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 Responses for “Myths About Medical Malpractice”

  1. rbaer says:

    Maggie,

    Thank you for your reply. We may have more to agree on than I originally tought, but I still think that there are major issues you are very mistaken about, and as you are an influential person, I will try my best to explain my opinion.

    “Most importantly, the research shows that doctors really dont’s protect themselves by practicing defensive medicine.

    If they just go about their business, focusing on the patient (not their fear of being sued), doing their best to practice patient-centered, evidence-based medicine, sharing decision-making with the patient (which means giving the patient all of the facts about potential risks and benefits) chances are they won’t be sued–even once.”

    You may not be able to prevent lawsuits with defensive medicine (although sometimes that may be the case as well), but you have a much better position once litigation occurs. Diagnostic errors are a major reason for litigation, right? Can you imagine what a field day the plaintiff’s attorney has by pointing out: patient x complained of spt Y, and you did not do Z?

    Moreover, not doing tests that a patient desires creates unhappy patients. Or say it positively: doctors want to fulfill patient expectations, and there is good evidence that doctors do what (they think) patients want (e.g. ABx for a cold). A LOT OF MEDICAL TESTING IS DONE IN ORDER TO PLEASE THE PATIENT, IN KNOWLEDGE OF A COMPETITIVE SITUATION, AND IN ORDER TO AVOID DISGRUNTLED PATIENTS WHO MAY SAY THAT YOU ARE A BAD PHYSICIAN (or even sue you depending on the circumstances, if you somehow can be linked to a bad outcome). I invite my colleagues to comment how patients react when they hear the explanation why a scan or test that they expect is not helpful. It works for some reasonable patients without preconceived notions, but for many, it does not work at all, or maybe works somewhat with great expense in effort and time.

    I also know most of the communication research you mention (for the paper for my MPH) and I believe it is valid and the lesson of the importance of good communication true … however, one has to question whether at least in some cases, patients build up doubt in a doctor’s abilities and attitude and nourish resentment and hostility in order to justify a hostile act such as litigation. You will rarely find a plaintiff who is going to say: yeah, Dr. X was nice and caring and he seemed to thorough and caring …. but the fact that he misdiagnosed my father’s brain bleed was just substandard and unfortunately, I have to sue him That plaintiff will rather learn how to hate Dr. X, there is enough time for that prior to seeing a lawyer. Maybe the hate is a by product in some cases (no doubt there are arrogant docs who don’t explain a thing and are not accessible, but I think that attitude has decreased a lot, one of the few benefits of defensive medicine)

    Another problem that – very unfortunately – neither jury members nor many physicians are aware of is hindsight bias. A lot of the “errors” that retrospective reviewers find (and that includes the studies you summarize) are found with outcome knowledge. This Monday morning quarterbacking has been demonstrated in many fields, incl. medical peer review (in the past, I have linked to a scientific review, but maybe this link
    http://www.medlit.net/member/malpracticenews/vol7iss1/hindsight.htm
    works better for most here).

    And, if you think about it, you have to admit that the 42% figure is stunning – I doubt that there is any other country on earth that reaches the double digits. Maggie, one should not be euphemistic and say that the system is dysfunctional – it is a great mess; it rarely does compensate patients fairly, it needlessly scares well intentioned and capable physicians and produces defensive medicine, and it costs a lot.

  2. Barry Carol says:

    rbaer –

    Perhaps you can tell me how common the following encounter is that I had with a neurologist in NYC about 18 months ago. I went to see him regarding some issues with balance that related to an exercise program I was involved in.

    After he examined me in his office quite thoroughly, he explained that we could do a brain MRI or one other test which I don’t remember. He said he didn’t recommend the second test because even if it was positive, we would not need to do anything about it, at least for now. I said that would be fine. He said he thought my balance issues were most likely just due to normal aging. I said that if he really thought it was normal aging, I was perfectly willing to just let it go and not do the MRI. He said, let’s do the MRI. I left wondering if he suspected there was something wrong or was it just defensive medicine and a culture of aggressive treatment in NYC. The MRI turned out to be normal and I would have thought that he was a perfectly fine and knowledgeable doctor whether I had the MRI or not. This was my first, and so far only, encounter with him after being referred to him by my cardiologist / PCP.

    Am I in the minority? Would most patients insist on an MRI under similar circumstances and be upset if they don’t get one? If so, unreasonable patient expectations are likely an important driver of high healthcare costs in the U.S. while the perceived need among doctors to practice defensive medicine exacerbates the problem.

    • MD as HELL says:

      Why did you need a neurologist for this? It is a perfectly common primary care question.

      Answer: The primary care provider can, with your willingness to be a partner in your healthcare, watch a problem. The specialist must prove you are OK.

      You went to the specialist on your own.

      In this country you are going to get the lawyer repellant.

  3. Maggie Mahar says:

    Rbaer–

    Thank you for responding again.

    First , sadly while the 42% figure is stunning, so is the fact that one in seven patients who enter a hospital are injured by medical malpractice (i.e.. preventalbe errors that injury patients) and– in many cases the injury is serious and premanent– and patients die. (Please see part 2 of the bog at
    http://www.healthbeat blog.org.

    Do one in seven auto mechainics screw up? I dont’ know. But usually, their errors are far less serious.

    We should be able to think of hospitals as reasonably “safe” places.

    The rate of meical errors, wrong-site surgeris and hospital acquired infections in thsi country is unacceptqable

    . As I will explain in part 3, I dont’ think this is because a certain number of doctors or nurses just don’t care, or are sloppy.
    As Atul Gawande points out, many of these mistakes occure (for instance
    wrong-site surgeries, which are tragic, and totally preventalbe) because more than one person dropped the ball, and the hospital didn’t have a system in place that would catch an error if one person–or even two people–dropped the ball..

