This is why doctors practice cover your ass medicine

This is why doctors practice cover your ass medicine

A small case with big implications almost escaped my notice recently  The Boston Globe reported a case in which a family sued after a 23-year-old man died after being diagnosed with a lung infection.

According to the Globe, the young man went to one of the Boston emergency rooms complaining of cough, fever, and chest pains.  OK, stop right there all you armchair diagnosticians.  What does this man most likely have?  99.99% of the time a patient with these complaints has a bad cold.  Bronchitis at worst.  The chances of this young man having a heart problem is very small.

So Dr. Liang (that’s the doctor who got sued) is doing his shift in the ER.  Maybe it’s busy, maybe he has a headache, maybe some drunk just spit at him, whatever.  In any case, he sees this kid, takes one look at him, sees that he has some community acquired infectious process (like a cold or flu), gives him antibiotics even though such things are almost always viruses, and sends him home.  Easy button.  Any other doctor in any other ER would have done the same thing, given these symptoms.  And they would have been correct.

Unfortunately for poor Dr. Liang, lightning has struck and zebras are galloping around Fenway Park.  The kid doesn’t have a cold.  He has viral myocarditis.  Here’s what the American Heart Association says about viral myocarditis:

Viral myocarditis has been recognized as a cause of congestive heart failure for >50 years, but it is still a challenging disease to diagnose and treat.  The history and clinical features are often nonspecific, and practical serological markers are not available during the acute phase of the disease. Even after proper diagnosis, no clinically proven treatment exists to inhibit the development of subsequent dilated cardiomyopathy (DCM) and, in some cases, death.

So it has non-specific symptoms, no markers are available, and you can’t treat it anyway.  The European Heart Journal calls it one of the most difficult diagnoses in all of cardiology.  It says that the incidence of viral myocarditis isn’t even known because it’s so misdiagnosed.  The only way to diagnose it is heart muscle biopsy.  The virus that causes it could be one of several common viruses that up to 90% of people in the world get with nothing worse than a day off from work.

So let’s go back to our case.  Young man, fever, cough.  The Globe article, being rather one-sided, says the doctor only saw the guy for 5 minutes and never did an EKG.  So maybe that’s true.  Maybe he should have examined him more closely.  Might have heard an abnormal heart sound, maybe not.  Maybe he should have done an EKG.  Might have been normal, might have been not.  Dr. Liang got caught by a patient with a disease that difficult to see and impossible to treat.  It could have happened to any doctor.

Well, the jury didn’t think so.  They awarded the family $4.8 million dollars and concluded that it was Dr. Liang’s fault.  The implications of this settlement are sobering.   This sort of thing is exactly what we doctors are talking about when we talk about cover your ass (CYA) medicine.  Any one of us could have a case like this at any time.  Just at a time when we are supposed to be cutting unnecessary costs we have to do EKGs, myocardial biopsies and cardiology consults on every 23-year-old who comes in complaining of cough and fever?

That’s what this verdict implies.  I feel terribly for the family of the young man, I do.  I also feel terribly for Dr. Liang, who will absolutely practice CYA medicine for the rest of his life.

Shirie Leng, a former nurse, is an anesthesiologist who blogs at medicine for real.

Image credit: Shutterstock.com

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  • Thomas D Guastavino

    This is why when reasons are put forth as to why there is unnecessary tests and procedures, defensive medicine should not even be considered. Until there is meaningful tort reform, health providers have every right to try and protect themselves.

    • querywoman

      I have the right to protect myself from unnecessary tests.
      What blows your argument apart is the fact that doctors don’t practice defensive medicine in many areas, such as skin disease.
      All skin disease is supposed to be caused and worsened by “picking at it” and most doctors don’t know how to scrape a few cells off skin and look at it under a microscope.

      • Thomas D Guastavino

        You have the right to protect yourself from unnecessary tests and providers have the right to protect themselves from unnecessary litigation.

        • querywoman

          Most aggrieved patients never litigate anything. I was always astonished at how doctors reacted when I asked them to do a skin biopsy. I mean visible skin!
          Yet, they will willing look up a woman’s vagina and scrape some cells off her cervix. Plus, cut into a chest and saw bones to get to the heart!

          • fatherhash

            in that case, is it possible that the physician may not feel that skin biopsy is necessary? i mean, if they are “willing” to do more aggressive procedures, why would they not do simple skin biopsies?…in fact, it is reimbursed rather decently too.

          • querywoman

            Fatherhash, you are trying, but you are not quite getting it. Skin disease is flat out neglected! My dermatologist is an activist for his patients, and he needs another lifetime to accomplish it all.
            Absolutely, you confirmed what I wrote, that a skin biopsy is easy! And you state it reimburses well, for a few minutes work!
            I did have a biopsy on skin tissue on an ear once, after two years of complaining. A physician’s assistant did it, at a public clinic. Quite simple. He also gave me an unnecessary anesthetic shot.
            Once I had a bleeding mess in my armpit, and an ER doctor cut off a flaky bit of tissue that was hanging out.
            Once doctor did a Pap smear on me, but when I asked her for a skin biopsy, she said it would have to be another doctor who did it, because she didn’t know a lot about skin!
            The same doctor kneejerked that he should not be giving me cortisone shots before I even had a chance to tell her it was over two years before he even allowed me to have one! He’s a very well known and respected dermatologist! I suppose it’s okay with her for the pulmonologist she consulted to give me a cortisone shot but not him. I have to cut docs slack on skin because 97% of doctors are ignorant about skin. She backed off when I told her more about the dermatologist. He is careful with the cortisone.
            I have a nasty form of atopic eczema, probably an autoimmune protective layer. I used to think I had the controversial Morgellons Disease, but no more. The unlicensed people in my derm’s office who have worked for skin doctors for years have seen my rashes before.
            I have had it at least since elementary school. My doctor likes the history I give him, and has me tell his residents.
            I was troubled with serious itching for years, but i didn’t realize I had something growing on my skin. My skin is very pale, and the growths are mostly white. Meanwhile, doctors preferred to play with the blood pressure cuff, do cholesterol screenings, and recommend cancer screenings.
            Once I scratched myself so bad I got a tetanus shot.
            The lesions form inside my mouth, around the gums. It rotted my teeth, which were once excellent. I couldn’t sue anybody to pay for my dentures. I feel a certain spot underneath my upper denture when I take them off. It doesn’t bother me when the denture is on. When I had pneumonia earlier this year, I felt a lesion in my upper palate that I had not felt before.
            It’s in my vulva. I asked a gynecologist about something years ago. He couldn’t find it. Now I know what it is. I recently went to an ob/gyn who had an office next to my derm for years. He did see it in my vulva.
            Psoriasis goes down into the bones. Mine apparently does not. I would not rule out that it’s in my throat. It has caused “external” interferences with me: livid pain sometimes when it cuts into me. But, it doesn’t last forever. I go through one or two week bad spells and then I am okay for a while.
            What led me to my current decent derm is cellulitis of the legs. The same growths grew rapidly and suddenly on my lower legs, and I had a serious infection.
            The ER doctor talked about amputations, but I don’t think it was that bad. He tested me for feeling on the soles of my feet, and I had it.
            My dermatologist said the spreading tissue cut into me and brought infections.
            It’s getting better, slowly flaking off, and I have not had a recurrence then.
            I have to take low doses of doxepin on and off for itching. Sometimes I don’t know if I am really tired or just groggy from the doxepin. Sometimes walking is very painful from skin lesions. Sometimes i have serious trouble with painful lesions on my hands.
            Could I sue? No way! The statute of limitations and vague nature of my skin disease make it impossible.
            I have other reasons why I say that “defensive medicine” is a crock. I have other neglected illnesses. Defensive medicine is only used in certain areas, like potential cancer.
            As computers have germinated and sprogged like weeds in the business world, has repetitive stroke energy been more easily recognized?
            I had very painful neck spasms in the late 1980s, with visible hard areas and my neck crooked and one shoulder higher than another. It was dismissed as the catchall “stress” and I had to pay for expensive emergency treatment.
            I finally realized it was RSI related to computer overwork and found a NSAID that worked for me. I also used yoga, which was never suggested to me. And quit working heavily on computers!
            Had the doctors dx’d it, I could have filed a worker’s comp claim.
            I never got any medical physical therapy for my RSI. I would have loved to sue over my RSI, but it wasn’t possible.
            My mother had carpal tunnel surgery. That day I asked her doctor what he thought of people who blamed carpal tunnel on emotional stress. He kind of laughed and said, “The same thing I think of people who blame everything on emotional stress.” Then I said something about his skilled surgeon’s claims.

          • querywoman

            Fatherhash, do you automatically assume an aggrieved patient is dramatizing and has no basis for a complaint?
            I’ve been complaining almost 40 years about my skin. I’ve had various skin problem.
            Let’s see, I used to be plagued with nose, mouth, and breast sores. One doctor repeatedly said it was, “stress.”
            Another doc suggested she culture my nose for staph. I don’t know why he didn’t do it himself.
            She had me stick a giant Q-tip up my nose, and I had staph, a very common skin problem!
            No one has ever feared I’d sue over skin disease neglect!

  • buzzkillerjsmith

    If a patient has cough and significant fever, I often do a CXR. If the patient has a minimal fever and looks well, I often don’t. Of course it also depends on what the lung exam shows.

    Some of the other docs at our clinic diagnose pneumonia without a CXR, but I almost always get one.

    Should a CXR have been done in this pt? If so, would the pt have had cardiomegaly? If so, would treatment have made any difference? I don’t know.

    I would likely not have done an EKG on this pt. Hard to tell from Dr. L’s post the nature of the chest pain. I will look for pericarditis from time to time but not usually in a young healthy unless something just doesn’t fit. I have seen pericarditis in a young healthy maybe a couple times in all these years.

    In our ER the docs order absolutely everything. This pt would have had a
    CXR, EKG, CMP, CBC, coags, D-dimer, troponin, maybe a spiral CT for
    good measure. I never would have ordered all that stuff if the pt had seen me in my office.

    I agree the 4.8m is egregious and that viral myocarditis is a diagnosis that will be missed more often than it is made, at least at first. Bad luck here, not a bad doctor. People just don’t want to believe that–so they sue.

    One case like this, in which the doc probably did nothing wrong, can ruin a career. You can’t blame risk-averse docs for over-ordering when they hear about this stuff.

  • http://www.ronsmithmd.com/ Ron Smith

    Hi, Shirie.

    I’ll never forget the young 18yo basketball athlete whose mother instructed him to scrub his callouses with a steel bristle bush.

    His endocarditis was devastating and as a last ditch effort the cardiac surgeon took him to the OR. He wouldn’t come off the heart lung machine, so he died.

    Some sixty years ago, my uncle died at age thirty from rheumatic carditis. In my whole career of thirty years I’ve seen one case of rheumatic fever that presented in a preteen girl with left hand tremor. The Pediatric cardiologist and the Pediatric neurologist and I all came up with the same diagnosis. She will have to take penicillin injections the rest of her life.

    I saw her last in her late teens and she told me that she had tried to fudge for about three months, but that the tremors came back, so she started the injections again.

    Some may question similarly why we should be doing the number of strep tests that we do. Dr. Liang’s unfortunate story is a case in point about why we have to be so vigilant, i.e., practice defensive medicine. We don’t see rheumatic fever nearly in the numbers that occurred when my uncle died from the heart complications, and the strep tests have been important to identify strep, and to keep us vigilant.

    The incidence of viral myocarditis is quite small I would think compared to rheumatic fever but then there are no tests. and little treatment. What would the family have suggested that could be done anyway short of a heart transplant? I personally wonder if they will appeal this?

