Saturday, February 24, 2007

The Shame of Malpractice Lawsuits

This posting is not about tort reform. It is not about defensive medicine (e.g., MDs taking too many tests to avoid the chance of lawsuit.) It is not about controlling costs or improving the quality of care. It is not even about whether malpractice lawsuits are fair. It is about the emotional effect on a doctor when he or she is sued for malpractice.

A friend of mine (I'll alternate genders to help maintain confidentiality) recently found herself in this situation. By any measure, this person is an excellent physician. She has impeccable clinical judgment when it comes to both diagnosis and treatment. She has superb interpersonal skills and bedside manner. She is highly respected by her peers, by the nurses, and by all who know her.

Recently he found himself as a defendant in a malpractice lawsuit. The details and merits of the case don't matter all that much. The patient had been under his care for many, many years and was always satisfied with the quality of care offered. After the patient died, the patient's children sued.

Even though she knew that she had done nothing wrong, my friend's main emotional response to the lawsuit was that she was ashamed. She did not want anyone to know about the case -- whether colleagues in the hospital or social friends. I was stunned. Without knowing any of the evidence in the case, I was confident that this doctor had done her best in treating another human being and would be appalled to think she had done anything to create harm. I also knew this person to be as well trained and well intentioned as anyone I could imagine.

And, yet, he felt shame in being named as a defendant in a case that accused him of negligent treatment.

As I talked to other doctors, I learned that this was a common reaction to such lawsuits. Another friend talked of the scars left from a case 20 years ago. He was found not to be at fault, but he could still vividly recall the weeks of shame he felt while the case proceeded.

What is it that makes doctors respond in this way? Are they so naive about the legal system that they are not able to absorb its brickbats with equanimity? After all, people in other fields are sued all the time, and while they feel many emotions, usually shame is not at the top of the list.

I think it is this. Doctors devote their lives to alleviating human suffering caused by disease. They spend decades in training. They disrupt their family lives to be available to help others. For them, this is a calling. It is not part of their life. It is their life. They measure their worth to their community and ultimately value themselves by their unfettered dedication to this cause -- and by society's appreciation for it.

A malpractice claims shatters this construct. In the doctor's mind and heart, it says, "Society does not value all that I have devoted my life to. They do not believe I am worthy of trust that is granted to me, notwithstanding the effort, energy, and dedication I have given to this calling." And perhaps he even says, "Maybe I am not really as good a doctor or as good a person as I think I am."

For someone who has spent his or her whole life basking in the gratitude and admiration of individuals and society, this can be a devastating experience. Even when the verdict is issued, clearing the doctor of all wrong, it can leave a terrible scar.

As this particular case proceeded, I was really pleased to see an evolution in the doctor's feelings. After watching the opposing witnesses misrepresent the clinical evidence in the case, she got really, really angry. Her sense of shame evaporated. It was replaced by an outrage that the patient's children, the plaintiff's lawyer, and members of her own profession were causing her to spend hours away from the care of other needy patients. With the arrival of anger, her confidence returned.

Sure enough, he was cleared of all allegations. He came back to work, and I was heartened to see that caring smile return to the floors of our hospital. I hope he never has occasion to feel unwarranted shame ever again.

40 comments:

Flea said...

"For someone who has spent his or her whole life basking in the gratitude and admiration of individuals and society, this can be a devastating experience."

In our dreams, maybe, Paul. Unfortunately, as Chris Moltisani might say "It aint like that", not in real life.

In general, you're right. Getting sued sucks. For me, it feels as though I'm on trial for murder.

One of the reasons I launched my own blog was to let normal people know what hell it is for a doctor to be sued.

best,

Flea

Anonymous said...

Forgive my cynicism, but I think that most health care consumers recoil at the "reasoning" Levy sets forth. His argument is essentially "I'm special, I'm morally select, therefore it is an affront to question my competence."

Sorry, healthcare is just another service industry. What doctors do is highly risky--their mistakes are costly. It's a very complex question of who should pay these costs.

All Levy seems says is "Oh, we doctors are such a superior lot, we shouldn't have to pay." You all a bunch of Albert Schweitzers in Lexuses.

BipolarLawyerCook said...

You are entirely right that there are many (even most) doctors victimized by unscrupulous and/or just wrong lawsuits. And there is a terrible feeling of betrayal when a fellow doctor criticizes you unfairly, for pay. Doctors need to be exposed to the facts of the tort system before they get out of med school, and to understand that it is a professional hazard, no matter how good a doctor they are. The simple fact is, most doctors will be sued at least once during their career. Enter a high risk speciality, like ER, anesthesia, or OB/GYN, and you'll get sued three or four times before you retire.

However, as a former med-mal defense lawyer, there are cases (less than 10%) where the doctor is at fault, as well as cases where the result may have been a known side effect, but there's a real question of whether the doctor should have counseled against the particular treatment given the patient's particular history. It's hard on doctors to think that this might be the case, even if they are really in the 85% of cases where the doctor was right, and it was an unfortunate rare side effect or unforeseeable result. I defended physicians who I would choose for my own family's care, who were so dispirited by being sued that they contemplated leaving the field.

