Sunday, May 23, 2010

Tort Reform and Frivolous Lawsuits: Show Me The Money!

Several months ago on this blog, I informed readers that I was a defendant in a medical malpractice case. I offered no specifics, as I didn’t want my attorney to fire me as a client, in case he discovered the post. Although the plaintiff was granted two 45 day extensions to troll for an Ohio physician to sign an affidavit of merit against my care, none could be found. My lawyer had reviewed every syllable of the medical record, and couldn’t divine an allegation against me. My lawyer and I were groping guests in a Chamber of the Absurd - trying to figure out what allegations the other side might concoct.

After a few months, I was dropped from this case that should have never been filed in the first place. Years ago, as a younger and more idealistic gastroenterologist, I was kept dangling on a lawsuit for a few years. I endured the light hearted amusement of the discovery process, including expert witnesses outside of my specialty who claimed in their written reports that my care was negligent. The deposition was so much fun, that I was disappointed when it ended. “One more hour, please”, I begged, After the ‘experts’ reviewed my testimony, they recanted, but I wasn’t formally dismissed until a few days before the trial date. Nearly 20 years later, the memory of this unfair experience still lurks in a dark recess of my mind. Lawyers don’t get this, as they don’t appreciate how deeply personal malpractice litigation is for physicians. For them, win or lose, they close their briefcases and move on to the next case.

Had the plaintiff’s attorney reviewed the record prior to suing me, he would have concluded that my care was proper and that I should not be targeted. Although in Ohio, an affidavit of merit is required to sue a physician for medical malpractice, judges will extend leniency to plaintiffs and grant extensions, as occurred twice in my case.

On March 31, 2010, I received a letter from my medical malpractice insurance carrier. Although the letter was marked PERSONAL AND CONFIDENTIAL, in all caps, bold and underlined, I feel I can share it with loyal Whistleblower readers.

Here is an excerpt:
Many physicians wonder about the magnitude of the expenses incurred in defense and/or investigation. In this case, they were $9,120.85.
Where was the rush to sue me? The statute of limitations was far in the distance. Because I was named as a defendant from the outset, with no supporting affidavit, nearly $10,000 was incinerated.

I am sure that this scenario occurs in all 50 states every day. Imagine what the aggregate financial cost is of defending innocent physicians, or doctors like me who should never been defendants in the first place. The costs of the discovery process, which I escaped, are orders of magnitude higher than my costs were.

The inarguable facts, disputed by plaintiff attorneys, are that the current dysfunctional medical liability system fails to:

  • Narrowly target negligent physicians
  • Capture most patients who have been victims of true negligence
  • Improve medical quality
I have no idea how many tens of millions of dollars or more are being vaporized in the medical malpractice crucible. With a health care system that is sagging under escalating costs, couldn’t we find a better use for this money?

Keep in mind that the actual costs of litigation are but a fraction of the costs of the medical liability system. Sure, my case burned up 10 grand, but, I will spend much more this year ordering tests and consultations that are as much to protect me as they are to protect my patients. Sad, but true.

Failing to include any real tort reform in the Patient Protection and Affordable Care Act, the health care reform panacea, is legislative malpractice. Hey, that gives me an idea. If I can get one citizen to sign an affidavit of merit attesting that our representatives breached the community legislative standard, defined as what a reasonable legislator would do, can we sue them? We wouldn’t need a judge to grant an extension. Millions of Americans are ready to sign this affidavit yesterday.

64 comments:

LeisureGuy said...

As you know, drawing general conclusions from a careful examination of one or two cases can be highly unreliable. (This was brought home to me by a friend. I had blogged a finding that French press coffee had been found to affect cholesterol levels adversely as compared to coffee prepared using paper filters. I commented that this didn't make sense to me: I drank French press coffee and it hadn't affected me.

He wrote: “I would advise you not stating your medical experience. Whether or not you don’t experience a change in cholesterol is not the point—that’s why they have large studies. Some smokers live until they are 90. If a smoker bragged about his avoidance experience, it would look foolish.”

I think you may have fallen into the same problem here, drawing general conclusions based on your own experience. Several times I have tried to point you toward a more general study and its findings, but you always say that you lack the time to read the book. (The Medical Malpractice Myth, http://goo.gl/vjEC).

Really, if you want to be convincing about this issue, you need more general data, and in particular you need to confront the arguments that medical malpractice lawsuits are not a critical issue. And, of course, I continually point out that anesthesiologists once were continually being sued for medical malpractice, but unlike other medical specialties, they dived in and fixed the root causes and the lawsuits dropped off to almost nothing---they are now the least-sued specialty.

I would think that example would stimulate a re-thinking of the issue in general, but of course it's much simpler to rail against the system than to understand in detail what is happening.

Just a thought: read that book.

Michael Kirsch, M.D. said...

LG, thanks for the comment. I am not running from your book recommendation - I simply don't have the time. My view on this issue transcends my own experience. While this is not scientific, I have over 20 years of experience in the medical profession. Over these decades, I have heard about numerous accounts, every year, from colleagues who have had similar experiences. I have heard, and read about so many unfair examples of the medical malpractice system, that I don't believe my view is an aberration or anecdotal. I suspect that if you were to query your own physician, that you would be enlightened. I do not know the facts on anesthesiologists' legal risks now. However, speak to some OB/GYNs. When a baby is born imperfect, there is a presumption that something went wrong and that the physician bears some responsbility. Ask an OB/GYN yourself. This is an easier task than reading a book. Again, thanks for your view.