    Warmest regards,

    Ron Smith, MD
    www (adot) ronsmithmd (adot) com

    • buzzkillerjsmith

      What to be done? Supportive care in a CCU first of all, then stabilize the pt if possible and see how things go. Maybe a heart transplant down the line for unmanagable HF. Of course the pt might die anyway.

      • Suzi Q 38

        Fair.
        I would rather know that the doctors tried their best and gave it their best effort and my family member died anyway than they sent him home without medical care and he died alone.

  • Patient Kit

    I was once a zebra, not a horse. And I never considered suing my doctors. In July 1999, I was diagnosed with and treated for sciatica when I presented with extreme pain radiating down my right thigh. My lower back got an MRI and then an injection. I did PT designed to control the pain while my body got a chance to heal. Then, in November 1999, the pain suddenly got much worse and my femur shattered while I was just strolling down the street. While I was being treated for sciatica horse, an undetected and unsuspected zebra bone tumor (thankfully benign) in my femur was weakening and killing part of my bone. Think of your worst toothache ever and multiply many times. There was no trauma so there was no reason to think I was limping around with a femur fracture. That pathologic fracture took two years to heal. It was quite a medical odyssey. I got 4 second opinions (3 of them at Hospital for Special Surgery in NYC) because nobody could figure out why my bone wasn’t healing and was on the verge of being sent out of NYC to Johns Hopkins. Then suddenly, I started to heal and I healed completely. Today, in spite of a lot of metal rods, pins, plates in that bone, I am 100% healed. If it weren’t for the surgical scar on my thigh, I wouldn’t even know it ever happened. No residual pain at all. I’m just eternally grateful that I still have my leg.

    Just wanted to say that not all zebras sue their doctors. But, believe me, whenever I told anyone my story while I was going through this, the first thing out of so many people’s mouths was “Are you going to sue?” or “You should sue.” I never even considered suing. But I totally understand why docs practice defensive medicine.

    • Lisa

      I think the general public does not understand that a missed or delayed diagnosis is not necessarily malpractice. For it to be malpractice, you have to prove that a doctor who specialized in the same field would not have misdiagnosed the disease or would have made the diagnosis sooner.

      My dad used to serve as an expert witness in cases involving optometrists. He said most time there was no malpractice, but there were also cases where the optometrist being sued totally missed a diagnosis they should have made. It was very intersting listening to him discuss the cases and having him explain the distinctions to me.

      • Patient Kit

        I agree. Not only do a lot of people not understand that everytime something goes wrong in medicine, it is not always malpractice. In fact, if docs were always 100% right immediately and there were never any bad, unexpected or unusual outcomes, I would think those docs must not be taking on any of the more difficult cases. It’s easy to be 100% right all the time if you only see easy cases. Thankfully, I’ve had some very good docs who are willing to take on difficult cases that other docs couldn’t solve (and equally good docs, in their way, who knew when it was time to seek other opinions). I don’t think a lot of peeps understand how awful it would be if docs only saw easy cases with little threat of malpractice.

        I wish we could find a solution that protects both patients who are victims of real malpractice and doctors who are victims of false claims of malpractice.

        • Thomas D Guastavino

          One solution would be loser pays. Allow the plaintiffs attorney a lot of leeway and no penalty during the investigational stage, (record review to deposition) but if the case goes to trial and plaintiff loses that attorney must pay the legal fees of the defendant. This would stop the “you know it would be cheaper to settle this case then fight it” attitude that is at the heart of our out of control legal system.

          • Patient Kit

            I agree with this. It would significantly curtail the rampant abuse of our legal system while protecting both doctors and patients who are real victims of malpractice. Is there a serious push to try to make this happen?

          • Thomas D Guastavino

            Sadly, No.

          • DoubtfulGuest

            Oops, double post. I have this wondering problem.

          • DoubtfulGuest

            Wonder what would be the first steps to get that going?

          • Thomas D Guastavino

            With the steadily accelerating issue of physicians shying away from the more complicated cases and emergency rooms, the first steps have already been taken.

          • DoubtfulGuest

            I understand, although I feel a chill now, Sir. I was hoping for something that wouldn’t throw patients under the bus. Again.

          • Thomas D Guastavino

            You can only throw so many straws on the camels back before it breaks.

          • DoubtfulGuest

            Nice chatting with you, Sir.

          • DoubtfulGuest

            Dr. G., I expect your up-votes will continue to pile on through the night, and this is to all of you. When someone tries to be supportive of you guys, you don’t snap back at them. It’s one thing to protect yourselves in choosing to provide care or not, and quite another to take your frustrations out on people. You told Patient Kit one thing, and then gave me a completely different answer which I’m already quite familiar with. The rest of this discussion is progressing nicely, so don’t be a wet blanket.

          • Thomas D Guastavino

            Sorry, I believe you may have missed the point I was trying to make. I was, and never would, advocate “Throwing patients under the bus” Physicians shying away from complicated cases and ERs is a sad consequence of the run away tort system. For many years now we have seen our altruism used against us to justify many of the radical changes in healthcare and if anything it is just getting worse. How many professions are required by law to give away their services for free? Soon we may have to fight our own colleagues for our reimbursement or get paid for the “quality” of our care when no one has even a clue as to what “quality” means. For me, and for a large number of providers, the last straw has been thrown on the camels back and sadly it is the patients who will suffer the most.

          • rbthe4th2

            I’ve been thrown under the bus by docs I’ve tried to help. Why bother? I’m starting on organ failure now. All a failure to diagnose a different (but noted in the medical research for years) presentation of the same diagnosis that a doctor made less than 2 years ago. I’m a zebra.
            I still have yet to send any letter about suing the doctor (or have any ongoing plans with any lawyer for any lawsuit). Some of us just want doctors to improve (and the system) or more patients involved in their care, asking tough questions. Things like that. That’s what we are preaching.
            The problem is that improving diagnoses, changing the way the system works, doesn’t make people & healthcare systems money, doesn’t justify the loads of admin personnel, loads of insurance groups and people to run that, and definitely wouldn’t justify huge salaries and armies of doctors.
            Randy

          • DoubtfulGuest

            Yes, and maybe you could have explained it better? 1) There was inconsistency between what you told Patient Kit and what you told me and 2) The way you say things is important. Remember your audience. Many of us here have ALREADY suffered because doctors labeled us incorrectly as high-risk. Just because our cases were medically complex or appeared to be complex. We have lived it, without ever having anything explained to us. “Shying away” makes you guys sound like harmless, frightened forest critters, but that’s often not how it plays out. Track any given patient through the system and what you get is a long game of hot potato with many of you getting really angry with the patient for no reason.

            We’re trying to understand your bad experiences here and we’re not the ones who sued you, and we’re not going to sue you. You actually have some patients willing to back you up on tort reform. Do you realize what a stretch that is? You’re not the ones who harmed us, but you plan to protect yourselves and other patients are going to suffer for it as we did. *You’re going to keep doing it.* So, try being a bit more polite please, and have a more give and take discussion like everyone else here?

            Communication. It’s not just the patients’ fault.

          • DoubtfulGuest

            Dear Dr. G. and seven other people:

            I realize it’s an extremely popular notion that patients are stupid and always misunderstand things. Nevertheless, I’m familiar with all the points outlined here in this educational module. I’ve been reading about them on Kevin for almost six months. I do not agree with any of the bad stuff happening to you guys, never have and never will take advantage of the runaway tort system.

            What I refer to as “throwing patients under the bus” is when there is already a doctor-patient relationship, diagnosis or treatment is in progress, then some apparent complexity arises and the doctor turns against the patient and abandons the patient. Often with a great deal of unpleasantness. I am not accusing any of you of this type of action. I am saying that I’ve experienced it multiple times and so have many other patients here. It seems like a subset of what you refer to as doctors’ “shying away”. Are you speaking of doctors simply refusing to take on additional cases? Are we talking about declining care to a patient’s face or simply in a hospital setting saying to the hospitalist: “I’m not the right person to do his surgery”? I would not call that “throwing under the bus”, although indeed patients will suffer in a different way.

            I was hoping for some education on how tort reform would work, because your “loser attorney pays” sounds reasonable to me. Maybe some clarification on “shying away” would also help. Thanks.

          • Thomas D Guastavino

            Perhaps an example of my own experience would help.
            In 1993, when some would say I was “younger and stupider”, I took on a case of a young woman who suffered what is called a pylon fracture, a very bad fracture at the end of the shin bone just above the ankle joint. Even today, anyone who is familiar with this injury knows it is very difficult to treat with a high rate of complications even under the best of circumstances. At that time I was working in a community hospital and recognizing the inherent difficulty in treating these injuries, offered transfer to a teaching hospital. The patient decided to stay with me and I proceeded to treat the injury under the standard of care at the time. Long story short the patient did develop complications leading to the need for several surgeries. I entire time I maintained a good working relationship with the patient, offering to set up a second opinion any time the patient wished.
            I thought I was out of the woods until one day a received a malpractice suit. The patient had apparently moved out of the area, fell again re-injuring the same leg and because of the old injury developed additional complications.
            Heres where it really got interesting. After the usual chart review and three years later, I eventually went to deposition. During an eight hour ordeal the plaintiffs attorney could not find one clear cut example of any breach in the care that I provided until I was asked, given the complexity of the injury, why I had not transferred the patient to a tertiary care facility? When I reminded him that I had on several occasions, and documented such, the attorney claimed that the patient had no recollection of said conversation. It then became a “he-said-she said” situation. When I thought of all the time and effort I put into this I had an epiphany. It just was not worth it taking on these complicated cases.
            After the deposition I heard nothing for a long time. However, because this case was still “on the books” it cost me dearly in additional malpractice insurance costs culminating in 2003 when our carrier pulled out of my state due the unfavorable malpractice climate, leaving us high and dry. At the last minute we found a new carrier who took us on in part because we stopped doing complex trauma cases. In other words, referring complex cases went from being a choice, to a necessity.
            Finally, in 2010, I received a letter saying I was dropped from the case. 17 years of aggravation!
            Long story but I hope it illustrates the point.

          • DoubtfulGuest

            I appreciate this information. Thanks for your time. I was aware you had at least one terrible experience that spanned 17 years or so. I don’t blame you for feeling the way you do.

            My disappointment with your previous reply was based on 1) your apparently brusque tone and 2) the lack of exchange of ideas between doctors and patients in our segment of the conversation, even though the exchange was going really well in the rest of the same thread.

            Whatever you decide in order to protect yourselves, a complex case is still a human being. You’re talking to one. I don’t think it’s too much to ask for doctors to learn from our bad experiences, too. I don’t like cases like yours, either, because so many other innocent patients will pay the price for doctors’ elevated cynicism.

          • fatherhash

            after understanding dr.g’s experience, do you think a system where “complex case” patients could sign a waiver(forbidding them from suing in case of bad outcome) would be a good idea?

            if not, should doctors just suck it up(and risk themselves and their family’s financial well-being) and treat the complex cases anyways out of altruism.

          • DoubtfulGuest

            Yes, and I’d sign it in a heartbeat, fatherhash. In my own misdiagnosis-then-stonewall situation, I reached out to the doctor and asked to sign something like that so we could talk candidly. I also would have signed it at any point during the care if that had been an option. I thought it would send the wrong message if I went and asked an attorney how to do it. I just don’t know enough about tort law. Legal stuff is like watching paint dry, for me. Anyway, I got my hand slapped and I don’t even know the attorney’s name. He or she conveniently stays in the background while I try to wipe that doctor’s footprint off my face.

            I did some reading and it’s my understanding in the current system there’s no way to make something like that legally binding. I find that very depressing. I bend over backwards to have mutually trusting relationships with all my docs.

