A few days ago, I found myself involved in a debate over malpractice suits on The Heath Care Blog. One reader on the thread explained why, in his view, we need some type of tort reform: “What drives physicians to practice defensive medicine is the total lack of objectivity, fairness and consistency both across jurisdictions and even within a jurisdiction as to how medical disputes are decided. Juries of lay people who cannot understand the often conflicting scientific claims in these cases can be easily swayed by emotion and sympathy for injured plaintiffs.
“The inclination to practice defensively is especially prevalent in ER’s when the doctor and the patient often don’t know each other and there is time pressure to determine a diagnosis and send the patient on his or her way,” he added. “I’ve heard from plenty of doctors who work in inner city ER’s that even poor people are not shy about suing when there is a bad outcome if they can find a lawyer to take their case which they often can.”
This comment pretty well sums up the conventional wisdom about medical malpractice cases: Juries are not objective, don’t understand the evidence, and tend to sympathize with the patient. Meanwhile, doctors should be wary of those low-income patients in ERs. Americans are litigious by nature and if patients are not entirely happy with the outcome, they’ll jump at an opportunity to turn misfortune into a payday. Poor people, who need the money, are even more likely to try to “score.”
Those are the fictions.
Here are the facts, according to Drs. John Glasson, and David Orentlicher, writing in JAMA:
"Over the years, our understanding of medical malpractice has been plagued by a number of myths, many of which have been exposed by a remarkable series of reports.” ( Here, they footnote studies published in as number of peer-reviewed medical journals. ) “As a result of these reports, and contrary to popular belief,” they add, we know that “adverse events due to negligent practice rarely result in a lawsuit (only 2% of such events lead to malpractice claims), juries are not systematically biased against physicians (malpractice defendants win more than two thirds of cases, a better record than defendants in other kinds of personal injury cases), and juries decide cases on the basis of the physician's quality of care rather than the patient's severity of injury.”
The Difference between Malpractice and Other Personal Injury Cases
We have had this information for years. Glasson and Orentlicher published their piece in the early 1990s. Since then, newer research has only confirmed the critical difference between medical malpractice cases and other personal injury lawsuits. Writing in Emergency Medicine News, Dr. Jonathan Glauser, an ER physician at the Cleveland Clinic, points out that “While plaintiffs win an average of 50 percent of all personal injury cases, recent evidence reveals that Medical malpractice represents a consistent deviation from that average. In 2001 a large study showed plaintiffs winning only 27% of [malpractice] cases, while in 2006, a smaller study found them winning only 21 percent of the time.”
Glauser goes on to report that that “a more exhaustive investigation done in 2007, which looked at independent evaluations of cases by medical and legal experts, found that even when plaintiffs have “strong evidence of negligence,” they win only about half of the time. (Mich Law Rev 2007;105:1454.)
“Generally the assessment [of the evidence] was made by one or more physicians,” Glauser notes, and “the results are surprising but consistent.”) He then points to yet another study of malpractice cases, where the win rate was even lower –just 42 percent– even in cases where physicians assessing the claims concluded that “the quality of care was poor.” (Ann Intern Med 1992;117:780.)
It is difficult to explain the difference between malpractice cases and other personal injury claims. Why are plaintiffs more likely to prevail if they sue an automaker claiming that a defect in the design of the car caused an accident, than if they sue a hospital or a doctor? “Some experts say juries tend not to grasp complexities, which each side tends to introduce into a case, and therefore the juries side with the doctor,” Glauser explains. “In cases like these, the jury gives the physician the benefit of the doubt that his management was consistent with good medical practice when there is an appearance of legitimate conflict. Case complexity favors defendants, or so say some experts.”
I would add that most Americans trust their doctors. They also want to believe that our hospitals are safe. Few are eager to know how many hospital patients are killed or permanently injured by medical mistake. When it comes to the question of whether a large corporation will knowingly sell an unsafe product, consumers are far more cynical.
At Best, Perhaps Five Out of Six Plaintiffs Find Justice
In 2006, the NEJM published a review of malpractice claims sponsored by Harvard’s School of Public Health which has come to be seen as the gold standard for such research. The authors (who included Harvard surgeon Atul Gawande) argued that earlier studies had been flawed in various ways. Some “focused only on a small numbers of claims, a single hospital, insurer, specialty, or type of injury; others used very limited information in the determination of merit, or relied on the insurer's view of the defensibility of the claim as a proxy for merit rather than on independent expert judgments.”
This study was designed to avoid those limitations. Independent physicians reviewed 1452 closed claims involving five malpractice insurance companies in four regions of the United States. The suits covered approximately 33,000 physicians, 61 acute care hospitals (35 of them academic and 26 nonacademic), and 428 outpatient facilities. In each case, physician-reviewers were examining cases in their own specialty.\
Reviewers followed the Institute of Medicine’s definition of error: “the failure of a planned action to be completed as intended (i.e. error of execution) or the use of a wrong plan to achieve an aim (i.e., error of planning).”
The results of this larger, more carefully controlled study confirmed that juries seem to favor the defendant in a malpractice trial. When physician-reviewers were asked about the fairness of the verdicts, and whether medical error caused the poor outcomes, they concluded that “one in six claims involved errors but received no payment.” As a result, the authors point out: plaintiffs were forced to “shoulder the substantial economic and noneconomic burdens that flow from preventable injury.”
“One in six” (or 16 percent) is better than 50 percent. But it is worth noting that the physician-reviewers deemed 23 percent of the cases “too close to call.” After considering all of the details, they couldn’t decide whether a bad outcome was due to negligence. (Glauser also points out that when independent doctors evaluate the merits of malpractice suits, they disagree with each other about one-third of the time.)
Those “too close to call” claims were (rightly) excluded from the final tally. But assuming, for the sake of argument, that in one-third of those ambiguous cases, a medical error did cause injury, the percent of worthy, but unrequited claims might run as high as 24 percent. (Obviously “one-third” is an arbitrary shot-in-the-dark. We just don’t know. )
How Often Do Patients Win Awards When No Error Was Made?
When it comes to the fairness of financial awards, the physician-reviewers found “Plaintiffs were paid in cases where the reviewers found no error only 10 percent of the time. Plaintiffs were NOT PAID in cases where the reviewer found that there Was error 16 percent of the time. Thus, nonpayment of claims with merit occurred more frequently than did payment of claims that were not associated with errors or injuries. ”
It may be heartening to read that in cases where the reviewers found evidence of errors, plaintiffs were paid 84% of the time. But the fact plaintiffs won damages when the reviewers saw no evidence of malpractice in 10% of all case is extremely disturbing. Imagine the damage not only to a doctor’s reputation but to his psychic health when an award is made, even though he or she did not make a mistake. Just being sued is a hellish experience; being found guilty when you did no wrong is an injustice that could make a person want to give up the practice of medicine. (This is one reason why I would like to see our malpractice system focus on “How can we prevent this from happening again?” rather than “Who is to blame?”)
How could so many patients win awards in cases where there appears to have been no malpractice? Juries and even judges are human. A charismatic trial attorney may sway the jury; an unattractive, arrogant, or unrepentant defendant may prejudice his own case. More importantly, medicine is shot through with uncertainty.
Note that when the physicians who reviewed the cases in the Harvard study were asked to rate their judgments using a 6-point confidence scale, they reported that they had a “high level of confidence” in their assessment of the case only 44 percent of the cases. This signals that, in some cases where they found no error, they may have been wrong. Of course, when they found negligence, they also could have been mistaken. Though in cases where they genuinely were not sure, physician- reviewers might be more likely to see the case through the doctor’s eyes and err in his favor.
Finally, one might wonder, how could a case in which no mistake was made ever get to court? Here the problem is that when a doctor or hospital is sued, they usually stonewall the plaintiff and his or her attorneys. The defendant’s lawyers instruct them not to talk to the patient or her family. Nurses or others who witnessed the event are told to clam up. Often, the only way a patient or her relatives can find out “what happened” is by suing.
The authors of the Harvard School of Public Health Study explain that when they looked at the claims where reviewers found no error, these suits did not fit the popular profile of “frivolous” suits bought by “opportunistic trial lawyers pursuing questionable lawsuits . . . Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts and sharing of information that litigation triggers. Previous research has described tort litigation as a process in which information is cumulatively acquired.”
Preparing for trial involves a process which lawyers call “discovery.” Typically, the plaintiff asks the defendant to open his files and computers to produce documents which may show what actually happened. If the plaintiff asks for 100 documents, the attorney for the defendant sends him 1000, maybe 2000. (This is what litigators call “burying the other guy in paper.”) Discovery can drag on for a year or two.
Depositions also yield information. But if a case is complex and involves many actors, it could be at least two years before the plaintiff and his attorney begin to figure out what probably happened. (This goes a long way toward explaining why cases that involved no medical error wind up in the system.)
At that point, both parties have invested an enormous amount of time and money. Acrimony has built. One or both may refuse to settle. In cases where the doctor or hospital are quite certain that they are innocent, they are more likely to insist on going on to court. Insurers may press for a settlement, but reviewers have found that when the evidence against the health care provider is weak, the case is more likely to go to trial.
“Most of These Very Poor People Don’t Make Waves.”
Who brings malpractice claims? In the Harvard study of 1452 claims, sixty percent of the plaintiffs were female. The median age of the plaintiffs was 38 years; 19 percent were newborns, and just 12 percent were 65 years of age or older. Obstetrician-gynecologists were the most frequently sued (19 percent), followed by general surgeons (17 percent), and primary care physicians (16 percent).
As for the idea that poor patients are more likely to sue, a 2009 article published on ACP Internist , a blog sponsored by the American College of Physicians, notes that while “Many doctors think it is ‘poor patients on welfare’” who sue, “evidence shows that low income patients on Medicaid are actually less likely to sue than others.”
The research is consistent. Another study, published in JAMA looked at lawsuits at 51 hospitals in New York State: “Poor and uninsured patients are significantly less likely to sue for malpractice, even after controlling for the presence of medical injury,” the authors wrote. “Fear of malpractice risk should not be a significant factor in the decision to serve the poor. Tort reforms that would protect physicians who serve the medically indigent from malpractice suits may not be warranted."
I cannot help but be reminded of what Dr. Liz Dreesen, a physician who had practiced in a small mill town in North Carolina, told me when I was writing Money-Driven Medicine: “Most of these very poor people don’t make waves.” The indigent are not demanding. In the game of life, they are accustomed to losing, and as a result, they are not as likely to be as shocked or indignant as you or I might be if we were injured because someone forgot to wash his hands.
