WhiteCoat

14.5 Million Reasons Physicians Practice Defensive Medicine

Fetal Tracing

Cleveland’s MetroHealth Medical Center and a staff physician were recently found liable for a $14.5 million medical malpractice verdict in what is commonly termed a “bad baby” case.

The case as described in the article involved 36 year old Stephanie Stewart who was pregnant with her second child. She went to MetroHealth several times for premature labor when the child was 22-23 weeks gestational age (a full term infant is 40 weeks) and was admitted twice, with labor being stopped using medication and bedrest. There were apparently discussions about her requiring a C-section since her first child was delivered by C-section.
Six days after being discharged from her second hospital admission, she returned for evaluation after her water broke. At that time, she reportedly asked physicians to give her an immediate C-section to deliver her 24 week old baby, but they do not do so. The attending physician arrived later that afternoon and she again requested a C-section, but the attending doctor noted that the baby appeared “healthy” on the monitor. Three and a half hours later, the baby showed signs of distress. Doctors performed an emergency C-section, but the child was unfortunately born with a brain hemorrhage, cerebral palsy, cognitive delays, visual impairments, and “other issues that will require lifelong care.”

The doctor and hospital were sued and after a trial, according to the plaintiff’s attorney, the “jury determined there was medical negligence and Stewart was not informed that there was a significant risk of a brain hemorrhage if a baby goes into fetal distress … [in addition, the mother] was not given any options, and her request for a Caesarian was not granted.”

What would have prevented all of the patient’s medical injuries and what the hospital and physicians should have done, according to the attorney, is to have kept the mother in the hospital after her third admission for three months until she delivered a healthy baby, or alternatively, the doctors should have performed a Caesarian section on the mother when she requested it.

Comments to the article alleged that this “malpractice” isn’t an isolated incident.

However, when you look at the allegations in the case within context, you have to wonder.

20% of premature infants suffer from bleeding in the brain.
In infants born between 22 and 25 weeks of gestation, 73% either die or have some type of neurodevelopmental impairment and 61% die or have “profound impairment.” The risks of adverse outcomes are decreased by increasing gestational age (i.e. allowing the baby to remain in the uterus longer), in addition to administering steroids.
A 2000 study showed that “survival at 23 weeks’ gestation ranges from 2 to 35%, at 24 weeks’ gestation 17 to 62% and at 25 weeks’ gestation 35 to 72%.” Those survival rates have probably improved over the past 14 years, but the data show that even an extra week of keeping a developing fetus inside the uterus has a significant effect on the child’s survival. 

Now a woman who is 24 weeks pregnant – at which time, if delivered, her fetus has a 38% to 83% chance of dying – comes to the hospital and demands to have a C-section.
If the doctors perform the C-section without a proper reason for doing so, more likely than not, the child is going to die. Then the mother will allege that the doctors should never have performed the C-section and will sue the doctors and hospital for performing the C-section. In addition, the state will go after them for causing patient harm without following medical protocols.
If the doctors don’t perform the C-section, the patient has a 60% chance of having some type of neurodevelopmental impairment and a 20% chance of bleeding in the brain. If the child is born with any of those problems that are likely to occur in any premature infant, it creates the appealing plaintiff lawyer argument that if the doctors just listened to the mother’s requests for a C-section none of this would have ever happened. After all, how dumb can the doctors be if a mother knows more about premature pregnancy than they do?

The rule that the plaintiff attorney apparently thinks all physicians should follow is that doctors should always perform all testing or treatment that patients request, even if that testing or treatment is potentially harmful or medically unfounded.

Unless the mother was skilled in evaluating premature labor, the judge should never have let the jury hear that the mother demanded a Caesarian section. Had a C-section been performed and a bad outcome occurred, the fact that the mother demanded the procedure be performed wouldn’t be admissible.
If the defense attorney did not move to have that highly inflammatory testimony excluded, the defense attorney likely committed legal malpractice.

In either case, this scenario reinforces the notion that doctors should fear the bad outcome. Regardless of what actions we take, if a bad outcome occurs, someone will find something that should have been done differently.

Until we address no-win situations involving multimillion dollar liability such as this, defensive medicine, overtesting, and overtreatment will never go away.