            There’s a link to an article in my profile that sums up my personal values on this issue very well. I’m not asking anyone to suck up anything. I’ve been saying the same things for six months here on KevinMD. I just want to have this kind of give-and-take discussion instead of one-sided instruction on what doctors need. So thanks for your response. I know I express a lot of frustration here due to my own bad experiences. These are just my feelings. They’re important, but not the main driver in the choices I make, if you can believe that. I like it when everyone here tries to see the big picture.

          • Kathleen Kettles

            As I said, above you can sign a waiver not to sue or a general release which would be binding. I don’t know where you got the idea that you couldn’t do that.

          • DoubtfulGuest

            Your other reply is stuck in moderation, so I’ll start here:

            I already made the offer, ma’am. Several times. It’s my understanding on doing some reading that those agreements aren’t legally binding because the law doesn’t trust patients to be competent not to sue. A plaintiff’s attorney could argue that the patient felt coerced into signing. Even though I don’t have an attorney, how can I prove I don’t have one or need one? I made the offer anyway, multiple times and have been stonewalled for years. Thank you, though. Please feel free to set me straight if what you suggest is actually a legally binding option. Do I need an attorney for that? I feel it would send the wrong message. I’m glad to fill out the form myself if I just knew what the right one is.

          • EmilyAnon

            In California we have arbitration agreements. If patient doesn’t sign, the physician can refuse to treat. My hospital requires them before surgeries. But I’m not sure how binding it would be if the patient claimed they were coerced into signing.

          • DoubtfulGuest

            Yeah, that’s what I’ve read is it’s so easy for the attorney to get the patient to play dumb, and then claim coercion.

            Convenient, for the legal system to treat patients as incompetent. Because otherwise, we might decide to stay on the same side as our doctors, and then who would make money from pitting us against one another? It’s a racket, I feel.

          • Suzi Q 38

            I have signed arbitration agreements gladly.
            I would prefer to talk things out, rather than jump to conclusions, get angry, and have to run to a lawyer. Getting a lawyer means that I would no longer get care. What is more important??? Getting good or the proper care.
            I am not sure if the arbitration agreements are legally binding, but it is a nice start. It is better to have one with the patient than none at all, I trust.

          • Thomas D Guastavino

            On the first point, it was suggested and the trial bar had a fit. On the second, I hope you are not serious.

          • DoubtfulGuest

            Dr. G….With his second point, fatherhash was asking me a leading question because for some reason you all have gotten the wrong impression about what I was saying. So no, he was not serious.

            First point, I personally don’t give a rats what the trial bar wants. The other day I became aware of an option that might be legally binding, for me to release all liability for this doctor I keep wanting to talk to. So, I did it. Signed, notarized, and on its way to the doctor as we speak. I hope that helps illustrate my point.

          • querywoman

            Supposedly docs who treat the more complex cases are more likely to be sued.

          • DoubtfulGuest

            I’d very much appreciate it if you’d read my response to fatherhash when you have a moment, please. I’d feel better if all of you were clear about where I stand on this issue.

          • querywoman

            This sounds like a very difficult to prove case. Your documentation helped.

          • DoubtfulGuest

            “you know it would be cheaper to settle this case then fight it”
            I looked up the word “extortion” and it seems like a good fit?

          • querywoman

            That’s absurd because many losers have very little money. When doctors get sued, and it is rare, it is because they have a third party kitty, malpractice insurance.

          • Thomas D Guastavino

            It would be the plaintiffs attorney who would pay.

          • querywoman

            I had thought of adding something about why I didn’t think it would ever work to make the plaintiff’s attorney pay. That’s just outside our legal system.
            I disagree that malpractice is common. It’s very had to get an attorney to take a case. Valid malpractice is usually settled before trial. At trial, most malpractice cases are lost.
            We all pay plenty for insurance: auto, health, home, malpractice, etc. Insurance was made to spread the risk.
            Insurance booms in US capitalistic society. Everyone knows about stuff like how you can pay a cash only mechanic cheaper than you can an auto body shop or a dealer for insurance body repair if you can get check made out to yourself.

            The entire insurance system in the US is ridiculously bloated, just like the student loan industry. It’s also full of fraud. If you know how to really fix all this insurance mess, you’d be a genius.

            A lay midwife who botches a delivery usually has little money and no insurance, so she doesn’t get sued. An obstetrician does get sued for the third party kitty.
            The only thing that would really help tame malpractice suits in the US is true national health care. Obamacare isn’t it.

          • Thomas D Guastavino

            Hmmmm… are you saying that if medicine were socialized there be be no lawsuits because the government would become the defendant?? If that were true sign me up right now because I would love to see the trial bars reaction.

          • querywoman

            Thomas, I really don’t know what would happen.
            Supposedly there is some malpractice litigation in Britain and Canada.
            The public health system mops up anyway now in the US for private malpractice, and most of it is never compensated.
            After I typed the above, I was musing on how Europe has more even health care and better public transportation. In America, we have cars, lots of them, and that supports the auto insurance industry. Perhaps the less money Europe spends on autos goes into health care.
            In the US, we pay tons for all kinds of insruance. I don’t think malpractice is a separate issue.
            John Edwards lost most of his cases.

          • Eric Thompson

            Those countries have different legal systems. In the USA people get sued for many things other than health care malpractice. Single payer health care by itself would have zero effect on malpractice claims or insurence.

          • querywoman

            A large portion of malpractice awards is to cover health expenses!

          • Suzi Q 38

            This is so true.
            If you sue a physician for malpractice, you do not get the whole settlement. First, you pay the lawyers and expert witnesses, then court fees…then you have to pay the insurance company back for the money they have put out for the medical error.
            What are you left with? Not much for the duration of your illness.

          • DoubtfulGuest

            Too many cooks spoiling the broth…and eating up the settlement money. What do you all think of a no-fault system? Seems worth considering, I think, but I know very little about other countries who have them.

          • Suzi Q 38

            I have seen this in Workman’s Compensation cases. A friend of mine sued her employer ( we well-known physician in town for work related “stress.” I had lost track of her when all of this went down or I would have probably tried to talk her out of the lawsuit.
            In the end, she still had the stress, and was fired understandably from her job. She also could not get another, as her boss told all of the other doctors in town.
            Who was the big “WINNER??”
            Her lawyer. She got a settlement, but the lawyer took a huge chunk of it.
            He submitted bills from expert witnesses, his fees, photocopying, telephone calls, you name it.
            She got very little, and had a tough time finding work again.

            I still think that loser pays all would benefit the wealthy, as they are the ones that would be able to prevail a costly case.

          • querywoman

            Texas no longer requires employers to have Worker’s Compensation insurance. In the absence of insurance, common law liability kicks in.
            I have not been able to convince my own activist minister of this. The employer pays weekly checks and worker’s comp care, sometimes through regular health insurance, for injured employees.
            If the employer has not money, or is teetering on bankruptcy, as one of my ex-employers was, the employee gets nothing. Then, a hurt employee must rely on public clinics and hospitals.
            Sometimes, in public welfare, I had a client who would receive a weekly worker’s comp check from the employer.
            There was some kind of change in worker’s comp law 15 or 20 years ago, and most Texas lawyer’s no longer do worker’s comp.

          • querywoman

            I just got in from visiting a friend in a rehab center.
            No, lay midwives don’t have to have malpractice insurance or licenses! Certified RN nurse midwives probably carry it, like most doctors do.
            The State of Texas doesn’t even require doctors to have malpractice insurance. If they want hospital privileges, I think the hospitals require it.
            If I were a doctor, I don’t think I’d carry it. I’d spread my money out in various ways. In Texas, a homestead is exempt from litigation seizure.
            Texas “Strong Arm” lawyer, Brian Loncar, who advertises every where in the state, has a home in his wife’s name in Highland Park, Texas.
            The US insurance industry monopolizes, employs, and controls us all. I’m speaking of auto, home, health, and malpractice insurance and all the other types.
            Are they more powerful than the health insurance industry? Who stuck them in charge of health care anyway? They are not.
            Insurance tells no one how to practice medicine. It only doctors and hospitals what they will pay.
            Many of the uninsured in our county get excellent care at medical schools and public hospitals. However, even the government hospitals ask if we have insurance.
            As long as providers ask if we have health insurance, then the public wants them to have malpractice insurance.
            I have decided insurance is a false god. However, in our capitalist society, it thrives. The other way to pay for health care is through taxation. Health care, like education, is something the religious institutions used to provide.

          • Thomas D Guastavino

            There is nothing wrong with insurance. It is in fact a vital service. Would you want to own a home and risk having a fire burn it down without any way of replacement?. The problems occurs when the potential risk and loss gets so high and so unpredictable that underwriters can’t come up with a reasonable premium. I see a lot of advertising for auto insurance. With more predictable loses there is more competition which hold done premiums. Look at the ACA. The insurance companies had to have a promise of a taxpayer bailout in order to play along.

          • querywoman

            Like I said, it is very much a part of our capitalistic society. It spreads the risk. The US economy as we know it would not exist without insurance. It also employs a lot of people, which is something our government does not want to disrupt.
            The status quo is always easiest to maintain.
            As we know the insurance ndustry, it’s also bloated and rife we fraud. Listen to the jokes about how so-and-so parked the car and hoped an 18 wheeler would hit. Lots of people play get rich quick insurance schemes.
            Returning to the malpractice insurance issue, I do believe that medical malpractice suits exist in a more limited way in Britain and Canada. The few cases that actually get litigated in the US and won can have enormous payouts. These kind of large payouts would be less necessary in a country with universal health care.
            We need an effective means of addressing bad medicine that offers redress without accessing the court system. The court system is too weighty for the medicall defendants and the plaintiffs and takes too long!
            So many people just want an apology and, of course, health care for what’s not treated or mistreated.
            Criminal law already covers and will continue to cover really bad medicine, like Conrad Murray or Harold Shipman.

          • Eric Thompson

            Why in the world would having true national healthcare affect malpractice suits in any way? Good though it may be, it does not address tort reform.

          • querywoman

            I typed above about the part of malpractice that goes to cover health care expenses. Most people want some kind of redress, like an admission and an apology. State medical boards do very little now, and malpractice litigation is too lengthy and rare.

          • Suzi Q 38

            You are so right.
            My cousin decided to end her life about 5 years after her medical mishap.
            She was obese, diabetic, and needed a peritoneal shunt. I think she needed it for her dialysis.
            I am not a doctor, so please don’t ask me why. I also was not involved, so I really don’t know all of the hard facts. Anyway, the doctor or surgeon severed major nerve and rendered her a paraplegic after the surgery. Apparently, he knew his mistake during the surgery, and admitted fault.
            This saved her a lengthy trial, and the hospital had to provide her with care until it was settled.
            The family settled for 2 million dollars, but after all of the lawyers fees, insurance fees, etc., it was not enough to sustain her for her care long term.
            She was so big that it required a hoyer lift to move her anywhere. She needed a caregiver everyday.
            Within 5 years, she was running out of money to pay for her medical bills, nursing care, supplies, etc. I am not sure if she had insurance or not.
            Sadly, she passed away soon after she ran out of funds. She decided to end her life by refusing dialysis. She left a 7 year-old daughter.

            My point is that mistakes are made. Doctors are human and try their best, but errors happen once in awhile. Some doctors will do all that they can not to admit fault or apologize, which was not the case for my cousin.

          • querywoman

            Yes, and there are plenty of other patients as badly hurt as her who never got any litigation.
            Nevertheless, most of these damaged patients, if they lose their private insurance, will eventually end up on Medicaid and/or Medicare.
            Doctors, like the rest of us, pay taxes for government programs.

          • Suzi Q 38

            Querywoman,
            You make too much sense today.
            Thanks for your posts.