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In Part 2 of this post, I will write about possible solutions to what Atul Gawande has called “the malpractice mess”: caps on awards (including a bill that is now in the House) and “health courts,” where an expert judge makes the decisions. I also will discuss the uncertainties of medicine which can make it so difficult, even for a physician, let alone a judge, to discern whether medical error caused a poor outcome. Finally, I’ll focus on the high cost of lawsuits, and explain why “apology and disclosure” makes far more sense than the bitter and costly adversarial system that we now use to try to sort out “what happened.”
Excellent post –
A bit off topic, but this pretty much typifies the attitude many medical professionals have towards poor people:
“I’ve heard from plenty of doctors who work in inner city ER’s that even poor people are not shy about suing when there is a bad outcome.”
It’s so sad that people think somehow poor people should somehow accept sub-standard care more than those who are not poor. As Maggie has frequently pointed out, there are serious quality problems in our health care system. Everyone should have high quality care, and malpractice is necessary to protect patients and to keep doctors accountable.
Thank you for reminding us about the facts.
I agree that the poor being more likely to sue is a myth. I think they are less likely. The craw in most physicians throats is being required to take call and seeing these patients often ultimately for free, but still assuming full risk. That is the problem, in a nutshell. It is often one of the reasons to explore ways to not take call, besides lifestyle issues. If a physician is going to take risk, they want to get compensated for it. Which is not unreasonable.
Kevin, Sharon, Jenga–
Kevin– Welcome to HealthBeat (I don’t think I’ve seen your name on the thread before). And thank you very much.
Sharon–Yes, the phrasing –“even poor people are not shy about suing” suggests that they Should be shy about suing. I suppose the reasoning is that they should be grateful if doctors are willing to care for them, even if they cannot pay. This is, as you say, “sad.”
Jenga–
I think you’re right. (So nice when, occasionaly, we agree.)
In the past, doctors who were affiliated with a hospital were willing to take “call” at the hospitals ER one night a week or every two weeks (perhaps less, perhaps more) without additonal compensation.
It was considered part of the gig.
But in recent years, a new generation of doctors wants to spend more time at home with family, and is not willing to be on call without being paid extra.
This is a serious problem for small and mid-sized community hospitals that really don’t have the money for additional compensation. (I write about this in Money-Driven Medicine.)
When I was writing the book I recall talking to an ER doc who described offering to give a specialist $150 just to come in and see a patient who was in real trouble, and who no one else in the ER could treat. (It may have been an eye injury–I’ve forgotten.) The ER doc was going to pay this out of his own pocket.
I’m hoping that the expansion of community clinics that are open “after hours” (reform legislation provides funding to increass the capacity of these clnics by 50%) will help take the burden off ERs.
But I suspect there will still be problems in terms of getting emergency care for patients who need to see a specailist.
(Community clinics will be largely staffed by primary care docs and nurse practioners. The most successful do develop good relationships with sympathetic specialists– calling on them when they are really needed. But it’s hard.
Since we are talking about myths, we should talk about the myth that the older generation of physicians were much more altruistic than today. ER call was also a good way to build a practice the and they were more likely to get paid. The ER is invariably more busy today with a much higher percentage of uncompensated care, that they simply didn’t have to deal with to the degree we do today. If they were as benevolent as they claim EMTALA would have never been an issue and never had been enacted. They (older physicians) have done quite well perpetuating that stereotype, and as a physician I know they have the same motivations as we do. I can go to great lengths discussing the ease of practice twenty to thirty years ago. Simply “setting out your shingle” was a reality, things such as prior authorizations, FMLA paperwork and claim denials weren’t invented yet, reimbursement was obviously much higher when adjusted to inflation. Medicare pays the same for a total knee replacement today that they did in the mid seventies, is just one example. Technology and efficiency can’t match 35 years of inflation for the ease in making a practice run. Anyway, just a few things to think about, the next time you think past physicians were more altruistically driven.
I do question your response to Sharon, you seem to say the poor shouldn’t be grateful for someone taking care of them for free. In what other area would you accept such an attitude. I worked hard to get into school, I paid hundreds of thousands of dollars for such training, gave up my twenties to do such training, I am taking time away from my family to treat them at risk medicolegally and health wise (needlestick) for free. Gratitude doesn’t cost a dime and is appreciated and may make me say yes again. If I’m given an expectation and entitlement attitude, why am I doing this again? It’s a free country, last I checked. Nevermind, I know. EMTALA,something past physicians didn’t have to do.
As long as doctors are taught from medical school onward to view every patient as a potential plaintiff and to treat them accordingly, defensive medicine will pervade the medical culture regardless of the actual frequency of suits or the percentage of claims that result in payouts.
Mistakes during surgery are a different issue from defensive medicine. Much of defensive medicine, I believe, is intended to prevent the failure to diagnose suits. If someone presents with a headache and there is one chance in 10,000 that the patient has brain cancer, ordering an MRI will prevent that potential claim. Again, it doesn’t matter what percentage of actual malpractice claims are failure to diagnose cases.
To mitigate these, I think robust safe harbor protection from lawsuits when doctors follow evidence based guidelines where they exist would be even more valuable than health courts though I would like to see those too. Juries shouldn’t be allowed anywhere near these cases when judges with specialized knowledge could decide them more objectively and consistently even if they award higher damages than juries would have when negligence was clear cut.
The orthopedic surgeon turned trial lawyer that Atul Gawande wrote about in his New Yorker article stated that the ideal plaintiff is one who fits perfectly into the culture where the case is being tried. That could be a rich white person in Beverly Hills or a poor African American in the South Bronx. Doctors and their insurers don’t want to deal with this phenomenon if they can avoid it which is why many cases are often settled for relatively modest sums rather than risk a much higher judgment at trial even if the merits of the case are questionable at best.
The bottom line is that the mentality that every patient is a potential plaintiff coupled with the unpredictability of our litigation system drives defensive medicine in the U.S. Add to that the fact that there are no adverse financial consequences for doctors who order more tests than needed and there are often financial rewards for doing so contributes significantly to our highest in the world healthcare costs.
Thank you for this thoughtful, smart, well referenced article. It is important the this achieves large reach and frequency
Barry–
There is something very wrong with the culture of a medical school that teaches doctors, from day one, to view every patient as a potential plaintiff.
Instead, med schools should be teaching doctors, from day one, the essential elements of keeping patients safe.
Did you know that in the U.S. 80 Wrong-Site Surgeries Occur Every Day?
And only 1/3 of the victims sue?? (So much for Americans being “suit-happy.”)
There is a very clear protocol for avoiding wrong-site surgeries that includes a “time-out”, checklists and marking the site before surgery.
Yet many doctors refuse to do this. And hospital administrations don’t insist.
From the first day of medical school, doctors should be taught to view every patient as a vulnerable human being who even the best-intentioned physician could harm.
Doctors are human; they all make mistakes. From day one, they should be taught to accept that fact. Forget the “I don’t need a time-out” arrogance.
Teaching doctors to view every patient as a potential plaintiff is to teach an adversarial view of the patient. Yet patients only sue in 2% to 4% of the cases where they are seriously injured by medical care. There is no rational reason to view every patient as a potential plaintiff.
As for defensive medicine, their are many reasons why a doctor may order an extra test. It is impossible to untangle them. Therefor it is impossible to guess how much defensive medicine cots us. The CBO says it is much less than many suggest.
You asked your cardiologist how often he ordered a test because he was concerned about being sued and he said “15%” of the time. What did you expect him to say: “Most of the time, when I order a test that might not be absolutely necessary, I think ‘What harm can it do?’ In medical school I was taught to be thorough.
The ultimately cost of healthcare is not my problem. I’m not a bean-counter. I’m not a politician. I’m a physician. My job is to treat my patients, one at a time, providing every service available to me.
“Do I make extra money on those extra tests? Sure. But I’m just doing my job. And I have a right to be paid for my work.”
This in fact, is what many doctors have been taught– and what they feel. But it’s easier just to say “The lawyers make me do it.”
Are you saying that the first hand observations of physicians are wrong?
Hello Maggie – Excellent overview on such a complex topic. Thanks for helping to correct some common misconceptions about medmal that physicians may still harbour.
I agree that it is indeed “extremely disturbing” when studies suggest “plaintiffs won damages when the reviewers saw NO EVIDENCE of malpractice in 10% of all cases”. Very traumatic for the physicians involved.
But I find it even more disturbing that “nonpayment of claims WITH MERIT occurred” in 16% of the cases reviewed. Very traumatic for the patients involved.
Previous research on why doctors get sued also supports the JAMA report. For example, you may already be familiar with the work of the University of Toronto’s Dr. Wendy Levinson, considered a foremost researcher on physician-patient communication.
In a landmark 1997 study, she recorded hundreds of conversations between a group of physicians and their patients. Half of the doctors had NEVER been sued, and the other half had been sued AT LEAST TWICE.
Dr. Levinson found that just on the basis of those recorded conversations alone, she could find clear differences between the two groups.
Interestingly, Dr. Levinson reported NO DIFFERENCE in the amount or quality of information doctors gave their patients; the never-sued doctors did not provide more details about medication, treatment or the patient’s condition.
The difference was entirely in HOW they talked to their patients.
More about what these differences were at: http://ethicalnag.org/2010/10/15/why-doctors-get-sued/
Maggie, patient safety is emphasized from day one. I remember vividly the President of our Medical School addressed us and his first sentence was “First do no harm.” It’s been that way since our school has opened and for every class since. You can’t get more upfront or first day than that.
As far as the adversarial issue, physicians during training are going to tell stories. That’s one of the ways we learn afterall. They tell malpractice stories and unless you are going to take away their first amendment rights or change the system, there will be fear.
Mark, Jenga
Mark– Thank you very much.
In termns of “reach” if you want to cross-post the piece anywhere, feel free.
No permission needed. Just please provide a link to http://www.healthbeatblog.org.
Jenga–
Well, at least we agreed for a little while . .
On “older physicians”–I don’t know how old you are, and so I don’t know what “older” means to you.
I remember docs who practiced at the end of the 50s and in the very early 60s.
A very different medical culture.
Most made house calls. They worked Saturdays and evenings (so that working people could make appointments.)
