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2. Trial lawyer bashing can be fun and I like to engage in it from time to time, but IMHO part of the problem has been that the provider community is just so damn reluctant to change anything. Their medical societies write the statutes and they are policed by their own (or not) and the absence of any threat other than a lawsuit only makes the reluctance to change worse.

3. For Barry and PCB,
   http://intqhc.oxfordjournals.org/cgi/reprint/12/5/363.pdf

4. One especially nice thing the Board does is (through its Patient Care Assessment program) try to address systems-level causes of patient injury.
   Paul Levy, CEO of Beth Israel Deaconess Medical Center in Boston, recently made the following comment on his blog in response to a question from me:
   All of the hospitals in the Harvard system collectively own a captive insurance company that provides the Harvard hospitals with malpractice insurance. When it identifies problems or adverse trends, whether they are doctor specific, procedure specific, discipline specific or hospital specific, it brings the issue to the attention of the appropriate parties so corrections and systemic improvements can be developed and implemented. Sounds like the way it should be to me.

5. TLA talking points aside Matt (I’m still trying to figure out how 60 percent contingencies serve plaintiffs needs), the only reason this is a problem is in the context of a single payer system. If the physician is unable to adjust his income to make up for the vagarities of liability costs, which are admittedly a function of both risk and the overall insurance market, then those practitioners are going to flee the system.
   As care is universalized through a patchwork of inflexable mandates and government payors, there will come a point when fungible liabilty costs will hit up against the relatively inflexible reimbursement structure. Docs with other options, the good ones, will leave. The lack of medical access will result in a backlash that will significantly swing the pendulum against tort access for the truly injured. It will take a lot to entice docs back in.
   Trial lawyers know this and they, like phsyicians, know that, modest self reforms now will prevent wholesale changes later. Yet the band still plays on.
   This isn’t going to be pretty

6. Peter, why on earth would I want to defend the AMA? Where in any of my arguments is there any reference to judgment caps or other positions that sad, dying organization supports. I don’t even know if the AMA has a position on medical courts. If it does, it hasn’t received much publicity.
   I suppose I’ll just state the obvious: nobody (except maybe trial lawyers) is well served by errors in any setting–medmal or medical care. There’s no reason to believe that making the medmal system more accurate would harm patients.
   Regarding the replacement of juries, the point is not that experts would be “more fair.” It’s that they would be smarter. One can be an imbecile, flip a coin, and still be fair. See my earlier posts for references on how badly juries get matters of science wrong.
   I don’t see why the experts have to be doctors. There are lots of alternatives if you’re scared of some kind of conspiracy. Statisticians come to mind as a particularly nice bunch: trained in science, deep understanding of decisionmaking under conditions of uncertainty, and very capable of reading the medical literature. Just get the laypeople out of there. They’re not qualified to adjudicate matters of science.
   I love the quibbling on the Mello/Studdert study figures. So 16% of the 37% were close calls? Want to lump those in with the errors? Fine. This change contributes nothing meaningful to the discussion. I could also point out that this study didn’t really test the accuracy of the system correctly since it’s only supposed to punish negligence (which is a subset of error). But let’s give the system the benefit of the doubt on its accuracy rate.
   “The bulk of most med mal awards is for past and future medical bills.”
   –news to me. Can you cite a source? It would actually be helpful to the thread to know if this is true.
   I hope one appreciates the irony of surfing around medical blogs of disgruntled doctors to support the assertion that (what: all? most? some? a few? only the bad?) docs hate experts and medical boards. I can only speculate here, but if docs could count on a scientifically rigorous judicial system to weigh the evidence and weed out charlatans, I doubt you’d hear too many complaints about experts.
   FYI medical boards vary in composition. Most contain multiple committees for licensing, regulation, and judicial functions, each with some doctors and some non-doctors. You’d have to look state-by-state if you were really interested. In Massachusetts the composition is mixed on all committees, and the only complaints I’ve ever heard are about the amount of paperwork it takes to get a license (not to mention the expense). In its judicial function the Board seems to be highly regarded. Sure, you’ll find a few pissed off docs here and there, but in general the word is that the Board does responsible investigations and doesn’t respond to the emotional (rather than scientific) arguments used by trial attorneys. One especially nice thing the Board does is (through its Patient Care Assessment program) try to address systems-level causes of patient injury. I suppose this is probably a good time to point out that the current medmal system, with its emphasis on individual culpability, actively perpetuates the culture of “blame and shame”…not exactly the way to go if you read any of the recent literature on medical error…just start with the IOM’s 2000 report. I’m surprised enterprise liability hasn’t come up yet.