          • querywoman

            There’s nothing brilliant in my words. Obvious!

          • DoubtfulGuest

            I’m sorry for your loss, Suzi Q 38. I’m glad your cousin’s doctor was honest. But I’m very sorry it turned out so badly for her even so.

          • Suzi Q 38

            Thanks. RIP, Cheryl Ann.

          • querywoman

            Duh? It would eliminate the need for costly sums to pay for future health care.

          • Eric Thompson

            Still don’t get it. What would stop people from suing? I agree that national health care will affect costs; but not do a thing to help malpractice suits.

          • querywoman

            Why is this hard? The largest part of the settlements goes for health care. I understand that medical malpractice suits exist to a more limited effect in Britain and Canada, but I’d have to research it.
            There are differences in our economies. As I have stated, insurance is very important to American capitalism.
            Don’t you know people who were fixed after getting some insurance settlement? I’m not speaking malpractice. When I worked in public welfare, a lot of my poor clients were suing for small personal injury settlements or dreaming of doing so.
            Like the US, Britain and Canada do have criminal laws that address criminal physician misconduct, which is a different matter than malpractice.
            I no longer drive and am no longer beholden to auto insurance and petroleum companies. I have very inexpensive renter’s insurance, Medicare, and hospital indemnity insurance.
            As I have been musing on this thread, I suppose medical malpractice is the highest payout on intangible loss.
            If an expensive building burns down, that’s tangible in terms of insurance. Life insurance pays on something tangible. Whether one lives or dies is more obvious than damage from negligent medical care.
            It appears that medical malpractice insurance and lawsuits are anomalies in the American insurance and legal systems.
            Inadvertently, Eric, I feel like your words prove how much SCARE there is in the medical malpractice machine. Most people sue because they can’t afford health care, or think they can’t. They don’t think the public system can help them, etc.
            Can you not see that one sues because of extreme medical costs and needs help paying them?
            The issue of liability is lessened when people can afford health care.
            I’d have to look at British and Canadian malpractice suits to see what they cover.
            Because some parents fear vaccines, isn’t there some kind of no-fault system to help allegedly vaccine damaged children?

          • Eric Thompson

            We are off topic. Americans sue. Whether for medical reasons, car accidents or slipping on the sidewalk. Makes no difference. To think universal health care would reverse this makes no sense.

          • querywoman

            Not all that off topic. I agree. Americans sue. And they may sue more than in Britain and Canada. And the insurance system is a strong feeder of lawsuits.
            FYI, European countries also have stronger social fall-back programs to keep people off the streets than the US does.
            Both guaranteed universal health care and stronger social service programs would limit at least the SIZE of malpractice settlements, but maybe not the incidence of lawsuits.
            Better health and social programs would reduce the terrible fear.

          • Suzi Q 38

            Most patients do not have sufficient funds to launch a full-scale lawsuit.

          • Lisa

            Most malpractice cases are taken on contingency – ie the lawyer gets paid only if the win the case or get a settlement. So a patient doesn’t have to have ‘sufficient’ funds to bring a lawsuit.

          • Suzi Q 38

            Not a bad idea, except that most physicians with their insurance companies have their own lawyers and a much larger “war chest” of funds to fight most lawsuits, even those that do have just cause and merit.
            At times, the patient who has no insurance legal team or savings does not have the money to launch a solid lawsuit. The expert witnesses are just too costly. In that case, most doctors would be able to prevail just because the other side would be fearful of running out of money before the case even begins.

            Again, you would have a system by which the wealthy are the only ones who truly prevail.

            The physician with h/her legal team, bought by their malpractice insurance, dominate any opposing complaint even before the case started.

            Hardly fair to the average patient who not only has to pay their medical bills as a result of the error, but also has to find money to pay their legal fees too.

          • Thomas D Guastavino

            Once again, health providers are required by law and pay through the nose to fund that “war chest”. It creates the “deep pocket” that plaintiffs attorneys would love to feed on. With no system of checks and balances to control their appetite, malpractice premiums skyrocket. Several years ago in my state it got so bad that malpractice insurance became unavailable altogether.
            Attorneys take cases on contingency, meaning there is no financial risk for the client. Since they are not punished for any wild claim they make all they risk is their time. It is a sickening spectacle and nothing short of extortion having a plaintiffs attorney use torture tactics or try to convince you to settle what you know is a defensible case for no other reason other then it would be cheaper to settle then to defend.
            Loser pay rules would even the risk scales. There is no risk for the client. If there is truly malpractice that case would settle long before trial and justice would be swifter for the truly harmed. Attorneys would think twice before pushing cases they know have no merit and defendants would would not be intimidated into settling defensible cases.

          • DoubtfulGuest

            Great explanation. I think if physicians consistently referred to it as “loser attorney pays” it would go over much better with the public. “Loser pay” comes across harshly and inaccurately.

            Whether or not the doctor actually did anything wrong, a patient with a bad outcome is feeling like a loser already, in spades. “Loser pays” sounds like doctors want to pile on the suffering and further widen the socioeconomic gap between themselves and their patients. It comes across like doctors want to punish patients for even thinking of trying to recoup their losses.

          • Suzi Q 38

            “…..There is no risk for the client. If there is truly malpractice that case would settle long before trial and justice would be swifter for the truly harmed. Attorneys would think twice before pushing cases they know have no merit and defendants would would not be intimidated into settling defensible cases.”

            I disagree.

            You forgot the ideation that a doctor could possibly lie, and not want to help or rectify the honest error in judgment. The hospital wants no part of agreeing that it is their physicians error and hopes that the plaintiff does not want to risk losing, so refuses to even answer their phone calls or emails.

            I agree that there are soooo many lawyers that are not to be trusted, but there are others who do the right thing and want a just and amicable solution to the damaged party.

            Without a lawyer, the CEO would not be motivated to assist the patient who needs additional medical care or to be compensated for lost wages.

            “……With no system of checks and balances to control their appetite, malpractice premiums skyrocket. Several years ago in my state it got so bad that malpractice insurance became unavailable altogether. to be compensated for lost wages….”

            This probably is what happened in the state of California. The cap for any malpractice judgment is only $250K. This is what the legislators thought would be fair way back in 1975. This was a sizable judgement way back then, but is inadequate by today’s standards and medical costs, including wages.

            You are probably thinking that when there is tort law that the doctor or hospital easily admits fault
            and offers to settle amicably.
            Not necessary so.
            Their attitude is “No, we are not at fault, and they still are not wanting to do the right thing.

            I still say it is a lot easier for the physician to prevail than it is for any patient/plaintiff, even when the error is obvious. This is because the plaintiff has to hire expert witnesses, and in a case like that the physician or the hospital has the advantage. The plaintiff has to hire them at about $300.00 or more an hour. How many patients have that kind of money? Nowadays, the lawyers don’t even want to take on the “iffy” or 50-50 cases. The case has to be a solid one. This would only be a minority of the cases. Most lawyers I know wont take these frivolous, pro bono cases.
            They are just too expensive to fund.

            Once a nice physician on this board said it this way:
            “Well I hate the thought of lying, but when it comes to my losing my job, my medcical license, or getting sued, I have to do what is best for me and my family.” This probably means lie.

            I will say that I totally understood where he was coming from.

            Your idea about loser pays would give more power to those with the money to prevail in any courtroom.

          • Lisa

            Suzie Q, California malpractice law caps awards for pain and suffering at $25,000. Awards for medical expenses and lost income are not capped. At some point in this long discussion, I posted a link to a discussion about the effect of the law. One major effect of the law is that insurance companies are making more money. It has not brought down malpractice premiums and has not reduced the cost of medical care.

          • Suzi Q 38

            Thanks for your info.
            I just kept hearing a cap of $250K.

          • Lisa

            I lost a zero, so corrected my post. The cap is $250,00o for pain and suffering…Awards for medical expenses and lost income are not capped. That is the point I was trying to make.

          • Thomas D Guastavino

            I don’t quite understand the points you are trying to make. Perhaps a more detailed description of how I envision a loser pays system would work.
            If a patient feels they have been wronged the right to seek council would not be impaired in any way. If it is decided that a suit be initiated the plaintiffs attorney sends a letter of intent to the provider but without any specific accusation. The provider, as now, would be required to provide any requested records and be deposed at the discretion of the plaintiffs attorney. In other words the provider has to fully cooperate during this information gathering phase and a specific wrongdoing be identified. Then the plaintiffs attorney can make an accusation only when there is clear evidence of wrongdoing, not the blind shotgun approach we have now.
            At this point negotiations can start. If a settlement is reached, all well and good. If the plaintiffs attorney decides to drop the case at this point, it ends, no harm, no foul, no payment. However, if the plaintiffs attorney incests on trial, and they lose, then the plaintiffs attorney must pay the defense costs of the defendant provider.
            I truly believe that this will lead to a more equitable and streamlined system where defendants would not be intimidated into settling defensible cases and the truly injured would receive swifter justice.

      • buzzkillerjsmith

        Pts might not understand, but, thankfully, most juries do. Most of us who get sued never have to pay a penny.

        • Lisa

          I think juries receive good instruction on what malpractice actually is.

          • DoubtfulGuest

            And I’ve often heard real malpractice is usually settled out of court.

        • querywoman

          These kind of stats are easily available. Most patients do lose the few cases actually make it to court.
          Malpractice is too hard to prove, because of the inexact nature of medicine. I assume most wins are in surgical cases. I need to explore that.

          • Suzi Q 38

            Please do.
            I have several friends (mostly from high school or college) who became lawyers. Add to that a couple of lawyers in my neighborhood, relatives, and more at the gym. Oh, and my daughter’s college chums and sorority sisters who are now lawyers. There is one at every corner.

            Most will tell you that malpractice lawsuits are difficult to win. That they do not take on any cases without due consideration and the consult of a physician or an RN who reviews the case and tells the lawyers if there IS a case.
            This can get expensive.
            If you can’t even afford the fee of the expert witness who determines whether or not you have a case, forget it. You don’t have enough money to continue if you have to ask “How much will this cost?”
            So you can see how sometimes, it is not a matter of who is right and who is wrong. You have to have some money to fight the fight. This is where the middle class or poor will definitely be the “underdog.”

            I like the idea of contacting the doctor’s insurance carrier and letting them know about what the patient thinks transpired. This way, you won’t be ignored. It can’t hurt.

      • Suzi Q 38

        “I think the general public does not understand that a missed or delayed diagnosis is not necessarily malpractice. For it to be malpractice, you have to prove that a doctor who specialized in the same field would not have misdiagnosed the disease or would have made the diagnosis sooner…..”

        So true.

        • rbthe4th2

          What if the doctor diagnosed it before but couldn’t figure it out the 2nd time, presented differently, when it was written up in the medical literature, and had been for years?
          You also have to wonder about docs of any type that can’t read medical research and given X number of criteria, can’t figure that out. Even when the criteria are written up that match the medical research criteria.

          • DoubtfulGuest

            Yes. One example is neurologists saying a normal EMG/NCV pretty much rules out any neuromuscular diseases. Nope. I could give them stacks of papers, many with handy reference tables, that say here are the diseases that will give you a normal test. Lots of metabolic myopathies, for example. It’s a great tool, with limitations.

            But even some neurologists at some teaching hospitals will blow off a patient with a normal test, or worse, say that it somehow means you’re a bad person. It’s all over the medical literature, guys. It’s not some obscure exception. There’s no excuse.

          • rbthe4th2

            BINGO!!! I think a major point is missed in that functional ranges for blood tests and probably any other test, depends on the PERSON not the levels. Some people may show signs of problems when they’re normal range for everyone (ie common lab values) but they’re not normal for that person.