When my father asked our family doctor (who was very kind) what he owed him, he would reply “whatever you can afford.”
My father would give him a dollar, or two. (At that time, in our family, this was a substantial amount of money.) For my father, $2 represented 3 day’s pay. Working full-time and overtime, he made $1,000 a year in the late 1960s, when I was going to college.
As a child I was often sick with what was called “croup.” Fairly often, I sat up all night coughing. Very thin–just wasn’t “thriving.”
My father also was ill, so this very kind doctor came to our house fairly often.
I know other doctors who accepted food as payment.
Back then, there just wasn’t that much money in medicine. (This would change after 1965, with the passage of Medicare.)
When you refer to “older doctors” my guess is that you are thinking of doctors who began practicing in the late 70s or 80s. This is when doctors began to become wealthy.
But back in the Fifties and Sixities few doctors were rich. I have friends whose fathers were docs back then. They lived in middle-class neighborhoods, though they tended to live in the corner house–brick, nicer than the other smaller homes. Their mother made their clothes. They couldn’t afford to buy clothes for 5 girls. They were not rich.
I’m sure that in places like Manahttan there were some who were wealthy– particuarly specialists. But there were very, very few specialists back then.
(The rise of specialists wouldn’t happen until the 1970s.)
Doctors truly believed that providing charity care was part of their duty as a physician– part of the oath they had taken.
And many felt that everyone had a “right” to healthcare– regardless of ability to pay. (Today, many doctors still believe this)
I realize that this would seem very old-fashioned to many doctors today.
As to whether the poor should be “grateful” . . .
A doctor is different from others who might or might not provide free services because he/she is providing a life-saving service. The Hippocratic oath suggests that he should always put hte patient’s interest ahead of his own financial interests. This suggests that it is part of his professional duty to help care for those who cannot pay.
In other words, a doctor isn’t a “businessman” selling something that people don’t necessarily need.
As you probably know, originally most hospitals in this country were charitable institutions, run by various religions. This is where the poor went to die.
On the question of gratitude: I am grateful to doctors who give me good advice– what I am paying them is irrelevant.
Thus I am truly grateful to the doctor who has figured out that I don’t have glaucoma–even though I was treated for glaucoma for more than 25 years.
I am not grateful to the Park Avenue doctor who, for years, berated me if I didn’t come in for an eye check every three months.
Even if he had treated me for free, I wouldn’t be grateful. (And he didn’t, he charged fees that were significantly higher-than average for Manhattan, and he didn’t take insurance.)
Bottom line: I think we should always be grateful to doctors who take good care of us, and watch out for us, whatever the price.
And I think that poor people, like rich people, have a right to be
indignant if a doctor is negligent. No one should expect the poor to be obsequious.
That said, every human being makes mistakes,including physicians. We should accept and forgive that. But some mistakes are clearly preventable. (For instance “wrong site surgery.”
In Part 2 of this post, I will explain that in the U.S. , patients fall victim to “wrong-site surgery” 40 times a week, mainly becuase surgeons refuse to use check-lists, time-outs, “signing the site,” . Why? They are convinced that “I would never make that mistake.”
Joe Says–
It’s not clear what you mean by “first hand observations.”
The doctors who reviewed the cases in the Harvard study were reading the malpractice claims and all of the evidence attached. But they were not there at the time that the patient experienced problems.
Assuming these are the physicians you are referring to . . .
Nearly one-fourth of the time, these doctors said they found the case “too close to call.”
In most cases, they were not “totally confident” about their judgment as to whether or not medical error had caused the injury.
And these were physicians reviewing cases in their own specialty.
What does this tell us?
That medicine is not cut and dried. It is shot through with ambiguity and uncertainty.
See part 2 of this post.
I’m talking about doctors of the 70s and 80s. Most of the Doctors of the 50s and 60s aren’t around. If you are going to talk anecdotally though my family physician growing up graduated in the fifties and let’s just say he wasn’t as you describe. He would send patients a bill if they asked him a question at the grocery store or at the post office. A question! Can you imagine that? I can tell you first hand, (my family in administration) he didn’t think call was his civic duty. He took it to make money. Like I said, if most physicians of that era were as you said, there would have been no push to pass EMTALA.
I read your article and the one word that keeps popping up that explains our entire system is “unpredictable”. There is zero question that unpredictability drives fear. I’ll probably never agree with Peter Orzag in my life and certainly I won’t on his life choices, but I agree with him on this. Barry is right as well, safeharbor for following guidelines should provide cheaper, better healthcare with instant buy-in. Which is something this Administration needs dearly. The ACA is afterall the only major piece of social legislation enacted to actually get less popular with passage. Above all it give predictability which is what we need in all aspects of medicine.
“Working full-time and overtime, he made $1,000 a year in the late 1960s, when I was going to college.”
Maggie –
I don’t know what your father may have told you about his earnings but the fact is that the federal minimum wage from 1963-1966 was $1.25 per hour or $2,500 for 2,000 hours of work – 40 hours per week for 50 weeks. It was raised to $1.40 per hour in 1967 and was $1.60 per hour ($3,200 for 2,000 hours of work) from 1968-1973. My father, who was a federal GS-12 when I started college in 1963, earned about $14,000 per year at that time at age 43.
Separately, wrong site surgery is, I think, the most egregious form of medical negligence I can think of. Any victim of this should sue (I would) and deserves compensation. There’s simply no excuse for it, period.
On the other hand, defensive medicine such as the excessive use of expensive imaging and blood tests and a very low threshold for admitting a patient to the hospital for observation are driven, at least in part, by fear of litigation for failure to diagnose a disease or condition. Patient expectations may play a role as well and so might the potential to generate more revenue for either the doctor or his organization.
Barry–
I’m very sorry that you continue to avoid the research and the facts in the studies while trying to undermine my credibility by suggesting that I am not telling the truth about my father’s income.
Let’s say, for the sake of argument, that he made $3,000 a year instead of $1,000. Why would I possibly lie about this? What difference would it make in terms of the larger argument? Whether he paid the doctor 1 day’s pay or 3 day’s pay, he was paying what was, for him, a substantial amount, and what was, for the doctor, a small fee. Yet the doctor did not object. He kept coming back. That was my point– medicine was not as “money-driven” back then.
But given your suspicions, let me try to put your mind to rest. What I know about my father’s earnings is based on tax returns that I used when applying for financial aid.
He worked for the city (Syracuse, N.Y.) as a civil service worker. You have suggested in the past that many low-income workers don’t report all of their income, but it would have been very hard for him to fudge his tax returns.
Conceivably, $1,000 was after taxes (though it’s hard to believe that he owed much in taxes on his salary.)
Maybe this was after deducting heatlh insurance or some other benefits.
I just remember being surprised when I filled out the financial aid forms. I myself had worked since I was 14 (labor laws in N.Y. let me get a “work permit” at 14) and so I had a very clear idea of minimum wage and typical hourly wages. Usually, I made less than minimum wage. (Then, as now, there are many ways to pay a worker less than min. wage.)
Returning to malpratice: Suits revolving around
failure to diagnose represent the minority of malpractice suits.
Very simply, doctors have been sold a bill of goods by those who favor “tort reform” for ideological reasons that have little to do with health care spending. See part 2 of this post.
Carolyn-
Thanks very much.
Yes, the way a doctor approaches and talks to his patient does seem to be key to whether or not they sue.
Patients want to like and trust their doctors. They want to feel “safe”–that someone is doing his or her best to help them.
Much reserach shows that patients are likely to sue only if they found their doctor “arrogant,” “brusque,” etc.
The are quick to forgive a doctor for making a human mistake if they always felt that he was on their side. And they would prefer to believe that he/she didn’t make a mistake. Something unknown just “went wrong.”
Research shows that when dotors come forward, explain exactly what happened, and say “I’m sorry,” patients and their relatives are much less likely to sue. They will settle for much lower amounts. Patients just hate to be stone-walled.
(See part 2 of this poat)
Jenga–
On unrpredictablity, see part 2. of this post, which will be up tomorrow.
You say that you’re talking about docs form the 70s and 80s because doctors from earlier cohorts “aren’t around.”
Actually, they are around. Many of the people in the vanguard of health care refrorm (Wennberg, Berwick, Lundberg
,Hadler, etc.) are from that cohort.These are my sources.
They have mentored others in a younger generation who share their views.
But doctors from that older generation are far more likely to object to the idea that medicine is a “business” or that doctors should see themselves as “entrepreneurs.”
Given your experiece with your childhood family doctor, I am surprised that you decided to become a physician.
Maybe you hoped do things differently?
Maggie –
I know that failure to diagnose suits are a minority of malpractice cases – about 20% of cases if memory serves. That’s not the issue, though. As Jenga notes, the issue that drives defensive medicine is unpredictability. We don’t need damage caps. We need more predictability which both safe harbor protection for following guidelines and health courts instead of juries deciding cases would provide. I don’t think it’s a bill of goods at all and we won’t know how much money we could save from tort reform until we try it. Unfortunately, trial lawyers and their friends in Congress and the Administration are probably able to keep blocking it. That’s unfortunate.
Hi Maggie:
Could it be this is another aberation of service for fees? Instead of using practical skill and analysis to ascertin an illness, it is far too easy to rcommend an MRI, pay the machine burden for the site, and improve the sureity of the decision from 90 to 93%? In any case, their is still a 7% (hypotetical) chance of being wrong and we have use an expensive procedure to improve 3% on the confidence level.
Hmmm, does this seem reasonable or is there a law of diminishing returns? Why does 3% justift $thousands in cost when, when the improvement in outcome so small?
Attorneys do not sue at the drop of a hat. Thre is little to be gained from this. Non pain and suffering is capped in many states and most potetial lawsuits are not in this category. Lwyers will not take them.
Why is it that many people argue for federal control of tort claims and reject state control? Many of the same argue the opposite for federal mandated healthcare reform and insist on state rights. Interesting . . .
Sorry if I confused you Maggie.
What I meant was that physicians fear malpractice suits and many practice defensive medicine because of it. Most practicing physicians I talk to feel that way, so I tend to believe them.
I am wondering if you are saying these docs are wrong?
Barry–
First, I revised my last reply to you in an effort to say what I truly meant. Please see revised reply.
Secondly, you write: “I don’t think it’s a bill of goods at all and we won’t know how much money we could save from tort reform until we try it.”
