When I considered blogging about my malpractice case, I just figured that the posts would be of interest to a few. Not the case. The interest in this case has been incredible. Thanks to Kevin MD, Walter Olson at Overlawyered, GruntDoc, Shadowfax, Eric Turkewitz at NY PI Law Blog, Medicine Think, Law.com, Scienceroll, whomever “Stumbled Upon” my post, and any others I may have missed.
I’ll up the ante and aim for trial posts two days a week (there will probably be about 25 posts in total). Hope it lives up to everyone’s expectations.
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I checked the attorney out online at Martindale.com and researched him on our state web site. I also had a couple of friends who are lawyers get some information about him. He had a very good reputation. That’s good news. One friend told me that he was the “go to guy” that the insurance company used to handle complex cases. That worried me. I know that I’m looking at the care I provided from my own skewed perspective, but I thought that everyone did a pretty darn good job treating this patient. Why did the insurers want a “big gun” for this case? I’m sure it’s not like he or his firm were hurting for business.
So I called “Vinny” and we talked on the phone for a while. I liked him almost immediately. Very down to earth. Knows his stuff. He did seem a little high strung at times. I could hear the tenor in his voice go up when he told me things to do and things not to do from that point forward.
“Don’t talk about this case with anyone but me – the plaintiff’s attorney will grill you about it during your deposition and you’ll drag other people into the case who may hurt you.”
Check.
“Don’t research the issues before your deposition. You’ll get grilled on any text that you referenced.”
Check.
“Don’t say anything to the family if you happen to see or treat one of them.”
The list went on for another minute or so with each “don’t” being a slightly higher octave than the previous one. I got to the point where I was thinking “OK, OK, relax there, bud. I’ve only spoken to you for 20 minutes and you’re already making my blood pressure go up.”
Vinny promised to keep me informed about any developments in the case.
A few months later I got a large packet in the mail from Vinny’s law firm. There were a bunch of detailed questions called “interrogatories” from the other attorney that I had to answer under oath. I had no idea what the heck some of them had to do with the case. It didn’t matter, I still had to answer them. Vinny asked me to write out answers to the questions I could answer and then told me that he would put them into a “legal” format once he got them back from me. He told me not to worry about things I didn’t know – leave the questions blank. More information would come out as the litigation progressed and we could supplement the answers later. I started to research answers to some of the questions in order to justify each of the actions I took. This time Vinny told me to relax and to let the experts do that.
Easy for him to say.
Vinny’s firm and the insurance company contacted me with the name of an expert that they had chosen to review the case. Everyone seemed impressed with his credentials. He was from a teaching program and his curriculum vitae was reportedly quite large. Hey, great, so if his testimony isn’t that good he can roll up his “CV” and smack the plaintiff’s expert around with it. Or we can use the CV for a doorstop during trial. Go for it.
The attorney sent the expert with the 5 pound CV a copy of all the medical records. Then the attorney, the insurance representative, and the expert with the 5 pound CV had a meeting to discuss my care. Other experts would review the care by the other doctors. This expert was focusing just on my care. I got a letter a couple of weeks later summarizing their discussions. The expert thought my care was negligent.
I got mad. It seemed like the expert started with the ultimate diagnosis and worked backwards to focus in on what I should have done to begin with. “Dr. WhiteCoat didn’t appreciate how sick this patient really was.” Had he read through the chart, he would have seen that wasn’t the case at all. I called 4 consults on the patient in a few hours, resuscitated him from shock, and ruled out many life threatening illnesses. Yes, it took me a little longer to get to the diagnosis, but I did make it. The expert was criticizing me because he knew the zebra diagnosis before he even got the medical records and I didn’t think of the zebra diagnosis right off the bat. The expert gave several reasons why he thought what I did was wrong, completely criticized my thought processes, and listed another few things that I should have done differently. No basis for his opinions, mind you. Just a bunch of “shoulda, woulda, couldas.” By the time I finished reading that letter I was close to sustaining one of those fractures that occur when you accidentally fall on the floor.
I went back into research mode. I analyzed each of the expert’s statements and wrote a fourteen page letter to my attorney and my insurance company rebutting each of the expert’s statements. I stated that the expert’s opinions were “unsupported by any medical literature” and I attached copies of several articles and textbook passages supporting my care. If “Dr. 5 pound CV” practices medicine in the same manner he reviews cases,” I wrote, “he is jeopardizing the health and safety of [his] patients.”
I got a small amount of satisfaction when the insurance company agreed to get the opinion of another expert. But before the insurance company would consult another expert, I had to agree to abide by whatever opinion the expert rendered. Fine. This time I’m learning more about the expert before he gets his hands on the medical records.
We agreed on expert #2. His CV wasn’t as big. He was the assistant director of an emergency medicine residency program in a large city. They sent him another set of medical records and they had another meeting.
A few weeks later I got a call from Vinny describing the meeting. He made some small talk.
“How ’bout them Mets?”
“Who cares about how the Mets are doing?” I thought to myself. I don’t even like baseball that much.
I cut him off.
“So what did the expert think?”
“Well …” he started, then hesitated … “the expert doesn’t think that you met the standard of care ….”
When I heard those words, my heart sank. I must really be a bad doctor if I not only provided negligent care, but I still think the care was appropriate. What am I going to do now?
He finished his sentence by adding “… he believes that you exceeded the standard of care.”
You bastard. That was a perfectly good pair of underwear I had on.
OK, I can breathe again. Thought I was going this journey alone for a second, there.
Vinny told me not to expect to hear much from him until it was time to schedule depositions.
He owes me one set of Jockey shorts.
Wow — what an ending to part 2! You are a very good writer – had me glued. Can’t wait for the next post.
25 posts?! Can you just email me the end?
I’ll post it here.
Ready? Here goes …
“.”
