Using elder abuse as a way to sue more doctors

Doctors are always at a disadvantage when it comes to administrators and lawyers.  Administrators meet all day, comparing and sharing information, and therefore have all the leverage in any contract negotiations or bureaucratic bombshell they want to drop on us docs.

We are too busy treating patients to arm ourselves with the proper information (or will) to fight back.  Lawyers do the same thing.  They are out there always looking for that edge to, well, screw us.  Recently, as pointed out in the American Medical News, they found a doozy.

A California appeals court has ruled that a physician who allegedly failed to refer a patient to a specialist can be liable for elder abuse.

This is bad.  The repercussions from this will be:

  1. Broadening of the liability for doctors who treat older patients and exposes them to additional legal penalties when negligence claims arise.
  2. To open the door for medical malpractice plaintiffs over the age of 65 to start pleading elder abuse in addition to medical malpractice.
  3. To allow lawyers to circumvent tort reform statutes since elder abuse is not included in such medical liability reforms.

So, why did the lawyers go this route instead of just the normal malpractice professional negligence route?  Because if the decision stands, physicians found liable of elder abuse would be forced to pay jury awards out of pocket because malpractice insurance policies do not cover elder abuse claims.  This will lead to doctors to just settle any lawsuit case instead of risking bankruptcy.

I bet these lawyers are high-fiving themselves over this win.  They won’t be so excited, however, when there aren’t any doctors to see their grandparents in the nursing home anymore.

Doug Farrago is a family physician who blogs at Authentic Medicine.

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  • guest

    OMG it never ends. But honestly this is a huge system problem as we know in medicine. Clearly the PCP’s failed this pt. But this is not new. Because after all we have a crisis in primary care if they would have just read Dr. Grumet’s article. LOL.
    I am honestly more worried about the future for PCP and the elderly pt’s care than about an illogical conclusion from a Cali lawsuit. How are they actually going to enforce such a ludicrous law? It’s not going to happen. Anytime there is a law it takes YEARS to actually come up with the regulations on how it will be enforced. Well by then we will be on to a new turn on the PCP crisis. The fun on this roller coaster never ends…..

    • Steven Reznick

      The problem is that when you get served with a suit not covered by your med mal policy it requires retaining an attorney for $10K and then paying hourly rates of $500- $1000 an hour for representation while the plaintiffs attorney uses their deep pockets to bleed you down and get you to settle because you can no longer afford to pay for your own defense. Its not about justice or right or wrong just business

      • guest

        Well I follow your posts closely when I see them because you seem very thoughtful in your answers. So I take you very seriously with this. But what confuses me is that the non-economic damage caps in California are only $250,000. One is hard pressed even with a legitimate case to find a malpractice attorney who would be interested in picking up a case for that amount since between attorney fees and getting the expert witnesses it can add up to close to that amount.
        But I guess you are saying that elderly pts can sue for civil litigation (elder abuse) which knocks it out of the ball park if that’s the case. I guess this judge found a clever way to get around the malpractice non-economic damages. But do you think that there is a some chance the law is going to get repealed? It seems like a flimsy argument to call it elder abuse IMHO.

        • Steven Reznick

          I do not have a clue what the courts in California will do. Sorry I can not be more helpful. I just know that being involved in any type of suit and bearing responsibility for the legal costs is expensive and not fun.

          • guest

            The worst part of this Dr. Reznick is you are one of the few geriatric docs and are a great physician. You seem so diligent, thoughtful and kind to your pts. I think you are not the kind of doctor that this crazy law is after. The sad part to me is that anyone as kind as you and such an advocate for the elderly would have to worry about this. That is criminal.

          • Anne

            Nice doctors get sued too.

          • guest

            Actually most of the time lawsuits occur when doctors are negligent by disregarding the family’s concerns. I don’t think that would happen to someone diligent and showing concern and thoughtfulness over an elderly pt.. Of course anyone can try to sue, but in cases with diligent doctors who are doing the standard of care I don’t think families are likely to sue. At least that is what I believe malpractice insurance data shows.

          • Steven Reznick

            I believe the figures are that 75% or more of physicians practicing in my state get sued during their career. Some specialties like neurosurgery and cardiology more than others.It is a big business medical malpractice and jury decisions rarely have anything to do with science but more to do with pomp and showmanship. Plaintiffs attorneys will tell you that they lose their suits about 80% of the time but If you look at the 20% they prevail in there is a great deal of decision making having nothing to do with science and medicine and more with extent of injury and emotion

          • guest

            I guess I am confused. On the one hand there seems little incentive for lawyers to sue in the states that have the $250,000 cap for non economic damages. On the other hand, you are saying that they DO sue 75 percent of doctors (in your state) depending on the state and specialty. But regardless the majority of the lawsuits the jury is sympathetic to the doctor. And i understand that logic is not involved. Clearly the recent Ca. court the logic is incomprehensible. So where is the financial incentive to sue if the lawyers lose 80 percent of the time?

            In any case it is disturbing to me that diligent doctors have to worry about this.

          • kjindal

            “where is the financial incentive to sue if the lawyers lose 80 percent of the time?”
            It’s simple math – if a lawyer loses $20,000 on 80% of his cases, but makes $100,000 on 20%, he has netted $40,000 for every 10 cases. And jury awards and even settlements before trial can be much higher than $100k. And if the lawyer has a couple of newbie associates making very little, he can do very well.
            The richest guys w/the biggest houses in my area are “trip and fall” lawyers, with the cheesy ads on TV and billboards saying “if you have been injured… you deserve MONEY!”. They are the scum of the earth, scamming the system for THEMSELVES, NOT for the so-called injured party.

            Take a look at how often places like NYC get sued. This affects all of us (esp the shrinking pool of working taxpayers).

          • Suzi Q 38

            I doubt it.
            Are you making this up?
            Maybe in NYC it is different.

          • karen3

            A lawyer doesn’t spit for $20k. Are you joking?

          • guest

            The fact is that doctors can get sued for almost anything, and they do, even the most diligent ones. And these days, there is a huge mismatch between what families expectations are for “diligent” care, and what a doctor is actually able to provide in a manageable workday. A doctor can be providing perfectly appropriate and competent care and because he or she did not stand patiently for 15 minutes (on top of the appropriate amount of time spent with the patient himself) answering all questions that all members of the family might have, there will frequently be a perception that the doctor is not “diligent.”

