Myths About Medical Malpractice

Myths About Medical Malpractice

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A few days ago, I found myself involved in a debate over malpractice suits on The Heath Care Blog. One reader on the thread explained why, in his view, we need some type of tort reform: “What drives physicians to practice defensive medicine is the total lack of objectivity, fairness and consistency both across jurisdictions and even within a jurisdiction as to how medical disputes are decided. Juries of lay people who cannot understand the often conflicting scientific claims in these cases can be easily swayed by emotion and sympathy for injured plaintiffs.

“The inclination to practice defensively is especially prevalent in ER’s when the doctor and the patient often don’t know each other and there is time pressure to determine a diagnosis and send the patient on his or her way,” he added. “I’ve heard from plenty of doctors who work in inner city ER’s that even poor people are not shy about suing when there is a bad outcome if they can find a lawyer to take their case which they often can.”

This comment pretty well sums up the conventional wisdom about medical malpractice cases: Juries are not objective, don’t understand the evidence, and tend to sympathize with the patient. Meanwhile, doctors should be wary of those low-income patients in ERs. Americans are litigious by nature and if patients are not entirely happy with the outcome, they’ll jump at an opportunity to turn misfortune into a payday. Poor people, who need the money, are even more likely to try to “score.”

Those are the fictions.

Here are the facts, according to Drs. John Glasson, and David Orentlicher, writing in JAMA:

“Over the years, our understanding of medical malpractice has been plagued by a number of myths, many of which have been exposed by a remarkable series of reports.” ( Here, they footnote studies published in as number of peer-reviewed medical journals. ) “As a result of these reports, and contrary to popular belief,” they add, we know that “adverse events due to negligent practice rarely result in a lawsuit (only 2% of such events lead to malpractice claims), juries are not systematically biased against physicians (malpractice defendants win more than two thirds of cases, a better record than defendants in other kinds of personal injury cases), and juries decide cases on the basis of the physician’s quality of care rather than the patient’s severity of injury.”

The Difference between Malpractice and Other Personal Injury Cases

We have had this information for years. Glasson and Orentlicher published their piece in the early 1990s. Since then, newer research has only confirmed the critical difference between medical malpractice cases and other personal injury lawsuits. Writing in Emergency Medicine News, Dr. Jonathan Glauser, an ER physician at the Cleveland Clinic, points out that “While plaintiffs win an average of 50 percent of all personal injury cases, recent evidence reveals that Medical malpractice represents a consistent deviation from that average. In 2001 a large study showed plaintiffs winning only 27% of [malpractice] cases, while in 2006, a smaller study found them winning only 21 percent of the time.”

Glauser goes on to report that that “a more exhaustive investigation done in 2007, which looked at independent evaluations of cases by medical and legal experts, found that even when plaintiffs have “strong evidence of negligence,” they win only about half of the time. (Mich Law Rev 2007;105:1454.)

“Generally the assessment [of the evidence] was made by one or more physicians,” Glauser notes, and “the results are surprising but consistent.”) He then points to yet another study of malpractice cases, where the win rate was even lower –just 42 percent– even in cases where physicians assessing the claims concluded that “the quality of care was poor.” (Ann Intern Med 1992;117:780.)

It is difficult to explain the difference between malpractice cases and other personal injury claims. Why are plaintiffs more likely to prevail if they sue an automaker claiming that a defect in the design of the car caused an accident, than if they sue a hospital or a doctor? “Some experts say juries tend not to grasp complexities, which each side tends to introduce into a case, and therefore the juries side with the doctor,” Glauser explains. “In cases like these, the jury gives the physician the benefit of the doubt that his management was consistent with good medical practice when there is an appearance of legitimate conflict. Case complexity favors defendants, or so say some experts.”

I would add that most Americans trust their doctors. They also want to believe that our hospitals are safe. Few are eager to know how many hospital patients are killed or permanently injured by medical mistake. When it comes to the question of whether a large corporation will knowingly sell an unsafe product, consumers are far more cynical.

At Best, Perhaps Five Out of Six Plaintiffs Find Justice

In 2006, the NEJM published a review of malpractice claims sponsored by Harvard’s School of Public Health which has come to be seen as the gold standard for such research. The authors (who included Harvard surgeon Atul Gawande) argued that earlier studies had been flawed in various ways. Some “focused only on a small numbers of claims, a single hospital, insurer, specialty, or type of injury; others used very limited information in the determination of merit, or relied on the insurer’s view of the defensibility of the claim as a proxy for merit rather than on independent expert judgments.”