But what are the 15% of patients who sue correctly to do? Many lose their jobs, or are disabled to a significant degree of financial hardship. Employers don't offer short and long term disability benefits, and the spend down and waiting periods for Medicaid/Care aren't worth it or helpful when there are immediate needs. The social welfare system isn't equipped to deal with disastrously injured people in the health care context, and the solution isn't clear.

The problems with socialized medicine are clear-- access, quality, cost to taxpayers, etc. A worker's comp-like system would be very hard to implement. And in the meantime, folks gotta eat. Licensure discipline and remedial training may help the next patient down the road, but the one who suffered the injury sees no other way to survive than to sue.

It's a tangle, that's for sure. More information, however, will help patients understand the context in which the doctor's working. I remain convinced that effective communication can help prevent a lot of the injuries and remedy a lot of the dismay when they inevitably happen. Your blog's a start in the communicative direction.

Rocky said...

This is an incredibly touching story. It seems that this individual was practicing fantastic evidence-based medicine and doing everything right. However, what if this individual was just out of training instead of a veteran physician? Even though they may be practicing medicine just as they should, would this have been a more devastating blow? Would it cause permanent damage? Should there be some way to support physicians in these trying times of doubt and shame?

Fred said...

Being in the cross-hairs of the malpractice-industrial complex can be a slash and burn experience for anyone. And it's not just doctors who feel the impact. Health plans are also on the litigation deep pocket hot-list often for reasons having little or nothing to do with their duties or obligations. As much as we all like to see corporate health care get its butt kicked every once and awhile, there are good people in these organizations who share a similar misery as the doctor you describe.

Paul Levy said...

Dear anonymous,

First of all, I am not a doctor. Secondly, I was not trying to make excuses or arguments that malpractice cases shouldn't be pursued. I was trying to present my view of why a very good person might feel shame when s/he had no reason to feel such shame.

Are you so ungenerous in feeling that you can't have sympathy for someone in this situation? That is really sad.

Anonymous said...

I've been following your blog for a while, and always enjoy "connecting the dots" between various ideas.

The malpractice system is a mess. But for many patients, it's all they have. What recourse does a patient have after being harmed by a health care provider or institution? Hospital review committees, state licensing boards, and the criminal justice system are all possibilities, but they are either not designed to judge harm in a medical context and/or they are controlled by physicians and inaccessible to laypeople. Many patients turn to a lawsuit hoping that the publicity will highlight the harm they have suffered and the shortcomings of the individual or institution that harmed them.

One method to forsee harm, clarify historical risk levels, and allow patients to judge the quality of care is to publicize available data. You know, central line infection rates, transplant surgery volumes, compliance with prophylaxis guidelines... It seems like having these data out there can achieve many of the same goals, but in a fairer and more scientific fashion than scapegoating individuals. Truly inferior care will be identified, and hopefully can be corrected or eliminated. Expected complication rates will be clearer, so the accusation of poor informed consent will have less weight. I imagine that if given the choice, the physicians and executives criticizing your candor would rather take their punches on a blog or from a database than in court, which is as demoralizing an experience as you describe.

To sum up, the need for patient protection isn't going away, but the malpractice system is a lousy way to ensure it. Maybe you've found a better one...

Anonymous said...

Hi, Paul, it's Mr. Un-generous Anonymous for whom you feel so sad. We'll see if you delete me or not.

What I find sad is hospital administrators--who clearly have an interest in decreasing malpractice costs--dressing their financial interest in moral/emotional terms.

First, your post was not about why good people feel shame. It was an explicit critique of the medmal regime, critiquing it for "punishing" this wonderful person "who spent his or her whole life basking in the gratitude and admiration of individuals and society, this can be a devastating experience."

Second, the shame is the problem. Doctors do not respond rationally to the threat of malpractice suits (i.e., practice defensive medicine, rant on blogs, etc.) because their egos are too fragile. Getting sued is just a cost of doing business. Get over it.

Anonymous said...

I can certainly feel sympathy for the physician, but truthfully, the bulk of my sympathy is reserved for the patient who is actually injured by the negligence of a physician.

Anonymous said...

"Society does not value all that I have devoted my life to."

What does "society" have to do with it? It's one patient.

Paul Levy said...

These comments make me both pleased and sad that I wrote this posting. Pleased because you have been honest with your feelings. Sad because of what some of those feelings portray.

I made clear that I was not critiquing the malpractice system or suggesting that patients should not have the right to sue. The lack of empathy some of you show towards a doctor in this situation speaks volumes.

Have we really reached a point in American society where people cannot identify with or feel sympathy towards a well intentioned doctor who ends up being hurt? These doctors are not media stars or politicans who have put themselves forward for public consumption, understanding the combative nature of their fields. Instead, they are just good people who have devoted their lives to helping us.

