Sunday, June 28, 2009

Medical Malpractice: Tort for Sport


Physicians and plaintiff attorneys have philosophically divergent views on our tort system. I know the attorneys’ views on this issue well. There are lawyers in my family who have prosecuted physicians for alleged medical malpractice. Sometimes, there hasn’t been enough antacids in our house to douse my flaming heartburn after some of our discussions.

Obviously, one reason that lawyers support the current system is because it enriches them. However, there are purists among them who truly believe that the tort system, despite some flaws, is the best means available to pursue justice and to compensate injured people. They point out that the medical profession has been lax to monitor itself and to sanction incompetent physicians. Too many medical mistakes, they claim, are ‘buried’. Without aggressive legal advocacy, what recourse would negligently injured individuals have against the powerful and well financed medical profession? In addition, they argue that the system is a powerful deterrent, which improves medical quality.

While I concede there is a ‘white coat wall of silence’, the argument that our tort system improves medical quality is absurd. Indeed, there is no fair-minded individual who can possibly support it on its merits. It is not designed to narrowly target negligence. It is patently abusive and unfair to conscientious, competent and caring doctors across the country. The system ensnares scores of innocent doctors in order to capture a few rogue practitioners. It’s a hatchet job, when a scalpel should be the right tool.

As a statement of fact, the vast majority of true medical negligence never enters the tort system. These patients are never compensated and the medical perpetrators are never discovered. Additionally, most medical malpractice cases that plaintiff attorneys review are rejected because the lawyer does not feel that negligence has occurred or can be proved, or that the damages are insufficient to merit a legal proceeding. So, the current system only compensates a small fraction of negligently harmed patients. Can we defend a system that only provides relief to only a minority of those who deserve a legal remedy? Would we applaud our government if it provided food stamps to only 10% of those eligible, or would we demand a higher performance level or a new system?

In addition to its failure to reach most potential plaintiffs, the current system also punishes too many innocent doctors. Few other professions can truly empathize with our predicament. Most folks on the job do not fear that they can be successfully prosecuted for doing their job well. Do store clerks, cab drivers, teachers, entertainers, union workers, journalists, zookeepers or candle stick makers punch their time clocks in the morning and worry that they might be sued if an adverse event occurred that was not their fault? Doctors do.

Lawyers state that innocent physicians are ultimately dismissed proving that the system works well. A just outcome, however does not mean that the system is just. Recently, the U.S. government released several Guantanamo prisoners, who were cleared of being enemy combatants, to the island of Palau. Do these new islanders, who were captured in 2001 and endured years of misery, feel that our system is fair and true to American ideals just because they were ultimately exonerated?

I do not suggest that being wrongly sued is similar to being wrongly incarcerated, but there is a parallel theme. The innocent physician who is ultimately dismissed from the case or prevails in court does not feel like a winner. He emerges from his ‘victory’ as a battered and angry practitioner who returns to his practice with renewed cyncism and wariness. His relationships with his patients inevitably suffer and he practices more defensive medicine for legal protection. The current tort system fails in its mission to improve medical quality. Paradoxically, it diminishes quality by generating excessive and medically unnecessary care from worried doctors, which costs money and risks complications.

Lawyers don’t understand why we physicians take litigation on such a deeply personal level. If they lose a case, they shrug it off and move on to the next client. To them it’s just business. Not so, for physicians. When we are unfairly attacked, and our reputations are publically sullied, it becomes a wrenching personal ordeal.

How would lawyers feel if they feared a lawsuit after every case they lost? Would it be fair if innocent attorneys had to spend years and money defending against an outcome that was not their fault? Perhaps, then, they might understand better why we physicians are so hostile to the present system. Of course, if this sweet ironic turnaround occurred, there would be dividends. Attorneys and physicians would then finally be alligned. We could commiserate with each other. We could plot joint strategy for tort reform. We could be allies. And, we could share antacids.

29 comments:

Anonymous said...