This study was designed to avoid those limitations. Independent physicians reviewed 1452 closed claims involving five malpractice insurance companies in four regions of the United States. The suits covered approximately 33,000 physicians, 61 acute care hospitals (35 of them academic and 26 nonacademic), and 428 outpatient facilities. In each case, physician-reviewers were examining cases in their own specialty.\

Reviewers followed the Institute of Medicine’s definition of error: “the failure of a planned action to be completed as intended (i.e. error of execution) or the use of a wrong plan to achieve an aim (i.e., error of planning).”

The results of this larger, more carefully controlled study confirmed that juries seem to favor the defendant in a malpractice trial. When physician-reviewers were asked about the fairness of the verdicts, and whether medical error caused the poor outcomes, they concluded that “one in six claims involved errors but received no payment.” As a result, the authors point out: plaintiffs were forced to “shoulder the substantial economic and noneconomic burdens that flow from preventable injury.”

“One in six” (or 16 percent) is better than 50 percent. But it is worth noting that the physician-reviewers deemed 23 percent of the cases “too close to call.” After considering all of the details, they couldn’t decide whether a bad outcome was due to negligence. (Glauser also points out that when independent doctors evaluate the merits of malpractice suits, they disagree with each other about one-third of the time.)

Those “too close to call” claims were (rightly) excluded from the final tally. But assuming, for the sake of argument, that in one-third of those ambiguous cases, a medical error did cause injury, the percent of worthy, but unrequited claims might run as high as 24 percent. (Obviously “one-third” is an arbitrary shot-in-the-dark. We just don’t know. )

How Often Do Patients Win Awards When No Error Was Made?

When it comes to the fairness of financial awards, the physician-reviewers found “Plaintiffs were paid in cases where the reviewers found no error only 10 percent of the time. Plaintiffs were NOT PAID in cases where the reviewer found that there Was error 16 percent of the time. Thus, nonpayment of claims with merit occurred more frequently than did payment of claims that were not associated with errors or injuries. ”

It may be heartening to read that in cases where the reviewers found evidence of errors, plaintiffs were paid 84% of the time. But the fact plaintiffs won damages when the reviewers saw no evidence of malpractice in 10% of all case is extremely disturbing. Imagine the damage not only to a doctor’s reputation but to his psychic health when an award is made, even though he or she did not make a mistake. Just being sued is a hellish experience; being found guilty when you did no wrong is an injustice that could make a person want to give up the practice of medicine. (This is one reason why I would like to see our malpractice system focus on “How can we prevent this from happening again?” rather than “Who is to blame?”)

How could so many patients win awards in cases where there appears to have been no malpractice? Juries and even judges are human. A charismatic trial attorney may sway the jury; an unattractive, arrogant, or unrepentant defendant may prejudice his own case. More importantly, medicine is shot through with uncertainty.

Note that when the physicians who reviewed the cases in the Harvard study were asked to rate their judgments using a 6-point confidence scale, they reported that they had a “high level of confidence” in their assessment of the case only 44 percent of the cases. This signals that, in some cases where they found no error, they may have been wrong. Of course, when they found negligence, they also could have been mistaken. Though in cases where they genuinely were not sure, physician- reviewers might be more likely to see the case through the doctor’s eyes and err in his favor.

Finally, one might wonder, how could a case in which no mistake was made ever get to court? Here the problem is that when a doctor or hospital is sued, they usually stonewall the plaintiff and his or her attorneys. The defendant’s lawyers instruct them not to talk to the patient or her family. Nurses or others who witnessed the event are told to clam up. Often, the only way a patient or her relatives can find out “what happened” is by suing.

The authors of the Harvard School of Public Health Study explain that when they looked at the claims where reviewers found no error, these suits did not fit the popular profile of “frivolous” suits bought by “opportunistic trial lawyers pursuing questionable lawsuits . . . Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts and sharing of information that litigation triggers. Previous research has described tort litigation as a process in which information is cumulatively acquired.”

Preparing for trial involves a process which lawyers call “discovery.” Typically, the plaintiff asks the defendant to open his files and computers to produce documents which may show what actually happened. If the plaintiff asks for 100 documents, the attorney for the defendant sends him 1000, maybe 2000. (This is what litigators call “burying the other guy in paper.”) Discovery can drag on for a year or two.

Depositions also yield information. But if a case is complex and involves many actors, it could be at least two years before the plaintiff and his attorney begin to figure out what probably happened. (This goes a long way toward explaining why cases that involved no medical error wind up in the system.)

