OP-ED

Myths About Medical Malpractice

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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118 replies »

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  3. 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
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  6. 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.

  7. 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.

  8. 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.

  9. “(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.

  10. “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?

  11. 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.

  12. 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!!!

  13. 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.

  14. 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.

  15. @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.

  16. 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.

  17. 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?)

  18. 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.

  19. 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.

  20. 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.

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

  22. 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?

  23. 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.

  24. 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.

  25. “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?

  26. 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.

  27. 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?

  28. 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.

  29. “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.

  30. 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.

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

    I have heard that malpratice is headed in the same direction

  32. “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.

  33. 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.

  34. 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.

  35. 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.

  36. “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.

  37. 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.

    .

  38. 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.

    .

  39. 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.

  40. 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.

  41. 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.

  42. 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.

  43. “ONLY 42% OF DOCTORS ARE EVER SUED–EVEN ONCE.”

    So your comment can be interpreted as saying it is acceptable, assuming that nearly 1/2 of the profession is sued, thus you are potentially further infering by that comment that the public feels that nearly half of us are negligent, incompetent, or by your other comments are “arrogant and uncaring”.

    Hey readers, if this is not exhibit A of what this writer is about in her agenda in commenting about physicians in this country, then I don’t know what is a better example. And I love that dismissive addendum of “try not to panic’.

    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.

    Wow, thank you for the validation in that above comment, Ms Mahar!!!

  44. “but a medically valid decision with a poor outcome would not entitle someone to damages.”

    I agree, but denying damages and denying an injured patient the opportunity to present facts at trial are two different things. In your link to the Harvard study the system appears to work that out – but not perfectly.

    “If your negilgent or drunk, or ignore a patient to play grab ass in the coat closet you should pay out the ass and lose your license”

    So how do you get those guys out the door? Wouldn’t they want their chance to present their case?

    “I think we need to be 10 times harder on the bad doctors. ”

    So do I.

    “if a doctor maintains and follows such a check list they should have 100% immunity from malpratice claim.”

    I doubt a check list would result in any malpractice, the trick is getting doctors to agree with checklists – as we’ve seen in earlier discussions.

    “Bars are a joke, just as suseptable to corruption as government”

    I guess you could say medical boards are a joke as well, considering how many docs have recurrent malpractice claims. All you need is a law saying they are required to review and have non-lawyers also on board. Of course that won’t be perfect either.

  45. Sorry to waste a comment but I am stuck in a lousy server in the place I am residing for now at night that takes me to this site as of July 25–???

  46. RBAER–

    First, thank you for your thoughtful comments. I agree with much of what you say, but think that you misunderstood where I was going with this post. (This is, in part, my fault.)

    You write: “I am confused about the tenor of the whole article. I would say that a vast majority of doctors and a smaller, but still impressive majority of health care researchers would agree that the current system is dysfunctional, in that it does not separate well between negligent and nonnegligent care (and thath a lot of negligent care goes unnoticed). The post seems to, over long stretches, defend the current system, but your reply seems to be more critical. What is it? Do we need change or is everything fine?

    Perhaps I should have done a better job of signalling where my argument was going at the beginning of part 1.

    I, too, think that the current system is dysfunctional. ((I’m going to be turning this 3-part post into an Iissue Brief” for The Century Foundation, and your comment tells me that I should do a much better job of indicating that I DO NOT think our current malrpatcie system is just fine– at the very beginning. ).

    I meant to signal this in part 1 of the post when I wrote:

    “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.”

    In other words, I am making it very clear that sometimes platiniffs wind up winning when they shouldn’t, and that this is a Major Problem (“extremely disturbing.” )

    As I indicate in that pargraph, great harm is done when a claim is brought against a doctor who did nothing wrong– even if in the end, he wins the case.
    The experience of being sued for malpractice is harrowing.

    In part 1 of the post, I also point out 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.”

    Does this sound like a functional system?

    Finally, at the end of part 1, I explain that in part 2, “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.”

    That said, it’s true that in part 1, the body of the argument focuses on why doctors shouldn’t be so fearful of malpractice suits and let that fear drive them to practice defensive medicine.

    This isn’t to say that we have a good system for dealing with malpractice.
    But practiciing defensive medicine is not likely to save you from the 42% chance of being sued, sometime, during your career.

    If you’re sued, it won’t be because you didn’t do an extra test. Attorneys who represent hospitals tell us that patients sue when they found the doctor “arrogant” and “uncaring.” What really sets patients (and their families) off is when they are “stone-walled” when they try to ask questions about why the outcome was bad..

    If doctors were not so fearful of being sued, they might return the patient’s phone call after a bad outcome,, show up at the hospital, show real concern about the bad outcome, and if the hospital will let him, reveal what happened–whether it was a medical mistake or just that:
    “Your mother’ s heart was weak. I talked to her about this. There was a chance that the surgery would be too much for her. But she wanted to go ahead with it. As she knew, the research shows that she had more than a 50% chance if beating the breast cancer if she had the operation at this early stage.”

    Explaining this would greatly diminish the doctor’s chances of being sued.
    Fearm avoidance, and stonewalling greatly increases his chances of being sued.

    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 .

    Again, only 42% of docs are ever sued.–even once.