    • buzzkillerjsmith

      If a pt has low back pain for 6 weeks, the pt should have a further workup, including plain lumbosacral films at the minimum. Other docs here can correct me if I’m wrong, but this is standard of care as I understand it.

      A femoral lesion does not usually present as sciatica, but if you’re not getting better, the doc must continue digging. That’s our job.

      • Patient Kit

        Hmmm. Maybe I shoulda sued someone. Just kidding. This happened 15 years ago and the memory of the exact sequence of events may be getting blurry. But, I first went to the ER on a weekend when I was in so much pain, I could barely walk. ER x-rayed my femur but somehow missed the lesion, gave me some mild meds and told me to see an orthopedist. I did. He suspected sciatica and ordered an MRI of my lower back. The MRI showed some mild swelling around the nerve, enough to seemingly confirm his dx. Then came a 6 weeks of conservative PT treatment. When I remained in just as much pain, I then got an injection near the sciatic nerve. I seemed to be a little better for a while after that. And even though all the severe pain was always felt in my thigh, not my back, my diagnosis remains sciatica until I suddenly got worse and my femur snapped. At that point, we knew it wasn’t a back problem and I had emergency surgery to fix the fracture, biopsy the lesion and clean up the necrotic pieces of bone. It was a scary time. That was all with one doc over a period of 5 months. After that, the slew of second opinions ensued when my bone failed to even begin to heal for 2 years. Two years of walking around on a femur held together by a rod, plate and pins. Thankfully, no cast. So I could swim even though I could barely walked. I was going through pre-op for a second surgery (this time at Hospital for Special Surgery) when I “suddenly” started showing signs of beginning to heal and my surgeon there postponed my surgery, which ultimately became unnecessary. In the 15 years since, I have never had low back pain. I don’t think I ever really had sciatica, although it’s possible that I had an isolated back strain. Finally, the fifth orthopedist I saw (also at HSS) spent a long time examining me and theorized that my delay in healing was related to an underlying collagen pathology. He came up with this theory from asking me a lot of questions and seeing nuances in my fingernails and a slight curve in my pinkie fingers. His dx process was fascinating. Do you think I should have sued my original doc for misdiagnosing sciatica? I have no regrets for not suing. I just wanted someone(s) to identify the problem and fix me. I live in NYC without a car. My legs are my main transportation mode. All is well now.

        • buzzkillerjsmith

          Definitely a zebra here.

          • rbthe4th2

            BK,
            Here’s what I don’t get. With all the knowledge we have now, why can’t medical science figure out the zebras? Its as if they can hear hoofbeats and think horses but can’t progress beyond that. In all these years, I would have thought that they can progress from there. When I see people who can google and figure a diagnosis out, and know that docs consult Wikipedia vs. UpToDate for medical info (recent research on docs and googling), I have to wonder why docs can’t look at research and go “here it is”.
            I do have some docs I’ve seen that read it but more don’t.

          • DoubtfulGuest

            It’s partly because they’re playing statistics, which Dr. Buzz is great at explaining. And often, they act like they’re talking to generic cardboard cutouts of patients instead of individuals. It’s like in the movie “Groundhog Day”:

            “Sorry boys, that’s yesterday’s tape!” when they keep playing “I Got You Babe” over and over when the clock strikes 6 am.

            “I see this sort of thing all the time, and I don’t think it’s anything serious…”

          • Patient Kit

            A very blessed and lucky zebra who is thankful that I still have both my leg and my life. I’m grateful to all of the doctors who participated in my mysterious medical odyssey. In defense of my original surgeon who initially treated me conservatively, I did eventually heal 100% from the surgery he performed. I’m also grateful that my second surgeon at HSS didn’t put me through another unnecessary surgery when he saw tiny sparks of possible healing.

            On that medical adventure, I don’t think I was initially treated with especially defensive medicine, both in the ER and by my first orthopedic surgeon. But once my bone lesion dramatically made itself known, I was mammogrammed, bone scanned, CT’d from head to toe and sent for an oncology consult to look for any signs of potential cancer elsewhere in my body. Thankfully, the biopsy of my bone lesion was not malignant.

      • Suzi Q 38

        My brother in laws PCP neglected to follow up on his low back pain.
        The pain escalated over several months.
        It turned out to be pancreatic cancer….left undiagnosed until he got to the ER.

        • querywoman

          Did he die? Did he live long enough to sue? Lots of doctors wouldn’t take lower back pain seriously, and it could be cancer.
          That’s part of being doctor, and such cases aren’t usually litigable.

          • Suzi Q 38

            Yes, he died.
            The poor guy had been complaining about back pain for months. His father was a GP physician.
            His father died two months before he did. His physician was pregnant and taking time off for her delivery. It was a “perfect storm” as they say.

            My sister chose not to sue because she was so distraught and was not up to it.
            Also, there is a $250K cap. You could run through $250K on just lawyers fees and expert witnesses.

            She would still have to prove negligence, and this would be very difficult to prove, understandably.
            Also, pancreatic cancer is a tough cancer to have.
            By the time the pain from it was unbearable, he was already stage 4.

            He left behind a wife and two children, with no life insurance. I loved that man like a brother. We went to college together. He saw a picture of my sister, and decided that he wanted to take her out on a date, LOL. At the time, I was dating his room mate.
            The life insurance part is a whole other story.

          • querywoman

            If she “chose not to sue,” it does not mean she could have found a lawyer to accept the case anyway. Lots of people are too distraught to think about litigation.
            I know pancreatic cancer is generally fatal. I assume your sister and her children got Social Security survivor’s benefits.
            I knew a woman whose four year old granddaughter died at home during the night after being taken to a public hospital for croup. In the morning, they found her dead.
            That’s part of the life cycle, the only life we know. Currently, the majority of children outlive their parents, but for our not so distant ancestors, not many children did.
            It’s tragic when we hear about a child who goes to the ER with the flu, gets sent home, and dies. I suppose many adults do also, but it’s more dramatic with a child.
            The flu/pneumonia combination is probably our most deadly disease now that bubonic plague is no longer a problem.
            Missing a diagnosis is not necessarily malpractice, and I’m not sure what it takes to get a case litigated. It’s so hard.
            A lot of the doctors who post here complain about the stress and time spent on malpractice cases. Most are eventually dismissed anyway.
            But for most of us, bad medicine lasts a lifetime. The injured patient lives with stress and loses much time.

  • saurabh jha

    The natural conclusion of this case is that anyone with signs and symptoms of URTI needs to have EKG. Since there are so many non specific abnormalities on EKG and it’s near impossible at T=0 to say what’s non-specific and what’s not (in hindsight we are all geniuses) with 100 % certainty, that’s a lot of admissions, follow-up echos, cardiac MRIs (because, of course, some genius will point out that a negative echo doesn’t rule out myocarditis) cardiac troponins and viral titers. This will cost.

    Then one day a clever researcher will point out we are doing all these unnecessary EKGs and analyze the perverse incentives!

  • PoliticallyIncorrectMD

    I find the whole idea of faulting somebody for health outcomes to be completely ridiculous. The extent of a tragedy ( i.e. loss if young life) has no bearing on the principle. If we could control who lives and who dies, people would live forever. If we can’t, don’t blame us when the outcome is not as good as someone would expect.

    • querywoman

      Yup. Medicine is still inexact, and so are patients.

    • rbthe4th2

      Hmm it depends. There’s an accident and there are missed diagnoses from just not keeping up with medical literature and not working with the patient when it is found.
      Then again, I’m not too into suing unless its a big deal.

  • saurabh jha

    In the medicolegal world “might have” is good enough for medmal. They do not need to show beyond reasonable doubt.
    And EKG “might have” picked up viral myocarditis.
    Of course, if the EKG was normal and the patient died from myocarditis the attorney would spin it another way: can patient with normal EKG still have myocarditis?
    There’s no winning on this. Damned if you do and damned if you don’t.

    • buzzkillerjsmith

      I don’t know about that. As a family doc, I have the luxury of having the pt call me or see me again if the clinical course is not what I said it should be. That said, the ER docs don’t have an ongoing relationship with the pt and don’t have the luxury of followup.

      ER is a tough gig. Lawsuits, sleep deprivation. I wouldn’t want to do it, even with the shorter hours and higher pay, and even though I can handle emergencies outside of massive trauma.

  • DoubtfulGuest

    Some of us patients aren’t too happy with the legal system either, stirring up conflict where there doesn’t need to be any, and manipulating people’s emotions. Often patients and families just want thorough, compassionate answers. Sometimes an apology. Depends on the situation.

    • buzzkillerjsmith

      Answers and apologies go a long way. I missed a lymphoma on a pt 15 years ago and said I was sorry, as I was. She did not sue.

      • DoubtfulGuest

        You’re a good egg, Sir. I wish more of you would try it. One happy side effect of increased apologies would be that the public would understand you all a lot better and start to have more reasonable expectations. People will talk, about the nice doctor who was sorry and took the time to explain everything.

        • rbthe4th2

          Yes and no. Some idiots will try to sue but I think you’ll find that gets stopped quickly and public notice of someone doing that will go down on the side of the doctor.
          I think the other is that finding docs that do that might change the minds of admin who probably drive a lot of the DO NOT SAY I AM SORRY into the minds of doctors.
          I know the jaws dropped when I mentioned that to admin: I expect you to fix the problem and move on. When you didn’t do that, that’s why I have been yapping about not just the original problem but the bungled and immature, unprofessional way you handled it.
          Yes docs, we can say that. I’m sure some of you would like to. :)

          • DoubtfulGuest

            Bungled, immature, unprofessional! ;)

          • rbthe4th2

            I got away with it because they were shocked and I was right. Seriously … I mean act professional. If I can do it and I’m the one harmed, you would think they would and could.

      • Suzi Q 38

        I agree.

      • querywoman

        A missed lymphoma may or may not have been litigable. I’m sure you are not the only family doc to have missed one.

    • Suzi Q 38

      I agree.
      Not everyone wants or can afford a lawsuit.
      In cases of death, or catastrophic medical error, where the patient is barely alive or can not work, there are the lawyers that will sue on behalf of the injured party.
      If you are fairly wealthy, and money is not a problem, you can afford to hire any attorney on your behalf.

      If you are the average patient with limited income and funds, you are out of luck. If you are a patient who happens to make a huge income, you can sue for the lost income. If you are a stay at home spouse, you will not be able to sue for lost wages.

      Reality is that it is rare that the frivolous lawsuits would go anywhere.

      I wonder how a physician would feel, if h/she was the patient or the spouse of an injured or patient who died because of a medical error….

      Would h/she so easily forgive and forget? What if their husband or wife was a physician or lawyer and made about $300 or $400K and could no longer work or died as a result of that error. Would they say, “Hey doc, better luck next time, don’t worry about the error. H/she was only my spouse of 20+ years and the parent of our 4 children.
      H/she is gone now, but we will have to make do without h/her. Stuff happens.”

      Ahhh but the death may not have occurred, because the patient would have identified himself as a physician or the spouse of a physician in order to get good care in the first place. My friends who are married to physicians pull the “physician care” every time they go to a doctor or hospital. My other friend, who is a physician would do the same.
      Why? Because they know they will get better care and they can.

      My guess is that the physician’s family would sue.

      • DoubtfulGuest

        Ooh, that’s a good point! Yes, I’d like to know what they have to say to that.

        I also wonder how lawyers would feel as patients. Do none of them like their doctors and want to maintain a good relationship? Would they not like an apology if something went wrong, would they want that wall to go up?

      • rbthe4th2

        Totally agreed. I’ve seen doctors complain about the treatment they’ve gotten and had to go around before got good care – in one case a MD/MD couple took their kid to 3 places before they got the right dx. They know … they’re not stupid.