At that point, both parties have invested an enormous amount of time and money. Acrimony has built. One or both may refuse to settle. In cases where the doctor or hospital are quite certain that they are innocent, they are more likely to insist on going on to court. Insurers may press for a settlement, but reviewers have found that when the evidence against the health care provider is weak, the case is more likely to go to trial.

“Most of These Very Poor People Don’t Make Waves.”

Who brings malpractice claims? In the Harvard study of 1452 claims, sixty percent of the plaintiffs were female. The median age of the plaintiffs was 38 years; 19 percent were newborns, and just 12 percent were 65 years of age or older. Obstetrician-gynecologists were the most frequently sued (19 percent), followed by general surgeons (17 percent), and primary care physicians (16 percent).

As for the idea that poor patients are more likely to sue, a 2009 article published on ACP Internist , a blog sponsored by the American College of Physicians, notes that while “Many doctors think it is ‘poor patients on welfare’” who sue, “evidence shows that low income patients on Medicaid are actually less likely to sue than others.”

The research is consistent. Another study, published in JAMA looked at lawsuits at 51 hospitals in New York State: “Poor and uninsured patients are significantly less likely to sue for malpractice, even after controlling for the presence of medical injury,” the authors wrote. “Fear of malpractice risk should not be a significant factor in the decision to serve the poor. Tort reforms that would protect physicians who serve the medically indigent from malpractice suits may not be warranted.”

I cannot help but be reminded of what Dr. Liz Dreesen, a physician who had practiced in a small mill town in North Carolina, told me when I was writing Money-Driven Medicine: “Most of these very poor people don’t make waves.” The indigent are not demanding. In the game of life, they are accustomed to losing, and as a result, they are not as likely to be as shocked or indignant as you or I might be if we were injured because someone forgot to wash his hands.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

In Part 2 of this post, I will write about possible solutions to what Atul Gawande has called “the malpractice mess”: caps on awards (including a bill that is now in the House) and “health courts,” where an expert judge makes the decisions. I also will discuss the uncertainties of medicine which can make it so difficult, even for a physician, let alone a judge, to discern whether medical error caused a poor outcome. Finally, I’ll focus on the high cost of lawsuits, and explain why “apology and disclosure” makes far more sense than the bitter and costly adversarial system that we now use to try to sort out “what happened.”

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117 Comments on "Myths About Medical Malpractice"


Guest
rbaer
Jul 5, 2011

An interesting summary, but I find it, in the end, confused. The 2 major problems, IMHO, are:

1) the definition of “error” or “mistake”. A misdiagnosis, at least in retrospect, always appears preventable, while in reality, that often is not the case (hidsight bias well documented not only in psychology, but in medicine). Who is not committing mistakes? Everyone is making “mistakes” once in a while, be it in traffic, inpersonal life or at work. Only very few of these mistakes result in catastrophic outcomes (e.g. a car accident with injury); that has to do with control/safety mechanisms incl. the alertness of others (e.g. the other driver avoiding collision) and often just with pure chance. Physicians committ diagnostic mistakes by nature, and they usually see between 10 and 50 patients per day. Every one of these encounters may turn into a poor outcome (be it related or unrelated) and may be part of later litigation.

Actually, many courts actually acknowledge that physicians do make mistakes, like everyone else. Therefore, the proper legal concept is “negligence”, not “error”. A physician who fails to make a diagnosis made an error. A physician who fails to make a difficult diagnosis because he/she did not examine the patient (or did not react to the radiologist’s call about a worrisome finding) is negligent. I completely agree that negligence needs to be aggressively pursued in court or otherwise; diagnostic errors probably should be examined by the specialty board, esp. if they are grave or if there are repeated occurences that suggest incompetence.
http://www.acr.org/SecondaryMainMenuCategories/mbr_chapter/FeaturedCategories/volunteer_svcs/Volunteer-Services_1/Commission-and-Committees/Specialty-Commissions/gpr-srp/MedicalLegalCommittee/MalpracticeWisconsinDecisionDoc6.aspx

Unfortunately, this reasonable approach is often replaced by the concept of “standard of care”, by which partisan experts testify that substandard care was provided and any other reasonable physician of the same specialty would have done the decisions that would have been (or better, in retrospect are found to be) right (or you hear the opposite from the defendant’s expert).

2) Ms. Mahar emphasizes that courts often favor the defendant, even though the facts suggest wrongdoing.
It cannot be overstated that it matters not that much what the actual outcomes of litigation are. Most providers are scared to go to trial at all – it means weeks if not months of decreased productivity and emotional stress. The outcome is – as with all complex jury trials – very difficult to predict with certainty (that’s why a lot if not most cases get settled).
In short, the medicolegal threat is not only the threat of verdict, it is rather the threat of being involved in any legal action as a plaintiff.