    If a patient is demanding unncessary tests or procedures, it’s probably best to suggest (in a non-adversarial way) that you might not be the best doctor for him/her. When she finds another doctor, you will be happy to forward her files to him/her . “Somtimes a doctor-patient match just isn’t good. I want you to feel that you’re getting the best care possible. I understand that. I’ll continue to see you, if you want me to, until your find another doctor. (You don’t want her to claim that you “abandoned”her.) But in my professional judgment, this test (procedure) is not needed.

    Finally, in recent years, both the number of marlpractice suits, and the size of awards have been fallilng. (I’ll discuss this in part 3)

    And if a doctor falls into that unlucky 42%, that is sued once , through no fault of his own,, all I was trying to say is,” try not to panic”. Chances are very high that you will win the case. Juries are not prejudiced against you. And you won’t be bankrupted. Courts almost never award more than your malpractice insurance will cover. (see part 2).

    If you read part 2, it will be clearer, I think, as to where I’m going.

  47. not sure how rbaer defines mistake(plus I would just hate to agree with him) but a medically valid decision with a poor outcome would not entitle someone to damages. In medicine not every decision, in fact very few I would say, have a clear cut right answer. You usually have a number of options to choose from. Picking one of those options and being wrong is not malpratice its being human.

    If your negilgent or drunk, or ignore a patient to play grab ass in the coat closet you should pay out the ass and lose your license. I think we need to be 10 times harder on the bad doctors.

    Milliman or others have triage list or acceptable treatment prorocals, if a doctor maintains and follows such a check list they should have 100% immunity from malpratice claim. If you are going to hold someone to a standard you should at least define that standard up front.

    I don’t see how a bad doc could benefit from safe harbor or be protected by it

    law societies? Like the Bar? no thanks I prefer not to put partisian crooks in charge of themselves. Bars are a joke, just as suseptable to corruption as government

  48. “remove it from juries and rewrite the laws to clearly define what malpratice is and offer safe harbors that doctors can abide by and be sure they wont be sued.

    Groundless claims the plantiff pays defendents cost”

    Nate, how would you separate malpractice (negligence or omission resulting in injury) from mistake(as rbaer likes to call it) resulting in injury? Would you pay less for a mistake causing injury than a negligence? How would you define “safe harbor”? Would not a safe harbor also protect bad docs, seeing as everything I have researched shows about the 80/20 rule for malpractice awards?

    By the way, NC already has “looser pays” legislation.

    For 15% (if we accept that #) I think we need the law societies doing better policing. Lawyers who file bogus claims should be referred to their state law board for review, that way patients are protected and lawyers (who patients go through) get disciplined. Let me be clear, I’m no fan of lawyers, but I do want patients protected.

  49. Dr. Mike–

    I am not defending our current malpractice system.

    See part 2 of this post on http://www.healthbeatblog.org, and my replies to
    others on this thread.

    I believe that we need full disclosure by the hospital and doctors from the outset, and if preventable errors have been made, we need apologies and compensation for the patient.

    Those who fully disclose can be legally protected from self-incrimination–this is already happening in many places.

    The goal of malpractrice investigations should be to a) fairlly compensate patients if the mistakes were prventable and b) reduce malpractice in this country. Their are way too many errors, mistakes, preventable hospital-acquired infections etc. in our health care system.

  50. remove it from juries and rewrite the laws to clearly define what malpratice is and offer safe harbors that doctors can abide by and be sure they wont be sued.

    Groundless claims the plantiff pays defendents cost

  51. Ok Nate, what do you want to do to weed out the 15% from the 85% that the present system does not address – according to your link?

  52. “for 15% you want to deny all the injured patients recourse?”

    Please link to where that was said or something was said that could even be construed to say that.

    Pathetic Peter, just pathetic

  53. So Nate, for 15% you want to deny all the injured patients recourse? You’d have to provide evidence of wide spread, doctors “lives ruined”. Maybe you think that injured patients don’t also have lives that are ruined.

  54. “However, groundless lawsuits still accounted for 15 percent of the money paid out in settlements or verdicts.”

    Peter are you claiming that 15% is not a problem…..oh wait your a flaming liberal anything under 10% fraud is a raging success for people like you, 15% is just to be expected.

    Why is it you can’t make the connection between 15% of settlements being bogus and the effect that has on doctors and their pratice patterms. Do you just not realize how a single malpratice claim let alone an award destroys a doctors name? These are people’s lives ruined and you seem to think 15% is acceptable. Curious how would you react if we found out 15% of criminals were innocent, or worst yet 15% of death row inmates, you would be up in arms demanding reform. But 15% malpratice, thats a sign of a succesful system.

  55. Nate, you might want to post the guts of the article as well.

    “The vast majority of those dubious cases were dismissed with no payout to the patient. However, groundless lawsuits still accounted for 15 percent of the money paid out in settlements or verdicts.”

    “The study’s lead researcher, David Studdert of the Harvard School of Public Health, said the findings challenge the view among tort reform supporters that the legal system is riddled with frivolous claims that lead to exorbitant payouts.”

    ““We found the system did reasonably well in sorting the good claims from the bad ones, but there were problems,” he said.”

    “The study found 3 percent of claims analyzed were filed by patients who had no injury. Of the claims that involved injuries, two-thirds were caused by medical error. But the remaining injury claims, or 37 percent, lacked evidence of a medical mistake, and most of those — 72 percent — were thrown out or otherwise resolved without a payout to the patient.”

