here’s my Obligatory Malpractice Bias disclosure: I’m one of those docs who strongly believes that we, as a medical profession, don’t do enough to police ourselves. And that handing that task over to others assumes they know what it’s like to be in the trenches. What do I mean by that? In general, other healthcare providers know when someone is doing a crap job long before a person outside the profession might notice. So asking others to step in and take over the task of oversight is actually a disservice to families and patients, making our lack-of-stepping-up all the more inexcusable. and, I’m also one of those renegade docs who thinks that sometimes a malpractice lawsuit is the only way to go. If for no other reason than the lack of other options, plus the issue that, frankly, people are dying.

So it was something of a shocker to myself, to realize that, all those things not withstanding, maybe we as a society have gone way, way (let me repeat, way) too far on the malpractice litigation front (well, duh, many of you in healthcare are thinking). What prompted this conversion? This shocker insight? It wasn’t being personally slapped with a lawsuit. It wasn’t even (I’m ashamed to admit) seeing my friends/colleagues being frivolously sued (which I’ve seen – along with the massive emotional and professional fallout that ensues). It was, instead, the study that the AMA recently released to almost no response. What were this study’s results?

There’s basically one claim per doctor being filed in America right now. If you’re a surgeon, or an ob-gyn, a fat 70% of you will be sued, with 90% of surgeons sued before the end of his/her career. In any individual year, one-in-20 doctors is sued, but over years of a career, the accumulated percentages of doctors who have been sued goes sky-high. Half of all ob-gyns are sued before they reach the age of 40 (which, given how old you must be to just finish your training, is a breath-taking number).

And, leaving aside issues of right and wrong (which the AMA frequently does), what is the outcome of all these lawsuits? “Sixty-five percent of claims were dropped, dismissed or withdrawn, 25.7 percent were settled, 4.5 percent were decided by alternative dispute mechanism, and 5.0 percent were resolved by trial, with the defendant prevailing in 90 percent of those tried cases.” In other words, a huge amount of churn, especially the 65% of claims that are dropped, dismissed or withdrawn, at the cost of $22,000 per claim. And I’m not even going to discuss the emotional fallout, or the way physicians stop caring for “certain” types of patients, or how the cost of healthcare spirals as doctors practice non-sensical “defensive” medicine. Those are the types of damages and costs that are, frankly, too large to even get your mind around, much less quantify.

So what was the response to this study from the leave-litigation-alone front? That, for me, was another bit of a shocker. No one contested the results. No one. Instead, the response was, basically, that people die of medical errors – and that something should be done about it. And, that medicine does a bad job of policing itself.

Both of those are positions I totally agree with. But these responses are (perhaps deliberately) conflating together three different things. Errors and malpractice are not at all the same thing. And there are two different kinds of error – individual errors (“mistakes” if you will), and system errors.

Malpractice (as the name implies) is supposed to be doctors that shouldn’t be practicing. This study’s rate of widespread sue-age (or “sewage,” depending on your belief about how big a mess this is), means that no doctor is allowed to be even normal, much less good at their job. It’s only a matter of time, no matter how conscientious or excellent you are, before you’re a target of a malpractice lawsuit. Is someone actually going to argue that every surgeon in America deserves to be sued because their practice is so bad? If so, bad compared to what? It’s kind of like Lake Woebegon, where everyone is above average. Only in the world of medical practice, everyone sucks.

Errors, on the other hand, are a horrific, and sometimes preventable, factor in healthcare. But there are at least two different types of errors. Individual errors by physicians are not at all the same thing as system errors. Individual errors are an unfortunate, but necessary, part of being human. Here’s an example of one. My first ever night being on call as an intern, I was vibrating with stress. Literally – you could see me shake. I wrote, in a frenzy, for a patient to receive Colace, as needed, for insomnia. The pharmacy sent back a note which states that “while not contraindicated, this drug is unlikely to result in the desired effect.” Colace, as many of you may know, is a laxative. There’s an embarrassing mistake. Every doctor will make one, hopefully one that won’t hurt anyone, or will be caught by the team. Who could claim that they would never, ever make a mistake in their entire medical career?