Anonymous said...

Wow, so much misinformation in such a small post. Let's review:

1. "Narrowly target negligent physicians"

You really have no idea if it does or not. One, you've set no guidelines for "narrowly target", and 2, you have no idea how many cases do hit the right person. Of course, you also assume negligence can be determined BEFORE you know all the facts of a case, which is nonsensical.

2. "Capture most patients who have been victims of true negligence"

Of your supposed undisputed "facts", this one is the only one. However, it's a little disingenuous for a physician to complain about this. Why? Because every one of their "reform" proposals is designed to make it harder for those injured parties to collect. You will find no legislative proposal that eases the burden on potential plaintiffs.

3. "Improve medical quality"

This is also a bit disingenuous. A lawsuit against an individual physician typically is not designed to do this. It's to determine negligence and compensate the victim for damages. That's it. Saying it doesn't improve medical quality is like saying physicians aren't doing enough to improve the way engineers design bridges.

4. "With a health care system that is sagging under escalating costs, couldn’t we find a better use for this money?"

More nonsense. The $9,000 was paid by your insurer. If it hadn't been paid on this case (and $9,000 for answering a complaint, talking to your client, and reviewing a file? Really?), it was not going into healthcare. It was going into your liability carrier's bottom line. Don't pretend otherwise.

5. " Sure, my case burned up 10 grand, but, I will spend much more this year ordering tests and consultations that are as much to protect me as they are to protect my patients. Sad, but true."

It would be true regardless of whether we enacted your tort reform. In fact, you did get your reform in your state, and now you're telling us it didn't work? But you said that you needed it to stop performing so much "defensive medicine"? Were you just lobbying and didn't really mean it? The truth is your "reforms" have never reduced costs and never will.

And why would you do "defensive medicine" if according to you it doesn't work. You're not relying on any objective proof that if you perform X test you won't get sued, are you? And did you bill for those procedures? Are you ready to give the money back? If you didn't get it but the testing company did, do you think they would call it "unnecessary"?

6. "Failing to include any real tort reform in the Patient Protection and Affordable Care Act"

Could that possibly be because it's a federal act and a malpractice claim is a state common law action? I realize it's out of favor, but we still do have a Constitution, and there are still some vestiges of federalism. Odd that you would support malpractice reform at the federal level, given your criticisms of government in medicine. I guess you only like it when you think it helps you?

"When a baby is born imperfect, there is a presumption that something went wrong and that the physician bears some responsbility. Ask an OB/GYN yourself."

There is a presumption? Says. . . you? I'm curious, how many babies are born "imperfect" and how many claims result? If you don't know, how did you decide there was a presumption? Because you heard some OBGYNs talking about it? If I listened to gamblers I'd assume the casinos are broke, since they apparently never lose. That's why you probably ought to read the recommended book. Getting anecdotal information from other uninformed people as to the broader statistics is no substitute for actual knowledge of a subject.

Anonymous said...

It's also interesting that you would use your views on the legal system to promote reforms based on discussing things with other PHYSICIANS. Yet you would discount the views of the attorneys who actually practice law and have daily contact with the legal system.

That doesn't make much sense.

Michael Kirsch, M.D. said...

I thank the above commenter for his view. Of course, you are free to comment anonymously, but credibility is strenghened when an identity follows the comment. I understand your points, and have addressed many of them in other posts of this blog, which you may have read. The reason that I suggest that you speak with physicians, is because I suspect that if you heard my views echoed by every physician you spoke with, that you might conclude that my opinion on this issue is not anecdotal or aberrational. Is every practicing doctor simply absorbed in self-interest and myopic on the medical malpractice situation? I acknowledge that some of your points are arguable, if not valid. You seem to find no shred of validity in mine. Is this true? Can you identify any point in my tort reform/defensive medicine posts that are reasonable?

Anonymous said...

" The reason that I suggest that you speak with physicians, is because I suspect that if you heard my views echoed by every physician you spoke with, that you might conclude that my opinion on this issue is not anecdotal or aberrational. "

When one does speak with physicians, most of the basis for their knowledge is anecdotal at best. In fact, if one only gathered their information from physicians, one might conclude that there was never a legitimate malpractice case ever. Is every practicing physician myopic and acting in their own self interest? Not EVERY, but clearly most. Which is to be expected. You would say the same thing (and have) about plaintiff's lawyers. I don't know why you would believe physicians to be immune to the same criticism.

" You seem to find no shred of validity in mine. Is this true? "

I find several of your criticisms of the present system valid. Cases do take too long and very few of the victims of malpractice are compensated. Where you lose me is physicians' suggested remedy. I'm not talking about their wish list remedies, but the legislation they actually back. None of which remedies your criticisms.

