My first journal entry attempt...

[chicagomd]

So here goes my first attempt at internet blogging...be as gentle as your conscious allows you to be.


As a DU lurker I have remained silent (at least in this forum) on the multitude of issues that have brought us to the current crisis we face in the United States concerning health care. My chosen user name identifies me directly as a physician, and one of "allopathy" (a label I do not necessarily agree with), which in turn may make it hard for some people to read this entry, and hopeful the others that will follow it, objectively. While these writings will be, and should be taken as, editorials, and therefore objectivity may not of the utmost concern, I believe it is important when engaging in any argument or conversation that you know where the other party is coming from, as all of our past experiences flavor, influence, and indeed sometimes cloud the judgments we make on a daily basis.

What has prompted me to write is a recent article published in the New England Journal of Medicine entitled "Claims, Errors, and Compensation Payments in Medical Malpractice Litigation." by Studdert, DM et.al (2006;354:2024-2033). The issue of medical malpractice is one that is often tossed around while discussing the current health care crisis and the process of tort reform. The authors end conclusion is essentially that frivolous malpractice suits only account for 13%-16% of administrative costs of malpractice legal action, and they seem to imply that as physicians, my colleagues and I are misdirected in our anger against frivolous malpractice claims. This implication is endemic in the converstions I have with my friends who also happen to be lawyers.

Let me be the first to admit that physicians, at least on a political level, do seem to overstate the impact of frivolous lawsuits on our current liability crisis, specifically those with large payouts. The malpractice insurance industry and MSM also do their fair share to propagate this feeling. Physicians are constantly assaulted with reports of high payout lawsuits in insurance negations, professional journals, society meetings, and the evening news.

The author's data gets to the real problem of medical malpractice, at least from a physician's perspective, and it presents an opportunity for those of you not in the medical professions to get an incite into the frustration we feel with malpractice cases. I generally accept the definition of medical malpractice as "an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient." (From http://en.wikipedia.org/wiki/Medical_malpractice). First, just a few numbers from the study to bring me to my point:

-Of the cases reviewed, 37% of the cases reviewed did not involve error, but of these 28% were paid an average of $313,205.
-This prompted researches to conclude the current malpractice systems was "right" 73% of the time.

For physicians lawsuits are not longer a possibility, but a reality. They are things we think about every day. We sometimes make medical decisions, although many will not admit it, not because we think it is the right thing to do, but because we know it may protect us from a possible future lawsuit. As an example, in the field of obstrectics the forceps delivery is becoming a lost art due to fear of litigation.

The author of this study was later quoted as saying about the 73% statistic "That's far from a perfect record, but it's not bad..." Not bad? Is this a joke? How many of you would re-hire a plumber or electrician that got it right 73% of the time? How about a doctor that got it right 73% of the time? How about those of you who own firearms? Would you purchase a weapon that was reliable 73% of time time or buy ammunition that would fire 3 out of 4 times? Why is it that the authors, and the legal system of a whole, are accepting of this number? I expect the answer is money, as despite the fact that 1/4 of malpractice cases that went to trial were found to be free of medical error, there was still a payout both to the plaintiff and the lawyer representing them.

Go back to the first bullet point and look at that number: "$313,205". That is a relatively small amount in the context of medical malpractice, but this number is why I feel physicians should be angry about the medical malpractice system in this country. There is no incentive for people not to sue their doctors, and more importantly, there is no reason for an attorney not to take a malpractice case to trial. Even if they are wrong, and the physician was completely in the right, they still have a chance of a 6 figure payout. This is the source of my frustration: Despite doing everything right, making no errors in patient management, we still get sued and loose. Medicine does not have all the answers, and is as much an incomplete art as it is an incomplete science. Yet for some reason, when something goes wrong and there is a bad outcome, it is the fault of the physician.

In physician circles being the target of a lawsuit is a joke. It happens to everyone, and it has come to mean nothing. Frivolous lawsuits have turned what used to be a legitimate method of physician regulation into ego bruising, personally painful experience that ends up being professionally just an annoyance. Doctors that have judegments against them in malpractice claims are not bad doctors, and bad doctors are not stopped by those judgements.

The health care crisis in this country is do to many factors caused by many different factions, and medcial malpractice is just one of those factors. Until everyone, physicians included, start to deal with the depth of these issues on all sides, and stop pointing fingers, this crisis will contine.

[trotsky]

1. Thank you for your perspective.

We need more people like you and Heddi who are in medicine speaking out and letting us know what it's like on the inside. Far too many folks (even here on DU) just want to lump everyone together and badmouth the entire healthcare system, and that's just not fair. A 3 in 4 chance of getting a nice sum of money, even if your doctor is innocent - well who wouldn't sue, and worse, use that as "evidence" the system is bad?

I remember reading how the big malpractice insurance premium hikes were actually needed because of the insurance companies' bad investments, and their need to cover for those. Do you have any knowledge of that?

[chicagomd]

4. Thanks for the reply

I do recall reading about premium hikes being related to poor investments, and I recall feeling the same way about that information as I do about insurance companies blaming their rate increases only on large med/mal payouts: I think it was an over simplification that shifted blame away from the party that suggested it.

That being said, I have no references for you, but if I come across something I will post it.