7. I get so sick and tired of hearing the physician lobby bark about the evils of the medical malpractice system and identifying it as the single-biggest problem in the US healthcare system. Yes, it is a problem, particularly in the some awards granted for “punitive” damages, but it represents an extremely tiny piece of overall healthcare spending.
   The fact is the that for most medical specialties, medical malpractice costs have remained flat or pretty constant as a percentage of practice revenues over the last 20 yrs. MGMA has some pretty good data on this although they don’t do out of there way to advertise it.
   Medical malpractice has been a real issue for some of the surgical specialties, particuarly neurology, and for OBY/GYN. The real reason you hear so much about medical malpractice is because it is one of the few issues that the AMA can play anymore that resonants with physicians who aren’t in their organization. Additionally, trial lawyers are a huge and important contributor to alot of Democrats campaigns. Republicans have already helped to the neuder the power and influence of Big Labor since the 80s and would love to knock off another leg of the Democratic fundraising stool.

8. Some serious heat coming off this thread. Good stuff.
   To add some additional information to the 2000 IOM report on the 44-98,000 error related deaths:
   1. there was no appropriate comparison group (no “death rate” from comparatively sick hospitalized patients without errors to compare to the error group.) So how do we know what contribution errors made to the death rate in the group studied?
   2. Because of #1 above, in order to make the 44-98,000 claim, you must assume that there would be NO DEATHS in a similar high risk “error free group.” This is clearly an unreasonable assumption given the high risk patients studied.
   Take it for what it’s worth.
   Pete

9. “The trend is mostly driven by fear of litigation, and to a much lesser extent, a desire by some women to pick their delivery date.”
   Is that litigation fear rational, though? And if not, should we be making policy on the irrational fears of physicians?
   Do you not think convenience for physicians has anything to do with it? After all, during every malpractice “crisis” (we just ended the third one in 30 years), physicians have claimed that if we just give them this or that “reform”, defensive medicine will decrease and that all these expensive tests driving up the cost of healthcare will not be as necessary. Yet the cost of healthcare continues to rise and the testing is still done regardless of the “reform” enacted.

10. Barry, not sure this is what your looking for but here goes;
    http://secure.cihi.ca/cihiweb/dispPage.jsp?cw_page=AR43_2004highlight_e
    “Among those who die of preventable errors, how many were very frail and near death and how many had their lives shortened by years? How many fewer deaths would there be if every hospital operated at the quality level of the best in the country?”
    I guess that from a simple view reducing errors reduces adverse outcomes to patients. Trying to figure out who would have died anyway or how many years the life was shortened are not really measurable, are they? Is that the point? Would your response to learning that your wife died from a preventable medical error be,” Well she would have died anyway doc, don’t worry about it.” I guess if you are saying that errors are only perceptions by patients that don’t really affect their health then the Institute of Medicine reports would all be invalid – wouldn’t they? As to how many fewer deaths would occur, well one study above says 44,000 to 98,000. Any of your relatives in that number?

11. Let me say this – I am certainly not arguing that the current system is perfect. It’s expensive and time consuming. However, given the value of time of the parties’ involved, particularly the physicians and attorneys, there’s probably no way for it not to be expensive and time consuming.
    No matter what system you use, both sides are still going to want their own experts. Both sides are still going to need representation. And the insurer is still going to want to keep its money and the patient will still need that money very badly.
    I just fail to see how eliminating a jury with no stake in the outcome, and replacing them with a judge and expert (regardless of the cost) who is a political appointee, will be MORE fair. To any of the parties.

12. Peter,
    I wonder if you can provide any comparative data with respect to how our medical error rates and preventable deaths (especially in hospitals) compare to other countries on a per 100,000 of population basis. I have no idea.
    I’m also not sure what preventable deaths, especially in hospitals, consist of. I suppose they could include everything from botched surgeries to incorrect medications or dosages to central line infections to ventilator assisted pneumonia and who knows what else. Among those who die of preventable errors, how many were very frail and near death and how many had their lives shortened by years? How many fewer deaths would there be if every hospital operated at the quality level of the best in the country?
    I also don’t know how you tell if someone who suffers a heart attack suffered it because he was not taking preventive medication. In my own case, six years after CABG and despite 100% compliance with my medication regimen, I needed a DES. Stuff happens to people. Plaque breaks off from an artery wall and forms a clot despite taking all appropriate medications. Forgive me if I’m a bit skeptical when I read stats like the ones you cited.
    By the way, on the cesarian stats, I actually understated the case. In the 1970’s about 5% of babies were delivered via cesarian section. This rose to 20% or so by the mid-1980’s and has since drifted up to 29%. The trend is mostly driven by fear of litigation, and to a much lesser extent, a desire by some women to pick their delivery date.
    OBGYN’s and neurosurgeons pay extremely high rates for malpractice insurance. When there is a bad outcome, the consequences are often severe for both the individual and the family, and the temptation to sue is probably strong. Sometimes the doc was negligent and deserves to be sued and sometimes he or she did everything humanly possible that could have been done but the end result was still bad. Even with a contingency fee payment structure, I think both the plaintiffs and the overall system would be better served with a special health court system than with a jury system to hear and resolve these disputes.