Republicans and conservatives in Congress define “tort reform” as capping damages for pain and suffering.
This has been tried in many states and has not
reduced health care spending.(See part 2 of this post tomorrow)
As for health care courts, the problem is that unless and until hopsitals and doctors are willing to make full disclosure about what actually happened (without forcing plaintiffs to go through the extremely expensive process of legal “discovery”) even
“expert judges” will not be able to make good decisions.
This is why nearly 1/4 of the physicians reviewers in ther Harvard study said that they couldn’t decide whether medical error had caused the injury . It was “too close to call.”
If memory serves, they were highly confident about their assessment in less than 30% of cases.
This is because many of these cases were settled before going to court, and not all of the facts had come out during discovery. Even if the case went to court, often some facts are still buried (concealed).
I recall a “wrong site” surgery case where the surgeon operated on the wrong side of a 14-year-old’s brain. The child was brain-damaged for life and became schizophrenic. The hospital did not admit to the parents that the surgeon had operated ont the wrong side of the child’s brain for one year.
How would a health care court decide this case without going through a very lengthy, expensive and imperfect process of discovery?
“Full dislosure” by hospitals and doctors should be the law. This is why “disclosure, apology, and early settlement” is the best solution.
—
Maggie –
In the case of the wrong site surgeries, I said in my prior comment that these are the most egregious form of medical negligence I can think of. It doesn’t matter if the surgeon was arrogant and didn’t think he needed to take the time out or if he was under the influence of drugs or alcohol. It’s negligence either way pure and simple. The hospital and the surgical team presumably know what happened and they should be using that knowledge to perform a root cause analysis to minimize the chance of a recurrence in the future.
With respect to damage caps, I’ve said consistently that they’re not the answer regardless of how much republicans like them and how often they propose them. At the margin, damage caps will reduce the number of suits by making some cases less attractive for trial lawyers to take on, but they do nothing to improve predictability and objectivity for doctors. Safe harbor protection for doctors who follow guidelines where they exist would accomplish that for the failure to diagnose cases and taking the cases out of the hands of juries in favor of health courts would do it for most of the other cases. There will always be close calls just as there are at the Supreme Court when so many cases of its cases are decided 5 to 4.
“I’m very sorry that you continue to avoid the research and the facts in the studies while trying to undermine my credibility by suggesting that I am not telling the truth about my father’s income.”
Maggie –
I wasn’t suggesting any such thing and I’m sorry you interpreted it that way just because we often don’t agree about the issues you write about. You’re a former journalist. You try to get the facts straight. I’m a finance guy with a head for numbers and a very good memory for them including many from long ago in our history. If I assumed anything, it was that the $1,000 figure probably was a typo and that you meant $10,000 before taxes and deductions.
Doctors back then generally billed patients based on what amounted to a sliding scale. For example, a doctor might bill a wealthy banker $250 for an uncomplicated surgical procedure but accept $10 or $20 from someone with a middle class income and nothing at all from a poor person. The passage of Medicare and Medicaid changed the system in a lot of ways, not all of them positive.
Thank God that doctors starting getting paid their due in the 70’s and 80’s. The oath says nothing about money and being a professional has nothing to do with not getting paid. I would expect all professionals to be paid for their services. I don’t think health care is a right just like i don’t think heat in the winter is a right.
Peter,
Peter– Everyone has a different idea of what “being paid” means.
Some would say that for the CEO of a large corporation to be paid adequately he should probably be making $2 million. Others disagree.
On physicians’ pay, many in the U.S. have begun to feel that we cannot afford to pay our best-paid physicians so much more than they are paid in Europe (after adjusting for differences in cost-of-living and the fact that we don’t subsidize med education to the same degree.)
In many waysm the U.S. is moving away from the excesses of the 1980s. We just can’t afford them.
So tax policy is changing; regulation is tightening; and under health reform the Secretary of HHS has the power to lower fees for “overvalued” medical services while raising fees for undervalued services. Net, net, Medicare will wind up spending less on services.
As for whether health care is a right, the majority in Congress decided that it is when they passed the Patient Protection and Affordable Care Act.
The majority of Americans also believe that it is a right.
Whatever changes we may see in the law going forward, I very much doubt that will change.
We have at last joined the rest of the developed world on that issue
Finally, the Hippocratic oath states that the doctor must put the patients’ interests ahead of his own interests.
Most medical ethicists interpret this to mean ahead of his own “financial” interests.
Under the law, this is why doctors are barred from certain types of self-referrals, to avoid conflict of interest.
Barry-
I’ll be writing about Health Courts in part 2. Insofar as they are much more likely to find in the plaintiff’s favor, they might reduce that 16% of cases with compelling evidence that plaintiffs nevertheless lose because juries tend to favor doctors.
But I’m not sure how much they would improve “predictability.”
In part 2, I’m be explaining how the ambiguity and uncertainties of medicine can make it very difficult to decide whether there was negligence–even if you have all of the information.
Oftentimes, it is clear that the process that the hospital used needs to be changed. But it is not as clear who, if anyone, was negligent and more importantly, what actually caused the injury
Let’s say the patient died. Was it because of something someone did (or didn’t do), or would he have died anyway for a separate reason. (There is no malpracice unless there is injury).
Safe harbor for docs who follow best practice guidelines sounds good.
But in fact, following such guidelines is only appropriate in, say, 90% of cases. There are many individual cases when doctors should deviate.
Do we want to encourage docs to Always follow the guidelines (so as to cover their ass) even when they know that in this particular case, it would not be in the best interest of the patient because she is a diabetic, or whatever?
(Let’s say that the fact that she is a diabletic is critical in deciding whether or not to do an emergency C-section. . . )
Medicine is so complicated, and will always involve judgment calls, even about following guidelines.
What I think we need to do is make full disclosure to patient and family of what happened, and insofar as it seems clear that there was a problem at least in the process (there was no “time out” during surgery) compensate them as fairlly as possible — probably through aribtration.
Then change the process–and insist that everyone follow the rules. In wrong-site surgery caeses, research show that there was no “time out” 70% of the time. Rather than suing the surgeon, I would rather see the hospital simply end his privileges to practice there– and make sure that the reason he lost his privileges is public knowledge (i.e. that the informatoin is accessible to other hospitals and patients.)
Then the hospital’s insurers should compensate the patient/family.
What is so costly is all of the stonewalling, and concealing of information.
Even with full disclosure, in many cases there will be ambiguities. This is why we should focus on: “apology, compensation and changing the system” so that it is less likely to happen in the future.
Instead, today the emphasis is on “blame, shame, and denial.”
Joe Says–
See my reply to Barry about the many motives a doctor has and his cardiologists’ reply on
June 23 , 12:40.
Maggie –
I actually agree with most of your take on the wrong site surgery cases. If I were a hospital CEO in a position to set policy on how to handle these cases, I would be inclined to disclose what happened and offer compensation especially if there were an arbitration process and a rough schedule of damage awards – so much for loss of a leg or arm, etc. In addition, I would insist on a root cause analysis to determine what happened and what process changes could be implemented to minimize the chance of a recurrence. If the problem were that the surgeon didn’t call for the time out but he was an otherwise fine doctor and this was his first mistake, I would probably give him another chance but make it clear that if it happens again he’s not only out but other hospitals and patients will know why.
Regarding safe harbor protection from lawsuits if evidence based guidelines are followed, if that can eliminate 80% or 90% of failure to diagnose suits, that’s good enough for me. For those cases where the patient’s circumstances call for deviation from guidelines, then the issue is was an appropriate standard of care followed or wasn’t it? If it was, there should be no liability even if the outcome was unfortunate.
Finally, health courts probably will not improve predictability for doctors but they should improve objectivity and consistency both within and across jurisdictions and over time regardless of how articulate the plaintiff’s lawyer is or how well the plaintiff fits into the culture and makeup of the particular community where the case is being tried.
Barry–
I’m glad we agree that on wrong-site surgeries.I was shocked to find out that we haven’t made any progress in this area over the last decade. We know how to avoid these tragedies.
That’s why I wouldn’ cut slack for surgeon who refused to follow “Time out” rules once– unless the circustances were unusual. (For example: Emergency surgery, time is of the essence.)
Very, very few surgeons perform more than one wrong-site surgery. This is not an area where a few negligent doctors cause the problems. This is a category where a great many “otherwise fine” doctors who truly belive that they don’t need to follow “Mickey-Mouse” rules are responsible for injuring patients.
So, unless hospitals begin enforcing the rules, patients will be exposed to horrible and totally unnecessary mistakes.
I also beieve that if hospital administrators make it very clear that any physician who ignores patient-safety rules will lose privileges–and that nurses, residents, and anyone else who witnesses a doctor ignoring the rules is expected to speak up (and will receive full backing from the administration) I think only a small number of physicians would be stubborn enough to refuse to follow time-out rules, use of checklists etc.
On safe harbor: As you know, I’m a big fan of evidence-based standards for best practice.
But, as I suggested in my reply, there are times when the patient would be much better off if the doctor deviated.
We don’t want to make rules that encourage a doctor to protect his ass rather than doing what he knows, intuitively , would be best for the patient. (Intuitive knowledge covers many of instances where doctors should deviate from guidleines.)
Ultimately, the goal of health care is to care for and protect patients. Period.
Healthcare is not a business, like most other businesses, where the goal is to make money, avoid financial exposure to lawsuits, etc.
The goal is to make money to pay the people who work there. This isn’t charity work. No money=no healthcare. The only way I would put the patient before me is if they signed off on their right to sue.
Peter: what state and city do you practice in?
I want to be sure I never seek care from you.
Maggie: Great article! I quoted you in a blog post I made in my local paper regarding Gov. Bev Perdue’s veto today of a malpractice “reform” bill that would have capped malpractice insurance rates 🙂
Good news for North Carolina is, the veto is unlikely to be overridden. The votes aren’t there.
Two possible upside effects of the rapidly increasing trend toward doctors working on a salaried basis either for a hospital or a large multi-specialty group practice that don’t get much publicity are (1) that it should be easier to enforce standards and protocols, including the use of time outs and checklists in the OR, as a condition of employment and (2) doctors would be subject to less personal financial risk from malpractice suits than if they were practicing independently which should reduce the perceived need to practice defensive medicine. As a salaried doctor at a hospital, the institution will pay the malpractice insurance and assume the financial risk from malpractice suits. Presumably, salaried docs should be more willing to do things the way the hospital leadership wants them done if they value their job.