EDIT: Thanks for the rec, DemInDistress!

[Celebration]

13. the math

Sorry, I just have a real *thing* about the misuse of statistics. Please see my reply below on exactly *why* lawyers do screen cases, first of all.

As for the math alone, nowhere does this study say that there is a 3 in 4 chance of getting a nice sum of money, even if the doctor is innocent. You just cannot derive that conclusion from this set of data. That is apart from the fact that we are not really given where this set of data comes from--court cases tried, settled cases, etc. Nor does it seem to take into account "close" cases. Yes there are those cases in which reasonable people with knowledge can disagree. The fact that they seem to have had none in this category raises my eyebrows.

But, apart from that, since bogus cases are already screened by lawyers, either for merit or for no real payoff (someone terminally ill to begin with for which the damages would be quite low) there is just no way that anyone can reach the conclusion that there is a "3 in 4 chance of getting a nice sum of money, even if your doctor is innocent." I can't let this idea rest.

What this study says is that of the cases studied, approximately three in four had merit, and one in four did not, and that 75% of them had a payoff. It says NOTHING that would support the conclustion that three out of four *innocent* cases would result in a payoff. The set of potential bogus lawsuits is just much, much larger than those that made it into this study. Unless they studied all the cases that are actually turned down by attorneys (and they are many) there is no way to get data on this.

I would also rather know the median than the average. One large sum of money in one case that possibly could be considered a close one, could skew the whole figure. (That is just an aside. It is my fourth paragraph that addresses your mistaken use of statistics.)

[trotsky]

14. I think you're wrong too.

I misread, and relied on a rough calculation in my head, to understand that the researchers thought that 28/37 or roughly three in four of the cases without merit still received a payout, which they labeled as being "correct."

Now for your error:

What this study says is that of the cases studied, approximately three in four had merit, and one in four did not, and that 75% of them had a payoff.

You're wrong about three in four having merit. The stat says "37% of the cases reviewed did not involve error". I.e., 100%-37% or 63% DID involve error. That's significantly less than 3 in 4.

That aside, even after cases have been screened by lawyers, a system that's "right" just 73% of the time doesn't seem to be good enough. How much does the 27% cost us? How many decent doctors does it keep out of the system? Just some things to ponder.

I am not trying to excuse bad doctors from their errors, but it helps to get perspective on these things.

What's really too bad is that "alternative" "medicine" practitioners can't be sued, so we could get stats on just how effective their treatments are and how many victims receive compensation for *their* mistakes.

[Celebration]

15. haha you are right

LOL Sorry.

It certainly isn't a perfect system, I agree on that.

Are you kidding though? Who says alternative practitioners can't be sued? Of course they can be sued.

Back to the other point, though. I find it hard to believe that there weren't any cases which were "murky." Even if everyone agrees on a precise definitiion of malpractice, people who are truly experts can disagree on what constitutes malpractice and what doesn't. And, before they even hit the stand, experts have to pass the "Daubert" test.

http://en.wikipedia.org/wiki/Daubert_Standard

The Daubert Standard is a legal precedent set in 1993 by the Supreme Court of the United States regarding the admissibility of expert witnesses' testimony during legal proceedings. The citation is Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

A Daubert motion is a motion, raised before or during trial, to exclude the presentation of unqualified evidence to the jury. This is a special case of motion in limine, usually used to exclude the testimony of an expert witness who has no such expertise or used questionable methods to obtain the information.

[trotsky]

16. Sued for what?

Alties aren't promising anything - you'll notice on their websites that no verifiable claims are made. They aren't licensed by anyone, so you can't take it up with a professional organization. And there's a reason why so many of those quack clinics are in Mexico, where the difference in laws means they're essentially immune from any kind of legal action.

With regards to the other point, I'm sure there were "murky" cases. There had to be. I'm guessing the researchers had some kind of exact definition by which "error" was defined, and went from there. Definitely possible to introduce a little selection bias into that, however.

[Celebration]

19. Tort or Fraud

Either one can be used against anyone. Of course there has to be actual damage before this makes economic sense to sue.

[trotsky]

20. Alties are well-protected.

No claims or promises are made, no breach of contract or tort or fraud can be brought up. And that says nothing about the laws in countries like Mexico where you've got virtually no rights at all.

These people live very, very well by usually staying just outside the reach of the law.

[Celebration]

22. if there is no damage

Then there is nothing to sue about. 'Nuff said. Maybe the "Mexico" problem will be solved with the One World Government people seem to be pushing. Face it--if you even visit a foreign country you are subject to their laws. Nothing new here. So what do you want to do about it? Keep people from going to Mexico when they want?

[trotsky]

25. Oh good grief.

You've just left the realm of rationality. Enjoy your trip. "One World Government"? :eyes:

[Celebration]

26. just a euphamism

LOL, the NAFTA folks, if that suits you better. Pretty soon they will get around to "normalization" of medical treatments. Whatever happens, expect it to cost you and me a lot more, and leave us with fewer choices.

[trotsky]

27. Doesn't matter.

Those clinics make a point of setting up in places like Mexico so that they CAN'T be taken to court for their failures. Hucksters who stick their toe too far into the US market HAVE been sued, successfully. Don't try and shift this to speculation, address the topic at hand.