13. “You’re demanding high standards of evidence for some things (like the accuracy of patent courts…buddy, they’re just an example of an alternative to idiotic juries), micro-level details elsewhere (who pays the experts? give me a break…that gets worked out later), and making ridiculous assertions (doctors complaining about expert opinion? Which experts? Where? Do you have something other than anecdote to back this up?). ”
    Actually, I’m not demanding anything. I’m asking for the evidence to support someone’s claim that patent courts work so well and so much better than the jury system. I assume before that person reached that conclusion they had done some research.
    You don’t think who will pay these neutral experts is a big deal? Are you kidding? Do you know what doctors charge to testify? And you’re going to take them from their busy schedules, fly them around the country, have them review records and give opinions, and you’re not worried about the cost? Plus, it’s not like the defense and plaintiff won’t still hire their own experts. These are not small details – particularly when the taxpayer will be picking up the tab.
    As for doctors complaining about experts, are you kidding? Anyone who testifies for the plaintiff is called a whore by other physicians. Many physicians will tell you they would NEVER testify for a plaintiff, regardless of whether there was malpractice. And you need only scan the medical blogs for posts complaining about the medical boards findings and how they go about it. Presumably those boards are made up of doctors, aren’t they?
    “37% of the lawsuits that involved injury had no underlying error. Of these, payment was made in 28%. Looking at the 63% of lawsuits that did have error, no payment was made 27%. Leaving aside the question of whether the system should compensate error or only negligent error, the overall accuracy appears to be a little worse than 75%. So there’s at least a 1 in 4 chance of the system getting it wrong. ”
    This is the Studdert study, right? You haven’t exactly quoted it correctly, in that of the 37% involved injury they did not say unequivocally that there was no error – 16% of that 37% were “close calls”.
    And of course awards are going to be tied to injury severity. The bulk of most med mal awards is for past and future medical bills. The more severe the injury, the higher that number is likely to be. Why would you expect it to be different? If your actions fall below the standard of care, the degree of depth shouldn’t matter, unless we’re looking a punitives – which are exceedingly rare in the med mal context.
    Obviously we can do better, can’t all human endeavors improve? And we should strive to, but allowing physicians to judge themselves is the wrong way to approach it. After all, why stop at physicians? Why not any other group? Should we just turn over determining negligence to each profession’s own guild? Of course, since you offer few specifics, it’s hard to accurately analyze what your proposal is and its strengths/weaknesses.
    And, since no proposal not involving damage caps has never made it to a legislature, it’s probably moot anyway.
    And truthfully, it’s probably also moot because when we do have universal healthcare, we’ll go to a workers’ comp style no-fault system as a condition for receiving the benefits.
    A Constitutional Amendment to protect doctors is unlikely.

14. “What I’m saying is simple: Juries should be made up of qualified people, not housewives that fall for crying defendants. Not O.J. jurists.”
    Who gets to decide competence? You? I think this is along the lines about how everyone views their position on issues as the “reasonable” one. Well, obviously that can’t be the case for all.
    “I am not an expert on other countries (nor anything else, for that matter), but it seems to me that Britain has a pretty decent system. But I’ll let others comment on that.”
    What about it is so much better? If you’re going to advocate we change our system and criticize it as compared to others, don’t you think you should know something about the others?

15. “Goodness gracious. I suppose we can’t simultaneously try to work on two flawed systems at once.”
    harrumph, please tell me how much lobbying, time, and persuasion money is spent by the AMA on the issues I listed above as opposed to doctor financial issues like tort protection? Maybe I would have a better idea of how the AMA is advocating for patients as well.

16. harrumph, I think what gets Peter and many others of us upset are the many special interests who strive to block repair of the flawed health care system, even blocking progress on a national health care database that would mitigate the stats Peter pointed out and the resulting lawsuits.
    I happen to agree with your desire to fix the medmal issue, as I’ve stated above, but when I see that health care costs are going to hit 19.6% of GDP I get a little short on patience when I hear justifications for physicians (and other health care entities) going for the gold.
    Frankly, I believe Congress needs to set up a quasi governmental health care commission similar to the (relatively) non-partisan Federal Reserve Board with members appointed to staggered 14 year terms. Then let them fix the system despite the political pressures (and money).

17. OMG! Wow…who knew? You mean the health care system also needs improvement?
    Goodness gracious. I suppose we can’t simultaneously try to work on two flawed systems at once. God forbid I should speak for anyone else here, but I know it would definitely be too much for my little brain to handle.

