WhiteCoat

Healthcare Update 11-18-2009

Even Saturday Night Live is getting into the health care reform debate.
“The president wants to pass a health care bill so bad that he will literally sign anything. You can water it down however you like–as long as it’s a stack of paper with the words ‘health care’ on it he’ll sign it … we’ll [even] agree to a provision that makes it illegal to ever sue a doctor.”

A surgeon pays out $6 million because a post operative patient died from a blood clot to the lungs. The surgeon allegedly ignored risk factors for blood clotting, like the patient “being somewhat obese, taking birth control pills, [having] a personal history of asthma and hypertension and a family history of heart disease and stroke.”
We don’t know the facts of the case, but only one of the six factors listed above is a risk factor for blood clots.
The post-operative period is also a risk factor for blood clots. Measures to prevent DVTs are fairly standard and if those measures weren’t followed, then the doctor or hospital should be liable. But the description of this case is one of the reasons that defensive medicine exists. After a bad outcome occurs, lawyers with retrospectoscopes make up medical pseudodata to support their damage claims and give untrue statements like the one about the “risk factors” to a jury.

A child’s family gets an $11.1 million verdict because doctors and hospital didn’t properly check child for dehydration. The child had vomiting for several days, went to the ED, was there for more than 4 hours, and was discharged. The next morning, the child could “barely breathe.” Again, all of the facts aren’t there, but how does failure to check for dehydration in an infant well enough to be discharged lead to difficulty breathing the following day? Something doesn’t make sense.

A sign of the times. Hospital posting emergency department wait times on Twitter. But if you have chest pains or shortness of breath, don’t go on Twitter, you “should be calling.” And if you have insurance, just come right in.

Defense attorney states that homeowners could be held liable for influenza transmission during a cocktail party or during a child’s play date if they don’t warn guests about the possibility for illness. Then he cites a $40 million case where a school principal’s family is suing because the school didn’t provide a safe working environment for the principal and he got some viral illness.
Looks like at my Christmas parties this year, the greeting at the door will be “Let me get your coat. The disclaimers for you to sign before you enter the premises are on the table by the door. Please initial every paragraph. You can purchase individual face masks for 50 cents or 3 for a dollar. And don’t drink the antibacterial hand rinse.”

US Senator Lindsey Graham sponsored a “loser pays” bill for incorporation into health care reform. If only we could incorporate “loser pays” into tort reform.

We’re forced to pay so much attention to all the checkboxes and handwashing and smoking cessation advice so that we can brag about how our hospital has met all the quality measures created by some faceless organizations. In the process, we forget about paying attention to one thing: the human beings who are our patients. This article in the NY Times is spot on.

A woman uses a phony name to get IV narcotics, then ripped out her IV and left. q34q4 ce w
Ooops. Sorry about that. I passed out and my face hit the keyboard after typing that. I can’t imagine such a thing happening in real life.
After police busted her, papers found in her purse revealed she was visiting various medical facilities to swindle them out of drugs. t b787878787878787878787878
Ooops. Passed out again.
She was charged with a felony for her actions. We need more prosecution of fraudsters like this.
Patients with pain want to know why so many health care providers take chronic pain complaints with a grain of salt? Thank people like Kathleen M. Staples of St. Paul, Minnesota.

College student is stuck by hypodermic needle while getting change out of a vending machine on college campus. In other news, as a result of this incident, JCAHO has ordered the removal of all vending machines from hospitals as a patient safety measure so that incidents like this do not happen again.

One third of Americans die in hospitals. Woo hoo! There’s a news flash for you. Where else do you expect sick patients to go for treatment … the bowling alley? The average cost of a patient stay that ended in a patient’s death was more than $26,000, compared with $9,447 for patients discharged alive. Now if we could only stop admitting patients to the hospitals right before they die, we’d save $20 billion per year.
In other news, half of all people purchase groceries in grocery stores and one third of all intoxicated people are in bars.

I broke this week’s Healthcare Update into two parts. To read the other half, head on over to ERP’s place at ER Stories.

71 Responses to “Healthcare Update 11-18-2009”

  1. [...] world lately. When you’re done reading all of ERP’s great posts, check out the rest of this week’s Healthcare Update over at my [...]

  2. Matt says:

    “We don’t know the facts of the case”

    I love that phrase. How you opine on the merits of the case after admitting that I don’t know. But in today’s world, the facts are apparently no longer necessary to reach conclusions.

    “US Senator Lindsey Graham sponsored a “loser pays” bill for incorporation into health care reform. If only we could incorporate “loser pays” into tort reform.”

    We already have loser pays in nearly every state. Please, do just a LITTLE research before you post. A tiny bit. Or stick with things you actually know something about, WC.

    • WhiteCoat says:

      Hey – a LAWYER is the one who posted the facts of the case. One would think that a LAWYER trying to make himself look good would make at least a semi-cogent argument that malpractice occurred. All we were given is that the patient was in surgery less than an hour (my commute to work is longer than that on most days), had one risk factor for DVT and was found dead the next day. If this is the best they’ve got, then the doctor should not have been found liable. End of story.

      “Nearly every state” has a mandatory loser pays law like that proposed in the bill? I call bullshit. How about posting links to a few of them.
      Any judge can permissively award fees to litigants, but it almost never happens and therefore is not a deterrent to frivolous litigation. Before you ask me “how I know”, I challenge you to find 5 instances of a judge awarding fees to the prevailing party in a single state since the Civil War.

      Maybe you need to get the education on the topic – unless you are purposely posting inaccurate information a la the “how often do you beat your wife” routine. I bet a good portion of the people reading this blog know more about these med mal issues than you do.

      • Matt says:

        WC, you’d make a great congressman: “I don’t know the FACTS of this particular healthcare reform but it’s good for the American people so I am voting for it.”.

        As for loser pays, it’s called an offer of judgment. It’s in almost, and maybe every, state has it in it’s Rules of Civil Procedure. Also, almost every state has it statutorily required with respect to contract cases.

        As for your challenge, I will get you that as soon as I have a chance to get in front of Lexis. And that will just be cases that have been appealed.

        As far as others being able to spot med mal better than I, you are absolutely right. But even a simpleton such as myself knows that a physicians treatment and whether it was negligent is pretty hard to determine from a few paragraphs in a blog posting.

      • Fyrdoc says:

        Mutt,

        Maybe you are right when you say “As for loser pays, it’s called an offer of judgment. It’s in almost, and maybe every, state has it in it’s Rules of Civil Procedure. Also, almost every state has it statutorily required with respect to contract cases.”

        Great, now make it required in MedMal cases and let’s see what happens to the number of suits a lawyer would be willing to take on. After all, according to you, the only cases that make it to court are clear cut cases where the physician is wrong, so it really shouldn’t drop the number of cases right? So really, it shouldn’t be a big deal… Thus I’m sure the “Justice League of America” (or whatever the Whores formerly known as the ATLA are going by this week) would get right behind the idea.

      • Matt says:

        Fry, surely a legal expert like you is aware of an offer of judgment. Why would you say “maybe”? It’s the defendants option to invoke. Why do we need to make it mandatory?

        Does it really do you any good to have the right to collect against a med mal victim? How solvent do you think they’ll be?

        As far as lobbyist whores, I wouldn’t cast too many stones if I was a physician, given what your professions most prominent lobbying group is signing on to these days.

      • Fyrdoc says:

        Mutt,

        If the case is lost (LOSER pays), how is it a med mal “victim”? The victim is the physician who was forced to defend themselves against your ilk for no good reason.