43 Responses to “14.5 Million Reasons Physicians Practice Defensive Medicine”

  1. sw says:

    So, how is the defense attorney explaining losing this case?

    • Ben Rush MD says:

      “When you go into court you are putting your fate into the hands of twelve people who weren’t smart enough to get out of jury duty.” Norm Crosby

    • BD MD says:

      Emotional decisions are made in court…
      12 mostly unqualified persons who don’t understand that the MAJORITY of severely premature infants will DIE or have major disabilities regardless of what is done. The absolute BEST chance for the baby is to stay in the uterus…at almost ALL COSTS…Period.
      Anecdotal miracles of barely viable fetuses living to adulthood and going to Harvard are just that. Anecdotal and wonderful miracles for families…
      But miracles come from a power much greater than medicine.
      Creating the expectation of routine miracles is what leads to agonized parents being convinced that their miracle was denied by the doctors and hospital…

      What if the tables were turned? We protect parents from all kinds of guilt. It’s ok if you drank some, smoked some, gained way too much weight…
      Maybe these things had something to do with their disaster…

      Or maybe bad things happen…And we all suffer together when a baby is bad or dies…there is a limit of prematurity that can’t be salvaged and made whole. If we “save” these babies they will be damaged…

      What is it that we value?

      Sad for all. A tragedy for all…

  2. DefendUSA says:

    Well, about that preemie thing. I was born at 24 weeks. I was 1lb, 7 oz.
    My mother says that she remembers them giving me theophylline and IV fluids but nurses were watching me 24/7. I was breathing on my own…

    If I “forgot” to breathe, they pinched me or shook my feet. I was released from the hospital near my “due date” because my weight had tripled. No other extraordinary things or hook ups that she recalls.

    Sadly, the hospital destroyed my records and I cannot write a book- because I surely wanted to.

    I know enough to say that I was lucky. Nature and nurture, limited meds because of the time. 1964.

  3. Eric says:

    There’s not enough info in THIS article to really comment. But, I will say that the mother does have a right to demand whatever she wants done or not done. The doctor has the responsibility to make sure the mother knows the possibly risks and side effects of anything he does or does not do to her. If he/she thinks that she shouldn’t have a C-Section, he needs to tell her why, and even bring in another doctor to confirm his/her diagnosis. Then, with the mother fully informed, she should be presented with a document stating that she understands all the risk (the document should list them all) and she should sign it, and someone should witness it.

    Then when it gets to court, there’s no doubt that she knew what she was asking for, and it alleviates the blame on the doctor.

    This has nothing to do with defensive medicine.

    • B.RAD says:

      I will say that the mother does have a right to demand whatever she wants done or not done.

      Are you serious? There is another life at stake here other than the mother that the doc is responsible for. Would you go to the Emergency dept. with belly pain and “demand” an appendectomy? How about show up with chest pain and “demand” a cardiac cath? Some signed document wouldn’t hold up in court especially if the doc performs an operation against his/her judgement; you could argue that that would be criminal.

      • Eric says:

        An appendectomy is not AT ALL the same as being pregnant! It’s far easier to tell when you’re pregnant than when you need to have your appendix out or a problem with your heart!

        And a document most assuredly WOULD hold up in court, especially if it’s witnessed and the witness testifies that the person demanding the surgery knew the circumstances and still demanded it! You have no idea what you’re talking about!

      • DC says:

        Actually Eric, B.rad is largely correct. Documents can be tossed as signed under duress, or any good shyster can convince an emotional jury that the document is invalid under various assumptions.
        Go spend some time in court listening to cases being tried. Information is readily manipulated to achieve the end of monetary award. I’ve see simple, basic CONTRACT Agreements tossed for reasons that the person said they didn’t understand what they were signing!

      • Matt says:

        ” Documents can be tossed as signed under duress, or any good shyster can convince an emotional jury that the document is invalid under various assumptions.”

        Says someone who has never had to prove these things in court. Overturning a signature as under duress is very difficult and very rare. And these issues are usually tried to a judge, not a jury. And why people think juries are made up of only morons easily swayed by one side’s lawyer while the other lawyer sits mute is beyond me. Makes me wonder if you’ve ever watched anything other than law and order.