      • querywoman

        Medical malpractice is on contigency, it’s just very hard to put togeth a case.
        A fatal respiratory illness similar to a cold would be difficult to litigate.

    • rbthe4th2

      You forgot to add C H A N G E. I want to see change:
      meaning if a doc is overworked or burned out, for the love of heaven and the patients, HELP the doctor. Don’t crap on them. Give them support to get back on their feet. Don’t dump on patients when they get sick, how about showing caring and empathy by giving medical professionals that same consideration? When patients complain their doctors aren’t considerate, etc. maybe just maybe part of the problem is the behavior modeled by the admin.
      If they need better diagnosis skills, introduce them to UpToDate, ClinicalKey, etc. Google, we do it, docs do it. I don’t care if my doc comes up with it, or I do and they give it a shot. Team Randy (Patient) wins. No one loses.
      I’ve put in writing praise to a doctor who looked up something in front of me. I said most don’t have the courage to do that, and what it said to me is that the doctor felt my health was worth doing that. I had greater confidence in their abilities and trust in them when they did that. I felt respected.
      Or they could look up Dr. Ring and the operation that he did incorrectly, told the patient, and the patient said go ahead and do the right one. I’m not the only person who thought (and there were some who said online) that they would go to him SPECIFICALLY because of his integrity. Anyone with the guts to do that I’d patronize.
      Yes, those who don’t, I pass the word along.
      Randy

  • buzzkillerjsmith

    Yep. According to Kindermann et al JACC 2012 you are correct that an EKG usually will not usually diagnose or even point to myocarditis.

    Full disclosure: I have not done a thorough investigation of this topic and other docs here are welcome to correct me if they disagree.

  • Lisa

    The Boston Globe’s reporting is very incomplete. After reading that article, I have no idea what actually was happened, if Dr. Liang’s acctions were appopriate or not. I’d like to read the trial transcript.

    • Suzi Q 38

      Thank you.

  • Ellan

    Awful story. My heart goes out to Dr. Liang, I hope he moves on and finds a way to enjoy his work again. And may karma come back around to that lawyer.

    • Suzi Q 38

      You appear to have more sympathy for the doctor rather than the patient who died.
      Dr. Liang is alive and well, practicing in Chico, California.
      He might have chosen California because of our state’s tort law concerning medical malpractice.
      Not only do you have to prove negligence in our state, but there is a “cap” on the monetary award for injury or death.
      It is set at only $250K.

      • Lisa

        California’s malpractice law has a $250,000 cap on all damages in malpractice cases, except for medical bills and economic losses (usually lost earnings).

        This editorial about the effect of the law makes the point that doctors haven’t really benefited from the law as the insurance companies are still collecitng high premiums, yet paying out a small portion in claims. See the last paragraph:

        http://articles.latimes.com/2013/jul/09/business/la-fi-hiltzik-20130710

        • Suzi Q 38

          Thanks for the link.
          Good story, and so true.

          This is probably one of the reasons our state has so many physicians.

          • Lisa

            I would prefer to think it is because California is a nice place to live.

          • Suzi Q 38

            That too.

      • Mengles

        The patient is deceased from something that COULD NOT have been prevented or treated. It’s not the doctor’s fault that this patient died from something that is UNTREATABLE. Of course he moved to California bc of tort reform, bc of ridiculous cases like this in which emotions mean more than facts.

        • Suzi Q 38

          I can understand your viewpoint, but unfortunately, the court and jury did not agree with you, given the evidence submitted.

  • guest

    Consider a scenario where a teacher has to stop the class because she is afraid to discipline one unruly child. The entire class has to go without a lecture and pay the price. This teacher is afraid of losing her job or a lawsuit if she raises her voice. Perhaps parents already complained about her while their child is in desperate need of discipline.
    Our focus is on the individual, not society as a whole. Over time, this narrow focus will hurt us all. Testing everyone for everything in the medical field can be harmful. What I hate about medicine is that common sense does not prevail any longer. We overtest and over treat to protect ourselves while being fully aware of potential harms.

    • Suzi Q 38

      I can appreciate your example, but it is just not close to this case. A teacher would merely lose her job if she did the right or wrong thing; no one was physically injured or died as a result.

  • Dr. Drake Ramoray

    I have waited a long time or an article like this to post as a response to another article on kevinmd

    http://www.kevinmd.com/blog/2014/02/patients-solve-health-costs-skin-game.html

  • JR

    I remember when a student went to the medical center, was diagnosed with a cold or flu, and was found dead in her dorm room after winter break.

    The University immediately took full responsibility. Policy changes for housing over breaks were put into place, as well as policies for checking in on sick students in the dorms year round.

    There was no lawsuit.

  • http://google.com/+JonBeckerProfile Jon Becker

    “Just at a time when we are supposed to be cutting unnecessary costs we have to do EKGs, myocardial biopsies and cardiology consults on every 23-year-old who comes in complaining of cough and fever?”

    Aside from the health tragedy, Love this entry….. this goes without saying but most people (pretty much everybody at this point, healthy or not) are up in arms about the cost of health care and the associated insurance premiums…. I’m not sure most non-healthcare providers realize that medical malpractice reform is the first step to lowering premiums, the Affordable Care Act likely doesn’t even approach this issue, in fact it more than likely encourages the moral hazard…. the insurance companies and healthcare providers are effectively subsidizing the risk of borderline to ridiculous medical malpractice settlements under the Affordable Care Act rather than the consumer taking at least part of the beating via higher premiums. I suppose the Affordable Care Act wasn’t hard to predict, diverting personal responsibility elsewhere is trending, either way the acts of the few affect the many, something that can’t be changed.

    I would imagine this is why the health/healthcare tech sector is on fire, especially within the startup world…. if you can’t change the nature of the people, build products and applications to facilitate CYA medicine in a simple, efficient, cost effective manner… i.e. wireless tech + phone/wearable + an app to administer an EKG, multiple other tests, etc… bing, bang, boom lowered your probability of a lawsuit in under a minute. The time is coming.

    HCP Call to Action: Cover Your Asses Better! Join a healthcare tech/ed startup advisory board (trust me, not a huge time commitment) – lord knows they’re not hard to find and need all the help they can get, especially from people who actually know what they’re doing. Get social. Support new tech. Focus on solutions, make your mark on healthcare reform, and most importantly… stop filling that Klonopin/Adderall combo script every month… (still working on my HCP jokes).

  • Robert Buna

    Such outcomes should not be surprising as long as we consider medicine and healthcare a business. Hospitals want to make profit, insurance companies want to make profit, doctors are little businesses geared for profit etc. – all on the expense of the patients (the number one reason for bankruptcy in US remains medical bills). So when a customer is unhappy – or dead – don’t be surprised that they strike back. Flash news: this is normal in any business.

    • Mengles

      So you believe it’s right for a doctor to have to pay for “malpractice”, when there is no diagnostic test, no treatment and thus nothing that can be done for this condition? Now you know why doctors are leaving in droves to states with tort reform.

      • Robert Buna

        The doctor/hospital got paid for that service. In any business, when you get paid, you inherit the risks. A good answer from the doctor would have been: “It is possible that this kid may have viral myocarditis, but there is no way I can diagnose that. And even if I could, there is nothing I can do to help him” – and that statement probably would have saved his back in court.

      • guest

        And here in CA lawyers are pushing for more tort “reform.” Reform in their favor. Lawyers are sponsoring a bill to increase pain and suffering to 1.2 million.

  • DoubtfulGuest

    With the doctor’s time away affecting staff and other patients. And sometimes severe emotional stress for the doctor…

  • Lisa

    The one thing that might work, in terms of tort reform, is safe harbor laws, ie if the standard of care is met, lawsuits can’t be brought. I understand there is a study looking at such laws, which indicate that the number of lawsuits is reduced.

    I think tort reform in Texas didn’t bring down costs because medicine is a business and there is/was little incentive to stop excess testing/procedures.

    I’ll look for “The Innovator’s Prescription.”

    • DoubtfulGuest

      Very interesting, both of you. I’m learning a lot here, so thanks.

    • ninguem

      “…….if the standard of care is met, lawsuits can’t be brought…….”

      The problem is, the “standard of care” is whatever the plaintiff lawyer can convince the jury to be the standard, for that case, in trial, after the fact.

      • Lisa

        The safe harbor concept assumes that the standard of care is determined by professional organizations & boards before hand. I’ll try and find a link to one of the studies I read.

      • DoubtfulGuest

        We have review panels in my state, but I don’t know who chooses them.

      • Suzi Q 38

        So true.
        Expert witnesses in cases like these are merely other physicians who are “bought and paid for.”
        You wonder if the experts are honest people at all.
        Both sides will fight for their party. They will slant their opinion to suit what needs to be said to win.
        You need money to do this.

        • Lisa

          I think you are being overly harsh regarding expert witnesses. My dad (an optometrist and a professor of optometry with a PHD) served as an expert witness on cases involving optometrists before he retired. He worked for both lawyers and insurance companies. I’ve talked with him a lot about his work as an expert witness. I assure you he was independent and he was paid for his opinion, not to give false witness.

          He did say that most insurance companies, if there actually was malpractice, would attempt to settle out of court.

          • Suzi Q 38

            It is good that there are people like your father.
            You are right, not all are dishonest.
            It is just that one side hires their witness, then the other side hires their witness. Both sides get paid to evaluate their patient or medical situation.
            Who is right?

            I had to hire one once. He was a neurologist who was honest and excellent.
            I had to hire him because my father in law’s wife of 5 years had him deemed incompetent after his major stroke by her family physician so that she could launch a legal takeover of his separate assets.

  • DoubtfulGuest

    Yes, I see what you’re saying. Well said. This is a situation in which everyone has to give a little in order to fix an overwhelming problem. It’s actually the most constructive discussion I’ve seen on the topic so far.

    This, especially: “…some patients truly are simply lawsuit-happy – but don’t complain about a patient failing to recognize your humanity if you aren’t willing to show them that you have it.”

    Agree. There will always be some small number of people who will take advantage. But there has to be a way to more easily spot those folks and keep them from ruining everything for the rest of us who want solid doctor patient relationships and reasonable medical care.

    I was responding based on a personal experience in which a doctor made serious mistakes with my care, and I’m pretty sure what started the whole mess from day one was his fear of lawsuits. I can’t be 100% sure but some weird things he said to me along the way kind of suggested that. Also his response afterward, which has been deny and defend, stonewalling for years, makes me think that.

    So, I’ve been here trying to understand the doctors’ side, because the alternative is to hate this guy. There was a point that I started to hate him, if I’m being perfectly honest. By trying to have empathy instead I feel about 0.5% less bad. It’s quite the train wreck, isn’t it? I really appreciate your thoughts.

  • DoubtfulGuest

    I wish the public was more aware of this. I was quite surprised to learn about the National Practitioner Data Bank. It doesn’t protect anyone and that kind of reporting only makes sense if there’s a series of judgments that would indicate negligence.

    • Anne-Marie

      Information in the NPDB is not available to the public. It’s mostly used for credentialing, licensing, peer review and so on.

      State boards of medical practice are the governing body for physician licensing in each state. They usually allow public access to information such as whether a physician has been disciplined, had his/her license sanctioned or revoked, been convicted of any crimes, etc. States have some individual latitude in how they handle complaints – what gets your license suspended in one state might only merit a reprimand or remedial education in another state.

      Someone else can please correct me if I’m wrong, but I think malpractice cases generally only need to be reported to the NPDB. Doctors with a series of judgments against them might come to the attention of a state medical board, however, which might then conduct its own investigation that may or may not result in action against someone’s license to practice medicine.