18. By harrumph
    “So there’s at least a 1 in 4 chance of the system getting it wrong.”
    Some statistics from the Institute of Medicine web site:
    (1)Between 44,000-98,000 Americans die from medical errors annually (Institute of Medicine, 2000; Thomas et al., 2000; Thomas et al., 1999)
    (2)Only 55% of patients in a recent random sample of adults received recommended care, with little difference found between care recommended for prevention, to address acute episodes or to treat chronic conditions (McGlynn et al., 2003)
    (3) Medication-related errors for hospitalized patients cost roughly $2 billion annually (Institute of Medicine, 2000; Bates et al., 1997)
    (4)41 million uninsured Americans exhibit consistently worse clinical outcomes than the insured, and are at increased risk for dying prematurely (Institute of Medicine, 2002; Institute of Medicine, 2003a)
    (5)The lag between the discovery of more effective forms of treatment and their incorporation into routine patient care averages 17 years (Balas, 2001; Institute of Medicine, 2003b)
    (6)18,000 Americans die each year from heart attacks because they did not receive preventive medications, although they were eligible for them (Chassin, 1997; Institute of Medicine, 2003a)
    (7)Medical errors kill more people per year than breast cancer, AIDS, or motor vehicle accidents (Institute of Medicine, 2000; Centers for Disease Control and Prevention; National Center for Health Statistics: Preliminary Data for 1998, 1999)
    (8)More than 50% of patients with diabetes, hypertension, tobacco addiction, hyperlipidemia, congestive heart failure, asthma, depression and chronic atrial fibrillation are currently managed inadequately (Institute of Medicine, 2003c; Clark et al., 2000; Joint National Committee on Prevention, 1997; Legorreta et al., 2000; McBride et al., 1998; Ni et al., 1998; Perez-Stable and Fuentes-Afflick, 1998; Samsa et al., 2000; Young et al., 2001)
    Sorry harrumph but your 1 in 4 figure does not upset me when I see the stats on how many patients get hurt. No wonder lawyers have cases to bring to court.

19. One thing I learned when I sued my own county over a line dispute, and acted as my own lawyer, was that suits are launched by complaints NOT evidence. When a lawyer sues he has no real knowledge of all the facts in the case, that’s what discovery is for. I was able to do my own pre-lawsuit discovery because I was suing a government which had open public records laws and I was not restricted in interviewing or doing investigative ground work. Lawyers have more restrictions in this and private parties are not compelled to divulge unless they are sued. Discovery is where each side finds out what people and facts are on the table. From there parties not really involved in the suit can be dismissed by the plaintiffs lawyer and deals can made before court. I think contingency fees is one of the great leveling devices this country has that gives those people with little resourses the ability to win over deep pocket corporations or governments. I won my case with the county ($13,000 award) largely because I was acting as my own lawyer – the county could not out spend me even though I had all the facts in my favor. Governments and corporations always try to out spend a complainant – is that justice?

20. Matt, buddy…you’re all over the place here. You’re demanding high standards of evidence for some things (like the accuracy of patent courts…buddy, they’re just an example of an alternative to idiotic juries), micro-level details elsewhere (who pays the experts? give me a break…that gets worked out later), and making ridiculous assertions (doctors complaining about expert opinion? Which experts? Where? Do you have something other than anecdote to back this up?).
    Do we have incontrovertable proof that a patent-court-style system for handling medmal would be better than the current system? Of course not. We don’t have proof of anything except that a system capable of producing perverse results that are destructive to public health can and should be improved. In addition to Dr. Angell’s book “Science on Trial,” see “Winners and Losers by Daniel Merenstein: JAMA 2004; 291: 15-16” or the discussion of the medmal system in the IOM report “To Err is Human.”
    But I’ve taken you to task for use of anecdotes, so let’s have a look at the science.
    There are only a few big studies on medmal accuracy. The first was the Harvard Medical Practice study Parts I-III which was published in NEJM 1991-1992. The basic lesson was that the vast majority of injured patients don’t sue, most lawsuits aren’t the result of _negligent_ error, and jury awards were related to injury severity rather than negligent error. So between over- and under-compensation, the system’s accuracy sucked. The most recent well-done update, again from Harvard, was Michelle Mello’s study “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation” N Engl J Med 2006; 354:2024-2033, May 11, 2006. They studied a random sample of 1452 closed medmal claims, so they weren’t in a position to comment on undercompensation at the lawsuit initiation level. But they could study accuracy of the lawsuits that were brought. 37% of the lawsuits that involved injury had no underlying error. Of these, payment was made in 28%. Looking at the 63% of lawsuits that did have error, no payment was made 27%. Leaving aside the question of whether the system should compensate error or only negligent error, the overall accuracy appears to be a little worse than 75%. So there’s at least a 1 in 4 chance of the system getting it wrong. Who wouldn’t want to improve this? One might think it would be those whose income relies on inefficiency and obfuscation. One might even think those people are trial lawyers. But I couldn’t possibly comment.
    Medical courts wouldn’t have to _exactly_ follow the Common Good model. The general idea of medical courts is that they should increase the accuracy of the current medmal system. If they don’t (and this is empirically testable once they’re piloted), we throw them out. It’s hard to see how an intelligent person could argue that we shouldn’t attempt to improve the accuracy of the current medmal system.
    Regarding the legal impediments to establishing specialized medmal courts, I won’t pretend to be an expert. Sure, sure, there are probably lots of roadblocks. But I only care about legal constructs to the extent that these would need to be overcome without mucking other things up. If a constitutional amendment is required to improve the accuracy of the medmal system, fine.