        And the AMA membership is less than 17% of the active physicians in the US. If you want to attack me (or WC for that matter), please cite examples of from either the AAEM or ACEP as it is far more likely we would belong to one of those…

      • Matt says:

        I am sorry you felt “attacked”. I was merely noting the whorish nature of the most prominent physician lobbying organization as a result of you noting some of those qualities in other industry lobbyists. If you’re not a member, as I am not of national ATLA, then you shouldn’t feel attacked. I didn’t feel that way about your ATLA comment. Maybe you’re just being overly sensitive.

      • Fyrdoc says:

        And you’ve still not answered regarding “loser pays”. I’d love to see what happens when the pond scum plaintiff’s bar have some real skin the game. It is real nice to note that prosecutors and judges are immune to legal malpractice claims even in cases of willful and wanton misconduct. Why not hold them to the same standards as a physician? Good for the goose…

        Here is reform I’d be happy with -a physician is sued for malpractice and loses, fine, no caps, no filters have whatever a jury awards. But if the physician wins, the plaintiff and their attorney are joint and severally liable for the defamation to the physician, payment for the physician’s time in defending themselves as well as any mental suffering and/or duress the physician undergoes (including claims of family and spousal distress). Now, clear cut cases (surgeon cuts off wrong limb) will still get their day in court, but these B.S. cases where there is a real question as to not only if the standard of care was violated but even what the standard of care IS will never see the light of day. But hey, according to the [plaintiff's] bar, this would put too much of a burden on lawyers. Physicians are the only ones who should be held to such standards…

      • Fyrdoc says:

        And Mutt,

        I hope you make good and certain that the lawyers’ lobby keep EMTALA in play. I have heard a suggestion recently from two medical directors of small EDs that since profession is not a class protected by law that they may consider a policy of refusing to treat (beyond the legally required MSE and transfer) the plaintiffs attorneys in their towns or their families and staff. I know that I agree and would love nothing more than to leave you to explain to your loved one that the pain they are going through can’t be helped because Daddy has spent a career making sure that other people didn’t have access to care and now karma has bit him in the a$$. It might make me feel a little better when the next helicopter lands from 1.5 hours away, bringing in the head bleed (now too far gone to save) from the heavily populated county to the south of me where all the neurosurgeons have left as a result of lawsuits. I’ll tell you what, why don’t you come here a help me, in that eloquent “standing up for the rights of the people” manner that you have, explain to the parents of the 16 year old who will now be a vegetable after a simple moped crash. No, wait, that would just get you access to get 33% plus costs of the suit you would have them bring against the manufacturer, the salesman who sold it, the county for lack of a “soft” roadway, the transferring ED, me and the treating neurosurgeon. You ask why I hate lawyers? That is pretty much why. Go ahead, tell me how I need you to buy a house, sign a contract etc. Yeah, I’d learn to do all those things myself if it meant less dead kids.

      • Matt says:

        “And you’ve still not answered regarding “loser pays”.

        I know, I just sat down in front of the computer. I’ll send you some shortly. Settle down, little fells. As for plaintiff’s attorneys having some skin in, I’m not sure what you’re talking about. If you’re talking about how loser pays is utilized in other countries, you’re still not making sense. As for the “scum”, I realize you have that luxury of calling people names because you are invincible and no insurance company would dare mess with you. If only the rest of us were so lucky.

        ” It is real nice to note that prosecutors and judges are immune to legal malpractice claims even in cases of willful and wanton misconduct.”

        I don’t know what you mean by “immune”. They can and are sanctioned and even removed from their positions. As far as liable to civil suits, lots of government employees, even physicians, enjoy limited liability. This is not new.

        “. But if the physician wins, the plaintiff and their attorney are joint and severally liable for the defamation to the physician, payment for the physician’s time in defending themselves as well as any mental suffering and/or duress the physician undergoes (including claims of family and spousal distress). ”

        Why is it “defamation”? If you and I are in a car wreck, and we disagree with who is at fault so you sue, and the jury agrees with me, did you defame me? Not really. Should I get compensation because a jury resolved that dispute in my favor? No, we had an honest disagreement. For someone who doesn’t like torts, it seems you sure want to expand them a lot.

        ” Physicians are the only ones who should be held to such standards…”

        Maybe that rant makes sense in Crazytown, but not here.

        “I hope you make good and certain that the lawyers’ lobby keep EMTALA in play.”

        Which lobby? There are all kinds of lobbyists for all different kinds of practices, just like your profession. I doubt this is even in the top 100 of their priorities.

        ” Daddy has spent a career making sure that other people didn’t have access to care”

        I don’t know how that would be possible since every bit of objective evidence shows lawsuits have no effect on whether there were physicians present. Again, maybe that makes sense in Crazytown though.

        But if your proposal is no lawsuits and you’ll put a neurologist within 15 minutes of every person, then put it on the table and let’s talk. As it is now, you’re just asking for immunity and offering nothing in return.

        As to why you hate lawyers, I honestly don’t care. It’s quite clear you have little concept of what you speak, and truly believe yourself to be invincible in all matters. I mostly just think you’re one of those people who is angry about lots of things they don’t understand.

      • Matt says:

        Here’s 3 cases I found in 5 minutes with the Lexis search “attorney’s fees w/3 award”. I got 1080 hits in the 8th Circuit alone.

        583 F.3d 51

        563 F.3d 736

        116 Fed. Appx. 36

        Enjoy.

      • Fyrdoc says:

        Hey Mutt,

        Let me give you an invitation to Crazytown. About an hour to an hour and a half by ground from where I work is a county with a population of > 1 million persons. It is known to be “plaintiff friendly”. There was a group of 5 neurosurgeons who regularly took call. Five or so years ago, one of them was sued on just about the craziest case anyone had ever heard of. After a successful surgery meant to slow or stop a degenerative process the patient sued because a medical device salesman (who was related to an attorney) convinced the patient that had his brand of surgical device been used, the outcome would have been “even better”. The “expert” witness was the president of the device company. Needless to say, the plaintiff won. Now the award was relatively small ($450K) and no appeal was filed. No appeal because their malpractice carrier explained to them that their rates were going up tremendously regardless if they won on appeal. They closed up shop (one still does non-surgical pain management). Now the area has no neurosurgeons, so my ED gets their neurotrauma cases. I’ll let you know tomorrow if the 16 year old makes it (that was another real case, but I suspect that only his organs will leave the hospital “alive”). So please, tell me again how this never happens.

        As for defamation, in many states a physician must report (on a publicly available site) any legal action, regardless of outcome. There is no question in EVERY state that all actions, even those where the physician is discharged from a case before trial, must be disclosed to hospital credentialing committees, employers, etc. These are always considered deleterious. So yes, having a suit filed without merit is defaming.

        A great paper on the subject points out that in 37% of closed cases analyzed by a blinded group of physicians NO ERROR WAS FOUND. So more than 1/3 of the cases was absolutely frivolous. On average, when claims without injury were compensated, that compensation averaged over $300K. And before you cry out in anguish for the poor, downtrodden “victim”, more than half of the compensation awarded them went to administrative fees. So yes, I would like to know, before $300K is shelled out on my behalf when I make no error, that someone will be held liable for putting my family and I through the process.

        (see: http://content.nejm.org/cgi/content/abstract/354/19/2024 )

        Mutt, I don’t hate you because I have no concept of you. I hate you and your ilk because I do know you. I know how you waive about your profession, threatening everyone around you in a sense that you are somehow more entitled than the rest of us. Your kid doesn’t make grades – sue. Your wife falls down in the park – sue. Some waiter spits in your food because he knows you are a lawyer – sue. But perhaps you are more entitled than the rest of us. You got into law school after all.