  56. The study found 3 percent of claims analyzed were filed by patients who had no injury. Of the claims that involved injuries, two-thirds were caused by medical error. But the remaining injury claims, or 37 percent, lacked evidence of a medical mistake, and most of those — 72 percent — were thrown out or otherwise resolved without a payout to the patient.

    Can’t wait to hear you spin this maggie

    “In order to bring a malpractice case, you have to show harm or injury.”

    “The study found 3 percent of claims analyzed were filed by patients who had no injury.”

    “Even if a doctor does something that is clearly an error and the patient died of another cause, there is no lawsuit.”

    “But the remaining injury claims, or 37 percent, lacked evidence of a medical mistake, and most of those — 72 percent — were thrown out or otherwise resolved without a payout to the patient.”

    Did you see that Maggie, that was your last bit of creditbility flying away

  57. Many of the lawsuits analyzed contained no evidence that a medical error was committed or that the patient suffered any injury, the researchers reported.

    But Maggie said….

  58. “In order to bring a malpractice case, you have to show harm or injury.”

    http://www.msnbc.msn.com/id/12723303/

    “About 40 percent of the medical malpractice cases filed in the United States are groundless, according to a Harvard analysis”

    Wait what did MSNBC and Harvard just claim? Maggie you said this doesn’t happen and quoted Harvard to prove it. Here is Harvard saying 40% are groundless. But Maggie said…..

  59. “In order to bring a malpractice case, you have to show harm or injury.”

    You obviously have never been sued or been to court. You have to claim harm or injury, the purpose of a trial is to prove it. To bring the case you only need show the possiblity, not even probability. And note that is to continue the case, to actually file a case requires no proof of anything. Just being named in a case is more costly to the defence then the plantiff.

    “Even if a doctor does something that is clearly an error and the patient died of another cause, there is no lawsuit. ”

    This is completly not true, this happens every month, John Edwards made an entire career out of this.

    Articles are no good unless they show the raw data and how they derived at their conclusions. Articles are not facts they are opinions built on facts, unless they share their data they are just opinion pieces and propoganda and nothing more.

  60. Nate–

    In order to bring a malpractice case, you have to show harm or injury.
    IOM has several levels of harm or injury-and definitions.

    Even if a doctor does something that is clearly an error and the patient died of another cause, there is no lawsuit.

    In all of the cases I discuss, there was injury.

    In the mapractice literature, I will find the Harvard study cited over and over again. It has become the gold standard beause it is far and away the largest study, and it used physicians looking at cases in their own specialties.

    Most of the sources I cite can be access online without a subscription. (For example the article from the ER Newsletter.) The major exceptions are JAMA and NEJM (though often you can find their articles just by Googling the title.) But I’m aware most people don’t have subscriptions, which is why I often quote at such length, to give you the full context.

  61. Maggie,

    I seriously think that you are overstating your case in many respects.

    “By contrast, in Germany, when it comes to amenities hospitals are far more Spartan. But they are very, very clean–fewer infections than in the U.S. Different priorities.” I stopped training/working in Germany in 1999, but I am still in contact with family and friends who still work there. If rates of nosocomial infections and are lower, it may not have to do with active measures but rather that german inpatients are, on average healthier – they get admitted earlier/less sick, they stay longer.

    “Even when you have health courts, the experts will disagree on the ambiguous cases.”
    That’s why you need health courts. Get 2 or 3 independent peer physicians from out of state who receive anonymized medical records, and then let an experienced judge or a panel of judges decide, not always bound to the majority vote of these experts, but on the strength of the case they can make (and whether the majority argues reasonably and for similar reasons).

    Expert witnesses are expensive, but not that much. An hour is usually 200-500 Dollars, plus extra fees for depositions (even with the highest fees, 100 K would buy you hundreds of hours, and this is usually not needed).

    I am confused about the tenor of the whole article. I would say that a vast majority of doctors and a smaller, but still impressive majority of health care researchers would agree that the current system is dysfunctional, in that it does not separate well between negligent and nonnegligent care (and thath a lot of negligent care goes unnoticed). The post seems to, over long stretches, defend the current system, but your reply seems to be more critical. What is it? Do we need change or is everything fine?

  62. Cory–
    Thank you. I agree with much of what you say.

    As I see it, the goal of malpractice investigations and trials is to try to “bring out” what actually happened while sorting through the evidence, and then to decided fair compensation.

    The problem is that this is a tedious, acrimonious and very expensive way to “bring out” the facts. A less adversarial system would be much better.

    I’m not talking about a “no fault” system. We cannot afford to compensate every patient who is hurt or dies while undergoing medical treatment. Sometimes the injury or death just was not preventable. The patient had a bad heart, and had a heart attack while underoing surgery. He had been informed of the risks. The surgery was necessary, and it was performed corrrectly.

    Basically, patients are sick people, and sick people die. Often, medical care cannot save them.

    Patients should be compensated only if Preventable error causes injury.

    The easiest , least painful and least expenisveiway to find out if the error was preventable is full disclosure,from the outset, to make it as clear as possible what happened. Sometimes it will still not be entirely clear whether the injury could have been prevented. As I said in a comment above, medicine is shot through with uncertainties. But if the doctor/hospital are completely open– open their records, and let everyone involved talk,most often agreement can be reached about what could have or should have been done differently. Of an agreement can be reached that the right systems were in place, and best practice protocols followed. A bad outcome, but no preventable medical error.