      • DoubtfulGuest

        Thanks, Anne-Marie, I really appreciate the clarification. What I said was fuzzy, so I’ll try to fix that. I knew the actual databank info was not public, I just meant that it seems like few people even know it exists and what it’s for.
        I was thinking in terms of harm to the physician…when people sue, of course they’re looking for money (sometimes they only want apology but atty wouldn’t profit from that). Among the people I know, everyone thinks it’s a simple transaction, Dr. probably has deep pockets/good insurance and wouldn’t be harmed.
        I was thinking, not only are there often not such deep pockets, but there’s this whole other can of worms that’s the NPDB. And all the different people that could be affected if an adverse report is made against a physician. If I understand correctly?

        • Anne-Marie

          If there’s a bad outcome and the patient and/or family are angry, they probably don’t care about the impact on the physician’s career. They’re deep in their own pain, perceived or real, and may in fact think they’re doing society a favor by punishing a “bad doctor.”

          How people get to this place of anger and vengeance, and how to keep things from escalating to this level, seems like the real root of the issue.

          • DoubtfulGuest

            Did I say something offensive? I wasn’t thinking so much about career impact, but other patients being affected if the doctor’s practice is limited in any way. Particularly for specialties or parts of the country that there’s a shortage. Also, thinking of docs who experience severe emotional distress from lawsuits.
            I’ve heard the “punish a bad doctor” thing, too, I’ve just also heard “it’s not a big deal for them, they have plenty of money” more often. That’s just my experience with people. Also, I had a bad outcome, am angry, but I still think the other stuff I think. That’s just me.
            My own short-lived vengeful feelings started after the doctor stonewalled me when I tried to talk to him. I have reason to believe an attorney encouraged or even forced him to deny and defend, but I can’t be sure. What I really needed (and still need) is information and some indication of caring on the doctor’s part. Also, I found out that deception was involved in one of his mistakes. That puts it on a whole other level.
            If you don’t mind my asking, are you a healthcare professional? I haven’t been allowed any information about what happened to me, so I don’t necessarily know what I’m talking about.

          • Anne-Marie

            Oh goodness no, you didn’t say anything offensive at all. I was mostly latching on to your observation about harm to physicians and the impact on the rest of the public when docs get sued, and making my own observation that although I completely agree that people ideally need to think in terms of the bigger picture, we often first have to get through the “punish the rich arrogant doctor” mindset…. and it’s really hard, human nature being what it is.

            We seem to be kindred spirits when it comes to bad experiences. I was on the receiving end of a sentinel event several years ago that resulted in permanent disfigurement, and I encountered many of the same things you did – stonewalling, deception, withdrawal. Even when you’re able to be compassionate and understanding about it, it’s still a complicated stew of emotions that you’re mostly left to figure out alone.

            I keep thinking that if patients like us could actually sit down and talk candidly with doctors about this, it might change everything.

            P.S. Nope, not a health care professional, just an occasional commenter who likes seeing diverse points of view.

          • DoubtfulGuest

            Yes, that is similar, Anne-Marie. I’m very sorry to hear it. I don’t even have permanent disfigurement. Mine was quite some time ago as well. It feels like yesterday, even though I’ve moved forward with other aspects of my life, I really haven’t made any progress emotionally. It’s very stressful.

            They still won’t talk with you?

            It sure looks like we have the same objective. Well, I appreciate all your help and information, and I think you’re right overall. It’s a daunting problem, but surely something can be done.

          • Suzi Q 38

            “……..How people get to this place of anger and vengeance, and how to keep things from escalating to this level, seems like the real root of the issue.”

            Losing a family member is fairly high on the list of personal grief.

            Since we weren’t jury members to hear all of the evidence presented, we truly don’t know all of the facts; basic or detailed.
            It is easy for Dr. Leng, the author of this story to sympathize with the doctor. Does she know the full story? Maybe, maybe not. The full story is in the court transcripts. I doubt that she would have access to such.

            Maybe the patient who died was ill for a couple of weeks, and couldn’t “shake” his cold. Maybe at times he had a fever and was sweating profusely, definitely not himself.
            When I think I am mildly sick, I rest, take care of myself and treat myself with OTC products. If I felt worse, I would call my doctor or visit my doctor at his/her office. If I felt really bad, and my symptoms escalated, I might go directly to the ER.

            Obviously the patient thought he was doing the right thing for himself. I am just guessing here, but most patients who have insurance or money to pay for the ER go to the ER when their illness gets worse rather than better.

            I was not there, and I did not read the court transcripts, so I can not make a call as to who was right or who was wrong.

            I can just say that sometimes physicians think some of us are going to them because we have nothing better to do. Some think we are making it all up. I have been there, so I can say with experience that not being believed by your doctor is the worse feeling of all.

          • DoubtfulGuest

            Very nicely put, Suzi Q 38. Especially: “I can just say that sometimes physicians think some of us are going to them because we have nothing better to do.”

            Yes…the arrogance sometimes would be quite entertaining if it didn’t cause so much harm.

          • DoubtfulGuest

            And just so they can see how they come across:

            “Leg weakness, you say? Oh, you’re actually just here because you want to hang out with a doctor. You’re in a different socioeconomic stratum than I am, which by default means you have no life, no friends, and no prospects.

            Now, I rarely get to see my own friends, and I’m kind of socially awkward, but I’m not going to tell you that. I *will* just use most of our visit time to chat about myself and my awesomeness to fill the void a bit. So, do you feel reassured now that there’s not much going on with you, health-wise?”

          • rbthe4th2

            “I don’t get how people could not understand the anger and vengeance.
            The family wants some answers, not a CEO who tries to make excuses and cover up the actions of his/her staff, or a doctor who lies.
            Each family member is treasured and missed. To think that no one need answer to what happened is heartless hubris. ”
            This is why so many no longer trust doctors. Risk managers stonewalling, lawyers all on people, hurting them on top of that. This is what happens when doctors don’t take responsibility for their actions, because what happens is their own skin or the healthcare corp. or hospital decides its more important than the patient.
            That’s exactly what is telegraphed. In a nutshell.

  • EmilyAnon

    The doctor referred to in the article is now practicing in California. According to the Cal. Medical board website, his record is clean. Public record actions – “none found”. Maybe the incident was made known, but had no mandate for public disclosure.

  • buzzkillerjsmith

    No doubt.

  • buzzkillerjsmith

    The guys in the ER at our hospital look pretty beat a lot of the time.

  • buzzkillerjsmith

    California! No lawsuits out there.

  • EmilyAnon

    Noted. Thanks.

  • Lisa

    As I understand it no states currently have safe harbor laws, although I think there is a house bill that proposes a safe harbor system to reduce malpractice suits against Medicare and Medcaid providers.

    I can’t fund the study I was thinking of but I found this article in Forbes:

    http://www.forbes.com/sites/peterubel/2014/03/17/malpractice-reform-could-benefit-patients-more-than-doctors/

  • rbthe4th2

    and not all do. I’ve seen cases where they never did. Be easier to have a national database, open the NPDB to the public, for starters. We can see how the politicians vote, why shouldn’t we see what our docs have listed? Why should it be protected from the public, its protecting doctors NOT the public.

    • DoubtfulGuest

      Randy, if all my work mistakes became public, I’d never be able to leave the house. A doc who makes one serious, unintentional error under high pressure, is not a bad or dangerous doc. For some high-risk specialties, a few mistakes spread out over a long career should be no reflection on them. If the patient receives reasonable compensation, I don’t know why that’s not good enough?

      • rbthe4th2

        I think the problem has come because I’ve seen way too many problems that just kept on being problems because nothing was done about them. Read about Dr. Ring, the surgeon. He made a boo boo by operating on the wrong part. He apologized, and talked to the patient. She let him operate on the right part. I’m not alone in saying I want that doc.
        Let me be the judge. I’ve seen a group that I know every one of them has made boo boos. The problem is how they REACT to that.
        Plus again, you stop the problems where the powers that be let things go. As in Charles Cullen, the nurse.
        Look that one up. He apparently was protected by risk managers, hospitals, etc.
        There is a trust issue problem with doctors and patients. I submit that Dr. Ring made a mistake and now people see his true colors and will go to him because of his maturity and honesty and respect, how he dealt with the situation. Its seeing how those over Charles Cullen dealt with the situations that make decent docs – and there are LOT of them on kevinmd.com – who don’t deserve the fallout from the mistrust of the profession, really need the light shone on them.
        I have docs now who made mistakes. I still think they’re fine. Its how they maturely handle it or not that is the deal breaker.

      • rbthe4th2

        What about Dr. Ring? He got noticed publically because he made a mistake and how he dealt with it was why people said they’d want to go to him. I have another doctor who gave us handouts (the new patients) and said here is my worst case, where I was sued. I was one of the few who looked it up and sure enough, he wasn’t at fault. He still got sued but the fact that he was honest about his worst case and how he dealt with tough cases spoke VOLUMES about him and how he practices.
        I’d say its the response of doctors to their mistakes that make the difference. I think we all know they’re not perfect, but the only time I’ve had to report (a nurse), it was her attitude that sealed the deal. I’d say that probably held true for the medical board, since that was the only time I complained. I told them had she not gone off and chewed me out, rather than doing as I suggested and giving me the rest of the medication (she had given me 1/2 the doctor ordered dose), I wouldn’t have complained.
        She is no longer working in this state.

        Randy

        • DoubtfulGuest

          Oh, I understand what you’re saying. I just think many people would take the information that a doctor made a single mistake and run with it. I’m not sure the NPDB is the best way to address the problem, unless it was reserved for those with a series of negligence incidents. How many in a series? I dunno, I just think that one honest mistake should not be reportable for sure.

          The docs DO need to let us know how exactly they want the public to become aware that they can’t be perfect. I’m not sure how we can break through that illusion without more individual doctors fessing up to errors. I just think it needs to be voluntary unless there’s a string of cases that suggest the doctor is impaired somehow OR just doesn’t care enough to learn from the first mistake. I’m with you on having *increased* respect for doctors who honestly admit when they’re wrong. More likely to want to see them, more likely to recommend them to other patients, more likely to trust their judgment.

  • Suzi Q 38

    Agreed.
    There are enough assumptions for both sides here. In your post, you did not mention the patient, only Dr. Liang.
    It is an interesting question, though.
    He was practicing in NY? Moves all the way to California, which happens to have tort law for malpractice? Interesting.
    Since we are all making assumptions here, mine was not so far off as a possibility.

  • Mengles

    Exactly what I was thinking. I can’t blame them as much now for reflexively admitting.

  • rbthe4th2

    Not all do or they find ways to get around it (such as only giving a one day shorter suspension of the license):
    http://www.citizen.org/Page.aspx?pid=585

    and

    http://www.citizen.org/Page.aspx?pid=3561

    Randy

  • DoubtfulGuest

    Huh, I thought it’s just for settlements. Interesting…

    And, yes, I realize that settlement does not mean the doc did anything wrong. Please see “extortion” above.

  • DoubtfulGuest

    Also, Mengles, your reply to me seems to be stuck in moderation. I can’t figure out their system. Anyhow, at the risk of misinterpreting the tone of your comment due to tiredness, do you have any suggestions? I’m glad to help in any way I can. Which is what I was trying to say to Dr. G. but something has gotten lost in translation on one or both sides. I’m glad to write Congress or do anything else reasonable. It’s just such a big mess that I haven’t known what would help.

  • DoubtfulGuest

    At the risk of misinterpreting the tone of your reply due to tiredness, do you have any suggestions? I’m glad to help in any way I can. Which is what I was trying to say to Dr. G. but something has gotten lost in translation on one or both sides. I’m glad to write Congress or do anything else reasonable. It’s just such a big mess that I haven’t known what would help.