Ms Mahar has interviewed many physicians for her book (“Money driven medicine”). I wish she would have done a similar effort for this post. My personal estimate is that 80-90% of physicians, regardless of their views on HC policy and politics in general, perceive an unfair medicolegal threat; there is a reason for that. You cannot simply talk or wish it away.

Guest
Jul 5, 2011

Excellent post, and completely agree.

Guest
Craig "Quack" Vickstrom, M.D.
Jul 5, 2011

Agree as well.

Guest

Perhaps what we need is a free national database which shows the history of a providers services – good or bad. To get information on malpractice claims on a medical provider of service is not that easy- these are paid services which usually allow you to get only individual records at a price. These are just my thoughts but it should be done. Ingenix for example has a free databse where we can check out cost per treatment based on the usual reasonable customary charge, shouldnt we have access to this information as taxpayers at the very least????

Guest
Craig "Quack" Vickstrom, M.D.
Jul 5, 2011

Ms. Mahar,

Reading your article, with all its facts and figures, makes me feel so much better. I now realize that all my fears were for naught, and that I should just go about my merry way. Thank you ever so much for this article, which is very helpful for everyday medical practice.

Guest
MD as HELL
Jul 5, 2011

Better picture.

My eyes still glaze over.

To address your point regarding only 2% or 1 in 50: Which 1 out of 50, and what is considered either a negligent act or a negligent omission? They all are potential plaintiffs. They all get “standard of care treatment” which is that care provided by any physician in the area with the same training and credentials. Standard of care is determined every time there is a jury verdict in a case.

To address your point regarding only 27% of plaintiffs win, that is the number who win in court. That excludes the number who win a settlement prior to court.

Remember you are writing about defensive medicine in the ER and you are trying to show there is no valid reason for the practice. I assure you the doctor is trying to become suit-proof. i do not want to defend a case after the fact. I want the record to keep the willing attorney from pursuing me.

Prior to filing a complaint attorneys send cases out to experts for review. I want the expert to tell the lawyer they have no case. This is before a complaint is filed. Before discovery. Before depositions. Before demand letters. Before mediation.

Your article starts well after the care of the patient is over. All your studies are about filed cases. I do not want to be one of those.

When i started practice I believed I would not have to p[ractice defensive medicine. Silly me. ER docs are fools to think they should not get that CT scan because some alleged evidence algorythm says the chances of a positive are only 6%. Already that is more than 1 in 50.

I have been sued twice. Settled once ( a mistake I made out of sheer terror.) Won the second in court. i will never settle again. I fully expect I can be sued again.

I am good at what I do, but there are always features that require defensive considerations.

I can hardly wait for part two.

Guest
Nate Ogden
Jul 8, 2011

MD does your malpratice insurance give you a say in claims being setteled or not? Our E&O doesn’t give us a choice, if they want to settle no matter the facts they can. Either way we are liable for our deductible as well. Any case filed asking for less then the dedutible they settle becuase its not their money. One of the first questions attorney always ask is who is your carrier and whats your deductible.

I have heard that malpratice is headed in the same direction

Guest
MD as HELL
Jul 8, 2011

They cannot settle without my permission. There is no deductible. My insurance also covers defense in Medical Board actions, except sexual misconduct.

Guest
DeterminedMD
Jul 5, 2011

Sorry, I like things to be as simple as possible, and not over pontificate points so readers just get lost in trying to digest the endless statistics and statements by “experts” that are not so unbiased and objective as they claim to be.

Let’s be frank and candid here, everyone who lives and interacts with the world has some agenda. I do, and that agenda is being able to practice medicine the way I was trained and help people help themselves, while staying in the boundaries of responsible, ethical, and appropriate diagnosing, treating, and maintaining functional and healthy choices and lifestyles. Those who I have treated, am treating, and work with me as health care providers know I am the real deal. I care about people, and again, to be frank, find that some people who speak out about health care issues, the way I have read since this PPACA process first began over 2 years ago, have that concern of really caring about the majority of society as far back in their minds as those thoughts can go.

By the way, life is basically a bell curve, so to really examine this malpractice issue, throw out the 20% suits due to incompetent and impaired physicians, which if I am correct do make a sizeable percentage of the total lawsuits to begin with, and also the polar opposite 20% lawyer driven profit agenda of sue to force insurers to settle (which still is a blemish on the doctor’s record by the way). Then we can look at the true gray of the 60% middle that is the meat of the argument. And I would be willing to take the risk and state very clearly the numbers are going to be close to 50-50 of either equal fault as much as one side being sizeably more at fault for the negative outcome that is in front of the court.