          • Suzi Q 38

            Get in line.
            Anyone, not only doctors, can be sued for anything.
            It doesn’t mean that the plaintiff will prevail.

            Just like the physician, the plaintiff has to have some money to do so. There is no magic “retainer” account for harmed patients to draw from. The lawyers won’t accept a case this way unless the case has a very good chance of winning. This usually means proof of error or non-treatment, what are the damages, and did the patient die..”
            Other considerations: How much did the plaintiff make in income before the medical error?
            In other words, if you were unemployed and gravely damaged but not dead, good luck winning the case.
            Also, did the plaintiff figure out the physician error in time for the statute of limitations restrictions?

            This is especially important for surgery cases.
            Many times, the doctor says all is well and orders physical therapy or asks the patient to “wait and see.” Fine, but sometimes, the wait and see can last months. The unsuspecting patient is losing h/her chance to even bring it to court. He/she basically has a year. Meanwhile, h/she may be medically declining and not realize it.

            If a patient doesn’t feel right after a surgery, get another opinion from a different specialist that is knowledgable to help. Do this ASAP. Even if you are not going to sue, do it for your own good.
            Some doctors think you might sue (maybe they would if they were you), so they stall.
            Don’t “fall” for it. Get help.

            Your health is of utmost importance.

          • querywoman

            Keep going to emergency rooms if you must, without worrying about suing anyone.
            Many victims of malpractice are simply too ill for a fight anyway! That’s a main obstacle to malpractice suits.

          • SarahJ89

            Unfortunately, in any given caseload in most professions I’ve encountered, there are families who seem to view legal action as some sort of hobby. They are usually angry people, families with problems. Being a front line worker in several professions caused me to spend lots of time in various waiting rooms in the appeals process. I learned these folks invariably had other lawsuits and arguments and appeals going with five or six other entities at a time–the school, the electric company, the state police. I’ve heard it all.

            Oddly, the families who actually had a viable case very, very rarely sued or even appealed. Several times my colleagues and I had to urge them to put in an appeal for their very justified problem.

            I have no idea what the answer is, other than for the medical profession to be proactive in clearing out their own bad apples. Certainly cutting off legal redress for the people who have been harmed isn’t a solution. It definitely won’t stop the “hobbyists.” One low income family I know had their own personal Legal Aid lawyer. How did they do it? They called Washington Legal Aid and threatened to sue them!

            I believe if doctors and their professional associations became aggressive about clearing out instead of covering up for their miscreants they would find patients standing up for them instead of mistrusting them or leaving them to flap in the wind. I would be first in line to defend the profession should it ever decide to do the right thing.

          • querywoman

            When I worked in public welfare, my clients were suing people all the time, for stuff like slipping on a banana peel.
            That’s a get rich quick way, sadly, for a lot of the poor.
            Some of them would get repeated settlements for various stuff, like about $2000 a pop.
            Give lawyers all the bad rap you want, but I think only a really hungry lawyer would take those kind of cases!
            Once I called a lawyer to verify somebody’s settlement, which the lawyer did, and then he calmly told me, “I won’t be representing him again.

          • Suzi Q 38

            True, but I bet not as often as the arrogant jerks do.
            This is human nature.

            This is usually by plaintiffs that do not understand the tort law in their state (if it exists), the insurance payback ramifications after the award is given, if they get an award, and the fact that they will have to pay huge lawyers fees (30-40%). What is actually left for them to care for themselves may or may not be enough, especially if the state they live in has a low cap on the award.
            In the state of California, the cap is about $250K.

            If they are poor, a lawsuit is out of the question.

            If they are wealthy, a lawsuit is probably done in the name of anger, because they believe they have been wronged and may have lost a loved one or suffered an adverse effect after the surgery, procedure, or failure to treat.
            Most do not win much, and their legal retainer does not last long before they have to use additional money to fund the continuing lawsuit, which is very costly.

            They may actually lose money doing so.
            In the end it doesn’t matter to them because they were angry, the physician may have been defensive and dismissive instead of comforting and caring, so it ending up in the “circus court.”

            I have seen this. One of my relatives spent $60K in legal fees because a physician made a huge error and was not politely contrite. Soon it was adversarial, and then the lawyer was summoned. he lawyer was only to happy to accept the case, because it was not on contingency. When he asked my relative for $10K , the relative wrote out the check that day. Not everyone can do this.
            The relative did not care that he would lose not only the $10K retainer, but additional money for the case. I think it cost about $60K.
            He said that he could make it again in a few months, but his heath was forever changed, and he thought his doctor did not give a $#it and should be taught a lesson.

            If you don’t have a good case, this wastes everyone’s time and resources. The money can be better used for charity purposes. The only winners are the lawyers on both sides.

          • querywoman

            I think doctors who treat really sick people are more likely to get sued, due to the nature of their practices.

          • Mengles

            For the lawyer, it won’t matter how great of a physician Dr. Reznick is. All that matters is the payoff.

          • Suzi Q 38

            I would have to agree on that.
            Lawyers are there to make some money.
            If the plaintiff is willing to shell out a $10K + retainer, most lawyers will get a lawsuit going if it has some merit.

          • karen3

            Not round here. Plaintiffs must show financial capacity to pay for all expenses out of pocket, including all expert witness fees. Which can add up to six figures.

          • Suzi Q 38

            Wow.

            Ours will probably do it for less until your money runs out.
            Then they tell you, “We are so sorry. It cost you $60K, but we can not go any further with this until you give us another $10K……We should be able to prevail after that…..
            Then you don’t prevail.

            I believe it. The expert witnesses are $500.00 an hour, and they do not have to be doctors. Some are nurses.

          • Suzi Q 38

            I agree. I hope Dr. Reznick does not practice in the state of California at this time.

          • Suzi Q 38

            Possibly their malpractice policies may have to acknowledge this new ruling and cover it as well.

      • Suzi Q 38

        You are right. This is not good for doctors that are good.

        • FFP

          People don’t realize that most doctors deplore the experience of a lawsuit; the money is secondary, many times paid by the insurance company. But the entire experience of being sued is comparable to having been in a war. And like in a war, even if you win you lose.

          That doctor will have PTSD, will practice overdefensive medicine for decades, will be a probably worse and more expensive doctor, especially if the lawsuit was a frivolous one – e.g. elder abuse for non-referral.