[Celebration]

28. I could get upset about this!!

Please find me some person who has been forced at gunpoint to cross the border and go to one of these clinics and been harmed. Actually knifepoint would be okay, or any type of kidnapping. Good grief, everyone who goes to one of these clinics KNOWS THAT THEY ARE NOT SUBJECT TO USA LAWS!! (unless they are kidnapped).

None of this has anything to do with the original post, of course.

[trotsky]

29. Show me someone who was forced at gunpoint to go to a doctor.

I just have to wonder what kind of point you're hoping to make?

People go to those clinics because the frauds running them promise things they know they can't deliver. But they're protected by lax Mexican laws that prevent patients who were wronged from collecting damages they would be owed here in the United States.

What harm has been done?
http://www.quackwatch.org/01QuackeryRelatedTopics/harmquack.html

Now I can readily admit that there are some horrible doctors who make horrible mistakes in the "allopathic" system. So far, you've given me no indication that you have a similarly open mind about the alties. Are there only good guys in your system, and bad guys everywhere else? That's some disturbingly black-and-white thinking there.

And this actually has quite a bit to do with the original post. Malpractice is one topic by which haters of the science-based medical system bash it - but if their own preferred voodoo can't be measured by that same yardstick, is that fair?

[Celebration]

30. Lawsuits

I'm kind of a believer in legal rememdies for malpractice, while recognizing that there are also terrible abuses. People go to doctors in the USA knowing that USA laws apply. People go to alternative clinics in Mexico knowing that Mexican laws apply. I happen to like USA laws. If it were my druthers, tort and fraud laws in Mexico would be like those in the USA. However, they are a sovereign nation. Everyone KNOWS they are a sovereign nation.

ALLOPATHIC DOCTORS IN MEXICO ARE SUBJECT TO MEXICAN LAWS.

ALTERNATIVE DOCTORS IN MEXICO ARE SUBJECT TO MEXICAN LAWS.

ALLOPATHIC DOCTORS IN THE USA ARE SUBJECT TO OUR LAWS.

ALTERNATIVE DOCTORS IN THE USA ARE SUBJECT TO OUR LAWS.

There certainly is a difference in USA vs. Mexico. There is NO difference in alternative vs. allopathic.

[trotsky]

31. You're not getting it.

People go to the clinics in Mexico because Mexican laws allow those quacks to make claims that they don't have to support like they do here in the U.S. And they won't be held as accountable there as they would be here. Do you understand yet?

And did you care to answer my question - do you believe their are ANY frauds in the altie biz?

[Celebration]

32. I do *get* it

I just really have zero control over Mexican clinics. People (a *few* people) go to them for their own reasons, knowing they can't be sued under American law. This is really not even an issue for this topic, which is about malpractice suits in this country.

Good grief there are frauds everywhere in society, including what you label as the "altie biz." I think frauds should be prosecuted under fraud statutes.

Again, this has nothing to do with the topic. You seem a little obsessed.

[trotsky]

33. As I pointed out, this has everything to do with the topic.

Many people point to malpractice suits and payouts and try to use that to justify their distrust of our science-based medical system, and instead turn to "alternative" "medicine" because you don't hear of similar problems with it.

Well, the reason you don't is because A) they won't make specific claims or promises, or they bury disclaimers under volumes of testimonials, and/or B) they locate themselves in countries like Mexico where bringing a fraud charge against them is darn near impossible.

I'm just relieved to hear you admit alties can be frauds too. Didn't seem like something you wanted to admit.

You bet I'm obsessed with people getting fooled by fakes. I care about others and their well-being, which is kind of what a liberal is supposed to do, dontcha think?

[Celebration]

34. it's convoluted reasoning

And, you are not giving people enough credit!! Give people information, and let them make their OWN choices, not YOUR choices. It's part of the Enlightenment ideals. Before the western Enlightenment, we had feudalistic lords making most of the choices FOR the people. After the Enlightenment, we have (hopefully) progressed to a point where people are educated, and make their OWN choices. That is, in fact, the ideals upon which our country was founded. This is not a free for all, this is not anarchy. This is all based on the rule of law, and the rule of law includes fraud being strictly illegal.

People are not using malpractice suits and payouts to justify distrust in "science-based medical systems", they are seeing "science-based medical systems" being trumped by money, profit, and influence, which is kind of what a liberal is supposed to be concerned about, dontcha think?

[trotsky]

35. You're missing out on half that equation.

Giving people information is good. But it has to be accurate information. You try and make this a simplistic "let people make choices about their own healthcare" which is a nice Republicanesque phrasing of a difficult issue.

they are seeing "science-based medical systems" being trumped by money, profit, and influence

Are you saying altie "medicine" isn't?

[Celebration]

36. Money profit and influence

I just don't see a lot of money, profit and influence at work in TCM protocols, acupuncture, massage therapy, homeopathy, chiropractors, cherry growers, etc., particularly when compared to medical schools (supported by grants from pharmaceutical companies), FDA (people going in and out of private industry and beholden to it), medical journals (supported by ads of pharmaceutical companies), HMOs (driving services down and probably a major factor in malpractice suits). The doctors themselves are not the problem, although their education is overly influenced by professors supported by grant money. And if you let the "money, profit and influence" brokers to determine what you consider to be "accurate information", then I would rather not have the "benefit" of the resultant censorship, thank you. Again, the connection to the OP is very convoluted.