    These days, healthcare is a team sport. Hospital systems need to take that into account. Hospitas shoudl require that doctors both follow –and take seriously– the procedures that we know (through emprical evidenc)e will reduce errors: for example, calling for a “time out” before surgery begins so that anyone in the rorm can speak out. (In tk% of wrong site surgeries, there was not time out.

    signing the surgical site, checklists to avoid infections then tubes are bieng inserted; checkists ot

    Nurses (and others) must be encouraged to speak up if they see a doctor doing something that could lead to trouble– not doing a Time Out before surgery (Reserach suggest that in most cases of wrong-site surgery, the doctor didn’t do a Time Out) not washing his hands (suprisinglly still a problem wtih many docs) ; not doing many things that a nurse knows shoudl be done.

    Nurses are very afraid of speaking out. When I wrote Money-Driven Medicine, I
    interviewed a huge number of doctors I also put out feelers, on th Internet, through friends who were doctors, through a few friends who were nurses — and I could not get a single nurse to talk to me for the book, even “off the record” your name will not be used (the way some docs talked ot me.)

    Nurses have been trained never to talk. They are scared. They have been taught that if they talk about what they see goinig wrong, they will lose their jobs. And in many (most?) hospitals they are taught never to question a doctor, and especially, never to question what he is going in front of a patient and other doctors– even if, in the next few minutes, the patient might be severely injured.

    This has to change. Hospitals must encourage nurses to speak out. They spend more time with patients than anyone else in the hopsital, and a great many very wise nurses know more than any of us about what is wrong with our heatlh care system.

    • rbaer says:

      Maggie,

      Sadly, you did not address the major problem with ” the fact that one in seven patients who enter a hospital are injured by medical malpractice (i.e.. preventable errors that injury patients) and– in many cases the injury is serious and premanent– and patients die”. I don’t know where the 1/7 number comes from. but it is almost certainly from the IOM or from one of the studies based on retrospective chart review. Re. the IOM report, there was a study in JAMA which examined and questionned the value of retrospective chart review (contains “preventability is in the eye of the beholder”, I have trouble googling it but I can get the reference if you need it). I am not saying that there are no excess mistakes and that there is no reason to improve, but there is good reason to doubt the magnitude of these numbers.

      Auto mechanics do not only rarely cause harm when they err, but they do straight forward mechanical work and have exact diagnostic tools and manuals giving them black and white instructions/algorhythms. Medical decision making is fraught with unpredictability, fuzziness and multiple interfering variables. I don’t want to sound harsh, but if you compare medical practice with mechanics/engineering which is highly if not entirely standardizable, then you did not speak with enough doctors and did not read enough books about medical decision making. Checklists are good where they can be reasonably applied, but neither checklists nor guidelines cover the entire practice of medicine (in that case, we would have foolproof diagnostic software by now).
      The above applies to misjudgments, not to obvious screw ups like wrong site surgery; if things went wrong so obviously, the victim will get a settlement quickly.

  4. Maggie Mahar says:

    Barry–

    You write:

    ” If we move toward a system where most doctors are employed by large hospital systems or ACO’s and paid a salary plus bonus opportunity, if I were running such a system I would do the following: Tell doctors that the organization will pay for your malpractice insurance and you, under no circumstances, will be required to pay any of the cost of a malpractice award. We want you to use your best judgment and to keep defensive medicine to a minimum. When something goes wrong, we’ll do a root cause analysis and learn what we can to ensure that we do everything possible to minimize the chance of a recurrence and we’ll share our findings with the patient. If you are negligent, impaired or incompetent, we will fire you and work to see that you are appropriately disciplined up to and including the loss of your license to practice.”

    I agree with this.

    In general, I belive that rather than asking individual docs to take on the cost of
    malpratice insurance, the hosptials where they practice (even if they have “privilges” there but are not employed by the hospital) should carry the
    malpractice insurance.

    In a great many cases (but far from all) , several people are reponsible for the error– it’s not just one doctor. It is waht is called a “systems’ error.

    If hopsitals were responsiblle for marlpratice nsurance and payments,this also means that if a hosptial realizes that a doctor with “privilges” is reckless, they wil cut off his right to practice at the hospital.

    .

  5. Maggie Mahar says:

    Rbaer–

    Thank you for responding again.

    First , sadly while the 42% figure is stunning, so is the fact that one in seven patients who enter a hospital are injured by medical malpractice (i.e.. preventalbe errors that injure patients) and– in many cases the injury is serious and premanent. IN other cases, the and patients dies. (Please see part 2 at
    http://www.healthbeat blog.org.

    Do one in seven auto mechainics screw up? I dont’ know. But usually, their errors are far less serious. People are not permanently injured.

    We pay doctors more than we pay auto mechanics because doctors have spent many years being educated to take on such a serious respnonsibility. Doctors are not businessmen running an auto-shop. They are professionals Their professional oath says that they hey will put their patient’s inteestt ahead of their own interest. T

    his is one reason what most people trust thier doctors (at least their own doctors) and look up to them. Most people don’t look up their auto mechanic.

    We should be able to think of hospitals as reasonably “safe” places.

    The rate of meical errors, wrong-site surgeris and hospital acquired infections in this country is unacceptable

    . As I will explain in part 3, I donn’t think this is because a certain number of doctors or nurses just don’t care, or are sloppy.

    As Atul Gawande points out, many of these mistakes occure (for instance
    wrong-site surgeries, which are tragic, and totally preventalbe) because more than one person dropped the ball, and the hospital didn’t have a system in place that would catch an error if one person–or even two people–dropped the ball..

    These days, healthcare is a team sport. Hospital systems need to take that into account. Hospitas shoudl require that doctors both follow –and take seriously– the procedures that we know (through emprical evidenc)e will reduce errors: for example, calling for a “time out” before surgery begins so that anyone in the rorm can speak out. (In tk% of wrong site surgeries, there was not time out.

    signing the surgical site, checklists to avoid infections then tubes are bieng inserted; checkists ot

    Nurses (and others) must be encouraged to speak up if they see a doctor doing something that could lead to trouble– not doing a Time Out before surgery (Reserach suggest that in most cases of wrong-site surgery, the doctor didn’t do a Time Out) not washing his hands (suprisinglly still a problem wtih many docs) ; not doing many things that a nurse knows shoudl be done.

    Nurses are very afraid of speaking out. When I wrote Money-Driven Medicine, I
    interviewed a huge number of doctors I also put out feelers, on th Internet, through friends who were doctors, through a few friends who were nurses — and I could not get a single nurse to talk to me for the book, even “off the record” your name will not be used (the way some docs talked ot me.)