        Question: “Why lawyers?
        Why the law?”
        Answer: “Because the law, my boy,
        puts us into everything.
        It’s the ultimate backstage pass.
        It’s the new priesthood, baby.
        Did you know there are more students
        in law school…
        …than lawyers walking the Earth?
        We’re coming out…
        …guns blazing!
        The two of you…
        …all of us,
        acquittal after acquittal after acquittal…
        …until the stench of it reaches
        so high and far into Heaven…
        …it chokes the whole f*cking lot of them!”
        – A quote from my favorite documentary “The Devil’s Advocate”

      • Fyrdoc says:

        Hey Mutt,

        Stay on topic. You said “There probably won’t be fees in that situation, for either side. Fees typically aren’t awarded in individual v. individual tort cases. When a plaintiff wins, they don’t get attorney fees.”

        Right. Hence the discussion in WC’s post. From the article he referenced: “The so-called ‘loser pays’ legislation introduced by Chambliss and Graham would require parties in medical malpractice claims to enter nonbinding arbitration to try to resolve disagreements.

        If one or both of the parties reject an arbitrator’s decision, they could take the claim to court. But the losing party would be required to pay its opponents’ legal fees, which could be in the hundreds of thousands of dollars.

        ‘While no one with a valid claim for medical malpractice should be denied his day in court, those who bring frivolous lawsuits raise the cost of health care for everyone,’ Chambliss said in a statement. ‘Loser pays’ should go a long way toward discouraging such junk lawsuits and lowering the cost of practicing medicine.'”

        I know it is difficult to stay on topic when you’ve taken up the losing side of the battle, but hey, try (or just quit and go away which we’d all enjoy more!)

    • WhiteCoat says:

      Matt – I wasn’t clear in my challenge. I was looking for fees being awarded for medical malpractice cases.
      I’m sure out of the millions of cases filed overall there are more than 250 that have awarded fees to prevailing parties.
      Cross reference your search with “medical malpractice” and see how many cases come up, would you?

      • Fyrdoc says:

        He can’t because we all know it almost NEVER happens. He’ll just change the subject again. Perhaps it will be “Why aren’t you advocating for change” or “But what about the patient who really was hurt” or my favorite “I’m just a hard working advocate for the downtrodden, tired, poor, huddled masses and you, Dr. WC, will need my services soon enough…”

      • Matt says:

        There probably won’t be fees in that situation, for either side. Fees typically aren’t awarded in individual v. individual tort cases. When a plaintiff wins, they don’t get attorney fees.

        And there probably aren’t even 1 million cases on appeal involving an individual plaintiff and individual defendant in med mal. I’d be surprised if 1000 of those cases go to trial each year, much less get appealed (and thus create a searchable appellate record).

      • Matt says:

        Fry,

        Your anecdotal stories are wonderful, but the CBO investigated the disappearing physicians claim and found it wanting. Like I said, though, if you believe it, guarantee it. Tell people, if you give me X, you’ll get Y. If Y doesn’t materialize, you no longer give me X. When that happens, what you say means something.

        ” So yes, having a suit filed without merit is defaming.”

        Maybe you can get your legislature to agree with your definition of defamation and expand the cause of action. Until then, it’s not legally cognizable. I assumed you knew that, as the legal expert and all.

        “more than half of the compensation awarded them went to administrative fees.”

        I think you mean more than half the total cost going into a med mal case goes to paying attorney fees, insurer overhead, etc. Which I agree is too much. I want insurers to pay faster as well. So how does any proposal of yours change that?

        See, when you don’t know even the basics, your cry of “I know you and your ilk” falls flat. I’m sorry you find it offensive that people disagree with you and dare to question your judgment. Perhaps they just don’t recognize how great and infallible you are. Give them time.

        And “Mutt”? Really, that’s what you’re reduced to? Weak.

      • Matt says:

        WC, how many med mal cases do you think are filed every year? Or for that matter, how many claims to insurers are made every year? Do you know?

      • Fyrdoc says:

        “And ‘Mutt’? Really, that’s what you’re reduced to? Weak.”

        Really – because you’ve been calling me “Fry” forever. It’s Fyr, F-Y-R. As in “Fire” as in I’ve been a firefighter much longer than I’ve been a doc. But you knew that. Because I’ve told you before.

      • Fyrdoc says:

        Hey Mutt,

        Stay on topic. You said “There probably won’t be fees in that situation, for either side. Fees typically aren’t awarded in individual v. individual tort cases. When a plaintiff wins, they don’t get attorney fees.”

        Right. Hence the discussion in WC’s post. From the article he referenced: “The so-called ‘loser pays’ legislation introduced by Chambliss and Graham would require parties in medical malpractice claims to enter nonbinding arbitration to try to resolve disagreements.

        If one or both of the parties reject an arbitrator’s decision, they could take the claim to court. But the losing party would be required to pay its opponents’ legal fees, which could be in the hundreds of thousands of dollars.

        ‘While no one with a valid claim for medical malpractice should be denied his day in court, those who bring frivolous lawsuits raise the cost of health care for everyone,’ Chambliss said in a statement. ‘Loser pays’ should go a long way toward discouraging such junk lawsuits and lowering the cost of practicing medicine.’”

        I know it is difficult to stay on topic when you’ve taken up the losing side of the battle, but as a professional arguer, it should be easy for you!

      • Matt says:

        Honestly I’ve been misreading that this whole time. I’d have never made the firefighter connection regardless. I really had no clue why you gave yourself that pseudonym. My apologies on the “Fry”.

      • Fyrdoc says:

        And notice ladies and gentlemen, he won’t respond to the article, written by lawyers that clearly demonstrates that more than 1/3 of claims involve no medical error – and in fact ~4% involve NO INJURY!

        Let’s put lawyers into a situation where they could do their jobs well, but get sued anyway! And one quarter of the “no error” claims were PAID ON!

        Yeah, Mutt. No problem there. Hell, Lawyers don’t even want it known they carry malpractice insurance.

      • Fyrdoc says:

        Honestly I’ve been misreading that this whole time. I’d have never made the firefighter connection regardless. I really had no clue why you gave yourself that pseudonym. My apologies on the “Fry”.

        – Apology accepted, Matt

      • Matt says:

        Fyr,

        The legislation remains pointless since one, it’s federal and unless you federalize all med mal it has limited application. Two, we already have offers of judgment. So why add yet another layer of costs? Particularly when you were criticizing the admin costs justs a moment ago.

        You just into big govt for it’s own sake?

      • Matt says:

        Fyr,

        I have cited the Studdert study (I’m not sure why him having a law degree gives it more weight) many times. I agree with its conclusions and his many statements that the claims of lots of frivolous suits are overblown. Here’s his quote:

        “”Some critics have suggested that the malpractice system is inundated with groundless lawsuits, and that whether a plaintiff recovers money is like a random ‘lottery,’ virtually unrelated to whether the claim has merit,” said lead author David Studdert, associate professor of law and public health at HSPH. “These findings cast doubt on that view by showing that most malpractice claims involve medical error and serious injury, and that claims with merit are far more likely to be paid than claims without merit.””

        “Let’s put lawyers into a situation where they could do their jobs well, but get sued anyway! ”

        A lawyer can be sued even if they think they did a good job. That’s what the jury decides. At the end of any dispute resolution system no matter how legitimate the dispute the prevailing party is mad they were brought into the dispute.

        Is your criticism that humans aren’t perfect? You and I are in agreement. They’re not.