    If the emphasis is not on “shame and blame” but on discovery, and learning from mistakes, the doctors involved can be very helpful in recognizing, even if only in retrospect, what they would do differently next time.

    I totaly agree about health courts. Having an “elite” judge these cases creates a whole new set of problems. (I don’t even want to think about them– charges of bribery, prejudice, etc. etc.) And getting to the court is still a
    time-consuming process. Meanwhile, experience shows that expert courts tend to be biased against doctors and in favor of patients. This is no such thing as a purely “objective” judge or expert.

    We need to change our medical culture. Some doctors are very, very reluctant to acknowledge that they might ever make a mistake. (This is why many surgeon refuse to use checklists, or to “sign” the site where they are supposed to operate.) They need to get over that, and learn some of hte humility that Dr. Atul Gawande dispalys in “Comlications”— humillity in the fact of the uncertainties of medicine, humility in face of the responsiblity of
    caring for patients, and the complications of the human body.

    And plaintiffs need to get past wanting to punish someone.

    This is possible. We’ve seen it working in Michigan and elsewhere.

    (Of course there are cases where doctors should be punished– lose their
    licenses, charged in court. But those –at the extremes–are much clearer.

  63. “Expert witnesses are expensive. The process of “discovery” is expensive.
    A plaintiff’s attorney can expect to lay out more $100,000 just to get ot court.”

    So when Tim pays a doctor $3000 to $5000 he is really paying them much more and just doesn’t know it?

    In my experience going to court it never cost the plantiff nearly as much as the defence.

    As usual those that actually do this have no idea what they are talking about but Maggie who studied it for three hours on the internet does?

    “In cases where independent physicians review the case and say that a medical mistake was made, patients sue only about 3% of the time.”

    Thats becuase mistakes are not torts, you can’t sure someone for making a mistake you can only sue them for harming you. Your unwillingness to even address this argument while continuing to repeat your claim just proves what a propogandist hack you are. What part of errors are not torts don’t you grasp?

  64. PCP,Lauren, Steve, Health Insurance Buyer, RBAER,

    PCP– Thank you!

    Lauren– Filing a malpractice claim is not as easy as one might think.
    In many states the platiniff’s attorney must find another M.D. who agrees that a preventable medica mistake was made, before he even files a claim.
    This often means finding, and paying, an expert witness.

    Expert witnesses are expensive. The process of “discovery” is expensive.
    A plaintiff’s attorney can expect to lay out more $100,000 just to get ot court. He is taking the case on contingency. If he loses, he doesn’t get his money back. On average it takes 4 1/2 years from the time the patient is injured to the time the case is settled (in or out of court).

    This is why plaintiff’s attorneys do not file these suits casualy.
    (Other types of personal injury suits are different, and much easier and less expensive– for instance a “slip & fall” suit where you slipped on a sidewalk that someone didn’t shovel.)

    In cases where independent physicians review the case and say that a medical mistake was made, patients sue only about 3% of the time.

    STEVE– Yes, I agree– malpractice suits have not reduced the number of medical errors in our health care system. This is in part becuase few patients who are injured actually sue (it’s expensive; they essentially trust their doctor and feel that he did the best he could) and because even when doctors are sued 5, 6, 7 times, state medical boards rarely discipline them or investigate them (see Part 2). And hospitals let them go on practicing– particularly if they are doctors who bring in lots o lucrative business. (They may also be doing unnecessary surgeries while brining in all of that lucrative business.)
    The majority of doctors never face a malpractice claim–not even once.
    So if someone is sued 5 or 6 times, this is a warning. Someone should be taking a hard look at his practice. May be he is in a speciality that is particularly vulnerable to lawsuits. Maybe he is bravely taking particuarly difficult cases. Or maybe he is simply sloppy, a cowboy, doing too many procedures too quickly . . .
    Other physicians (and nurses) often know who these doctors are. . .

    We need to make malpractice investigations a deterrent to malpractice.
    This is why I favor “full disclosure”–so that nurses and others can talk freely about what they saw and what they know– and penalties for anyone who attempts to stone-wall or cover up.

    HEALTH Insurance Buyer– I definitely agree. We should have a free national data base showing how often a doctor has been sued, with as much detail as possible. The fact that a doctor has been sued, that he settled, or that he lost in court is not proof that he was guilty of malpractice. But if a doctor has been sued many times, this is probably a red flag.

    RBAER– Yes, medicine is shot through with ambiguity and uncertainties.As you probably know Dr. Atul Gawande is brilliant on this subject. (See his book “Complications.” )
    This why many malpractice cases are far from cut and dried. And this is another reason why health courts are not the answer. Even when you have health courts, the experts will disagree on the ambiguous cases.

    (In part 3 of this post, I’ll be talking about the ambiguities.)