    Nurses have been trained never to talk. They are scared. They have been taught that if they talk about what they see goinig wrong, they will lose their jobs. And in many (most?) hospitals they are taught never to question a doctor, and especially, never to question what he is going in front of a patient and other doctors– even if, in the next few minutes, the patient might be severely injured.

    This has to change. Hospitals must encourage nurses to speak out. They spend more time with patients than anyone else in the hopsital, and a great many very wise nurses know more than any of us about what is wrong with our heatlh care system.

    Reply Maggie Mahar says:
    July 7, 2011 at 10:03 pm Barry–

    You write:

    ” If we move toward a system where most doctors are employed by large hospital systems or ACO’s and paid a salary plus bonus opportunity, if I were running such a system I would do the following: Tell doctors that the organization will pay for your malpractice insurance and you, under no circumstances, will be required to pay any of the cost of a malpractice award. We want you to use your best judgment and to keep defensive medicine to a minimum. When something goes wrong, we’ll do a root cause analysis and learn what we can to ensure that we do everything possible to minimize the chance of a recurrence and we’ll share our findings with the patient. If you are negligent, impaired or incompetent, we will fire you and work to see that you are appropriately disciplined up to and including the loss of your license to practice.”

    I agree with this.

    In general, I belive that rather than asking individual docs to take on the cost of
    malpratice insurance, the hosptials where they practice (even if they have “privilges” there but are not employed by the hospital) should carry the
    malpractice insurance.

    In a great many cases (but far from all) , several people are reponsible for the error– it’s not just one doctor. It is waht is called a “systems’ error.

    If hopsitals were responsiblle for marlpratice nsurance and payments,this also means that if a hosptial realizes that a doctor with “privilges” is reckless, they wil cut off his right to practice at the hospital.

    .

    • pcp says:

      ” preventalbe errors that injury patients” is in no way synonymous with medical malpractice.

      • rbaer says:

        PCP, I think you are right and that’s one of my points I desperately try to make – I think we will never be able to bring this point across if even someone like MM (who is smart, knowledgeable and trying rather hard to work with physicians) doesn’t seem to get it.

  6. Barry Carol says:

    “Why did you need a neurologist for this? It is a perfectly common primary care question.”

    MD as Hell –

    My PCP knows that I’m a bit of a worrier. The difference between me and most patients, though, is that I was prepared to pay for both the neurologist consult and the MRI out-of-pocket if I had to as long as I could pay the insurer contract rate as opposed to the full list price. In the end, my insurance covered it but the list price for the MRI was $1,800 while the non-hospital owned imaging center accepted $475 as full payment from the insurer of which my share was 20% of $95.00. That’s a whole separate issue.

    • rbaer says:

      @Barry,
      since you told us a personal anecdote from my very own specialty, let me briefly comment (even though hellMD is not wrong despite his somewhat rough wording).

      If you came into my office, I would probably think that you have age related decline of balance (of course depending on the nature of your complaints and how you perform on exam) … but I would also, like almost all US physicians, consider worst case scenarios: loss of balance is a very nonspecific symptom (can be even due to fatigue) and not always very well reproducable on exam, esp if mild
      -you could have a lesion in the back of your brain. A mass/tumor may be extremely unlikely based on the time course (if the balance problem is mild and stable for months, it’s probably not a realistic option). But you definitely could have a cerebellar stroke (you even could have a stroke/brain infarction UNRELATED to your spts, esp north of the 6th decade of your life.
      If I let you go without imaging. Potentially (very very small but definite chance; remember that I see >10 patients daily, so, lots of chances for disasters adding up), 3 weeks later, you get a lethal or disabling stroke; the coroner or the MRI shows a new stroke and an old stroke, the one that I “missed”. Your kids remember that you saw a neurologist (me) recently and become upset and contact a lawyer. The lawyer has no problems finding experts linking imbalance and posterior circulation stroke (and claiming that the 2nd stroke was preventable with ASA and other maybe cholesterol screening and treatment which you never had; of course, this is not even a half truth). They sue me. I likely will not loose the case because I have no problem finding an expert who supports my care, and I look good to the jury and have good credentials but … I don’t want to be sued no matter what, even when I will likely come out clean.
      (as a side note, you could have some other – entirely incidental – meaningful abnormalities on MRI that are found in cohorts of healthy volunteers – there are several studies about that. There could be a completely UNRELATED mass/tumor in a silent area of the brain (eg frontal lobe), or an aneurysm, not at all a rarity; if you die from one of those, many lawyers would take the case and sue because I violated an alleged standard of care, which easily can, in the US, be claimed as: if you have any symptom that somehow can be related to the CNS, get an MRI; it’s a self reinforcing mechanism, and the standard of care gets higher and higher )

      Assuming normal/age appropriate neurologic exam and stable history of mild balance problems, I would have
      -ordered the MRI if you seem to expect it (otherwise, a: you are unhappy and b: the PCP will do it anyway, and he/she does not know what to do with minor abnormalities and it will cause a lot of stress and anxiety for everyone c: let’s say you have a very rare but possible potentially meaningful INCIDENTAL MRI abnormality, don’t I look bad, esp when the PCP cannot explain to you – because he is not sure – that the aneurysm cannot explain imbalance?)
      -in light of the above, if you have no vascular risk factors and are younger than 50, I would offer the MRI and say that the yield is very low, and, if you don’t want it, document that you don’t want the exam (unclear how much that would help legally in worst case scenarios)
      -if you have any risk factors or are older, I would say that the exam will be very likely negative, but that I have to err on the side of caution, and formally recommend the MRI. If you don’t want it, I give you some worst case scenarios and document that you refused as an informed patient.

      Your neurologist probably did not think much differently. I would think that 9 of 10 US neurologists would suggest the MRI, but in the UK, the number would be much lower.