And then there is the issue of system errors, over which a doctor has essentially no control. What do I mean by that? For example, I went to get my rabies shot to prepare for going to Haiti. The injection clinic nurse tried to give me a shingles shot. Clearly that is not at all the same thing. My doctor wrote the right prescription, and the clerk entering the data, and the nurse who never asked me which injection I was supposed to get, both made large, avoidable, system errors. The only person who did what she was supposed to do was my doctor. and she has absolutely no control – economically or even as a supervisor – over either the clerical staff or the nursing staff in an institutional setting. But the doctor is the one who is sued.

And studies have shown (also uncontested by the leave-litigation-alone front) that malpractice lawsuits fail when it comes to medical errors – in both directions. People who’ve suffered from errors both don’t sue, and lose suits, in the same percentages that people who sued have not suffered from errors. In other words, it’s a crap-shoot.

Jan Gurley is an internal medicine physician who blogs at Doc Gurley.

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  • Wondering

    I don’t agree with you. I think a personal doctor should be held accountable when he/she makes a medical mistake that results in grave injury and/or death.

    • Guest

      So every doctor has to be perfect every time, all the time…right?? What kind of world do you live in??

      • just a patient

        So, if the doctor performs an “imperfect” act on a patient that results in grave injury or death, the patient or family should just suck it up?

        • Kevin

          No, they should be compensated quickly, which the current malpractice system fails to do. Most trials take years before patients receive a dime, and of the compensation rewarded, legal and administrative fees take more than half. That’s why patients need to advocate for malpractice reform.

          Kevin

          • Matt

            Perhaps when there’s a proposal that actually pays people faster, patients will advocate for it. As it stands now, most of the reform proposals supported by physicians are promulgated by liability carriers, none of whom are interested in paying victims of malpractice any sooner.

          • Kevin

            Matt, you and I have discussed the same thing numerous times in various posts.

            A no-fault system of malpractice will compensate more patients quicker in a non-adversarial manner. It’s regrettable that the medical establishment hasn’t rallied around the idea, but I’m doing my part here to advocate for such a system.

            Kevin

          • http://justinhope.tumblr.com/post/2793909130/the-truth-will-set-us-free Dale Ann Micalizzi

            Kevin,
            What could be the reasons why the medical establishment hasn’t rallied around a no-fault system of malpractice? Who feels that they would be loosing in this non-adversarial system? We’ve been discussing this topic for at least ten years now and little has changed. Is it the insurance companies who aren’t budging or are the docs too busy to get involved? Are there many attorneys, politicians or healthcare leaders advocating for medical justice? The system will save money and healthcare jobs and begin to heal a family and involved providers humanely. So what’s the hold up?
            Dale

          • Kevin

            Malpractice insurers and lawyers would lose in a no-fault system. They have a vested interest in maintaining the status quo:

            Such a system would generate more claims than does our present malpractice system—indeed, compensating more of the injured is part of the point. The system would save money, however, by eliminating punitive damages and legal costs. The legal and administrative costs of our present system (lawyers’ fees, court costs, paid experts) account for 60 percent of the estimated $24 billion the malpractice system consumes each year. A no-fault system would cut that to 20 percent or 30 percent, roughly doubling the money available for the injured.

            Here’s more information on Sweden’s no-fault system. It places both injured patients and doctors on the same side, with the doctor often helping the patient fill out the required paperwork to receive compensation:
            http://www.slate.com/id/2113103/

            Kevin

          • Matt

            Kevin,

            When you say no-fault, do you mean like Workers Comp no fault? In where as long as you can show the injury was on the job it gets compensated?

            Or do you mean the patient still has to show some level of negligence?

            If it’s the latter, you don’t get all the administrative savings.

            ” The legal and administrative costs of our present system (lawyers’ fees, court costs, paid experts) account for 60 percent of the estimated $24 billion the malpractice system consumes each year. ”

            This statistic is somewhat misleading, too. Because we’ll still have courts. That cost is fixed. Also, we don’t know if your stat includes insurer overhead (buildings, claims adjusters, etc). If it does, we’ll still have that as well. Do you know the basis for your number?