    • Mandy says:

      Why wouldn’t the mother &/or her lawyers later claim that she signed it under duress, or that the huge power imbalance between a panicked and emotional non-medically trained laboring pregnant woman whose waters had just broke, who is in fear of losing her child — and the mighty Medical Industrial Complex that, as she might claim to have seen it at the time, had the power to basically kill her child if she didn’t sign — renders such an agreement invalid?

      If it had been signed when the woman was cool, calm, collected, in no medical distress, and with time for her to have her lawyer look it over for her first, then that might be different.

      NB: I’m not a lawyer.

      • Eric says:

        They can claim anything they want, that doesn’t make it true. ANY contract can be claimed to be signed under duress. That’s why you have witnesses.

        Also, a witness on the side of the woman (like her husband or mother, or a perfect stranger (non-hospital worker)), isn’t going to make her sign it under duress.

        Regardless, people have to make life-threatening decisions all the time. If she had a strangulated bowel that needed immediate surgery, but was on blood thinning medication, she’d have to decide whether to take the risk of having surgery with the high risk of not being able to stop bleeding, or to die from the strangulated bowel. Should they NOT do the surgery just because she’s making an immediate, important decision?

      • Mandy says:

        We’re talking about whether patients can force doctors to provide treatments or do surgeries against their better judgement. There’s a difference between a patient providing consent for a doctor or surgeon to do an operation he or she deems medically necessary, and demanding a procedure or operation that a doctor/surgeon doesn’t think is the right course of action. “I want what I want, and by criminey my right to demand that you do whatever I want trumps your right not to perform surgery against your better judgment”?

        And more in line with the idea that a mother should have the right to over-rule medical judgement and demand treatment or surgery even if it is likely to harm a second patient, her child, what about the mother who demands that doctors place a feeding tube in her young baby (or perform other medical procedures on him) even though doctors don’t think that that would be the best course of action? See troubled mommy-blogger Lacey Spears, who kept demanding that doctors put a G-tube into her son, even though they explained it wasn’t medically necessary, and she kept demanding and demanding till she found a doctor who’d do it? She’s just been charged with using the tube she’d wanted so badly, to sicken and eventually kill him. http://www.lohud.com/story/news/local/rockland/2014/03/24/garnett-spears-feeding-tube-life/6855849/

      • Eric says:

        The doctor is being PAID for a service! Doctors make up to 400,000 errors that kill patients every year! Every patient has the right to demand whatever they want done to their own bodies, outside of the ONLY outcome being that it would kill them.

        It’s not up to a doctor to make a decision for a patient, they can only provide their expert opinion and then do what the patient wants. They can’t withhold treatment simply because it’s their opinion if there’s no clear-cut indication that the ONLY outcome is that the patient will die.

        In your last example you’ve changed the scenario to doctor(s), plural. If a “team” of doctors all had the same opinion, that changes the standard. If you’re going to argue, you can’t change the situation mid-stream.

        As for Lacey Spears, she still has a right to demand it…but if she’s wrong, there’s a price to pay for her actions.

        What other profession do you hire someone who can and will do whatever agrees with their “opinion” despite the customer’s wishes? If you hire a plumber to run a snake down your drain and he instead runs a camera and then pours some caustic chemical in the drain, do you think that’s okay because the plumber’s opinion trumps the customer’s?????

      • Mandy says:

        If you hire a plumber to run a snake down your drain and he instead runs a camera and then pours some caustic chemical in the drain, do you think that’s okay because the plumber’s opinion trumps the customer’s?????

        If I hire a licensed and bonded plumber to come check on my slow-draining sinks, and after examining the problem and my plumbing set-up, he recommends using a snake and possibly a roto-rooter to clean things out, and I say “no, no, I want you to force a solution of bleach, ammonia, round-up and caustic soda into the system, I read about it on the Internet”, and he says, “Lady, not only won’t that work, it’s more likely than not that I’ll blow up your lift station, I’m not going to risk my license and my bond by doing that”, I can’t force him to do it.

        Every patient has the right to demand whatever they want done to their own bodies

        But do they have the right to force a professional to do something he or she judges to be either unnecessary, risky or unsound? What about the doctors’ (or the plumbers’) rights? Neither plumbers nor doctors are slaves. Yet.

