Myths about Medical Malpractice: Part 2 Crisis or Hoax?

Conservatives call it the “malpractice crisis.” Public Citizen, a liberal non-profit consumer organization based in Washington D.C., calls it “The Great Medical Malpractice Hoax.”

No doubt you have read that ambulance-chasing lawyers have escalated their assault on health care providers, and that as a result, malpractice insurance premiums have been levitating, along with malpractice suits, further hiking the cost of medical care.

Various solutions have been floated, including “caps” on compensation for pain and suffering; “health courts” where expert judges replace juries; immunity for doctors who follow “best practice guidelines;” and “full disclosure” policies which urge doctors and hospitals to move quickly to disclose errors, apologize, and offer compensation.

In the end, the best solutions would make malpractice reform part of heath care reform. Our malpractice system should be redesigned to reduce medical mistakes, fully compensate patients who are injured by human error, reward doctors and hospitals that disclose errors, and penalize those that try to "cover up." When it comes to the cost of malpractice, reform should slash the exorbitant administrative costs built into an adversarial process that moves at a snail’s pace, while subjecting both plaintiffs and defendants to what a recent report from the American Enterprise Institute rightly describes as “inhumane.”

Myth: Limit Awards, and We Can Eliminate Thousands of Frivolous Suits

“Put a lid on how much a jury can pay a patient for pain and suffering,” conservatives say, “and watch the suits begin to disappear.” A bill that would do just that—and much more—is now wending its way through the House. Twenty-eight states already have capped compensation for “non-economic damages” (usually at $250,000) though in eight, a state’s Supreme Court has ruled such limits unconstitutional.)

Best of all, according to those who favor tort reform, limits on damages deter avaricious attorneys who, as everyone knows, take on baseless cases, hoping that one day they’ll look in the mirror and see John Edwards.

As is so often the case, the conventional wisdom is wrong. Attorneys rarely bring a case unless a patient was seriously injured and there is evidence of negligence. The costs of bringing a suit are too high, and the odds of losing too great to do otherwise. (As noted in Part 1 of this post, research reveals that juries tend to favor hospitals and physicians, even when plaintiffs have  what independent physicians describe as “strong evidence.”)

In April, the American Enterprise Institute for Public Policy Research (AEI) released a working paper which pulls no punches as it rejects the conservative wisdom on capping awards. The report is startling:  AEI is a conservative think tank. Nevertheless, the University of Illinois’ David A. Hyman J.D. M.D.  and William M. Sage, J.D. M.D. of the University of Texas at Austin write: While “critics of the tort system argue that it is essentially random, using language like ‘jackpot justice’ and ‘lawsuit lottery’ to describe the manner in which the system allocates payments,” in fact “the medical malpractice system gets to the ‘right’ result most (but certainly not all) of the time. . . Studies using experts to review medical records for evidence of error find that claimants who received substandard care usually obtained compensation, that claimants who received proper care generally did not, and that claimants whose care quality was uncertain wound up in between.” 

As Hyman pointed out in the Vanderbilt Law Review five years ago: “We have empirical studies of the medical malpractice liability system that now constitute a substantial body of research.” They “depict a system that is stable and predictable and that sorts valid from invalid claims reasonably well.”

This  confirms what physician-reviewers at Harvard’s School of Public Health concluded in a 2006 study of malpractice claims that I described in Part 1 of this post. After poring over claims involving approximately 33,000 physicians, 61 acute care hospitals and 428 outpatient facilities in four regions of the U.S, they wrote: “Portraits of a malpractice system that is stricken with frivolous litigation are overblown. . .  Our findings suggest that moves to curb frivolous litigation, if successful, will have a relatively limited effect on the caseload and costs of litigation.”  Because this was such a large study that relied on physicians to investigate claims in their own specialty, it has set a gold standard for malpractice reviews.

Yet, despite abundant evidence to the contrary, conservatives continue to talk about “opportunistic lawyers” and “phony” suits in a debate over medical malpractice that Hyman and Sage point out in their paper for the American Enterprise Institute, “can often seem theological.” Indeed, as they describe it, the battle is rooted in ideology, and argued with a nearly religious fervor: “On one side are those conservatives and doctors who have no doubt that frivolous lawsuits and Democratic politicians beholden to trial lawyers are the reasons American health care is so expensive. On the other side are those liberals who see malpractice reform as another Republican conspiracy to shift attention from the real problem."