[trotsky]

37. I'm sorry you don't see the profit motive is present everywhere.

Best to just let this go, I guess.

[Celebration]

38. Profit Motive YES

But power and influence?????? Chiropractors???? Acupuncturists????? Cherry growers????? Give me a break.

[trotsky]

39. Power and influence within their own circles YES.

You're fooling yourself if you think your pet quacks are totally immune to the same influences you rag on in others.

[chicagomd]

40. Off topic, but...

There is a fair amount of investigation going into "alternative" therapies, http://nccam.nih.gov/ has a search-able list of current trials and research.

I do take exception to some of your comments:

"The doctors themselves are not the problem, although their education is overly influenced by professors supported by grant money."
-Almost all scientific researchers are supported by grant money, otherwise there would be no research. As most medical schools are affiliated with universities, most medical school professors are PhDs or MDs who also do a far amount of both laboratory (or bench) and clinical research. Irrespective of the money they receive, professors are expected to follow a curriculum which is set by the university and must conform to national standards. The brand names of drugs are almost never used, as all of the examinations we have to pass use the actual drug name. (i.e., methylphenidate instead of Ritalin.) If universities do not follow a standard curriculum, they are in danger of loosing accreditation and students become ineligible to sit for the national licensing exam (USMLE), which all allopathic medical students must pass a before being able to get a medical license in this country. Just like with undergraduate institutions there is obviously some variability in the quality (or the perceived quality) between medical schools, but for the most part graduates are on equal footing. While the pharmaceutical industry does exert pressure on physicians, the concept that our base education is twisted by these companies is false.

"medical journals (supported by ads of pharmaceutical companies)"
-All publications, medical or otherwise, are supported by advertisements and this fact alone should not make anyone question the validity of the studies that are published in medical journals. (This is different than if a study is flawed secondary to undue influence by the grant provider and still gets published because the editorial board of the journal was not on the ball.) Some publications have a reputation of being more objective than others, but this is mostly due to the articles they publish, not the ads they run. On a personal note, some journals that appear in my mail box have more ads than my wife's Vogue, and there is usually nothing of substance in them. They go straight into the garbage.

[Celebration]

41. take note of your points

I am sure the influence of the pharmaceutical companies on medical schools isn't high on your list of concerns. Certainly it isn't overt--that just wouldn't fly, for sure. I agree that almost all scientific researchers are supported by grant money. That is exactly why we have a lot more engineers working on ways to get oil out of the ground than we do on alternative energy sources. I will say that the example that you give--that you have to use the actual drug name rather than the brand name--is in no way convincing to me. It never would have occurred to me that an actual drug name would be used in the courses.

I agree that all publications are supported by advertising, as well. I am sure also that some medical journals are better than others. I also applaud the recent trend of requiring ties to pharmaceutical companies be disclosed (though there isn't really any teeth in this).

You might want to look at another approach to this issue, from the inside--

http://medicine.plosjournals.org/perlserv?request=get-document&doi=10.1371/journal.pmed.0020138

“Journals have devolved into information laundering operations for the pharmaceutical industry”, wrote Richard Horton, editor of the Lancet, in March 2004 <1>. In the same year, Marcia Angell, former editor of the New England Journal of Medicine, lambasted the industry for becoming “primarily a marketing machine” and co-opting “every institution that might stand in its way” <2>. Medical journals were conspicuously absent from her list of co-opted institutions, but she and Horton are not the only editors who have become increasingly queasy about the power and influence of the industry. Jerry Kassirer, another former editor of the New England Journal of Medicine, argues that the industry has deflected the moral compasses of many physicians <3>, and the editors of PLoS Medicine have declared that they will not become “part of the cycle of dependency…between journals and the pharmaceutical industry” <4>. Something is clearly up...........

big snip of very interesting stuff...................................

This article is based on a talk that Richard Smith gave at the Medical Society of London in October 2004 when receiving the HealthWatch Award for 2004. The speech is reported in the January 2005 HealthWatch newsletter <20>. The article overlaps to a small extent with an article published in the BMJ <21>.

Examples of Methods for Pharmaceutical Companies to Get the Results They Want from Clinical Trials

Conduct a trial of your drug against a treatment known to be inferior.

Trial your drugs against too low a dose of a competitor drug.

Conduct a trial of your drug against too high a dose of a competitor drug (making your drug seem less toxic).

Conduct trials that are too small to show differences from competitor drugs.

Use multiple endpoints in the trial and select for publication those that give favourable results.

Do multicentre trials and select for publication results from centres that are favourable.

Conduct subgroup analyses and select for publication those that are favourable.

Present results that are most likely to impress—for example, reduction in relative rather than absolute risk.

[chicagomd]

43. From the article you linked:

"The most conspicuous example of medical journals' dependence on the pharmaceutical industry is the substantial income from advertising, but this is, I suggest, the least corrupting form of dependence."