          That’s why the solution is medical courts, like in Europe. I don’t see Western Europeans complaining.

          • Suzi Q 38

            Anyone deplores the experience of a lawsuit. The lawsuit is sad but sometimes necessary when the patient is dead, paralyzed, or maimed due to a medical error.

            The experience is horrible for both all parties concerned. Who is supposed to care for the patient or compensate minors and spouses after the adverse event?

            I didn’t like receiving a subpoena to show up in court over my FIL’s conservatorship a few days before Thanksgiving. His wife of 3 or 4 years was asking the court for everything he owned, including her husband.
            I had to “grow up” at the age of 34 and go out and interview 8 lawyers. The 2 lawyers we hired didn’t know the difference between a psychologist and a psychiatrist. They thought that the psychologist would be good enough in a competency case involving a man that had had 3 major strokes and a hear bypass.

            At least you just notify your mal-practice legal team that you have been sued.

            I still cringe when thinking of the two-year long legal “battle” that we had to “fight.”

          • FFP

            I don’t think anybody ridicules the non-frivolous malpractice cases; we want to get rid of the bad apples, too. But a negative outcome does not always mean malpractice or abuse, and we have seen many frivolous lawsuits where the plaintiffs won millions, not because of scientific proof, but because of sympathy. And that’s one of the main reasons why healthcare is so expensive.

          • Suzi Q 38

            Can you describe and anecdotal tale of a typical frivolous lawsuit where the doctor has lost and why?
            I haven’t heard of one. In my state the laws are too strict. Every state is different.

          • SarahJ89

            FFP,
            This is a serious question: How can you get rid of your bad apples? I do believe you when you say you’d like to do that. I also can see your state medical boards and your associations pursue an agenda of cover up.

            What do you do, personally, when you see one of your bad apples in action? And I am not asking to jump on you for a “wrong answer.” It would help to know what you’re up against. My guess is tremendous social pressure to close ranks.

          • FFP

            We close ranks instinctively, because of the many frivolous lawsuits, frivolous lawyers and frivolous medical experts, all looking for a payday.

            Once you take the material component away and you separate reimbursements for negative outcomes (by creating a federal malpractice fund, funded by the same malpractice insurance fees) from malpractice, you will see that doctors, and especially hospitals, will be much willing to eliminate the bad apples. I know that there are countries in Europe, where this exists, where patients are automatically reimbursed for significant complications resulting from medical treatment or medical incompetence (and the reimbursement is based on real economic data, not on “let’s screw this doctor, because the plaintiff looks much more sympathetic”).

            If every single thing you do might bring ruin to your family, how would make your decisions at work? What would be your stress level? Those are the shoes we walk in daily.

            Whenever I see a bad apple, I tend to report it to my boss. I would report it even higher, but 1. I don’t like to go over my boss’s head, and 2. it also opens a door to backlash if I am not protected for being the whistle-blower. I report the facts, as they happen. I also work in a specialty which is famous for putting patients and patient safety first, so we tend to be vocal when we see bad care.

          • Suzi Q 38

            Your answer is well-thought out and makes a lot of sense.
            It helps to know what you are dealing with every day.
            It is good that you report the bad apples to the boss, so that they can decrease patient risk by keeping and eye on them.
            If other physicians at your hospital did the same, maybe they could get rid of that doctor.

  • guest

    This is ludicrous but it creates a Cold War feeling of paranoia for PCP’s. FRANKLY I think PCP’s are the ones being abused. Feels more like a McCarthy witch hunt.

  • Anne

    This just makes me sick.

    • FFP

      You ain’t seen nothing yet. There are also many unsung heroes in our healthcare system, not just villains. One really needs to almost experience the nauseating abyss to really appreciate the value of one’s mountain guide.

      • SarahJ89

        Very true. I have seen my own family physician stand up to his peers in defense of patients. He hasn’t been rewarded for it by his colleagues, not at all.

  • red

    If it’s a toss up between predatory greedy lawyers and predatory greedly doctors, I’ll take the first. At least their unethical behaviour won’t kill me.

    • Anne

      It might, indirectly, if you’re over 65 with complex medical problems and can’t find a good doctor who’s willing to take on your treatment.

      • red

        You assume one can find “a good doctor” at any time. Read Dr. Mandrola’s essay, here.

        If one is 65 and has complex medical problems, I would suggest the best medicine would be stopping any and all drugs. Just the end of all the side effects from statins, blood pressure meds anti-depressants, sleeping meds, anti-anxiety meds, stomach acid meds because <, and helping 65 yr old me live the rest of my life in as lovng and cheering way a way as possible would be the best doctoring.

        I've seen in grim detail what the last years of elderly people become. Most women in their 50s and 60s can tell you, because they are the ones working unpaid in care centres attempting to counter what malepractice* does. has caused.

        We are going to die, but we do not need to be drugged to death.

        (*Dr. Dr Robert Mendelsohn)

        • Suzi Q 38

          I did this with my FIL, who was just out of the hospital and in a nursing home temporarily.
          I D C’d his drugs, one by one, and only left him with a few vitamins. He lived for another 12 years, LOL. This was after he had had 3 HA, a triple bypass, a pseudamonas infection and 3 strokes.
          He also had a few seizures. He was 72 at the time.
          I would discontinue one drug, one week at a time.
          The doctor was annoyed, but she really did not care, so she allowed it.

          • FFP

            Anecdotal evidence on a tiny sample must be scientific proof, just like in the religious books.

            Next time, try to discontinue a vital drug (not statins and other preventive crap to decrease the risk of whatever by 2%), and let’s see who goes to prison.

          • Suzi Q 38

            I didn’t say it was scientific proof.
            If all posts had scientific proof as a requirement for posting, you would not be able to post either.
            “Snarky” today, aren’t you?
            That’s O.K., I am the same some days.

            Religious books? If you are so inclined. Personal choice there.

            My FIL was very sick. The doctors tried very hard to save him, because he wanted to be saved and said so, in spite of his aphasia. They had to prescribe a lot of drugs to do so.

            They probably forgot to DC some of them, or thought that they still would be useful. When he got to the nursing home, he was very lethargic and constipated. Slowly he got better, probably on his own, and we were able to slowly DC his medications, one by one.