Face it, no one is a pure victim and completely unfaulted for at least 75% of the complaints that end up in lawsuits. Doctors care too little, others care too much, patients don’t follow treatment interventions, and others expect the full court press even when the proverbial game is out of reach, Hospitals offer too much and then provide too little, other non physician health care providers claim too much ability and then run at the first hint of trouble, families can’t handle pain and suffering and don’t want to accept their roles as supports and allies in the process. Insurers claim to have univeral coverage and then can’t be found in the universe to pay for what is the standards of care, politicians want to be referees yet more often are in the pockets of players in the proverbial game of fair ball ruled by who has the most money at the end of the “game” wins.

Gee, do you think some of these other elements in this clash of patient versus doctor in a court of law is considered in this battle? Random chance is one out of 20. And yet you don’t read about many suits against hospitals or insurers, governments or poorly invested family members, other providers or Specialty Boards that never disciplined targeted colleagues.

And yet it is just about poor care by inappropriate doctors. Not that simple when you look at the meat of the bell curve, eh?

Just one question, if Ms Mahar would be willing to entertain it and give as simple and direct an answer as possible: if PPACA would be shelved and reconsidered by a truly invested bipartisan Congress, would you speak positively in pursuit of that action?

Guess I wasn’t as simple as possible in this reply.

Guest
DeterminedMD
Jul 5, 2011

By the way, after the ruling today in the Casey Anthony trial, what does this say about a jury of our “peers”? She was found not guilty of any type of foul play per her daughter’s demise, and yet found guilty of four counts of lying?!

Umm, has the adage of “deeds not words define us” died in the past decade or so, and I missed the obituary? And those of us who are attentive and realistic of how a sizeable portion of those in society can stoop so low just to clear their own consciences, we have to put our faith and hope in this system? And I am not asking nor inviting a diversion into this story, just relating how juries can come to conclusions not even a schizophrenic can conjure up in his/her own bizarre delusions. Per Lauren above, there should be a review system for medical malpractice cases that does separate it from other disability review processes.

But, again I know in my heart, Ms Mahar does not have the general well being and welfare of medical doctors as her primary objective. And this post does not dissuade me from thinking otherwise. I will be interested to read Part 2 to see where the gist of her position will conclude.

Guest
MG
Jul 6, 2011

So 1 case supposedly becomes representative of the US legal system and the validity of the jury-based system?

If Casey Anthony wasn’t white, young and good-looking, and from a moderately middle class family background, this trial would have never gotten any national attention.

Guest
steve
Jul 5, 2011

Of note, European countries have little or no malpractice litigation, and have medicine on par with ours. Malpractice suits do not appear to improve the quality of medicine being practiced as is often claimed.

Also, we have the Texas experience where we see that reform did not decrease spending.

http://theincidentaleconomist.com/wordpress/reader-question-doesnt-texas-prove-you-wrong/

Steve

Guest
MD as HELL
Jul 5, 2011

My deleted post ws perfectly appropriate and on target, Matthew.

Guest
Barry Carol
Jul 6, 2011

Determined MD —

You can read part two now over at http://www.healthbeatblog.org. It was posted there on June 30th.

Guest
Barry Carol
Jul 6, 2011

rbaer –

Since you are more familiar with how medicine is practiced in Europe than most of us and you currently practice in the U.S., I would be interested in your thoughts about how our medical tort system could be changed, short of complete immunity for medical negligence or some sort of no fault system, to get sufficient buy-in from doctors to materially reduce their perceived need to practice defensive medicine. Specifically, would health courts and safe harbor protection for following evidence based guidelines change the way you and your colleagues practice? How easy would it be to quickly determine whether the doctor made an error or mistake but was not negligent? Or, does the whole issue have more to do with patient attitudes and expectations and their willingness to often at least try to sue when there is a bad outcome?

Guest
rbaer
Jul 6, 2011

A quick and IMHO effective fix would be to allow judges to dismiss lawsuits that are based on a physician’s alleged deficient judgment (i.e. in a complex situation, a physician made a judgment call , which in retrospect is found/thought to be supoptimal). This has been suggested already:
http://www.academicins.com/articles/3058_021d_04_Haskel-final.pdf
(as a side note, IMHO caps don’t do much).

