WhiteCoat

Healthcare Update – 02-25-2010

Also see the Satellite Edition of this week’s Healthcare Update over at ER Stories.

Seven secrets of the ER … including quotes from GruntDoc. Among them, fretch if you want to get to a room more quickly and never lie to your ER nurse.
Secret #1 in my hospital: Stop calling it the “ER” already. It’s the emergency department.

Want to know why it’s called the emergency department? Here’s an explanation from About.com.

Defensive medicine accounts for $650 billion of the $2.5 trillion spent on healthcare annually – or about 25% of all health care dollars. Press release here. I know, I know. Propaganda. Even so, that number is just a little bit more than the figures that the AAJ is throwing around.

Study shows that repeal of malpractice caps in Illinois will increase liability claim costs by 18%. I know. More propaganda.

200px-Sam

Treat me or I’ll BLAST ya’. Nurse and former hospital employee uses guns to get quicker care for a kidney stone, then gets a long-term admit to the Greybar Motel. If this guy got brought back acting all Yosemite Sam with me, I’d be like this:
“Yeah, we’re going to give you this IV pain medication that’s great for kidney stones. It’s called succinylcholine. Then, since the department is crowded today, we’re going to have you share a room with this other patient. By the way, you’re not wearing a G-string, are you?”

Medical malpractice caps are unconstitutional, huh? Fine, then we’ll change the constitution. After Illinois Supreme Court throws out malpractice reform due to concerns with constitutionality, Illinois State Senator Dave Luechtefeld introduces constitutional amendment that would allow legislation limiting non-economic damages.

Child dies when EMTs are dispatched to Avenue C in Brooklyn but the emergency was on Avenue C in Manhattan.

Canadian Premier leaves Canada to have minimally invasive heart surgery done in Florida, then writes a check to cover the cost.  I like the free market principles at work here, but what does this decision say about Canadian health care? Canadian docs aren’t very happy. Hat tip to 911Doc.

Coming soon to a ballpark near you – warning labels on hot dogs. According to the American Academy of Pediatrics, hot dogs are allegedly “too flexible” and are a choking hazard to children, necessitating a change in design. Worse yet, hot dogs could shoot your eye out (hat tip to Overlawyered)
Enter … the dogburger.
In other news, due to this report, JCAHO has now mandated that all patients eat only pureed food as a patient safety measure. Oh … and all children will have to get gastrostomy tubes placed so that they won’t choke when trying to swallow food.
I feel a rant coming on …

Alaskan psychiatrists being sued for prescribing unnecessary psychiatric drugs to children.

Six family members hospitalized, five in the ICU, after eating homemade beef stew. I’m no Emeril Lagasse, but when making a stew, pulling weeds out of the backyard and putting them in the pot probably isn’t the best idea … especially when one of the weeds isn’t “mint” but is instead hallucinogenic jimsonweed. Hat tip to LA Times Booster Shots.

71 Responses to “Healthcare Update – 02-25-2010”

  1. Excellent, excellent post. I enjoy the mix of information you gathered, once again. Although, I seem to get a little worked up over the defensive medical costs that we all must endure. Health reform must address this issue! And I’ve read GruntDoc’s tips in other locales…he is a funny and brilliant guy! Thanks again, for a great post.
    Jim

  2. DaveyNC says:

    OK, WC, couldn’t one find an Emergency Room in the Emergency Department?

  3. Matt says:

    And physicians wonder why people “harp” on caps. But if the lobbyists say it then it must be true!

    • WhiteCoat says:

      Matt,

      You have no problem retrospectively pointing fingers at those who have allegedly committed some “wrong” against humanity, but repeatedly refuse to create a prospective manifesto detailing how to act appropriately despite repeated requests to do so.

      You repeatedly and retrospectively deride the sources of data that don’t agree with your opinions after the data has been published.

      If lobbyists are an untrustworthy data source, then perhaps you could at least provide us with a list of sources that publish data which you assert we could all trust for truthful, objective, and thorough information – aside from yourself, of course.

    • Matt says:

      “You have no problem retrospectively pointing fingers at those who have allegedly committed some “wrong” against humanity”

      WTF are you talking about? Wrongs against humanity? Are you equating your malpractice trial with Nuremberg? Check the ego, doc.

      “but repeatedly refuse to create a prospective manifesto detailing how to act appropriately despite repeated requests to do so.”

      Again, you’re not making sense. What are you talking about? Are you asking me the non-negligent way to treat a patient? Really? That’s like asking you how to prepare a motion for summary judgment.

      “You repeatedly and retrospectively deride the sources of data that don’t agree with your opinions after the data has been published.”

      Does publication create some magical truth talisman for you? The AAJ, Public Citizen, etc. PUBLISH lots of studies which I know you would not rely on, because you’ve said as much. Does publication only matter when they support your preconceived notions, doc?

      I deride sources of data from industry lobbying groups which are questionable, and I typically explain the flaws in the data. As do you, when they come from AAJ or someone like that. You have a bit of a blind spot as to your own criticisms. That said, I absolutely recognize the validity of nonpartisan studies and criticisms.

      “If lobbyists are an untrustworthy data source, then perhaps you could at least provide us with a list of sources that publish data which you assert we could all trust for truthful, objective, and thorough information – aside from yourself, of course.”

      As I’ve told you not once, not twice, but multiple times, the most thorough study of the issue is the Studdert study of a few years back. Also the CBO has put out a couple as well.

      Do you really rely on information from lobbyists in reaching your conclusions? Honestly?

      Let me give you an example of why a study is unreliable, from your examples above. Here’s from the press release “The poll, conducted by the Gallup organization for Jackson Healthcare, showed that of physicians surveyed nationwide, 73 percent said they practiced some form of “defensive medicine” in the past 12 months to protect themselves from frivolous lawsuits.”