With regard to defensive medicine, I do not find much validity in examining it. Why? Because it's nearly impossible to define as applied to particular procedures, and because you for one admit to doing it after we gave you the very reform you said you needed to stop doing it. Now apparently we need MORE of the same? That makes little sense. And, it also makes little sense that so many of you are allegedly practicing so much defensive medicine, but at the same time you all believe there are more and more lawsuits. Again, if defensive medicine was a smart practice, you'd think you would believe the lawsuits were declining.

I am curious as to your justification for federalizing malpractice, when you seem to be opposed to further federalizing the actual healthcare. Can you explain that dichotomy?

As mentioned above, I do not find any validity in the "we need this money in healthcare" argument.

All of your ideas may well be correct, but so far you have precious little beyond anecdotes, and generally poorly sourced ones at that (someone had a colleague, or someone read about it in the paper). Would you take as factual and form conclusions for changes in healthcare policy based on a review of a collection of anecdotes of patients with bad outcomes?

Michael Kirsch, M.D. said...

My dear anonymous commenter, With regard to your final point: "Would you take as factual and form conclusions for changes in healthcare policy based on a review of a collection of anecdotes of patients with bad outcomes?" This is exactly the nonsense that is forthcoming. While I am veering off tort reform, physicians and hospitals will be measured for quality by tracking a variety of outcomes that have nothing to do with quality. This is worse than practicing by anecdote. I accept your point on federal vs state with regard to medical malpractice. Yes, we have tort reform in Ohio in the form of caps, which I have publicly stated is not an ideal remedy. We need a filter up front to screen out cases like mine that should never have been filed in the first place. As you know, there are those who propose to reengineer the system entirely, either with health courts, or a no fault system of compensating injured patients. Every system is flawed, but I think the weakenesses in the current system demand reform. You disagree.

Anonymous said...

I agree with you that it makes little sense to track the delivery of professional services solely by outcomes. I think in many ways that's the result of physicians allowing themselves to be compensated by procedure, rather than for their time.

You request a filter, but there will be no filter without a discovery process. I think like many people you are falling into the trap of thinking that a lawsuit is what you file when you know who did it. Rather, a lawsuit is what you file when you have a harm and you think you know, but you may well need additional information to confirm. Any dispute resolution process will have this.

As to the proposals to reengineer, particularly health courts, they make little sense. There's no evidence they will be any cheaper to maintain or faster. And every health courts proposal includes damages caps, which I suspect is the real reason they exist, when you see who the proponents are. And of course, there's the little matter, again, of the Constitution.

With respect to no fault, I hear this bandied about, but there are no serious legislative proposals for such. I don't think there's even a clear consensus on what is meant by the term "no-fault".

So I deal in the remedies that DO have legislative traction, namely caps. Why does it have legislative traction? Because the money behind the tort reform movement is only interested in limiting its exposure, not in making it easier or quicker for the legitimately injured to make a claim and get paid. You are no doubt aware of this.

It is interesting that you supported caps, yet admit it didn't reduce your practice of "defensive medicine". Yet physicians in backing caps routinely cite how needed it is to reduce defensive medicine.

I don't disagree that the weaknesses in the current system couldn't be addressed. I just disagree with methods that further tilt the scales of justice away from the injured party and in favor of the insurer or shift costs that should be borne by the parties to the claim on to the taxpayer.

Michael Kirsch, M.D. said...

I will give you an opportunity to anonymously recapture a measure of your credibility. Since we both agree that the current system is flawed, what would you change to make it better?

Anonymous said...

One other thought. You mention that attorneys don't appreciate how personal a lawsuit is. I think that's a fallacy and one I would think a doctor would appreciate. In a med mal case in particular the attorney very much know how personal the litigation is because they are usually representing someone who is far more deeply affected than the defendant physician and appreciate that responsibility.

Also I think a physician would understand that there is a level of professional detachment required in doing a difficult job involving a lot of emotion.

Anonymous said...

Not really worried about your perception of my credibility. Given that my positions, unlike yours, are not based solely on conjecture and anecdotes, I'm quite comfortable with them.

As to how we fix the current system short of a Constitutional amendment, I'm not sure. Complex litigation will be costly and time consuming because the issues take time to understand and flesh out. To you, the defendant doctor who is unlikely to ever pay much if any out of pocket, getting it out of the way is paramount. To the company paying to defend you and whose money is at risk, they have no incentive to speed the process or pay sums out without a thorough vetting of the issues and the plaintiff.

One thing I would change is to extend the statute of limitations. I think smaller cases could be dispensed of without the necessity of filing suit were the statute not so short. Of course, I don't know that the defendants would agree with that given that they know that more cases might see the light of day with a long statute.

Short of amending the Constitution, how would you change things to address your three criticisms?

Michael Kirsch, M.D. said...

You have the right to remain anonymous. I sign my name to every post and comment and article I have ever penned. I respect your views. However, anyone's credibility is enhanced by a signature. Do you argue this? Isn't there a reason the press tries not to use anonymous sources? I am not asking for your ID, only want to clear the air on this obvious point.

It is astonishing that the only reform that you could come up with was to lengthen the statute of limitations. It appears that there is no aspect of this issue where your view is alterable. The post on this blog, penned by a plaintiff's attorney, is much more reasonable.

Anonymous said...

I don't care if you sign your name or not. The quality of the ideas is what stands out to me. You could call yourself Moonbeam and if your ideas have merit, they'll stand on their own. If they don't, they won't.