As for attorneys who bring baseless suits, Hyman and Age acknowledge that “Such over-claiming” may be  common in the initial stages of a suit, but for understandable reasons: “It is important to note that saying a claim is non-meritorious does not necessarily make it ‘frivolous.’ Information is often difficult to obtain following a medical injury, leaving malpractice lawyers to serve a necessary (albeit inefficient) investigatory function. . .. Focusing on claims that are filed but later dropped or dismissed obscures the larger reality,” they add, “that most injured patients do not file claims even when negligence caused them harm."

The Harvard researchers agree; hospitals and doctors stonewall injured patients: “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.”  Often, when they have more information, plaintiffs  drop the case.

Of course, patients should not have to sue to find out “what happened.” Here, Hyman and Sage suggest that, under health care reform, if " patient safety procedures within provider organizations improve, and the results of post-injury investigations are shared promptly with patients and their families"  there should be less need for the legal system to assume this [fact-finding] role.” This is, of course, a crucial "if."         

        Myth: Caps Are Needed to Rein In “Runaway Juries”

Those who call for caps on damages often claim that we need to chasten lay juries who, heady with a rare moment of power, hand out multi-million-dollar awards. In truth, Robin Hood pay-outs are rare. In 2005, for example, million-dollar verdicts accounted for less than 3 percent of all payments.

Commenting on Health Beat, Anne Polta writes: “High-profile, multimillion-dollar cases tend to grab the public’s attention. From there, it’s a short leap to assuming these types of cases are common. But this is anecdotal at best, and the statistics don’t back this up. Maybe the discussion about tort reform would be less volatile if the emphasis was on fact rather than emotion.”

In its report on “The Great Medical Malpractice Hoax” Public Citizen confirms what Polta says about the stats: “The number of payments for judgments of $1 million or more is tiny — never exceeding one-half of one percent of the annual total number of malpractice payments from 1991 through 2005.  In 2005, the average award for a ‘significant permanent injury’ was just $215,000, while the compensation for a ‘major permanent injury’ was $315,000.” (These are the categories used by the National Practitioner Data Bank, or NPDB.)  In cases where “the patient became a ‘quadriplegic, brain damaged, or in need of lifelong care,’” the median award hit $635,000—and this was the category where compensation was highest. When the patient died as a result of a medical mistake, awards averaged only $195,000.

How could compensation be so low when a medical mistake proves fatal? Typically, in these cases, the patient is over 65, and retired. As a result, courts do not pay for lost earnings. The extra ten years that a grandfather might have lived, playing with his grandchildren, are not deemed nearly as valuable as ten years that he might have spent in the workforce. (A grandchild who believes that her grandfather was “the only person in the world who understood me” might disagree, but in a society that values human beings in terms of how much they earn, she doesn’t have a vote.)          

    Myth: Caps Bring Down the Cost of Malpractice Insurance

Perhaps the strongest argument for tort reform is that limits on awards will reduce malpractice premiums. But even here, the evidence is, at best, spotty. The most recent research reveals wide regional variation in malpractice premiums even within a state that has enacted strict laws limiting payouts. Premiums for malpractice may be 2 or 3 times higher in one part of the state than in another.
“This variation gets chalked up to differences in judges and plaintiffs' attorneys, as well as the relative propensity of local residents to either sue or hand out big jury awards,” explains Robert Lowes in an article published in Medscape in November of 2010. “California is a poster child for tort reform because of its $250,000 cap on non-economic damages in malpractice cases. But one carrier charges obstetrician/gynecologists a base rate of $89,953 if they practice in Los Angeles and Orange counties, but only $30,463 if they practice in the more northerly counties of San Mateo, Santa Clara, Santa Cruz, Fresno, and Monterey, according to Medical Liability Monitor (MLM).

“The same pattern emerges in Texas” he adds. “Granted, statewide, malpractice premiums have decreased on average by 27.6%, but premiums for general surgeons are more than twice as high in Hidalgo County ($92,242) as they are in Potter County ($44,434).”

In their working paper for the American Enterprise Institute Hyman and Sage confirm that “malpractice premiums vary by a physician’s specialty and type of practice and the county [not the state] in which he or she works.”