21. This is a story for another day, but HealthAffairs just released a new report:
    “The health share of gross domestic product (GDP) is expected to hold steady in 2006 before resuming its historical upward trend, reaching 19.6 percent of GDP by 2016.”
    Nice!
    See: http://content.healthaffairs.org/cgi/content/abstract/hlthaff.26.2.w242

22. Glad to have you back Eric. Don’t expect you to overtake your own posts, just banter with us. You provide valuable insight from the physician’s side of it, though we perhaps don’t always agree.
    But what are your thoughts about the medical courts issue?

23. >>> “I guess I don’t understand the difference between my peers and the PA’s peers.”
    What I’m saying is simple: Juries should be made up of qualified people, not housewives that fall for crying defendants. Not O.J. jurists.
    I am not an expert on other countries (nor anything else, for that matter), but it seems to me that Britain has a pretty decent system. But I’ll let others comment on that.
    >>> “If physicians in the US are complaining about experts as it is…”
    Where are they complaining about experts in medical courts?

24. “And I’d ask one more question. Assuming you were charged with a crime, would you prefer being judged by your peers or the prosecuting attorney’s peers? The same consideration should be given to doctors.”
    I guess I don’t understand the difference between my peers and the PA’s peers. Do you mean juries made up of other PAs as opposed to juries of other accused criminals? I’m not following you.
    “Other countries have successfully implemented medical courts, and as harrumph noted, they don’t necessarily have to be physicians. Just trained and qualified arbitrators.”
    Which countries? Do any of them have the 7th Amendment to the Constitution? Who picks those arbitrators? Who pays them? If physicians in the US are complaining about experts as it is, do you really think they’re going to live happily with the decision of a “trained and qualified (in what exactly)” arbitrator?
    And remember when considering other countries, with universal health care it’s not as necessary to file a malpractice claim. A deeper social safety net removes the financial hardship. You get rendered disabled by malpractice in this country, you’ve got big problems because you’re uninsurable and can’t work and our social safety net is pretty low. That’s not the case elsewhere.
    And, those arbitrators may be operating under a “bad outcome” system – ie. no fault, where you’re not determining the standard of care, just the nature of the injury.