What, exactly, would be your Constitutionally permissible reform? So far the only reform you've backed is caps, which you've essentially admitted are ineffectual, and have never accomplished any of the goals you say you're seeking to achieve in terms of fairness, speed, and cost of resolution.

What proposal are you backing that makes it easier on plaintiffs, easier on physicians, more fair to all, and lowers the costs to all? And does your liability carrier support it? Because if they don't, we both know that your proposal is going nowhere.

My view might be alterable, but I think the only way we'll have balanced reform is with universal healthcare, where the public gets a tangible benefit in terms of access to care in exchange for limiting providers' liability. You've yet to offer a "reform" that doesn't just make it harder on the public.

Michael Kirsch, M.D. said...

With regard to your lack of admission that anonymity is at the expense of credibility, res ipsa loquitur. What are the objectives? Here they are in ideal form.
(1) Every case of medical negligence is remedied in some manner.
(2)No innocent physician is sued.

While this idealized, do you agree with these goals, in theory?

Anonymous said...

No, I don't. On the first, "in some manner" is too vague for my tastes. I think the person ought to get what they are constitutionally entitled to - a trial before a jury of their peers if they so desire. The Constitution means something to me, and each of its amendments, including the 7th, have value in my eyes. And I want both sides, plaintiffs and defendants, to have this right preserved as I think it's essential to our freedom.


On the second, I also disagree, but I think it's because you're being a little loose with your language. I do not want any party who was not negligent to be found negligent by the jury or judge trying the case is how I would put it. I think our society agrees, which is why a civil claim has so many levels of review.

You act as if the mere fact of filing means the plaintiff should already know all parties who are liable because one should already know all facts of the case. That's an impossibility in many cases, because it assumes you can compel information without a lawsuit, that medical records aren't falsified ever, etc. Any dispute resolution process we develop will always have some manner to compel people who may be liable to make their case that they aren't before some finder of fact. So your second goal I believe is unobtainable and to make it a goal would be pointless.

But let's say I agree with your objectives - what are your proposals?

Anonymous said...

Also, how does your support for the only "reform" that currently exists, damage caps, square with your rather noble goals? After all, damage caps only affect those cases which have been adjudicated meritorious, and generally have significant damages. So why should the people injured the worst bear the brunt of your "reform"?

Michael Kirsch, M.D. said...

Forget the constitution for a moment. I'll try again. If there was a means that would guarantee that every patient harmed by negligent medical would be compensated (we can argue later how to define compensation), and no innocent physician would be targeted, would you support this? This is obviously a theoretical question. For me, these are the ideal objectives. Perhaps, you have other objectives.

Anonymous said...

Purely hypothetically? Absolutely. In fact, I would even say we should reach even higher and say each patient compensated quickly.

Michael Kirsch, M.D. said...

I was determined to view the issue from an altitude so high that we could agree. I am pleased that this was possible. If we and others agree on the goals, and can separate self-interest from the public's interest, then it becomes merely negotiating the tactics.

Anonymous said...

No one can separate self interest from public interest, even you. Your support of damage caps reflects that. We all start with the prism of the effect on ourselves.

As to it being "merely" negotiating the tactics, I think you're being a little blase about the Constitution, the desires of the real actors on the "reform" side, and such when you get to real world issues. There's nothing "merely" about them.

But if we're putting those aside, by all means carry on.

Anonymous said...

I will weigh in on this argument as a physician. I have seen and been involved in a number of med/mal lawsuits, both as a defendant and as a consultant. I have YET to ever see REAL medical malpractice, not even once. Several of these cases were decided against the physician, and yet, ALL OF THEM involved patient non-compliance and/or stupidity! The very idea that a physician can be held responsible when the patient does something idiotic is just patently absurd. And people wonder why we are in this mess?!

LeisureGuy said...

Just got back to this. I understand that it's not possible for you to find the time to read the book (though it's short). My suggestion really is that you stop commenting on medical malpractice and tort reform and the like until you have the time to read and inform yourself fully. Education through listening to anecdotes from colleagues and hearing of various specific cases just is not an adequate foundation. This is often abbreviated as "The plural of 'anecdote' is not 'data'."

Indeed, the anecdotes most likely to be told are those that detail the most unusual happening. And the anecdote about a patient seriously injured through malpractice who complains vociferously to his physician but doesn't sue---you don't hear that anecdote, because the physician probably doesn't tell it.

I can regale you with many anecdotes about the relatively small proportion of doctors responsible for the great majority of malpractice cases, and how in most instances those doctors are protected by their colleagues and by the (doctor-dominated) licensing boards and disciplinary committees, but those are also not data.

That's why a study is important, and why positions should be based on findings from good studies and not from anecdotes.

No need to read the book, but then it would be prudent to reel in the commentary until you are in fact informed by actual studies and not self-serving anecdotes. (Not that you are doing the self-serving, but when someone tells an anecdote, it almost invariably is in their own favor.)

Michael Kirsch, M.D. said...