      • Eric says:

        Okay, now you’re being ridiculous. Your example is like the pregnant woman saying, “Give me the C-Section and wrap the umbilical cord around it’s neck until it dies!”

        There’s no debating a person like you who refuses to listen participate with reason.

      • Mandy says:

        There’s no debating a person like you who refuses to listen participate with reason.

        Oh! Is that a white flag I see? Bless your heart anyway <3

      • Eric says:

        A white flag? Hardly. But I know better than to just keep debating someone who purposely chooses to be ignorant.

    • WhiteCoat says:

      Eric, your logic makes no sense.

      You assert that patients have the right to demand whatever she wants done. That’s true. She has the right to demand whatever she wants.

      Then you assert that doctors “can’t withhold treatment simply because it’s their opinion.” That is demonstrably false. There is no right to ever force someone to do something they choose not to do. That’s called slavery. I seem to remember something in the history books about slavery being bad.

      By your logic, I could walk into your place of employment and demand that you do anything I wanted. And do it all wearing a Brazilian carnival outfit while you’re at it. So what if it’s your opinion that the feathers aren’t necessary. It’s what the CUSTOMER DEMANDS. Oh, I’ll sign the papers, but realize that courts won’t recognize a contractual waiver of liability for negligent acts, so the document would NOT hold up in court if you were negligent. When you screw up, you’ll get sued for millions.

      You use the example of strangulated bowel and blood thinners. The patient doesn’t decide whether to allow herself to be operated upon. The doctors are the ones who decide whether they’re willing to perform surgery. If she’s a poor surgical risk, the surgery doesn’t get done. Happens ALL THE TIME. Patients can’t force doctors to perform surgery, Abe Lincoln.

      You assert that doctors have a “responsibility” to do anything a patient requests. Prove it. Show me a law. Show me a court case stating that. Show me anything other than your uninformed opinion. Until you do so, the whole premise of your argument is false, making your argument false.

      Don’t be like Michael Kirsch.

      • WhiteCoat says:

        And, dear readers, this warped logic is what we reap when we sow the seeds that patient satisfaction is more important than proper medical care.

      • Eric says:

        PROPER medical care are the key words.

        My disabled sister died in 2012 from medical negligence, when a doctor decided to give her a combination of dilaudid and gastrografin whicch caused her to aspirate (she had a strangulated bowel) causing pulmonary edema and cardiac arrest. The hospital was under the WRONG impression she was a DNR and stood around doing nothing to revive her. They did eventually call a code blue and revive her 17 minutes later, but it was too late, she was nearly brain dead.

        Is that what you’re referring to as “proper medical care?”

      • Eric says:

        It would also be called murder in some cases. If a doctor refuses treatment solely based on their singular opinion and the patient dies, that’s murder.

        We’re not talking about forcing doctors to do something physically, it’s a moral decision. You’re trying to twist my meaning so that it coincides with your opinion. Of course no one can FORCE a doctor to physically do something, that’s not what I meant. Slavery…that’s very drama queen.

        Yes, doctors do make bad decisions all the time, that’s why death by medical error has become the third leading cause of death behind cancer and heart disease!

        I don’t know who Michael Kirsch is.

        Of course a doctor can refuse to treat anyone…but there are repercussions for their actions.

      • WhiteCoat says:

        “It would also be called murder in some cases. If a doctor refuses treatment solely based on their singular opinion and the patient dies, that’s murder.”

        Now go look up the definition of “murder” (keeping the catch phrase “malice aforethought” in the back of that little brain of yours).
        After you’ve educated yourself a little more, then type “www.google.com” in your browser and try to find any case in the history of the earth where a doctor was convicted of murder for “refus[ing] treatment solely based on their singular opinion and the patient dies.”

        Doctors make bad decisions all the time. By your grammar school logic, then if only patients who know very little about medicine were able to call the shots, no one would ever die, correct? Or would doctors still be responsible for patient decisions even with some unenforceable contract that was potentially signed under “duress”?

        If you want to know who Michael Kirsch is, then click the link in the comment.

        Stop trying to blow smoke. You’re wrong.