  7. Barry Carol says:

    Maggie –

    Forgive me if I’ve commented on this before but I think it’s important. In your first two posts on the malpractice issue, you put a lot of emphasis on wrong site surgery cases. I think wrong site surgery is primarily a patient safety issue. Disclosure and apology can help hospitals and doctors to mitigate malpractice payouts by short circuiting the litigation process but these cases have nothing to do with defensive medicine, in my opinion. Liability is clear in wrong site surgery cases whether there was a process failure or it was the fault of a single doctor. By the same token, there is always liability when a plane crashes and people die whether the cause was pilot error or a mechanical failure even if the plane was maintained by the book. Wrong site surgeries shouldn’t happen, period.

    Defensive medicine, I think, is caused by a combination of our litigious culture, which varies by locality, and the uncertainty of medicine. The body has relatively few ways to signal that something is wrong. If a patient comes to the ER complaining of chest pain, stomach pain, neck pain, leg pain or whatever, there could be literally hundreds of potential causes of each of those symptoms. Sometimes even the best doctors won’t be able to diagnose the problem or diagnose it in time. Sometimes he may have ordered the right test but the result was a false negative. It’s not surprising that doctors will order more tests rather than fewer as compared to doctors in other countries facing similar circumstances.

    When you cited the study that showed that a doctor in the U.S. has only a 42% chance of being sued even once during his career, it might be an 85% or 90% chance if he didn’t practice defensive medicine. Moreover, if rbaer is correct when he says he doubts that any other country on earth approaches even a double digit probability that a doctor will be sued at least once, it suggests that the problem is our culture and our litigation system, not the quality or competence of our doctors though a very few are impaired, negligent or even incompetent.

    Just today there is a front page article in the NY Times about a woman with lung cancer who sought cutting edge treatment at Duke University. The idea was to target treatment based on her genetic makeup. It turned out that the research didn’t pan out and she died a few months later. Her husband and other patients’ relatives are suing Duke. Where’s the malpractice here? I think the enemy is us.

    • DeterminedMD says:

      My last comment at this thread as I will not progress in any fashion with the agenda of the author here, so just hope the readers who are unbiased and objective get the whole perspective.

      As I wrote earlier, weed out the extremes of the malpractice cases of incompetent doctors and greedy lawyers/grudge carrying patients, and the middle ground is gray and vague to what are real complaints to take to court. What readers need to realize is this: life is individual specific and if you want to take a conflict into the legal system that is black and white, right or wrong, the odds of real validation and resolution will probably not be realized by either side of the conflict.

      People get sick and don’t respond to interventions at times, people die and care providers do everything we can to prevent it and still fail, families are upset and distressed to watch their loved ones in pain and anguish, physicians and other health care providers as a whole do the best we can with the limited resources we have, and the system that houses the process tries to allow the care to be maximized yet intrinsic flaws will prevail at times, and supervisory systems to monitor and maximize standards of care have their limitations, as politics almost always create.

      I end with this: 42% of physicians do not belong in adversarial situations like law suits and state board reviews. I think Ms Mahar’s comment in this thread last night was just dismissive and insensitive, maybe she did not intend to come across that way, but, I think she is just a bullhorn for the PPACA process that will do nothing of healthy progress in reeling in health care expenses and problems.

      You let people like her go unchallenged and I know the adage of hear the lies enough will become truth will be realized. And just know this, to be unfairly sued in this culture these days is guilty before innocent, irregardless of it being a civil or felony charge. So to take a stand against frivilous law suits sends a message to unscrupulous lawyers, hostile or entitled patients, and an overtaxed and under served legal system.

      Let’s get rid of bad doctors, and let’s get rid of bad lawyers, and let’s set limits with inappropriate patients, and mostly, let’s get rid of political rhetoric that is ramming a square peg into the round hole that is health care and it’s outcomes.

      Have a nice weekend and beyond.

    • MD as HELL says:

      I agree.

  8. Peter says:

    “Medical decision making is fraught with unpredictability, fuzziness and multiple interfering variables.”

    Well, so is engineering if you want price, longevity, and innovation to also factor into the design.

    rbaer, I recognize there are many medical issues involved in patient care, purely mechanical operating room procedures, process of thought diagnostics, infection control, and the variables of the patient’s own body reactions to treatment, even the correct one. But you’re not blindly throwing darts are you? If the show “House” is any indication of the diagnostic process then why would anyone want to sue, or expect to win, for the dead end attempts at medical problem solving? I assume doctors are trained to follow diagnostic procedures, is there anything that would be “sue-able” in diagnostics? Could a doc just not follow procedure? Do docs not consult to verify the correct diagnosis? I don’t think patients have unrealistic expectations if they are communicated with openly and clearly and made aware of the options. When was the last time you were sued for a bad outcome, or sued for a good faith diagnostic attempt?

    Frankly I like my doc to loose a little sleep worrying about the outcome of their work, as I like my engineer to loose a little sleep. The world’s a bit safer. To remove consequences also removes attention to detail.

    • rbaer says:

      Peter,
      I believe you have a completely false understanding of the diagnostic process. I have seen “House” about twice and heard some summaries, it seems to be about as realistic as crime shows (I don’t know, maybe, maybe “the wire” comes close in terms of police work, and “ER” which my wife used to watch, was not entirely unrealistic); I believe you should read one of the books about medical decision making (and never ever believe Hollywood fiction, I am surprised you even bring that up); even “mystery diagnosis” which is a documentary is problematic because it nurtures the fiction that you always find a clear diagnosis if you just test enough), but let me try to raise some issues:
      -symptoms are mostly nonspecific, that is, one symptom by itself usually cann be connected to a multitude of diagnoses. Few symptoms are quite specific (e.g. blood in urine) while others are extremely nonspecific (e.g. abdominal pain).
      -a variety of symptoms as well as their time course, exam and technical findings are put into synopsis in the physician’s brain.
      -you usually want to cover all diagnoses. that’s called a differential diagnosis. These are probability statements only, and when you, as a resident, are asked to present a ddx, you are saying: these (depending on the case) 2-12 conditions or disease groups are reasonably likely explanations (and you should include diagnoses that seem quite unlikely but are dangerous AND treatable because it would be bad to miss them)
      -moreover, not all symptoms are medically explained. There are several acdemic studies estimating that up to half of symptoms/complaints are medically unexplained. Some of these complaints seem to occur in groups/patterns and then get names, even though there is no laboratory, imaging, or pathologic proof that anything is wrong (I am talking about IBS, fibromyalgia and certain other pain syndromes). Since no confirmatory test exists, when do you stop testing? A lot of other symptoms, esp. transient ones, remain entirely unexplained, and physicians struggle to find a satisfying explanation, and have a variety of favorite explanations (=diagnoses): (atypical) viral infection of some organ that you somehow can relate to the spts, (atypical) migraine aura, (atypical) TIA, allergy, medictaion reaction.

