All I can say is WOW! Extremely nice layouts, awesome graphics and great articles. No matter how many times I come here, I am still impressed by the very professional appearance. Congratulations on a job well done.

I don’t know that it’s all frivolous in the sense that it was filed simply to try and make a quick buck. Frankly, anyone who has ever dealt with an insurer, and I know the doctors have, knows they’re not in the business of PAYING if they can afford it, legit or not.

I would bet med mal has a lot of cases that are filed and dropped midway through discovery. The typically short statute of limitations plus the time it takes to get the records, get them reviewed, etc. means a number of cases get filed simply to preserve the statute from running while you work it up.

…Those “inarguable clinical guidelines,” for reasons I just explained, are just a pipe dream.

Good point about the experts. One of the more interesting suggestions I heard advocated for experts to be chosen from a neutral pool of practicing clinicians, thereby excluding those august physicians who essentially live off providing expert testimony that does not follow current guidelines. It seems like a bit of a stretch for that to be set up, as I’ve noticed any time you have two or more doctors gathered, you’re likely to see multiple differing opinions except on the most basic medicine.

Which is why I’d love to have inarguable clinical guidelines — the idea being to stop lawsuits such as the two that both awarded the plaintiff, only one was for not administering tPA and the other one was for administering it.

I’m glad to hear that lawyers practice discrimination in filing suits (which I do believe, although the subway advertising has been a bit discouraging). However, the NEJM reviewed 1500 closed malpractice claims and found 40% had no identifiable medical error or injury (“Claims, Errors, and Compensation Payments in Medical Malpractice Litigation,” 5/11/06). Even assuming some bias on the part of the reviewers, we can probably assume around 1/3 of the malpractice litigation was essentially frivolous.

The study does point out that compensation for these claims is much less frequent and less payout than that for actual errors. But lawyers cost money, and so does the malpractice insurance that covers them. Furthermore, a lawyer losing a single case mostly means he doesn’t get paid. A doctor simply having a case filed against him can ruin his ability to be covered or have hospital privileges, both of which can destroy his livelihood (disclaimer: I know settlements count, but I’m unsure how/if settlements show up and am happy to be corrected). When 1 of every 3 cases is frivolous, and the consequences are defensive medicine and increased health care costs, the system seems off-kilter. I’d like to know if there are any drawbacks other than loss of revenue to malpractice lawyers. You seem to be taking the time to answer questions honestly, so thank you.

On my current reading wish list are two items: I’d love to see any credible studies actually finding that malpractice affects health care costs, and a NEJM-style comparison of claims filed in states with different types of malpractice reform (Texas, obviously; any state requiring outside review before filing, etc). Many physicians talk about both of these issues, but I have yet to find any direct examination of them. Could someone point me in the right direction?

I agree with you. You don’t know how many times I’m asked “can I sue for that”, and how much time I spend explaining to clients why their expectations are out of wack. The tort reformers campaign to make people think that everyone who is rearended gets a million dollars has been effective. But it’s just not true. Saying “I ought to sue” and actually filing suit are two vastly different things.

” When you see a crippled child, you want to help them, and hired-gun experts can be awfully persuasive in convincing you that the doctor is to blame.”

Yet juries find for doctors 3-1 v. plaintiffs. So obviously it’s not THAT effective. And remember – there are defense lawyers there too, with their own experts. And they are very good lawyers.

Every day I ride the subway, which is heavily festooned with ad pictures of kind, empathetic-looking lawyers advertising their services. Many are looking for worker’s compensation cases, but most are looking for malpractice…at least, I’m going to have to assume so, because they encourage anyone who had a heart attack, stroke, or long operation to contact them. They’re not asking for symptoms or problems.

Having worked in a hospital in a position where I saw patients frequently, I know all too many people who had a perfectly normal course, with a subsequent issue that is standard for their operation (hernias after abdominal incisions, the rarer PE or DVT, etc). These incidences are extensively discussed by doctors up front and are known to happen with perfect care. Some are obviously more annoyances than tragedies, but the latter do happen. I have seen patients who had that 1-in-1000 incident with competent care walk about, unhappy with their luck but understanding everything was done. I’ve then had to deal with them after they’ve called one of these subway lawyers and turn into angry, bitter patients who want money and deny that they ever were counseled about potential risk.

I’m obviously leaving aside actual malpractice, which I know happens and am not trying to defend. What I see today is a mentality in society of three parts: first, a denial that medicine, subject to our wildly varying and frail bodies, is imperfect; second, that if a medical treatment is not perfect, it must be the fault of the doctor (and not in any way caused by failure of treatment, errors of omission by the patient, or simple bad lifestyle choices); and finally, third, that if a medical bad outcome occurs the patient deserves compensation. I can’t tell you how many sane and otherwise well-meaning friends have advocated suing over slights that were essentially self-inflicted.

Malpractice doubtless occurs. Doctors are human and therefore there are surely bad ones running around. I don’t advocate eliminating the right to sue because I do believe it’s an important way of correcting that particular wrong.

Where I think the system errs is in deciding when genuine malpractice occurs, and when a regrettable event occurs. If the doctor genuinely tried his best, in accordance with reasonable guidelines, then a regrettable event occurred. That does not mean the patient deserves compensation, any more than I deserve compensation if I have a natural stroke or am diagnosed with late-stage cancer tomorrow tomorrow. We all want to blame our problems on someone else. Sometimes we are just unlucky.

This is where emotional appeal bothers me. I would like to see fair malpractice law practiced. But I think that given a case of genuine malpractice, and a genuine bad outcome that could not be prevented, juries will award each equally. When you see a crippled child, you want to help them, and hired-gun experts can be awfully persuasive in convincing you that the doctor is to blame. The problem is that the latter type of case affects good doctors and promotes defensive medicine.

Thanks for your explanation of waiving legal rights and informed consent. I have been looking for something that clear for some time and have always wondered if I had the correct explanation. It’s nice to have something that delineates the difference.