That’s what I get, I suppose. Thanks, now I won’t have to suffer the suspense. (And if it actually ends in a ! or a ?, I want all my money back).
Best of luck to you with this process.
[...] See Part 2 HERE [...]
I CAN HAS PLX all 25 posts nao? PLX?
Nee
This is all a symptom of a much deeper and insidious illness through out American society. The idea of such abuse towards someone who tried to help another person in their end of life struggle is simply stupid. Or that the care delivered MUST be bad if every single minute detail is not written down. No wonder America is losing the healthcare battle, medical school applications are down, and the average age of doctors in this country is 56! The practice of medicine has ceased to be an art, rather it is more akin to a job like anything else one could do. Any forms of nobility have been slain by the legal monster through promulgation of the “it’s not your fault” mentality. American society eats this crap up like a young child handed a bowl full of candy. We read verbal swill like “Medical mistakes kill more patients than cancer or heart attacks” through the media, but no one says anything about the fact that 60% of all illnesses seen in the ED is because of patient negligence and poor decision-making in the first place! Imagine! If we could cure general social irresponsibility, there would be more resources for handling things not in our control.
I’m a paralegal in a large midwest city and do mostly med mal and personal injury work (no comments from the peanut gallery, please!). The saddest part about most of the people who come to a law firm with what they believe is a “good” malpractice case – their loved one had a bad outcome and SOMEONE has to be responsible. It just can’t BE that their relative/infant/etc. was so sick or so injured that, despite the best care possible, died. It has to be SOMEONE’S fault, they feel, someone has to be accountable, when instead it was simply a terrible tragedy. Not everything can be fixed. Granted, there are also a lot of folks who see dollar signs when someone in the hospital dies, but believe me when I say that 95% of all potential med-mal cases that are brought into law firms go absolutely nowhere. Thousands of dollars are spent on medical records, expert opinions, and the consensus is almost always that the patient was simply too sick or too injured and just didn’t make it, despite the efforts of the health care provider. Do doctors make mistakes? Absolutely, but not nearly as often as you think. Oh, and the other reason people try to sue for malpractice? A mistake was made, but caught, and no harm was done – if you were not HARMED or INJURED, you don’t deserve any cash, people!! If you were given the wrong meds, for example, and got a rash, but you’re fine – no money for you. You have to have an INJURY. OK, off my soapbox now – I enjoy reading your blog, btw!
Chris, you’re absolutely wrong to think the people left behind after a medical mistake that costs someone their life just have dollar signs in their eyes.
There are people like me. I don’t want money, I want to make the medical practitioners SUFFER for what they did. But the way the legal system works, the only thing they can give you is money, and it’s not even money from the ones who did the harm, but from their insurance company.
I’d love to win a lot of money. Then I’ll use it to set up a foundation to help people like me; someone who is trying to get over the horrible, horrible mistakes medical “experts” did to kill my husband in a hospital.
Not everyone is out for money. The only alternative to suing, though, winds up with me in jail, and that just isn’t a good outcome.
why don’t we just take the “bad doc” out and shot him. Give me a break. Do you think we get out of bed in the morning thinking ” Who can I kill today?”
Wow! Sitting on the edge of my seat AND holding my breath! Great writing.
TireDoc, you are so right.
what i find disturbing is that they found two “credible” experts who reviewed the case and offered the EXACT opposite opinion on whether or not negligence occurred. yeah the system as it stands is an excellent way to get to the bottom of medical malpractice! i eagerly await your next entries but have a feeling i’ll feel sick by the end…
If the standard of care is not clear, that’s not really an indictment of the legal system. The standard of care is set by physicians. If they want clarity in it, they can publish guidelines to that effect.
Matt
Since you are probably an attorney you should know that the standard of care is set by the out come of previous trials and court rulings. It has nothing to do with some physician board setting the standard of care.
Matt,
For the many cases, medicine is hardly as simple as your simple mind invisions.
So an intellect as great as yours cannot comprehend establishing protocols? These things don’t exist in medicine?
By the way, it’s “Envisions”, o wise one.
So sad. Since that horrid pediatrician flea–or whatever that blogger name was– got hoisted by his own, pompous, arrogant, hateful petard, I don’t think we’ll get “real” medmal blogging.
What we’ll get is overwrought, largely fictionalized accounts featuring super-competent physicians overcoming the slings and arrows of our outrageous legal system–like Whitecoat’s.
Is sepsis really a zebra diagnosis . . .
Matt,
Write a protocol for the crack smoking psychotic patient on warfarin who comes in for the 20th time for toothache and percocet refill who is occulty harboring an aortic dissection. Feel free to correct any typos
And, Matt, for the right price I’ll find you a medical ho that will testify under oath however “a day in the life” treated that patient violates “the standard of care”. For a little more money, the ho will testify that skepticus actually knows what he is talking about. Yes, sepsis can be a “zebra” diagnosis…
Again guys you’re illustrating a problem with your own profession.
Matt
The problem with our profession is that by the time you become a doc most of us do not have the time and finances to go back and get a law degree. That way we could not only fix the medical profession but we could also fix the legal profession as well.
At this point you’d do well to merely slow the rate the medical profession is becoming nationalized. If I were a doctor I’d be a lot more worried about becoming an employee of the dept of health and human services than malpractice claims. If what you guys are currently doing is “fixing” medicine that is.
“Expert Witness” is such an interesting term. I have been asked to review cases related to my specialty, but I was certainly no expert about the cases in question (I declined the request). Then there was the “expert” who was used against myself and co-defendents. He finished medical school before I was born, had not operated in 8 years, and had never done the type of surgery he was supposed to be an expert in. His CV was a complete joke, instead of door stop, we could have made a couple paper airplanes. My favorite part was he was named a “Best Doctor in America” by the Consumer Council, and his atty kept trying to play that up. You get that by being alive, in practice for a certain number of years, and giving them some $$ to list you in a book. I can proudly say that on my desk as I type is my congratutory letter saying I am a Best Doctor in America, if I send them some $$. Our lawyer and experts shot down the “expert”, but figured it would be cheaper to drop the docs from the suit and give the plantiff/plantiff attys cash to go away (we were in a very “plantiff friendly city”). These post by WC will be interesting, I hope I don’t get PTSD.