The purpose of this posting was to help explain what they sometimes go through -- yes, with the hope that there might be some empathy for that. No more, no less.

Anonymous said...

Paul,

Transparency isn't just about reporting stats. It's about being open and honest and timely following an adverse medical event, with all concerned. We obviously need a new and humane system that uses this data to learn from and save lives in the future....just like your stats will. There is a very close connection between these two issues that you are not seeing. Perhaps in the near future, you will be the first to report this data, as well.

I understand your emotion for your friend and of course, anyone, charged with anything is going to be upset and embarrassed. That's why it's so important to deal with the situation immediately. There is presently no recourse for patients. In the current deny and defend system, the stonewalling and secrecy begins which infuriates the family. Believe me, most patients and families don't want to sue, or subject themselves to hours of depositions and trial. But, they do want to know what happened, why it happened and what will be done to prevent it from happening again.

It really isn't that difficult to do the right thing. It takes a courageous leader to start the trend.

I'm glad your friend returned to work. I think the incident made him/her a better physician. Doctors make mistakes just like everyone else even if they did devote their lives to the profession. It is just a profession-NOT their life, really. You are making their pedestal way too high. The patient/family that suffered the injury or the death of someone they loved live with this 24/7. It IS their life.

Anonymous said...

I wonder how much suing occurs in the US compared with say the UK. Is it the greed for the American dream when people realize that being very wealthy is really a dream, or is it just the fact that given the opportunity man can do as much evil as good in this world.

I've always hated wrong doing, it boils my blood, to see it in any context and I feel for the docs that have the tables turned on them.

I'm glad he or she got angry, **** em I say, miserable children, they will get their ending when they reach the end of their life and realize the misery they generated for others.

Health Train Express said...

Kevin MD

Yes, these things are all true, and to make matters worse afterwards if you have to apply to new hospitals or become recredentialled, or move every application wants the nitty gritty from you, with endless pages of legal stuff. I can see why they need to know, however the information is usually a public record which they can look up for themselves from the NPDB and searchable records which all insu ance carriers have and use in collaboration.

BC said...

If I project myself into a doctor's shoes, I think a system of special health courts, as opposed to our current jury system, would increase my confidence that any medical dispute I was unfortunate enough to be involved in would receive a fair hearing. The ultimate judgement would be more likely to be consistent and objective as compared to similar cases in all jurisdictions.

From a patient's perspective, I think I would still get a "fair shake" with health courts though I probably would have a much lower probability of winning an outsized (jackpot justice) award.

From a potential patient's perspective, it would be very helpful to be able to find out if a given doctor has been successfully sued more frequently than his or her peers in the same specialty. I also understand that lousy doctors have no doctors or nurses as patients. That information also might be very useful to patients.

Finally, to the extent that there may be a relatively few sub par docs who account for a disproportionate share of malpractice, I think the profession could do a much better job of weeding them out than it has been doing. One thing that infuriates patients that have been harmed is to find a healthcare system protecting its own behind a white wall of silence.

Anonymous said...

Let's remember that physicians operate in a high-risk and high-stakes profession. The work is complex and very often involves some educated guesswork. You take the evidence you can get and make treatment decisions against it. Decision points fall as a matter of experience, statistics and probability. This, of course, applying to stuff that doesn't just jump out and say "here I am, Disease X". Yet even in what may appear a black-and-white case, there are finer decisions to be made that can alter the outcome dramatically.

Too often we the patient assume that on arrival at the physician's office or a hospital bed, we've transferred the ultimate responsibility for our well-being to others. Some patients just hand themselves off and most physicians and health care institutions are, by training and culture, both enamored and responsive to it.

The image of the Hospital high upon the Hill, an Altar of Medicine to which one drags oneself for healing, is something I'd propose is very much running in the collective social memory. It allows, for example, society and government to permit the pharmaceutical industry to dictate medical treatment without option (like the infamous GARDASIL debacle which is a national test case for further legislation of mandatory medical treatment). If learned physicians and the scientists say it's good, then that's that. Those that ask questions, cite flawed studies, or suggest the potential of government/industry collusion and scare-tactics are guiding social policy are "fringe" to be dismissed. The same holds true for those who stick their nose in the records, the lab work, and other minutia. Physicians and other medical staff are either too busy or too irritated to bother discussing and explaining their ideas and decision-making.

I've been to the Emergency Department more than once, and each time when signing the consent to treat form I ask, "does this mean I have no decision in these matters or the last say?". I do it as a test and more often than not the admissions clerk or nurse has to pause and consider the question for a moment. "You can always say no", is of course the right answer, but the form covers the caregivers when you go unconscious or otherwise need emergency care.

This discussion of the terrible emotional thrashing that a physician no doubt experiences in a situation where their care and competence comes into question is certainly good to hear. It could raise yet another discussion as to why such cases end up before a black robe, instead of a simple resolution brought about as a result when each party has already recognized their roles and responsibilities up front.