            I am glad that the doctor gave it a try and he did fine.
            For my FIL, once he was stabilized, less medication was better.

            Another anecdotal story that has little meaning to you.

            I can appreciate that.

          • FFP

            It is another story that proves how important primary care physicians are. You know, those guys everybody underpays and overworks; and then on top of that they have the nerve to say that their job can be done even by midlevels.

            Because what you describe is a PCP’s job. He should be the conductor of the orchestra of specialists. Same story with karen3′s mother (heartbreaking for anybody who went to medical school to heal people, not do paperwork).

          • Suzi Q 38

            I agree.

            I think all doctors are overworked, and the specialists particularly are overpaid in relation to the PCP’s.
            JMHO, no scientific study to back me up today.

            I think that when your specialty (PCP) agreed to accept less than $50.00 for an office visit from the insurance companies years ago, this made it difficult to change now. I hope that you can get more money, but the money may have to come from somewhere.

            There are some very brave PCP’s that have filed a lawsuit. I think it was on Kevin’s blog a few months back. May be they aren’t the only ones. These physicians that do this should be backed up in force financially. They need your help, as they are the “trailblazers.”

            There are others that refuse to accept insurance at all. They too, are brave, but maybe they serve middle to upper class patients that can afford to pay them. I am one of these patients, and if the cost was fair, I would pay the
            PCP directly and have my high deductible insurance as a back up.

            The midlevels are here to stay.
            I have seen them since the early 80′s, when I used to visit many hospitals. I also used to see them rarely in physicians offices and clinics.

            It is just that in the last decade, their presence has been increased considerably…no study there to back me up, either.

            I did n’t realize how important my PCP would be to me until I got very ill in the last two years.
            Prior to that, I was blissfully happy, unaware on my upcoming health crisis.

            The specialists are nice, but they really haven’t forged a relationship with you over the years like my PCP has. He makes suggestions to me, and then tells me that my decision is the last decision. He organizes all my medications and monitors me for side effects. I can talk to him.
            I trust no other doctor as much as I do him, so I am lucky.

            Karen’s story about her mother is indeed heartbreaking. I am glad that she has told her story. People need to know so that they can also take charge of their own health care.

          • FFP

            I would rather quit practicing medicine than be a PCP. Even more reason to have a tremendous respect for them.

            I think one of our MAIN problems is that we don’t have enough FAMILY doctors, the kind that you were describing, who know you, who maybe even make house calls if needed, part of the family. Unfortunately and understandably, they can be found almost only in concierge practices nowadays.

          • Suzi Q 38

            I understand what you are saying about respect for PCP’s that are so good in many ways.

            Unfortunately there are others who feel “overworked, beaten down, jaded, resentful, and angry.” They are distracted with all of this anger, and may not be sharp enough to help me.

            The good ones are understandably increasingly difficult to find.

            My doctor would come to my house if I asked him. He lives 10 minutes away, he told me. I have just always been physically able to visit him at his office.
            I don’t view him as part of my family, but he has a very important place in directing the course of my medical care.

            In the 80′s there were so many FP’s and Internal Medicine physicians.

            Where have they gone?

          • FFP

            Into the subspecialties and retirement.

            When one is paid peanuts by insurance and cannot bill one’s patients for the difference, one will move where there are more peanuts for less headache.

            In the end, it’s about one’s life. One can wait for the hero of socialism statue from the community, or just wake up and take care of oneself.

          • Suzi Q 38

            I don’t understand why they could not bill us a little extra, especially those of us that understand and can pay.
            Yes, some doctors have moved on.

          • FFP

            Imagine it would be like this: insurance covers basic or emergency care; if one wants better or advanced level of care, one is billed for the difference. The problem with that is the socialist side and politically incorrect side: patients might have to choose the cheaper solution if the chances of success are too small. And Americans hate not to receive what they think is THE BEST care, even if they have contributed zero to society in their lifetime. We have a national delirium about equality, despite the fact that we are not equal from conception.

            Classic example: We could let super-sick grandma die in peace now, or we could do heroic measures for another week or so, with a 90+% chance that she will die anyway, but with a $100,000 difference in costs for her estate.

            The best incentive for saving money in healthcare is making the patient share a significant part of the expenses. I learned this during my intern year; I had just pronounced a patient dead, and I had to ask the family, by state law, if they want a necropsy. The answer was “Sure, why not?”. After I told them it would be $1,000 out of pocket, they changed their tune to “We don’t actually need it then.”

          • FEDUP MD

            Generally it is a violation of contracts with insurance to bill anything above the payment from the insurance. Depending on the state and the type of insurance one has, it can also be illegal.

          • Suzi Q 38

            I was wondering about that. I remember that at the last visit, I offered to pay extra.
            I told the nurse that I was somewhat embarrassed that my PPO insurance only paid him $46.00 last time.
            She declined my offer.
            Another time, I needed him to administer a Zostavax shot that I had just received from the pharmacy. He gave me the shot in between his patients and would not charge me.

            I told him that he was more than welcome to charge my insurance, or I could pay him cash.

            He shook his head “no.”

          • Suzi Q 38

            I am not Jenny McCarthy, who has her heart in the right place, but does not know medical studies.
            Less meds that are similar to Haldol and Elavil are better for some people, especially the elderly.

            Yes, I do understand that you have to be careful.
            Besides, if the Dr. allowed it, so be it.
            She could have said “no way” and argued for the Tegretol and BP med.

            Instead, she allowed it, because our arguments to give discontinuation of any certain meds made sense. She gave it a try.

          • FFP

            Then it wasn’t you who discontinued the medicine, it was them. You did the absolute right thing: you became a partner in his care and questioned things. Kudos to you!

          • Suzi Q 38

            Thanks. I tried my best.

            He succumbed to kidney failure 12 years later after he refused dialysis.

            He chose, even though I told him that he would just have to go to the dialysis center 3-4 times a week.

          • Suzi Q 38

            First of all I can’t withhold medication because I don’t administer it. The nursing home does.
            I asked the doctor if she would do this and each time she agreed.

            If he died after the DC of Elavil, Haldol, a BP medication, and Tegretol and another sleeping aid, so be it. I could live with that. He was far more alert and no longer constipated after we did so.
            He had had one tonic clonic seizure. His BP was lower than normal, because his medically forced retirement made him calmer than I had ever seen him. He was an “A” type personality that loved to work 24/7. His antibiotic had run its course of therapy. It was worth a try, and I don’t regret it.