The whole 'tort' thing is a stupid beatup by the greedy AMA, it makes virtually no difference to the healthcare bottom line. What DOES make a difference are the greedy doctors and the way they rig the market to keep the numbers of doctors down. Doctors=theives.

Anonymous said...

Does any objective scientific data exist on evaluations of malpractice cases that are won/lost or settled out of court? It seems that it should be possible to have an unbiased group of physicians evaluate cases and pronounce their judgements. Your article claims that many innocent doctors are ensnared by the current system. Has this been proven by studies and, if so, what are the references? If not, why are such studies absent? Would not the results be highly valuable and of great public interest? Alex J.

Michael Kirsch, M.D. said...

The 2nd comment above deserves a response. Most physicians who are sued are either dismissed from the case at some point or are found not-guilty at trial. Some physicians who are innocent of negligence, still settle their cases in order to avoid the uncertainty and risks of a trial. Accepting these statement as truths, then it is clear that most targeted physicians are innocent. Your suggestion of having impartial physicians review potential cases is intriguing and would likely lead to fairer outcomes for patients and physicians. Trial lawyers will not agree. I would support a review panel that would include physicians, attorneys, ethicists and others. Considering that the current tort system casts too wide a net over physicians and misses the majority of medical negligence, all players in the game should favor a new system.

Anonymous said...

I never thought I'd advocate for patients' rights regarding medical malpractice. I am a veterinarian in a high-risk specialty and thus have my own concerns about lawsuits. But I recently experienced a surgical failure with horrific follow-up and was informed by my attorney that though the physician breached the standard of care, my damages are insufficient to merit a lawsuit.

So I'm going to report my physican to the state board of medicine and, additionally, likely sue her in small claims court.

Of course, if she'd been honest with me and simply taken care of me rather than obfuscating, I'd feel differently, and she'd probably still be my physician. Considering my profession, I understand that mistakes happen. The problem is that this physician - like many - failed to acknowledge that in my case, she performed less than perfectly.

Patients don't sue physicians they like.

Anonymous said...

Anglo-Saxonian system, sucessful in relative and absolute terms over the past 200 years or so is at the end. No new collogy to suck, no new huge resources to exploit and - like UK after WWII with its pound - US is starting to loole the MAIN source of enrichment, the world reserve currency which the rest of the world has to earn while it cost nothing the country which owns the printing machine.

Wasting 17% GDP on healhtcare, having ea 6th American w/o insurance, naively or (mostly) intentionally, asserting that US "cannot afford" universal healtcare ae signs of selfish individualistic culture. We hear, at nausea, how MDs deserve there huge, compared to other professions multiple incomes that no Western country has, how thankless and expensive their practice is ... yet ambitious upper middle classes are stilll sending their offsprings to med schools. MDs and JDs are eating each other, the rest of population is paying them, their standard of living, at the expense of the rest as doctors are overpriced and lawers are - great majority, tobe fair to few who are not - parasites, unproductive. No wonder that Japan has 11-times as fewer JDs per capita as US.

Anonymous said...

Why dont we see statistics comparing the cost of malpractice litigation with the cost of the incredible closed shop run by the doctors, ie the way the AMA keep their incomes high by restricting the number of graduate doctors.

This would be sobering reading. The real reason for expensive healthcare is the greedy doctors monopoly and control over numbers, rather than malpractice.

Anonymous said...

Isn't it ironic that medical students learn all about medical parasites in medical school, then go on to become the most virulent parasites of all; greedily running a closed shop, restricting new doctor numbers and overservicing to keep their stratospheric incomes high. America's strongest labor union - the AMA.

Michael Kirsch, M.D. said...

The AMA has no influence on the number of students admitted to medical school. In addition, the anonymous commenter has exaggerated the AMA's influence. Only a minority of American's physicians are members. I am hardly an AMA supporter, as evidenced in my 6/14/09 posting. Finally, some of the comments above seem more virulent than any physicians I know.