Clearly, signing X to a form doesn't do it, for this is the first defense that most physicians on trial bring. "This is your signature on this consent form, is it not?". Although not as wildly broad as the implied consent given to the Ski slope, there is quite a bit of absolution built in. But the form can't absolve blunders, nor unexpected outcomes, not lack of or miscommunication. Anyone can sue, and some cases are quite proper and are needed.

An elderly friend with substantial heart failure was living a difficult but mostly unencumbered life at 75, until he fell asleep at the wheel, veered into the opposite lane, and survived with 6 broken ribs, a fractured pelvis, and numerous hematomas. The fact that he made it from the ED to ICU was a credit to the profession given the stress on his cardiovascular system. Imagine having 20% of your heart capacity (for your age) and not being able to breathe without severe pain.

What happened in the general care ward and a convalescent home was enough to trigger a panic in his wife. With no family I was called in as a friend to oversee his care and help the communication. From his wife, "What are they telling me?" was a daily question. Converting medicalese into something that made sense and had context was my job.

My review of the medical records, and discussions with nurses and the "physician group" overseeing his recovery revealed a string of blunders and substandard process that, had it not been addressed, could very well have had an effect on his outcome. A few I caught in process, which was even more confrontational for various staff. At one point the "group" practice threatened to quit. I told them that they could, once we found a suitable replacement. Fortunately we didn't have to cross that bridge. Let's just say the group practice was overloaded. When phoning late at night to the covering physician as to the patient's immediate condition I was met with a sleepy "who's he?". It took 10 minutes for the doc-in-the-box to realize that he had this patient. My question, "If the nursing staff phoned you, the responsible physician, about this patient and wanted an immediate answer to address his care, how do you think they'd feel if you said 'who?'", was met with a long silence.

"Your homework,', I instructed, "is to find the patient's chart and read it! I shouldn't have to instruct you as to who he is, why he's in hospital, or what the course of his treatment is!".

Families often have no one to help them. Caregivers are naturally reluctant to be "second guessed" or even questioned about their process and decisions. But if this doesn't change, then more of these situations will end up before the black robe.

An excellent article in today's Boston Globe, http://www.boston.com/yourlife/health/other/articles/2007/02/25/from_retired_caregivers_a_spoonful_of_compassion/ suggests there is some hope to fill this gap. I'd encourage Paul and others to give this some thought.

Being criticized and "second guessed" has the potential to challenge us emotionally, or in the converse to learn and teach. I suggest we stop picking apart a caregiver after the disaster happens and instead change the relationship and the rules so that a confluence of poor/mis-communication, assumptions and unclear division of responsibility just won't happen.

Ileana said...

I think those patient's children would have been better off doing something constructive in their grief: starting a patient group, spreading awareness or just crocheting scarves. Even if there was a mistake, finding ways to have the doctor understand that and don't repeat it again or finding ways to teach others how to protect themselves from this kind of mistakes would have been better.

Each time they will think about their dead parent, they will feel the anger.

Everybody lost in this and has my sympathy: the doctor and the kids.

Richard Wittrup said...

All true. It is possible that the plaintiffs were just nasty people. But it is also possible that something untoward and unnecessary happened somewhere along the way. That is why each case deserves investigation with the aim of avoiding future repeats.

Anonymous said...

Wow, I can see this post really hit a nerve. Mr. Ungenerous anonymous must have had some bad experiences with doctors. As a pathologist, I have been on all sides. I was once a subject of a patient complaint (not lawsuit) for missing an early superficial cancer which, thank heaven, was re-excised when it recurred and caused no further problem. Try feeling the shame when you HAVE made a mistake. I didn't sleep for months. I finally concluded I had made the mistake because this was tissue specimen #2 from a patient in which specimen #1 (from a different organ) had me very worried about cancer and I spent a great deal of time concentrating on that; thus somehow having a mental lapse when #2 looked innocent. Second guess me if you wish, but that was 15 years ago and I have not forgotten one detail.
Second, I have served on Medical Executive Committees when I felt that a clearly careless physician was not being disciplined severely enough - yes, that does exist. I also saw cases where the hospital messed up and the doctor paid the (legal) price.
Third, my own father died of cancer that was initially misdiagnosed - although early diagnosis would not have saved him in his case.
Not to be long-winded, but just to say this is a very complex and emotional issue and has no one solution. I do think the adversarial environment fostered by lawyers (who practically forbid you to EVER say a mistake was made) exacerbates almost every situation. This could be changed by a different adjudication system.
retiredpath, M.D.

Bwana said...

This is a subject about which I know something ... I am not being immodest to say that I am somewhat of an expert in the field. My qualifications? Well, in the course of my legal career, I have handled hundreds of malpractice cases.