            He was left with vitamins, Ensure, and 81 mg of aspirin. We thought that was O.K.

            If he had died due to the DC would I post about it?? Maybe, if others would learn from the experience.

    • Mengles

      It will when you have no doctors to see you, bc there are doctors unwilling to practice due to high litigation and malpractice.

      • red

        LOL.

        Really, we would die if doctors didn’t see us?

        What hubris.

        • FFP

          Not immediately; it might take a few hours, or months, or years.

        • Suzi Q 38

          I admit that I had to look up the word hubris.

          • Mengles

            Your comments demonstrate hubris. I’m surprised u had to look it up.

      • Suzi Q 38

        Find me stats on medical malpractice litigation in the state of California for the year 2012 or later. With tort law, how much did the patients win and why did they get a court judgement monetary award? The cap is $250K.
        The statute is 1-3 years. Mostly 1 year, then up to 3 years if the discovery of the error was late.
        You have to prove negligence and severe damages or a life lost. What about the insurance demanding their money back? and the lawyers fees?
        It is my guess that many potential lawsuits are not even filed.

        • karen3

          The medicare offset is an especial insult. Medicare pays for grossly improper care, but believes that it should be first at the trough in a lawsuit because it paid when it should not have. All the hospital has to do is run up a million dollar bill with useless, if not harmful, care, and the threat of the offset will prevent any lawsuit. If Medicare is too darn lazy to go after the scum, it should not bloodsuck people who have been horrifically harmed.

    • Suzi Q 38

      I understand your point. There are times when doctors do not behave well or do their jobs well.

      • red

        If that’s what you got out of what I said, then you missed my point.

    • querywoman

      Shakespeare said it in another way years before you.

  • guest

    I guess I am confused. On the one hand there seems little incentive for lawyers to sue in the states that have the $250,000 cap for non economic damages. On the other hand, you are saying that they do sue 75 percent of doctors depending on the state and specialty. But regardless the majority of the lawsuits the jury is sympathetic to the doctor. And i understand that logic is not involved. Clearly the recent Ca. court the logic is incomprehensible.

    • FEDUP MD

      A tiny minority of cases ever get to a jury. Most med mal carriers will settle because it is cheaper for them than taking it to trial. Usually the MD has no choice about this decision either. So the lawyers for the plaintiff get paid, the lawyers for the med mal company get a bonus for saving money, and the doc gets to report this settlement every time they ever fill out a professional form ever again. Med mal insurance carriers are not there primarily to fight for the docs. They are there to make money for their shareholders.

      • querywoman

        FEDUP, you truly know the system. In Texas, settled out-of-court malpractice suits don’t show up on the Texas Medical Board site.

  • karen3

    Let me tell you how my mother died. She was left for days without treatment for a spinal cord injury, the delay causing her to be paralyzed. One of the key issues was the lack of a referral. She was overdosed with a medication for which there wasn’t even an order — which caused a host of serious medical issues — including a heart attack and aspiration pneumonia. Rather than dealing with the consequences of this error, the hospital dosed her up with antipsychotics and tied her up. When we threatened legal action for their failure to follow written refusals, she dried out just fine and was back to her usual self pretty quickly.

    This same hospital incurred three fully preventable stage III/IV pressure ulcers. You could see her vertabrae at the base on one of them. She was starved for a week, with the doctor who ordered is saying to state investigators that he had done so because she was a paraplegic. she was described at malnourished and emaciated in the medical records. She received a black eye at the hands of a staff member and the hospitals conveniently and very obviously intentionally, redacted the 20 something references to lung cancer when we finally were able to get her transferred. She was diagnosed with end stage lung cancer 10 days after her discharge, after having spent nearly a month in an ICU/pulmonary unit, with four chest CTs over three months and 25+ xrays, all showing progressing lung cancer.

    There is nothing more in this life that would make me happy than to know that these #$@# are in jail for a very, very long time. Trust me, the families view a civil suit to be a very inadequate remedy.

    Doctors should not be immune for criminal charges for conduct that would result in anyone else going to jail.

    • karen3

      And by the way, I have an 18 page government issued legal opinion agreeing that the treatment was wrong.

      Including intentionally hiding the cancer dx.

      • Suzi Q 38

        When faced with having to explain away their errors to administration or to risk management, some doctors lie.
        There is simply too much at stake for their careers.

        Sorry this happened to you.

        I am getting better at choosing my physicians.
        Thank goodness my daughter works for a first tier hospital. There are other good recommendations that I have received from her, friends and other doctors.

        I will not choose doctors so easily anymore.

        • SarahJ89

          I’ve had even a really good doctor lie on my record. Seriously, this is a basically good man here.

          I could see where he pulled his punches in his participation in covering his colleague’s arse, but it taught me there are no good guys amongst doctors, only those less willing to stab a patient in the back when it comes to covering up a colleague’s mistakes.

          • Suzi Q 38

            Sad but so true.
            My gastroenterologist was one.
            He told me where the problem was (C spine instead of L spine), and when I told him that I had already asked Dr. Neurologist for those tests 6 months ago, he was livid. He said that I needed nerve tests on my legs and a full MRI on my entire spine..C spine, T spine, and Lspine.
            I told him that the doctor discounted my complaints about my troubling and escalating symptoms as diabetes and Renaud’s.

            I asked him to talk to Dr. Neurologist on my behalf, as Dr. Neurologist told me I was fine, not to worry so much.
            He got even angrier, and said: “You talk to him. I can’t….just make sure to tell him that I SAID SO.

            I am convinced that Dr. Gastroenterologist
            knew that I was in deep trouble and want to help me. He was brave and “did the right thing,” just in case I tripped and fell on my doggie door and became a quadriplegic in an instant.

            He was also exasperated with his fellow physicians in charge of my care.

            I also needed cervical spine surgery to correct the problem and halt the progression of the nerve damage.

          • FFP

            You have to realize that, like in any other profession, there are some very well-connected people one can’t touch without producing harm to oneself. Plus it’s very easy to judge without knowing all the facts.