      • Eric says:

        See, again, that’s ludicrous talk.

        I am not a lawyer, I don’t walk around with a law dictionary in my hand when I speak. A layman’s use of the word “murder” isn’t going to be the same as a lawyer or judge’s version. To most people, murder is when another person causes the death of someone.

        So it’s not about “education,” it’s about common sense. You’re just trying to refute me based on silly technicalities.

        The case of Michelle Woo in San Francisco, treated by Dr. Peter Curran, who was the current president of the San Francisco Medical Society at the time, is a case where is “decision” led to her death. Michelle’s daughter sued and won.

        No, I never said anything about “patients who know little about medicine,” you’re trying to change my words. I said a patient has a right to demand what treatment they receive or don’t receive, and if it goes against a doctor’s “opinion,” there are options to get around that to relieve the liability for the doctor. Did you not read carefully?

        I never said anything about signing anything under “duress,” someone else did. Clearly you don’t know what “duress” means. Why would a patient be signing something under “duress” or threats?

        This is just getting idiotic. YOU’RE wrong, because you’re closed minded and don’t read carefully.

      • Eric says:

        You only quoted and replied to a portion of what I wrote.

  4. JustADoc says:

    Eric,

    Please, get counseling.
    It will help.
    You are a very angry man and it is obviously eating you alive.

    • Eric says:

      LOL…and you’re giving armchair psychology on the internet based on a single topic on a message board???

      It’s no wonder we have such problems with doctors!

  5. Marni says:

    Eric- you have no idea what you’re talking about. Seriously. You have a bunch of doctors hear telling you that you are wrong. As a physician, I can not be compelled to do anything to a patient that is against my better judgment. I have patients walk into my office all the time and demand antibiotics for their viral upper respiratory infection. Should I give it to them, even though they’re not needed? The answer is no, of course not.

    They can not force me to write a prescription. You seem to think I should be forced to because they want it. That’s ludicrous.

    • Eric says:

      You can’t even spell, Marni….it’s “here” not “hear.” I never said a patient COULD compel you! I even said:

      “We’re not talking about forcing doctors to do something physically, it’s a moral decision. You’re trying to twist my meaning so that it coincides with your opinion. Of course no one can FORCE a doctor to physically do something, that’s not what I meant.”

      So you clearly don’t read carefully.

      Demanding antibiotics is not at ALL the same thing as what we’re talking about in this scenario. Pay attention.

      You, too, are trying to put words in my mouth to make it sound like you know better than me. If you can’t do it based on truth, it makes me wonder about your qualifications as a doctor making decisions for anyone!

      • Marni says:

        Eric-

        You said earlier, and I quote: “It’s not up to a doctor to make a decision for a patient, they can only provide their expert opinion and then do what the patient wants. They can’t withhold treatment simply because it’s their opinion if there’s no clear-cut indication that the ONLY outcome is that the patient will die.”

        That certainly sounds to me like you expect me to provide my opinion and then do what the patient wants, regardless of my medical judgment and best medical practices. I’m not putting words into your mouth, just reading what you’ve written.

      • Eric says:

        go on to read subsequent posts…don’t be selective.

      • Marni says:

        I read all of them. Your subsequent posts seem to imply that even if I’m not physically compelled to do what the patient wants, I’m morally compelled to do so. That’s just as ludicrous.

      • Eric says:

        Well, you’re clearly just choosing to bamboozle yourself into not understanding anything, and just want to argue, so let’s leave it at that.

  6. BD MD says:

    Medicine is not an exact science.
    But I am paid for my time, cognitive work, and experience.
    My moral responsibility is to make the best decision for my patient. Not the one they think they want.
    Since there is no way to perfectly predict the future or outcomes that are influenced by many things, my decision may occasionally NOT have the decided outcome.
    If a plumber or mechanic can’t guarantee 100% to fix your machine, how can I make that kind of guarantee?
    But I certainly won’t be forced to do something I think is wrong because the patient might be unhappy with me…or excoriate me on patient satisfaction measures.
    Many patients think they need antibiotics, narcotics, gastric bypass or stimulants to get that extra 10-15 lbs off…Should I be compelled to do so?
    I am compelled to offer my assessment and medically indicated care. No more. No less.
    The best doctor in the world can’t guarantee outcomes. Period.