      OK, so we went and asked a bunch of doctors if they practice defensive medicine. They said yes, because it’s in their self interest. If we polled a bunch of executives from the producers of a particular drug about whether this drug was the best on the market, and they all said yes, would you think that was meaningful? Or if we polled a bunch of lawyers who try malpractice cases for the plaintiff, and asked them if the jury system worked, and 73% said yes, would you put a lot of stock in that? Of course you wouldn’t. THAT is the weakness with most of your “evidence”.

      Its like your claims about access. They all consist of polls of doctors. But the CBO, a nonpartisan entity, studied your “disappearing doctors” claims and found them unfounded. Which do you believe?

      • Matt,
        You wrote:”But the CBO, a nonpartisan entity, studied your “disappearing doctors” claims and found them unfounded. Which do you believe?

        That is interesting. Would you summarize what is the “disappearing doctors” issue? And, would you supply a quick analysis and link to the CBO data you refer to?

      • Matt says:

        Andrew, I misspoke, it was the GAO:

        http://www.gao.gov/new.items/d03836.pdf

        The “disappearing doctors” issue I’m referring to is the repeated claims by physicians that a state will have no doctors if they do not get damage caps.

      • To Matt,

        You pointed to the GAO study, but where is your analysis?

        From the introduction:

        Limited available data indicate that growth in malpractice premiums and claims payments has been slower in states that enacted tort reform laws that include certain caps on noneconomic damages.

        For example, between 2001 and 2002, average premiums for three physician specialties—general surgery, internal medicine, and obstetrics/gynecology—grew by about 10 percent in states with $250,000 caps on noneconomic damages, compared to about 29 percent in states with limited reforms. GAO could not determine the extent to which differences in premiums and claims payments across states were caused by tort reform laws or other factors that influence such differences.

        So,
        $250K cap . . . . 10% increase
        Limited reform . .29% increase
        No reform . . . . .?% Increase

        The rest of the introduction says either “we don’t know”, or we collected our information from state medical societies (whatever they know), or “we called 30 doctors, and did not find widespread unavailability of doctors, except in some rural districts”.

        To me, that shows and increasing costs on high-risk specialities through uncapped awards.

        To me, the current medical/legal rules are encouraging higher-cost, defensive medicine, and are not predictable and fair.

        Defensive Medicine Almost Kills

        Fred: What tests does the patient need?
        Doc: No, it’s what tests the lawyers say we could have done.

      • Matt says:

        Andrew,

        I guess you missed this part:

        “In the five states with reported [access] problems however, GAO also determined that many of the reported provider actions were not substantiated or did not affect access to healthcare on a widespread basis.”

        Thus the disappearing docs due to malpractice issues is debunked.

        “$250K cap . . . . 10% increase
        Limited reform . .29% increase
        No reform . . . . .?% Increase”

        You didn’t keep reading: “We could not determine the extent to which differences in premiums and claim payments across states were attributable to states’ tort reform laws or additional factors.” In short, insurance isn’t a game of dollar earned in premiums minus dollar paid in claims. It’s a function of the investment climate more than anything. So to say “caps=this much savings for insurers” is difficult at best. Putting aside the question as to whether the insurance industry should be favored in this manner.

        “To me, that shows and increasing costs on high-risk specialities through uncapped awards.”

        That may be your conclusion, but that is not supported by the data therein, as the GAO states. That being said, the cost of insurance will go up with medical inflation unless the economy is booming, since much of any award is past and future medical costs. When the economy is booming, as it was in the late 90s, insurers significantly underpriced premiums to get the investment dollar. Then, when the economy tanked, well, we have a “crisis”. A crisis otherwise known as the business cycle.

        As to “defensive medicine”, let’s say we can agree it exists and let’s say we can even get physicians to say X or Y procedure is defensive medicine (the latter being nearly impossible). How do caps change its frequency? After 30 years of caps in large states like California, is there any evidence that they perform less “defensive medicine” in that state? I haven’t seen any, so why should I support caps to reduce defensive medicine?

      • Matt,

        You wrote:

        “GAO: We could not determine the extent to which differences in premiums and claim payments across states were attributable to states’ tort reform laws or additional factors.”

        Matt: (1) In short, insurance isn’t a game of dollar earned in premiums minus dollar paid in claims. It’s a function of the investment climate more than anything.

        (2) So to say “caps=this much savings for insurers” is difficult at best. Putting aside the question as to whether the insurance industry should be favored in this manner.

        So, the GAO states its ignorance in academic tones. Then, you draw two conclusions and make some assertions that don’t follow. Maybe you are referring to data that you haven’t presented. But, to me, you haven’t made your case.

        Premiums went up by quite different amounts in different states, according to their tort reform laws. Then, you blame the increases on lower investment returns to the insurers. Lower investment returns would affect premiums, but not differently for each state.

      • Matt says:

        Andrew, the GAO didn’t admit its ignorance. It said that the conclusion couldn’t be drawn because not all factors were studied. Because there ARE other factors.

        So at this point, if one draws that conclusion as to premiums and caps, they are doing it without considering the myriad other factors in insurance rates. From investment income to state laws restricting premiums. I’m not making those things up, that’s how the insurance industry works. If you need further proof, read the annual letters to the Berkshire Hathaway shareholders put out by Warren Buffett every year. He explains it quite succintly, and he owns a med mal carrier – I believe one of the largest.

        “Lower investment returns would affect premiums, but not differently for each state.”

        It would depend on the investments of each state’s insurers. That would seem to be common sense. Some may be multi-state and thus the same. Some insurers might be like the company in Pennsylvania that went under for what the dept. of insurance effectively called “looting the company”. That caused every Penn insurer’s costs to go up as they had to pay additional into the compensation fund to cover the bankrupt company’s insureds. Again, there are myriad factors.

        Now, if you don’t want to believe this is how the insurance industry works, that’s fine. If there is something else you’d like to see to have the case made, let me know what it is. My initial case was that the theory that docs will run to other states without caps was false, which I did show. If you have another statement you would like me to show to you, specifically state what it is and I’ll be glad to.