      That process is greatly different from an engineering approach in which, even when problems seem mysterious and complex, everything should be explainable – and in the worst case, you can take the whole thing apart.
      (all the above pertains to medical decision making, not to line infection or wrong site surgery, and I do support the use of checklists whenever possible).
      In the real world, a diagnosis often cannot be made. And that’s not because I am a bad physician. I offer a 2nd opinion to every patient who feels that he/she has an unanswered question (when I was in private practice, it was mostly Mayo, now I mostly use colleagues within my department), and if the problem can be attributed to a subspecialty, I send them there.

      One brief comment: you can certainly be watchful when receiving health care, and it makes sense to check what a physician says (and to bring it up if you found discordant information). If he/she does not seem to make sense, ask again, or ask for a 2nd opinion. Making physicians feel uneasy or “loose sleep” is not a smart move. You want a physician who is slept out and who wants to work with you.

  9. Maggie Mahar says:

    Barry-

    First, you assume that the big problem is defensive medicine. I agree thta it’s a problem, but if we abolished malpractice suits tomorrow, doctors woiuld be ordering unnecessary tests and doign procedures that, in all probability
    would not benefit the patient.

    For a variety of reasons, over-treatment is part of our medical culture. In med school, doctors are taught to be thorough, do everything possible, and patients in the U.S. have learned to expect (in some xases even demand) overtreatment.

    Secondly, while I think that defensive medicine and ovvertreatment are major problems, malpractice itself is a huge problem. This is why \
    I highight wrong site surgery. That this happens 40 times a week in the U.S. is stunning.

    For a variety of reasons, our hospitals lhis continue (some surgeons have done two and even three wrong site surgeries); surgeons refuse to do the simple things to make sure this doesn’t happen; hospitals refuse to insist; many patients don’t sue;

    And while liabiity may seem clear to you and I, surgeons who are responsible ofen aruge that it was someone else’s fault. Someone turned the x-ray upsdie down so the right side looked like the left side, etc.

    No other developed country in the world accepts the amount of medical malpractice that we do. It’s part of money-driven medicine. Experts believe that wrong-site surgeries are increasing becase more docs are doing more surgeries back to back.

  10. Nate Ogden says:

    “No other developed country in the world accepts the amount of medical malpractice that we do.”

    Really Maggie, anything to back this up? I just did a quick search for wrong site surgery NHS and came up with quit a few pages saying its a huge problem over there.

    I find this shocking you also seem to have butchered the fact;

    “some estimates put the national incidence rate, which includes wrong patient, wrong procedure, wrong site, and wrong side surgeries, as high as 40 per week.”

    Lets ignore the estimate and focus on how wrong patient, procedure, site, side, all of a sudden becomes just wrong site with you? An estimate that is questionable to starts with gets blown even more out of proportion by eliminating 75% of the classifications.

    If you quote a number wouldn’t the honest thing be to call an estiamte an estimate? Someone not familar with your writing might accidently think your 40 quote was an actual number from a real study the way you worded it.

  11. Maggie Mahar says:

    Rbaer–

    Unfortutately, the 1 in 7 number is true. Virtually no one disputes it anymore. (This is not from the IOM study of 10 years ago; this is from numerous studies since then) I realize it is troubling, but that’s the fact.
    As I’ve written, it’s not so much that our doctors and nurses are sloppy (though no doubt some are) but the systems in our hospitals are
    not very good. We don’t have the systems we need to catch one person’s mistake. And when hospitals have safety protocol they are not enforced.
    The number of medication mix-ups, the rate of infections–it’s all unncessary and inecusable. Our best hosptials have shown what can be done to prevent medical errors. .

    I’d urge you to read Dr. ATul Gawande’s book “The Checklist Manifesto”

    Virtually all central line infections (the most deadly type of infection) could be eliminated if we used checklists. But doctors still refuse to use them– saying ‘”I don’t need one.”

    Surgeons refuse to do time-outs. Surgeons refuse to use checklists.

    Some doctors don’t always wash their hands.

    When doctors and hospitals adopt all of the safety protocols that we know work, we could then focus on the more complex errors.

    In the U.K. the surgical checklist created in the U.S. was adopted througout the U.K. quite a while ago.

    Why not in the U.S.? Because in our money-driven medical culture, safety is not a first priority. I’ll be quoting Paul Levy on this in part 3.

    • rbaer says:

      Maggie,

      I think we are talking about different things here. I am talking about the failures of the current medicolegal system and that it produces defensive medicine, which, in combination with unrealistic patient expectations, explains a great part of overutilization (the other is explained by financial incentives).

      You are mostly talking about checklists, hand hygiene and line infections – I support checklists (our hospital uses them), the latter 2 have not much to do with litigation (correct me if I am wrong).

      Wouldn’t a cleaner approach be to separate the 2 issues? Like:
      1) There are fairly easy steps that increase patient safety and improve outcomes, and these are underutilized. (IMHO: These things (such as hand hygiene, checklist use when feasible) should be pushed through, maybe similar to how medicare does it with their quality parameters; and as a side note, they are already getting better, incl. our medical students who appropriately get into trouble if they forget hand hygiene in the exam class).
      2) The current medicolegal system is dysfunctional – it does not compensate patients well, does not separate well appropriate from inappropriate care, costs a lot, produces defensive medicine etc. Uncertainty and divergence of medical opinion make quality assessments in the practice of medicine challenging and result in a lottery type compensation system.
      In order to address this problem, I, MM, suggest:after extensive research (is that part 3? Is it going to be on THCB?)