    I have seen patients turn on their care team when they insisted on a course of action, browbeat them into doing so, but then sued them for doing what she asked?

    That is why malpractice is screwed. Many of these cases can be twisted either way…if the patient is not happy with the outcome.

    Let me know when bad stuff stops happening to good people. Or when death is defeated. Or when pain and suffering ceases to occur…

    All of the above were much more prevalent a few decades ago. Medical science has spared us from so much…

    Yet we demand more and more.

    Visit a 3rd world country…Dead babies, bad babies…and sudden deaths occur in every family…

    We cry, we pray, we move on…Because we must…

    Doctors must say NO. And not be manipulated into giving everyone what they want.
    I’m sick of being treated poorly and disparagingly by 20-something’s because they had to be inconvenienced by “waiting” in the ED an hour or two for 2 days of a mild URI…because they couldn’t get a “today” appointment with their PCM.
    Crossed arms, rolled eyes, hostile body language…
    When all I did was smile and introduce myself after seeing maybe 30 patients in the last 2 hours…

    Still…I’ll do my best for you…Oh, and I still
    Won’t give you a Z pack…even though you had to wait…

    It’s still not the right thing :)

    Sorry!

  7. WhiteCoat says:

    Eric changes his argument when he gets called out on his BS assertions. “This is murder … well by my definition at least. I’m not a lawyer but I use legal language to try to get a rise out of people.”
    “You’re just trying to refute me based on silly technicalities.”
    “This is getting idiotic.”
    He also makes no substantive responses and makes inflammatory statements to try to get a rise out of people.
    Troll by definition.
    Go get your jollies on some other blog.

    • Mandy says:

      He also threw his dead disabled sister in there (may she rest in peace and not be chucked around willy-nilly to help “win” stupid blog arguments) as a thermonuclear shut-up bomb.

      He’s not even using his own “victim card” to score points and shut up his critics, he’s ripping one out of the coffin of a tragically deceased disabled female relative.

      Which is both creepy and gross.

  8. Matt says:

    This is all a very interesting argument, but this is the real point of the original post:

    “In either case, this scenario reinforces the notion that doctors should fear the bad outcome. Regardless of what actions we take, if a bad outcome occurs, someone will find something that should have been done differently.

    Until we address no-win situations involving multimillion dollar liability such as this, defensive medicine, overtesting, and overtreatment will never go away.”

    Let’s put aside that without actually reading the transcripts, you really don’t know what happened in the trial. You don’t know what evidence was presented, and even reading you can’t truly judge the credibility of the witnesses. We all know those things.

    But, let’s discuss whether it’s a bad thing that doctors fear a bad outcome first. Of course it’s not. We want a fear of a bad outcome. We want it in our truck drivers, lawyers, veterinarians, bankers, etc. It’s not necessarily a bad thing. As to the second part of that paragraph, well, welcome to the world. Even in GOOD outcomes, someone bitches. Because someone complains doesn’t mean you need fear things. You have to ask yourself, if there is a bad outcome, what is my risk? I’ve yet to meet a physician that had a good grasp of that. They can recite anecdotes like this one based on similarly shallow knowledge, but real risk assessment is thin.

    Which leads us to the second paragraph, “until we do something”. Well for about three decades we’ve been told what “needs” to be done. And we’ve done it, and it has affected millions of people. Yet there’s no evidence all the things that we’ve been told NEED to be done actually prevent this sort of thing. Sometimes there’s just an outlier. Sometimes people even get things wrong. Sometimes physicians just make mistakes. That’s why they have insurance.

    So what, pray tell, would you have us do THIS time to prevent this one case? We’ve made it harder for plaintiffs to find lawyers, we’ve eliminated insurer exposure, we’ve put the hammer down on non-economic damages. The cost of medicine hasn’t gone down and “over”testing hasn’t declined. So what do you propose we do now?

    Because that’s the real point of all this – pushing some new way to protect physicians. If it was truly analyzing the risk there’d be a deeper analysis. But there’s not. So what are you suggesting we do, WC?