            I don’t know that plaintiff’s lawyers would lose. It’s likely, as in workers comp, there would be an appeals process with set fees. It would become more of a volume based practice for a lawyer.

            But I’m curious – would doctors be happier defending themselves to some government bureacracy as opposed to a jury who generally favors them? Because there still will be consequences for too many claims. And there will be many, many more claims.

          • Matt

            We have discussed it, but your use of the term “no-fault” has been a little vague. You’ve seemed to imply at times that proving negligence (or something lesser) would still be required. In that case, you still need experts, and attorneys to put the evidence on.

            Since you haven’t been clear, it’s hard to really get into the merits of your proposal.

          • http://justinhope.tumblr.com/post/2793909130/the-truth-will-set-us-free Dale Ann Micalizzi

            Matt, sorry if I wasn’t clear. You can read my website if you would like to know more about the recent developments, but you were very clear with your answer.

            I don’t know if I would call it no-fault per se but I am looking for a rapid response just system when an adverse medical event occurs. Would we need attorneys? Probably, as many will not change an archaic culture of secrecy unless that profession is invited to stand by them. The “soft” side of doing the right thing doesn’t seem to be gaining acceptance either. Changing the culture of leadership has potential but will take time.

            Regarding, experts-well, do you mean experts that are paid by hospitals to “find” something that isn’t there or do you mean experts that are working for area law firms where the attorney needs the expert more than the minimal fee they would obtain from the death of a child? Or do you mean experts that knew that a colleague killed a patient from a medication overdose and would say anything to protect him depending upon the pay off? Not too crazy about the ethics of the medical experts that I’ve met. So, I would remove them from the picture and add physicians who do have values, if needed, and they do exist.

            I don’t know the right answer and I am vague about what will work but my thinking comes from the voice of most, if not all, parents who have had children injured or die during care. Money is not the issue for us but justice and learning from error is. If a no-fault like system would lessen the pain for the family and the provider who accidentally caused harm, I am all for it but since it’s unique none of us really know what it would be like exactly. Some will still live in denial. Others will truthfully not know what went wrong and that’s ok too. The family is owed that conversation.

            If you traveled through this as we have, you would think differently and want change no matter how many entities have to buy into the process. Justice means conformity to truth, fact, or reason, as you know. Sometimes, old practices need to step aside for the greater good.

          • Matt

            ” So, I would remove them from the picture and add physicians who do have values, if needed, and they do exist.”

            Statements like this make me queasy. Who gets the job of judging the physicians with values v. the ones who don’t?

            ” Money is not the issue for us but justice and learning from error is.”

            I would agree with you in death cases, money is not the issue, it’s merely the only medium of exchange we have in that situation. But not all med mal cases are death cases, and if you’re facing lifelong treatment, then money is very much the issue. And to the physicians and their insurers, money is ALWAYS the issue regardless of the type of claim.

            I never said I didn’t want change. I’ve just yet to see a change proposed that didn’t just further tilt the scales away from the individual and toward the insurer. And I think Constitutional rights ought to be abrogated for better reasons than speed or the size of insurer losses and physician premiums in a given year.

          • http://justinhope.tumblr.com/post/2793909130/the-truth-will-set-us-free Dale Ann Micalizzi

            Ok, Matt, if we leave the med/mal system as is with everyone having constitutional rights, including patients and families, what change would you propose that would improve upon what’s in place now or do you think that the alternatives are worse? Would you separate death cases and injury cases? How would you tilt the scales away from the insurer and toward the individual in the current system? We have always agreed upon leveling the playing field,

            I don’t agree that money is always the issue for all physicians just like it’s not always the issue for all attorneys and insurance companies.

            Nice talking with you, Matt. It’s been awhile. Let’s keep a kind conversation going and maybe someday we can be a voice for change.

            ps “Who gets the job of judging the physicians with values v. the ones who don’t?” I can do this job now, really!

          • Matt

            I was being facetious with the matter of money being the issue for physicians, but it undoubtedly is for insurers. And it should be. That’s why they exist – to make money for their shareholders.