In your initial response-"medical journals (supported by ads of pharmaceutical companies)"-you imply advertisement purchase is somehow a corrupting influence on a medical journals objectivity. I take exception to this because the purchase of ads in and of itself is not overtly influencing. As your response, and the article you quote, indicates, there is much more to it. Reprint purchasing, study design manipulation, "interesting" statistical manipulation, etc. are all very real problems when it comes to current scientific research, especially in the pharmaceutical field.

[Celebration]

45. Okay, I'll go with that

"least corrupting"-- that suits me fine, in light of everything else.

[Warpy]

18. Most of those princely sums are reduced on appeal

which is how the system is supposed to work. Suing generally doesn't net a real victim nearly enough to compensate for a lifetime of wildly inflating health care costs.

The payout on frivolous lawsuits is reduced drastically, if a frivolous lawsuit has even made it to a jury. That 16% figure applies mostly to "make it go away" settlements.

The main statistic to remember is that 5% of doctors are responsible for 50% of insurance payouts, and the same docs are often responsible for multiple payouts. That is what needs to be looked at. Some of them are in high risk specialties and are sued through no fault of their own; others may be seriously incompetent and need to be encouraged to find a workplace that doesn't involve patient contact.

Tort reform in medical malpractice suits is and always has been a red herring. The main people they want to protect are the multinational corporations that sell shoddy and/or dangerous goods.

[chicagomd]

21. Warpy,

Thanks for the reply,

I have also heard the 5%/50% statistic, do you happen to have a reference? Neurosurgeons, Ob/Gyn, and trauma surgeons are usually touted as having the highest malpractice premiums because they, in theory, are subjected to the highest jury awards. So if the 5% is made up primarily of those specialties, it makes a fair amount of sense, and really just requires us to look at how those fields are dealt with specifically.

My argument here is that what should make physicians angry, and what should prompt people to look more closely at the malpractice system in general is not the high payouts, but rather the fact that there are a significant number of cases that are brought, tried or settled, that result in an average of a 6 figure payout for the plaintiff, despite there being no evidence of medical error. (I will leave the statistical discussion to others.) My pessimistic view of the matter: Malpractice insurance companies tout the high payouts as the reasons for out of control premiums, yet are virtually silent on the fact they pay plaintiffs off to get the case resolved. (Good business practice, as I talk about below.) The legal establishment spends a lot of it's time pointing out there are actually few large payouts and the vast majority of suits brought never go to trial, and ignoring the fact that suits they file as "medical malpractice" are actually more akin to "poor outcome cases we can get money for at trial". Physicians tend to fall hook, line, and sinker for the insurance company lines, and march lock-step with tort reform because as of right now there are no other valid political options on the table.

I am in agreement that politically medical malpractice is being used to push tort reform, the question is, how do you extract it from that reform without completely removing from the current civil court system?

[Warpy]

23. My figure was from a long time ago

in one of the medical trades. I remembered the story, but not the year or the trade, sorry. Perhaps a Google search could turn something up.

I already addressed the high risk specialists as being due only a cursory examination for malpractice settlements. The remainder need to be looked at a little more closely, especially if they have multiple judgments.

Awards always seem to be reduced on appeal, and they're always appealed. Few people walk away with a fortune. Often it's barely enough to cover a few years' expenses.

And yes, the insurance companies are largely to blame for their "just make it go away" settlements, less than winning a trial but certianly more than the plaintiff may merit. That's what makes the legal lottery worthwhile, not the 7 figure initial jury awards.

[DemInDistress]

2. k&r thanks for that insightful look by a qualified doctor.

into medical mal-practice. Sometimes the doctor is truly wrong like one doc I knew who amputated the wrong foot on a patient TWICE in his career. Plus there are other horror stories still all in all where would we be without the doctor. probably self medicating after self diagnosing.


thanks chicagomd.

[KT2000]

3. The system is divide and conquer

The many factions of the health care industry are set up to be at odds with each other. The aim of the industry is now cost control and profits for private businesses and not the health of the citizens. The system IS about money now.

By chance I once found a text book from Blue Cross that educated their people in the transition of medicine to insurance cost considerations - the use of schedules to determine reimbursements and the selection of docs who would follow the dictates and the disposing of those that would not.

Doctors were characterized as obstacles to their aims because their temperments were likely prone to control and ego. There were discussions for "bringing them around."

To me this text was the instruction manual for breaking the traditional realtionship between doctor and patient to hand control over to the insurance industry. In my opinion it has worked, the trust has been broken. (For further understanding of the placement of patients in this system, please read Malcolm Gladwell's article from the New Yorker - http://www.malcolmgladwell.com/2005/2005_08_29_a_hazard.htmlMalcol

I might be naive but I feel that there is a lot of untapped power in the hands of doctors. If doctors and medical organizations stood firm that the goal of healthcare should be the good health of all citizens, most people would support them wholeheartedly. Isn't this what is at the heart of the matter? Everything else breeds distrust, resentment, humiliation and fear in the patient population. What are their tools to fight back? The malpractice system.

[chicagomd]

5. Not sure I follow you.

If the problem is, as you suggest, related to health insurers, what does the malpractice system have to do with it? When someone makes the decision to sue their doctor, it does not effect the plaintiff's health insurance provider at all, unless the physician can prove they were forced to make a decision because of that provider. (I would love a reference for that "text book from Blue Cross" you describe, if you have it.) The tools to fight the health insurance industry have nothing to do with malpractice, malpractice litigation, or malpractice insurance rates. They have everything to do with consumers, who are individuals and companies who purchase health insurance policies.