25. Jack,
    I’ve read the Common Good proposal – it’s backdoor damage caps. Read it closely. Remember, Common Good is run by a lawyer from the tobacco industry’s chief lobbying firm, Covington & Burling. C&B has used tobacco money to set up tort reform “grassroots” efforts around the country.
    “Please explain how medical courts are impossible when patent courts can work so well.”
    How do you know patent courts work so well? What about them makes them models of efficiency? Do the losing parties simply take their lumps and say “oh well”? You’ve assumed their efficiency and their more accurate results without any evidence. Where can you show me that they work better than juries do in med mal? That their percentage of correct decisions is any higher?
    Besides that, patent courts are statutory creations, unknown at common law. Medical malpractice was a suit at common law at the time of our founding, and thus taking them away from a jury would be a violation of the US Constitution.
    “….”Can you prove it didn’t happen?????” Too many juries buy this and then turn around an wonder why they have to drive 200 miles to a neurosurgeon who can’t speak english.”
    Again, you just make blanket assumptions without any proof. If that’s your opinion, that’s your opinion, and no one can change it. But it certainly lacks a factual basis – or if one exists, you haven’t shown it.
    “Anecdotal. I review claims and I can tell you that the ones that go to court are invariably ones where the plaintiff and the doctor did not have a good relationship going in.”
    Anecdotal? If physicians relied on anecdotal evidence in diagnosing medical problems as much as they do diagnosing legal problems, we’d have some serious issues. Is a poor doctor/patient relationship a factor? Of course, but that’s a factor in any case. Two parties to a breach of contract action are much more likely to resort to a lawsuit than if they have a good relationship and can work out something amicable. That’s not surprising, but it says nothing about the underlying merits of the claim.
    “If your position is true then you will have no problem ending direct advertising, userous contingency fees and instigating loser pays. Folks with real injuries won’t lose out, and defensive medicine costs, argueably a small piece of a huge pie, can be somewhat saved.”
    Direct solicitation to individuals is already permitted, and many state bars have tried to limit advertising, only to have their regulations declared unconstitutional (freedom of speech and all). I have no problem with ending much of the advertising though. As to contingency fees, how else do you propose a person with a debilitating injury, mountains of medical bills, as well as regular everyday bills pay their lawyer, the experts, and all the associated costs with the trial? I’m sure many plaintiff’s lawyers would love to be in the position of the defense – get paid win or lose, no money out of your pocket. Unfortunately the clients aren’t insurers and can’t do that.
    We already have loser pays in most states, or a modified form of it. Check the Rules of Civil Procedure (although some may have done it statutorily).
    “Why does the neurosurgeon whose partner ordered bedrest get named when the bed breaks and the patient falls and gets a bruise? because his name was somewhere on the chart and a big net was cast. ”
    Maybe it’s because since med mal has the shortest SOL of almost any action, they are trying to get it filed and make sure not to miss anyone. Maybe it’s not clear from the records who did what or who was supervising and you won’t know for sure until depositions are done? Who knows without looking at the chart. Why would a plaintiff’s lawyer want to add one more defense lawyer to the case, meaning more potentially uncompensated work on his part, if it’s clear from the records that he’s not liable. If juries didn’t favor doctors 3-1 you might have a point. But they do.
    If the neurosurgeon wants out quickly, he need only offer himself up for depo. In fact, some states allow him/her to file an affidavit right away saying why he is not liable, and if the plaintiff keeps him in, then they pay his costs if he’s ultimately found not liable.
    “The degree of malpractice has nothing to do with a case going to trial.”
    That’s undoubtedly true. Lots of things go into it, including the patient’s ability to pay for the damages, whether their doctor, like you, admits their error, the willingness of the insurer to settle pretrial, etc.
    Can I tell you every plaintiff’s case is genuine and there are no bullshit claims filed? Of course not. No system involving humans is perfect. But all objective studies indicate it’s pretty darn good.

26. Happy to participate… will try to get involved later today… I try to not overtake my own posts with add’l comments…

27. A look at the United Cerabal Palsy (UCP) web site produced this:
    “Partly due to the significant increase in survival of the very premature infants in the last decades, cerebral palsy of perinatal origin is not decreasing and has even been shown to increase in some Western countries. This condition has devastating consequences for the individual and for society. Multiple factors can cause injury to the developing brain leading to cerebral palsy. Many preconceptional, prenatal and perinatal factors (endocrine imbalances, genetic factors, oxidative damage, and maternal infection among others) are known to be associated with brain injury. Perinatal hypoxia/ischemia, a disruption of blood and oxygen delivery to the brain, is a primary cause of brain injury in the newborn. To date there are no effective means to repair the brain once damage has occurred. Moreover, since many of these insults occur in utero, prevention may prove difficult, and regenerative strategies may be a better alternative to reduce the damage to the brain.”
    Another search produced this quote:
    >>>Dr. Murray Goldstein, a neurologist and the medical director of the United Cerebral Palsy Research and Educational Foundation, said it is conceivable for a doctor’s incompetence to cause cerebral palsy in an infant. “There are some cases where the brain damage did occur at the time of delivery. But it’s really unusual. It’s really quite unusual,” Goldstein said.
    “The overwhelming majority of children that are born with developmental brain damage, the ob/gyn could not have done anything about it, could not have, not at this stage of what we know,” Goldstein added.<<<
    Then I found this summation of John Edwards malpractice cases:
    (1) Application of abdominal pressure and delay in performing c-section caused brain damage to infant and resulted in child having cerebral palsy and spastic quadriplegia. Verdict set record for malpractice award.
    (2)Infant born with cerebral palsy after breech birth via vaginal delivery, rather than cesarean. Established North Carolina precedent of physician and hospital liability for failing to determine if patient understood risks of particular procedure.
    (3)Plaintiff alleged infant's severe cerebral palsy was caused by negligent administration of pitocin, failure to use fetal monitor, or timely intervening in baby's fetal distress.
    (4)Infant suffered severe brain damage after obstetrician failed to moderate use of Picotin after baby displayed clear fetal distress.
    (5)Birth-related injuries including cerebral palsy and mental retardation allegedly caused by obstetrician's failure to diagnose fetal distress, including umbilical cord wrapped around baby's neck prior to delivery.
    Can anyone say that Edwards did NOT have legitimate cases to take to court? He didn't take but a few cases and picked the ones with clear evidence that he could win. When do doctors want to take responsibility for their actions/inactions? Most of this focus on Edwards cases is Republican policitical hate spin, not science over "junk science".
    A little read here points to the real reason for tort "reform", which is really about a strategy to indemnify businesses.
    http://www.motherjones.com/news/outfront/2004/09/09_400.html