David said...

The AMA is hardly a union. In fact, doctors have been blocked at every step from even trying to unionize. Sure physicians in a large group are organized and have some negotiating power, however solo physicians have not been allowed to organize when dealing with HMO's, hospitals and the like. The government has always taken the position that self-employed physicians are either "independent contractors" prohibited from banding together to form a negotiating bloc in violation of the antitrust laws (which is why hospitals hire physicians as “independent contractors”, or not "protected employees," (as they have a supervisory capacity) or in the case of hospital interns and residents, that they are "students." Neither independent professional, people who act in a supervisory capacity, nor students are entitled to the protected right to organize. If a group of doctors even tried to conduct negotiations, the feds have made it very clear they will start anti-trust legal proceeding.



So no, being a physician isn't like any other job. While plumbers, electricians, autoworkers, government employees, nurses, the police and about any other profession have the right to protect their interest through a real union (the AMA is far from a union) physicians are not allowed this right. Why this is, I'm not sure. I've heard the complaint that if doctors were allowed to unionize that then they could strike and doing so would endanger the populace, however there are plenty of critical jobs where there members are allowed to strike in a controlled manner (firemen, police, EMT’s ect.) although conversely there are unions that the feds do seem to strike down and not allow to strike (air traffic control comes to mind).



A second point is that the number of medical students admitted has nothing to do with any sort of intentional rationing. The fact is medical school costs far more than the $50,000 per year some schools are charging (I’m doing great only paying around 24k, go badgers). In fact, looking at the facilities costs and the cost of obtaining faculty (you pretty much have to pay the professors at least 80% of what they would make practicing) the actual costs to the school per student is well over $100,000. The remainder of this cost is made up through endowments and grants. With that in mind, there are a fixed number of students a med school can support. While many would like to add to their class sizes, the only way of doing that is to seek out more endowment money (which is difficult) or raise tuition (which is already high). Founding a new medical school is similarly difficult and takes a large amount of funding at the state level. The newest US medical school, the commonwealth medical college (TCMC) in Scranton, PA opening this year, needed over 70 million in state and private grants just to get off the ground. There are 60 students in TCMC’s starting class meaning that, if they do not increase their yearly enrollment, they will have 240 medical students four years from now. This works out to be roughly $290,000 in capital needed per student. These numbers are low, as the 70 million doesn’t include all the money needed to build a permanent campus (they are still fundraising for that and are using pre-existing buildings at a variety of community colleges in the meantime).

David said...

Medical schools are actually a huge financial hole. This is unlike many other professional schools, such as law and MBA’s, which can turn out to be goldmines for a parent institution. Such schools have a much lower overhead (they don’t need labs, ect.) yet charge about the same for their education. The result is a glut of MBA’s and JD’s (as schools can make money off of them) while a shortage of MD’s (as a school actually loses money off them). To anyone that disagrees with the idea that medical schools can be as much of a financial liability as they are a boon, google “Rice Baylor merger.” Despite Baylor being one of the top 10 medical institutions in the world, the financial riskiness of a medical schools means that there are good reasons Rice University (also a very good institution and my undergraduate alma mater) doesn’t just jump ahead with the deal. In fact, in the amount of time that Rice has hemmed and hawed about merging with Baylor, they built a completely new MBA school that is now almost a decade old (illustrating again how MBA and law schools are a lesser financial risk). So the point is, if you want more doctors, states are going to have to pony up and expand existing medical schools or create new ones as it is a risky (and expensive) measure for a private institution to undertake.