        By the way, what are your beliefs and where is the support for them?

    • Matt says:

      Incidentally, you seem to support a constitutional amendment to cap damages. Yet you rail against government intrusion in your industry. That seems to have little philisophical consistency – can you explain?

      Also, in that “18%” article, it also says it’s unlikely to have an impact on rates because they didn’t think the cap would hold anyway. Of course, that flies in the face of your claim that Illinois physicians were getting ready to leave now that the cap was overturned, but put that aside. Are you just upset because insurers might have to pay more even if it doesn’t affect you? You’ve routinely denied being a shill for the insurance industry, but perhaps you are and just aren’t aware of it?

  4. Celeste says:

    The article about the Canadian leader was great. Maybe the US needs to court wealthy Canadians to come on down, pay cash, and see if that helps straighten out our financial mess.

  5. [...] Whitecoats Call Room “Healthcare Update!” Canadian Premier leaves Canada to have minimally invasive heart surgery done in Florida, [...]

  6. Fyrdoc says:

    Matt states:

    “the most thorough study of the issue is the Studdert study of a few years back”

    So, this is the study that stated (in simple terms) that for every ten med mal claims filed, four involved cases where no medical error had been made. Of the these four, one would likely be paid out (to a mean of ~$300K) despite this lack of error. Then he goes on to say how this wouldn’t and shouldn’t produce defensive medicine and the associated costs.

    He also is very careful to say that he isn’t a doctor and can’t cogently comment on medicine, and we physicians therefore can not cogently comment on the law.

    O.k., so I’ll ask all of the non-physicians here a simple question – if, in the course of whatever business you do, a complaint from a co-worker, customer, or client could possibly result in a devastating outcome for you, professionally, personally and financially, and you knew, from accepted sources, that 40% of these complaints were false accusations and that 1 in 10 of all these complaints lodged resulted in this devastation despite you having done nothing wrong at all, would you change how you interact with people at work? If you say no, would your answer change after you had been one of those falsely accused? How about if our favorite co-worker, or mentor were?

    How can anyone, with any sense of natural human behavior, believe defensive medicine doesn’t exist given the results of this study?

    Do caps help? Probably not. But in order to eliminate this defensive behavior, those doing it must be somehow convinced that their risk has been minimized. I’ll tell you what Matt, every physician I know who supports caps would gladly give them up for a “willful and wanton misconduct” standard. This would still “protect” the public against us evil physicians (you know, all these deaths we “cause” from our overwhelming ignorance and wrong legs we amputate in drunken stupors). What say you to this as a proposal?

    And before you start your usual drivel about “that’s fine, why not suggest it to legislatures”, we have. Ohio extends that protection to any physician who teaches in the course of their work – result? Lots of “volunteer clinical faculty” in the state…. …and the AAJ fights it almost daily.

    • DaveyNC says:

      Here, here! Well said. Willful and wanton should be the threshold for any lawsuit. Matt wants a guaranteed positive outcome.

      And yes, I would alter my behavior under the circumstances you describe.

      • Matt says:

        Willful and wanton? So if I am paying attention to the radio and not the road, and run you down in the street accidentally, I should not be liable for your damages? Why don’t we just go to no-fault?

      • DaveyNC says:

        Matt, if you are fiddling with the radio when you run over me, that is not an accident.

      • Matt says:

        Sure it is. I didn’t INTEND to strike you. But the real point is that it’s not “willful and wanton”. It’s simple negligence. It’s willful and wanton if I’m drag racing, or if I’m high. That’s conduct that “creates an unreasonable risk of harm” or “it’s highly probable that harm will result.” If I’m searching for a song on the radio that doesn’t create an “unreasonable risk of harm” nor is it “highly probable that harm will result.”

        So again, are you really supporting “willful and wanton” as the standard of care to succeed in any lawsuit?

        And let’s be clear, you put “threshold”, which I think means filing. That can’t be known BEFORE it’s filed.

      • Fyrdoc says:

        “Willful and wanton? So if I am paying attention to the radio and not the road, and run you down in the street accidentally, I should not be liable for your damages? Why don’t we just go to no-fault?”

        Actually, no fault would be a great way to go.

        What you fail to see Matt is that once the willful and wanton is excluded the overwhelming number of errors (according to the IOM – can we agree they are unbiased?) and in fact the overwhelming number of the errors contained within the IOM report (of 90,000 patient deaths annually – oft quoted by the AAJ) are “failure to rescue” errors. Simply put, the physician failed to recognize, or failed to react quickly enough to, serious pathology. And that is the difference between medical errors and your analogy. The patient in these cases, absent any interaction with medicine, would die (or be injured / ill) anyway. The problem with putting these cases forward is that they assume some other physician would have recognized the problem or reacted differently to the same set of stimuli. (And they may well have!) But that is the risk one takes in seeking healthcare!

        In your system, there should be no difference in the quality of care given by any physician. But the truth is that the doctor who graduates last in his/her class from the least rigorous medical school in the country and muddles through a community based residency in the middle of nowhere is simply not going to pick up as many subtle cases of serious pathology as the valedictorian from Yale who completes residency at Mayo and fellowship at Stanford. To suggest they will is folly – but that is our medical malpractice system. It states that every physician will pick up and react perfectly to any case that any other physician is willing to swear they would have caught or treated “correctly”. And given that you can’t prove a negative (i.e., that the “expert” would not have missed the diagnosis or treatment as well), we are left with who has the most persuasive lawyer… that makes no sense.

        A more realistic example than yours is “if you jump off a freeway bridge and land in front of my car traveling on that freeway at a moment when I am looking down at the radio and I hit you, should I be liable for your death?”