      • Fyrdoc says:

        Here is the question I’ve asked before and you’ve never answered Matt. In patent law, defining the technical aspects covered by the patent is very technical, often requiring many experts to help explain. As such, “Markman Hearings” (to borrow wikipedia’s definition “In general, the effectiveness of a particular patent depends on its potential at blocking competitors. The key for a patent holder is getting the proper definition of words used in the patent to allow blocking of the particular troublesome competitive product. Prior to this decision, juries had the responsibility of deciding what the words used in patent claims meant. Opposing results in cases with similar facts were common, and a perception arose that the outcome of such trials was somewhat arbitrary. In Markman, the Court held that judges, not juries, would evaluate and decide the meaning of the words used in patent claims.”) are now de rigeur. In other words, most patent cases were too technical to leave to a jury. Why not employ a similar hearing for Med Mal? A judge would decide on the definition of the standard of care in a given case. The jury could still decide if it were violated – although much like after a Markman Hearing, the case may be dropped or settled by one side or the other based on the Judge’s decision. We NEED to take emotion out of the definitions – otherwise we get John Edwards channeling fetuses.

        While the Studdert study shows it is a rare event, it does find that one quarter of “no error” claims get paid on. Rare, yes. Able to drive huge fear, also yes. What do think the average physician believes more common – a frivolous suit or a sentinel sub-arachnoid hemorrhage missed on CT? I’d bet the lawsuit by a factor of 10. And we each spend thousands of dollars monthly doing invasive procedures to find the SAHs…

      • Matt says:

        Fyr,

        You keep saying things like juries are ruled by emotion, but the overwhelming evidence is they aren’t. After all, as you have noted, the physicians typically win at trial. Your evidence doesn’t square.

        Is emotion involved? Of course, you’re talking about people with devastating injuries. I’ve watched mothers cry and videos of kids who can’t even speak as a result of alleged malpractice, but I’ve still seen defense verdicts in those cases. You say we “need” to take emotion out, yet you’ve produced no evidence that emotion is typically the reason, nor have you shown a record of inconsistent verdicts which would lead the standard of care to being a question of law and not fact.

        Why you believe Americans are ignorant and not capable of making these decisions, I don’t know. It’s your conceit I think.

        As to Edwards, you have no idea why the jury ruled the way they did in that case, because you haven’t seen the evidence. They did. So who are you to question their decision or its basis?

        And what evidence do you have that judges are any more qualified or likely to get the standard of care right? Short answer: None. Do you think they are emotionless automatons who might be as smart as you and therefore qualified to make those decisions where a jury is made up of mindless simpletons? Again, that’s just your conceit, not evidence.

      • Matt says:

        WC did you get the answer you were looking for? I can post a link to a couple states civil procedure rules regarding offers of judgment if you need it. Loser pays does in fact exist and has for some time. You may need to think of another method to scare poor people from suing.

  3. midwest woman says:

    Re: the NYT article. I just work on a medsurg floor but that article really struck home. Here are my thoughts if interested. http://www.notintherapeuticrange.com/2009/11/snow-leopards-and-me.html
    It’s a little hokey but it is so frustrating to see time at the bedside and real patient interaction reduced to a slam bang thank you m’am

  4. I don’t support ‘loser pays’ and I don’t think that caps are the ideal approach. I supported them in Ohio, however, as there was no other remedy available to the medical profession. Physicians were leaving the state and leaving practice. It is 100% certain that these caps cooled off our medical malpractice premiums, despite the denials of the anti-cap gangs. We need an effective filter, not invented yet, to filter out the frivolous and silly cases from those where there exists a reasonable basis to proceed. In my career, I’ve been involved in several medical malpractice cases. I was innocent in all cases and dropped from every suit. But each experience, cost me time and $$$. Of course, it affected how I view patients. The legal system is more dysfunctional than the health care system. See http://www.MDWhistleblower.blogspot.com under Legal Quality

  5. leeM says:

    Manipulating quality markers, AKA adding sand to the foam.

    A while ago I went to buy a foam mattress and read in Consumer Reports that for the same firmnes of foam the heavier the better since it means more material had been used. (More rubber, lower air pressure).

    While I was in the foam store hefting samples the owner ambled over and handed me a small cube of foam.

    He told me to crumble it between my thumb and fingers. To my surprise not only did it easily crumble but sand came out of it as I did.

    Turns out shady manufactures also read consumer reports and had developed a special grade of cheap sand filled foam providing weight to fool “savy” consumers.

    Not only was insuficient material used in the first place but the sand actually made the foam more likely to break down.

    The point of the above is that attempts to manipulate the “quality markers” instead of truly improving quality are likely to have adverse consequences.

    I have since noticed many examples of manipulating the quality markers rather than truly improving quality. Many education initiatives are good examples.

    PS: The above also explained the source of the recurring sand under I very cheap couch I once owned.

  6. paul says:

    wc can you please, please put an “ignore” function on your comments page already? there are certain users whose comments offer me nothing so i’d just assume not have them appear on the page when i’m reading what others have to say.

  7. paul says:

    the other option would be flat out banning but that doesn’t seem to be wc’s thing.

    • WhiteCoat says:

      Not into banning people.
      Checked on WordPress and there is no way to ignore posts … yet. I put in a submission for developers to create such an extension. We’ll see what happens.
      In the meantime, DNFTT

  8. Matt says:

    Maybe it has always been this way but it seems like more than ever people are only interested in learning things that confirm what they already think. Myside bias has become sp strong it has stagnated political thought in this country and in a way hindered the development of intellectual growth. Kinda sad.

  9. Matt says:

    There are a lot of claims made here about lawsuits, but really there aren’t that many statistics that you’re basing your claims on. None of you seem to have any idea how many medical malpractice suits there are, yet all of you are convinced there are too many, for example.

    This isn’t a comprehensive survey by any means, as I believe it only covers the 75 most populous counties in the country, but the DOJ has done a study which you might be interested in regarding personal injury claims (including malpractice), results, and various other info in those counties. It is here:

    http://www.ojp.usdoj.gov/bjs/abstract/tbjtsc05.htm

    Highlights of the data can be found here:

    http://www.marylandinjurylawyerblog.com/2009/11/personal_injury_statistics.html

    Hard numbers gathered by nonpartisan sources may or may not change your opinions, but they can certainly add to your knowledge base.

  10. Xhy says:

    Matt,

    If you’d like to know how many frivolous medical malpractice lawsuits ending in huge awards for the plaintiff is too many, here is your answer: One.

    While the likelihood of any individual physician being hit by such a lawsuit is relatively small, I would imagine over the course of their career, most physicians will have a friend or colleague experience such a suit. The effects of these lawsuits are profound and will absolutely alter the behavior of physicians who witness these effects, despite those physicians never having been sued themselves.

    To put it in other words: There is a very low probably that I will be involved in a car accident in which I would be ejected from the vehicle if I was not wearing my seat belt today. However, I (and most rational individuals) don’t need to personally experience such an accident to realize the utility of wearing a seat belt. I can simply observe what has happened to other individuals who chose not to wear a seat belt and come to the conclusion that I will be buckling up despite the overwhelming odds that it will not be required today.

    Needless to say, most physicians will be “buckling up” by altering their behavior to avoid these lawsuits and any rational person who has seen the consequences wouldn’t blame them.

    • Matt says:

      Xhy,

      Your point is well taken, and to that I can only respond in one of two ways. One, no endeavor involving humans is perfect, and no matter what system you devise involving us, there will be an error. We have multiple reviews of every civil and criminal case before, during, and after, by multiple parties that we elect to do exactly that. But even then mistakes are made.

      Just like in a hospital where despite checklists, multiple parties reviewing an issue, etc. doctors still end up performing wrong site surgery. That will happen. Would you suggest people never get surgery because that happens once in awhile?

      Two, your question is still a little broad if you’re assessing your risk and deciding how afraid to be. The question is not the huge judgment, it’s the PAYOUT by the physician of his personal assets, which is an even smaller likelihood. I’d venture to say the vast majority of the physicians in the US have no personal knowledge of any case involving an insured physician (who wasn’t drunk or high or something egregious) paying a judgment out of their own pocket.