As for the greedy doctors myth, anyone who goes into medicine for the money is a moron. You can do much, much better in the business world. While there are some fields that are way over compensated (radiologists can pull in 500k, if they do lots of procedures) most primary care doctors make closer to 150k, although this varies a lot by region. City doctors make more than ones in more rural areas (although this tends to also mirror cost of living increases) and there are areas of the country where it is very difficult for a doctor to “make it” and physicians are simply not available (the Upper Peninsula of Michigan). Still to become a doctor you need an additional 4 years of schooling (costing on average 50k) over a college graduate and at least 4 years of residency (I’ll probably end up doing closer to 7) where you make 50k. Assuming you enter medical school when you are 22 and retire at 67 the real amount you’ll make between the time you are 22 and retirement is around 123,000 per year. Nothing to scoff at but not as great as it appears at first glance, especially considering that wages are pretty stagnant and may even decrease. If fact for science minded (but not people minded) individuals I would say become a chemical engineer. You’ll make 60k right out of school, most companies will pay for you to get your master’s degree and by the time you are 30 (8 years in) you’ll be making 7 figures easy whereas a med student is just starting their 80 hours a week, grueling hell residency. If you just want to make a lot of money go into business, as the recent Wall Street scandals have shown.

Finally, I find in these discussions that there seems to be a lack of knowledge of tort law and what reforms are actually being proposed. In torts you have both negligence (which includes making an honest mistake such as missing a diagnosis) and gross negligence, which includes willful harm or willingly creating conditions that one would expect, would lead to harm (practicing medicine while drunk, utilizing improper or dirty equipment, financial conflicts impacting one’s prescriptions, etc.). All tort reform seeks to target ordinary negligence. No one has proposed limiting victim’s rights to legal recourse for acts of gross negligence, nor should they.

David said...

In my opinion all regular negligence claims should be capped, but handled with a no-fault system similar to no-fault workers comp claims. Such a system would pay out lost wages and medical bills (both current and future) resulting from a mishap (but not pain and suffering nor punitive damages). I can guarantee that if such a system were in place, doctors would go out of their way to admit mistakes as their would be no disincentive to doing so (losing one’s savings/job kinda sucks) and most would like to help their patients any way that they can. At the same time, gross-negligence should (and will) be left where it is. Any doctor who causes harm through cutting corners and willful neglect will pay the harsh penalties that they should.


Sorry for the long (and somewhat un-edited) post. The amount of vitriol in this thread was high and I felt a lot needed to be said.

-(Future Doctor) Dave

David said...

oops just realized I said 7 figures for a chem E salary, change that to 6, wasn't thinking...

David said...

One more thing to add (before its time for fireworks), I didn't mean to make the medical schools sound like they were totally non-complicate with the class size problems. They are, its just that their motivation isn't what the first commentator said (to make an artificial shortage). In fact medical schools do bring in lots of money through grants and endowments every year. It's that, instead of increasing class sizes with it, it gets spent on other things like research facilities. Med students are losses while a new research institute can bring in millions per year. The net result is that med schools are generally as big as they need to be to be a "good" medical institution (around 100/per class) unless they are prodded to grow (by state mandates and whatnot) and tend to expand their research departments as much as they can.

Anonymous said...

"Lawyers don’t understand why we physicians take litigation on such a deeply personal level. If they lose a case, they shrug it off and move on to the next client. To them it’s just business. Not so, for physicians. "

Why can't physicians understand that? Do they not objectively and dispassionately discuss things that are gutwrenching to those involved? Why would physicians be surprised if someone else can do it in their line of work as well?

" You’ll make 60k right out of school, most companies will pay for you to get your master’s degree and by the time you are 30 (8 years in) you’ll be making 7 figures easy whereas a med student is just starting their 80 hours a week, grueling hell residency."

Are you suggesting that Chem E's make $1 million plus on average by the time they are in their mid 30s? Really? Got any proof?

Anonymous said...

Comments, Part 1:

"Physicians and plaintiff attorneys have philosophically divergent views on our tort system."

-Doctors want to be left alone to practice medicine. Lawyers want to make sure they do it right. If there’s a philosophical disconnect, then it’s just another symptom of elitism on the part of doctors.

"I know the attorneys’ views on this issue well. There are lawyers in my family who have prosecuted physicians for alleged medical malpractice. Sometimes, there hasn’t been enough antacids in our house to douse my flaming heartburn after some of our discussions."