The medical malpractice system, as it stands now, is set up for the same purpose as (you point this out in your first paragraph) the health care industry is: Money. Money is the measure our civil system uses to deal out "punishment" and give reward to those who have been wronged. The point of my post is because of this financial incentive, there is a true disconnect between malpractice rewards and if there was truly malpractice done to the patient. (The disconnect is around 28% if you buy the author's argument in the paper I describe in the original post.) This disconnect has created a system that rewards people for entering litigation into the court system if there is a bad outcome, irrespective of if true "malpractice" was committed. Taking a doctor to court does nothing to further the political cause of health care reform. It may have at one time, but that "tool", if it ever worked, is now broken.

And there is quite a bit of "untapped power in the hands of doctors" as you describe, (for the record, I am all for socialized, single payer health insurance) but much of it, especially in the Democratic Party in Illinois which is hugely influenced by variously legal lobbies, goes underutilized by those in power.

[KT2000]

7. The health insurers

made a concerted effort to break all the existing relationships in the health care industry for the purpose of taking control. They have redefined health care as an economic entity. Everyone seems to have fallen into new roles. For example:
1. physicians are becoming obedient to the insurance co schedules - they have to, or they will be dumped
2. patients are less likely to have a real relationship with their physician as insurance coverage changes, preferred provider lists change, some clinics change docs often, etc. and none will see them if they have no insurance (at least where I live)

The relationship that was once built on trust and a common commitment to the patient's health has been replaced with more of a business relationship. Only problem is - the patient is still just as vulnerable as they ever have been and have approached the medical system for help because they have hope. Their response to maltreatment of any kind is deep and personal.

When the system responds carelessly: whether it is because of cost control concerns; maltreatment by a doctor who should have had his/her license suspended long ago; errors committed by over-worked fatigued staff - or whatever, the wronged patient is now more likely to respond as another economic entity because that is what the system has taught them they are. But they are also likely to be harboring anger and resentment at their position in the medical hierarchy.

Malpractice is certainly abused by opportunists - no argument there, but such behavior can be found in any walk of life. I would call these cases fraud though. At one time frauds were looked down upon in society.
Isn't the question - how do we deal with fraud in the area of malpractice suits?

The health care mess is nothing less than a tragedy. The only way to recover it is to go back to the basics and get everyone on the same side instead of fighting against each other as the power brokers have designed it.

I am sorry I don't have a reference for you. I found the book in my thrift store and gave it to my doctor as "fun reading." It was published by Blue Cross though.

Do you get what I am saying?

[chicagomd]

9. With you 100% now.

I was confused on how medical malpractice in the current system was the "tool" as you stated in the last line of your initial response, but that aside I think you hit the nail on the head in dealing with fraud in the current system, although fraud is not all of it. If doctors got sued, and lost, because they were poor physicians there would not be a problem. The issue I have is jury awards in those cases cited in the article where there is no medical error.

The problem of dealing with fraud in the area of malpractice suits is the same problem that lead us to the medical malpractice crisis to begin with: The people in the profession committing the fraud to this point have been responsible for the regulation of their colleagues. One of the reasons for physician's loss of power in this area is the rather poor job we did self-regulating our profession over the past 30 years or so. I see a lot of parallels in the way the legal community handles itself, and its regulation, today.

As far as the doctor/patient relationship is concerned...that is a whole other editorial.

[Ayesha]

6. As a victim of medical malpractice

I bring a different, though not entirely oppositional, perspective to the table. My case occured at birth, so I had nothing to do with my parents' decision to sue, although I certainly feel they were right to do so based on what they told me and my mother's deposition, which my father finally gave me a copy of last year. My case was settled out of court, but after the trial started. Despite there being a doctor and a nurse on the jury, the doctors approached my parents to settle because they felt they would lose. They settled for a 7-figure amount, which was not common in the early 80's, but they'd get a lot more if it happened today. While this sounds like a lot of money, I have significant expenses, including personal care assistants to whom I must pay almost $1700 a month. I worry that with the rising costs of health care, my money won't last through my lifetime. Still, were it not for that money, I'd probably be broke, living on SSI, physically and hygienically in poor health, and struggling to afford to go to community college. Instead I'm finishing my Masters degree and own my own home. So I am a testament to the importance of legitimate medical malpractice suits.

I certainly don't feel that it is right for people to bring frivolous lawsuits against doctors, or anyone for that matter. I have a friend (to use the term very loosely) who is lawsuit happy and sues people over petty little stuff like minor car accidents. She hasn't sued a doctor yet, although the only thing that's happened to her that may actually be worth filing a complaint or suit over DID involve a doctor, who made sexual comments to her and touched her breast for no medical reason. Point being though, she gives people who have been legitimately hurt a bad name.

One question I have regarding the study: how did they determine that 28% of the paid cases did not involve error, and who made that determination? It seems to me that if there was no error, the insurance company shouldn't have settled. That is not the fault of the doctor, or even the party bringing the suit if they genuinely believe negligence occured. The insurance companies shouldn't have the right to stick doctors with higher premiums if they're going to shell out the bucks to every Tom, Dick, and Harry who hires an ambulance chaser.