            So I try to pick my battles, and I am sure that’s what any reasonable doctor will do. Most of us would not just ignore an obvious and huge mistake from another doctor. The fact that we won’t badmouth the bad doctor to the patient is because we might not know all the facts, and it’s really not the right thing to do. The right thing to do is to convince the patient that s/he needs a second opinion and possibly to report the physician to his employer or to the state board (if the mistake is egregious).

      • karen3

        Anyone want to fess up to being the person voting in favor of abusing kind grandmothers to death and spreading the plague?

    • Suzi Q 38

      What happened to your mother with the spinal cord injury almost happened to me. the doctors at the original facility begged me to stay and I “fell for it”(no pun intended) each time.
      Finally one physician (with a heart and a moral compass) figured it out and told me where the problem was.

      i asked my neurologist if he would facilitate a transfer to another teaching hospital for a second opinion. He refused.

      Now that I have complained to theChief medical officer, he lied and said that he did facilitate the transfer. I asked the CMO to get me copies of the paperwork if he did so. She admitted that he realized that he did not assist me in a transfer. I told her:
      “Don’t you think that a physician of his caliber, a neurologist, would know or not know that he filled out the paperwork for me??? Is he a liar as well?

      When I got to the next teaching hospital, they told me that I should not have been left without diagnostic tests and treatment for so long (a year and a half). Now I know why the old neurologist did not want me to run to the next hospital.

      I had decided to do so for my own safety, since I had gotten considerably worse.

      • SarahJ89

        I used to think if someone took a wrecking ball to my house in front of 200 witnesses I would be willing to sue them. But after watching several people mired for years in non-medical court cases–one of which was seriously open and shut–I’ve concluded that if someone were to take a wrecking ball to my house I’d simply dust myself off, be glad to be alive and get on with the task of rebuilding.

        • Suzi Q 38

          Yes, it is easy to feel this way as the court system is difficult, time-consuming, emotionally draining, and expensive. You have to have money or a definite case. We had enough to start the case, and I did the work of 1 lawyer, LOL. I even photocopied studies, and researched bank accounts. I had my best friend serve the Stepmother.

          I would not suggest it.

          We won a conservatorship case that took 2 years out of our lives. My husbands step-mother lost the case due to many, many reasons, all medical, financial, and personal. My husband became sole conservator over his father and his assets.

          We had to be in fighting mode almost every day in order to win. We could not allow our lawyers to do their jobs, because they would have lost.

          When a person that you love is being harmed, things change. A house you can replace.

          Your loved one or yourself you can not.

          This is the main reason it gets difficult and personal.

    • eidolon hope

      It is interesting that you blame physicians whenever, as is extremely commons, nurses are complicit as well. Who gave un-ordered medication? Do you know how difficult it is to check on every medication and if it was given? I have had nurses report they have administered Necessary medication whenever they did not. Physicians rely on nurses for quite a bit and we can only be so paranoid – we have to trust someone at some point. Physicians should turn patients occasionally, but if the nurses do not spot a decubitus ulcer whenever they are ordered to turn the patient Every 2 Hours, who is more at fault?

      You are holding physicians to a level of responsibility that they have not had since before I was born. Let there be no misunderstanding – physicians are sued not because of their fault but because of their supposed impressive salaries.

      I am sorry for your mother and for her treatment at the hands of the staff, both physicians and nurses. I do not think new laws are necessary for preventing occasional elder abuse. Those cases should be dealt with individually and severely.

      • karen3

        oh, we blame nurses too, and the social worker who was moonlighting from her hospital job on the elder abuse hotline who refused to take a complaint. One of the doctors personally staged the pressure ulcer, but did nothing.

        Neither the doctors nor the nurses had any consequences. thus the need for civil action. The state board of nursing and board of hospital regulation had no problem with the below wound. And this is the less grisley angle.

        • karen3

          Oh, and by the way, I have it in writing from Doctor Patrick Conway, the Chief Medical officer for Medicare that this does not constitute “harm”

          • karen3

            And this is the imaging where they couldn’t figure out she had a broken rod in her back. Radiologist read this as hardware intact. Still practicing. Anyone out there wanting this guy to read your films???

          • Suzi Q 38

            I am not a doctor, and I would know something did not look right. No I would not want this radiologist to read my films.
            Sorry for your frustration with a system that allows
            errors like this to occur without so much as a reprimand.

          • querywoman

            Lawsuits are very hard to bring against medical anything. They’ve been protected for too long.
            If you had the energy, you could stand outside the place and hand out flyers about what happened.
            They can’t release confidential info, and you have a constitutional right to free speech.

          • Suzi Q 38

            Now THAT would get their attention.
            Maybe Karen3 should bring an easel with a huge poster of the pictures that you posted on this blog. Perhaps add a few more, or blow the picture up poster size. She could probably have this done at Costco….Make sure to have the easel on public property…i.e., a sidewalk in front of the hospital.

            Hand out flyers with an email address dedicated to her mother.

            Check with a lawyer to see if you can name physician’s names if possible.

          • querywoman

            YUP! Then you will bring out the coward in them!
            Sadly, most people who have been screwed by the medicos lack the energy for public protest.

          • querywoman

            Test, having some troubles with disqus.

          • Suzi Q 38

            Now that drives me nuts. even the Chief Medical Officer looks the other way.
            Sad.

          • karen3

            The wound care nurse responsible for this — the Virginia Board of Nursing gave her a pass even though she documented this -on this very day — as 2cm by 3cm and a stage II. Even when it was recorded as “green and oozing” she did not do anything and left it without so much as a bandage. When we argued the refusal to sanction the nurse, she dropped her Virginia license and started working at a Maryland hospital. And she is free to move about the country, so she could care for any of your family members. Still thinking that having strict civil liability isn’t a good idea for a failed oversight system?

          • karen3

            So Kevin, why did you kill the picture? Too gross? It shows what these folks, and folks like the Chief Medical Officer for Medicare, Patrick Conway, and Marilyn Tavenner are happily supporting and Medicare is paying for (yep, they paid in full for that). If we’re going to have a discussion, lets be honest about it.

          • http://www.kevinmd.com kevinmd

            I didn’t. Comment moderation is automated.

            Comments get automatically deleted after it receives a certain number of flags from the readership.

            Kevin

          • karen3

            Can you put them back up? I realize the pressure ulcer is ugly, but not treating received exactly zero regulatory response. expect the QIO. Even TJC didn’t have a problem with it. People need to understand that lawsuits are in some cases the only disincentive for conduct that I think all of us can agree is obviously wrong.