  12. Nate Ogden says:

    http://www.ncbi.nlm.nih.gov/books/NBK2678/

    “WSSs are rare events”

    “The incidence of reported WSS has increased in recent years. From the inception of the Joint Commission’s Sentinel Event program, the number of WSSs reported has increased from 15 cases in 1998, to a total of 592 cases reported by June 30, 2007″

    wait, 592? But 40 times 52 is 2080. How did we get from 592 to 2080 Maggie?

    Tens of thousands of setteled bogus malpratice claims are ok, but 592 WSSs are a national crisis?

  13. Maggie Mahar says:

    Nate–

    If you read part 2, you would find the citatoin:

    . Consider this stunning statistic: in US. hospitals and clinics surgeons operate on the wrong body part—or the wrong patient—“40 times a week,” Kaiser Health News reported a few days ago, pointing to a statement by the Joint Commission, the Chicago-based group that accredits the nation’s hospitals. Investigators at the Commission had analyzed state data. (Here’s the reference: http://www.kaiserhealthnews.org/Stories/2011/June/21/wrong-site-surgery-errors.aspx?utm_source=khn&utm_medium=internal&utm_campaign=viewed

    Mark Chassin, a former New York state health commissioner and since 2008 president of the Joint Commission, told KHN that he thinks such errors are growing in part because of increased time pressures. Preventing wrong-site surgery also “turns out to be more complicated to eradicate than anybody thought,” he said, “because it involves changing the culture of hospitals and getting doctors –who typically prize their autonomy, resist checklists and underestimate their propensity for error—to follow standardized procedures and work in teams.” A “time out” is considered an essential part of patient safety: before surgery begins all work is supposed to stop so that the team “can confirm that they have the correct patient, correct procedure, correct site and side, medications on the sterile that of all items anticipated for the procedure to begin.”

    Philip F. Stahel, director of orthopedic surgery at Denver Health Medical Center served as lead author of a 2010 study of 132 wrong-site and wrong-patient cases between 2002 and 2008 of which one-third resulted in death or serious injury. In 72 percent of cases there was no timeout.

    Stahel says many doctors resent the rules, even though orthopedists have a 25 percent chance of making a wrong-site error during their career, according to the American Academy of Orthopaedic Surgeons, which launched a voluntary “Sign Your Site” campaign in 1997. (The AAOS deserves credit, though I fail to see why signing the site should be voluntary.)

    For medical errors in the U.S. vs. other deveoped countries Google Health Affairs. There have been many studies.

  14. Nate Ogden says:

    “If you read part 2, you would find the citatoin:”

    “This is why \
    I highight wrong site surgery. That this happens 40 times a week in the U.S. is stunning. ”

    I was commenting on your comment right above my comment. Is it common we should find corrections to your errors in other places? Wouldn’t it be easier to just cite the guess correctly in the place you make it?

    For all your linking I still don’t see any other studies that claim a number anywhere close to 40 per week.

    Again the key words are;

    “Joint Commission officials estimate that wrong-site surgery occurs 40 times a week”

    Estimate

    “That this happens 40 times a week in the U.S. is stunning.”

    Definitive statement not suppported by your cite. Isn’t that journalism 101? If someone reprots something as an estiamte you report it as an estimate?

  15. Maggie Mahar says:

    PCP–

    Here is a defnition of malpractice; “An abrogation of a duty owed by a health care provider to the patient; the failure to exercise the degree of care used by reasonably careful practitioners of like qualifications in the same or similar circumstances. For a plaintiff to collect damages in a court of law, the plaintiff’s attorney must show that the provider owed the patient a duty and that the provider’s violation of the standards of practice caused the patient’s injury. .

    For example, a nurse as a duty to the patient to make sure she is giving hte patient the right medicine. She gives her the wrong medicine.
    A Patient is in a room with another patient suffering from a
    transmittable patient. Nurses and doctors fail to wash their hands when
    moving from patient A to patient B. (Perhaps a visitor notices this).
    The second patient contracts the infection. Thi sis a preventab le error and the patient can sue. (they had a profesdsional duty to wash their hands.)

    At one time, these infections were consdiered inevitable, but this is no longer the case: “Therefore, a patient who contracts HA-MRSA from a Facility is able to bring
    a suit requesting compensation for damages suffered as a result of contracting the infection. HAMRSA
    and other hospital-acquired infections were once considered an inevitable part of Facility
    care and Facilities billed for them accordingly, but with growing evidence that Facilities can take
    steps to reduce infections26 and new private insurance and Medicare/Medicaid policies that
    refuse to pay for hospital-acquired infections, Facilities face a greater risk of patient suits The extent of Facility liability depends on the duty owed to the patient, the
    standard of care in other similar Facilities, whether there was a breach in the standard of care or
    duty, and the causal relationship between the breach of the standard of care or duty and the
    patient’s injury.

    The tricky part is proving that the infection was acquired in the hospita. I gave an easy (and commonplace) example.

  16. I should always take the opportunity to agree with Ms. Mahar, which happens more than I would expect!

    I am a fan of reforms like limiting non-economic damages, qualifying expert witnesses, and imposing statutes of limitations (as recommended by my colleague Lawrence McQuillan). However, civil trials should always be decided by lay juries. The alternative “expert court” would lead to a version of regulatory capture, I expect.

  17. Nate Ogden says:

    How do you educate a lay jury to understand complex scientific or medical debates in the matter of weeks? We have millions of people that think our government did 9/11 and fire can’t melt steel, are these the type of people who should be deciding a doctors professional life?

  18. Maggie Mahar says:

    John & Everyone (on rate of medical errors in U.S. and elsewhere)

    John–
    Thank you. Yes, “expert juries” create their own problems.

    Everyone–
    It is upsetting for patients, as well as for physicians to read that 1 in 7 patietns who is admitted to a hospital is injured by an adverse event.

    But numerous studies cofirm the numbers, cutting into the data in various ways. A recent study says the problem is worse than we think:

    See http://www.pbs.org/newshour/rundown/2011/04/new-study-finds-medical-error-rates-are-underreported.html

    As for error rates in the U.S. vs. other countries, see ths chart from the Commonwealth Fund here http://www.truthfulpolitics.com/http:/truthfulpolitics.com/comments/medical-errors-in-the-u-s-vs-other-countries/.