    This doesn’t mean the patient shouldn’t be compensated. If the systems the hospital is using are “sub-optimal” (for instance no checklists during surgery
    even though we know they save lives) or if the physician’s judgment was
    sub-optimal (he didn’t take a really careful history, and so didn’t order the test he should have ordered), the patient still was injured by a preventable error. (Emphasis on Preventable)

    Particularly in these ambiguous cases, going to court is a terrible waste of time, money and human energy. The process is so drawn out–and this is cruel to everyone involved (defendant and plaintiff). (I talk about this in part 2 and will be expanding on it in part 3) This is why we need
    full disclosure at the outset. These ambiguous cases should be relatively easy to settle: the doctor’s judgement was not the best, but he was not impaired; the hospital’s “system” needs to be improved so that one person’s suboptimal judgment is likely to lead to patient injury. And, in medical school, we need to put more emphasis on patient histories, rather than just ordering tetsts.

    In these cases, hospitals that do “disclose, apologize etc.” find that patients rarely want to sue. It is relatively easy to “settle” with them– and to settle generously. The hospital still saves an enormous amount of money by avoiding the whole litigation process–or , discovery.

    I agree that caps do little good.

    I don’t think physicians in Europe make more mistakes In many areas, their outcomes are better. That wouldn’t be the case if their health care systems were riddled with errors.

    . Hosptials in much of Western Europe take patient safety more seriously than we do. Paul Levy,
    former CEO of a Boston hospital, wrote not long ago about a survey of CEO’s of U.S. hospitals which showed that fewer than 50% consider “patient safety” and “quality of care” to be among their two top priorities. In the U.S. many hospital CEOs think that it is their job to gather
    revenues. And improve the hotel-like amentites that bring in well-heeled patients. Our hospitals are more likelly to be “profit-driven.”

    By contrast, in Germany, when it comes to amenities hospitals are far more Spartan. But they are very, very clean–fewer infections than in the U.S.
    Different priorities.

    Also, I don’t know if there is the same “blue wall of silence” in European health systems. Here, because medical school is so tough — so much bulllying, sleep deprivation and so expensive– when doctors graduate many feel a loyalty to anyone who went through the process. Doctors have told me: “Look I dont’ think he’s the best doctor in the world. But anyone who went through med school deserves to practice. I ‘m sorry about what happened to that patient, but I don’t want to ruin his life. This is why docs, like policemen, don’t turn each other in. The irony is that, like policemen, their job is to protect the public. Instead, too often, they protect each other.

    Finally, I have talked to many, many doctors about malpractice. (This isn’t the first time I’ve written about the subject.)

  65. Prescribing the wrong dosage of a drug is an error. If it is cought by the pharmacist before being dispensed the patient never suffered any harm, why should they be paid or compensated for this? It is not illegal to make an error. Patients should not be compensated for errors unless they cuase harm.

    If providers are required to disclose all errors that creates plenty of opportunity to fake harm. Slip and fall accidents and auto accident injuries are perfect examples of what your suggesting we unleash on the medical community.

    This is another example of a proposal that sounds simple of effective on paper only becuase you have no experience in the real world. Go to court a few times and see how that changes your opinion of full disclosure and trusting attorneies to not abuse the system.

  66. EVERYONE, RBAER

    EVERYONE– Let me suggest that you read part 2 of this post, on HealthBeat. (www.healthbeatblog.org) . You’ll find it here http://www.healthbeatblog.com/2011/06/myths-about-medical-malpractice-part-2-crisis-or-hoax-.html (I’ll also let John Irvine know that if THCB wants to cross-post it, this is fine with me.)

    Part 2 wil answer some of your questions. Part 3 (which is not yet posted) will answer more.

    Ultimately, I agree with the report from the American Enterprise Institute which suggests that the best remedy is:
    a)full discolosure of what happpened by the hospital, physician and nurses (laws can protect everyone involved so that disclosure does not mean self-incrimination)
    b) apoloigize to the plaintiff and/or relatives– attorneys who defend doctors and hospitals emphasize how important this is
    c) compensation insofar as a preventable error was made (“error” as defined by the Institute of Medicine–see my reply to Rbaer below) ; if the hospital’s intiial offer is not accepted, the settlement could go to arbitration
    d) the hospital makes a plan to prevent similar errors in the future, and shows the plan to the plaintiff.

    In most cases, when the hospital/doctor discloses, apologizes and
    compensates, plaintiffs do not sue. They do want to be compensated, but if you don’t stonewall them, the vast majority won’t want to go to court.

    And full disclosure saves a huge amount of money that ordinarily is spent on legal “discovery” as well as expert witnesss who dispute what actualy happened.

    I would suggest extra financial penalties for hospitals or doctors who attempt to “cover up” what happened.

    Sunlight is the best disinfectant.

    Finally, on special “health courts”– in Part 3 I explain the problems–and the expense. The administrative costs of any triall–whether in front of a jury or in front of medical experts are very, very high– about 60% of the total cost. This is a terrible waste of money when full disclosure would avoid the need for a trial.

    RBAER- On error, as I explain in the post, I am following the Institute of Medicine’s definiion: 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).”

    This is also the defintion that Harvard’s School of Public Health followed in its study. In all cases, we are talking about “preventable errors.”

    The purpose of malpractice investigations should not be to “shame and blame” but to acknowledge what happened, and discuss how it could be prevented in the future. The ultimate goal is to reduce the amount of harm that patients suffer due to mistakes that could have been prevented.