      As far as physicians altering their behavior, if they are that afraid, I would hope they would. I would hope they would do all they could to avoid committing malpractice as a result. But if the case is truly that one in a million wrongly decided case, I don’t know what you do. Avoid all human contact? It’s akin to not getting vaccinated because 60 years ago someone people got polio from the polio vaccine.

      • Xhy says:

        Matt,

        I just wanted to clarify, I was referring to physicians fearing frivolous lawsuits, rather than malpractice suits in which a mistake was clearly made and the patient should be compensated.

        It is generally not the payout of personal assets that worries physicians because, as you mentioned, malpractice insurance in most cases will cover the judgement. What worries physicians is the actual process of having to defend themselves from a frivolous lawsuit, where even if you ultimately prevail, you still lose based on all the time, stress and emotion that went into the case. I’m not sure if there is any hard data available, but again I would imagine over their careers most physicians will have a friend or colleague experience this.

        These cases (while being relatively rare) come up often enough that it has reached a critical mass in which most physicians are aware and fear such a lawsuit. In response, they are changing how and where they practice.

        If you were to take a poll of patients before their surgery, I don’t believe their prevailing concern would be whether or not the surgeon will operate on the correct site. It certainly hasn’t reached a critical mass in which patients are refusing surgery for this reason.

        For arguments sake, lets say wrong site surgery cases became common enough that most patients began changing their behavior and declining surgery that was needed. Would you agree that something was wrong with the system beyond simply human error and that something has to change in order to address the patients concerns?

        Well, something is wrong with the medical malpractice system and something has to change.

        I don’t claim to have all the answers, but lets take a look at your statement that multiple reviews are done by multiple parties to prevent mistakes from being made in the legal world. How many of these reviews are being done by a party that A: has the appropriate medical expertise and B: is independent? Not very many I would imagine. Instead we have untrained, but independent jurors being given testimony from medically trained, but biased experts from the plaintiff and defense who contradict each other. It is certainly not an ideal system and it leads to far more than one in a million wrongly decided cases. Perhaps we could start by making changes here?

      • Matt says:

        Well if it’s the process they fear I don’t know why to tell you. No on likes to explain themselves or be questioned in a dispute, but we have to have a dispute resolution process.

        You say they come up “often enough” but do you know how often? That statement doesn’t tell me much. As to physicians changing where they practice, nonpartisan studies of that claim have found it not to be true.

        You say something is wrong with the system because of physicians fear. But there is no evidence that the fear is well founded. Why should we scrap one of our most fundamental rights because physicians don’t want to be involved in disputes? No matter what dispute resolution system you come up with people won’t be excited about being involved.

        As far as changes needed, yes some are. Let’s get the cases to trial faster. I’m all for that. Your insurers however, are not.

        Maybe you have some good ideas for changes, and we can discuss them. But really for the most part it’s academic unless you can get your insurers on board. They’re the real money behind “reform” efforts, physicians are just the face put on them. And to do that you’re going to have to include some caps or some other limitation that has little to do with justice and a lot to do on keeping more money in their pockets.

    • Max Kennerly says:

      “I (and most rational individuals) don’t need to personally experience such an accident to realize the utility of wearing a seat belt. I can simply observe what has happened to other individuals who chose not to wear a seat belt and come to the conclusion that I will be buckling up despite the overwhelming odds that it will not be required today.”

      Were that point valid, malpractice would no longer exist, for all current doctors would have “observed” prior negligent doctors and adjusted their behavior accordingly.

      Yet, malpractice still happens. Why?

      • Fyrdoc says:

        Because a little over 1/3 of all malpractice claims do NOT involve a medical error. If we extrapolate – as a physician I watch another physician do everything correctly, yet he gets sued. So I adjust my practice to compensate, but now I AM committing an error – and get sued.

        Interestingly, I have heard from more than one mentor “I have been sued, and I have committed malpractice. But I’ve never been sued for committing malpractice.”

      • Max Kennerly says:

        Fyrdoc,

        Based on your explanation, the fact that 1/3 of claims don’t have a medical error is enough to cause defensive medicine, but the other 2/3 of claims with a medical error isn’t enough to prevent malpractice.

        My point was a simple one: the idea that incentives are perfect, i.e. that the possibility of liability wholly controls doctors’ behavior, is baloney.

      • Matt says:

        “Interestingly, I have heard from more than one mentor “I have been sued, and I have committed malpractice. But I’ve never been sued for committing malpractice.””

        Did they inform the patient of their malpractice?

  11. Fyrdoc says:

    “Did they inform the patient of their malpractice?”

    No. Have you informed your clients when you’ve committed malpractice? Or is it when guided directly by the loving hand of Satan you’ve never erred?

  12. Fyrdoc says:

    “My point was a simple one: the idea that incentives are perfect, i.e. that the possibility of liability wholly controls doctors’ behavior, is baloney.”

    No, it isn’t in light of the fact that in you and your legions’ eyes error = negligence = malpractice. (Unless, of course, we are talking about the practice of law, wherein error is an inherent part of the adversarial process).

    • Matt says:

      “No, it isn’t in light of the fact that in you and your legions’ eyes error = negligence = malpractice. ”

      This is another one of your beliefs that doesn’t hold up to the facts. It’s indicative of many of them where you have literally no experience in meeting with a malpractice plaintiff, no experience in reviewing a malpractice case from the business perspective of whether you want to put your time and money into it, and no experience of the work done or money spent before you even decide to pursue the case. Yet you’re quite certain that all people with law degrees believe “error=negligence=malpractice.”

      “Have you informed your clients when you’ve committed malpractice?”

      I haven’t to my knowledge so far. The one time I almost did I informed my client, gave them my insurance carrier’s contact info and policy number, and told them to call.

      I think your hate has overwhelmed your good sense.

  13. Fyrdoc says:

    “This is another one of your beliefs that doesn’t hold up to the facts.” – Actually, in the only good study of the issue, the only variable that be measured was the presence or absence of medical error. Error, which results in an injury to a patient (or in a potential injury given delay or lack of recognition of a disease process), equals a malpractice case. Plain and simple. Very few rise to the level of willful and wonton misconduct (and those that do are almost never alleged to have occured that way as most insurers will not cover such action). So how else do ou define medical malpractice?

    And, as long as we are talking about the well intentioned error, why is it that trial strategy that “doesn’t work out” is not legal malpractice? It is, after all, a professional action, taken in good faith, based on expert opinion and experience, that simply “didn’t work”. Much like most med mal cases (such as that posted in WCs chronicle). Why is it malpractice when a physician errs in judgment and a patient is injured but not when a lawyer does and a client is injured?

    I mean let’s look at WC’s case, as chronicled. Do you believe that the plaintiff has a reasonable malpractice case against her attorney (based on the facts as presented)? Why not? He took the available facts (like WC did), formulated a strategy that, by the book (so to speak) should have resulted in a finding for his client (much as WC took a course of action that at least two experts thought was reasonable given the circumstances) but it didn’t work (like it didn’t for WC). Now, I have to believe that, if we gave the transcript of this trial to a large number of demon scum (in mean plaintiff’s attorneys), at least one or two would comment negatively on the Grinch’s handling of this case. To a layman’s eyes, the use of an expert from a field different than WCs and not having a “back-up” expert who could speak resoundingly to WC’s alleged error to substitute for the original emergency physician “expert” who fell ill would seem tobe two easy areas to pick on. These seem like much larger errors (to my eyes) than what would seem an esoteric discussion as to the presence or absence of a drainage that, if present, was only noticed by the least well trained member of the care team (EMS providers not being required to have academic degrees in any state). So, based on the facts as presented, should the plaintiff in his case sue the Grinch?