-Sounds more like emotion than philosophy.

"Obviously, one reason that lawyers support the current system is because it enriches them.."

-Most med mal lawyers aren’t rich. They work on contingencies and take a huge risk on every case, fronting tens of thousands of dollars for an uncertain outcome. I’d wager that the average doctor’s net income is at least three times that of the average med mal lawyer.

"However, there are purists among them who truly believe that the tort system, despite some flaws, is the best means available to pursue justice and to compensate injured people. They point out that the medical profession has been lax to monitor itself and to sanction incompetent physicians. Too many medical mistakes, they claim, are ‘buried’. Without aggressive legal advocacy, what recourse would negligently injured individuals have against the powerful and well financed medical profession? In addition, they argue that the system is a powerful deterrent, which improves medical quality.

While I concede there is a ‘white coat wall of silence’, ..."

-Indeed. Quite an admission. This doctor would like to minimize the effects of this wall of silence, but its effects are very real. So real that a number of popular euphemisms describe it. For example, missing patient records are referred to as records that have been “magic’ed.” The doctor’s thinly-veiled attempts to blame the legal system for this are what is absurd. Is civil rights legislation responsible for the wall of silence around the Ku Klux Klan?

"the argument that our tort system improves medical quality is absurd. Indeed, there is no fair-minded individual who can possibly support it on its merits. "

-Actually, the entire thing is in the hands of the medical profession. The only way a doctor can be found liable for med mal is by violating the standard of care—defined as what a prudent doctor would do in like circumstances. That’s largely determined by national and local standards. Does this doctor really expect us to believe that if there was no possibility of legal liability the medical profession would be better?

"It is not designed to narrowly target negligence. It is patently abusive and unfair to conscientious, competent and caring doctors across the country. The system ensnares scores of innocent doctors in order to capture a few rogue practitioners. It’s a hatchet job, when a scalpel should be the right tool.

As a statement of fact, the vast majority of true medical negligence never enters the tort system. These patients are never compensated and the medical perpetrators are never discovered."

-There’s that wall of silence again. I fail to see how this is the fault of the lawyers or the tort system. Does he want us to waterboard doctors to get more information out of them? His argument makes no sense and is contradictory on its face.

Anonymous said...

Comments, Part 2:

"Additionally, most medical malpractice cases that plaintiff attorneys review are rejected because the lawyer does not feel that negligence has occurred or can be proved, or that the damages are insufficient to merit a legal proceeding. "

-So which is it? Are “scores of innocent doctors ensnared” or do most cases never make it past the initial attorney interview? It can’t be both. Only the most egregious cases make it to the pleading stage, much less to court. If you leave a sponge inside someone or amputate the wrong leg, you’re gonna get fried. More marginal or difficult cases fail to get prosecuted because a lawyer will not take a big financial risk on them. This is not a formula for ensnaring scores of innocent doctors.
 
"So, the current system only compensates a small fraction of negligently harmed patients. Can we defend a system that only provides relief to only a minority of those who deserve a legal remedy? Would we applaud our government if it provided food stamps to only 10% of those eligible, or would we demand a higher performance level or a new system?"

-Sounds like he wants to increase regulation and intensify tort litigation. He claims that a hatchet is being used instead of a scalpel, but he offers no scalpel. But really, this passage is indecipherable. (And, by the way, I would applaud the government if it got food stamps to only 10% of those eligible—0% would be even better.)


"In addition to its failure to reach most potential plaintiffs, the current system also punishes too many innocent doctors. "

-I’m not buying this at all. It’s got to be pretty darn bad before a doctor gets sued.
 
"Few other professions can truly empathize with our predicament. Most folks on the job do not fear that they can be successfully prosecuted for doing their job well. Do store clerks, cab drivers, teachers, entertainers, union workers, journalists, zookeepers or candle stick makers punch their time clocks in the morning and worry that they might be sued if an adverse event occurred that was not their fault? Doctors do."