If we did introduce the above, one should consider starting a different quality control mechanism (to make up for the strong but entirely dysfunctional medicolegal threat that currently exists but would be weakened). I would suggest that any cases that suggest poor (POOR, not just: in retrospect thought to be suboptimal) judgment/expertise go to the specialty board for review, and the specialty board should have a variety of reactions (dismissal, citation, rexamination in the area the practitioner is found to be deficient based on the case at hand, up to withdrawal of board certification and/or of the medical license in extreme cases).

I think that ideally, litigation should be handled by a health court: an experienced judge sends the completely anonymized cases for out of state peer review (one could even try to mask the final diagnosis and outcome to prevent hindsight- and outcome bias), say 2-3 physicians of the same background. These 2 or 3 physicians would be reasonably but not excessively compensated (expert compensation currently often is excessive) and should have diverse backgrounds (i.e. private practice, academia). After these initial reviews, the judge could decide to dismiss the case, to notify the respective state and/or specialty board for suspected incompetence or to proceed with a conventional jury trial (that could be jury based, or – IMHO the much better option – would be done by a panel of experienced judges).

The reason why litigation is not as rampant in Europe (I can mostly speak for Germany) are cultural and due to financial reasons (financial damages are much less, and the economic damages – i.e. loss of work productivity – are often covered by different mechanisms, i.e. an injured patient is usually not in desperate need to receive large payments because he/she is covered by other systems).

Patient attitudes also play a role. US Americans often pay fortunes for their care (usually via 3rd party, but nevertheless), and they – not always unreasonably – expect a high degree of perfection. My impression is that you can get away – statistically – with more incompetence and/or negligence in Europe, but my experience is a decade old and not super extensive.

“How easy would it be to quickly determine whether the doctor made an error or mistake but was not negligent?” Unfortunately, many cases will be in the middle, expecially considering that poor outcomes due to substandard care involves a variety of mistakes/decisions, by a variety of actors and systems. That’s why qualified, impartial peer review is needed. Partisan experts often just cherry pick depending on pays.

“Specifically, would health courts and safe harbor protection for following evidence based guidelines change the way you and your colleagues practice?” Patient expectations do play a role. Many (but not all) patients expect diagnoses to be made right away, while it would be entirely reasonable to wait with huge dx work ups for most cases.
I strongly believe you have to shield a doctor’s good faith medical judgment from lawsuits (in order to decrease defensive medicine), and you also have to educate patients with regards to their expectations, and maybe give them financial (dis)incentives not to go to the physician and unreasonably demand test/scan/referral XY, pronto (in order to decrease patient driven nonsense).

Guest
Cory
Jul 6, 2011

Maggie:
I do a lot of consulting work on malpractice (as opposed to expert work).
Very few doctors understand the malpractice system. Most of what you report is true, but let me add a comment or two.
the biggest problem doctors (and writers) have in understanding malpractice is that it is not intended to bring ” justice” and it is not even intended to correct errors (altho that is clearly a secondary benefit in some cases).
At its essence, malpractice is simply a forum to adjudicate disputes. A doctor, hospital or nurses says X, a plaintiff says Y. The entire complex system is built around settling that dispute. The medical literature on errors is incomplete because any lawyer will tell you that demonstrating an error is only feature of a malpractice case – along with duty, causation, damages, etc. The main way to correct errors is thru the medical system, not the legal one.
Lots of bad medicine is not adjudged to be malpractice and occasionally good medicine is adjudged that way (not often but once in a while). The motivations of plaintiffs, poor or rich, vary widely – from outright greed to indignation to looking for justice. And the good guys don’t always win- in fact sometime it’s hard to tell who the good guys are.
Defensive medicine is a popular concept but when you ask professionals to analyze it intellectually and not by anecdote, they usually fail which tells you something.
I can’t comment on limiting damages because that has complicated legal implications but health courts would be a terrible idea. Of course juries are not sophisticated -the job of good attorneys and doctors is to educate them. Health courts would lend a factor of bias – and violate the basic principle that we want to be judged by regular people. once we start judging with the elite, all sorts of new problems creep in.
It’s by no means a perfect system, there is plenty that could be better. There is unfairness to doctors, hospitals, patients and occasionally even lawyers. But for deciding disputes, that just happen to be in the medical arena, it would be hard to configure a system that is better overall.

Guest
Nate Ogden
Jul 6, 2011

I tried to find the back up for your studies and everything is hidden behind subscriptions. Do you have a link were we can see the data to support these claims?