If I followed youre reference correctly Maggie, you are referring to your comment ending with ‘But it’s easier just to say “The lawyers make me do it.”‘
I have a lot of respect for the docs I know and I know them pretty well. When they tell me that the fear of liability is a real motive, I believe them.
Why is it that regulators and administrators seem to get a pass on following their self-interest and doctors do not get the same pass?
We need to be consistent in how we see people.
Either people are primarily self interest motivated or they aren’t. I don’t see any major difference that would make docs more self interest following than anyone else.
Do you?
Joe:
Regulators do not do their jobs out of self interest. While I’m sure you’ll sputter and point out some examples, such are the exception not the rule.
Administrators are accountable to the Board of Trustees and their own chain of command. While self interest certainly plays a role, as in all corporate jobs, they are not the ones actually delivering patient care. They simply manage the environment in which it is provided.
Doctors, otoh, are generally self employed and charge fee for service. Self interest can play a large role in their decision making processes, as Peter so inelegantly demonstrated. Fortunately, most don’t do that and balance their own needs with the needs of their patients, which is why so many doctors struggle.
Basically, you are trying to compare apples to oranges.
Joe said, “When they tell me that the fear of liability is a real motive, I believe them.”
Yes, but is that fear REASONABLE? The evidence clearly shows it is not, which just goes to show doctors are just a vulnerable to rumor and propaganda as anyone else.
Doctors who allow fear of litigation to overwhelm them should know better: they are scientific professionals and should examine the research being published in their own journals on this subject instead of buying into political fear mongering.
Finally: I know a great many doctors who have little fear of litigation and who have never been sued. That the doctors you know seem to all be quaking in their boots does not mean that applies to all physicians. What you are presenting is called anecdotal evidence, btw (as is my own example at the beginning of this paragraph). The evidence supports my anecdotes, however.
Panacea knowledge of what state i work in would not matter as i do not see patients directly. Yours and others cases are assigned to me at random. You would have no choice in the matter.
The revolving door between government and industry is my best example that regulators do have self interest at play.
I absolutely support the Obama administration in its efforts to limit the revolving door. If it wasnt a problem, why would they want to get rid of it?
I wish their example was being followed throughout every level of government.
Peter: you did get my point, did you not?
Joe: granted, there have been some egregious problems–I conceded that in my original post. But most federal regulators are career civil service employees who are doing the best job they can.
Panacea–I believe I got your point. I would have no choice in that I would have to treat you as you would have no choice that I am treating you. It doesn’t matter how I look at healthcare issues nor how you do.
No, Peter. I don’t think you get my point.
I can walk with my feet at any time. Unless you are an ER doc, EMTALA generally doesn’t apply.
The point is . . . I think your self before patient attitude is pretty despicable, and if I knew who you were or had a way to identify docs like you I would vote with my feet and seek care elsewhere.
Panacea
Asking where someone works is pretty over the top. As in every message board Internet tough guys abound. The physicians’ fear of malpractice, even though statistics may make it seem irrational, is equally matched by the attorneys’ fallacious trust in the current system that doesn’t statistically support them as well. Unless you mean financially, then it does very well. Errors have not decreased as a result of the tort system, patients that actually get injured are not compensated and if they do win a verdict they receive less than half of the settlement. Maggie’s article argues statistically a physician’s fear may be unfounded, but so to is faith in the current system, because that isn’t supported by the evidence either.
Maggie-
As far as the Hippocratic oath is concerned, yes we do put patient’s interests above our own, but that only applies to an active patient whether they are in the ER while on call or an established patient in the office. It is not an absolute statement as well. If I was physically assaulted by a patient in the office, I could then place my own interests above the patient’s. The same holds true with inappropriate language to staff, firing a patient for missed appointments, a new non-ER patient that has insurance that I do not participate in, etc. There is also nothing about a duty to take call. You can’t place a duty on a physician to put a patients interests above their own if no real or implied (call) relationship with that patient has ever occurred. If there was such a duty specifically for call, there would be no ER specialty or numerous other outpatient specialties.
“But most federal regulators are career civil service employees who are doing the best job they can.” — I agree and so are doctors doing the best job they can. Nurses and others too!
On average I’d think most docs (and nurses) are putting in more hours than a government employee, having much higher stress levels, much more educational requirements, and likely score better on most forms of testing. I would think then that they would warrant higher pay for their skills, especially when we look at the criticality of their function. Certainly VA docs are paid more than VA non-MDs and I dont think many dispute that salary structure.
That being said, I think that self interest works the same in both of these populations. I dont ascribe more altruism to docs or regulators in general, they are all people.
My point is that systems that depend on people who can sacrifice their self interest simply will not work well.
The legal system is one that can easily go out of control since it is self-regulated. Do you know many lawyers actually afraid of being sued for malpractice?
Docs are rightly afraid of lawsuits. Businesses are righly afraid of lawsuits, so much so that they put obvious warning labels on things. Pharma spends enormous amounts to mitigate exposure. Many non-profit hospitals have large legal expenses and risk management to minimize exposure.
I’m not saying that large operations in business, pharma and healthcare providers are altruistic, they are not.
However, would all these organizations spend so much in response to this fear if it weren’t real?
Would the docs I know tell me it is such a fear that it contributes to overtreatment if it didn’t?
Saying that fear of lawsuits is unfounded is at odds with almost everything I see in the real world.
Panacea,
Your point is not lost on me. I am a physician behind the scene. You and I will never meet. You are a name on case and I am a name on a report. You are sent to me by other doctors and even they don’t know who I am.
Joe Says-
As they say, everyone hs a right to his own opinion, but not to his own facts.
The numbers are very clear: relatively few doctors account for msot malpractice suits. And the numbers of malpractice claims brought each year has been falling.
Based on the facts, the fear of being sued is overblown.
(People also are afraid of being killed in a plane crash. The numbers show that they are much, much more likely to be killed by a medical error in a hospital.)
Because we are afraid of something does not mean that there is a good basis for our fears.
“Based on the facts, the fear of being sued is overblown. “
“Because we are afraid of something does not mean that there is a good basis for our fears.”
Maggie –
I think what you’re missing from the doctor’s perspective are the severe adverse consequences if he is sued. Even if malpractice insurance covers any potential financial payout, the stress, the time required for depositions and possible testimony in court, the long time it takes for the dispute to reach a conclusion and the perceived hit to his reputation just for being named in a suit add up in his mind to something that needs to be avoided at all costs even if the statistical probability of actually being sued is low. To do that, he practices defensive medicine.
By contrast, if my wife wants me to try a new restaurant that recently opened in town but I’m afraid that I won’t like the food or I won’t get reasonable value for my money, I’ll try it anyway because even if my fear is realized, I just won’t go back and it didn’t cost much. There’s a huge difference. Consequences matter, not just probabilities.
Jenga: you, like Peter, have missed my point. I wasn’t really expecting an answer. It was a rhetorical question.
I’m not saying that physicians should not have self interest. Nor should anyone who does any kind of a job, even in other professions devoted to public service.
Banks don’t understand, “But think of my patients,” when the mortgage is due. Bills have to be paid.
But Peter made it pretty clear he puts his self interest BEFORE the patient, which makes it pretty clear to me that he’s in the profession to make a buck and not to make people healthy. That’s what I find distasteful.
I’m starting to see that attitude filter into nursing. My profession, like medicine, is becoming an industry.
This is why I don’t work in the ER anymore. I couldn’t stand the assembly line approach to patient care, and administration was not interested in suggestions to improve the workplace to improve both worker and patient satisfaction.
“The numbers are very clear: relatively few doctors account for msot malpractice suits. And the numbers of malpractice claims brought each year has been falling.”
But aren’t you making the point then that the liability-reducing treatment patterns are defending most of them from malpractice better and better it seems every year?
I know in hospital backrooms exactly how afraid they are of lawsuits and how their is a constantly evolving measure and counter-measure industry.
Again, if it weren’t a problem, would there be so much time and effort spent on Risk Management?? I have seen it first hand.
Maybe the facts you are relying on need some context to be understood or maybe the 50,000 foot view provides too little detail.
I guess we just disagree, and that’s OK.
Maggie,
Your post is well thought out, but you miss several of the issues that drive the practice of defensive medicine.
First and foremost is fear. Fear of being dragged through a lawsuit for 4.5 years (the average duration of a lawsuit from event through settlement). Fear of being bankrupted by making the smallest mistake with any patient at any time. Fear of having good care twisted by unscrupulous attorneys and unscrupulous experts. The American Association for Justice asserts that lawsuits are necessary to improve the quality of health care. As if we can sue our way to better health care.
Even though the chances of being successfully sued are small, they aren’t negligible. Saying that doctors shouldn’t be afraid of lawsuits is like saying that people shouldn’t be afraid of car accidents because they don’t happen very often and, on a per-mile basis, rarely kill people. Why wear seat belts? Why worry about speeding? Nothing bad is likely to happen, right? Why purchase homeowners insurance since having devastating damage to a house is sooooo unlikely?
Unless you’ve been at the receiving end of a lawsuit where all of your life’s possessions may depend on whether a jury believes your expert more than the other side’s expert, you have no basis to judge the inappropriateness of a physician’s malpractice fears.
I also dispute your statement that indigent patients are less likely to sue, and your interview with one physician who says that indigent patients are “used to getting beat down” doesn’t make it fact. If anything I have witnessed first hand indigent patients who have told me they “hope something bad happens to my baby so I can sue you” and who threaten that if their grandma falls at home and gets hurt after I discharge her, they will “have my house.” If you asked the right questions, you might see that another plausible explanation that many indigent patients don’t file lawsuits is because they don’t have sufficient damages to make a malpractice case worthwhile for an attorney. Perhaps it isn’t that the indigent patients don’t want to sue, perhaps it is that the attorneys won’t file the cases on their behalf because there aren’t enough damages.
This is all just a stream of consciousness without references, but I can provide them when there is more time if you want to see some studies that counter the ones you cited.
I’ve done point-counterpoint questions with others about medical malpractice and defensive medicine on my blog. If you’re interested in another point-counterpoint on the topic, I’d be happy to debate further.
White Coat-
You offer no facts, just opionions.