        I agree, the physician who comes to work drunk, or who sterilizes a woman without consent, or abuses a patient, should be held liable. But if, in an overcrowded emergency department, understaffed, with half a dozen patients awaiting treatment for serious illnesses, a patient with classic findings for “oneinamillionitis” gets missed, I’m sorry – we’ve done the best we can. Yes, had you lived in Boston and gone to the world’s leading expert in “oneinamillionitis” at Harvard, he/she would have recognized the signs immediately. But that doesn’t mean that any other physician could have, would have, or even should have.

        And if the tests for “oneinamillionitis” cost two hundred dollars apiece, should we (as a society) spend that in the emergency department, at the obvious cost of two hundred million dollars per case found? Easy to say yes if you are the one with that case (or their attorney), but much harder when you realize that, given declining reimbursements, the facility will eat that cost and the resulting cumulative losses will prevent that much needed extra night shift nurse from being hired. Then you have to decide if you will accept that risk personally or just pass it along like the system is designed to do.

        “There are situations where if you work for the government you do get additional protection, and that’s fine.”

        Right so we agree, it is ridiculous that the paramedic bringing me the patient is protected from suit so long as they “do the best they can”, but I can’t enjoy that same immunity. And it is a travesty to you that the American public should only enjoy the same “protection” from malpractice that the personnel of our armed forces and their families do. Please explain to me how the throughput is so much faster and the cost per patient so much less in military hospitals than it is everywhere else if defensive medicine doesn’t exist…

        “I believe that pretty soon you’ll all get that protection as you’ll all be working for the government so much of this is a moot point.”

        And again, you presume every physician is against that. Truthfully, many in emergency medicine (as proven by the annual council resolutions at ACEP) believe that the system is so far gone that single payer is the only workable solution.

      • Matt says:

        “Actually, no fault would be a great way to go.”

        Then by all means, man, ADVOCATE FOR IT!! Where is your no-fault proposal? I’ll tell you where: it doesn’t exist. Why, because the insurers know they’d be paying far more since they know most malpractice never results in a claim. Without the insurers, you’re as ineffectual in this political arena as you are in the overall one.

        “What you fail to see Matt is that once the willful and wanton is excluded the overwhelming number of errors (according to the IOM – can we agree they are unbiased?) and in fact the overwhelming number of the errors contained within the IOM report (of 90,000 patient deaths annually – oft quoted by the AAJ) are “failure to rescue” errors.”

        This is a completely made up statement on your part. You’ll have to put some support for that out there.

        “But the truth is that the doctor who graduates last in his/her class from the least rigorous medical school in the country and muddles through a community based residency in the middle of nowhere is simply not going to pick up as many subtle cases of serious pathology as the valedictorian from Yale who completes residency at Mayo and fellowship at Stanford.”

        You know what’s funny about that statement? The public doesn’t know the difference. And those two pretty much get paid the same for the same procedures. If you want to fix something in your system, THAT would be the best place to start.

        “A more realistic example than yours is “if you jump off a freeway bridge and land in front of my car traveling on that freeway at a moment when I am looking down at the radio and I hit you, should I be liable for your death?”

        You’ve gone off track. We’re discussing the difference between willful and wanton and simple negligence.

        Apparently you don’t believe simple negligence resulting in damages is compensable. So if you are lawfully in the crosswalk and struck by someone who turns their head for a second, you do not believe you should have the right to recover. Right?

        “Right so we agree, it is ridiculous that the paramedic bringing me the patient is protected from suit so long as they “do the best they can”, but I can’t enjoy that same immunity.”

        Never said that. Government agents don’t get that, they do get a lower payout schedule in many cases.

        “But that doesn’t mean that any other physician could have, would have, or even should have.”

        Hence, the locality rule.

        ” And it is a travesty to you that the American public should only enjoy the same “protection” from malpractice that the personnel of our armed forces and their families do.”

        I don’t find it a “travesty”, I just pointed out it was there. Look, if we end up with a single payer system, we’ll have exactly that. And probably no fault. And if you want to advocate for that, again, I can respect that position. We can pleasantly agree to disagree and move on.

        What I cannot respect though, is arbitrarily capping the damages of those injured the worst for the purpose of saving insurers money. That makes no sense to me. Apparently you believe insurers are entitled to a certain profit margin. I don’t. Again, we can agree to disagree though.

    • Matt says:

      “So, this is the study that stated (in simple terms) that for every ten med mal claims filed, four involved cases where no medical error had been made.”

      Again, ANY system to resolve disputes is going to have cases where the party bringing the dispute will not have a case after all facts are known. That’s why you have the system.

      “What say you to this as a proposal?”

      I would say it’s foolish. If your work does not meet the standard of care, but is merely sloppy (although not willful and wanton), why SHOULDN’T you be responsible for the damage it causes?

      If I build your house, and sloppily do it and your roof leaks and it costs you tens of thousands to repair, should I not be responsible for the damage? You appear to be saying no.

      That may well be your philisophical position, in which case we will have to agree to disagree. I believe the person who negligently causes harm should have to pay for the harm. You believe it should be a much higher standard before you will hold someone accountable for their errors. I can respect your position without agreeing with it.

      As to defensive medicine, again, you have no proposals without caps. There are situations where if you work for the government you do get additional protection, and that’s fine. I believe that pretty soon you’ll all get that protection as you’ll all be working for the government so much of this is a moot point.

      • Fyrdoc says:

        “’So, this is the study that stated (in simple terms) that for every ten med mal claims filed, four involved cases where no medical error had been made.’

        Again, ANY system to resolve disputes is going to have cases where the party bringing the dispute will not have a case after all facts are known. That’s why you have the system.”

        Great Matt, let’s put your logic to another area of the law shall we? Let’s assume, for the sake of argument, that in an analysis of the arrest records of “Big City Police Department”, it was discovered that in forty percent of all arrests, there was no evidence the arrested person committed a crime, and one fourth of those so falsely arrested were convicted (despite this lack of evidence). Would you applaud this as the system “working” to solve disputes over who committed criminal acts? Would you really want to live or work in “Big City”? How long before it’s economy, feeding on itself by chasing out residents and businesses and losing tax base, collapses?