    • WhiteCoat says:

      We have a pretty good inclination as to what happened at trial based upon the statements made by the attorney.

      First of all, if there were consistent judgments and verdicts, then outcomes would be a lot more effective at selecting out favorable behavior. That isn’t the case in modern medicine. If you do something and there’s a bad outcome, you’ll be criticized for taking that action. If you choose not to act in the exact same circumstance and there is a bad outcome, you’ll be criticized for not taking action. Either way, you lose. It’s like getting a speeding ticket for going 50 mph one day and then getting a ticket for going too slow at 60 mph the next day. The penalties don’t enforce some intrinsic set of values we want to impart on society. They only breed mistrust and hatred toward those interpreting and enforcing the rules. Look at how the favorability ratings for our president have plummeted. He enforces one set of rules and lives by another set of rules — and most people in this country distrust and dislike him because of it.
      Same thing occurs in our medicolegal environment. People freely express their opinions about what “should have been done different,” but not one person has the reproductive organs to step up to the microphone, give a set of prospective rules about what actions doctors should and should not take, and then accept responsibility for bad outcomes if those prospective rules are followed.

      There are many ways to improve the situation. We’ve gone back and forth about them multiple times before. Want a summary?

      Loser pays. You bring a frivolous suit or a frivolous defense and lose, you pay for all of the other party’s out of pocket costs. The last time I checked we are the only country in the civilized world that doesn’t have this rule.

      Pre-screening panel. States like Indiana have the right idea in this regard.

      Expert witness reforms. You make a statement that you can’t back up with solid evidence, you have liability for doing so. Maybe have a panel discussion in front of a jury as opposed to cross examining hand-picked plaintiff and defense puppets.

      Periodic payments. Pay economic damages as they are accrued.

      There are others, but it’s past my bedtime right now.

      You paint this picture as if I’m trying to keep any patient from ever being compensated for any injury and that’s just wrong. Patients have to be fairly compensated and medical providers have to be fairly treated. Regardless of what spin you try to put on it, the case above was a bunch of BS. And if you don’t think so, then tell me what you would have prospectively advised your client to do if he was in a similar situation. Oh, wait. Let me guess. You’re not a doctor so you can’t make those decisions.
      But you can sure criticize the hell out of doctors after the fact, though, can’t you?

  9. Matt says:

    “We have a pretty good inclination as to what happened at trial based upon the statements made by the attorney.”

    No you don’t. You have a couple lines in a newspaper story. You don’t even have the full quotes. You really believe you can sum up at least a couple weeks worth of evidence and trial in a 500 word article? I know you don’t.

    “First of all, if there were consistent judgments and verdicts, then outcomes would be a lot more effective at selecting out favorable behavior. ”

    You don’t know that there aren’t. Your “research” is anecdotal at best. As a scientist, surely you know better than to just rely on that.

    “If you do something and there’s a bad outcome, you’ll be criticized for taking that action.”

    Well welcome to America in any walk of life with any measure of responsibility and corresponding compensation.

    “People freely express their opinions about what “should have been done different,” but not one person has the reproductive organs to step up to the microphone, give a set of prospective rules about what actions doctors should and should not take, and then accept responsibility for bad outcomes if those prospective rules are followed.”

    If all cases presented the same, then perhaps we could do that. But here’s what would happen – if that bright line could exist with the rules, and you crossed it, your insurer would immediately start saying it didn’t apply because the underlying facts of the case were different than those assumed in the test. Again, this is why we as professionals get paid what we do – for these risks and that judgment call and living with the consequences. We’re not invested with great responsibility and the resultant pay because it’s supposed to be easy.

    “Loser pays. You bring a frivolous suit or a frivolous defense and lose, you pay for all of the other party’s out of pocket costs. The last time I checked we are the only country in the civilized world that doesn’t have this rule.”

    Of course you’re wrong here, not only with your “every country” line, but in your belief that we don’t have it. And you don’t understand/realize that it doesn’t operate like you think it does elsewhere. But then, if you want to be like every other country, why aren’t you advocating for single payer?

    “Pre-screening panel. ”

    If only we had more doctors creating more barriers to entry to filing a lawsuit. So has this panel in Indiana achieved its goals? What were its goals? Interesting thought, but devoid of meaning – sounds like an insurer talking point.

    rt witness reforms.