            As for how you change the playing field – in short, I don’t know that you do EXCEPT as part of a single payer system. I have yet to see a single seriously proposed alternative that shows significant cost savings or is designed to pay more people faster.

          • http://justinhope.tumblr.com/post/2793909130/the-truth-will-set-us-free Dale Ann Micalizzi

            Here are a few articles by my friends and I that may be helpful:

            The power of apology
            http://www.nzmj.com/journal/122-1304/3813/content.pdf

            IHI Respectful Management of Serious Clinical Adverse Events
            http://www.ihi.org/IHI/Results/WhitePapers/RespectfulManagementSeriousClinicalAEsWhitePaper.htm

            What happens when things go wrong?
            http://www.ncbi.nlm.nih.gov/pubmed/21251144

            ~dale

  • Nerdy but not a clinician

    The sample size in this analysis was 5,825. There are how many physicians currently practicing in the U.S.? The paper clearly indicates this is a snapshot – nearly 70 percent of the Ob-gyns *who responded to the survey* had been sued at least once in their career. This is not the same as *all* ob-gyns currently practicing in the U.S. Although the sample size is large and statistically valid, there’s always the possibility the response rate was slightly skewed by physicians who had been sued at one time and hence felt strongly about participating in this survey.

    That said, the numbers are pretty shocking and more than a little depressing.

  • Lisa audino

    I agree that there are far too many frivolous suits out there but on the other side doctors need to take a serious look at the care and advice they provide to patients. After all, if we can’t trust the advice of our doctors , who are supposed to be the expert and look out for our best interest who can we trust? I am fortunate to be a cancer survivor because if I would not have been proactive, I may not be here today and my children would have been left without a mother. I went to the doctor with a lump and was told because I was 35 and had no family history it was unlikely it was cancer. A biopsy was done and I was informed it was benign. Due to the size and pain I opted to have it removed anyways. A few days later, while driving in my car, I was informed that they made an error. They missed the tumor when they did the biopsy. After the next surgery I was told that they were sorry but they found a second unrelated cancer and my only option was a mastectomy. I was even told by a radiation oncologist that I should have a mastectomy because he wanted to do radiation. Luckily, I got a second opinion because there was no second cancer. Some would have accepted the doctors advice without question, where would they be now.

  • lurker

    “While not contraindicated, this drug is unlikely to result in the desired effect.”

    Your hospital pharmacist had a dry sense of humor.

    Wondering,

    Dr. Gurley is not arguing for holding physicians unaccountable for errors that result in grave harm. She is simply pointing out that the system we have is not particularly effective for detecting and preventing grave error. There must be a better way of doing it.

  • Skeptikus

    So the point is that most doctors will be sued in their career and therefore malpractice is bad because all doctors cannot be below average. uh … do they teach logic in med school. it seems very possible that most every doctor now matter how good she or he is on average makes performs below the standard of care at least once. When he does, he should pay. It is that simple.

  • Rick

    There are good doctors and bad doctors. Both make mistakes, and should be held accountable for those mistakes if they cause serious injury to a patient. Most states are now implementing tort reform initiatives to combat frivolous lawsuits. Most people who drive cars get into an accident sometime during their life that is their fault. That doesn’t necessarily mean that they are poor drivers. It means they made a mistake on that day and at that time. If someone was injured by that accident, compensation is due. The fact that most drivers may be sued at some point in their lives does not surprise me, nor does it anger me. It’s just a fact of life. Malpractice does occur. Few docs will admit it though, especially when they are the one who committed the malpractice and caused the harm.

    • Matt

      Tort reform initiatives have nothing to do with frivolous lawsuits. They merely keep people with the worst injuries from getting the full measure of their damages.

  • SmartDoc

    Interesting analysis.

  • http://paynehertz.blogspot.com Payne Hertz

    It is quite possible that even the best doctors may commit malpractice at some point in their careers. The bottom line is that when this occurs, the patient should be compensated. End of discussion. There are too many frivolous attempts at denying patients their constitutional right to seek redress in the courts. This report is one of them and typical of what the AMA puts out.