@LG: Thanks for the comment and I appreciate your points. I am hopeful that one can be informed without reading the particular book that you have recommended. You are quite right; this is commentary on this blog and not hard science. By the way, much of what we physicians do every day isn't hard science either. We face clinical situations every day for which there is no available relevant medical evidence to guide us. We must rely upon anecdote and experience, which I suggest has value. For example, if I were a patient with an unusual medical condition, I would rather consult with a physician who has treated hundreds of similar patients (anecdotes), rather than a young medical researcher who has published some scientific papers. Theres lots out there that we can't prove or easily study; but yet may be true. I offer commentary and opinion and welcome differing views, such as yours.

Anonymous said...

Whose manipulated data do you wish to believe?

Michael Kirsch, M.D. said...

You are absolutely correct. Each side has its own version of the facts. First, decide if you believe if the current system is in the public interest and is fair to the medical profession. If not, then what deficiences should be addressed? I have detailed in several blog posts where I believe that the current medical liability system is inadequate and unfair. Of course, my objectivity can be challenged, but many ordinary citizens agree that we are in the midst of a litigation mania that is not serving society well. Indeed, those who point to other nations as a model for our health care, rarely point out that they also have a sane and reasonable tort system.

david said...

I agree with anonymous, Dr. Kirsch. Who cares if he is anonymous. Attacking him for being annonymous, rather than his argument is an ad hominum attack. If he were making anonymous accusations about another person that would be a different story.

Anonymous said...

". We must rely upon anecdote and experience, which I suggest has value."

It does. However, your experience is not really in the law, is it? Most if not all of you have little if any understanding of even the most basic rules of procedure and evidence, and only a passing acquaintance with the elements required to prove a medical malpractice claim. It's as if someone watched a whole bunch of House and went to the emergency room a couple times and then wanted to suggest medical reform.

"the midst of a litigation mania "

It's lobbying phrases like this which underscore my point. What is a "mania"? How many cases do you think there should be in a free country? Since you never define your baseline or your goal, your statements become meaningless.

And again, all your "solutions" never seem to meet your stated goals.

"rarely point out that they also have a sane and reasonable tort system."

And likewise, those who wax poetic about other countries legal systems never mention their deeper social safety net and universal healthcare. Of course, since you have literally ZERO experience with any other country's "tort system", how are you possibly qualified to call it "sane" or "reasonable"? You haven't even defined the words in terms of ANY tort system. You tend to toss the word "bias" around, but you seem to not recognize it in your own statements.

Anonymous said...

poop

Michael Kirsch, M.D. said...

@David, I don't want to overdramatize the anonymous credibility issue. Of course, views expressed anonymously can be perfectly valid. There is a reason, however, that reputable hard news outlets insist that their sources be identified.

Anonymous said...

Hard news outlets rely on anonymous sources all the time - ever heard of Deep Throat? However, one doesn't need sources for things that are verifiable in other ways.

" Each side has its own version of the facts."

Not really. The facts are largely undisputed. Now, one can look at studies that tout this and that, but one can not just review the conclusions of those studies, but also must review the information put in. The studies are factual, but the extrapolations of the information into talking points is where they often go astray.

The hard facts are these: The only "reform" with legislative traction is damage caps. These do not meet any of the lofty goals you purport to believe in. Nor do they achieve any of even the claims of the lobbyists(cheaper healthcare, less defensive medicine, increased access to physicians). There is no other "version" of those hard facts.

So while you are correct you have detailed the inadequacies and "unfairness" of our Constitutionally mandated civil justice system, the legislative solutions you and your ilk have proposed do little if anything to address those. Rather, they are focused on making it more difficult for claims, regardless of legitimacy, to be filed or for full recovery to be had if they are.

Michael Kirsch, M.D. said...

I have stated publicly on this blog and elsewhere that I do not believe that caps are ideal, but they have helped us here in Ohio without question. I favor a system that prevents innocent physicians from becoming defendants.

Dan said...

Mr. Anonymous,

A couple of points:

1. How can you only come up with one fix to our malpractice situation? Since you are supposedly so well versed in the legal system, you must have other suggestions. Get creative, and don't hide behind that "legislative traction" line. We're on a blog, not giving testimony before congress.

2. "On the second, I also disagree, but I think it's because you're being a little loose with your language. I do not want any party who was not negligent to be found negligent by the jury or judge trying the case."

But you don't mind if innocent folks go broke defending themselves pre-trial?

In the 21st century however, the innocent are already well damaged (time, money, reputation) before the trail takes place. That's why doctor's hate getting sued. Plaintiff's attorneys don't so much give a damn about that part.

3. You make an awful lot of counterarguments simply by saying the original evidence was anecdotal and not data based. Unfortunately for you, data>anecdote>no evidence at all.

Anonymous said...

"How can you only come up with one fix to our malpractice situation?"

What "malpractice situation" do you refer to? That malpractice exists? That's on medicine to fix. It's not clear what you're asking for here? Do you think there are too many claims? Based on what?

"But you don't mind if innocent folks go broke defending themselves pre-trial? "

Of course I do. Who are you referring to? Which insurer is going broke defending itself? I've seen a few go broke due to financial mismanagement, but never from defending their insureds pretrial.

"That's why doctor's hate getting sued."

There is no system where we resolve a dispute with a doctor that he/she doesn't think they did anything wrong that they're going to like. Period. No one likes being accused of doing something wrong, or answering questions under oath.