Lowes concludes: “Even when tort reform does tame malpractice premiums, it does not eliminate wide variations within a state.” He quotes Lawrence Smarr, president of the Physician Insurers Association, a group of doctor-owned or operated companies that insure 60 percent of the nation's physicians. "Tort reform doesn't change [the local] culture.” 

This group would have every reason to support caps. After all these are the companies that shell out the awards. But, to his credit, Smarr refrains from exaggerating the potential benefits of putting a lid on compensation. (It is also worth noting that close to 2/3 of U.S. doctors are paying malpractice premiums to insurers owned by fellow-physicians. Conceivably, doctors should shift their focus from limiting awards for a patient’s pain and suffering to capping these insurers’ profits which, at least in some cases, have reached an all-time high.)

            Myth:  Fear of Malpractice Suits Drives Overtreatment

Extensive research suggests that roughly one-third of our health care dollars are squandered on unnecessary tests and treatments. Many physicians acknowledge that they over treat, but, they say, it is only because they agree with Justice Brandeis: “There are two things to fear in life: death and litigation.” If compensation were capped, some conservatives argue, doctors will no longer feel such pressure to practice “defensive medicine.”

In truth, there are many reasons why a doctor might order an extra test, recommend a more aggressive procedure, or hospitalize a patient who doesn’t really need to be there:

•    The case reminds him of another case that went sour, years ago, and he never did totally understand why. . .
•    The patient is someone he has known for years and likes very much. He just wants to be extra-careful.
•    The patient is someone who he has known for years, and dislikes intensely. But he knows that if he does not give in to her demands for a prescription or a test she will never stop talking. He just wants to get her out of his office.
•      If the patient is at home, he will have to field anxious late-night phone calls from her husband. If she is in the hospital, the nurses will take care of her.

These are just a few of the reasons why U.S. doctors might over treat. We should also recognize that, in this country, medical training reinforces the notion that they should be “thorough” and “do everything possible. The resident who orders that extra test and makes the diagnosis that no one else thought of is praised. Every doctor cherishes those moments when he “catches” something that most physicians would have missed—and perhaps saves a life.

Meanwhile, in medical school, physicians are rarely taught to worry about the cost of health care. They are told to do their best by each patient, one patient at a time, providing every service available, and doing “everything possible.” Many doctors feel that the fact this nation spends so much more on health care than any other developed nation in the world is not their problem. They are not economists. They are not politicians. They are physicians.  Even today, probably the majority of physicians still would say that it’s up to someone else to worry about unnecessary hospitalizations and tests—though doctors are becoming more aware that a needless hospital stay (or even an MRI) exposes a patient to unnecessary risks.

Many physicians believe that their duty is to focus on the individual and her family, not the price society will pay for a treatment, even if the physician knows that it will provide neither comfort nor cure. The cancer patient’s relatives want her in the ICU. Period. No doubt, death would come more gently if she spent her final weeks at home, with palliative care, or in a hospice. But the doctor doesn’t have the time to try to persuade her family that this final incarceration in an ICU is both futile and cruel. (Even if he had the time, he wouldn’t be compensated for that frustrating hour of wrangling with relatives.) Nor is he paid to think about how her stay in the ICU may ultimately contribute to Medicare’s insolvency.

Finally, critics of our health care system suggest that “fee-for-service payment” provides a perverse financial incentive to “do more.” To this, a doctor might reply:  "Do I make money on those extra tests? Sure. But I'm just doing my job. I have a right to be paid for my work. And let me tell you, I don’t want to be sued for missing a diagnosis.”

In the end, no one can untangle the many reasons why a doctor winds up over-treating. Even the physician himself would be hard-pressed to assign a weight to each of a half dozen motives driving his decision.

Some doctors confide that only another physician would understand how complicated these decisions are. So when responding to a layperson’s query about “defensive medicine” it’s easier just to say: “Do I sometimes over-treat? Sure. Maybe 15 percent of the time. I’m afraid of being sued.”

Myth:  Caps on Awards Would Make Health Care More Affordable

The conventional wisdom, at least in some quarters, is that if we put a lid on awards for pain and suffering, plaintiffs’ attorneys wouldn’t be so eager to pursue these claims. Thus, we wouldn’t have to waste billions on malpractice trials and settlements. And because doctors would have less to fear, they would be less likely to over treat. Voila, we could pare billions from the nation’s health care bill.
Begin with the belief that caps would deter the ambulance-chasers. Conservatives make the argument that since plaintiff’s attorney usually work on contingency, (taking 30% or 35% of the award if they win), they will be less likely to take on cases if pay-outs don’t exceed $250,000.  The truth is that trial lawyers already are very wary of taking any but the strongest cases. 