      • Matt says:

        Fyr,

        Rather than argue the study (and yes, I can and will point out where your conclusions are faulty), let’s move past that and say, OK, you’re right.

        Where are your proposals to fix it? Again, right now ALL you have proposed is caps. How does that address your criticisms?

      • Matt says:

        *crickets*

      • Fyrdoc says:

        No crickets, I’ve told you my solution – willful and wanton misconduct for all ED cases or care provided under EMTALA. If the law essentially makes us a public safety service then give us those protections. If I show up drunk and hurt someone directly – great, I’ll open the checkbook, but if I fail to find, or simply can’t help, significant pathology…

      • Matt says:

        Then you’ll extend that to all walks of life? Willful and wanton?

      • Fyrdoc says:

        No, as an emergency service, mandated by law, and provided to any member of the public who asks, without any consideration of ability (or intent) to pay, there should be additional protections provided to the emergency department and on call specialists who respond to EMTALA calls.

      • Matt says:

        Except it’s not mandated by law. It’s mandated by contract. You’re not required to accept government money. If you do, then yes, you accept that responsibility. Why should you get to shift the costs of your mistakes to the taxpayers?

      • Fyrdoc says:

        Matt, while you understand the provisions of the law, you do not understand, at all, the realities of healthcare policy. Through a series of rules and regulations, EMTALA is mandated by law for every emergency room in the U.S. So the provision that seems to allow “release” from EMTALA, doesn’t. Let me explain. I assume that you realize that large medical equipment (i.e., scanners and lab equipment) are licensed by each state. What you obviously do not know is that, in every state, through provisions in medicaid regulations (sections dealing with critical access hospitals, etc.) CMS actually controls the purchase of this equipment through “certificates of need”. Without a CON, you can not get a state license for your equipment. Without accepting medicare / medicaid, you can not get a CON. So, it is impossible to license the equipment needed to practice emergency medicine in this country without taking MC/MA.

        Now, add EMTALA and EM is in a unique position of indentured servitude. I have no choice in the practice of my profession. True, to you and your ilk it is an “optional” contract, but the reality is far different (not that I expect you to suddenly live in reality…). For that reason, we should be extended the same protections as other emergency services.

      • Matt says:

        Assuming all you say is true, Fyr, why are you so focused on protecting yourself at the expense of the patient if your care doesn’t rise to the standard it should? You should be more concerned with changing the law so you have some control over your life.

  7. Matt says:

    “How can anyone, with any sense of natural human behavior, believe defensive medicine doesn’t exist given the results of this study?”

    I DO believe defensive medicine exists. I’m not saying the actions you take make sense, but I think you take them.

    I just don’t know why we’re talking about it, because you’ve proposed nothing that seems to reduce it. Physicians and their insurers have been proposing the same remedy for it for 30 years, and it’s never been shown to work. So why are we still discussing it as a basis for doing yet the same thing again, but this time nationwide?

  8. Matt says:

    How come none of these studies or proposals focus on improving care to REDUCE errors? I think we can all agree the vast majority of malpractice does not result in a claim, so instead of all you physicians focusing on changing law, why not focus on improving medicine? And reducing the number of claims?

    After all, most of our discussion is not about the cost of error, it’s about deciding who pays for it. The person injured by negligence has the medical costs no matter what. The claims process, both pre-suit and after, just decides who is responsible and if they are, how much of the cost do they pay.

    If you really wanted to improve things for the patient, and lower the cost of healthcare, you’d think all your focus would be on reduction of errors, not reducing the chance that YOUR INSURER pays for your errors.

    • throckmorton says:

      Matt:

      Part of the problem with reducing errors is defining what is an error and what is a bad outcome. To reduce errors, we first have to define what is “correct”. We can use evidence based medicine to study diagnostic and treatment modalities and care plans or we can keep the definition of “error” vague and let it be decided in the courts.

      • Matt says:

        “We can use evidence based medicine to study diagnostic and treatment modalities and care plans or we can keep the definition of “error” vague and let it be decided in the courts.”

        I agree. So get on it. I think you’ll find, though, that if you do establish these plans, when a physician does not follow them and an injury results, they will tell you the plans are no good because of X, Y, or Z factors with this patient.

        But, again, there’s nothing stopping you from establishing those modalities and plans now. And promulgating them nationwide!

  9. DaveyNC says:

    It’s like talking to a wall. One with dull, grey paint on it.

    • Matt says:

      Don’t be upset with me because you didn’t understand what willful and wanton meant.

      • Fyrdoc says:

        He, and I, understand what willful and wanton means. He was addressing your poor analogy…

        And that fact that you are a troll who loves to argue.

        I suspect that you are not generally successful in your arguments with your peers (all trained debaters) so you come here and goad those of us more passionately committed to the common good and less trained in oration than you, where you get engaged in these debates and feel like you win.

        In medical terms, which you acknowledge you don’t understand, it’s called compensation…

      • Matt says:

        The analogy was spot on. The difference between willful and wanton and simple negligence is me running you down wasted v. me running you down because I looked down to change the radio station.

        As to calling me a troll, namecalling is always the last refuge of the weak. It’s ok. You usually end up doing that and I’m used to it. It only reminds me why I stopped replying to you. You’ve got some good ideas, but you haven’t stopped to think them through, and when someone points that out to you, you get petulant.

      • DaveyNC says:

        If you willfully take your eyes off the road and run someone over, that is a wanton act of disregard for the safety of those on the road around you. Anything other than paying a proper amount of attention to your piloting of a 2 ton unguided missile while you chase the next amber lamps is no accident, it’s the definition of a willful act.

      • Matt says:

        While you may think that’s the case, it actually is not. However, if your position is that willful and wanton is doing anything that falls below the requisite level of care, then there’s no difference between simple negligence and willful and wanton under your definition.