    You write: “Physicians committ diagnostic mistakes by nature.” I don’t know what that means. Yes, eveyrone makes mistakes, but in medical school students are taught to try to avoid diagnostic errors by: a) taking a good medical history –and really listening to the patinet b) ordering appropriate tests based on history and symptoms c)following up on test results in a timely fashion .
    There is, as you know, substantial medical literature on “diagnostic errors” and how to prevent them. Just saying “physicians, by nature, make
    diagnostic errors is not enough.

  67. Barry,
    I think your suggestions are reasonable, as long as the health courts worked differently, similar to what I suggested above.

    I also want to make clear that I am not interested in protecting negligent physicians, provided that they are negligent in the true sense. If we want to keep jury trials for docs who drink or do not document a true and skillful effort to do their duty to the patient, fine. The no fault compensation was mainly a suggestion to help patients that had a poor outcome due to a clear diagnostic mistake or a system failure, but without negligence (as found out during peer review). However, standards need to be strict and reviewers impartial, because otherwise, the system will be abused (lawyers will comb through hospital deaths of any young or middle aged persons, will find some mistake that some paid expert will testify lead to the patient’s demise).

    I also think that competence should be monitored carefully outside of the court system – I personally get the feeling that the specialty boards would be able to weed out bad physicians if they receive a clear mandate and pressure (part of their job is to protect the reputation of the specialty), but if you doubt their impartiality, one could get more public involvement by giving more power and clear directives to state medical boards. What some people don’t seem to understand though is that you will not get around peer review – you have to be a pilot to judge a pilot’s actions, and a legal expert to judge the competency of a lawyer or judge etc. You certainly can improve peer review greatly by making it anonymous, paid for by the court and done out of state, and it would be easy to weed physician reviewers out who always side with the physician and/or show poor reasoning.

    What we have to move away from are the frequent attempts to blame physicians for poor outcomes when they did an appropriate job. I have no problems singling out negligent (by trial) and/or incompetent (by the boards) colleagues.

    Actually, I don’t think the “blue wall of silence” is any longer intact (it probably was much stronger years and decades ago). I have witnessed multiple times that doctors testify against each other, for multiple motivations (for instance, if you are involved in the case as witness or codefendant, you want to document that you did your job but that colleague X didn’t; for money or to impose your medical opinions as an expert witness; out of concern for the patient/because the reviewer thinks it is the right thing to do). As one example of many, I remember very well a case of internal peer review where a specialty colleague of mine negatively reviewed a case of an ophtalmologist within the same MSG (mis)handling a condition that is shared between the 2 specialties; I knew both docs (the reviewer definitely had a narcissist streak) and I would rather believe that the usually very competent and caring eye MD made an honest effort and misdiagnosis, but I don’t know details of the case and it is certainly possible that this was a case of negligence or at least something that should be forwarded to the board; in any case, negative physician peer review is no longer exceptional, even in the same group, in a smaller town and non anonymous.

  68. I admitted that in the very beginning of my post, and never did I claim to know what’s going on but I gave you some food for thought based on what you wrote.
    I do not take any ownership of any of the overstatements, blaming and aggressiveness in this exchange. If you felt reinforced in your deep resentments, I would find it regrettable.

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

  70. Now it works, when I came on tonight it first reported just 8 comments, but after the above everyone’s from today magically appeared?

    What gives?

  71. What happened to this thread!? The owners of this site need to have a more consistent blog.

  72. Just to clarify, what I would do if I were running a hospital system or ACO as it relates to malpractice assumes a reformed tort system with health courts instead of juries adjudicating disputes and safe harbor protection from lawsuits for doctors who follow evidence based guidelines.

  73. rbaer –

    I don’t think a no-fault medical tort system would work very well in the U.S. for two reasons. First, the political process could set the schedule of benefits at a level far higher than would probably be awarded under the current system. Regulatory agencies like the EPA, DOL, DOT, etc. often implicitly value a life at as much as $10 million when doing cost-benefit analyses of proposed regulations that the private sector will need to spend large sums to comply with and implement. If we are going to award people up to $150K per year of life lost, the 35 year old who died due to the missed diagnosis that you linked to would be awarded roughly $6 million instead of $750K, for example. Also, there is a fraud culture among too many people in too many places in this country. I think people would find ways to exploit and game the system.

    I have lots of experience as a patient, especially over the last 20 years. I’ve had six surgical procedures including a CABG. Most of my experience with doctors and hospitals has been positive and I would be the first to state that I’m alive today because of the skill of physicians and the miracles of modern medicine including prescription drugs. That said, I can empathize with people who are harmed and then run into the white wall of silence when they try to learn what happened and find that doctors and hospitals have circled the wagons to protect themselves.

    It is for this reason why I don’t completely trust police either. Even if it can be clearly proven that 99% of the time, police are honest, hard working and do a fine job, if they hide behind the blue wall of silence when there’s wrongdoing, it damages the reputation of the entire profession. Their attitude is that it’s more acceptable that an innocent person was wrongly accused and maybe even sent to prison that to hold a rouge cop accountable for planting evidence or tampering with evidence or using excessive force.

    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.

    The bottom line of the above approach is roughly what Warren Buffett told the employees of Salomon Brothers in 1990 when he took over as interim CEO following a Treasury bond bidding scandal. He said (paraphrasing): If you lose money for the firm, I’ll be very understanding. If you lose reputation, I’ll be ruthless.