Plaintiff’s attorneys are not chasing business; they are running away from it. Sage and Hyman explain, “malpractice claims are protracted and expensive to litigate, a case yielding less than $150,000 in recoverable damages is often a bad business proposition for a potential plaintiff’s counsel.”  As noted above, even in states where there are no limits on damages, awards are just not that large: Nationwide, in 2005, the average award for a “significant permanent injury” was $215,000. If the patient died as a result of negligence, average compensation was just $185,000.

Thus “plaintiffs’ attorneys screen malpractice cases carefully and reject the overwhelming majority of those who request representation,” report Sage and Hyman, citing empirical evidence showing that trial lawyers themselves are “Holding Back the Floodtides” of suits. 

Conservatives like to hold up Texas as an example of a state where tough tort reform discourages lawsuits. After Texas clamped down on compensation in 2003, the number of malpractice suits filed over the next five years reportedly dropped by some 60 percent. But over that span, fewer than 800 claims were filed, resulting in less than 160 payouts. In other words, in absolute numbers the change was not that great. This is because only a tiny percentage of injured patients seek compensation. At the margin, caps could shave the number of suits by making some cases less attractive for trial lawyers to take on, but limits on damages won’t substantially reduce the total number of cases.

Moreover, as Consumer Reports Health.Org points out, the amount of money that could be saved, even if we cut malpractice claims in half nationwide, is not nearly as large as tort reformers claim: “The direct cost of malpractice insurance  premiums and court verdicts, plus the cost of defensive medicine, together account for less than 2 percent of overall health-care spending, according to a 2009 study by the non-partisan Congressional Budget Office, which came to a similar conclusion when it reviewed the idea during the Bush administration. Tort reform might cut those costs by 0.5 percent, saving roughly $11 billion of a total $2.5 trillion annually—barely making a dent in overall health care costs.”

But wouldn’t health care bills shrink if tort reform persuaded doctors that they don’t need to order those extra tests? There is no evidence that doctors practice more conservative medicine in states such as Texas.  Just as a propensity to sue is grounded in local culture, a tendency to over treat finds its roots in a local medical culture—as Dr. Atul Gawande showed in his now famous New Yorker investigation of two towns in Texas. 

Writing for the American Enterprise Institute, Sage and Hyman point to “a recent RAND study of hospital safety and malpractice claims at the county level in California,” which “found a strong correlation between reduced adverse events and lower malpractice claim rates.” In other words, in places where there are fewer patient injuries, there are fewer malpractice claims. Safer hospitals—that is what makes the difference.

Meanwhile, caps don’t persuade doctors that they can forego defensive medicine. When doctors talk about their fear of lawsuits, they make it clear that what they dread is the psychological ordeal, as well as the possible damage to their reputations. Whether or not awards for pain and suffering are capped at $250,000 or $500,000 is irrelevant. The money will not come out of the physician’s pocket: the insurer pays. Even if there is no payment to the plaintiff, it is the experience of being accused that is harrowing.

Finally, as Hyman and Sage observe in their working paper for the American Enterprise Institute (AEI) the argument that tort reform would reduce how much we, as a nation, spend on health care is “totally wrong.” If we cap damages, they explain, “the resulting reduction in insurance payouts and malpractice premiums is largely a redistributive transfer; Tort damages transfer wealth from health care providers [through insurers] to injured patients. Reducing those awards will transfer wealth in the opposite direction, but does not by itself constitute net ‘savings.’ If reducing awards also reduces injuries, social savings will result, but there is no reason to believe that will happen.”

Again, keep in mind that AEI is a conservative think tank and that Davd A. Hyman is an adjunct scholar at the libertarian Cato Institute. They are not making these arguments in order to advance a liberal agenda. They are saying these thing because they are true.

Myth: “Every Patient is a Potential Plaintiff”

Politicians who peddle fear like to raise the specter of hard-working, dedicated doctors losing not just their reputation, but their homes, and their life savings, because for one moment, their concentration lapsed. After a lifetime of serving patients, they make a single mistake.
Once again, there is virtually no basis in reality for this claim: “In the current system, little direct compensation is available to claimants beyond what is provided by physicians’ liability insurance,” Hyman and Sage report. “Whether because of asset protection schemes, jury discomfort with ‘blood money,’ or high transaction costs of collection, injured patients rarely received compensation from physicians’ personal funds.”