I guess you guys would share which of these insurance companies are in the business of settling cases with no merit. Those of who deal with insurance companies are unfamiliar with them. Doctors ought to know how hard it is to squeeze cash out of an insurer.
Responding to the comment about finding 2 credible experts with opposing opinions – that’s easy. Get a bad opinion from an expert? No biggie. Find another one. You can shop for experts the same as patients doctor-shop to get narcotic precriptions. You’ll find one that will do it, eventually. For every expert report giving one opinion, I can find 2 that will give the opposite opinion. Sorry to say this, but 99% of the “experts” out there – whores. They do it for money.
So why don’t you non whore docs offer to do it and thus clean that part of your profession up? How many of you complainers would even review a plaintiffs case much less testify on their behalf if you thought malpractice had occurred? If you haven’t and won’t, aren’t you just as much a part of the problem?
Matt
I have been and am currently on both sides of this issue both as a defendant and as plantiff’s witness. There has got to be a better way to resolve these cases then what we have now. One side wants to hit the lottery and the other side wants to keep the clock running.
There ought to be perhaps. So far the only proposals I’ve seen though are tilted very heavily in favor of the insurer and none of them are designed to speed payment to the injured party.
What’s your suggestion?
Matt
I won’t review a case for either side. To do so would be to approve of the current medical legal system, which I don’t. Again, you assume that your side of the equation is the solution. It is not. My belief is the the judge/jury court system component of the equation should be removed completely. Because medicine is so complex, and a lot of medicine is still and art (see the posts above), we should have a system where I can be judged by my peers, like a health court.
The problem with us cleaning ourselves is self evident. Currently, if I don’t like the outcome of my state board of medicine review of a complaint, where to I go? To you. And what happens? Often a protracted battle, in the court system. It costs thousands, if not hundred of thousands, to remove a doctor’s license or get him reprimanded. To a government sanctioned medical board, getting rid of bad doctors becomes an economic decision. You might argue that it is best not to allow us to police ourselves … the “good old boys club” argument, but isn’t that what you do (and just as poorly, if not more poorly than we do)?
So who would judge you in a health court?
We are not the sole judges of our malpractice. You can sue a lawyer for malpractice. And we do a much better job i think than physicians and in fact our bar dues go in part to a victims compensation fund if a lawyer goes bankrupt.
Saying you disagree with the system so won’t even render an opinion no matter how egregious strikes me as a copout and further evidence of why you shouldn’t police yourselves.
But if you do think physicians should police themselves, why stop with physicians? Why shouldn’t other industries get that right? Physicians have sued insurers for billions, why shouldn’t the insurers have only their execs in the jury?
Matt–
Are you nuts? Medicine is so complex, down to the molecular level that protocols cannot be established. There is no Chilton manual for humans. And just how do you expect doctors to get rid of the whores? There is no enforcement body, no money for enforcement, and any attempt toward enforcement means docs can’t see patients and make their own living.
Hell, I just saw an expert witness claim that a person’s lung cancer was due to asbestos exposure. In a transplanted lung. The diseased lung wasn’t even in the person’s body when the person was exposed to asbestos. THAT case, according to experts and the lawyers, had enough merit to go forward.
Yes all medicine is too complex to even have it explained I a jury. I mean when a physician operates on the wrong leg, how can we expect jurors to know right from left? You cannot establish a single protocol that can be explained to a single non-physician because it’s just all so hopefully confusing to anyone not a physician? Really? How do you teach medical students?
Are you honestly arguing that your profession cares so little about its practitioners that you can’t scrape up the cash to self regulate?
That’s a great story about one case. Got a cite? I heard about a doctor who performed surgery while high! What does that prove?
i should have known better than to waste my time reading the comments for these entries…
at least that other guy Max makes worthwhile contributions to the discussion!
I don’t think I took a breath through this entire post, or the one before it.
If my stomach can sink just reading this, I can’t even imagine what it must feel like to be living through it.
Looking forward to reading the rest of the story – and thank you for writing it.
Always, hire a personal attorney, preferably one specializing in legal malpractice. He has to terrorize the insurance hack loser into being aggressive on behalf of the client, the doctor. The insurance company is not the client.
Doctors will learn at the hand of their insurance hack loser lawyers what it’s like to be an HMO medical patient, and to get really cheap, minimalist, commodified care, perhaps with superficial charm.
WC… my heart goes out to you and all medical people unfairly in this position.
You said “I started to research answers to some of the questions in order to justify each of the actions I took. This time Vinny told me to relax and to let the experts do that.”
I would have a hard time abiding by that advice just because I would be concerned I’d get someone like expert #1. When I read that I felt resistance in my spirit. I am pretty sure I’d be writing every bit of medical minutia along with behavioral assessments of parties involved, etc., I could recall..backed up with facts, etc.
And this is just the beginning. Ugh! It must be awful always having to be wary of potential lawsuits!
He has to worry no more than any of us who drive a car or interact with the public in lots of settings. That’s why we all buy insurance.
Your point is well taken Matt and it is a frightening prospect regardless of circumstance. I would never want to lose my home or anything else that could potentially happen through a lawsuit.
However, I think that the physician also has concern for his *professional reputation* and all that compromising that entails, escalating malpractice insurance… and perhaps..just because… they ARE physicians..juries may perceive them to be rolling in dough and perhaps award higher claims.. and not only do they sue physicians… but anyone involved as well as the facility.