“(only 2% of such events lead to malpractice claims)”

This is a meaningless number meant to bias the argument. A ratio of lawsuits to adverse events is a meaningless and invalid argument because malpractice requires harm. Is the 2% based on the number of errors or the number of people harmed and what definition did they use for harm?

“juries are not systematically biased against physicians (malpractice defendants win more than two thirds of cases, a better record than defendants in other kinds of personal injury cases)”

This is proof of frivolous lawsuits, you just disproved your own argument. Why are 66% of lawsuits won by defendants if they weren’t bad lawsuits? Further you can’t support your argument with this misuse of math again, you can’t measure bias by statistical outcomes. As much as liberals like to label people racist or sexist with their abuse of statistics it is junk science. Oddly this science doesn’t apply to the NBA where 80% of the players are black, I love science that comes with footnotes and exceptions. How can you compare the clear cut evidence of an auto accident to medical malpractice then claim some ratios explain it all?

“ER physician at the Cleveland Clinic, points out that “While plaintiffs win an average of 50 percent of all personal injury cases, recent evidence reveals that Medical malpractice represents a consistent deviation from that average. In 2001 a large study showed plaintiffs winning only 27% of [malpractice] cases, while in 2006, a smaller study found them winning only 21 percent of the time.”

How can you cite a study saying 73 to 79% of doctors win malpractice compared to 50% of other injury lawsuits right after you dismiss defensive medicine? How do those 79% of doctors prevent themselves from getting sued again, a harder suit to win since they now have a history of malpractice lawsuits?

“found that even when plaintiffs have “strong evidence of negligence,” they win only about half of the time.”

Again negligence is not a tort, harming someone is. This study tells me someone people are using the legal process to extort damages from doctors for human errors when they suffered no harm, exactly the fear that leads to defensive medicine.

“which has come to be seen as the gold standard”

LOL, channeling your inner Ezra Klien? I love how you liberals self label gold standards to support your arguments, it’s like they teach this in Flaming Liberal 101. We have Lewin Group and now the Harvard Study, where does one apply for these honorary gold standards you so freely give out?

“Reviewers followed the Institute of Medicine’s definition of error: “the failure of a planned action to be completed as intended (i.e. error of execution) or the use of a wrong plan to achieve an aim (i.e., error of planning).”

Neither of these rise to the standard of a tort. I’m sure any doctor on here could think of a thousand honest reasons something didn’t get completed as intended or plan turned out wrong. Your apply a computer logic type of care, which might be the way to practice 90% of the time but what about the other 10%, do we want doctors to stop having hunches, ignore that feeling in their gut? If they don’t then their guilty of malpractice even if the other path would have turned out correct and saved lives, that’s not defensive medicine?

Error, poor outcomes, not once do I see reference to hard, neither of the standards they use are the standard used in court, the more you quote the more this gold standard appears to be more academic drivel. Malpratice cases are settled based on the standards set by law, any study not using those same standards is propaganda junk, even if it was done by Haaaaarvaaaard.

Beating a dead argument is like beating a dead horse

“Plaintiffs were paid in cases where the reviewers found no error only 10 percent of the time. Plaintiffs were NOT PAID in cases where the reviewer found that there Was error 16 percent of the time. Thus, nonpayment of claims with merit occurred more frequently than did payment of claims that were not associated with errors or injuries. ”

Its not illegal not a tort to make an error. I would expect the no payment with error to be 100% higher because with no error there should have been no lawsuit, even with error but no hard there are no damages to award. Your defeating your own argument.

Guest
Tim
Jul 6, 2011

Let’s just stipulate that everything Maggie says here is true. I do agree that juries tend to favor doctors in trials. But it is irrelevant. Every statistic is just a probability, abstracted. When you are the personal target of the probability, you don’t step back to some objective space and evaluate the studies; you minimize your personal risks.

If you had a 10% chance of — no, a 1% chance of the plane crashing, would you ever get on a plane? If Harvard proved to you that one in every hundred planes will crash, what would be your rational response? You would never get on a plane.

The ambulance chasers understand what journalists apparently cannot grasp. Assume I’m an ambulance chaser and I know what Atul Gawande knows. So I know that 10% of the claims I file that actually make it to a jury will return money back to me — a lot of money. I also know that the doctor I sue believes that juries are stupid. (One of Maggie’s “fictions”; for me, it is not a bug but a feature.) Actually, all I need him to believe is that juries are often stupid, or can occasionally be massively stupid. (see, Simpson, O.J.) I know that the target doctor believes his career can be ended by one such stupid jury, and he does not know which one he will get. My target is not reading Gawande; he is comparing his lifetime earnings without the stupid jury versus those same earnings after the stupid jury, and fingering the settlement offer which will make it go away. (There is an old saying: the devil comes to you when you are tired and makes a reasonable offer.)