    That’s on you physicians. Police yourselves.

    “Periodic payments. Pay economic damages as they are accrued.”

    Definitely an insurer talking point. How does this benefit a physician in any way? Really though, nothing now prevents an insurer from settling a case this way. I’ve had them propose, and taken the offer, the purchase of annuity in non med-mal cases.

    “You paint this picture as if I’m trying to keep any patient from ever being compensated for any injury and that’s just wrong.”

    I painted no such picture. I simply asked what was the point of your post. You list a bunch of things that either you poorly understand, or you don’t explain how they benefit anyone involved but insurers. More importantly, none of them are on the table in any meaningful way. You know this, because we’ve had the “crisis” you squawk about every few years happen every few years for decades. And yet there’s always just one proposal that is truly at issue – limiting what people can recover regardless of the merit of their case.

    I haven’t criticized you at all, except in your slavish devotion to parroting insurer talking points. And I’ve also criticized your profession’s willingness to bitch incessantly about your compensation model but refusal to break from it. I’m sure you’re a fine physician, like most. Although you appear to have a problem with distinguishing criticism of your ideas for the law with criticism of you personally. But that’s pretty common these days in America.

    • Matt says:

      As far as the case you cite being “BS”, I have no idea. Because I have this crazy theory that you ought to, you know, look at the actual evidence before drawing a conclusion.

  10. Max Kennerly says:

    It’s not clear the jury actually heard about the c-section request (the lawyer said that to the paper, but no one said it was at trial). Assuming they did, I bet you $10 the hospital argued she would have refused a c-section, and so evidence to the contrary — her demand for a c-section — was admissible. Usually all of these physician/patient interactions end up being admitted because the physician and their lawyer can’t help but dispute every last issue, regardless of the merit or wisdom in doing so.

    Not much else of substance can be said about this case based on the limited materials available. Sure, 24 weekers are at a high risk of all kinds of disabilities, including the ones this child suffered, but they’re by no means guaranteed. There are plenty of perfectly healthy 24 weekers walking around, playing sports, working as professionals, etc. Isaac Newton was extremely premature.

    The question is what those fetal strips showed. If they showed distress, then it was negligent to not perform an emergency c-section. Period.

    You call it a “no-win,” but it’s not a “no-win.” If they had properly diagnosed the distress and performed a c-section, the kid would be better off and no one would be liable for anything. “Win-win.”

    • WhiteCoat says:

      Max,

      First, I see your point about why the mother’s demand for a C-section could have been relevant.

      However, you confuse “possibility” with “probability” in making your argument that 24 week old infants are guaranteed a healthy delivery and Newtonian intellect. The statistics show that 61% of babies born at that age either die or have profound mental impairment. Therefore, in legal parlance, to a “reasonable degree of medical certainty,” children born at 24 weeks gestation *will* have some type of profound injury. That tees up the case for any plaintiff attorney, with the benefit of hindsight bias, to argue that “if only the incompetent doctor had done something different, this child could have been the next Isaac Newton.”

      Of course it is a “win-win” when there is a good outcome. That isn’t the point of the post.

      The issue is that cases like this create a “no win” situation when a bad outcome occurs. Given that bad outcomes in cases like this are, to a reasonable degree of medical certainty, going to occur regardless of the course of action a physician takes, with hindsight bias a plaintiff can argue that whatever course of action the physician *didn’t* take was, in fact the right decision. Such cases are by definition “no win” situations.

      You argue that the case hinges on what the monitor strips showed.

      The plaintiff attorney admitted in the article that the monitor strips were showed that the baby was initially “healthy” despite the mother’s request to have the baby delivered immediately. Should the baby have been delivered at that point?

      The article also notes that when the monitor strips showed distress, an emergency C-section was performed. So the doctors performed just as you recommended, yet they were found liable for $14.5 million.

      Looks like you would have been socked for $14 million if you were managing the case, also.

  11. […] by a pseudonymous ER doctor who goes by the name “WhiteCoat.” WhiteCoat recently complained about a $14.5 million malpractice verdict in favor of a baby born at 24 weeks with severe […]

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