-Doctors slice people open. Candle stick makers pour wax into inert containers. See the difference? Doctors make $300k+ per year. Candle stick makers? Minimum wage. Another difference. If it’s so attractive, take off the white coat and break out the paraffin.


"Lawyers state that innocent physicians are ultimately dismissed proving that the system works well. A just outcome, however does not mean that the system is just. Recently, the U.S. government released several Guantanamo prisoners, who were cleared of being enemy combatants, to the island of Palau. Do these new islanders, who were captured in 2001 and endured years of misery, feel that our system is fair and true to American ideals just because they were ultimately exonerated?"

-And what were they doing in Afghanistan in the first place? Their release does not mean they were exonerated. It simply means that there was not enough proof to take them to trial. A few years in Gitmo may have been exactly what they deserved. It may not have. But to paint them as innocent victims with a broad brush indicates a failure to understand anything about war, law, crime, or punishment. The analogy is a complete failure.

Anonymous said...

Comments, Part 3:

"I do not suggest that being wrongly sued is similar to being wrongly incarcerated, but there is a parallel theme. The innocent physician who is ultimately dismissed from the case or prevails in court does not feel like a winner. He emerges from his ‘victory’ as a battered and angry practitioner who returns to his practice with renewed cyncism [sic] and wariness. His relationships with his patients inevitably suffer and he practices more defensive medicine for legal protection. The current tort system fails in its mission to improve medical quality. Paradoxically, it diminishes quality by generating excessive and medically unnecessary care from worried doctors, which costs money and risks complications."

-Again, this is completely in the hands of the medical profession. Adhere to your own standards and it is extremely unlikely you’ll be sued. And you should worry. You should be defensive. You should exercise due care to protect your patients. Sounds like the tort system is working to me. If you are cynical and angry because you screwed up and got called on it, then maybe you shouldn’t be a doctor.

"Lawyers don’t understand why we physicians take litigation on such a deeply personal level. If they lose a case, they shrug it off and move on to the next client. To them it’s just business. Not so, for physicians. When we are unfairly attacked, and our reputations are publically sullied, it becomes a wrenching personal ordeal."

-Guess what? It’s hot in that thar kitchen. But the kitchen has a door. And this is mostly of your own making. You put yourself up on a pedestal. It’s a long way down from there.

Anonymous said...

Comments, Part 4:

"How would lawyers feel if they feared a lawsuit after every case they lost? Would it be fair if innocent attorneys had to spend years and money defending against an outcome that was not their fault? Perhaps, then, they might understand better why we physicians are so hostile to the present system. Of course, if this sweet ironic turnaround occurred, there would be dividends. Attorneys and physicians would then finally be aligned. We could commiserate with each other. We could plot joint strategy for tort reform. We could be allies. And, we could share antacids."