    Conspicuously absent from your or the AMA’s analysis is the question of the lifetime odds that a particular patient will be the victim of malpractice or medical error, and what are the economic costs associated with having a loved one killed or becoming permanently disabled. I am certain it is far more than $20,000, not to mentions a lifetime’s worth of physical and emotional suffering.

    • Kevin

      I agree. Patients should be compensated when medical error occurs.

      The problem is, the current system does a miserable job at this. According to The New England Journal of Medicine, nearly one in six cases involving patients injured from medical errors received no payment. For patients who did receive compensation, they waited an average of five years before their case was decided, with one-third of claims requiring six years or more to resolve.
      http://www.nejm.org/doi/full/10.1056/NEJMsa054479

      I wrote about this in an op-ed last year, Injured patients deserve medical malpractice reform.

      Kevin

      • Matt

        Kevin, the NEJM also said our system does a pretty good job of sorting out meritorious from non-meritorious claims. While you may say it could do better, you’ve yet to propose a system that would.

        Criticism is easy – solutions are the tough part. The stat you cite above about one in six cases involving patients injured from medical errors is an interesting one. But I know of no tort reform effort or proposal designed to make sure MORE people are compensated for medical errors and to pay them faster. Do you?

        If not, it seems like a bit of a red herring for a physician to lament that their liability carrier isn’t paying out more money and then criticize the system for not making them do so.

  • Primary Care Internist

    i agree with compensation of those truly injured by medical error. but the current system seems to mainly incentivize lawyers, with a disproportionate share of payments going to them rather than patients/families. I think this speaks to the potentially far better efficiency of an arbitration system, or some other means that cuts out the needless 30-50+% going to lawyers.

    this would also eliminate the endless daytime ads trolling for “victims” of various known drug side effects e.g. stevens-johnson syndrome etc.

    I had a patient’s son just yesterday tell me how his doctor put him on levaquin and he stopped taking it because of the horrible tendon-related side effects he read about – “what is he, looking for a lawsuit?” he said. This is the kind of ignorant mentality we cannot, as a society, afford to endorse with lawyers and ads etc.

    • Matt

      What percentage do you think is appropriate for the lawyer taking on the financial risk in the tens of thousands of dollars, and potentially thousands of hours of uncompensated time?

      And how would arbitration, where you still have to put on your case, be better?

    • Another Patient

      I agree with you, but doctors also need to do their part to facilitate change. I suffered a fairly serious medical error and I’ve been trying to contact the doctor to discuss it. I don’t have an attorney, and I don’t want financial compensation. I think the best way to deal with this would be to talk about how the mistake can be prevented in the future. That’s what would make me feel better, along with a sincere apology.

      So far, no response from the doctor.

      • Kevin

        I agree. An apology would go a long way to health wounds, and at least give patients answers as to what happened.

        Although no excuse, part of the problem is the adversarial system used to determine malpractice cases that pit injured patients and physicians against one another. Changing the system to one that puts patients and doctors on the same side — a no-fault style system used in Sweden and New Zealand, for instance — would be a solution that makes sense for all parties involved.

        Kevin

        • Another Patient

          Yep, I’m with you. My doctor is responding to an adversarial system instead of to me. I’ll do whatever I can to help change the system as soon as I can get my medical situation under control, which is going to be more of a challenge under the circumstances.

          I appreciate your reply.

        • Matt

          When a true no-fault proposal is made and supported by physicians, perhaps we can have a serious discussion. I don’t think Kevin is thinking about ALL the parties though, because he’s apparently left out the ones that pay the bills – the insurers. Why would they support a “solution” that results in them paying more people and faster? Particularly since making it easier to file would likely result in a ton more claims.

  • http://www.nhpatientvoices.org patient safety advocate

    Great post. The way I see it, there is medical malpractice by providers, ‘system errors’, and management malpractice which surprisingly is rarely mentioned.
    CEO’s and Boards who don’t lead by a culture of safety are as culpable as a bad-apple physician. When Toyota’s safety problems surfaced after the deaths of just a handful of people, their CEO was on the hot seat in Congress (for good reason).
    Why aren’t we holding hospital management and boards accountable for the enormous death toll of poor quality of care? Understaffing, under-trained staff, a culture not led by consistent data-driven improvement, ignoring problem providers/repeat offenders, failing to support transparency, and many other issues are management problems that contribute to bad outcomes. ‘Tort Reform’ discussions need to be overhauled by including the harmed victim and the accountability of hospital management in the dialogue.