  • querywoman

    Defensive medicine is such a crock of hoeey. I bled for 15 days a month for two years in my early 30s. No doctor was afraid I’d sue for malpractice over that, nor worried about my fertily.
    Childless, many years later, gee, I’ld love to sue over my infertility. I can’t do it. It can’t be proven, and the two year statute of limitations expired years ago.
    No doctor was ever afraid, since I was 18 years old, that I’d sue over my skin disease, since “picking at it” is the only thing that causes skin lesions.
    I used to have serious agonizing neck spasms. I paid for immediate treatment of it, when I could afford it, and it was just dismissed as “stress.” It was from overwork on computers. Nobody asked me if I did something that might contribute. Occupational misuse of people causes a lot of health problems.
    Malpractice tends to revolve around surgery. Yes, OB’s get sued, usually for not performing a C-section, when more of them should be sued for unnecessary C-sections.
    Doctors only practice “defensive medicine” in certain areas they like to do, like mammograms.

    • fatherhash

      crock of hoeey?…..so this case mentioned in the article is just a hoax?

      • querywoman

        My calling defensive medicine a “crock of hooey” has little to do with this case. This case is not a hoax.

        This kind of missed diagnosis can happen to any doctor. This case was successfully litigated. It happens.
        I call most defensive medicine hooey because it is. it’s a generalization, just like when doctors make generalizations that early regular mammograms will save women’s lives.
        No doctor saves a life. They only program.
        It’s debatable that mammograms detect truly vicious cancers early enough to extend and adequate improve the quality of a woman’s life.
        I’ve been too many doctors who wanted to do preventive screening for “defensive medical” purposes while they neglected illnesses with clear symptoms.

  • http://www.dudeism.com/ Latter-Day Dude

    I am surprised this was even allowed to go to trial. I have worked in provider credentialing and contracting for almost ten years now and have reviewing an innumerable number of these types of cases. There’s two thinks I have learned in doing this.

    1) They very rarely, if ever, go to trial. Most insurance companies prefer settling outside of court, so that’s a bit unusual.

    2) The outcome of a malpractice case has very little to do with the quality of the medical care delivered or the provider delivering it and it has much more to do with the quality, and strategy, of the attorney’s involved.

    • Suzi Q 38

      “…..The outcome of a malpractice case has very little to do with the quality of the medical care delivered or the provider delivering it and it has much more to do with the quality, and strategy, of the attorney’s involved.”

      You could be the patient and totally right, yet still lose a case if the opposing attorney presented the evidence in a different way and the jury believed it.
      It can go both ways.

    • querywoman

      Yes, and there’s always an exception to the norm.

  • DoubtfulGuest

    Ms. Kettles, how often do you get people who just want an apology and/or a compassionate explanation from the doctor?

    With all respect, I experienced a misdiagnosis with deception on the doctor’s part, and I refuse to see an attorney about it. I have indication to believe the whole reason my doctor messed up to begin with is because he was so afraid of being sued, he was terrified to have open communication with me.

    I do think mediation is a better alternative *for people who need compensation*, and kudos to you if you’re acting in support of that system evolution. But I don’t understand why your profession has such a profound influence on the doctor-patient relationship, yet there’s no accountability. When I went to get a diagnosis for my progressive neurological disease, I didn’t sign up for any of that. Not knowingly, anyway.

    When I searched online for information on how to resolve a problem with a doctor, most all I could find were manipulative advertisements by plaintiff’s attorneys that honed right in on patients’ anger and fears. And there are many offers to “Chat now – live!” with a friendly-looking woman named Angie or something like that. It’s ridiculous. I just want to talk with my doctor, and I deeply resent that our system has no option to exclude you all where you’re not needed.

  • Suzi Q 38

    Thank you!
    My sentiments and observation exactly.
    It is not easy to sue, but the option should be there when mistakes are made and no one wants to own up to it or make sure that the patient is cared for properly.

    • Kathleen Kettles

      Also, there are other options that lawyers use to try and settle smaller cases where there is good liability. We find out who the carrier is and contact them and negotiate with them directly. We speak with risk management and try to settle the case. We have longstanding relationships with defense attorneys who you are able to settle a case before depositions are even held. I get out of a case if I determine at some future time that there is no merit. I have to make a motion to court to be relieved as counsel. Increasingly, there is mediation. But, legal systems change slowly and one of the reasons for that is due the fact that the court system is state funded and when have you known a bureaucracy to change quickly.

      There is so much misinformation bandied about on these blog comments.

  • Suzi Q 38

    I would prefer a doctor have to do that for every future job (if that is true), rather than be the patient who died.

  • DoubtfulGuest

    Please see my other response. I tried this many times. Where is the option for patients with no loophole for the doctors and their malpractice defense to worry about? I need to know which is the right form, please. I’ll print it out, sign, and send it first thing in the morning. Thank you for your time.

    • Kathleen Kettles

      I don’t know what state you live in, but it’s usually called a waive or a general release. HOWEVER, you cannot force someone to talk to you if they don’t want to discuss it. The idea that a waiver or general release is not binding is simply not true.

      • DoubtfulGuest

        There is nothing prior to treatment. This is all past, thanks. I apologize if I had indeed misunderstood, because of the difference between pre- and post- treatment. Okay, I’ll try it. I’m trying not to expose anyone so I can look up the information and form for my state, thank you.

        About the lawyer issue, I don’t have much money. I’d be willing to consider this for a reasonable amount just to get closure, but you’ll understand if I’m not comfortable with this suggestion. What about my making the offer with the signed form and asking if they need me to take other steps? I figured out part of my own correct diagnosis which was later confirmed at a teaching hospital, so the doctor knows I’m not stupid. Also, a lot of time has passed.

        Finally, I said this elsewhere, but there were changes to my medical record. Which I understand can extend the statute of limitations and make everyone really jumpy because it’s hard to defend in those situations. But I’m serious that I just want a conversation with and apology from the doctor. I don’t mean to insult you this has just been very hard for me. And I really appreciate the information. Thanks.

        • Kathleen Kettles

          First, you took information from a libertarian blog which doesn’t care if the facts are correct and only if they fit their political world view. Second, as in medicine the idea that it is just a form may be simplistic. There are variables to be considered. I suggest you call and get some pro bone help from your local bar association. I keeps stressing that even if there is no issue about a lawsuit, it isn’t likely the doctor is going to talk to you. They just don’t do it unless they are part of an institution that has an “apology” policy. His insurance carrier may also instruct him not to respond as he is not compelled to. Finally, what is it that you want to know. I find it interesting that you make statements that the records were altered and the doctor wrongly diagnosed you, but that still doesn’t mean there was malpractice and if I were talking to you as a potential client I would explain that. You are making the assumption that he is not talking to you because he is afraid of being sued, but from what you tell me the statute of limitations may have expired. I don’t know what jurisdiction you are in, but I have never heard that altering records extends the statute??? You need to get some competent information.

          • DoubtfulGuest

            Thanks. I’m not a libertarian and have seen the information in multiple sources. I just liked the article. I thought you said it was an easy straightforward form that I should have known to do before? Why now is it not straightforward?

            You assured me that there’s a lawyer-free option, so the bar association shouldn’t be necessary…right? How could you know whether or not the doctor would talk to me *if presented with a truly legally binding agreement*? Why would his insurance carrier instruct him not to respond if I can guarantee him immunity from a lawsuit?

            The conversation I want to have with the doctor will be private, thanks. It’s nothing a lawyer needs to know. I don’t even know if it qualifies as malpractice or not and ultimately it doesn’t matter. It’s a long story as to why I have both old and new copies of the records and noticed the alteration but it’s not for legal reasons. It was just a weird situation. I HOPE the statute of limitations has expired so then maybe the doctor will not be scared. Thanks for your time.

          • Kathleen Kettles

            You have a way of twisting words. I am writing this to tell you that you have options to try. Yes, you can do it yourself, but if I were you I would tell the doctor you are willing to sign any document his lawyer or carrier could provide in order to protect the doctor. If you have already offered that, and the doctor doesn’t respond, my guess is he doesn’t want to talk to you and he doesn’t have to. .

          • DoubtfulGuest

            I found the right form, Ms. Kettles. Thank you so much for your time. I’ll take care of this myself, straightaway tomorrow. Just have to give it a try and hope for the best. I really liked this doctor before, and he did try to help me. I’m confident that this is the best option. Good night.

      • DoubtfulGuest

        Shoot, now my reply might be stuck in moderation. My other question is, if the agreement would truly be legally binding, why would it scare the doctor for me not to have representation? He’d be scared of…what? This is someone I trusted with my life, wore the stupid gown and told him personal stuff, let him examine me. Why need a lawyer now? thanks

  • ethanspapa

    What great writer of yesteryear, in one of his plays, said:
    “kill all the lawyers”
    I doubt the family will get close to that. After several years and renegotiating it will be at least cut in half or the winning attorney will run scared and settle for much less.
    Even if they come out on top the family will give 40% to the law firm and then Uncle Sam will take about 40 % when all said and done.
    Total about 1.2 million and change

    • Lisa

      In general, proceeds from personal injury claims are not taxable; however any punitive damages and interest on the judgement would be taxable.

  • JustADoc

    I am sorry about what happened in your husband’s case.

    However, go type almost anything into WebMD and I can just about guarantee you that one of 3 diagnoses will come up in the possibility list: heart attack, stroke, cancer.

    • Lisa

      Just because those diagnoses pop up on WebMD do not mean they should be discounted. Pippy Longstocking gave her experience – where a doctor refused to reconsider the initial diagnosis, which did not improve when her advice was followed – and you proceed to “say, yes but . . . ”

      I totally understand why Pippy Longstocking would feel the news paper story isn’t giving complete information. I feel the same way. I also understand why she would use the internet for reasearch – I do the same to confirm for myself that my doctor’s diagnosis makes sense and is based on appropriate testing and the treatment they recommend is appropriate.

  • Patty1d

    Not that long…not as long as you would think. And this diagnosis is not a ” zebra” .

  • rbthe4th2

    There are more than a few examples of docs who don’t. That’s the thing. Plus, what about hospitals who only stop them for 30 days or just 1 day less than anything that has to be reported?
    Don’t tell me it doesn’t go on, because we both know it does.
    Its to save the doctor and/or hospital, not the patient.

  • querywoman

    How about when bad medical care causes sleep deprivation?

  • querywoman

    I’ll have too look at TX Medical Board again. I think they only report if a doctor has been sued more than three times in five years. Sued, not lost the cases.

  • querywoman

    The only problem I have with your post is your calling yourself a, “nobody.”

  • guest

    The people who will benefit from increased caps are attorneys and insurance carriers. When there are already no limits on total awards what good are increasing caps on pain and suffering?

  • querywoman

    Just read the current Wikipedia entry on, “medical malpractice.” It gives stats on how often doctors are sued and that most cases that make it to court are lost.
    It also states malpractice premiums have been declining slightly in recent years.

  • http://www.practitionersolutions.com Niamh van Meines

    It’s inappropriate for a jury to be making a judgment on an educated professional’s clinical decision making. This is why there needs to be a cap on who can sue for a limited amount of monetary compensation & a process where educated peers decide whether the physician’s treatment plan was appropriate. I don’t know why we have standards of care and best practices if a jury like this can just disregard them and award families money as compensation for a death that may or may not have happened anyway. The money does not in any way compensate for the loss……so why use a process like this?

  • DoubtfulGuest

    FormerlyKnownAsB, did you try to reply to me elsewhere on this thread? My profile shows you did but the comment got deleted. If you wanted to try again?, I’m interested in what you have to say. thx