  10. Fyrdoc says:

    “How come none of these studies or proposals focus on improving care to REDUCE errors? I think we can all agree the vast majority of malpractice does not result in a claim, so instead of all you physicians focusing on changing law, why not focus on improving medicine? And reducing the number of claims?”

    Matt, you really are a horse’s a$$. Do you seriously believe that physicians (and the house of medicine as a whole) are not constantly evolving to reduce errors? Really? So the IHI, IOM, AHRQ, or CDC are just figments of our collective imagination? I would ask you this, since you (finally) acknowledge that defensive medicine occurs, and thus must cost something, how many errors could be reduced if we could put all of the money used in the fruitless pursuit of reducing our malpractice risk towards error prevention?

    What we can’t stand is that both the public and the AAJ know that if there is a poor outcome, they should file suit, because they will have a 10% chance of winning despite the lack of malpractice. Right now, by your own admission, if the payout is large enough, most lawyers will take these cases in the hopes that each win can pay for the costs associated with their losses. That is the lottery we refer to. Caps seem to interrupt this logic by reducing the incentive to lawyers, disrupting this mentality. So why not offer us another solution besides caps to reduce or eliminate the 40% of cases that move forward despite a lack of malpractice?

    Nevermind, don’t answer that, just go back under your bridge…

    • Matt says:

      “What we can’t stand is that both the public and the AAJ know that if there is a poor outcome, they should file suit, because they will have a 10% chance of winning despite the lack of malpractice”

      This makes no sense, because it ignores the economics of it. Completely. And obviously it’s not true, because the VAST majority of malpractice doesn’t result in a claim. At what point does reality become a part of your thinking?

      “Right now, by your own admission, if the payout is large enough, most lawyers will take these cases in the hopes that each win can pay for the costs associated with their losses.”

      I said no such thing. Again, your grasp of the economics fails you. As you physicians routinely say, it costs $100,000 to try a case. If the average payout is only $300,000 one in ten times, how is that economically sound?

      “So why not offer us another solution besides caps to reduce or eliminate the 40% of cases that move forward despite a lack of malpractice?”

      Depends on what you mean by “move forward”. You mean go to discovery? Well, if it weren’t for the discovery phase, you wouldn’t know what the facts were. Think, man.

      One other thing, the actual number of claims that involved error and weren’t paid on, was higher than the number of those that didn’t involve error and WERE paid on. Yet you don’t seem to care much about those. Why not?

      How you continually reach such firm conclusions when you so clearly don’t grasp the concepts you’re discussing eludes me. It’s like me trying to tell you how medicine should be practiced better.

  11. Fyrdoc says:

    “This makes no sense, because it ignores the economics of it. Completely.”

    Yeah, tell that to the fetus John Edwards channeled…

    • Matt says:

      Just the kind of silly petulant response I expected. Rather than admit that your economics make no sense and you might not know all there is to know about another industry, you talk about some case you read about in the newspaper and never saw a bit of evidence in but are convinced was wrongly decided.

      I guess here is where the discussion must end before you start calling me a Nazi or some such thing. Good luck.

      • Fyrdoc says:

        Really – because you don’t believe that your brethren are looking for the big payday or you just don’t like looking foolish? How many press releases regarding these huge awards are available in WC’s archives alone. And please don’t tell me that shooting for one is these awards is part the common approach in med mal…

      • Matt says:

        I don’t know anyone who doesn’t go to work hoping to make money, do you? You support caps so your insurance rates will go down. Everyone works for money.

        Would I rather handle large dollar cases than small ones? Of course. Who would deny that?

        That doesn’t change the fact that your grasp of law firm economics is meager. At best.

      • throckmorton says:

        Matt:

        I think we have to be careful when we talk about the economics of each others industry. Medmal attorneys are paid by medmal insurance companies of which most are owned by physicians. We are your cash, we are your economics.

      • Matt says:

        “Medmal attorneys are paid by medmal insurance companies of which most are owned by physicians”

        Perhaps you mean that med mal defense attorneys are. Plaintiff’s attorneys are paid pursuant to a contract with the plaintiff.

        However, simply because you pay someone doesn’t mean you have any grasp of the economics of their business. Surely you wouldn’t disagree with that.

  12. Fyrdoc says:

    “This is a completely made up statement on your part. You’ll have to put some support for that out there.”

    Read the report Matt. Here is a popular press article (not really favorable to medicine, so you’ll like it) that includes links.

    http://www.msnbc.msn.com/id/24002334/

    • Matt says:

      I don’t “like” anything critical of medicine. The article does seem to make it clear that you should spend less time trying to keep people from holding you responsible for your mistakes and more time working on not making those mistakes, but that’s neither here nor there I guess.

      Thanks for the report though. I appreciate the knowledge. 238000 preventable deaths in three years. If we have a “litigation explosion” and a “lawsuit crisis”, I wonder how many of those resulted in claims?

    • Fyrdoc says:

      And I wonder how many of those cases could actually be helped. The disconnect, which is fundamental in the different logic (deductive versus inductive) used in medicine versus law. You assume that if we failed to find a problem, and the person died of that problem, we could have fixed the problem had we found it. That is simply not true anywhere but a courtroom.

    • Matt says:

      “And I wonder how many of those cases could actually be helped”

      Who knows? Perhaps you would if you worked as hard thinking about reforming your own industry, one you actually understand, as opposed to one you “dabble” in.

      “You assume that if we failed to find a problem, and the person died of that problem, we could have fixed the problem had we found it”

      I made no such assumption. The article YOU linked did.

      ” That is simply not true anywhere but a courtroom.”

      Actually, it’s apparently true to the people who released that figure. It doesn’t say if they work in a courtroom that I could see. Did you see that anywhere?

  13. Joe says:

    The first linked article about the Canadian Premier misleadingly implies that the laparoscopic procedure is not available in Canada. According to the second article it is available, but the leader in the field works in Florida, and the Premier would rather pay through the nose for the best-of-the-best rather than get very-good care at no additional cost.