Please cite studies showing that poor patients are more likely to sue
(In the posts, I cite two studies: a 2009 article published on ACP Internist , a blog sponsored by the American College of Physicians, notes that while “Many doctors think it is ‘poor patients on welfare’” who sue, “evidence shows that low income patients on Medicaid are actually less likely to sue than others.” Another study, published in JAMA looked at lawsuits at 51 hospitals in New York State: “Poor and uninsured patients are significantly less likely to sue for malpractice, even after controlling for the presence of medical injury.
You also talk about doctors being “bankrupted” by malpratice suits. In reality, the likelihood of being wiped out financially by a lawsuit are very slim, unless you don’t have malpractice insurance. Only 3 percent of suits lead to awards of
$1 million or more. Insurance usually covers $1 million. (See the Harvard study I cite in the post. As noted, because of its size and because physicians were reviewing cases in their own specialties with full access to info, it is considered the gold standard for reserach on malpractice suits.
Finally, very few doctors account for the majority of malpractice payments: from 1991 to 2005, just 5.9 percent of doctors were responsible for 57.8 percent of all malpractice payments. Each of these doctors made at least two payments. Only 1.1 percent of doctors, having four or more malpractice payments, were responsible for 20.2 percent of all payments.http://www.citizen.org/documents/NPDB%20Report_Final.pdf
The AMA reports that the average doctor has just a 42% chance of being sued “at some point during his career.” http://boards.medscape.com/forums?128@@.2a02d9ef
Joe SAys-
Only 28 states have
tort reform laws, and many are fairly recent. Meanwhile, the number of suits and size of awareds have been declining for a couple of decades.
Moreover, there is little evidence that tort reform causes fewer lawsuits in states that have passed legislation. The probabilty of being sued is tied to the local culture. In a state with tort reform, a doctors odds of being sued (and the cost of malpractice insurance) will be much much higher in one part of state than in another–
You’ll find all of this in part 2, with evidence.
Hi Maggie, Thank you for the information on tort reform although that wasn’t a topic I brought up.
I was talking about the cost of defensive medicine and other corporate costs being driven by a well founded fear of liability. I think that is a pretty sound fact based upon the amount of effort and cost that goes into risk management and the resulting success that risk management has had in reducing claims.
Tort reform laws, I agree with you that they are probably ineffective. I have little faith that more laws and legalese can correct a problem in the legal system.
So while we disagree that defensive medicine largely results from defending against potential liability, we do agree that tort reform laws are generally ineffective.
Oddly, if there is no real risk and no real amount of overtreatment due to a rational fear of liability, who coined the term “defensive medicine” and why is it so well known?
Joe Says–
Again, you will find your questions answered in part 2 of the post. (Sorry it’s taking me so long to write it– much research, many facts.)
But let me offer just one factthich illustrates how fears of suits are exaggerated.
According to the AMA: Over the course of a career, just 42% of doctors will ever be sued, even once.
In other words, the majority of docs will never face a claim.
Meanhwhile, a very small group of doctors are sued 5, 6, 10 times.
This is what creates the impression that malpractice suits are a pervasive threat.
Who is doing the fear-mongering? The American Enterprise Institute (AEI) , a conservative think tank, is honest enough to acknowledge that this is all about politics and ideology. Kudos to AEI!
Again, I explain in part 2. .
I’m part of the 58%, yet I write a check for nearly 50,000 to my malpractice carrier every single year. That would generate fear for any physician. The fear of premiums going up, of being uninsurable. The thought that one bad moment could take everything away professionally and financially. No other profession has that. You can say statistically it’s unlikely. It’s not zero, though. Which is the bottom-line. With every single patient encounter. It’s not zero. Which easily explains the adversarial culture, cause again it’s not zero. We test thousands for Cancer every year with less favorable statistics. If anyone doubts how much our society is motivated by fear look at how we screen for cancer.
Concerning limits on malpractice actions by injured patients, look at the state of the system. Fraud is a major issue, and malpractice-medical errors are one of the largest cause of death (IOM report). One of the only defenses against such dangers is to sue for malpractice to try and get justice and keep the system somewhat on track. If you do nothing about the fraud and medical errors while limiting patients ability to fight back, well patients would have to be idiots going to such a system.
Advertise all this data to patients/the public when the malpractice caps are passed without corresponding system improvements, and you will get less access and cost pressures on the system if people have any logical abilities, IMO.
Maggie —
I think a 42% chance of being sued at some point during a career is significant. I’m pretty sure that the comparable number for an NP, physical therapist, lawyer, management consultant or just about anyone else who works directly with clients is far lower. Doctors’ fear of being sued is legitimate and the practice of defensive medicine is their best available strategy to minimize litigation risk. That said, the medical profession could do a better job of weeding out the small number of doctors who account for a disproportionate share of successful malpractice payouts. Even there, though, if the concentration of payouts is in certain specialties like orthopedic surgery, neurosurgery and OBGYN, then the problem is outcome risk inherent in the specialty and not physician incompetence.
If I were a doctor, I would feel the same way most of them do regarding the perceived need to practice defensively given the realties of our often unpredictable and capricious litigation system. This is especially true in certain jurisdictions that are known to be especially plaintiff friendly. If I had robust safe harbor protection from lawsuits if I followed evidence based guidelines where they exist and if specially trained judges decided these cases instead of juries, I would feel much less need to practice defensively.
The sad thing is that defensive medicine is responsible for 20-25% of all health spending , yet the politicians think it is only 1%. A recent Orthopedic article presented in philadelphia showed a 30% cost of this . Docs order tests and procedures to avoid getting sued or having an answer if they are sued. This doesn’t work of course. Setting up a system of health courts and experts hired by the court would get us not to order so much.
I wrote a paper that showed defensive medicine was 20-25% of ALL health spending, with end of life care, c section rates, workups for microhematuria and admissions to hospitals being the leading edge of it. The er docs in my hospital say that 70% of their ct scans are defensive at least in part.
Expert witnesses for the plaintiffs exagerate, they get paid, they get more work if they do a good job.
Getting docs not to be liable for 1 million dollar lawsuits would be the only way to get us not to be defensive , especially in high risk specialties and geographic areas.
Any comments?
Has any consideration ever been given to separating passive malpractice (failure to diagnose) from active procedural malpractice where patients are actually injured at the hands of a provider?? I would think these 2 could be separated and handled differently with better system results. Improperly performed procedures on patients should not be sheltered by artificial limits, while shelter from failure to diagnose suits could be better provided by evidenced based following shelters maybe with limits or immunity if the evidenced-based guidance is clearly followed.
Sidney, Barry, Jenga,–
Sidney– I’m afraid you’re mistaken. See part 2.
Also, assertions without evidence are not very persuasive.That you wrote a paper saying X does not make it true.
Barry–
Lawyers and management consultants are not involved in an industry that kills people.This is why they are not as likely to be sued.
Hospitals kill people. Our money-driven health care system does not pay sufficient attention to patient safety.
Some hospitals have shown that it is possibe to greatly reduce errors. But
this requires leadership and collaboration– nurses and doctors working together. Nurses need to be able to speak up when they see something going wrong. The administration has to back them up.
Doctors have to be told that they must use check-lists. If they won’t–or if they are paying only lip service to checklists, they should lose their privileges.
Some years ago, anesthesiologists were always being sued. People dreaded surgery because of the dangers of “going under” and not waking up. Many people advised checkig out who the anethesiologist would be before undergoing surgery– don’t worry about the surgeon, they said, the anesthesiologist is the person you need to worry about.
Anesthesiologists got tired of being sued. So they organized and put together an Excellent patient safety movement.
Errors and deaths declined. And so did the lawsuits.
If orthopedists would take “wrong site surgery” seriouslly, they, too, could reducee suits.
The association representing orthopods urges them to “sign the site” before surgery, but the program is voluntary, and many orthopods refusee to do it. They, too, should lose privileges.
(As I mentioned, in this country surgeons perform 40 “wrong site” surgeries a week– either they operate on the wrong body part or the wrong patient.
This is unacceptable.)
Ob-gyns are in a different situation. When a child is injured during delivery, the costs of medical care for that child for the rest of his life are enormous.
And the grief that parents feel when a new-born is injured or dies is immeasurable.
Some people suggest a separate fund to address these ob-gyn cases; I’ll write about this in part 2.
But the first, and best defense against malpractice suits is to reduce malpractice. (i.e. medical errors.)
We know it can be done.
As you say, state boards must get much tougher in
ferreting out bad doctors. There is a small cadre out there who have been sued 6, 7, 8, 9 10 times–and they are still practicing.
In a few cases, they may simply be taking very dangerous cases. But in many cases, something is wrong. (Even if they are taking dangerous caases, they question is— are they too aggressive? )
The other problem is systemic. Too many hospitals are using systems that don’t workto protect patients. Too many opportunities for error.
Our best hospitals have shown that that doesn’t have to happen–if hospitals put patient safety first.
Jenga–
The fact that we are irrational in our fear of cancer doesn’t justify irrational fear in another area.
Though I would agree– this is a very fearful society.
In some specialities you are far more likely to be sued. I can sympathize with Ob-gyn’s being nervous . . . But in most specialities, a doctor just isn’t that vulnerable to law suits.
NG–
A good point.
On the face of it,separating passive malpractice (failure to diagnose) from “active procedural malpractice where patients are actually injured at the hands of a provider” makes sense.
My only concern would be that poor patients who are on Medicaid or are uninsured may get less attention from doctors who are diagnosing them. (We have much evidence on disparities in terms of the quality of care when comparing white and minority patients, and research I have read suggests that this is equally true when you compare poor white patients to middle-class white patients.)
The good news is that reform legislation raises fees for doctors providing preventive care to Medicaid patients to the levels they receive caring for Medicare patients (roughly 25% more).
This should help. But specialists still will be paid much less for Medicaid patients, which is likely to mean that they will spend less time diagnosing them . .
As long as we pay health care providers less to care for the poor, they won’t have the time to
do a good job.
This isn’t to say that we should sue these docs.
Malpractice reform needs to be tied to health care reform. Malpractice law should focus on providing better care and safer care for all patients.
Penalizing doctors who miss the diagnosis is part of the “shame & blame” game.
I think our malpractrice system should move beyond that.
Without questrion , the docs who are sued 7 or 8 times should be closely investigated, and in most cases, shamed, blamed and lose their licenses.
But the dostor who is sued for one mis-diagnosis needs to be in a system that encourages him to disclose exactly how & why this happened–without penalty–so that in the future he and his peers can do a better job.