I understand (via med blogs)that physicians have ways of protecting their personal assets… but never the less… that wouldn’t stop a determined enterprising person from going after said assets and the headache of it all.
Also… the level of exposure to their being sued is probably a lot higher than the average person.
Yes…every day you drive..there is risk and so every day a physician works…there is risk… but I do think that given the nature of what they are doing vs the average person… they are at a far greater risk. And i am guessing risk increases with specialty … Emergency,OB/GYN, Neuro, Surgery, etc.,
They are working with/on human beings who can die.. just because…through no fault of the physicians… it was just their time.
If a mechanic can’t salvage the car, or some other profession fails at a service for their client… while disturbing… it doesn’t involve the death or harming of a human being. It can.. but in a different way.
And then to know that you did everything you could have to the best of your ability… but the person had so much against them they wouldn’t have made it.. yet your being wrongfully accused …it must be horrible and I am guessing any good physician would be second guessing themselves..wondering could it have been done better, etc.
What a responsibility… the medical care of another person.
Am I excusing bad medical care, inept doctors, other med staff and botched procedures, etc.,?
No.
But I don’t think it is right for physicians to be wrongfully raked through the coals either. Aside from all the stress, financial, emotional, and professional damage… they need to be free to focus on their work…treating and helping their patients.
off topic a bit:Even all the information on paper and/or in EMRs to be filled out regarding patients from the time they register…all along the way… until they leave..detracts from hands on pt care. Why? IMO checks and balances, dotting every I and crossing every t with excessive documentation to insure everything was done all along the way… and while it is important to have quality/safety in care.. it is overkill… thanks to our overly litigious society…thus a great contributor to medical costs today.
I also want to tell Katy that I am sorry about the loss of her husband and how awful it must be to be in her situation… feeling powerless over what happened.
Wow, Matt [sure makes a lot of unsubstantiated assertions] (please no ad hominem attacks)
After reading WC’s blog, I wish I had done research and responded to my insurance company, which opted to settle out of court, as it would have been more expensive for them to go to court. That branded me for 5 years as I had to explain why I got sued every time I renewed my license and hospital privileges. An alternative solution, doctors should have their own malpractice insurance company, which will be made of peers reviewing the case, without any monetary motives.
Experts.
1) Experts are subject to outcome bias, as is everyone else, including juries and judges. The same procedures will be rated as within standard of care if the outcome is good in a case presentation, and outside the standard if the outcome is bad with exactly the same steps. Outcome bias is a bias, as racism is. It violates the procedural due process of civil defendants to a fair trial, a right established by the Supreme Court. No one has ever used this tactic in a trial or in an appeal. The bias is so well proven that any defense lawyer not asserting it took place should be terrorized by the legal malpractice expert employed as personal lawyer by the defendant.
2) I strongly urge the defendant to have his personal lawyer bully his insurance hack loser traitor lawyer force the opposing expert to produce his own charts on similar cases as the one in the lawsuit. These charts should have been within a year of the injury to the patient, since the standard of care has a short half life. There should be many. If the expert cannot produce his own charts, move for a mistrial, and all costs to the personal assets of the plaintiff, the plaintiff lawyer, and plaintiff expert. The lying expert is not really an expert if he has not done the same work as the defendant. That move will likely exclude all academic assholes. They do not see patients, being scholars, and are totally junior to the defendant, including in IQ.
3) The defendant himself should parse every word uttered by the plaintiff expert. That includes all publication, all reports, and all charts. If a single utterance contradicts any statement in the report, in the sworn deposition, in the sworn testimony, have the personal lawyer terrorize the insurance hack loser into moving for the judge to charge the expert with perjury, and refer the expert to the District Attorney for criminal charges, criminal contempt, and a mistrial, again with all costs to the personal assets of the lying expert. To deter.
Why does one need a personal lawyer to terrorize the vile insurance hack loser? Because the traitor does not want to permanently damage the plaintiff side. This vile traitor owes his job to the lying plaintiff not to the defendant. He will never willingly hurt the other side, because the plaintiff side is delicate, and runs at the first sign of painful resistance. The case costs them $50K to bring. If they see losing that amount, and a crushing resistance, they run away, and never come back.
The innocent defendant has a moral duty to clinical care to never settle, and to actively seek the personal destruction of the plaintiff, the plaintiff lawyer, and the plaintiff expert. If they commit suicide so much better the remedy, that one being permanent. It would be well deserved. Every penny they consume comes from the care of other patients, to maintain their Roman Orgy lifestyles.
I love your writing, I hope everything turns out well, and perhaps someday you can make a book out of it.
And i think this also gives a glimpse for those that haven’t yet become doctors. Cant wait for part 3
More on Experts.
4) No one has made this argument yet. If opposing experts testify in good faith, then a scientific controversy exists. It cannot get resolved by rhetoric, and jury preference. It may only be resolved by additional scientific evidence from validated research. So only cases that are within the knowledge of the jury, or have expert support for only one side are within the subject matter jurisdiction of the court. Any case allowing a debate between opposing experts violates the procedural due process right of the civil defendant to a fair hearing.
Here are two links to posts recently written by Throckmorton regarding the unfairness and frequency of lawsuits.
http://throckmortonsothersigns.blogspot.com/2009/06/reverse-medical-tourism.html
http://throckmortonsothersigns.blogspot.com/2009/06/steve-austin.html
These suits just aren’t fair and Matt..I do think physicians are more often subjected to lawsuits then the average person..or at least the potential is there.
Guys…..”MATT” is “CJD”, a notorious lawyer who enjoys reading physician blogs. It is not worth talking to him because he has never been able to step out of the circular logic he knows.
It’s always surprising to see facts considered “circular logic”. I guess that allows you to maintain your beliefs in the face of the evidence though.