The first thing I want to say is that in Massachusetts, expert testimony is required to establish malpractice in virtually every case. (I say "virtually every case" because there are the highly unusual exceptions where malpractice is admitted or the wrong-leg-off type of case -- and yes, those have happened). This means that in virtually every medical malpractice case, there is an "expert" -- a doctor (or a nurse if it is a nursing case) -- who testifies that the defendant departed from the standard of care and that the departure caused injury to the patient.

Here is where sometimes things get murky -- doctors who are "professional experts" will stretch their opinions, and they get paid quite handsomely to do so. The line drawing here is difficult, if not impossible, for a judge to draw because the judge is not the arbiter of what is or is not good medicine. The defense has the opportunity to present its side -- usually the defendant can give expert testimony on his own behalf and this is buttressed by having an independent expert for the defense.

Our system leaves it for the jury to decide whom to believe.

If there is a problem with stretching the truth or giving false expert testimony, it is for the medical profession to deal with that situation. The fact that so little is done about the subject is due to a constellation of complex reasons and I'd be happy to discuss those if people are interested.

This brings me to the point about the defendant doctor's (or nurse's) feelings when he or she is sued.

I agree that it can be a devastating experience and in general, defense lawyers do not spend enough time on this issue. I always did. In fact, many of my clients became good friends because I was able to communicate with them on both a professional level as a lawyer who had to defend the case and on a human level -- again as a lawyer who wanted a solid, committed client exuding confidence and credibility in depositions and in court.

In some instances, I was retained by doctors who had been sued and felt they needed representation separate from that provided by the insurer.

Although this is often a good idea, the cost factor is a serious impediment.

The national statistics tell us that only about 10-15% of potential malpractice claims ever get presented. Of the 10-15%, some are settled before they go into suit -- percentages vary by state and by insurer -- and of the ones that are not settled, defense verdicts usually serve as great poultice.

Being prepared for either eventuality -- verdict for the plaintiff or defense verdict is important. I am not sure that it is necessarily the role of the defense lawyer to do this -- although from my perspective, it made me better able to handle cases if I spent time on the issues raised, as I've noted above.

It may call for an institutional approach -- or education to let doctors know when they are sued that they can get professional representation from someone who will guide them through the thicket and also with the knowledge that this person is completely on their side and not beholden to any insurer.

MD who's been there said...

Beautifully written and right on target (for any physician who goes through this). I have concluded that part of the process that needs to change (among many things)is the veil of secrecy that surrounds it. I plan to encourage our malpractice insurer to enlist senior physicians (like myself) to at a minimum be available to talk with those involved in these cases (and as you know there are many). I think they are very wrong not to encourage that (even if details of a case are avoided) at the minimum to be sure physicians all understand that even the most respected of their peers have often had to deal with such an event. I am convinced that in itself will be comforting and reassuring.

Anonymous said...

There is a huge literature on this. In addition to what you summarize, doctors are trained to be perfect. Failure is not an option and is viewed as a personal weakness. Therefore, unlike other lawsuits, it is an affront to one's character. There is great need for reform of this process if we are going to make strides in cost containment and patient safety. Thanks for bringing this to the attention of your readership.

PJ said...

I really appreciated this post, not only for the excellent insight but for the fact these issues are actually being openly discussed here.

I think it's been the elephant in the room for a very long time.

Higher up in the comments, you wondered if Americans are capable of identifying with and feeling sympathy for a physician who has been sued over a bad outcome.

I think most of us are - but unfortunately when something goes wrong, doctors and hospitals have historically tended to clam up. In the absence of information, patients and families are left adrift. At best, they'll think you're insensitive. At worse, they might think you're uncaring, unprofessional and/or have something to hide. And when no one is talking, this dynamic takes on a life of its own. It's fatally easy to misconstrue the silence of shame for indifference or refusal to be accountable.

I'd be very interested in reading your thoughts some day on disclosure. How does BIDMC handle conversations about adverse events or bad outcomes? What are you learning about good and not-so-good ways of accomplishing this? How significant a barrier is shame to having these conversations?

Thanks, I enjoy your blog.

Anonymous said...

How many times have you heard about a plane crash or other tragedy, and the news reporter solemnly states, "the investigators have determined that the accident was caused by human error" as if that somehow would make it all OK. Paradoxically, in medicine, human error is the LAST thing we accept; we work very hard to eliminate the "culture of blame" so that people can be open and honest about things that go wrong and we can all learn from each others' mistakes.

I have been named in three lawsuits, none of which were related to something I had done (I was "collateral damage") yet each was devastating. The wording in the initial notice of the suit is enough to make you want to jump off the building: "whereas Dr. X held himself out to be a competent practitioner of medicine. . .wantonly disregarded the principles of safe practice. . .etc. etc." And it just gets worse from there. Meetings upon meetings, depositions, you name it---all a drain on our health care dollars because even if nothing comes of the suit, the defense must still be paid for.