    Now that’s not a good PR move, but it’s hardly a condemnation of the Canadian healthcare system as a whole. Speaking as one of the large majority of Americans who probably couldn’t pay for that surgery out of pocket, I’d much rather have the Canadian Dr. Kiaii do my surgery, than have the American Dr. Lamelas explain that a top-notch procedure is available if only I will fork over money that I don’t have.

  14. Fyrdoc says:

    “Never said that. Government agents don’t get that, they do get a lower payout schedule in many cases.”

    Horsepucky. Now either you are purely being a troll or ou are clueless. In almost every state Police and Fire (and thus any government provided EMS) are held to a willful and wanton standard. And Illinois’s Supreme Court, pro plaintiffs lawyers as it is, has even upheld that…

    http://www.johntbrady.com/Fire/Cases.html

    Yawn again.

    Since you call me petulant, I just have to ask, do you actually win any arguments with your peers?

    • Matt says:

      Do you read your links? That’s limited to police chases.

      But hey, if you want physicians to be treated like government employees, and the public to have the same rights to your services, by all means advocate for it. Do you get that difference? You want to be independent but get the benefits of government work. You don’t want to give to get. It’s kind of like when you talk about how other country’s malpractice “systems” are better than ours. You never mention that their physicians are paid a fraction of what ours are, and healthcare is single payer.

      Unlike you, I don’t try and “win” arguments with just anyone. I have no illusions that you’ll change your mind. Yours is a faith based belief, devoid of facts. I’m replying to you for sport, nothing more.

      • Fyrdoc says:

        Scroll down Matt:

        “After a patient treated by fire district EMTs died, an appellate court was asked to determine whether the fire district should be held liable in his death.

        A five member ambulance crew of the Carey Fire Department, including two licensed EMTs, responded to help a patient in severe respiratory arrest as a result of an asthma attack. When personnel arrived, a family member had already administered mouth-to- mouth resuscitation on the patient, and the patient had a pulse, was conscious and was breathing shallowly on his own. Some time prior to transport, the respiratory rate suddenly dropped, and the EMTs “bagged” the patient in order to force oxygen into his lungs.

        En route to the hospital, the EMTs made radio contact with their base hospital, and transmitted information about the patient’s condition to the hospital. Ambulance personnel took the patient’s vital signs, started IV therapy, and used a cardiac monitor to monitor his condition; they assisted ventilation by bagging oxygen.

        Despite these actions, the patient went into full cardiopulmonary arrest. The EMTs initiated CPR and asked the base hospital for orders. The base hospital ordered the EMTs to intubate the patient. Ambulance personnel informed the hospital that no one on board the ambulance was “certified” to perform intubations, although one of the EMTS had performed intubations before. The ambulance was stopped to make it easier to intubate the patient, but the effort was unsuccessful, and the patient vomited. The EMTs suctioned the vomit out of the airway, and administered additional oxygen. As the ambulance was close to the hospital, the hospital directed the EMTs not to attempt additional intubation.

        The ambulance arrived at the hospital less than a half hour after the fire district received the 911 call. The patient was admitted to the hospital. He was maintained on life support for approximately a week, and he died as a result of the asthma attack.

        After his death, his widow filed a complaint alleging that the actions of the fire district had caused his death. She alleged that the fire district was wrong in two different ways. First, she stated that there was wilful and wanton misconduct by the fire district’s EMTs in their treatment of her husband. Specifically, she claimed that the EMTs (1) failed to property force oxygen into the patient’s lungs through the use of a bag or mouth-to-mouth resuscitation when they first arrived at the scene; (2) failed to promptly contact the base hospital to request permission to immediately intubate; (3) failed to promptly contact the base hospital to request permission to administer asthma medications; and (4) failed to properly intubate the patient after being instructed to do so.

        Additionally, she alleged that the fire district itself had (1) failed to provide EMTs that were properly trained and authorized to perform intubations, and (2) failed to obtain intubation training and authorization for its EMTs.

        A portion of the EMS Act (210 ILCS 50) makes it clear that a fire district is not liable if treating personnel are negligent in the care they provide: “Any person, agency or governmental body …who in good faith provides life support services … shall not be civilly or criminally liable as a result of their act or omissions in providing such services unless such acts or omissions … are inconsistent with the person’s training or constitute willful or wanton misconduct ….” Thus, there could only be liability if there was not simple negligence, but the greater degree of wrongdoing that is called “wilful and wanton misconduct”.

        Regarding the question of “wilful and wanton misconduct” by the ambulance personnel, the court noted that the fire protection district is a member of the “McHenry/Western Lake County EMS System”. The project medical director for the EMS System has prescribed written SOPs for the EMTs working in the system to follow. The court found that “… the EMTs conduct was in conformity with the written SOPs governing the treatment of asthma patients and that the EMTs did not attempt any life support service beyond their level of training….” The court also stated that “… in light of the extensive care and treatment provided by the EMTs,… we do not believe that the plaintiff has demonstrated that the EMTs conduct was wilful and wanton…”

        On the issue of possible liability of the fire district for failing to provide properly trained personnel, the court noted that “… the obligation of EMT training and certification does not lie with fire protection districts but is the responsibility of the Illinois Department of Public Health….” The court here found that the “…EMTs herein were trained, licensed, and certified as required by Illinois law….”

        Bowden vs. Carey Fire Protection District, 237 Ill. Dec. 918, 710 N.E. 2d 548 (April 29, 1999)”

        Or you can look for the CFD case: http://caselaw.lp.findlaw.com/data2/illinoisstatecases/sc/2008/april/100466.pdf

    • Matt says:

      On a side note, though, many departments are getting more strict on the chases. There are several studies indicating that the amount of adrenaline and the stress of the chase results in a lot of bad decisions once the chase has stopped as officers approach the car.