They cite a 2008 analysis using data collected by the Texas Department of Insurance, examining all insured medical malpractice claims against physicians between 1990 and 2003 (before Texas enacted a cap): “Contrary to common claims in policy debates and in the health policy literature,” limits on what an insurance policy will pay out “appear to act as de facto caps on recoveries.” Judges and juries just don’t award more than the physician’s insurance will cover.

Yet even doctors who understand that they won’t be bankrupted by a greedy attorney are inclined to believe that they are in constant danger of being sued.  “From day one of medical school, you are warned to view every patient as a potential plaintiff,” wrote one physician, commenting on Part 1 of this post.

One can only imagine how such paranoia undermines the doctor-patient relationship—and  it is not grounded in reality. Over the course of a career, the AMA reports, only 42% of doctors are ever sued. In her March post Naomi quoted Louise Marie Roth, an associate professor of sociology at the University of Arizona who is studying the relationship between malpractice litigation and obstetric practice: “The actual risk of getting sued is low,” says Roth. “Practitioner’s fears of litigation are exaggerated,” she observes, and “an unfounded fear of malpractice litigation leads to defensive practices that are totally out of proportion to the actual risk.”

The average doctor stands less than a 50 percent chance of being sued just once in his career. And odds are that he will win, even if the plaintiff was seriously injured and can present solid evidence. Granted, just being dragged into litigation is a horrible experience. But the notion that every patient represents a serious financial threat would suggest that most physicians should expect to be sued multiple times over the course of a career. And that just isn’t true.

Only a tiny cadre of physicians inspire more than one suit and wind up making repeated payments.  Public Citizen reports that 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.  Over the same span 2.3 percent of doctors made three or more malpractice payments, and were responsible for 32.8 percent of all pay-outs. Meanwhile, just 1.1 percent of doctors, were responsible for 20.2 percent of all pay-outs, each making four or more payments. Perhaps some of these physicians were working in specialties where they are likely to be sued (neurology, ob-gyn) and were brave enough to take extraordinarily difficult cases. But many are cowboys, who practice extremely aggressive medicine without informing patients about the risks. Others are physicians who are impaired in one way or another, yet continue to practice.

The tragedy is that state medical boards and health care institutions do so little to investigate these doctors. According to Public Citizen’s analysis of NPDB data, disciplinary actions such as license suspension or revocation are shockingly low:

• Only 8.61 percent of doctors who made two or more malpractice payments were disciplined by their state board.
• Only 11.71 percent of doctors who made three or more malpractice payments were disciplined by their state board.
• Only 14.75 percent of doctors who made four or more malpractice payments were disciplined by their state board.
• “Only 33.26 percent of doctors who made 10 or more malpractice payments were disciplined by their state board – meaning that two-thirds of doctors in this group of egregious repeat offenders were not disciplined at all.” Empirical  evidence suggests that many of these physicians enjoy enough wealth, power and clout with local hospitals [because they are “rainmakers”] to evade regulators. Others simply move from one state to another.

This is the true “malpractice crisis.”

Myth: Americans Patients Are Extraordinarily Litigious

Comparing how often patients are harmed to how often patients sue, Hyman and Sage report that,” by one estimate, there are more than 1 million medical injuries, annually, but only eighty-five thousand malpractice claims. They are quick to point out that “Not all of these injuries are the result of medical negligence.” But while we don’t have good nationwide statistics on how often patients are harmed by human error, many states have compared medical injuries to the number of claims.

In a 2006 article published in the Vanderbilt Law Review, Hyman and co-author Charles Silver offer examples: From 1996 through 1999, Florida hospitals “reported 19,885 incidents of medical negligence to a state agency, but patients filed only 3,177 new medical malpractice claims.” Thus “the total number of hospital -reported negligent incidents was 6.3 times the number of state-wide malpractice claims.”
“Because under-reporting of such incidents is common, and the study did not include negligent incidents in the outpatient setting, the actual ratio of negligence to malpractice claims is undoubtedly much higher,” they add.  Another “observational study of patients in a single hospital in Chicago found that only 1.2 percent of patients who experienced a medical error made a claim” A third  study “focused on birth injuries in Florida in 1987 that resulted in death or permanent injury. Of 220 women whose babies suffered serious injuries or died, only twenty-three sought legal advice and none sued.”