Perhaps a solution would be to set up special malpractice courts, and require that all cases go through them. This would discourage insurance companies from settling frivolous cases, and discourage patients from bringing a phony case in the hope of a quick settlement. I think the added cost of trials would be offset by a reduction in frivolous suits.

[chicagomd]

10. The study

looked at cases from insurance companies that had gone to trial then examined them in retrospect with an independent medical panel to determine that number of 73%.

"The insurance companies shouldn't have the right to stick doctors with higher premiums if they're going to shell out the bucks to every Tom, Dick, and Harry who hires an ambulance chaser." I agree with you completely on this one. Many physicians forget that what is in there personal and professional best interest may not be in the best interest of their malpractice insurance company, which is why many of my colleagues who have been sued and won, or settled out of court with no admission of wrong-doing, are still extremely bitter about the whole process.

As far as the special malpractice courts are concerned, it is an idea that has been tossed around. I am just starting to look at this issue in depth. So far I really like the Indiana system in concept (an independent medical board reviews each case before it proceeds), but I have no idea what their outcomes have been, or how objective the panel is able to be.

I am sorry to hear about your personal experiences, but it does bring up an interesting issue: Should past cases be able to be re-visited so the plaintiff can get more compensation? If this is allowed, should doctors and their insurance companies be able to have rewards reversed if medical science shows that their case was won under false pretext? Very off topic, and probably a better question for a lawyer rather than in the health forum.

[DemExpat]

8. I sympathize, and have great distaste for the system's use in the US,

but here in The Netherlands physicians are so well-protected that malpractice suits are quite rare. Several people I know consulted a lawyer to see if they could sue - for small sums to get the doctor noted - for malpractice and both received the answer from the medical committee via the lawyer that, yes, mistakes were made, but all within the limits of acceptiblity.....that makes me go........huh???????? Acceptible to whom? Who decides this, and the medical profession gets to decide if a case goes to trial or not?

I think that this is a sad state of affairs as well.

DemEx

[chicagomd]

11. I am not familiar with the system in the Netherlands,

but in any system where there are humans involved there are going to be errors made. In my mind there is a difference between human error and medical malpractice, but that line gets so blurred in our court system that when doctors make a mistake, many assume it is going to cost them a lawsuit.

In a system that did go to the other extreme to protect physicians from litigation, there would have to be good checks in place to discipline and remove dangerous physicians from practice. The issue is a complicated one, especially since there is a wide range of thought about what are acceptable treatment courses and what are not, and how do you determine malpractice in those cases. For example, if a pediatrician treats an ear infection differently from, say, the current American Academy of Pediatrics guidelines, does that constitute malpractice? What about if they can produce a few studies that back up their treatment decisions? Does it make a difference if the treatment works? Does it matter that it happens to not work the one time the doctor gets taken to court?

Under the current system bad medicine is only punished if there is a bad result, otherwise "no harm, no foul". As someone who strives to practice the best medicine possible, even if it is not the easiest, it burns me to no end to realize I could end up in a court room even if I do everything right, and it for sure causes more stree in my life than it should.

[Celebration]

12. incentives

I understand the frustration of doctors. My dad was an MD and I heard all these arguments and sympathized. I do take issue with one of your statements--that lawyers have no incentive to not take bogus cases. There is a considerable committment of time AND money given to a lawsuit. Generally the best lawyers only take cases that they feel have a good chance of winning. There are office expenses, as well as opportunity cost from not working on other things, plus there are expenses that the plaintiff generally cannot afford having to do with pretrial discovery, paying experts, taking depositions, and paying court reporters. The lawyer pays those things up front, and they are expensive. No lawyer wants to be paid on commission and lose a case. What I am saying is that lawyers do screen cases. Of course sometimes they make misjudgments.

Also, it has gotten more difficult on plaintiff attorneys since judges are now required to pass judgment on the experts in a case, and their testimony. The days of hiring bogus experts who will say whatever their client wants is over, due to new "Daubert" rules. This I consider a good thing.

That is not to say that there aren't some sleezy attorneys that take ridiculous cases still. And particularly in certain jurisdictions they may even be successful. The question is what to do to minimize bogus cases, but still retain the basic free market system of our economy? It seems to me that the remedy should not be to interfere with the way attorneys are paid. That is just something the government really should not dictate (okay I have a libertarian streak). Also, it would very much hinder very poor people from bringing cases that have merit, because they could not afford an attorney on the front end. So I would reject that remedy for both those reasons.

Now one alternative might be to have the losing side pay reasonable attorney's fees to the winning side. This could work both ways. If the plaintiff loses, the plaintiff would owe the insurance companies reasonable attorney's fees. If the defendant loses, the insurance companies would have to pay attorney's fees of the plaintiff. The individual states should decide this question. That is actually the system in Great Britain I think. It would discourage bogus lawsuits and also might encourage the insurance companies to settle lawsuits which do have merit.

Here is another suggestion-- probably 15% of the doctors in most specialties are responsible for 50% of the claims. I would hope that physicians organizations might do a better job in monitoring their own. After all, the skilled doctors who take care are paying the same rate as the ones that botch the jobs.