  74. rbaer, you have no clue what you are talking about in regards to the divergent experiences I listed, nor is your “cluster” explanation even close to the mark.

    And as usual with docs, it’s the patient’s fault.

  75. I obviously have no knowledge about the experiences you write about, and it is very well possible that you had a cluster of exceptionally poor caregivers, and little opportunity to redress.
    It is also possible that you have unrealistic expectations – if you have “a long list (of grievances) with different providers” and start getting needlessly personal and aggressive even with anonymous individuals like myself (“How often do you get sued rbaer by patients who had bad outcomes?”) because you don’t agree with them, you should really consider this possibility (and one doesn’t rule out the other, you may have had witnessed some really poor/negligent care while having had and still having unrealistic expectations). In fact, your explicit statement that one should “not settle for “reasonable and average”” supports that you want to have above average care for everyone all the time, and that’s just not possible and a logical fallacy. And your obviously combative attitude will get you a generous helping of extra defensive medicine for sure (as a side note, I agree that some defensiveness, i.e. pressure of doing your job right, is needed), but quite unlikely, at least with the reasonable and average physician who wants to do his/her job and help you and your loved ones, any real improvement in your care.

  76. I am not getting into a discussion with this part of the thread, but I will say this, as I find this lingering attitude among older colleagues especially that medicine is a “fraternity” and we have to protect our “brothers” irregardless of behaviors and actions, allowing physicians who are impaired and inappropriate to be given what amounts to a free pass after being exposed for poor outcomes with patients is collusion and wrong to do. And those who comment here who are active physicians know this to be true.

    So, as I wrote at a past thread, are we to be treated as univerally at fault when one doctor is exposed as impaired, just like when we read of a bad cop getting busted means all cops are guilty as well?

    There are those who want that train at full speed ready to run off that broken bridge. The consistency of some commenters here is as antiphysician as I have read at flagrant doctor bashing sites.

    Just be careful what ya wish for, folks!

  77. “How come?”

    Direct experience. My wife has been a nurse for over 30 years and worked with her share of great docs, in the middle, and incompetent ones, or at least ones that made terrible mistakes. I have had my share of contact with fumbling diagnostic doctors who purport to know what is wrong. My wife even had her life threatened at work by a physician and I don’t have the time to get into how hard and long it was to get this to court and to College of Physicians. No support from other staff docs who knew this doc’s history. By the way, this doc is still practicing even though he had another major (public) event at another hospital. His license should have been revoked years ago. My wife and her sister have also had great frustration dealing with hospitals and docs when seeking treatment for her aging (late) father. Nursing care has also been a problem. Without them as his patient advocates he would have been unnecessarily dead a long time ago, and they weren’t trying to keep him alive at all costs, even during the final, final days directing no heroic measures. Lying in urine, unnecessary physical restraints, wrong meds, wrong diagnosis, there’s a long list with different providers.

    There is great resistance to “questioning” professionals and you guys hold great influence which I think is abused.

    “The problem is that medicine is not an exact science and decisions and courses dependent on very mutliple variables, and that is something you don’t seem to appreciate”

    I do, and understand, but I see too much incompetence and laziness in the process. I imagine that if you needed surgery you would be critical and investigative of your surgeon and hospital and not settle for “reasonable and
    average”, nor would you give a doc a pass if they made a “mistake” on you.

  78. Peter – physicians are no different than other people – it is ridiculous to speak of them as if they are somehow unique in their behaviors or motivations. It is not possible to belong to a profession in which the majority of the members would turn out any different than docs if retrained into the profession of medicine – i.e. you would become just like us because you are us and we are you. You can never fix things by pretending that you can make a whole group of people behave differently than their fellow citizens would under similar circumstances – you have to change the circumstances if you wish to modify behavior.

  79. No, time constraints.

    Traffic: usually, for an accident to happen, there is a combination of mistakes by the driver at fault (e.g. increased speed and reduced distance to the driver ahead), or there is a grave error/offense that suggests negligence (driving over a red light). Traffic is relatively straightforward, medicine usually isn’t. I believe that drivers who make mistakes should pay (or their insurance, respectively), because determining mistakes is more straightforward, and moreover, defensive driving is highly desirable, while defensive medicine isn’t.

    Architect/engineer: The problem is that medicine is not an exact science and decisions and courses dependent on very mutliple variables, and that is something you don’t seem to appreciate. If the architect did not use his professionals skills (e.g. did not involve the engineer, or did not check his/her calculation), he/she is negligent and his/her insurance should pay. Same for physicians: a doctor doing a 2 minute history and a 5 minute exam and a super brief dictation without discussion is likely negligent and in trouble if her harms someone that way. I have never stated anything else.

    We had similar discussions in the past, and I note this and previous times that you show a certain mean streak whenever this topic comes up here, and I did not notice this when other topics are discussed. How come?

  80. “I am not sure whether “Critics of the present system don’t want the patient compensated” is correct. I can only speak for myself, but I would have no objections against a no-fault compensation system.”

    “rbaer, do you think people should pay for their “mistakes” if those mistakes harm someone”, “If it is just a professional mistake, no.”, “I would have no objections against a no-fault compensation system.”

    Confusing.

    Would a no fault system also compensate for lost wages etc.? Would a no fault system have a way to “educate” the doctor? The problem I have with physician self policing is docs don’t criticize other docs. The system operates like the police self protection code – “I feel your pain and there by the grace of god go I, and I have to work with you”.