      And police have all kinds of other immunities, that again, if you want your profession to be a government entity, I think you may well get. But not without some tradeoffs you need to think hard about.

  15. Max Kennerly says:

    Alas, the good folks who conducted that wacky poll with the mind-blowing conclusion about defensive medicine haven’t released the actual poll details.

    Of course, it’s not like anyone needs to see the poll data. A wee bit of common sense will tell you that, no, Virginia, defensive medicine isn’t a quarter of all health care costs.

  16. Ed says:

    Well, I am not a doctor, nor am I a lawyer. I am just an average person who has utilized both professions.

    I have heard from my own doctor’s mouth that he was planning to run tests “to be sure”. I asked, to be sure of what. His response, “to be sure I don’t get sued.”

    I guess that didn’t really happen, though. Cause the whole defensive testing doesn’t happen.

  17. Painless says:

    Fyr,

    You forget that what Matt and his brethren do is not chase after physicians because there is a bad outcome. They are looking for the truth in what happened to cause that bad outcome. After all, if medicine is done properly no one will die will they? No one will get worse if they get appropriate medical attention. They sue not for the money – ohh no, they like to live but it has nothing to do with the money. It has to do with the truth. I mean, if that 100 year old bed ridden dementia patient who was sent over from the nursing home for a UTI had been properly assessed and treated, you might have seen the aneurysm that broke a week later causing her death. Had you not been negligent you would have done the head CT and found it thus allowing her to live to see 101. It doesn’t matter that you took care of the patients problem or not. You should have foreseen that a patient of this age may blow a bleed at any time and scanned the head just to make sure.
    So the family, not knowing if you missed anything or not, must go to the local med mal attorney so that he can look into it and get “the truth” about what happened. You, because you must have something to hide, have to hire an attorney, or have your malpractice insurance hire an attorney more accurately so that the truth of your wanton negligence doesn’t come out. You end up settling out of court for $50 – 100K because you know you are wrong, but to try and prove you actually didn’t make a mistake would cost more. You miss a few days of work in this process, but since you didn’t have to pay anything out of pocket (your malpractice insurance paid it), it’s ok.
    So why would you even think about doing CT Scans on every 100 year old who comes in with a UTI in the future? How did it harm you? You didn’t pay out of pocket. Ok, so you missed a few day’s work and your name is on the physician registry for having settled a med mal suit. Big whoop. Next time you go to change jobs you have to explain all this. If you were to go into private practice you might lose a patient or two or not have complete patient trust. So what if your rate goes up a little? What’s the big deal with that? You didn’t pay anything out of pocket, your insurance company did, so you weren’t hurt in all of this. It’s the insurance companies fault for wanting to make lots of money. Matt and his nocturnal blood sucking brethren were only after the truth, that’s all.
    Obviously they aren’t the problem – you are; they are the solution!!!
    Ok, so that was sarcastic.. couldn’t help myself. Sorry.

  18. ERP says:

    I think that Matt, Fyrdoc, Throckmorton, and DaveyNC should start their own “crossfire” type show. It would be must see TV!

  19. Dave says:

    Fellow physicians, I would recommend not continuing this argument.

    To us, the fact that we can practice perfect medicine in a given case, still get sued, and still lose the suit a significant percentage of the time, seems incredibly unjust. We were told in medical school that if we practiced according to accepted standards of care, we should be protected. It is a shock to find out that this is just not true and an affront to our sense of right and wrong. A recent editorial on the BMJ website, advice to graduating medical school classes, put it this way – “You will make mistakes, and you may get sued, but there may be no relation between these 2 events.” This from the UK.

    The fact that we can get sued when we have had nothing at all to do with the supposed injury, being an “innocent bystander”, a name in a chart, also seems unjust. To us, naming such a party in a suit would be considered unethical and immoral. (It is not just in medicine this happens. I recall a case where a woman got a bit inebriated at a singles bar, and on the way home sideswiped a horse-drawn carriage doing a tour of the downtown area, in a rented car. The lawsuit included her, the agency she rented the car from, the owners of the singles bar, and the manufacturers of the carriage. I’m sure a lawyer could find justification for pulling all these entities in, but to the rest of us it seems the woman is at fault.)

    The fact that this causes expensive unnecessary testing, thus contributing to the unsustainable cost of health care, is disturbing to us and not how we would like to practice.

    Matt, and other members of his profession, DO NOT CARE about any of this. Lawyers do not think this way. It is senseless to argue with them over this.
    To them, it’s just “dispute resolution”, the cost of doing business, the way the legal system operates.

    • Matt says:

      “This from the UK.”

      Can’t be. UK has loser pays and no juries. Everything is awesome there.

      “Matt, and other members of his profession, DO NOT CARE about any of this.”

      Nonsense, as taxpayers we all care. We just don’t think further screwing those already injured is the solution.

      ” To us, naming such a party in a suit would be considered unethical and immoral.”

      Of course it does. Because you already KNOW you had nothing to do with it. You can’t comprehend that not everyone doesn’t already know what you know. Or that anyone else would possibly blame you if you weren’t named in the suit. That is something that you just can’t imagine, but happens every day! Certainty to you is easy.

  20. SeaSpray says:

    Wow ..70 comments! Now I get to be 71. ;)

    I read the one article you linked and in response to this comment: “People who are vomiting their guts out get a room more quickly. The admitting clerks don’t like vomit in the waiting area.”

    I WISHED that was true!! Fact is if there’s no bed ..there’s no bed.

    Garbage pails under the patient at Olympian speed help..which btw is a heck of a lot better than the little kidney shaped basin the nurses give out. That does not work for projectile vomiting ..splash factor and all.

    The worst night was was when a mother and son came in and he vomited all over the *FABRIC* sofa and the area *RUG*. I wonder what they were thinking that they had fabric furniture in an ED waiting room? Bodily fluids? Lice? Scabies? I’m just sayin.

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