"You make an awful lot of counterarguments simply by saying the original evidence was anecdotal and not data based. "

Not at all. There's some hard evidence out there. What would you like to know? I just don't believe that policy should be made based on anecdotes. Do you?

Dan said...

Anon, again you prove slippery.

The situation:
http://content.nejm.org/cgi/content/short/354/19/2024

So the stats say that 37% of claims had no medical error. I'm sure you're going to say "that's what the discovery process is for." Fine.

But what about the 28% of claims NOT associated with errors or the 16% not even associated with injury that DID result in compensation? What about the 54 cents out of every dollar of compensation going to administrative expenses ("those involving lawyers, experts, and courts")?

Patiently awaiting your suggestions.


"Which insurer is going broke defending itself?"

Insurers don't go broke defending themselves because they pass on increased risk in the form of higher premiums. That's why it's insurance and not charity. Please tell us how higher and more frequent payouts do not translate to higher premiums for medical practices and thus more overhead?

Michael Kirsch, M.D. said...

Dan, I want to welcome you to this blog. I appreciate your comment above, and others on prior posts. I hope you will continue to contribute. MK

Anonymous said...

Dr. Kirsch, were you ever able to quantify how caps had "helped" you in Ohio? For example, did the rate of physicians per capita increase?

Michael Kirsch, M.D. said...

I don't have these statistics. The stats I was able to easily obtain I posted in a comment above. Cleveland is not a representative region because we have the Cleveland Clinic and University Hospitals, which employ large numbers of physicians. Therefore, it may be hard to tease out the information you requested. Malpractice rates have cooled and fewer cases have been filed.

Anonymous said...

" Malpractice rates have cooled and fewer cases have been filed."

Rates cooled nationwide regardless of caps. But I didn't realize lowering your insurance rates was a goal. You've been talking about much loftier things. How does that help anyone but you? And how can you be sure it's not the natural ebb and flow of the insurance business?

As to fewer cases filed - how many and over what period of time? I didn't realize your goal was simply fewer cases filed - you've talked more nobly of more people getting compensated faster.

The benefits you tout sound like something an insurer would be looking for, and certainly not the high minded ideals you've previously espoused.

Dan said...

"How does that help anyone but you?"
Insurance premiums are a cost of running the business. That otherwise wasted money can go toward new medical equipment, a holiday bonus for the office staff, the kids' college tuition, EMR.

And how does the malpractice rate cool-off HURT anyone but you (as we now assume you are a trial lawyer)?


(Still awaiting your suggestions.)

Michael Kirsch, M.D. said...

Just because a reform may benefit an insurance company, doesn't mean it's evil.

Anonymous said...

"That otherwise wasted money can go toward new medical equipment, a holiday bonus for the office staff, the kids' college tuition, EMR."

You assume that the insurer is going to return that money to insureds rather than shareholders. Why?

"And how does the malpractice rate cool-off HURT anyone but you (as we now assume you are a trial lawyer)?"

Reducing rates doesn't hurt anyone (even lawyers). However, using the rather dubious argument that rates will be reduced if we cut the rights of the injured hurts us all.

Suggestions on what? There is no way to make trying highly technical cases cheaper. Unless insurers want to settle sooner. Well, I guess one could always go to pure no-fault, which is what will likely come with single payer.\

"Just because a reform may benefit an insurance company, doesn't mean it's evil."

Absolutely true. So how come you're never honest about the fact that the insurers are the real beneficiaries of your damage caps? It seems they're conspicuously absent when you're touting the "benefits" that never seem to appear.

Dan said...

Why do you assume every insurance company is going to pocket the money? They have to compete for business, so it would be in their interest to lower premiums as well.

"Suggestions on what? There is no way to make trying highly technical cases cheaper." Ooooh, I didn't realize we had reached legal nirvana. Sorry, no one had told me yet...

Again I am shocked that you can not come up with but one suggestion for improving the quality of our med mal legal system. Imagine if medicine had that attitude--we'd still have people dying of the bloody flux.

Michael Kirsch, M.D. said...

Dan, don't get overheated over this. I completely agree that nearly every physician admits that our health care system has flaws that need to be remedied. Imagine if doctors opposed new medical research on cures and treatments because it 'would be bad for business'. We all recognize this view as reprehensible. When the colonoscope is retired from use, I will use the new technologies to help my patients, although it will be at the expense of my income. Dan, if you're hoping for similar views and thinking from those who believe the medical liability system is sound and just, then you will need to have the patience of Job.

Dan said...

Sorry, my comment was supposed to be a little tongue in cheek, eye rolling etc., but I don't think that came through.

Anonymous said...

Interestingly, despite much criticism, neither of you have offered much in the way of "solutions" (other than caps of course) for the perceived errors in the legal system. Your solution of damage caps merely further weights justice in favor of the wealthier party. Which perhaps is your goal?

Anonymous said...

" Imagine if doctors opposed new medical research on cures and treatments because it 'would be bad for business'. We all recognize this view as reprehensible."

Imagine if they did it based on the guarantees of the United States Constitution? Think how meaningful that document would become to physicians, rather than just an impediment to their insurer's profits that it is now!