    • http://www.impatient4change.blogpsot.com Every Patient Matters

      It’s true. The rot can be throughout. The hospital should be encouraging patients with complaints to come forward as early as possible in their care, and as often as possible until the problem is resolved. And the hospital should be making demonstrable efforts to rescue and remedy complaints as quickly as possible, and then to measure patient complaints, investigate them (and bring in independent investigators when feasible), generate binding recommendations to prevent the errors from happening again, and measure compliance with patient-centred improvement programs. The message should come from the top that the patient is the most important stakeholder in the system. I don’t know of a single example of a hospital that works like this in Canada. Do you?

  • Jack

    I’ve always like the Arbitration system. Much faster than the current judicial system and also put the money where it should go….patient and not lawyers and administrators.

    I also advocate for some type of healthcare where EVERY LEGAL US citizen and permanent resident is covered. I think part of the reason law suits occur is because patients are furious after seeing a bill that potentially can bankrupt them AND their condition is not “cured”.

  • Muddy Waters

    Tick tick tick…one day the world will realize the errors of our ways.

  • http://www.impatient4change.blogpsot.com Every Patient Matters

    Let’s start with frivolous lawsuits:

    Is there any jurisdiction in the world that has a pre-suit tribunal where all cases have to go through an anti-frivolous funnel?

    Cases with negligeable harm, or which are obviously ridiculous in some way (like that judge who was suing his dry cleaner for millions) would get filtered out. And those frivolous claims would have to pay – unless you were a borderline claim, in which case you would be stopped but not have to pay a fine.

    You could get one appeal of the anti-frivolous decision, but if you failed that one, you’d have to pay for that hearing too.

    Some of these tort reform initiatives only serve to filter out the poor and disenfranchised, because their lost income is too low for legal representation. This is not the fair way to do things.

  • http://www.impatient4change.blogpsot.com Every Patient Matters

    Individual doctor errors and system errors (I’m not sure your example of a system error is very good, there are clear people to point to in that case) can and should be addressed.

    Many patients want the doctor and the system to learn from their mistake, to count it, to investigate it, to make sure it never happens again by generating binding recommendations, enforcing them and measuring the change.

    Your new doctor prescribing colace example shows that new doctors need sufficient supervision. What if you had prescribed something which led to more serious complications? Checks and balances need to be improved throughout.

    Ask some med mal lawyers and you’ll get told that people aren’t suing enough, that far too many injuries and deaths go uncompensated and uninvestigated.

    Surviving patients and family members of medical errors and patient safety problems deserve resolution and restitution.

    And there need to be increased penalties for doctors and others in the “system” who don’t fix a mistake as soon as they find out about it, but compound it with further error.

  • http://www.jamessproject.blogspot.com Mary Ellen

    I will steal this quote from an MD/JD I know –
    “Docs and patients are caught in a greed war between lawyers and insurance companies.” I agree. My son died from a series of preventable medical errors and negligence – yup, I filed suit becuase to find out what happened. The “wall of Silence” was like being stuck in a tunnel with no exit ramp leading me straight into litigation. When discussion of settlement finally came around all I asked for was 5 min for a conversation with one of the defendant docs and my atty’s fees. It was denied. Went to verdict. Result was a mixed verdict where the jury found negligence but not responsibilty.
    There is another way and I went back to school to learn the tenets and principles of an alternative dispute resolution model where every member of a community where a harm has ocurred has a chance to be heard. Together those impacted find the best resolution.
    Litigation causes additional trauma to people (patients & clinicians) already traumatized. Patient safety will improve when the data of what, why and how mistakes happened is released transparently and quickly. To do that, we need to address the pains of the parties involved quickly. I am eager (and working) to be a part of that.
    (By the way, despite my huband being unemployed at the time and bills building up I walked away from the 750k settlement offer. It was never about money)

  • http://fertilityfile.com IVF-MD

    A medical outcome is influenced by the decisions of the physician, the characteristics of the patient’s body as well as randomness.