My last suit was over an untoward event in the hospital. We IMMEDIATELY called the family in and told them every last detail of what had happened and answered all their questions. They even said "we don't want to sue, we just want to know what happened." The patient, thankfully, had NO INJURY from this untoward event, yet everyone who took care of this man was named in the lawsuit just because "this shouldn't have happened." Doctors and nurses had their names and faces on the evening news in very disparaging context; of course, when the case was over, that was not news. (It ended up settling before the jury verdict just because the insurance company was worried that the jury would be "sympathetic" over the incident and return a megamillion verdict with no basis in justice.)

That patient "won the lottery." The fact that our health care dollars are wasted on this nonsense makes all the rest of us losers. All our malpractice premiums could go into a no-fault pool to compensate patients with iatrogenic injuries. But the lawyers/lawmakers will fight tort reform to their dying day because they make their very large living off of our suffering. (Look up John Edwards, who made $35 million this way.)

By the way---to the "anonymous" who accused Paul of having a vested interest in his opinions because of the cost to the hospital, the hospital does not pay physicians' malpractice premiums, the physicians pay for it themselves.

Anonymous said...

Anonymous replying to "anonymous" :) who wrote:
>>We IMMEDIATELY called the family in
>> and told them every last detail of
>>what had happened and answered all
>>their questions. They even said "we
>>don't want to sue, we just want to
>>know what happened."

I am "Mr. Ungenerous Anonymous" (or Ms, perhaps?) and want to point out that the statement above makes one of my points. Although it's certainly a good thing to "immediately" call in the family and reveal everything that happened, it was done after the fact.

I wonder how many of these situations could be prevented merely by ending all the under the hood secrecy?

David said...

bipolarlawyercook said, "But what are the 15% of patients who sue correctly to do? Many lose their jobs, or are disabled to a significant degree of financial hardship."

An anonymous poster said, "Getting sued is just a cost of doing business. Get over it."

I think the point here isn't to discourage that 15% from getting fairly compensated. It's the fact that the claims in the lawsuit itself are filled with personal attacks on the doctor.

A person that's been injured by another needs compensation, and fair compensation needs to be awarded. But most plaintiffs don't want to be fairly compensated, they want their lawyers to get them as much money as they can. Some people (usually in the 85%) just see an opportunity for a jackpot, but others are tempted by the promises of their lawyers and can rationalize their behavior by repeating to themselves that they are the victim. The insurance company is paying for it, right? So what should have been a straightforward claim that the doctor made a mistake, we instead hear that the doctor made calculated decisions to risk lives, to operate with wanton disregard for the safety of others, and to display a level of negligence and incompetence that should forever disqualify that physician from working again.

As much as I sympathize with that 15% and with the (rational) view that lawsuits are simply a cost of doing business, until the medmal system allows mistakes to be admitted and fairly compensated without the incentive to portray the doctor as evil, murderous scum of the earth, it will always be personal.

Anonymous said...

"Meetings upon meetings, depositions, you name it---all a drain on our health care dollars because even if nothing comes of the suit, the defense must still be paid for."

Actually, that would be a drain on the insurers dollar, which today represents on average less than 5% of a physicians' overhead.

"It ended up settling before the jury verdict just because the insurance company was worried that the jury would be "sympathetic" over the incident and return a megamillion verdict with no basis in justice.)"

It undoubtedly involved significant damage then, because insurers don't write checks for millions without serious damages. So what were they?

"That patient "won the lottery." The fact that our health care dollars are wasted on this nonsense makes all the rest of us losers"

How do you know he "won the lottery"? Does he have lost wages because he cannot work? Does he have future medical bills that he couldn't otherwise pay because he is uninsurable now? Does he have to pay some of the award to his health insurer since they have a right of subrogation? Is he still able to play with his kids, mow the grass, etc.? In order for us to know if he "won" anything, we'd have to know what he lost. Can you tell us?

And how are our healthcare dollars "wasted" if they money goes to his providers and his health insurer? Doesn't that keep our healthcare dollars from being spent in additional health insurance premiums and more taxes to cover the uninsured?

" But the lawyers/lawmakers will fight tort reform to their dying day because they make their very large living off of our suffering."

There is no tort reform proposed that is no fault like you suggest. The only "reform" proposed is damage caps, which arbitarily cap the damage of those with the most painful injuries. Lawyers can work for other clients - but these patients can't. And really, the real backers behind tort "reform" are docs hoping to save a dollar on premiums and insurers. Forced to choose between them and the patients, I'll take the patients every time.

Anonymous said...

"Albert Schweitzers in Lexuses." That's what an earlier comment was. Dammit. I do believe that what I do is a calling, not a business, and idiots like that pretty much confirm that the public doesn't really much care. Oh, well, its all part of the general decline of Western Civilization anyway. We'll see what the public values under a nationalized health system.

Anonymous said...

OK, "anonymous" replying back to "anonymous" :-)

We called the family in immediately and informed them about everything that happened, but you decry that it was done "after the fact." Huh? How were we supposed to tell the family about the mishap BEFORE it happened???