I just don't see how a system could be devised that would allow altering the outcome later.

[chicagomd]

17. Thanks for the insight..

I was not trying to imply that lawyers take cases that are legally "bogus", but rather that they take claims that are potentially winnable in court, or will force a settlement, but do not necessarily contain medical error on the part of the physician, or in many cases physicians, they name in the lawsuit. (The tactic of naming every physician in a patients chart in the initial lawsuit is something else I have great issue with, but as I am not a lawyer I cannot really comment on it's validity.)

Also, insurance companies are much more likely to settle cases based on the strength of the case against the defendant. This paper: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=891120 is an interesting read considering the settlement rate, amount, and the strength of the case. Although the author clearly has some personal bias, and I disagree with the vast majority of his conclusions, he articulates physician concerns very well:

"Physicians often see it differently. Many reportedly believe that every settlement constitutes an admission of negligence and informal verdict for the plaintiff. As a result, every settlement in a “good care” case constitutes an unjust verdict. The fact that the settlement may have been a rational business decision simply confirms their belief that the civil justice system is fundamentally flawed."

Making a "rational business" decision to pay off a plaintiff when there was nothing done incorrectly from a medical perspective is, in my opinion, an "unjust verdict" and it sends the wrong message to the general public. Not only personal ego is involved here. There is a trend in health care reform for states to make judgments/settlements easily available to the general public to help them choose a health care provider. Thus, this "rational business decision" (which I would argue is rational to everyone except the physician) may have very real, and very detrimental effects on a doctors professional career. The reason people sue it because of outcome, not because of medical error. Outcome may, or may not, be due to error, but many times it is not, and this is not something physicians can control. Because of this, these settlements that amount to business decisions are rather painful for doctors.

The perception among physicians, as the author noted, and among the public, as is evident by some politicians pushing for reporting of lawsuits/settlements, is that settling is akin to admission of medical error, even if no medical error occurred. This is an inherent problem in the perception and application of the current civil system to malpractice. Physicians will always have an inherent disadvantage in the civil system when compared to other defendants because anything short of a case dismissal or victory by jury verdict will be construed by the public as a negative outcome for the physician as a defendant.

[Celebration]

24. Insurance companies

Actually some of them now refuse to settle any cases, on the theory that it will encourage more cases in the long run. This is the stance that Merck takes on the Vioxx cases. I am very sympathetic to doctors whose insurance companies settle cases that have no merit!! I'm not sure how I feel about the publication of settlements. It seems to me that settlements often have non-disclosure clauses in them--neither party can disclose the settlements. The argument can be made for sure that doctors who have a couple of settlements against them have not been shown to be guilty of malpractice. But when the number is triple the number of others in the same specialty in the same locale, that becomes a little more questionable conclusion.

It must seem very unfair and like pure hell, from the physician's point of view, to be unjustly named in a lawsuit. Honestly, I think the solution of having the loser in the case pay the winner's reasonable legal fees would help a lot of this. This would particularly help with "naming every physician in the patient's chart." The lawyers would take care to only name the ones truly responsible.

From a policy standpoint, I would not agree with getting rid of punitive damages (which are very hard to get anyway). In the case of hospitals and understaffing (which I think is the biggest malpractice problem), I feel that the only thing standing in the way of hospitals' practice of grossly understaffing even more than they do is the threat of punitive damages in lawsuits. Without this threat, I would fear even more the quality of hospital care.

[Trillo]

42. Statistics seem weak.

One thing I notice about the statistics is that, unless I missed it, on the Wikipedia page there doesn't seem to be a mention of the percentage of the whole aggregated physicians' income dollars versus malpractice dollars they or their insurance companies paid out. Nor is this statistic compared over time, nor is it adjusted for inflation. Consequently, I'm disappointed in that page of statistical information.

Regardless of the omission, if the information is truthful, it appears there's been an increase in the malpractice amounts awarded.

Another thought of mine is how so many government statistics have been understated, most recently under Bush, but also in prior administrations for at least some 60 years, and specifically inflation statistics.

For a specific example of what I'm referring to, though this economist doesn't study malpractice, he claims, "The difference that it makes is significant: if the same CPI were used today as was used when Jimmy Carter was President, Social Security checks would be 70% higher".
PDF source

Consequently, I wonder if what doctors are perceiving in increasing malpractice awards is simply inflationary ripples that are imperfectly closer to the real rate of overall inflation and currency valuations over time rather than the official government-acknowledged rates, but that seem dissonant to physicians because of the government doublespeak in published statistics.

Additionally, how medical insurance corporatists structure their fees to doctors would seem another area for 'creative' accounting and rationale.

Whether any of this is true or not, it doesn't help to solve any perceived problem.

Good luck to you all here.

[chicagomd]

44. Inflation is a cause...

and if it were the only one there would not be a problem.

The rate of increase of physician reimbursement has not kept pace at all with rising malpractice rates irrespective of inflation. For example, there is a recently retired Ob/Gyn in the community where I practice. When he started, he would need to deliver around 2-3 babies a month to cover his malpractice insurance. 30 years later, it was closer to 10 a month which is one of the main reasons why he retired from obstetrical care. (Those number are not exact, but you get the idea.)