    It also provides links to two articles giving int’l comparisons.

    Part of the problem is because we “do more” than doctors and hostpials in other countries (many more surgeries, tests, procedures, etc. etc.) our hospitals are pretty hectic.

  19. Maggie Mahar says:

    On Wrong-Site Surgies–

    The article Nate cited states that “Because reporting of sentinel events to the Joint Commission is voluntary, it could be that only 10 percent of actual WSSs (wrong site surgeries) are reported”

    “592″ represents “reported” wrong-site surgeies. If that represents 10 percent, then the total number of 5920.

  20. Barry Carol says:

    To drive home the point about how complex and uncertain medicine can be, the National Institutes of Health (NIH), has a program where they try to figure out some of the most complex medical mysteries in the country. Patients accepted into the program often arrive literally with binders full of hospital records and test results. Sanjay Gupta did a show on this a few months back. The person who runs it for the NIH stated that they resolve the mystery only about 10%-15% of the time.

    Any reform that doctors might support like safe harbor protection from lawsuits for following evidence based guidelines and health courts would likely not reduce defensive medicine right away. The new approach would have to gain credibility first. Once they saw non-meritorious claims dismissed quickly and at low cost that might have made it quite far under the current system, they might start to think the new system is for real and that any dispute that they might be involved in will be resolved fairly, objectively and consistently within jurisdictions, across jurisdictions and over time. Once it took hold, trial lawyers would, presumably, tell patients who want to sue that they have no case far more often than they do now, especially with respect to the failure to diagnose cases that account for a disproportionate share of defensive medicine.

  21. Barry Carol says:

    rbaer –

    Thanks for all the good information about what goes into a neurology consult and under what circumstances to order an MRI. It sounds like it might be a lot easier to try to bring about more convergence in what hospitals charge per procedure in the U.S. vs. other countries than to move practice patterns in a more conservative direction.

    Aside from financial incentives, it seems very hard to tease out how doctors’ decisions are driven to (1) adhere to the local or regional perceived standard of care, (2) satisfy patient expectations, and (3) practice defensive medicine to avoid litigation.

    Safe harbor protection for following guidelines would certainly be of some help. It’s too bad that all the developed countries couldn’t develop a minimum internationally accepted standard of care that would apply in a litigation context. Providers could then go as far beyond that as they wanted as long as patients were willing to pay for it either directly or explicitly in higher insurance premiums.

  22. DeterminedMD says:

    I don’t know what is wrong here, but I think the tech operators of this site need to eliminate some inherent option that commenters are interested in comments being forwarded to their email sites, because in the past few days I first go on my email and get literally a dozen or more email comments forwarded that I DID NOT ASK FOR, then I cannot access the blog for today! Since THCB changed their page presentation, NOT USER FRIENDLY, that is for sure!!!

  23. DeterminedMD says:

    And by the way, checklists are just another mechanism for control by administrative policies, not what is in the best interests of health care interventions. Again, the message of what government wants for health care, not what patients and physicians are interested in.

    Sorry I commented once more, but this bs in accessing this blog just to review comments is ridiculous per this intended comment follow up option box I never have checked since commenting here.

  24. Barry Carol says:

    “Since THCB changed their page presentation, NOT USER FRIENDLY, that is for sure!!!”

    Determined MD –

    I agree. After about 50 comments, the earlier comments start to disappear and some of the more recent ones appear either out of sequence or don’t appear at all on the blog but they do show up in my e-mail in the correct order that they were posted.

    Matthew – Can’t something be done to fix this?

  25. Peter says:

    “(and never ever believe Hollywood fiction,”

    rbaer, don’t imply I’m stupid enough to get my opinions about real life from TV shows, my wife (nurse) gives me plenty of grounding opinions about what to take for real life. But the show actually gives you guys plenty of good PR and shows how difficult diagnosis can be given the body shows a limited number of symptoms for many different problems. Most of the show centers around opposing personality conflicts. My point was that there has to be some structured method of diagnosis, and that as far as “errors & omissions”, there must be the possibility of both occurring in diagnosis – which you seem to want to exclude from any malpractice claim possibility.

  26. rbaer says:

    Peter, maybe it is clearer that way: our exams (boards and specialty boards) consist, like many exams, of diagnostic questions (or, increasingly of PC simulated clinical situations/case scenarios). (For completeness sake, let me mention that most but not all questions are directly practice relevant diagnostic problems – other questions test e.g. genetic or pathophysiologic concepts that you cannot directly apply to patientcare, at least not as of yet, and other questions are from neighboring specialties) .

    It’s a fact of life that almost noone will not get 100% right (otherwise the test is too easy) … you know about the Bell curve, right? So let’s say the cutoff of the test is 60% (i.e. you fail with less) …. and keep in mind that almost all docs will get at least 1 in 10 questions wrong (the median is probably 2-3 out of 10 for most exams). However, there is almost never a reasonable question that everyone fails (the questions everyone gets wrong are often taken out of exams because they are usually useless). Therefore, most future docs err, say, in 1-3 out of 10 diagnostic problems … while the same problem may have been correctly solved by a majority of the other testtakers.
    Does that sound familiar and makes sense? Does it now sound like a fact of life that doctors make mistakes? (or do you want only the upper 2% of testtakers to practice, so you barely have any error? But where do you want to get a sufficient number of doctors from? How will you even attract people do go into medicine if only 2/100 are accepted to practice)

    That is why there are many clinical situations where many physicians, esp in retrospect, may say: every (insert specialist here) knows that, nearly everyone would have done better here- by which they mean 80-90%, forgetting that 1. they themselves may and will err at another problem that 90% of their colleagues will get right 2. there may be situational factors that make the situation in real time much more challenging then their monday morning quarterbacking. But that’s the reason why you get medical experts to testify for almost all “standards of care” (that and the money).

    Yes, there are compensatory mechanisms that you can use during real life but not during exams: you can open up a book (nowadays rather looking into knowledge data bases), you can ask a colleague … but there are also a lot of things running against you in real life. Patients give inconsistent histories, and most importantly, in many complex patients, you may have such a huge set of data (symptoms, exam findings, treatment effects) that it is very hard to filter out the relevant ones.