Michael Kirsch, M.D. said...

From today's New York Times, http://nyti.ms/9VeKn5 While this is not relevant to tort reform and medical liability, lawyer commenters can opine if this development shows honor on their profession.

Anonymous said...

Nice move, doc. Rather than address the fact that your claimed lofty goals are not met by your solution, or address the lack of solutions you propose, you use the actions of the few to try to paint the many.

That being said, I'm disappointed that this was all you could find to divert attention. A few administrators inflating grades? C'mon, there are practicing attorneys doing far worse, I'm sure.

If the other side of your insurance protection position were to highlight the acts of a few physicians bilking Medicare, for example, would that show honor on your profession? Like these fellows:

http://www.hhs.gov/news/press/2009pres/06/20090629b.html

http://www.hcpro.com/CCP-252137-862/Houston-physician-and-two-citizens-convicted-in-Medicare-fraud-scheme.html

I would say those and other examples do not reflect on your profession as a whole at all.
What reflects on your profession is how your profession responds to it. You cannot be held responsible for literally every thing another physician does. Only how you react. Likewise with attorneys (although your example isn't really a subject for the bar to address).

But, if one's goal is simply to tar others with things they have no control over in hopes of diverting from the lack of merit of your politics, I can see where you might take your tactic of leaving the subject at hand and throwing all you can at the wall to see what sticks.

Michael Kirsch, M.D. said...

TO Anonymous I respond, 'nice try'. To suggest that the Times article today http://nyti.ms/9VeKn5 is not a subject for the bar to address is mind boggling. With regard to tort reform and medical negligence, physicians are very clear on our views, which I will summarize:
(1) We believe that patients injured by negligent physicians should be fully compensated.
(2) We believe the system should be reformed so that the majority of physician defendants are not innocent, as is presently the case.
(3) We believe the system should be reformed so that the majority of patients who have been negligently harmed are not missed by the system, as is currently the case.
(4)We do not believe that 'caps' are ideal, although they have helped ease the crisis in some states (certainly in Ohio.) We recognize that caps will deny some deserving patients of their full deserved compensation.
(5) We believe that effective tort reform will reduce our practice of defensive medicine, which would save billions of dollars and spare patients from risks and expense of unneeded medical care.
(6) We acknowledge that the medical profession has not provided sufficient oversight over its profession
(7) We are dismayed that plaintiff attorneys and their supporters do not believe that the current system is flawed and won't consider any reform of the system, except for some trivial cosmetic changes.

Those are my thoughts. Do you or other commenters find them unreasonable?

Anonymous said...

"To suggest that the Times article today http://nyti.ms/9VeKn5 is not a subject for the bar to address is mind boggling."

Your knowledge of the law is failing you, which is why so much of your "reform" fails. Why physicians don't work on reforming a system they actually know about as opposed to one they don't never ceases to amaze. Your average state bar and state Supreme Court which regulates attorneys has little control over law school administrators. It governs the practice of law, of which this is not.

I've read your "thoughts" multiple times, yet your sole remedy continues to be caps. You continue to assert that they "ease the crisis in some states" yet there is little to no objective evidence of this (and why some but not all if they're so great"). You also claim there will be less defensive medicine, but after 4 decades of caps, this claim is patently false. Since you never define how they will "ease" things, nor for how long, this claim is simply lobbyistspeak.

Your previously stated goals of compensating more people faster are great. Yet we both know that these are not the goals of your proposed solution - caps. Why? For the quite obvious reason that your insurers don't want to pay anyone faster or make it easier or cheaper for claims to be filed. In fact, they want just the opposite, because it supports their bottom line.

The actions do not now, and have never, matched up with your goals. That's why your constant repetition of your goals seem more and more disingenuous with every telling.

Dan said...

Anon: "yet your sole remedy continues to be caps"

From Dr. Kirsch, previously in these comments:

"We need a filter up front to screen out cases like mine that should never have been filed in the first place. As you know, there are those who propose to reengineer the system entirely, either with health courts, or a no fault system of compensating injured patients. Every system is flawed, but I think the weaknesses in the current system demand reform."

Anonymous said...

That's a great discussion point, but I can't find that legislation - can you?

As to this filter - I've heard him say that many times, but no one has explained how this screen would work, so it's impossible to comment on.

Likewise with the other proposals, although health courts are just backdoor caps. And they don't seem to be any cheaper for the public.

Michael Kirsch, M.D. said...

Some here have accused me of relying upon 'anecdote and experience' in fashioning my view that the current medical liability system is dysfunctional and unfair. Please read this very brief article from Washington Post reporting on a medical study of the issue in a prestigious medical journal. This is published data, not 'anecdotal' accounts. Open minded folks can change their minds when confronted with persuasive data that contradicts their views. Close minded folks will simply attack the data. Read, enjoy and comment. http://bit.ly/deGSoC

Anonymous said...

I don't think anyone is disputing that physicians blame overtesting on lawsuits and believe we need reform.

What people dispute is, and what your survey of physicians doesn't prove is any of the following contentions:

1. That your tort reform reduces healthcare costs.

2. That your tort reform reduces overtesting.

3. That more tort reform = more physicians.

4. That defensive medicine actually reduces your risk of being sued.

5. That tort reform does any of the things its backers promise it will do. I should say public backers - its private backers quite clearly get their risk reduced, which is the point.