And to the other "anonymous" who wanted to know what the patient's injuries were that would have caused the jury to be "sympathetic" the answer is that the patient had NO injuries from the untoward incident. However, about a month after the incident, he died of the end-stage heart failure that brought him to the hospital in the first place (at age 80.) The insurance company didn't trust the jury to get this, apparently. . .so the patient's FAMILY "won the lottery" and profited from his death at the expense of the malpractice insurer, the expense of the patients who couldn't be cared for while the docs were busy with lawyer meetings, depositions, etc. (not to mention the trial itself) and the whole system. (and it was only a few hundred thousand dollars, not millions.)

As for this expense not representing "health care dollars" I don't really see your point---all "overhead" of any type increases the cost of medical care; reimbursements could be a lot lower if overhead (including not only malpractice but also the multiple office staff needed to negotiate all the managed care maze) were lower. Where did you get your 5% figure? Some OBs I know work the first four months of every year just to pay their malpractice; that 5% is probably a global average that includes very low-risk specialties, like psychiatry, etc.

As for the damage cap---if I am injured and need money to pay my expenses, that is one thing; as far as "pain and suffering," to be blunt, $100 million in the bank would not make my pain any better than the proposed cap of $250,000. It's just greed, and the "lottery" mentality. If a doctor did something to injure me or my family member through carelessness or other malpractice, money would give me NO satisfaction; I would want his medical license taken away.

This is a very interesting discussion! I am interested in hearing back your thoughts. . .

Anonymous said...

Just how would you go about getting one's medical license? Do you file criminal charges or just with the state medical board? I tried to follow the chain of command and not blame anyone.

I filed the first complaint with the Health Department after the autopsy was inconclusive and the coroner advised that we get an attorney. In my state, the hospital investigation unit of the Health Dept. does the first investigation. If they find deficiencies in care, the OPMC is then called in. (I might add that these folks are all acquainted with the physicians and hospital staff.) The state medical board or OPMC were never called in. The RCA was never revealed to us. The M&M and QA investigations were never revealed to us. We were left in the dark.

This was never about money, which may be difficult for those who have not experienced a death of a loved one, to understand. It's about honest answers.

Yes, I want the physician's license at this point.... please tell me how to do that.

Anonymous said...

I'm curious if you personally know physicians who deliver substandard care. If yes, have you done what you could to stop that person from practicing medicine? If no, is it even remotely possible that every single doctor you know is delivering competent care? I guess my point is that the medical profession has the power to eliminate the medical malpractice industry by aggressively policing itself.

Paul Levy said...

Review of physician performance is carried out by our Medical Executive Committee, and, yes, we have taken away privileges from physicians who have violated our rules, and then reported these cases to the state Bureau of Registration in Medicine. (Look at my 10/19/06 posting, Errors, Improvement, and Discipline, for a further discussion.)Interestingly, these rules violations do not always result in harm to patients. So, the care was substandard but did not injure someone. In that sense, they would not have resulted in malpractice cases.

I disagree with your final point. Even the best self-policing by the medical profession will not eliminate malpractice cases.

Anonymous said...

"The insurance company didn't trust the jury to get this, apparently"

So it's the system's fault the insurer made a decision you disagree with?

" Where did you get your 5% figure?"

CME.

"; as far as "pain and suffering," to be blunt, $100 million in the bank would not make my pain any better than the proposed cap of $250,000."

I think we can all agree money is a poor substitute - yet money is predominantly how we value our time and our energies in this country. With your arbitrary cap of $250,000, you've essentially said that even if a person is paralyzed as a result of the negligence of another, that loss is worth no more than about what the average surgeon makes in a year.

And why $250,000? Simply because that's what some insurance lobbyists suggested. Has nothing to do with the facts, the person's quality of life, etc.

Anonymous said...

Paul---you should check out this link and add it to your blog, should you see fit. (I found it on one of the blogs you have linked to yours.) I shudder to think what will happen to us if John Edwards, Malpractice King, is elected. . .
http://www.pacificresearch.org/pub/sab/entrep/2007/Jackpot_Justice/index.html

Paul Levy said...

Josie said,

I feel for both patients and physicians. I have been on both sides. They should really prepare you in medical school for the emotional damage it does to physicians. There are a few negligent doctors out there who deserve it, but because of them and the world today everyone is getting sued and everyone is lawsuit happy, well not everyone. Thats what it seems. I am currently a victim of malpractice from a healthcare assistant. I have nerve damage because she did not give me an injection properly. I have not filed a suit yet, but I will get the word out.

(Sorry, Josie, I deleted the name of the institution and the people you mentioned from your comment. I cannot permit using this blog for personal accusations.)

Anonymous said...

A surgeon, the very best doctor I've ever met, repaired my broke hip last year. I'd never met him before, didn't have a primary doctor but was in excellent health. I learned months later that he was being sued and it broke my heart. I know nothing about the circumstances. Someone told me he wasn't much liked by some of his patients because he was 'abrupt', but I found him refreshingly direct; he didn't use a lot of words but I was paying attention, and quickly and thoroughly got my questions answered. It doesn't apply in my case with him, but I'm too old to expect anyone to be absolutely perfect at all times. If he was in the 'wrong' I hope he continues to practice. He's a blessing to the community, IMHO. He and his family have been in my prayers.