    A physician is a participant in the healing process, not an omnipotent force. There are some similarities with being a football coach. You can coach a game well, but depending on the players and depending on the way the ball bounces, there could still be a bad outcome.

  • http://fertilityfile.com IVF-MD

    Why force everybody to choose the exact same flavor of resolution?

    Each doctor / hospital can clearly outline which brand of dispute resolution he would like to participate in.

    Some examples:
    1. The status quo system
    2. (ONE WHICH IS WEIGHTED IN FAVOR OF PLAINTIFFS) An even harsher system that is weighted very much in favor of giving plaintiff’s attorneys great incentive to aggressively sue, namely by making it very easy to sue and having no caps on the lawyers fees nor on the award amount
    3. (ONE WHICH IS WEIGHTED IN FAVOR OF DEFENDANTS) A very plaintiff-unfriendly system which sets low caps on awards and harshly punishes frivolous lawsuits
    4. No-fault Arbitration

    As a patient, I could choose to keep myself fully protected and only choose to see doctors offering option #2. Or I could sacrifice the supposed protection of such a system and choose to see a doctor who practices under option #3 if I judge the other benefits (lower fees, better service, better reputation) to outweigh the negatives

    As a doctor, I could play it safe and insist on option #3 only, but I would risk losing patient volume from the patients who insist in option #2. I would then try to compensate by lowering my fees or building my reputation so high through good service and good outcome that some would be willing to compromise and see me anyway. OR I could choose option #2 and even advertise it (“Our practice recognizes the harshest malpractice terms so that your rights to sue are more protected than if went to see the doctor down the hall”)

    This gives everybody a choice for their preference rather than force them to go by a one-size-fits-all policy.

    There would have to be some tweaks for doctors and their corresponding hospitals if they go by different systems and there would have to be some tweaks for emergency care where patients don’t have time under duress to debate which type of plan to engage in, but overall this is feasible. In fact, in my practice, there is already some form of this in place. I have an arbitration-only policy as advised by my malpractice carrier. Patients agree to abide by arbitration if they wish to engage in a doctor-patient relationship with me. In 14 years, I recall having lost out on two potential patients who refused these terms and thus chose not to see me. I also have been lucky enough never to have had any suits filed against me so far anyway. It’s not for sure if the two are related, but someday if/when I encounter my first suit, it will be under the fairer (my opinion) terms of arbitration.

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

      Dear IVF-MD I live in a state which follows the #3 option above. As far as I can tell, this means that Doctors, hospitals, nurses and everybody else can operate with impunity because of the $250,000 cap, the stupid “hearing,” and the extreme costs of a “Medical Expert Witness” who isn’t a practicing Doctor, but a highly paid person to state the obvious. Along with that this is a loser pays state.

      Not only has all of this not brought down the cost of care, it has actually INCREASED the cost of care because the patient has no rights to informed consent, (how would the patient enforce the law?) and the medical people have pretty much carte blanche to decide unilaterally which expensive treatments and therapies they wish the patient to have regardless of patient wishes. Once you are in the door these people can do any old thing they want, be careless, give patients much more treatment than the patient allowed, refuse to follow the law etc. secure in the knowledge that it is pretty much impossible to sue. It has created an atmosphere of disrespect and carelessness toward patients.

      I am IN FAVOR of mediation or arbitration by a medical court. That way we patients can put the brakes on all of this, and maybe get a little justice for ourselves. We shouldn’t have to put up with arrogant providers who practice sloppily and outside the law. “Informed” consent isn’t some idealistic mumbo jumbo to be circumvented. One should be able to expect that their surgeon would perform the surgery to the best of their ability, not just slap it together carelessly!

      PS I will never willingly be treated at any medical facility in my state again. Luckily I live near a bordering state which is where I will get any further treatment.