Oh my stars, I don’t even know you and you have me holding my breath! I can’t wait for the next “installment.” Leslie
Neither of those posts reference an actual lawsuit so I’m not sure how those support your contention.
I welcome remarks from any lawyer here. Lawyers are funny.
About 80% of cases are weak. That is the failure rate at every stage of medmal, from interview of plaintiff to appeal.
The filing of a weak case is legal malpractice. One remedy is to end the self-dealt immunity of the lawyer. The innocent defendant should be able to sue the plaintiff lawyer for legal malpractice. The weak case is an intentional tort. There should be exemplary damages awarded.
The certificate of merit may be viewed as tort reform. However, it is a shield against suing the lawyer for filing a weak case. The lawyer will say, I don’t know medicine. The medical expert said the case had merit. It is also malpractice to hire a weak expert. Those are jury questions. The court room door should not be shut to the victims of lawyer carelessness.
If you think doctors get upset by being sued, try being in a lawyer’s office when the legal malpractice subpoena is delivered. Unbelievable.
Yo, Matt: The lawyer is the only service that polices itself. It is a catastrophe for the public. The lawyer has nearly totally immunized itself. When there is a false conviction rate of 20% in a death penalty trial, after spending $1 million, it is time to allow lawsuits against prosecutors and judges for malpractice. Let these incompetents carry insurance to compensate the estate of the innocent defendant put to death.
Supremacy Clause 9:07 am-that is an interesting idea. I wonder how that would play out over time?
Could be a double edged sword though. Could cause them to hold back when they shouldn’t and so skew the rightful outcome of a case.
Must be a refreshing thought for the docs to contemplate though.
Even assuming his number is correct, which is doubtful, they probably do have insurance or the ability to make claims of some kind, and many states have in fact paid restitution when they can show prosecutorial misconduct. As for the judges, there would be little to claim against them, since they are not the decider of facts (the jury is), they’re essentially just the referee on evidentiary issues, and their rulings are subject to appeal and in a death penalty case every one will be reviewed.
SeaSpray, you seem to have a lot of fears that are not based on any actual evidence that they’re reasonable fears. That’s not an “ad hominem attack” (the new phrase used by those who cannot refute a claim they disagree with) but just an observation. For example:
” I would never want to lose my home or anything else that could potentially happen through a lawsuit.”
The likelihood of you losing your home through a lawsuit is ridiculously remote. First, most states make your home judgment proof to anyone but the mortgage holder. A judgment creditor can’t take it even if they want. Second, you have to have a LOT of unencumbered assets for a plaintiff to go above your insurance limits. It’s extremely rare.
“However, I think that the physician also has concern for his *professional reputation* and all that compromising that entails,”
How so? Most other physicians believe malpractice claims are all bogus, and the public rarely if ever knows that a lawsuit was filed. Most all physicians with paid claims still practice medicine. If you make a mistake that causes harm to someone else, why is that damaging to the professional reputation? Do physicians honestly believe they are infallible?
“hey ARE physicians..juries may perceive them to be rolling in dough and perhaps award higher claims.”
Again, you’re just guessing. In fact, juries go with the physician far more than they don’t. And there’s no evidence that juries award more simply because they’re doctors.
Likewise with much of the rest of your earlier post, you’re guessing. And I’m not getting down on that, but let’s not make policy out of it. We’re all entitled to guess about things, but when those guesses start getting passed off as facts, then that’s a problem.
For example, Whitecoat once said there are 1 billion doctor-patient interactions a year. I don’t know if that’s true, but let’s assume so. Out of those, how many do you think involve malpractice which results in a claim, and then a paid claim? How many should? I don’t know, you don’t know, and the people who do know, the insurers, aren’t telling. But you claim people are overly litigious and most physicians think there are way too many claims. How can you or they possibly reach that conclusion? It’s possible that too few claims are filed based on the number of incidents of malpractice. But we don’t know.
It would be like me advocating for criminal sanctions for all physicians because I believe the frequency of malpractice is way too high. I have no clue if it is or not. Would that be fair?
It’s like attributing the high cost of medical care to malpractice claims. Even if you assume the highest number of every “cost” the anti-malpractice types attribute to claims, and you assume if you did whatever they’re advocating then all those costs would literally be zero, and that there is no benefit to the system from a claim, then you’re still talking about less than 10% of the total cost of care in this country. Giving the other side every assumption in their favor.
Matt – Thank you! That’s a relief. I didn’t know that and thought one could end up on the street with being sued. That’s what I tell our younger son because he is on our car insurance because it is so much cheaper. NJ rates!
I tell him it is a privilege that he is allowed to be on our insurance (still has to pay his share)and he has a responsibility to drive safely. And I have said we could be sued and lose our house. (Am I a bad mom if I still let him think that?
You’re right..I did *assume* a doctor’s reputation was harmed. Sometimes the suits hit the papers. My ob/gyn was reported in the paper for being sued for missing something and the woman died. (he was livid)stated it wasn’t as reported. But I know of doctors who were sued and you’re right that the public doesnt know..usually.
Also..there are web sites where one can pay to read those things. I don’t know how accurate or what they actually say.. but they advertise… and I would think could hurt their reputation.
And I would think the suit is on record and would have need for explaining with a job change. But you’re right in that I don’t know that. Logical though.
Hey..I’m not saying no physician should ever be sued when there has been gross negligence, etc.,.. but a wrongful, bogus suit is just not right and then malpractice ins goes up and perhaps they do run the risk of losing a lot.
Sure there are people who don’t sue who could… some choose not to and perhaps others don’t know they could because med folk have circled the wagons.
But that doesn’t negate the fact that there are people who look for reasons to sue. And it’s not just in medicine. it’s with everything. It wasn’t always this way. it used to be that people assumed/accepted responsibility for their actions.