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

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

  82. “I don’t think they are very effective in their present form.”

    I agree, but I think for different reasons than you.

    “As most physicians are in fear of unfair medical litigation (as you might agree at this point), do you think they are in favor of adding/increasing another level of oversight and discipline just in ADDITION/on top ot the courts?”

    I guess docs just don’t want any oversight.

    “but you seem to think that doctors are infallible and all knowing.”

    No it appears docs think they are infallible and all knowing. Opinion of Court of appeals, and my experience:
    “True, physicians too often have a tendency to encourage the aurae of an infallibility they do not possess.”

    rbaer, you didn’t answer my questions on liability examples I gave; avoidance or double standard?

  83. Peter,

    I am not sure whether “Critics of the present system don’t want the patient compensated” is correct. I can only speak for myself, but I would have no objections against a no-fault compensation system. There would have to be safeguards to make sure that the system is not abused. In general, I am strongly in favor of a tighter social net – if a human being becomes impaired, be it because of negligence, incompetence, misjudgment, systemic flaws or – probably by far most common – the natural cause of the condition, this human being should have appropriate economic support (and re. negligence, incompetence, misjudgment, systemic flaws – these are things to aggressively correct … but not with the present system, because it costs much but doesn’t deliver).

  84. Peter,

    “bad outcome” is a prerequisite for a lawsuit because there is no case without damage. Very often in medical litigation, the connection between the alleged error and the bad outcome is tenuous at best.

    “Don’t we have that system now with professional boards?” I don’t think they are very effective in their present form. As most physicians are in fear of unfair medical litigation (as you might agree at this point), do you think they are in favor of adding/increasing another level of oversight and discipline just in ADDITION/on top ot the courts? Make the court system fair and then you will have support to rebuild state- and specialty boards with teeths.

    “I’m just a Reasonable and Average Doctor Who Makes Mistakes” – I think that is, to some extent, just common sense, but you seem to think that doctors are infallible and all knowing. I feel flattered, but I think you are greatly mistaken. I also wish that all physicians could always perform above average as you seem to postulate, but that is logically not possible.

    Physicians are highly selected and trained (esp. in the US, I believe only France and the UK are similar); you could make the point that one should weed more out during med school/residency, and maybe you are right … but, for instance, the 1st attempt fail rate for the specialty boards in my specialty is about a third, which I think is quite high after med school and 4 years of residency.

  85. “Why, after a malpractice event, wouldn’t you want to have the physician educated, the patient compensated, and to have future similar events prevented? Provide us with a rational explanation of why you believe the current system accomplishes those goals.”

    Critics of the present system don’t want the patient compensated, thereby meaning the lawyer is not compensated and therefore there is no mechanism to “educate” the physician to prevent future events. This creates safe harbor for the incompetents among conscientious physicians.

  86. Maybe because yet another argument or rationale to further enslave physicians to legal entanglements. That has been the gist of her writings I have read since first encountering her last year.

  87. Tim has it exactly right.

    Maggie, what’s your goal in presenting this? I understand your points, but what is it that you are hoping to accomplish? Why, after a malpractice event, wouldn’t you want to have the physician educated, the patient compensated, and to have future similar events prevented? Provide us with a rational explanation of why you believe the current system accomplishes those goals. From your own data it is clear that the same mistakes are being made, compensation is not being given uniformly, and physicians have to take a defensive stance defending their actions. How is this such a good thing that we should defend it? Why does it matter so much to you that physicians believe fictions about the current malpractice system? Let’s assume it possible to erase those fictional beliefs – how have you improved anything?

  88. I read the link, and found both claims (mistakes) were settled, assuming out of court, for $3500 and $750,000. I assume you think no compensation should have been paid, even though if another Radiologist had read the pictures no “mistake” would have been made? Tell me, if another (reasonable & average) driver makes a “mistake”, simple to do you know, without negligence, and causes damage to your car, who should pay for your car’s repair?

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

    Don’t we have that system now with professional boards? And if you read the definition by the Court of Appeals, now every doctor gets judged against “average” or “reasonable”, which really dumbs down the required skill level doesn’t it. Will doctors start posting signs in their offices that state, “I’m just a Reasonable and Average Doctor Who Makes Mistakes”?

    “You almost never will be able to sue a professional, say, a lawyer, investment banker or architect because something did not turn out well (unless you can prove that they acted in a negligent manner, e.g. the architect not doing a calculation that was obviously needed, or even committing fraud for personal motives).”

    How do you prove negligent unless you take the case to a jury with evidence? If the architect (mistakenly) undersides a beam and a wall falls down, who do you want to pay? How often do you get sued rbaer by patients who had bad outcomes? Don’t patients have to sign a form telling them they have been made aware of the risks and there may be a bad outcome?

  89. Peter,

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

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

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

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

  91. rbaer —

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

    Tim —

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

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

    Nailed it.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    The rest is blah, blah, blah.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Beating a dead argument is like beating a dead horse

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

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

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

  98. rbaer –

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

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

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

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

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

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

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

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

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

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

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

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

  101. Better picture.

    My eyes still glaze over.

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

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

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

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

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

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

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

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

    I can hardly wait for part two.

  102. Ms. Mahar,

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

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

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

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

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

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

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

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