Many years ago, following my divorce and we were very poor for a while, I got medical care for my family at a clinic that charged on a sliding scale according to income. Really VERY good doctors there. I learned later that some of the doctors were doing court ordered community service after being sued. The only time I was unhappy with the clinic's services was when we were seen by one of the nurse practitioners. She was all attitude and no skill.

Anonymous said...

If you think doctors are incompetent in America, Read labratbites.wordpress.com Doctors in Australia are parasites. They commit such horrendous crimes to their patients I cannot understand why people see them as "good". They are criminals, treat and see them as nothing more.
Australian Medical Board, Quality Health Rights, Australian Medical Association, Hospitals, peers, nurses all cover and lie for the criminal who had commited the crime. Sorry that no matter what country you go to the same governing boards cover for the criminal and incompetent. God help us for what is coming.

Paul Levy said...

I know there are more good and decent doctors than there are incompetants.
The problem is the good cover and lie to protect the bad. I can never trust or believe a doctor again. The damage they caused is irreprehensible and permanent.
I'm sorry for your peer but maybe where there's smoke there's fire. s/he may have been nervous because the treatment was not of a high standard and the doctor deep down knew it.

The doctors who committed the crimes on labratbites had the blessing of the hospitals and A.M.A because she had no money and couldn't do a thing about it. Realise the activities are not all justifiable.

Frances

(Frances, I removed the names you mentioned in your comment. I do not permit accusations or comments about particular individuals.)

Anonymous said...

i am currently involved in a case with a person from another state that i have never met in my life.
how's that for frustration. the case involve is from four long years ago. radiology is most vulnerable indeed!!!

ugh! said...

malpractice lawsuits are not always about reaping financial compensation. unfortunately, health care is a BUSINESS (like everything else in this uber-capitalist society), and CEOs, doctors, and the like, often do not PAY ATTENTION to the issues until they are hit in the pocket-book.

i think we have ALL come across doctors and specialists who believe that they are beyond reproach, and this hubris can (and too often does) result in placing the patient into immediate life-threatening danger. these doctors and their bosses, the CEOs of their organizations, need to become aware of the problem and become motivated to make a change. money is sometimes the only successful motivating factor.

for instance, i have a friend who recently presented with sudden multiple "seizures." she was referred to an "expert" neurologist for an evaluation. in the meantime, she did a large amount of research on the internet and found that her symptoms might be indicative of a cardiogenic condition known as LQTS. when she asked her neurologist about it, however, he was condescending, and dismissed her research entirely, saying, "a heart condition can't cause seizures." he discouraged her from seeing a cardiologist, and implied that she was an idiot. he insisted upon treating her for "epileptic seizures of unknown etiology."

a few days later, an independent ECG showed that she did, indeed, have LQTS. if she had listened to the "expert neurologist," and not pursued the cardiology route, she could have dropped into sudden cardiac arrest at any moment. she would have died immediately.

any quick internet query will show that LQTS should be considered during a differential diagnosis for any unexplained seizure-like activity. why did this "expert" (who is also a professor of neurology at a well-respected university) completely dismiss this possibility? hubris? laziness? anger that a patient came in thinking she "knew all the answers?"

i am not saying that this doctor should also be an expert in cardiology, merely that he should understand the differential diagnosis of his specialty and refrain from debasing a patient based upon their lack of a medical degree.

i hope my friend sues the pants off of this "expert." not because he made a "mistake," but because he completely (and inaccurately) dismissed a very real condition based upon his own pride and lack of information. if he had merely missed the indications of LQTS and the patient had died, it wouldn't be such a big deal. i don't expect doctors to be perfect. but the fact that he REFUSED to consider his own IMPERFECTIONS, and was negligent as a result, is a VERY BIG DEAL.

how many patients have to die before the CEOs expect a doctor to be competent? who knows? because the only thing they see is money. they rarely pay attention to a death until SOMEONE makes a stink about it.

i am sorry to hear that good doctors get sued by frivolous people who seem to only desire money. but let's be careful about labeling people who initiate these lawsuits as money-grubbing.

thousands of people die every year because neurologists mislabel underlying heart conditions as "epilepsy with unknown etiology." And the advocacy groups have barely made a change in that number. so maybe it would be prudent to think carefully before you suggest that the survivors of these events (or the families of lost loved-ones) start "a patient group, spread awareness or just crochet scarves." (illeana)

i'm pretty tired of all the complaining, and this ridiculous suggestion by this CEO that we patients have a heart and consider their emotional damages as a result of lawsuits. quite simply, as said elsewhere, it is a hazard of the job. stop blaming the victims and look at your own profession. YOU should be the ones expecting more out of your peers.