Now we open products that tell us not to stand in water when we plug the electrical item in the socket.. or don’t cook with the new plastic bowl on the burner. Why? Because they’re protecting the company from a lawsuit so someone doesn’t come back to sue because they weren’t warned not to do that. There are commercials on tv telling people they can sue the pharmaceutical companies and there is a commercial on TV for the NYC area that shows a van driving around advertising lawyer firm for purpose of suing. (1-800-victim 2)See I remember because they sing this catchy tune with the phone number. I just think that everywhere we turn… people are informed they can sue and we hear about these ridiculous suits. Political, medical, companies… it is a litigious society.
And forgive and correct me if I am reading your words incorrectly… but I feel your inference is that it isn’t a big deal for docs to be sued… but if it isn’t… they sure have a lot of anxiety over it and jump through hoops.
My comment about juries awarding higher claims based on physician income/status is because they(jurists) may not be professionals and often people make that assumption (have heard it from patients and others)and these could be the people on the jury. You are right tho in that it was an assumption of a possibility.. I didn’t state it as fact.
Admittedly, my opinions are influenced by having worked with ED staff for years and from reading the med blogs. But I in no way intend to discount the pain and suffering of individuals who were harmed and have a legitimate cause for suit.
It’s just that there are people who wrongfully sue and add to the BURDEN for physicians and medical costs.
All the excessive paperwork/regulations/protocols…while some are important and do improve patient safety/quality of care… it also detracts from patient care and paradoxically potentially puts the patients at more risk because staff is too busy to give as much direct patient care. They’re all too busy filling out their forms and entering in the computers!
10% is a HIGH statistic for total medical care costs in this country. Surely the money could be better spent elsewhere in the system. ?
“10% is a HIGH statistic for total medical care costs in this country. Surely the money could be better spent elsewhere in the system.”
Again, you have to assume that there is a reform out there that would literally eliminate all malpractice, all liability insurance, and all defensive medicine (plus we have to agree on what that is). And that the 10% figure, which is based on wholly one side’s figures, is correct. I know of no such reform, do you?
“It’s just that there are people who wrongfully sue and add to the BURDEN for physicians and medical costs.”
True. But it’s not the percentage physicians would have you believe. No one WANTS to have a medical malpractice case, particularly one with big damages.
“But that doesn’t negate the fact that there are people who look for reasons to sue. And it’s not just in medicine. it’s with everything. It wasn’t always this way. it used to be that people assumed/accepted responsibility for their actions.”
Is it possible that there are two sides to the coin? You blame the plaintiffs, but is it possible that it used to be that when people did make a mistake, they stepped up and admitted it, paid for the harm they caused, and thus there was no need to sue?
Are there ridiculous suits? Of course. There are ridiculous people in every walk of life. But these are the exception, not the rule. But the garden variety stuff, be it lawsuits or anything, doesn’t make the paper, does it? The lobbyists looking for immunity for their clients do blow things up when it suits their purposes, whether their goal is tort “reform”, or single payer health coverage, or whatever. That’s what lobbyists do.
All I’m saying is take it with a grain of salt, and remember, it’s pretty hard to distill a three week trial, plus appeals, into a newspaper article. Just like it’s difficult for reporters to get medical issues right in a newspaper article.
Oh, and finally, yes it does suck being sued. I’ve been sued myself, although not for professional malpractice. But that’s why I buy insurance, and I know the actual risks involved. If my insurance rates climbed significantly after one unpaid claim, despite the fact I’d paid years of premiums without claims, I’d be more angry at my insurer than the other side. While physicians are no doubt under stress when they are sued, just think for a moment about the other side. They sure aren’t feeling like they are buying a lottery ticket, and would almost certainly trade that ticket for their health.
Matt: I think torts are great. They are so good, I want them to help the lawyer business improve.
Do you or do you not support ending by statute, the privity obstacle to a legal malpractice case by the adverse third party? This is an absolutely neutral proposal. The plaintiff may sue the defense lawyer for filing a frivolous defense as well.
If you do not support ending the privity obstacle, you should shut up about doctors not policing themselves, being a hypocrite.
What is the justification for an obstacle to making the victim of lawyer carelessness whole, privity, one that no one else has had for 100 years? There is none. It is just unfair self-dealing.
I have to clarify. A legal malpractice claim against the opposing lawyer is not “loser pays.” Doctors should totally oppose “loser pays” because it adds pressure for the innocent doctor to settle. Also, would anyone here want OJ reimbursed for the expenses of his Dream Team?
We should allow tort reform measures to protect the lawyer and judge from retaliatory and frivolous lawsuits, such as a certificate of merit from an expert in their specialties prior to filing.
Matt: Get rid of the lawyer oppressor of clinical care, costs of health care may drop by more than 50%. And, all uninsured could be given top of the line, high executive style coverage. Even if the doctor is found innocent, or his case is dismissed, I would like to know if he changed his way of evaluating similar future patients. That change could be the biggest cost of this case.
The list of costly lawyer bullying and oppression is here and causes 50% of health cost to go to waste:
1) Defensive Medicine from False Standards of Care Set by Courts in Medical Malpractice. 10%
2) End of Life Care Tormenting the Dying. 20%
3) Gold Plated Accreditation Standards. 5%
4) Antiscientific guidelines, policy manuals, mostly used by lawyers, as spears against doctors. 5%
6) Excessive paper work, for a punitive, deterrence intent. 10%
A)you’re a great writer
B)Malpractice bites… I’m hoping this ends well
C)Good idea, to blog this post trial!!!
Wishing you the best
What’s more frustrating is that defensive medicine isn’t better medicine, only more expensive.
What’s even more frustrating is that no one knows if defensive medicine works yet it’s cited all the time as a reason to do this or that.
Matt -even if the stats were 5%..when you’re talking billions, trillions?… I have no idea what total cost of health care is in this country) ..its still a lotta Pasta fagioli! And I take issue with the ones taking advantage and causing problems for others..wrongfully so.