  14. Fyrdoc says:

    To think that you have any IDEA of what actually goes on an in average emergency department is as moronic as it is insulting. You have NO IDEA what it is to pause at a doorway, realizing that when you enter, and deliver your news, everyone in that room will from then on measure all time in relation to that moment. Often you have invested a large piece of your soul in a vain attempt to stave off the worst effects of that news – but usually to no avail.

    After you have told your first couple sets of parents that their beautiful child is dead, despite the hours you spent working to prevent it, or after you have tried to explain to a child that mommy will “never wake up” despite your best efforts can you even BEGIN to see how insulting it is that someone like you will come along, cashing in on the family’s grief, picking apart every decision made in a split second on based limited information with the benefit that only time and retrospection (two tools unavailable to us) offer, in an attempt to enrich yourselves, without any sense of the agony you will cause in a ripple effect across society.

    Thankfully, I am a man of deep faith, and I know that in the end, that is what will happen – which lets me treat you and yours, to the very best of my ability, every time you require my services. I smile, and put forth my best effort, even engage you in polite banter about any interesting cases you may be trying at the moment, knowing in my heart that I can only delay your eventual dance with the devil and nothing I do will prevent it.

  15. Matt says:

    “Actually, in the only good study of the issue, the only variable that be measured was the presence or absence of medical error.”

    Actually, that study did not analyze what cases attorneys take or turn down. It only studied those they did take – read it again if you think I’m lying. Most people who do that kind of work, like Max for example, will tell you that they turn down 100 inquiries for every case they take. It doesn’t make good economic sense to do otherwise.

    “And, as long as we are talking about the well intentioned error, why is it that trial strategy that “doesn’t work out” is not legal malpractice.”

    Because like medical malpractice, the standard of care does not require a specific outcome. It’s not a difficult concept to understand. If, for example, you collide with someone in the intersection tonight, and swear the light was green while they swear their own light was green, and I take your case, try it perfectly, and the jury agrees with them, there is no malpractice. In the same way that sometimes a physician does everything right, and the patient still dies. The loss of your case, just like the death of the patient, is not in and of itself evidence of malpractice. That part is certainly necessary for the damage element, but it does not establish the breach of the duty.

    “Why is it malpractice when a physician errs in judgment and a patient is injured but not when a lawyer does and a client is injured?”

    See above. If the error is a failure to meet the standard of care, for either professional, and damages result, you have a malpractice case. Whether the profession is medicine, law, engineering, architecture, etc.

    You ask about WC’s case (and really, you only make yourself look silly with the “demon scum” stuff – can we grow up just a little?), but if you believe that WC did not commit malpractice and that’s what the evidence showed, then you’ve answered your own question. Think about it.

  16. Matt says:

    Let me give you a real world example of what I’m talking about. A small business client of mine recently underwent an EGD. During the procedure, she suffered from a perforated duodenal diverticulum. I don’t handle med mal, so I referred her to an attorney who does.

    He had a preliminary review done, and then declined the case, according to his letter because this is a known complication of EGD. Is it an error? Undoubtedly. Is it malpractice? Probably not.

    Incidentally, don’t hold me to the spelling of anything. I freely admit I do not have the knowledge, but I’m giving you the highlights of the rather lengthy letter he sent her via me.

    • Fyrdoc says:

      So you provide an example of an ethical attorney (which is generally a contradiction in terms). However, in a closed case review, it is no uncommon for such a case to be filed:

      From: Malpractice claims in gastrointestinal endoscopy: analysis of an insurance industry data base
      Gastrointestinal Endoscopy, Volume 39, Issue 2, Pages 132-138
      P. Gerstenberger, P. Plumeri

      “We investigated 610 endoscopy-associated and 486 gastroenterology-associated malpractice claim files of the Physicians Insurers Association of America data-sharing project. We determined the relative malpractice claim risk for each of the major types of endoscopic procedures by comparing claim frequencies with Medicare performance frequencies. Relative malpractice risks were 1.0 for sigmoidoscopy, 1.2 for esophagogastroduodenoscopy, 1.6 for endoscopic retrograde cholangiopancreatography, and 1.7 for colonoscopy. “Improper performance” was alleged in 54% of claims and “diagnosis error” in 24% of claims. Of 121 claim files alleging a diagnostic error, 74 (61%) pertained to missed malignancies, of which 69% were colorectal. [b]Of 147 claims alleging iatrogenic injury, 140 (95%) involved perforation or similar direct injury to the gastrointestinal tract.[/b] Problems with consent were alleged in 44% of 158 endoscopy-related claim files alleging additional associated issues.
      {emphasis added)

  17. Matt says:

    “And my hate only grows with every inane babbling of yours and Max’es.”

    If that’s the way you feel, why do you read what we post? That doesn’t make much sense.

    And I, for one, have never claimed to have any knowledge of what goes on in the ER, and certainly not as much as you do. Unlike you, I’m not the expert on both legal and medical issues.

    I have no doubt you have told lots of people some sad things. I have too. Not sure what you’re wanting for that.

    As to your last paragraph, clearly you’ve become unhinged. I’m not sure the source of this faith you claim, but I’ve been to a lot of churches and I’ve never heard such a thing espoused.

    I wish you the best of luck in the future, as I’m done having a dialogue with you. You’ve gone too far from sane for this to be productive.

  18. Fyrdoc says:

    “You ask about WC’s case (and really, you only make yourself look silly with the “demon scum” stuff – can we grow up just a little?), but if you believe that WC did not commit malpractice and that’s what the evidence showed, then you’ve answered your own question. Think about it.”

    No, I haven’t answered the question. There were at least two big “mistakes” in the Grinch’es handling of the case (use of a non-emergency physician as an expert on emergency care and use of an emergency physician who did not testify to a significant breech of the standard). I have to assume that, in the practice of law, one must endeavor to actually plead their client’s position effectively, true? Then how is his failure to provide for some seeming “basics” in witness selection and prep, not outside the standard of practice? I agree, the outcome doesn’t matter (other than to prove injury after the breech), but how is this not a breech?

    And again, long before I realized that I wanted to wake up everyday and try and prevent misery rather than profit from it, I had the chance to work with the Innocence Project out of Northwestern University. There were several cases, at that time, where the group’s claim was ineffective council of an accused (convicted). In each, that “ineffective council” was working with the project to help free their former client. The group, and generally it’s clients, were hardly flush with cash. If it were common practice to sue these “ineffective” lawyers for malpractice, one would assume that would be done first, as a means to finance the appeals (especially since these attorneys admitted they were ineffective). But that doesn’t usually happen does it? In fact, even when these prisoners are released – because their lawyers were felt to be so bad as to be an affront to justice – there is rarely a suit against their attorneys. Why is that? If my mentors notified a former patient that their treatment of that patient was so bad as to cause years of extreme mental anguish, and were wiling to testify to this effect, how long do you think it would take for that case to be filed?

    As for the “demon scum” stuff, that is just born of the cognitive dissonance created from having to smile and play nice with all of the lawyers who come through my department. Interestingly, I know of two plaintiffs attorneys and one general corporate counsel who routinely request to be on my service if I am staffing the ED that day. The more I spar with you, the more I had to choke down that day. So thank you for serving as a relief valve (it is good to know you are good for something, isn’t it?).