      • karen3

        and Eidolon, a family member who persistently gave a homebound person the wrong drugs, caused a stage IV pressure ulcer, caused a black eye, etc, etc, and otherwise failed to procure medical treatment, would be charged with felony abuse. Why should doctors get a greater pass on responsibility that medically uneducated, perhaps not that competent family?Shouldn’t the standard of care be HIGHER for medical professionals. Isn’t it a sad commentary on the medical profession to ask to be held to LOWER standards of care than those imposed on the citizenry in general.

        And abuse of the elderly is not rare. 90% of nursing homes administer antipsychotics involuntarily over written refusals. That is criminal abuse and well fits within the definition of assault.

        Abuse runs at about 50% in long care facilities. It is anything but rare.

      • SarahJ89

        Um, shouldn’t the doctor notice something is wrong with the PATIENT??? Do you not look at your patients more than once? No follow up? Would you not notice pressure sores, over medication, etc., etc.? Stop passing the buck.

    • guest

      What happened to your mother sounds terrible, although some of what you describe does appear to be the result of poor nursing care, Why are you not suing for malpractice?

      • karen3

        tort reform, tort reform bars claims like this because, of course, as a retiree, my mom did not have a huge income. In addition, the costs of the experts for the panoply of injuries makes it very expensive and with the caps — if we won, we’d lose. Really, seeing these people in jail and out of the profession would mean far more to us than any amount of money.

        Poor nursing care, by the way, is malpractice too,

        • T. McIver

          The only way you could see them in jail is through a criminal complaint. Did you file one?

          • karen3

            We have a completely corrupt governor and attorney general in this state

  • T H

    All of the (stipulated) horrific anecdotes aside, the continued medicalization of social problems is one of the biggest drags on the medical establishment as a whole. Psychiatry led the way and now Emergency and Geriatric medicine are succumbing because of well-intentioned people expanding the scope of practice through legislation and thereby creating a better paved road to the Hell of Bureaucracy and Shameless Lawsuits.

    • karen3

      I don’t have understand what this says, but Mom presented with a broken back. The rest was hospital sponsored. the only social problem here is the presence of sociopaths in the medical/nursing professions. Adding “abuse” as a charge is appropriate when there has abuse. Adding sexual assault is appropriate, and should not be covered as medical malpractice either. Really, med mal insurance should not cover people who behave in criminal ways — you should not be able to insure civil damaged for intentional torts. That is against public policy. Criminal abuse should not be covered by med mal.

      • T H

        Child Abuse, Elder Abuse, Sexual Assault, Willful negligence, and the like are not about medicine: they are criminal conduct on the part of the perpetrator. Punishing MDs/PAs/NPs who had nothing to do with causing the abuse/assault/actions is wrong. THAT is the point of my argument.

        As for your Mom’s particular case, I am more sorry for your loss than you know. I can’t and won’t comment because I know none of the particulars.

        • karen3

          But the abuse below had a $350k price tag, out of pocket, not covered by insurance, for our family. where there is abuse, such as a doctor ordering someone starved because she is a paraplegic, there should be also a cause of action for damages. And since it has nothing to do with the practice of medicine and everything to do with a criminal act, it should not be covered under med-mail limits. In this case, MDs, PAs and nurses had everything to do with what happened. The California law is spot on. And as long as one is not engaging criminal activity, one should have nothing to fear.

          We have no desire to punish people who had nothing to do with it, but the people who did should not be sheltered either by damage limits or corrupt government officials. Or their colleagues.

          • T. McIver

            I personally am uncomfortable with “crimes” which are only deemed “crimes” because of some characteristic of the victim (age, gender, race, sexual orientation, etc).

            If for argument’s sake we accept that the plaintiff’s accusations are all true, why is it somehow a worse thing that it happened to a senior citizen, than it would have been if it had happened to someone who was, say, 64?

            Either a criminal act occurred, or it didn’t. If one occurred, then the perpetrator needs to be held accountable. I just don’t like the idea of them using a specific “elder abuse” law. It just seems tricky to me.

          • karen3

            The issue is that the victim, in this case is particularly vulnerable,

            But consider this on “singling” people out by labels. There are more than a few uneducated parents or adult children caretakers who have gotten manslaugher convictions for failing to understand and get help for a medical condition. I don’t see why someone with an MD label should get off the hook, for lesser consequences, by virtue of the MD. Which is precisely what the court found,

          • FFP

            If she was particularly vulnerable, where were you, no offense? I find that family involvement increases the quality of care a patient receives, which suggests that hospital employees are overworked to the level that the squeaky wheel will get the (extra) grease. But that’s valid for any vulnerable patient (as in trauma, for example), and “elderly abuse” is a “lawyerly” bogus.

            I don’t know who was the genius judge who let that elderly abuse idea pass, because if these cases proliferate, the result will be that Medicare patients will be accepted by even fewer physicians than nowadays.

          • karen3

            We were there. We called the head of the hospital at home, we called the head nurse umpteen times, we called Adult Protective Services (regrettably staffed by hospital employees), we called 911 (the hospital is a business partner of the county, they refused to come). We called Medicare, who sent in inspectors and the state inspectors who were sent found the treatment to be abusive– the inspectors even documented that the reason for starving Mom was that she was a paraplegic. But, the state is corrupt and so they altered the inspectors’ reports and left Mom in that condition to die. And since the hospital was redacting out the reason why Mom was really hospitalized (the lung cancer) we were unable to get her transferred to another facility, despite continual demands. The black eye was in retaliation for our calling the authorities. We got her out by having her discharged to home, with no oxygen, no bed, no meds, no wound care. That people like Tavenner and Patrick Conway condone this kind of crap is why it happens. It’s not like as a family member you can go get a neuroradiologist or surgeon in the middle of the night.

            The only leverage there is to make sure that health care providers are not sociopaths are lawsuits. Government oversight is corrupt.

            I am perfectly OK with doctors who behave this way or who think that we need to sweep things like this under the rug not accepting medicare. I’d be happy to clear the doctor panels of creeps like this. I;’d be happy to get rid of the doctors who think an MD is an alternative to investment banking. I think the profession would be better without the jerks who whine about “taking care of complicated patients.” Every single health care person who saw mom after leaving that hellhole was in tears at what they saw. There are decent people in health care, but you sure are not one of them.