And this mindset with professionals at all levels having to be constantly on guard in conjunction with a legal profession advertising for clients to sue..possibly stirring up people that wouldn’t have thought of it is a recipe for everyone going into overkill mode to CYA…and THAT costs time, personnel and money. And as previously stated also translates into more time away from patients..the very reason they are in business in the first place and what should be the priority.
It’s actually pretty absurd that there are all these regulations and protocols to be followed…excessively so..all supposedly for the good of the pt and so they are so busy documenting every step of the way what they are doing/did for *the patient* that they don’t have much time for *the patient*.
And insurance companies .. that is a whole other topic because they rob docs of their time with patients too because of all the requirements and time needed to be spent on paperwork and phone calls. But I digress.
And I think people *should have* legal recourse to sue when justifiable. I admire people who choose not to when they could. maybe I am wrong to admire them… but when they could’ve made a lot of money in a malpractice suit but just accept the doctor’s apology and forgive. I think that is amazing and evidence of strong character. The person I am thinking of actually encouraged the doctor and nurse and she asked him not to fire the nurse.(she almost died)
Does that mean she would’ve been wrong to seek damages? No. Not at all. But she was just happy she was alright.
And okay..maybe the advertising informs someone that did not realize they have options they should pursue.
I have first hand experience knowing how inept or willingly newspapers distort facts to sensationalize their stories.
I am not against lawyers or lawsuits… but I am against the types that prey upon people..looking for any opportunity to make some money.
And I know someone who has successfully sued doctors and employers. The last doc did not botch her eye job, but because it didn’t heal as quickly -she sued..he settled for 10,000 and her eyes look good. She gave her lawyer awful pictures of herself..looking dejected, and unkempt. And yet when she was out.. she was dressed to the 9’s and smiling. I think that kind of thing is disgusting. It’s too bad the doc settled..because maybe by the time it got to court..she would’ve been looking healed..no matter how she presented.
Basically, with the questions you have used to question my statements…I can just as easily…using *your* logic state that you can’t refute those open, unprovable questions either. It goes both ways.
“I admire people who choose not to when they could. maybe I am wrong to admire them… but when they could’ve made a lot of money in a malpractice suit but just accept the doctor’s apology and forgive.”
Few are the people that make a lot of money in a malpractice claims. Large verdicts generally mean significantly debilitating injuries. The award often goes to pay back medical bills, or to reimburse the insurer who has paid the ones incurred to date, plus money for future care since the person is likely uninsurable. As for those with large pain and suffering awards, I can’t imagine they’d trade the money for what they are going through, no matter how much they “made” in their suit. That’s why when I hear people talk about a “lottery”, I always wonder who wants to trade places with these malpractice “lottery” winners.
“asically, with the questions you have used to question my statements…I can just as easily…using *your* logic state that you can’t refute those open, unprovable questions either. It goes both ways.”
I’m not sure what questions you’re referring to, but I probably agree. My point is simply that when the best information is anecdotal at best, like your stories of the eye surgeon and such, we shouldn’t be making policy based on it.
Hey Matt – I think we probably agree on a lot of things but are just taking differing perspectives.
All the money in the world would not cause me to want to surrender my health and well being…physically, emotionally or that of my family.
Personally…when you see things people will do for money..I’d never do them.. because I value myself too much. But I digress.
If you have your health..you can accomplish things and *live* your life. Money makes things nice… but you can’t buy happiness… not the important things.
I would never dispute the fact that most people would rather not to have hit the *lottery lawsuit* because the trade off is too costly with what they give up and beyond what money could ever compensate.
I never realized that a patient could end up uninsurable because of a medical treatment or lack there of.. gone wrong.
My friend,that had been given 10X her dose of medication by the nurse(immediate anaphylactic reaction and subsequently intubated in the office)…knew it was a mistake. An emergency had interrupted the nurse and so must’ve been distracted when she came back in.
Doctor and family thought she would die until she woke up 3 days later in ICU and left with a heart problem that did heal. She thinks the world of her doctor and still goes there today.
Interesting contrast of character though. This woman really could have made all kinds of claims and understood, forgave the nurse and …SHE encouraged them over the next couple of months.
The other woman (not a friend)had some little irritation that took a little longer to heal and magnified it and got 10,000 dollars.
We just never know what some people will do.
I just hate when I hear about people who are being helped by their doctors and then turn on them. Again…I am talking about the disingenuous or at best…misguided cases.
[...] defendant, puts up his 2nd post on the subject, this one dealing with the retention of experts. A snippet to get you interested: [My defense lawyer's] firm and the insurance company contacted me with the name of an expert that [...]
“Few are the people that make a lot of money in a malpractice claims.”
Among them are the trial lawyers whose advertising budgets are reckoned in the millions of dollars.
Go Matt!
Which lawyers have malpractice advertising budgets in the millions? I’m guessing that’s another made up “fact”, right?
Hey, if you don’t want lawyers to make money in malpractice, here’s an idea: When you or one of your colleagues commits malpractice, admit it. Step up, figure out what it’s going to cost this person to pay their medical bills, their lost income, and a number based on their lost quality of life, and you pay it. Or make your insurer pay it. It’s that simple.
What’s that? You can’t? Won’t? Then quit whining because someone has to help a victim of malpractice make you.
Your response assumes that all bad outcomes are due to medical negligence, which is decidedly not the case.
Your response also assumes that the only detriment to “admitting malpractice” is monetary loss. What about the National Practitioner Data Bank to which all malpractice payouts get reported. A few listings on the NPDB can make it difficult or impossible to get malpractice insurance or hospital privileges. Kind of like attorneys getting sanctioned for each case they lose.
If you want a system where everyone gets fair compensation, lets go to the workers compensation model. Quick and reliable payouts for injuries that occur. No exorbitant legal fees.