  19. Painless says:

    And yet I haven’t seen any attorney’s post a TV ad saying that if you sued someone and lost, call their office for a free review of the legal case as legal malpractice may have occurred. However I do see similar ads in regards to physicians, medication and medical equipment. The ads don’t say “if you have been injured” – they typically say “if you have ever taken xyz medication (or product) and have ever had a heart attack, call us” – or even one local attorney’s office who is encouraging people to bring them their medical records for a free review to see if there was any malpractice or negligence. Yes, they actually have the balls to ask folks to bring in the medical records for review. And yet attorney’s like Matt don’t see problems with this – they don’t see it as bottom feeding and as such don’t see the need for reform. All it does is make sure that we do things “just in case”. We order tests that may not be totally indicated – just to PROVE we have covered every possible problem beyond a reasonable doubt – actually beyond any doubt what so ever – so that when the chart is reviewed to see if they can find anything at all, they don’t use their retrospectrascope and claim the need to sue. You tell me what’s wrong with this picture.

    • Fyrdoc says:

      Now Painless, you know that is just unwarranted fear mongering. We just don’t understand the important role these valiant individuals play in the preservation of justice. We “over” order tests because we are either poorly educated or want to pad the bill. Come on, the jig is up, we can tell the truth now…

      O.K. WC, you need two buttons, one for ignore, the other for sarcasm!

    • Matt says:

      Painless,

      A simple google search will give you all the legal malpractice lawyers you need. (The “if you’ve taken X medication” ads have little to nothing to do with medical malpractice. So discussing those adds little to this discussion)

      Given that the available evidence is that the vast majority of medical malpractice never even sees an insurance claim file, your actions in response to your risk don’t make much sense. Particularly since you can’t tell me if they actually DO reduce your risk.

      As for advertising, I don’t agree with all of it. But then, I doubt you agree with all the advertising in your profession. But it’s a free market (even more free in our market than yours) and there are always going to be some things one thinks are in bad taste.

      All that said though, if you have a proposal that will change this, by all means let’s see the legislation. So far all I see are caps on cases regardless of legitimacy. Those I oppose. But if you have another proposal, perhaps we can agree.

  20. Fyrdoc says:

    “Given that the available evidence is that the vast majority of medical malpractice never even sees an insurance claim file, your actions in response to your risk don’t make much sense. Particularly since you can’t tell me if they actually DO reduce your risk.”

    How do you not get that fear doesn’t have to be logical when the stakes are as high as they are? I must report every case filed against me, even if it is unfounded and I am released, every time I apply for privileges. Each one is counted negatively and every physician I know has met a locums forced into that position by unsuccessful cases. I know of two colleagues, one of whom committed suicide after a ridiculous case he lost forced him to close his ENT practice, and the other is essentially killing himself through alcohol after he successfully defended himself in a case, but in so doing lost his marriage and lots of money in lost wages during his defense. When these are the stakes, and every reasonable evaluator agrees that up to one third of filed cases have no merit, you really wonder why we, as a profession, resort basically to superstition, fear, and hatred in a desperate attempt to keep the wolves at bay while trying to do a job where all we hope for is the chance to help people?

  21. Matt says:

    The “we need tort reform to keep doctors” argument is often made. Yet there seems to never be anything better than “I know a guy who left” evidence to support it. Reminds one of the “there’s too many med mal lawsuits” claim.

    Anyway, a recent study has looked at where the doctors are, and it seems *gasp* that they follow the money:

    http://www.reuters.com/article/topNews/idUSTRE5A50EB20091106

    “Doctors have been flocking to the area and surrounding Westchester County since the 1970s, drawn in part by an upper-class clientele who demand top-notch medical care and have the means to pay for it. The county has one of the highest median household incomes in the nation (about $77,000 a year in 2007), and the figures soar above six digits in suburbs like Scarsdale and Chappaqua, which former President Bill Clinton calls home.

    Nearly 3,000 miles away, scaring up a doctor in Bakersfield, situated in California’s economically battered Central Valley, is a lot harder. In fact, White Plains has more than twice the number of doctors per capita as Bakersfield. . .”

    . . .

    “That’s because physicians, the data shows, gravitate toward affluent locales in the United States that already have all the medical help they need.

    What’s more, the Dartmouth analysis shows, clusters of doctors tend to result in higher health care costs — and, perhaps most surprisingly, outcomes aren’t any better in cities with the largest physician populations.”

    . . .

    “For every doctor who lives and practices in an underserved area, four others settle in an overserved area, the medical school’s data shows.

    There’s an “irrational distribution” of the most valuable and expensive U.S. health care resources and “physicians simply do not settle in greater numbers where patient needs are greater,” said David Goodman, director of health policy research at the Dartmouth Institute for Health Policy and Clinical Practice.

    Neonatologists don’t set up practice where the need is greatest, and cardiologists don’t flock to cities with high rates of acute myocardial infarction, Goodman said.

    Moreover, Dartmouth’s examination of two decades of U.S. hospital admission data show that more doctors are not necessarily the solution to what ails the U.S. healthcare system. That’s because patients treated in communities with an abundance of doctors are more likely to receive unnecessary tests and procedures, the school found.”

    One other interesting thing about Bakersfield and White Plains. California has the most draconian tort reform out there, while New York has none.

    • Fyrdoc says:

      Why is this surprising to you at all? There is no question that, like all other professions, the quality of life OUTSIDE of work plays a huge role in where one settles. The same arguments could be made of any profession. The problem is when med mal suits, or the perceptions thereof, displace physicians who’ve already settled in an area. Try finding an OB/GYN taking new patients in most of Pennsylvania. Hand surgeons have all but abandoned Columbus Ohio and the State had to supplement the trauma surgeons’ salaries in Las Vegas. These are all places where there were long established practices that closed as a result of med mal suits. And let’s not even get started on the fact that John Edwards managed to single-handedly make the number of c-sections LEAP up in North Carolina (and the rest of the US). But hey, that is ok. He got rich and that is the goal right? Public health and everyone else be damned – as long as he made money. And you really wonder why I know you are going to hell?

  22. Painless says:

    Hey Fyr…. you know there’s no way you are ever going to convince Matt you are right – The only way he would agree you were right if you were to change your profession – to cross over to the dark side so to speak. No offense Matt – but that’s life. I don’t take it quite as personally as Fyr – but it is a personal issue when (even if it’s made up in our minds) someone is looming overhead just looking for an excuse to ruin your life. Even though you may not see it – it’s something I have to live within my practice every day. Every day, I hear my medical director’s favorite saying: “how do you know?” It’s almost become something of a joke to one another here. But it’s the truth. And if we didn’t think of the “how do you know” issues and something happens, even a probable low risk issue, then it could be our livelihood. Until Matt is put in that same position, there is no way he could understand. I try to understand the point he’s trying to make – and he does make it sound very rational. However, it’s just not real life. Real life is not like the TV show ER, or any of those others. While Matt may not agree with our viewpoint, he needs to understand it’s valid and real.
    I still remember sitting on the witness stand (I was testifying, luckily, although I cared for the patient, I had no other involvement in this particular issue) and having the litigants attorney ask me which chemicals there are in the various lab tubes, and how that could affect XYZ blood test. To get grilled on which medical conditions and medications could alter blood, changing the blood to give it an altered blood alcohol level. And here I’m just an ER nurse who drew a blood alcohol level. I had to prove I was licensed at the time I drew the blood, had to pull out every certification I had to show them that I was qualified to do my job, and even had to show I had a CPR card!! All this because I drew blood on someone trying to get out of a DUI. 4 hours on the witness stand later, I was mental. So when I hear the horror stories of my colleagues who have been sued – and the majority of them are for no reason medically other than there was an outcome that was not desired (yes, I have seen the records and even been in on the care on several of these patients) – I sympathize. And cringe. Because of this, I understand when someone comes into the ED and we do all sorts of tests to prove what they DON’T have as well as to prove what they do have. I may not agree with it. I will often times look at my doc and say “are you kidding me?”. I agree that it causes the cost of health care to go up in a lot of cases, and can only imagine how much is done on a national basis. But after 20+ years as a paramedic and an ED and ICU nurse, this is reality. Sorry Matt – but it is. I have seen the effects of the unwarranted Med Mal. And yes, I know the orthopedic surgeon who committed suicide due to a Med Mal case filed against him. Knew him, his wife and his 2 young daughters personally. And I am talking first hand, not “someone who knows someone who knows someone who did it”.