At the same time, the patient needs fair compensation from the malpractice insurer. (Though we don’t necessarily have to lable this misdiagnosis “malpractice.” Unless there are clear signs of neglicence, I would call it a “medical mistake.”
Sidney:
“The sad thing is that defensive medicine is responsible for 20-25% of all health spending , yet the politicians think it is only 1%. A recent Orthopedic article presented in philadelphia showed a 30% cost of this . Docs order tests and procedures to avoid getting sued or having an answer if they are sued. This doesn’t work of course. Setting up a system of health courts and experts hired by the court would get us not to order so much.”
I could begin to believe this were true if the tests were conducted at cost rather than with a markup. It is still a fee for services environment and those very same tests conducted for so-called defensive purposes also garner a profit from the patient and the insurance company. I would suggest that rather than defensive purposes, doctors order tests to pay for capital and fixed costs in the clinic and also the hospital they are associated with today. A double charge by the office and then the hospital for the same EKG machine (ask U of M why). The really sad thing is you probably do not know what the fees are that are charged for a test if a patient (without healthcare insurance or the Walmart brand) were to ask you. I doubt if your office staff would know beyond a class A or Class B visit. If you had pneumonia, you might wait days for the hospital to tell you the fees.
No Sidney, it is still a fee for services environment and you, the clinic, and the hospital rack the $dollars when you run the tests. As mercenary as it may sound, this is the reality of it and I am still not addressing specialty practices. The profit motive is still very much alive in the tests.
As far as malpractice suits, I can discuss such with you and also why insurance rates are abnormal (has little to do with you or us).
Regards . . .
While the doctors can speak to this far better than I can, I think the failure to diagnose cases, while a minority of malpractice suits, drive a disproportionate percentage of defensive medicine. Due to the realities of primary care reimbursement (generally inadequate), doctors don’t have nearly as much time to take histories and talk to patients as they might like. Defensive medicine often takes the form of excessive testing, especially expensive imaging. If evidence based guidelines wouldn’t call for such testing, doctors should be protected from lawsuits (safe harbor) even if the patient turns out to be the rare individual that actually had a serious disease or condition that went undiagnosed.
In the case of the procedural errors, my guess is that a lot of these relate to surgeries and childbirth. The latter probably needs to be dealt with separately. Surgeons, though, often have a reputation and an image of macho, swaggering, ultra confident and often arrogant fighter pilots. They don’t take kindly to being questioned, second guessed or told what to do. They’re used to being in charge. It’s a cultural problem, in my opinion. Some of that will change gradually as more women become surgeons. Also, as more surgeons become salaried employees of hospital systems instead of independent contractors with practice privileges, hospital management should have more leverage to enforce sensible practice standards including an expectation of collaboration with other team members.
Finally, when the anesthesiologists got together to tackle their malpractice issue several decades ago, one of the key things they got done was to standardize how operating equipment worked such as ensuring that all brands required valves to be moved in the same direction to turn them on or off. It wasn’t rocket science but it was effective. It’s the equivalent of timeouts and checklists for surgeons. That’s not rocket science either but it will require some cultural adjustment on their part before they are more uniformly and widely embraced.
Barry:
The data does not support your hypothesis. The mistakes are plain and out right errors with no retribution on the part of the judging entities such as the AMA or hospitals. Doctors who make sucessive mistakes are allowed to practice regardless.
Cure thy self before you cure your patients. Many of these issues in malpractice are the result od silly mistakes which are very preventable.
run 75411–
First, thank you for your comment–provocative an thought-provoking . .
But I’m afraid that in any capitalist country, tests, procedures, drugs etc. are going to include a large “run-up”.
Capitalism is based on the notion that anyone providing a service or a product needs to make a profit- and that if we want them to do a good job, the profit should be pretty high.
Capitalists belive that people are motivated, not by the satisfaction of doing a job well, or by the pleasure we might take in helping people, but by making more money.
As far as I can tell, most Americans agree with this theory. If we had a referendum on capitalists’ principles, I’m quite sure that capitalism would win.
So there is no point to aruging these issues. This is the system that most people want. And, since this is a democracy, people get the system they want (even if they don’t entirely understand it.)
Barry–
Doctors have many reasons to over-test.
This is what they have been trained to do.
Many think “what harm can it do?” ignoring the fact that even a test carries some risks (false postiive)
Many feel that the high ost of health care in the U.S. is not their problem. they should just be as thorough as they can be with each patient.
Finally, we know that the profit motive drives some testing. We have empirical data showing that when doctors have testing equipment in their offices,and profit from the testing, they order twice as many tests.
When Medicare reduced payments for certain tests, the amount of testing in those areas leveled off.
Some hosptials encourage ERS to do tests becausse the hospital needs the revenues.
It’s impossible to untangle the many motives that drive over-testing, and over-treating but we know that fear of a malpractice suit is just one of them.
About 2 months ago, The American Enterprise Institute released a working paper which points out that doctors claim that they overetreat beccause they fear lawsuits even if they practice in a country where there is very little litigation, and in a specialty that rarely attracts suits.
Doctors in that lucky situation claim that they have to practicce defensive medicine just as often and just as loudly as doctors in vulnerable specialties working in very litigious counties.
In other words, there is no rational connection between the doctors claims and reality. At this point, many doctors are simply paranoid about this, and thus overtreatment is way out of porportino to any real risk of begin sued.
This American Enterprsie paper also expains how calls for tort reform are driven by ideoogoy which has leess to do with protecting docstors and hospitals and more to do with protecting businesses against all types of negligence suits:
“Conservatives use malpractice reform to argue for general tort reform– that is their real conccern– to protect businesses, and their profits
. As the author of the paper write: “medical malpractice had become the poster child for and against
general tort reform. Democrat officeholders and candidates focused on the plight of those who
are negligently injured (which positioned them to receive campaign contributions from many
trial lawyers, including those who usually sue large corporations). Their Republican counterparts
focused on how personal-injury lawsuits create risks and impose costs (which positioned them to
receive campaign contributions from manufacturers, insurance companies, and those with
general business interests).”
I”m writing about this AEI paper in part 2 of the post. It’s very, very good.
run 75441–
Yes, doctors who are sued repeatedly–and found guilty repeatedly–are allowed to continue to practice. State boards just aren’t doing hwat they shoudl be doing . . . and these docs account for the majority of malpractice payouts.
If they were weeded out, and if hospital “systems” were improved, stressing collaboration and putting patient safety first, patients would be much, much safer.
Maggie –
I agree that there are numerous factors that drive overtreatment and we cannot accurately isolate the extent to which defensive medicine is a contributing factor. However, we will never know what impact tort reform as I and many others have suggested it (safe harbor for following evidence based guidelines plus health courts instead of juries to resolve disputes) can have until we try it. In the extreme case, if it proved to have no effect on reducing healthcare costs, we could always revert to the current system.
If you remember, back in the early 1990’s, there were lots of class action lawsuits brought against publicly owned companies when their stocks declined sharply because of an unexpected downturn in their business. These came to be known as “strike suits” and were basically brought to enrich class action lawyers. There was a very low barrier to file the suits and many were frivolous but companies usually settled to avoid the high cost of discovery and trial. Investors usually received a relative pittance from most settlements. In 1995, the Securities Litigation Reform Act passed over President Clinton’s veto if I remember correctly. It provided safe harbor protection from lawsuits if the stock declined sharply as long as companies warned investors on earnings conference calls and at the start of presentations at conferences that their comments will include forward looking statements that involve risks and uncertainties. After the legislation passed, the number of such suits declined sharply.
I think the same thing could happen with medical tort reform that included safe harbor protection for following evidence based guidelines where they exist. As thought leaders in each medical specialty embrace the reform by practicing more conservatively, other doctors in the region will likely follow suit. Moreover, as we move away from the fee for service payment model in favor of capitation or global payments and more doctors become salaried, the economic incentives that currently favor doing more rather than less should dissipate as well.
I’m glad you wrote about this and it was interesting to read all the comments, especially those from doctors. I look forward to reading Part 2.
Dynamic discussion. Can’t wait to see part 2.
Maggie said, “Some hosptials encourage ERS to do tests becausse the hospital needs the revenues.”
Maggie, I’d venture to say that MOST hospitals encourage ERs to do tests for revenue. Tests and procedures.
When I worked in the ER, I was trained to fill out the coding sheets that were used for billing. We had to assign a Level based on the complaint: Level 1 was a trauma code, 2 an ICU type complaint resulting in admission (MI, Stroke, etc), Level 3 a complaint generating a serious work up (chest pain respiratory, GI) Level 4 Minor (minor ortho, lacerations) Level 5 Fast track (what the heck are you doing here anyway?) complaints.
THEN we checked boxes for everything we did: med administration. Vital signs. IV insertion. Dressings. Foley catheter. Nasogastric tube. Ad nauseum.
We were clearly told, “this is how you get paid.” It was emphasized to us to be sure to charge for every thing we could think of, and make sure there was supporting documentation in the chart. We weren’t specifically told to pad the bill . . . but it happened.
The doctors filled out their OWN charge sheets . . . the ones we did were for the hospital charges.
The Myths of this article
First- As an ER doctor, I get paid per hour. I do NOT get paid more for ordering more tests. I order more tests to CYA since most malpractice suits involve Failure to Diagnose. Most people I see have no insurance, have no intention on ever paying and cost is not a factor. Plus no one ever sued you for preforming too many tests.
Only bad doctors get sued- BULL. My wife is a doctor and has been sued twice- for patients she never even saw ! It took her a year and a lot of money to get her name dropped from the suits. Almost all Neurosurgeons and OB/GYN docs who have been practicing more than 20 years have been sued. Does that mean they are all bad doctors ?
Not a day goes by that someone threatens to sue me- often before I even have a chance to say Hello.
On my recent (first) vacation to Europe, I expected many people on our cruise to ask me about how health care system. They didn’t – they perferred to talk about our lawsuit happy culture instead. Two people from Canada told me that their companies will no longer do business with American companies due to litigation worries with their products !
Our legal system is the worst on the planet, not our medical system. And the lawyers are doing their best to protect their lucrative market- otherwise we would have ” Loser pays” like most countries do.