28. And I’d ask one more question. Assuming you were charged with a crime, would you prefer being judged by your peers or the prosecuting attorney’s peers? The same consideration should be given to doctors.
    Other countries have successfully implemented medical courts, and as harrumph noted, they don’t necessarily have to be physicians. Just trained and qualified arbitrators.

29. Matt (and I assume you are not the Matthew that runs this blog), take a look at the following discussion:
    http://cgood.org/healthcare-newscommentary-inthenews-45.html

30. Whoa Matt, hold on a minute big fella
    “Obviously each turned on specific facts, and you’ll find no physician who will tell you that a physicians’ actions can NEVER be the cause of cerebral palsy.”
    Your comment reads like the end of Plan Nine from Outer Space….”Can you prove it didn’t happen?????” Too many juries buy this and then turn around an wonder why they have to drive 200 miles to a neurosurgeon who can’t speak english.
    Plaintiff attorneys don’t drive med mal??????!!!!?????Patently false. Plaintiff attorneys absolutely drive med mal, they convert prospective plaintiffs through omnipresent, hamfisted advertising and they sponsor drive-by clinics with mobile x-ray and echos that troll for class members. If your position is true then you will have no problem ending direct advertising, userous contingency fees and instigating loser pays. Folks with real injuries won’t lose out, and defensive medicine costs, argueably a small piece of a huge pie, can be somewhat saved.
    Our current system serves the needs of the attorneys first, Plaintiffs second. It is extortive, userous and manifestly unjust to the accused in the civil realm. No matter how you value our legal system, though, its perceived problems must be addressed or the stakeholders will flee and we will be left with a sort of Iraq, a country with its leaders dead and its intelligensia fled….a country that just won’t work.
    “In some jurisdictions, virtually any unfortunate outcome might result in a jury award, though most bad outcomes don’t involve malpractice.”
    “What basis do you have for this claim?”
    Anecdotal. I review claims and I can tell you that the ones that go to court are invariably ones where the plaintiff and the doctor did not have a good relationship going in. There is always a point in real cases where the story where if the doctor would have only interacted differently with the plaintiff, all would have been avoided. The degree of malpractice has nothing to do with a case going to trial. I have made four potentially serious errors in my career(fortunately each each one different), one which had significant health consequences. In each case I came clean as soon as I could and never came close to litigation….knock wood. It is the relationship with the doc that determines malpractice risk, not the degree of malpractice. Many mutuals will hire private investigators, usually women, to deterimine if potential insured are, well, jerks. I have seen many many many (well, over 100) where the lottery mentality is evident, where the suit was clearly filed in the hopes of a big payday over a nonsensically minor injury. Why does the neurosurgeon whose partner ordered bedrest get named when the bed breaks and the patient falls and gets a bruise? because his name was somewhere on the chart and a big net was cast. Getting off these cases is time consuming, stressful and forever a bad mark against you. Yet there is never, and I mean never, any sanction against the plaintiffs attorney for doing it… in fact he can be sued for not harrassing an innocent bystander…some system.
    “If you want certainty, promulgate some solid standards of care, have the medical societies adopt them, and come down on those who testify contrary to them.”
    this has already been tried, most recently in North Carolina, and the State medical societies have gotten investigated and sued by the Federal Trade Commision for their trouble….and this in a republican administration, the would get “disappeared” if Edwards was President.
    . “I would also be interested in any comments you can offer with respect to futile care at the end of life. What percentage of patients who reach this stage have a living will and/or advance directive for healthcare? How do those break down between instructions that call for no heroics vs do everything? For those who don’t have a living will, could you give a sense for the magnitude of spending on futile care because the law and the malpractice system give you no choice and no ability to apply common sense depending on circumstances?”
    As I have a relationship with most of my patients, The living will issue is moot. it is addressed soon into our relationship and put in writing. For those who have no living will and I don’t have a relationship with, well, the risk of a distant relative is great enough that the costs can run into $100,000s in Icu and ventilator costs. It probably happens in our hospital over 100 times a year. It only takes a few terminal days on the vent to push the cost to six digits.
    Again I don’t apologize. Folks watch ER and House. People know the default is the full court press. If you don’t want it, then action on your part is required. Most living will say that when I think there is no reasonable hope, then a comfort level of care will be instigated. Rarely do I have a problem with families when I have the legally binding goods. If I do, I apply serious guilt. If that doesn’t work, then I turn it over to the hospital arbitrator. I have never had one go to court. As the money for the patient’s attorney comes out of the relative’s inheritance, I am not surprised. I direct most living wills into all or nothing ( no cpr, intubation , cpr or counterhsock)categories for practical reasons. In my opinion “undirected” end of life care costs far more than defensive medicine, in as much as it occurs in the most expensive venue.
    My defensive medicine costs far outweigh my malpractice premiums
    “Pray for us, in the future”
    Plan Nine from Outer Space