I also know that it costs me much less to keep the case going than it costs the doctor. I can get an expert to say what I need for about $3,000 – $5,000, maybe less. (The doctor will have to spend the same.) After that, it is my time versus the doctor’s time, plus the doctor’s lawyer’s time, plus the aggravation and turmoil the doctor is experiencing. (I’m a lawyer; we are genetically numb to aggravation and turmoil.)

I don’t really need to know “what happened”. (Smile) All I need to do is is write the claim as broadly as possible. (I have Microsoft Word template for this. Another fiction the plaintiff bar finds useful to perpetuate is that “these cases are expensive and no-one is going to pursue them when they don’t think they have a case.” Nonsense; they are not expensive, they are cheap. It takes them minutes to fill in the templated paperwork to file a suit, and their main cost is going to be an “expert”, which they can select out of a database they keep of retired physicians in that specialty who will sign their name for $5,000.)

It is not difficult for the doctor to tally a $50,000 legal bill for a case that never makes it past depositions. By the way, the function of a deposition in a malpractice lawsuit is not to “find out what happened” — how charming, that — but to find out whether the jury will like the doctor or not, and to put the doctor and his lawyer in a room spending more money than the deposing lawyer is spending.

By the way, the tactic of “burying the other side in paper” is very rare as a defense tactic in a malpractice case. It is useful as a plaintiff tactic, but seldom as a defense tactic. It is used to drive up costs and force a settlement.

By the way number two, this entire equation is unique to the medical malpractice industry. It has little to do with how other litigation works. The cost/benefit ratio of litigation is unique to every litigation line, and down to the level of individual judges.

But back to the subject: I think the point of the article is that doctors irrationally believe fictions about malpractice litigation. They might believe fictions, but none of this is the key to their behavior. They act rationally, so as to minimize their time as ducks in a shooting gallery. The plaintiff’s bar acts rationally, by shooting a lot of bullets at a lot of ducks.

The rest is blah, blah, blah.

Guest
Craig "Quack" Vickstrom, M.D.
Jul 6, 2011

‘But back to the subject: I think the point of the article is that doctors irrationally believe fictions about malpractice litigation. They might believe fictions, but none of this is the key to their behavior. They act rationally, so as to minimize their time as ducks in a shooting gallery. The plaintiff’s bar acts rationally, by shooting a lot of bullets at a lot of ducks.”

Nailed it.

Guest
MD as HELL
Jul 6, 2011

Nice shot.

Guest
Cory
Jul 6, 2011

Tim:
Two points- I don’t know how we judge whether suits are expensive or cheap to engage in for plaintiffs lawyers. I think it depends on the ultimate possibility of reward. Sure they can file cheaply and possibly get an expert for 5K. But I’ve seen a number of lawyers burn thru a year and 20 K to come up dry before even getting to settlement talks. Keep doing that and you will go out of business. In fact, I think many plaintiffs lawyers go into other areas for just that reason. There are few unsuccessful med-mal plaintiffs lawyers out there, not because it’s so easy but because only the “good” ones (and good doesn’t necessarily mean most righteous, no question) stay in the field. The others go into some other form of legal work.
Also on the point of depositions- I don’t know your experience. Certainly all the lawyers are checking out what kind of witness you will be. But it would be grossly inaccurate to tell the readers the purpose of a deposition is not to find out what happened. It’s not so much to find out what happened but to find out every person’s version of what happened, under oath. Let me know when you know of a better way of fact finding.

Guest
Barry Carol
Jul 6, 2011

rbaer —

Thanks for the thorough and comprehensive response. It makes a lot of sense to me.

Tim —

Thanks for the great color and perspective from the plaintiff lawyer’s standpoint.

Guest
Peter
Jul 6, 2011

rbaer, do you think people should pay for their “mistakes” if those mistakes harm someone, or I guess in the case of your auto example, something?

Guest
rbaer
Jul 6, 2011

Peter,

If it is just a professional mistake, no. You almost never will be able to sue a professional, say, a lawyer, investment banker or architect because something did not turn out well (unless you can prove that they acted in a negligent manner, e.g. the architect not doing a calculation that was obviously needed, or even committing fraud for personal motives).

However, if there is an egregious mistake or pattern of misjudgements suggesting incompetence, the state board and/or specialty board should examine and sanction if appropriate.

I strongly suggest you read the link that I copied into my very first response to the OP.