      • http://fertilityfile.com IVF-MD

        J-M, I will take what you say and give it credence. This is exactly why I would support flexible alternative systems that are NOT fixated on geographical lines. So right now, if I understand you correctly, you do not like the rules in your state. Fortunately, you do like the rules in a neighboring states and you just happen to be lucky enough to have access to both.

        Well, wouldn’t it be better to give people the same options WITHOUT forcing them to go to another state? One simple way is to make the rules county-specific, but I don’t even like that. It would be cleaner to just give every doctor-patient combination the right to agree beforehand to which types of rules they wish to abide by. This would be clearly delineated ahead of time. This way, the people who who want the scenario #2 rules could mutually agree to move forward to forge their doctor-pt relationship based on those rules and others, like you who like the #3 rules, could mutually agree to move forward to forge their doctor-pt relationship based on those rules. Everybody is happy. Everybody wins. And it wouldn’t necessitate driving to another state for ones medical care.

        In general, peaceful voluntary individual solutions deliver better results than coercive authoritarian one-size-fits-all solutions.

  • http://www.ServantLawyership.com Kathleen Clark

    Hi All! Patients and physicians are already on the same side and can continue on the same side. Physicians can quickly accept responsibility, if appropriate, or, at the very least, sit down wth the patient and explain what occurred and why what occurred is a common side effect, was predictable and explained to the patient in the informed patient choice process, or was not an error for other reasons. If this conversation takes place, there is no need for litigation, an adversarial process that pits physician against patient and forever transforms (and likely ends) a trusting, caring relationship.
    The various studies that address who gets sued, what specialties they belong to, or whether cases are “frivolous” never seem to address: did the physician meet with the patient, apologize, if appropriate, offer compensation, and listen to the patient’s experience to improve patient safety.
    This open, transparent process is not about blame. Without litigation, the possibility of punitive damages (almost unheard of in a med mal case, since intent must be proved and a miniscule (or less) number of physicians intend to harm their patients) never arises. I’m talking about responsibility of all parties (and counsel) when there is an allegation of med error. Was there a respectful process in place, such that patient-physician trust can be maintained and the patient undestands what happened in order to make healthcare decisions for themselves?
    I don’t believe that anyone, whether patient, physician, or attorney, gets up in the morning and thinks, I’m going to make some money today at someone else’s expense. Rather, I imagine they all wake up and think, I’m going to be responsible for my actions today and treat everyone I meet with dignity and respect.

    Thanks everyone.

  • Matt

    A lot of you seem to favor arbitration. What do you think that is and why do you think it’s faster or fairer?

  • gzuckier

    At the risk of repeating myself, it’s all about the money. Not necessarily greed; but the fact that a bad outcome means more treatment is in store, and somebody has to pay, and the patients can easily convince themselves that it was the doctor’s fault, if that means they don’t lose their house in the process. Juries will empathize with the patient and follow a similar line of thought; hey, the doctor is covered by malpractice insurance, so he’s not going to suffer as much as the patient would. And of course, the medical insurer is going to go after the prospect of shifting the cost; it’s to their credit that they don’t actually contest every readmit/recurrence.

    As I’ve pointed out before, malpractice in Canada is a minor item, because medical costs are all covered by the same payer, no matter who is at fault, if anyone, pain and suffering and punitive damages are not allowed, and therefore only actual monetary loss (like lost wages) is actionable, which takes a lot of the incentive out of taking it to court.

    • Jack

      “As I’ve pointed out before, malpractice in Canada is a minor item, because medical costs are all covered by the same payer, no matter who is at fault, if anyone, pain and suffering and punitive damages are not allowed, and therefore only actual monetary loss (like lost wages) is actionable, which takes a lot of the incentive out of taking it to court”

      since patients don’t go bankrupt due to healthcare bills, they often do not sue or get too emotionally involved regarding minor error or errors of little consequence. I like that about Canadian healthcare but the wait for any outpatient testing is unbearable.

  • http://www.talktoyourunconscious.wordpress.com BobBapaso

    No physician should be sued.

    No fault, fast compensation for all injured.

    Then, no more disincentive to correct errors.

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