31. Matt: what about patent courts? Aren’t these a working model of adapting the legal system to matters of science that are well beyond the grasp of (even intelligent) people without specialized training? Please explain how medical courts are impossible when patent courts can work so well.
    Who said the juries of medical courts (or the judge or whoever would make the decision) would be doctors?
    For a really great look at the legal mishandling of scientific information, check our Marcia Angell’s book Science on Trial. It’s about breast implant litigation and it’s probably the single scariest thing a science-minded thinker can read. Her description of how trial lawyers couldn’t figure out the reason why a second clinical study might be of value (when the first “proved” something) still sends a chill down my spine.
    But then again…I’m a doc (academic, but still seeing patients) and I can’t say I really give a shit about trial lawyers etc when I practice. Might as well worry about comets, tsunami, and other senseless, unreasoning things over which I exert no meaningful control.
    A final comforting thought: no successful parasite kills its host.

32. I have trust in the current system because it works better than any other system derived to date. It’s as close to incorruptible as possible. And actually, the unbiased studies done by those with no axe to grind either way show that it works pretty well.
    As for doctors deserving a jury of other doctors, that’s like foxes guarding the henhouse. Why stop at doctors? How about insurance companies being judged only by juries of insurance execs? Truck drivers by other truckers? Juries find for the doctor far more often than not, so if you believe most of these claims shouldn’t be brought, obviously they are fairly smart.
    Barry, you make some very broad generalizations as to Edwards’ verdicts. Obviously each turned on specific facts, and you’ll find no physician who will tell you that a physicians’ actions can NEVER be the cause of cerebral palsy. Without reading the facts of his cases involving that issue, it’s simply impossible to accuse him of basing his theories of liability on “junk science”.
    As for the reason for C-sections, maybe that’s the reason, maybe not. But if doctors say they are still being sued for birth injuries at a ridiculous rate, then why are they still doing them? Perhaps other factors, such as convenience of the patients and physicians are at work?
    “In some jurisdictions, virtually any unfortunate outcome might result in a jury award, though most bad outcomes don’t involve malpractice.”
    What basis do you have for this claim?
    ” Judges with expertise in medical practice and neutral experts should be able to make this distinction much more competently and consistently than juries of lay people even setting aside the issue of how skillful the lawyers on each side are.”
    Tell me how an expert is objectively neutral? How do you pick such a person. Particularly when you consider the scorn brought to bear on those physicians who dare testify for plaintiffs as it is? Physicians often can’t even agree with their own, presumably neutral, medical boards. If a Democrat is picking the experts, will physicians not accuse him of picking pro-plaintiff experts whenever he rules against them and vice versa if it’s a Republican?
    And who will pay for all these experts? The taxpayer? And how does a judge become trained not only in the law but also across a vast spectrum of medical injuries? And who gets to pick that judge? Will he not be subject to the same bias accusations depending on political affiliation and campaign contributions? In theory, health courts sound like a fine idea, but the practice doesn’t really work.
    If you want certainty, promulgate some solid standards of care, have the medical societies adopt them, and come down on those who testify contrary to them. You do that, though, and physicians will tell you every patient is different and there can’t be cookie cutter standards. Well, so we’re back to the whim of two people, these experts and these judges, susceptible to all the complaints of bias I listed above. Not to mention the cost factor of all these experts.
    Plaintiff’s lawyers don’t drive med mal, plaintiffs do. Do you guys really think these people WANT to hire a lawyer and spend years going through litigation? And would you really call it a “lottery” win? How many people who have been awarded large sums of money in a med mal case would you call “lucky”? Would you take their injuries for the money?
    You guys had a very well reasoned well thought out debate about the medical field, but it appears with regard to the legal field’s intersection with medicine, you’ve relied on a surface repetition of talking points without much consideration of their practicality.
    I agree with Jack on punitive damages, by the way.

33. So, Barry, we really have plaintiff attorneys, through their lawsuits, driving medical decisions. I don’t think I like that.
    I’d also suggest that in the past these lawsuits have become more like lopsided lotteries than fair adjudication, and that’s not fair to the system (neither doctors nor the public).