I’m thinking if a Doctor’s thoughts about malpractice are irrational, Why do I write a check for 50 grand every year? So far I’ve spent hundreds of thousands of dollars for nothing. Absolutely nothing. If it is truly is an irrational fear, I think Maggie should back letting physicians go bare and ban hospitals from making such a requirement. Put you money where your mouth is as they say. I’d stop writing a check tomorrow and test the theory if I was allowed to, since it is a completely irrational fear. If you are against that, then I guess the fear may be, well…rational.
“My wife is a doctor and has been sued twice- for patients she never even saw! It took her a year and a lot of money to get her name dropped from the suits.”
This is another big problem. When lawyers file a suit, they will often name everyone even remotely connected with the case including some who never saw the patient and had no responsibility to see the patient but happened to be on duty at the time. They do this to cast as broad a net as possible while doctors named who shouldn’t have been need to spend time, effort, and often money to be removed. I don’t think we have any statistics showing how many doctors were named in suits but later removed before the case proceeded to the next stage.
I think there is probably a broad consensus that the U.S. litigation system generally, not just the medical tort system, is more litigious than anywhere else in the world. When the plaintiff perceives that it’s an insurance company or a large corporation or government entity that will ultimately pay any judgment, there is more inclination to sue than if the award, if any, were to come out of the pocket of an individual or family. A loser pays rule would be helpful, I think. If a suit is brought and lost and the plaintiff can’t afford to pay the legal costs, the lawyer or law firm should be responsible for them, at least up to some reasonable maximum.
Barry, Jenga, Cass, Panacea,
The fact that there is a “wide perception” that U.S. pateitns are litigious means little.
There is also “a wide perception” that African Americans are less intelligent than white people for genetic reasons.
There is a “wide perception” that Obama is not a U.S. citizen.
There is a “wide percpeption” that if morbidly obese people simply ate less, they would lose weight .
None of these things are true. Very often, the conventional wisdom is wrong. Very often it is based on prejudice or self-interest. But once entrenched, it is very diffcult to persuade people that they are wrong.
U.S. patients are not very litigious. To the contrary, they rarely sue even when independent physicians reviewing their cases say that they have been the victims of medical negligence.
When hospitals Self-Report medical negligence, you will find that most of the victims don’t sue–even in egregious cases.
I provide the numbers and cite the studies in part 2. (Whenever you’re tempted to go believe what is “widely perceive,” I’d urge you to Goggle it and see if there are facts to back up the CW. Google (and other search engines) give us an enormous opportunity to easilly correct so many urban myths.
I write about the Secruities Litigation Reform ACt in Bull!– a shameful piece of legislation that promoted corporate fraud.
As Jim Chanos, (the short-seller who cracked the Enron case, and told the world–rather than just keeping it to himself an porifiting on the knowledge) explains that what that “safe harbor act” did was protected companies as long as they made a disclaimer during cofernece calls which basically said: “Now everything I’m about to tell you could be entirely untrue. But if it is, you can’t sue me.” (I’m paraphrasing Jim. Check “Chanos” in the index to the paper-back version of Bull! and you’ll find my discussion of hte ACt. The hardback version of Bull! has a terrible index.)
Finally, I agree, this is an interesting thread! Glad you’re looking forward to part 2. I’m spending a long time writing it becuase I think it’s important.
Jenga
I think that, ideally,hospitals would be held responsible for medical errors made in the hospital– not the individual doctor.
This would cause hospitals to be much quicker to deny privileges to doctors who refused to follow safety protocols, or were in some way impaired.
If a doctor wanted to take the risk of “going bare” regarding suits that might arise as a result of something he did or didn’t do outside the hospital, he could– though this would be a risk–the 42% chance that he would be sued once reduced by the fact that he could only be sued for what he did in the office. In some specialties, I would take the risk.
I also would take a close look at malptractice insurance company profits. They are cyclical, but when they are high, they are very high. Probably malpractice insurance should be a regulated industry . . . though there other, better ideas for reducing hte high administrative costs of trials which drive malpractice premiums so high.Requirements for full disclosure, legal protection for those who disclose, and high penalties for hospitals, doctors, or others who try to conceal the facts would go a long way toward reducing administrative costs of discovery, depositions, expert witnesses and trials.
(Administrative costs, not high malpractice awards, dirve premiums so high. Awards of a million or more are rare. The average award, when the patient dies due to negligence is less than $200,000)
We really shouldn’t need such a huge malpractice insurance industry. And I find it somewhat troubling that the majority of malpractice companies are owned by doctors.
Cass– No one suggested that ER docs are paid when they do more tests.
If you read the post, you would see that I said that
hospitals pressure ER docs to do more tests because the hospital needs the revenues.
See Pancea’s comment right after yours.
A number of ER docs have told me this. Those who refuse to do more tests are not very popular with the hospital. One was let go .. .
Your wife has clearly had very bad luck.
Only 42% of doctos are ever sued; many fewer are sued twice . . .
I Googled several variations on “physician sued” and “never saw the patient” and found only one reference. So it’s haredd to tell how often it happens. When it does, apparently a doctor coudl counter-sue to get her name more quickly extricated from the case, though the odds of being compensated are low.
It would seem clear that we need a law that prevents lawyers from casting such a wide net.
On the other hand, if hospitals woudl simply disclose exactly what happened, and who was involved, doctors who were not involved would not be dragged into this. (It is possible to provide legal protection for those who disclose. Some hospitals have been very successful in doing this–and lowering their malpractice costs.
Panacea–
Thank you–and thanks for sharing an insider’s view of what actually goes on in ERS.
Maggie –
There is a huge difference between the Enron fraud and companies whose stocks declined because sales fell short of expectations, the economy turned down, costs rose more than expected, there was a production snafu, a competitor introduced a better product for a lower price, or any of a number of other legitimate reasons that stocks go down that the 1995 legislation was intended to protect against. Nobody can forecast the future with perfect accuracy. Non-meritorious suits were rampant in this area which is why the legislation passed over trial lawyer opposition and Clinton’s veto. Enron was an extreme case and there is no safe harbor protection from suits for fraud in any case.
Barry–
I was following corporate profits and what corporations said about profits very, very closely in the early 90s, because I was at Barron’s at the time.
Corproations regularly hyped their stocks.
(The stand-out exception to his was Microsoft. They always very wisely underestimated earnings. In many ways, Microsoft was one of the most honest and responsible companies of that era, though of course their competitive practices were ruthless . . . But from a shareholder’s point of view, they were good.)
Thoughout the 1990s, investors were overpaying for stocks. Short-sellers like Jim Chanos did their best to keep the market honest, and were widely reviled for their efforts.
Wall Street helped corporations hype their stocks, and hired detectives to go through the garbage outside Jim’s home, hoping to get somethign on him. They never could. He was very honest.
If Larry Tisch were still around you could ask him about how corporations lied about earnings.
Finally–and this is the most damning thing– insiders were selling stocks even while telling investors that everything was fine. Enron was hardly alone in this. It was standard practice.
In Bull I describe how by 1995, AOL was up 2000 percent since its IPO three years earlier. . . AOL was gaming its books, covering its financial shortfall with perfectlty legal–but misleading–accounting. Everyone on Wall Street knew it”
Financial reporter Alan Sloan did an excellent job of exposing what was going on. Most of hte financial press looked the other way, and investors were happy as long as they were making $$ (short-term)
And then there was Cisco. From 1990 to 1996 it went up 10,000 percent. John Chambers helped kite the stock, used inflated shares to acquire other companies, and as Jim Grant pointed out out, ignored GAAP accounting principles.
People who weren’t there (or don’t remember0 think the bubble was all in tech stocks in the late 1990s. As Jean Marie Eveillard (one of the best money managers of all time) points out in Bull!: “First the bubble came in large-cap growth stocks– companies like Coca Cola and then later, in the late 1990s, in technology, telecom and media.”
Bottom line: throughout the 1990s, companies were reporting what Jim Grant aptly called “fully deluded earnings.”
As you may recall, Grant also tried to warn what was happening at Freddie and Fannie during that time . . .
By 1997 or so, on Wall Street analysts who were praising stocks were getting otu of hte market– putting their personal money into bonds and real estate. I can’t tell you how many confided that they had moved their retirement savings and their children’s savings out of stocks. No one knew when the market would fall, but they knew that it was badly overpriced.
Jenga: that you write a check for 50 grand every year tells me there is something terribly wrong with the malpractice insurance industry, given the statistic Maggie cites, not that the fear of suit is justified.
Maggie is right: perhaps that industry is overdue for scrutiny and regulation.
Cass: you may be a salaried employee, but many ER docs are not. Most of the ERs where I’ve worked were groups that had contracts with the hospital and did profit sharing.
Cass and Barry: OK, let’s talk about the loser pays idea for a minute.
Let’s assume for the sake of argument that I agree that tort reform is needed in this country (actually I do think so, I just have a different idea on what that means).
If the problem is “frivolous” lawsuits, it seems to me a loser pays system would be more efficient at deterring frivolous suits than caps (which do NOT deter suits). But I hardly ever hear anyone advocate that . . . it’s always “cap awards.”
But then I think of Maggies statistics that show 16% of plaintiffs who sue who suffered real harm get NOTHING . . . and now you want them to pay for losing?
That sounds like victimizing the victim twice, in my mind.
BUT . . . if we’re seriously going to talk about tort reform, the conversation must begin by acknowledging that patients do suffer serious harm and deserve compensation and protection from bad doctors. I don’t really hear that from the tort “reformers.” I hear complaints that make the victim out to be the bad guy.
That really bothers me.
Maggie said, “By 1997 or so, on Wall Street analysts who were praising stocks were getting otu of hte market– putting their personal money into bonds and real estate. I can’t tell you how many confided that they had moved their retirement savings and their children’s savings out of stocks. No one knew when the market would fall, but they knew that it was badly overpriced. ”
I laughed when I read this . . . because of the irony I see in it.
My late father was scared to death of the stock market. He thought there was something terribly wrong with it, but he didn’t understand it so he couldn’t ever explain why. He refused to open an IRA or 401k. Instead, he put a huge amount of money in CDs and and US Savings Bonds during that period of time.
After he passed, I was helping my mother straighten out his affairs and saw his balance sheet. He had saved a massive amount of money (about 300K), much of which was in long term bonds paying rates of upwards of 13%.
The recessions of the 2000’s haven’t touched his nest egg.
I smacked my forehead and went “DOH!” when I saw what he’d unintentionally and brilliantly done. .
Meanwhile, I did what everyone else did in the late 90’s and got taken to the cleaners.
.