All your "data" shows is that physicians blame lawsuits for their overtesting and want tort reform, a point no one disputed.

Michael Kirsch, M.D. said...

@anonymous, thanks for your comment and reading the link I provided. It is clear that you do not believe that tort reform would offer any benefit to the system or to the public. Ideological rigidity, in the face of conflicting evidence,erodes credibility. Throughout this blog, I have pointed out various aspects of the medical profession that need healing; and I have taken some heat from it. To pretend that the medical profession needs no serious reform would eliminate me as a responsible voice on the issue. Nevertheless, although I disagree with you deeply, I thank you again for sharing your views.

Anonymous said...

"It is clear that you do not believe that tort reform would offer any benefit to the system or to the public."

I don't think you read what I wrote. It's not that I believe that it won't. It's that the evidence shows that it hasn't. My beliefs follow the facts.

It's ironic that the person who supports a solution that for decades has never been shown to achieve the claims its supposed to accuses another of "ideological rigidity".

You're not disagreeing with me. You're disagreeing with four decades of evidence which show your claims of the benefits of the tort reform you support to be false.

In fact, we agree on your goals of improving it for the patient. We just disagree on your methods, which do not accomplish your goals and never have.

Anonymous said...

By the way, I don't believe your profession itself needs reform. I believe your payment system does. Your profession has a lot of quality people who don't remember when you were independent professionals and were paid as such.

And, if adherence to the US Constitution and the belief in a right to trial by jury, something enshrined in the Declaration of Independence as well, results in "ideological rigidity", well, color me rigid.

Michael Kirsch, M.D. said...

No, I do not wish to abrogate our right to a trial by jury, in response to the Independence Day commenter above. We also have a right 'to be let alone', a quote from Louis Brandeis. I have a right not be made a defendant in a medical malpractice lawsuit if it is clear from a review of the record that I bear no culpability. You claim that the discovery process is needed to determine this, and I disagree. There are many cases where it is obvious without any discovery that a physician should not be sued. Incidentally, though I am not an attorney, as commenters often point out, aren't there areas of the law, such as bankruptcy, where no jury sits because of the complex nature of these cases?

Anonymous said...

"I have a right not be made a defendant in a medical malpractice lawsuit if it is clear from a review of the record that I bear no culpability."

You're misunderstanding the term "right", or intentionally misusing it. You have no such "right".

As to simply relying on the records, perhaps you live in a place where records are never altered or fabricated. If so, kudos.

The complexity of those areas is not why a jury is not empaneled. There is nothing terribly complex about the vast majority of bankruptcies. You identify the creditors, identify the assets, and follow the statute. But even in patent cases, which are as complex as medical malpractice, one is entitled to a jury.

But if you don't wish to abrogate our right to a trial by jury, why do you support things that do just that? Again, your actions seem to go in a different direction than your rather noble words.

Anonymous said...

I would also think a physician, of all professions, would be very careful about bandying about the phrase "rights", when whether his own services are a "right" the public is entitled to is currently being debated feverishly.

Michael Kirsch, M.D. said...

Here's my view on if health care is a right, if you are interested. http://bit.ly/3JMqV

Anonymous said...

You're actually more circumspect that I would be. I would say it is most certainly NOT a right. If as a society we choose to provide it communally, that's up to us, but that doesn't let it rise to an individual right in the sense that it cannot be revoked. Absent a Constitutional Amendment, that is.

Anonymous said...

Michael, how 'bout let's dispense with the idea that you don't have time to read a book, okay? Every time a doctor hides behind that "I don't have time" baloney I want to barf.

You have as much time as anyone does. What you have that others don't is a culture-sanctioned excuse not to read the one book that would enhance YOUR credibilty on the subject of malpractice.

You're not special. You have as much time as plenty of busy people in all other fields of endeavor -- you have more than many of them. Please stop with the "I'm too busy" act. Please. It's genuinely sickening. Doctors are nothing but glorified technicians. Most of you don't have the education an ordinary college professor has. You would do well not to take yourself quite so seriously.

Don't forget that the third or fourth or second (it varies from year to year) cause of death in this country is medical mistakes. You guys get far too much special treatment as it is. Medical Boards are nothing more than a bad-doctor protection society. Somebody's got to police you guys. Thank God for medical malpractice lawyers. They're all we've got. If you're the competent doctor you say you are, you don't have a thing to worry about. Just be sure you're not guilty of protecting the incompetent/dangerous practictioners you come into contact with, all the time, who practice sub-standard to dangerous medicine on an unsuspecting public, protected only by their right to sue when they're injured by one of you. Turn those bastards in. It's the one thing you can do to boost your profession's waning respectability.

And one last thing. Putting your real name on your posts has zero effect on the validity of what you say. Likewise, posting anonymously has nothing to do with the value of the anonymous post. Sometimes people have excellent reasons for protecting their identities -- reasons you don't need to know.

He that hath ears, etc.

medical records management said...

I actually agree with the writer of this post.
Most important thing - "Keep in mind that the actual costs of litigation are but a fraction of the costs of the medical liability system."
And keep that in mind!

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