-Conclusion:
There may be good arguments for tort reform, but there’s not one in this article.
And lawyers do face legal malpractice issues all the time. During court proceedings they are subject to sanctions (cash penalties assessed by the court) for all kinds of things. Imagine what it would be like if a surgical “judge” watched every surgery and fined the doctor for every negligent act—payable during the surgery—or reminded the doctor that he might be slicing off the wrong leg. (That might actually bring doctors’ performance levels up to that of lawyers’, come to think of it.)
Lawyers can be sued by clients. It happens all the time. One difference is that when lawyers screw up, their client usually doesn’t die. When candle stick makers screw up, they just pour some more wax. Maybe they get three bucks deducted from their next check.
In 2003, the Texas Legislature passed tort reform here. Non-economic damages (pain, suffering, loss of consortium, and the like) were capped at $250,000 and punitive damages (for gross, wanton, or willful negligence—things that are almost never awarded) were capped at $750,000. As a result, med mal insurance premiums have gone up. There has been a 20% increase in the number of cases brought. The doctor is an easy mark now. He and his insurance company know that their exposure is the cost of services plus $250k, so it makes sense to settle more cases than ever before. If they thought they were going to have to defend against a judgment that could be in the millions, they’d litigate. And plaintiff’s attorneys, knowing that litigation expenses might go through the roof, would be less likely to bring less meritorious cases. (This was a instance of poetic justice—the AMA lobbied hard for tort reform. Be careful what you wish for. You may get it.)
So the best system is one where people can take each other to court to litigate legitimate grievances and then let the chips fall where they may without any artificial caps or gerrymandering by the legislature. Doctors don’t really want tort reform, they want to eliminate tort liability.
The good news for them is that they may get their wish. Once they all work for Obama and the feds, they’ll have sovereign immunity from suit. The bad news is they’ll work in dirty facilities with crappy equipment, see 400 patients a day, and make $35,000 a year while still carrying $400,000 in medical school loan debt. In a few years, the most prestigious medical degree held by any doctor you’ll ever see will come from the University of Palau. And who knows? Maybe the recipient of that degree will have gotten to medical school by way of Gitmo.

Matt
mlaurentc@yahoo.com

Michael Kirsch, M.D. said...

I want to thank Matt, who has bravely provided his contact information, for his thoughtful responses. I have read them all. I disagree with him, as is evident in various sections of this blog, but I appreciate his contribution of time and effort. His views have provoked controversy and I hope that Whistleblower remains on his required reading list.

misterc said...

Wow, lots of writing for what is a simple matter. There are no guarantees in medical care. I have never seen one, however I have seen one on my vacuum cleaner for a year or so. This is because it doesn't decide things.

If there are no guarantees in medicine there is an implied risk to the patient, and to the doctor fiddling around with the patient in hopes of getting a good result. It's an agreement which is entered into. It's not the law that a person has to go to a doctor.

Medical care therefore cannot logically be litigated if it fails to perform miracles or the doctor, to his own surprise as much as any, turns out to be human. Medical care is very much a buyer beware situation but it isn't thought of like that at all. This is not good and needs to be updated in the public psyche.

What should be tried in a court of law is a crime. There are lots of medical crimes: the same or worse level of crime as is committed in dark alleys and seedy motels.

Crimes are bad for society and they cause the victim a loss. This should be the first call and requirement for "medical" lawyers. Tort must deal with the losses caused by crimes, and not sink to a lottery to see if one can win something in an arena where things go badly naturally. Lawyers shouldn't scout for business.

Don't go trying to make a patient who took his chances into an innocent party. Rather, look at your patient and see if he was unfairly treated. The word is unfair and "unfair" in a system where things are already imperfect because that is the nature of medicine. So the deed would have to be blatantly unfair with a smoking gun and all that.

What is the doctors' part in this? For God's sake, STOP advertizing yourselves as God...! You don't know everything and you're only following the latest industry trends as given to you with plenty of brainwashing attached. These treatment fashions could be wrong, and you could be stupid!

Your pretense that you are geniuses is what is making the lawyers take you to task.

Anonymous said...

Today, I encountered yet one more way in which the 'medical legal problem' escalates the health care costs of the nation in unseen and unimaginable ways.

I saw a 50 year-old man with a recurrent cancer. His best option is a research study involving new and old cancer drugs. He speaks mostly Spanish. His daughter is a fluent bilingual healthcare worker. We have English and Spanish consent forms. His daughter is excellent at interperting the medical issues for him.

Alas, we are told we need to pay to have 'a certified' interpreter (who usually doesn't have a medical background) to be present. Otherwise we are exposed to 'legal' risks ... and could be sued if something goes wrong.

Summation ... not the best care, delays, unnecessary costs, potentially limiting access the a vulnerable population. Real costs of the tort system out of control. Hidden away, so those arguing against tort reform get to deny it's existence.

Tom

Anonymous said...