    “the body shows a limited number of symptoms for many different problems” – no, that’s a huge oversimplification, although not wrong given the weasel words (“limited” – yes, the number of possible symptoms and their combination is finite, “many”). Read what I wrote about specific and nonspecific symptoms. Wonder why there isn’t a workable software where the doc (or you) just enters the symptoms and with the stroke of a key, there is the right Dx (or differential Dx). And read a book about medical decision making – your wife presumably knows a lot about health care, but probably little about the diagnostic process. You apparently know even less, and that’s entirely OK, but then try not to have so strong, reinforced opinions about medical decision making. Sorry for being blunt or sounding arrogant.

    I tried to make the difference between negligence (e.g. not examining a patient) and honest diagnostic errors (that I suggested could be a)”normal” errors and b) errors due to incompetence). I would have no problems to keep the current system for true negligence; re. compensation for honest diagnostic errors, I think that every human being who is sick or injured should be taken care of by society (yes, even if it is their fault). But I don’t think that it is helpful at all to make doctors fearful re the a) errors because it causes costly defensive medicine. However, I do think that docs doing more than one clear b) mistake should loose their license or at least go into a less risky field (insurance review, administration etc.). And I agree that we can and should do much more re. incompetence.

  27. Reality says:

    Why do people like Ms Mahar gain from their anti-doctor rhetoric? (this is more for Mahar to contemplate. I think a bit of soul-searching on her part may do her well, but again, as a fanatic, she’s just following her herd)

    You know people, as long as we have people like her disseminating their misinformed view on healthcare, we can expect things to continue to get worse. I wish doctors were more united and vocal about the realities of things on the ground.

    It’s a sad state of affairs.

  28. Maggie Mahar says:

    Reality–

    I’m not at all anti-doctor.

    Many of my best sources are M.D.s (See my book, Money-Driven Medicine).

    If I were anti-doctor why would:

    State medical societies from Massachusetts to Texas have asked me to speak at their annual conferences.?

    Kevin M.D., the most widely read physician blogger, continue to post pieces from my blog on http://www.KevinMD.com?

    Medical schools, hospitals and medical groups around the country have asked me to introduce screenings of the documentary based on my book
    “Money-Driven Medicne” ?. (For info on the documentary from the distributor, see www. moneydrivenmedicine.org.)

    The National Physicians Alliance, a group that represents the many (often younger) doctors who do not identify with the AMA asked me speak at their nationall conference? (The NPA also has endorsed my work).
    (You can Google any of these facts.)

    Perhaps you are out of step with where doctor are going today.

    Kevin M.D. often cross-posts pieces from by blog.

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  32. Carol Levy says:

    I posted a reply but cannot tell if it went through or not. I do not want to rewrite it if it was taken.

  33. Carol Levy says:

    Interesting I see immediately the post about cant tell if went thru but neither of my other replies so I will try again.
    “How insensitive and thoughtless can someone be?! Why don’t you get sued and go through the uneventful process of discovery, depositions, accusations, and other unconsequential experiences of the process of going to court and then tell us how you didn’t panic.”

    Try being a patient and going through it. Try having to pay out thousands of dollars that you don’t have to keep the lawsuit going. Try doing it while you are suffering the consequences of the malpractice, in my case diisfigurement and pain.

    Dr. Peter J. Jannetta paralyzed my face doing a Jannetta Procedure (for trigeminal neuralgia) He told me, in response to a direct question “I promise you your face cannot be injured.” I awakened with a 100% paralysis of the left side of my face. Defensive presurgical EMG showed injury to the facial nerve from a prior procedure – done 3 months before this dsurgery. That showed good chance of injuring the facial nerve completely. Only problem the facial nerve specialist wrote in chart the emg should have been evaluated before the Jannetta procedure.
    Dr. Jannetta testified perjuriously re the risks, In 2 depositions he said, facial paralysis was a “major and common complication”. On the stand he said it was :”unknown.” The appeals court in retunring the case to the lower court stated “”We have little difficulty in concluding that Dr. Jannetta’s testimony at deposition was different than, or inconsistent with, the testimony at trial.” Levy v Jannetta, CCP Allegheny County, GD 81-7689; appeal -J. A370017/92 Levy v Jannetta et al, No. 00150 Pittsburgh, 1992. settled, 1995.” Nevertheless a juror, when asked later whom she believed said “I believed the doctor.” There was no point in asking her which time.
    Doctors refused to testify ‘he is my friend’ or I won;t testify against Dr. Jannetta. It could cost me in the neurosurgical community.”
    Nurses said “I could lose my job.”
    My attorney forced me to settle for bupkis, the amount so low it is you the taxpayer who is helping to pay for my lifetime complications and medical care subsequent to the surgery.
    The amount was to the limit of his insurance and the CAT fund picked up the rest. It did not cost him anything out of pocket.
    Within the month after the forced settlement (I told my attorney 3 days later (at the start of the new week) that I did not accept the settlement and he told me I had no choice. I did not know at the time that was untrue.) Governor Tom Ridge nominated Dr., Jannetta to be sec’t of health for state of Pa. (Peter J. Jannetta 1995-1996)
    I notified the local and state medical boards. They did not care. I notified the society of neurological surgeons. They did not care. I notified JAMA when they republished Dr. Jannetta’s seminal article about his history of doing MVD (Jannetta Procedure) which did not include me, although by virtue of their definition of the population studied I was definitely a member, that facial paralysis was not listed as a known risk despite Dr. Jannetta’s statement of major and common complication.
    Until someone cares nothing will change.
    The system is broken.
    Carol Jay Levy
    author A PAINED LIFE, a chronic pain journey
    womeninpainawareness.ning.com/
    apainedlife.blogspot.com/

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  38. Carol Levy says:

    This is a video synopsis of my medical malpractice case and how the doctor essentially got away with proven malpractice and perjury and the lawyer essentially worked for the defendant doctor.https://www.youtube.com/watch?v=R12rJd7BlvU

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