Then again, most plaintiff attorneys argue against such a system, stating that it “takes away the right to a trial by jury.” Wonder why that is …
“Your response assumes that all bad outcomes are due to medical negligence, which is decidedly not the case.”
My response assumes no such thing – in fact I explicitly said “commits malpractice” not “when a bad thing happens”.
“What about the National Practitioner Data Bank to which all malpractice payouts get reported.”
What about it? Is that justification for then NOT owning up to your mistakes and paying for the harm you cause? And it’s nothing like attorneys getting sanctioned for each case they lose. It’s like attorneys getting sanctioned for each case they lose AS A RESULT OF MALPRACTICE. How many physicians have been prevented from getting jobs as a result of unjustified listings on the NPDB. Surely you know if you’re citing this as this horrible sanction.
“If you want a system where everyone gets fair compensation, lets go to the workers compensation model. Quick and reliable payouts for injuries that occur. No exorbitant legal fees.”
You want to blame the lack of this being enacted on plaintiff’s attorneys? Really? Can you point me to where any physicians have proposed legislation for this? Or any insurers? How about you – where is the proposal that you’re backing for this change? You do understand that Workers Comp is no-fault, right? You get injured on the job, you get paid (you personally have no idea whether the amounts are fair, but whatever). Do you think a bunch of bad outcomes that get paid regardless of fault won’t affect you as much as the NPDB listings where at least you have the chance to defend yourself that it wasn’t malpractice?
You’re casting about for reasons to blame other people, but if you want workers comp style no-fault payments for all bad outcomes, you need to act on it. So what have YOU done, besides accuse other people of not doing enough? Personally, I think that will be part of a nationalized health care system, but that’s just me.
I’m sorry you don’t like the Constitution – I’m not the one who guaranteed the right to trial by jury. For some crazy reason, people with experience in that sort of thing thought it was a good idea!
“How many physicians have been prevented from getting jobs as a result of unjustified listings on the NPDB?”
You know as well as I do that data like this isn’t compiled. Personally I know of at least 4 physicians who either couldn’t get privileges or couldn’t get insurance due to NDPB reports and could probably find many more if I asked around.
“Do you think a bunch of bad outcomes that get paid regardless of fault won’t affect you as much?”
Depends. If they aren’t reported to the NPDB, they’ll probably be swept under the carpet or subject to confidentiality clauses.
“So what have YOU done, besides accuse other people of not doing enough?”
Actually, quite a bit. You just don’t know the name under which I’m doing it.
“I’m sorry you don’t like the Constitution – I’m not the one who guaranteed the right to trial by jury. For some crazy reason, people with experience in that sort of thing thought it was a good idea!”
So are you actively campaigning to establish trial by jury for tax courts and admiralty courts now? Neither of those court systems has a trial by jury. Or do you only shake the Constitution in people’s faces for issues that financially benefit you?
Well if that data isn’t compiled, how exactly can we take much from your anecdotal stories of 4 physicians, who presumably are still gainfully employed. Are you supporting policy making by anecdote? Do you know how many reports they had on there? If they had 2 or more, is this a bad thing?
“If they aren’t reported to the NPDB, they’ll probably be swept under the carpet or subject to confidentiality clauses.”
If there is a no fault deal as part of national healthcare, the government will keep track as it will be paying the bills. You know that.
“Actually, quite a bit. You just don’t know the name under which I’m doing it.”
Why would you want to keep legislation you’re working on a secret? If you believe in it, why hide it? Doesn’t make much sense. If you want to discuss the merits of a workers comp style system, by all means lets do so. Let’s start with cost.
“So are you actively campaigning to establish trial by jury for tax courts and admiralty courts now?”
You need to read the amendment in question. It refers to suits at common law. Both of those you cite are purely statutory creations not subject to that Amendment, ie. there is no common law basis for them. Although with tax courts I’m not sure what you’re referring to because if you’re charged with a crime for federal tax violations you get a jury.
I’m not shaking it in your face – it’s a fact that I’m sharing with you. Again, I didn’t write it, so I don’t know why you’re upset with me about it. Perhaps you’d be better served to consider WHY the Founders thought it was so important that it was referred to as one of the reasons for the Declaration of Independence and then enshrined in the Bill of Rights.
Matt, as a attorney, can’t conceive of the unfairness of a system that holds a physician to an impossible standard of care- perfection. And I don’t want to hear that doctors hold themselves to be perfect. Every physician I know is painfully aware of their own shortcomings, but despite that, have the courage to try to help every patient-even if it is for free and a bad risk. Definitely not something an attorney can understand. Laws are made by lawyers, not people. Therefore, laws benefit lawyers. They are definitely not morally superior-far from it. They are just unethical enough to place themselves in a position of advantage and hell with everyone else.
It never ceases to amaze me that people who are so careful in reaching conclusions in something they know a lot about, medicine, are so loose in reaching conclusions about things they don’t know a lot about. Quick primer:
1. Perfection is not now and has never been the standard of care. You can be an absolute disaster in your treatment but if there is no adverse outcome causing damages there is no malpractice case. What’s more, PHYSICIANS set the standard of care, and in no state is that standard “perfection”. Lawyers turn down hundreds of med mal cases, and juries don’t expect perfection either.
2. You’re right physicians do wonderful things. But be honest, you’ve seen cases of malpractice among your colleagues, and you’ve never said a word to anyone, especially the victim. There’s lawyers I wouldn’t hire, and there are doctors you wouldn’t let treat your family. But you wouldn’t tell the public that.
3. Tort reform is a law – how does that benefit lawyers? Medical malpractice is a common law action that predates the founding of this country. All the laws that have been enacted by legislatures relating to med mal have mostly been favorable to physicians. Stop being silly and learn the facts before you make a diagnosis.