Maybe you shouldn't be a defendant in a lawsuit and the circumstance is unfair. In another case involving another doctor maybe there was wrongdoing.

Often I have noticed abandonment is what drives a person to a lawyers office. Using an example which doesn't involve something "unnecessary" has been done to a person to cut out that particular criminal aspect. When something goes wrong often the doctor withdraws, becomes distant, or comes across as trying to move on and rid of the patient asap. Suddenly the patient feels abandoned and must go back to the yellow pages searching for help. The next doctor sometimes will not want to fully disclose his findings because that will reflect on the previous doctor. The patient will detect that trait and feel unable to trust the new doctor. The patient, depending on severity of the situation, will likely panic, possibly have nightmares, feel confused about where to turn, absorb expense in this search process, etc.

I think the conventional approach lacks in the mind body connection. Due to the trauma of something going wrong to begin with and the feeling of abandonment the patient will lose confidence in sorting, trusting... Instead of this tendency that doctors have to become distant and make a statement or two while backing up and taking off, a sincere approach is likely better. Try to think of something to help the person cope. I know that the malpractice insurance companies don't suggest this tactic. The malpractice insurance company wants doctors to say nothing but enough so that people can't yell abandon but then abandon them. Doctors complain about insurance companies but then listen to what the malpractice insurance tells them to do. Or, maybe some just use that excuse. The doctor can appear like a sociopath to patients when taking the abandon approach. Sometimes the approach leads to the asking of medical files. Sometimes patients read the medical files and determine their medical files are inaccurate accounts of what they recall. To have felt safe with a person capable of what appears an intentional violation leads a patient to the lawyers office. Possibly this is more of an emotional reaction, HELP, rather than a thought out legal plan. People often end up at the lawyers office because emotionally they do not know where else to turn to sort the problem. Often it is not what went wrong but how the situation is handled. The fact the person is left emotionally out on a limb and unable to call 911 they often call lawyers to verbalize the circumstance or what appears a violation of some kind.

I am not a lawyer but the feeling of violation that is not addressed...

Anonymous said...

I am sorry you have been sued. You sound like someone with good intent. Your blog is a healthy way to address issues. It is probably true that often the people who should be sued aren't and the ones who shouldn't are and so forth.

My observation, the bad apples are highly skilled in deceit and know every aspect of that area. The bad apples appear to plan every detail from the beginning, such as have an assistant in the room if there is something they want them to hear and remember or not having the assistant in the room when they don't want a witness. Some of them actually manipulate the circumstances from beginning to end. What a thought that the bad apples are getting away with much and the ones trying to do a good job with good intent are punished.

Just keep moving along trying to do a good and honest job and remind yourself of the many people you have helped.

Does any doctor have a 100 per cent success rate? Probably not but hopefully they all strive for it.

john..... said...

very well written post and i would like to thank the author and add that it is not just patients of the NHS, those who were treated in private hospitals as private patients will also be able to claim for breach of contract if your medical treatment was substandard.

Claiming financial compensation for clinical or Medical negligence claims can be quite a lengthy and complex matter. Because of which it is paramount that you enlist the help of a professional personal injury specialist. If this puts you claiming it shouldn't. When someone claims for personal injuries (compensation) for a road traffic accident it is generally easy for your personal in jury lawyer to establish who was at fault and whether the injuries were due to that accident. If the accident wasn't your fault, and your injuries were obviously related to the accident (like whiplash), you will have a strong case.

Jaz said...

If your medical malpractice attorney decides that you have a case and you can proceed to trial, he can determine what legal avenues to follow and what damages you can expect to receive.

medical malpractice said...

One question Raise in my mind is
Does a Doctor’s mistake always constitute Medical Malpractice?

Peggy said...

In Poland medical doctors are really protect. They are very strong labour union... Nice post! All the best;)

Anonymous said...

This is such a great post.

Charles Briggs said...

medical negligence lawyer on the other can also help or defend physician/medical practitioner who was sued for malpractice.

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