    • Fyrdoc says:

      I know I can’t change his mind. The brainwashing is strong. The sad thing is that he honestly believes he is doing good for society as a whole. And to hear him equate that he has “told lots of people sad things too” to looking in a parent’s eyes as you declare time of death and cease resuscitation on their child just shows the height of his arrogance.

      Please tell me Matt that you do not honestly believe that anything you do has the finality or weight of declaring someone dead and having to notify the family…

      What is sad is that when I do that, thanks to you and your fellow scumbags, I need to be very careful in what I say, because there is no question on an unexpected death (or even the expected death of a young person) some shyster is going to try and profit off the family’s grief.

      Yep, no question about it – What do you call 1000 lawyers at the bottom of the ocean? A GOOD START!

    • Matt says:

      Painless, you make a number of assumptions which I’d like to address.

      ” to cross over to the dark side so to speak. No offense Matt – but that’s life.”

      What is? I’m not sure which positions you’re referring to that I’m never going to agree with. Perhaps if you were more specific you might find we agree on much.

      “. Even though you may not see it – it’s something I have to live within my practice every day. ”

      What do you mean someone is waiting to “ruin your life”? By making you explain yourself under oath? The chances of an individual provider having to pay a judgment out of their pocket are infinitesimal. And “ruin your life” is a bit much isn’t it? You say I don’t understand, but I have been sued. For an amount 200x my net worth, and the claim was not something covered by insurance. Had the plaintiff prevailed it would have been devastating, sure. But I’d still have had my health, my family, etc. My life would not have been over by any stretch of the imagination.

      ” While Matt may not agree with our viewpoint, he needs to understand it’s valid and real.”

      I do understand your viewpoint – to an extent. As I said, I’ve been there, and with far more exposure than you have probably ever dealt with. However, it seems your objection is not so much to the result, but to the process. You, and many physicians, resent having to explain yourselves. It’s understandable – you’re an intelligent person, you’re used to calling the shots, and you’re generally pretty sure you’re right. You need that confidence to do you job. Every professional does. What’s more, none of you seem to have any real concept of your actual risk. For example, you probably believe there are too many med mal lawsuits – but the truth is you have no idea how many there are, nor do you know how many there should be. Yet you have this “too many” belief nonetheless.

      The truth is you’re not going to like ANY dispute resolution system where you have to explain yourself to others, particularly others who may not be physicians. But any dispute resolution system is going to have a fact gathering phase where you’re going to have to explain yourself. And you aren’t going to like that no matter what. I know what it’s like – it’s nerve wracking when you believe you already know all the facts and if people would just listen this would all be over. But you have to accept that you may not have them all, and you may not be right. And that’s tough.

      “All this because I drew blood on someone trying to get out of a DUI. ”

      Do you have an objection to the defense making sure that you did your job right, and the state is proving its case with the evidence, when the defendant’s liberty is at stake?

      “So when I hear the horror stories of my colleagues who have been sued – and the majority of them are for no reason medically other than there was an outcome that was not desired”

      There’s always a bad outcome when there is a suit. If there is no bad outcome, there is no case. And you’re right, you KNEW what happened. But maybe the patient didn’t. And so they are doing what the law allows them to do to find out – take a deposition. And maybe, just maybe, they have a different viewpoint than you on what happened. After all, reasonable people can disagree – even though we forget that often these days, and that’s why we have a dispute resolution system.

      “Because of this, I understand when someone comes into the ED and we do all sorts of tests to prove what they DON’T have as well as to prove what they do have.”

      Do you really? Because the physician is doing all these tests and they have no idea if they have reduced their risk or not with each one. And, evidence shows that even when the physicians get their “reform” that they are seeking, the cost of healthcare doesn’t change. So the evidence seems to say there is some other motivation for all these tests.

      ” have seen the effects of the unwarranted Med Mal. And yes, I know the orthopedic surgeon who committed suicide due to a Med Mal case filed against him. Knew him, his wife and his 2 young daughters personally.”

      I know a woman who had a tubal ligation performed on her without her consent and would never have known why she couldn’t have children if one of the nurse’s conscience hadn’t gotten the better of her. Because it certainly wasn’t in the records that the procedure hadn’t been performed. We can trade sad stories all day, and at the end of the day the sadder ones will be the victims of malpractice. I think it’s terrible the surgeon committed suicide, but do you really believe that was a rational reaction to his situation? To the fact that he would have to answer questions under oath and his insurance company might pay a judgment? The same things that would happen if he’d been in a car wreck?

      At the end of the day, though, what are you proposing? If you don’t like our current dispute resolution system – what do you propose we do? How can we go through the fact finding process and determine the outcome in a way that makes you more comfortable and is fair to both sides? Because that’s the issue at the end of the day, when we’re done telling sad stories and saying how the other can’t possibly comprehend.

      So, what is your “reform”?

  23. Fyrdoc says:

    “and at the end of the day the sadder ones will be the victims of malpractice”

    The arrogance. See Painless, you won’t ever convince him. He truly believes he is the champion of truth, justice and the American way. We has no idea how motivated by altruism one has to be to have a career (at any level) in EM because altruism and empathy are completely foreign concepts to a trial attorney.

  24. percuriam says:

    Regarding Matt’s early contention that “loser pays” exists in almost every state because of offer of judgment provisions: This is a complete misrepresentation. In fact, only 6 states which have an offer of judgment provision include the possibility of collecting attorneys fees (by far, the largest costs of lawsuits), and even then it is discretionary in almost all of those 6 states. Further, offers of judgment are rarely made because those statutory provisions almost always favor the plaintiff’s bar, sometimes explicitly, but more often implicitly by including the recovery of prejudgment interest in the event an offer of judgment is not met.

    Don’t get me wrong: I am not in favor of the “loser pays” system, but if we are going to have a discussion about it, then it should at least be intellectually honest.

    • Matt says:

      Of course it’s discretionary. The judge always has that power.

      Not sure what you mean that they always favor the plaintiff, because I see defense lawyers use them all the time as a hammer. From a practical perspective, loser pays doesn’t work in any country like people think it does for the simple reason that often the loser can’t pay. It’s essentially just another way to keep poor people from pursuing a case against the wealthy.

      As for only 6 states, this is incorrect, although you may be right that less than 26 provide for attorneys fees every time (my apologies if you are). Very quickly with a Google search I can come up with Arkansas, Texas, Alaska, Florida, Idaho, Michigan, New Jersey which allow in any case. Other statues with that rule provide that you can get attorney’s fees if you’re suing based on a statute which allows attorney’s fees and the state you’re in has an offer of judgment rule based on the federal rule. In the state’s I’m most familiar with, attorneys fees will definitely be allowed in your deceptive trade practices acts, breach of contract matters, etc.

      Here’s an article which discusses the efficacy of loser pays rules in Canada:

      http://medicaleconomics.modernmedicine.com/memag/article/articleDetail.jsp?id=111474

      If we had straight loser pays, I would think that good liability but low damage malpractice cases would be harder to settle, because what would the disincentive for the plaintiff be to pressing for a trial. Let’s say you end up with $10,000 in additional bills due to malpractice on a wrong site surgery, for example? Why settle for $20,000
      when you can push for more with zero risk?

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