            And I’d like to know, do you think the claims of elder abuse are “bogus” in our case? Just asking.

          • FFP

            Before you talk about the “jerks who whine about taking care of complicated patients”, please be so kind to talk to a fresh naive well-meaning still uncorrupted single recent medical graduate about the sacrifices s/he had to make just to reach just that point (where s/he is still a nobody both from professional and material standpoint), and about the amount of learning and work s/he faces in a lifetime, especially if dealing with complicated patients.

            The only reason medical doctors make $88/hour on average in this country is private insurance. If you take that away, with just Medicare/Medicaid you are looking at something like $44/hour or less. Thank you, but I’d rather work at Costco for $22/hour and much less stress.

          • SarahJ89

            Costco pays $22 an hour? Where do I sign up?

          • Mengles

            She doesn’t want sympathy. She wants a payday.

          • a dn

            Oh apologies for not understanding what that MD is all about.

            Send in only healthy, youthful patients nurse. Thank you.

  • T. McIver

    I don’t want to give the lawyers any ideas, but does this mean that someone unhappy with the medical care of a patient under the age of 18 can sue for “child abuse”?

    • T H

      Using the court’s faulty logic, I’d have to say the answer is yes.

      • karen3

        Yes, and the reality is that, if medical care was deliberately withheld, which is the standard, the medical professional can go to jail. And there are doctors and nurses who have been convicted of abuse and neglect with respect to patient care. It’s not anything new.

        • Mengles

          Please get some help.

  • Janms

    Worry not Doug. Most people ignore elder abuse.

  • Greer A. Smith

    Physicians can alleviate a lot of elder abuse problems by utilizing the services of Geriatric Care Managers. I have intervened for hundreds of elder citizens in north Texas that were being abused in some manner. Elder abuse is not just about physical abuse, in fact, most elder abuse is self neglect or financial exploitation, I get calls from family members, neighbors, postman, etc. concerned about an elder in their vicinity, I am trained to go and do complete psycho-social and physical assessment of the person and their living conditions. The problem has been when I call the elders physician to get an order to get this person into some type of evaluation center, they ignore, and then the elder person drops into a more severe condition.

    Geriatric Care Managers will be the best advocate for the elders in your community if you utilize them.
    Greer A. Smith, MSN, BSN, RN, GCM
    Ft Worth, TX

    • Suzi Q 38

      We had a case a few years back where a woman and her sister would allow elderly men to move in their homes and rent a room.
      Soon they were cashing their tenant’s SS checks as a courtesy for them….even after they died. No on knew they had died, because the women never reported it.

      I never knew about your services and specialty.

      • Greer A. Smith

        Suzi, this happens all the time. Sons and daughters move in with parents to live off their social security, then neglect them and take their money, others in community also do this. I had one case where a frail man whose only family was a son in the navy stationed across the world allowed a young man to enter his home and offered to “take care of him and his home with large farmland.” He severely neglected the man (who died 3 weeks after I intervened from malnutrition), he forged all of his financial documents and stole over $800,000, bought time shares and condo’s on his credit and then re-sold them for profits. There are a lot of worthless people out there who get by in the world by stealing from the elderely.

        • Suzi Q 38

          People can be greedy in all walks of life, unfortunately.

    • Mengles

      What a shameless promo.

    • karen3

      We had a geriatric care nurse. She handed us an article on how restraints and antipsychotics were a no-no. but she did nothing.

  • SarahJ89

    Doctors could clean up the malpractice suit mess rather quickly if they would only choose to rid themselves of the few bad apples they all know about. I can have no sympathy for a profession that refuses to police itself and, indeed, does everything it can to protect its miscreants.

    My own family doctor has made several mistakes. For which he has apologized, learned from and we’ve gone on together. That’s as it should be, but it won’t be as long as doctors persist in finger pointing. Most of us do not expect perfection. But we do expect you not to participate in cover ups.

    Until doctors begin to police themselves, to clean out their own profession, trial lawyers are really the only hope the average person has for receiving any justice. I wish this were not so and have been waiting in vain for decades for you folks to weed out the bad actors.

    • southerndoc1

      “Until doctors begin to police themselves, to clean out their own profession”
      Sorry, but the lawyers have made that impossible. Any doctor who files a complaint/testifies about the skills of a colleague will be hit with harassing lawsuits from now until Judgment Day.

      • EmilyAnon

        Maybe these suing doctors should be included in the tort reform laws. Then the good-guy doctors might be more forthcoming.

      • Suzi Q 38

        Sad but probably reality.
        At least tell the patient what h/she should do to help themselves.

        Can’t you be anonymous?

    • Suzi Q 38

      What you say makes sense. Thank you.

  • Lemmethink101

    Being too busy to treat patients ranked top 10 “excuse” for not taking responsbilities. I am weary of such overused excuse. Please invent new one.

  • Greer A. Smith

    For you that have questions about Geriatric Care Managers, you can go to The National Association of Geriatric Care Managers website. I work in the DFW region of Texas and the north-east Texas region, I have great respect in the region for my advocacy and intervention skills for the elderly.
    Greer A.Smith
    817-381-8907

  • ReepRN

    Could families be subject to suit for elder abuse when they subject a 90 year old demented woman to a cardiac cath and PPM placement?

  • Lemmethink101

    I would like a tort reform to protect me from lawsuits because EVERYTHING is complex and there is uncertainty in successfully doing my job. I want the same protections physicians now have, and will acquire in the future. I want to force my clients to submit his complaints to a guild which protects members’ interests, and watch my clients suffer.

  • Le Docteur Malgre Lui

    Law Schools have produced way too many under employed JD’s. They are intelligent but devious. Consider ‘vicarious liability,’ and as above.

    Consider though – Who will attorneys sue for ‘medical’ marijuana complications, OCP/BCP related Thrombotic disorders? Probably everone except state and federal governments. ?Sanjay Gupta?

  • katerinahurd

    Do you consider the primary care physician to be the one who is responsible for following up on his referral of his patient to a specialist? Who do you think should be responsible for following up on the elder patient? Why do you have to end your article with a threat? Unless you are referring to other people’s grand parents. Is it ethical to refuse to be a physician solely because of an authoritative practice of medicine?

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