Even in cases of wrong-site surgery, patients are exceptionally forgiving.  Consider this stunning statistic: in US. hospitals and clinics surgeons operate on the wrong body part—or the wrong patient—“40 times a week,” Kaiser Health News reported a few days ago, pointing to a statement by the Joint Commission, the Chicago-based group that accredits the nation's hospitals. Investigators at the Commission had analyzed state data. 

Mark Chassin, a former New York state health commissioner and since 2008 president of the Joint Commission, told KHN that he thinks such errors are growing in part because of increased time pressures. Preventing wrong-site surgery also “turns out to be more complicated to eradicate than anybody thought," he said, “because it involves changing the culture of hospitals and getting doctors –who typically prize their autonomy, resist checklists and underestimate their propensity for error—to follow standardized procedures and work in teams.” A “time out” is considered an essential part of patient safety: before surgery begins all work  is supposed to stop so that the  team “can confirm  that they have the correct patient, correct procedure, correct site and side, medications on the sterile that of all items anticipated for the procedure to begin.”

Philip F. Stahel, director of orthopedic surgery at Denver Health Medical Center  served as lead author of a 2010 study of 132 wrong-site and wrong-patient cases between 2002 and 2008 of which one-third resulted in death or serious injury. In 72 percent of cases there was no timeout.

Stahel says many doctors resent the rules, even though orthopedists have a 25 percent chance of making a wrong-site error during their career, according to the American Academy of Orthopaedic Surgeons, which launched a voluntary "Sign Your Site" campaign in 1997. (The AAOS deserves credit, though I fail to see why signing the site should be voluntary.)

The legal system typically offers little recourse: One study found that only a third of wrong-site cases result in a malpractice suit. Stahel's team found that the average payment was less than $81,000 in cases resulting in a lawsuit and $47,000 in those resolved without legal action.

While some wrong-site errors inflict little or no injury, either because they are corrected early or did not involve major surgery, others are devastating. Last year a jury returned a $20 million negligence verdict against Arkansas Children's Hospital for surgery on the wrong side of the brain of a 15-year-old boy who was left psychotic and severely brain-damaged. Testimony showed that the error was not disclosed to his parents for more than a year.

Kenneth W. Kizer, who coined the term "never event" nearly a decade ago when he headed the National Quality Forum, a leading patient safety organization, said he believes reducing the number of errors will require tougher reporting rules and increased transparency. Kizer, California's former chief health officer, advocates mandatory reporting of wrong-site errors to a federal agency so cases can be investigated and the results publicly reported.  Right now, KHN notes, only half of all states require that the hospital or doctor report the incident:

Reporting to the commission is voluntary and confidential—to encourage doctors and hospitals to come forward and to make improvements, officials say. In two states that track and intensively study these errors, 48 cases were reported in Minnesota last year, up from 44 in 2009; Pennsylvania has averaged about 64 cases for the past few years.”

"How can you say these things should not be reported?" asks Kizer. "These are the health-care equivalent" of plane crashes.

Kaiser Health News reports that although “efforts to eliminate wrong-site surgery  have been unsuccessful, there is an overall consensus if safety protocols are properly implemented and followed these tragedies do not have to happen.” The Canadian Orthopaedic Association mounted a significant educational program from 1994-1996 to eliminate this problem and has reported that the number of known wrong site orthopaedic surgery claims in Canada has subsequently dropped dramatically.

In Part 3 of this post, I’ll examine why patients don’t sue, and explain that, contrary to what the fear-mongers say, the number of malpractice suits, the size of awards and even malpractice premiums have leveled off or fallen in the recent decades. We are not experiencing a litigation crisis that is driving health care inflation.

Why then, do conservatives speak with such passion about the need for malpractice reform?  Their real concern has little to so with protecting doctors or hospitals, the authors of the American Enterprise Institute say. Their goal is to shield all businesses from consumer suits with an eye to protecting corporate profits.

Finally, in Part 3, I will also discuss other solutions to the malpractice mess: safe harbor for doctors who follow guidelines, special “health courts” where cases are decided by medical experts, not juries, as well as the theory that if doctors and hospitals “disclose, apologize and compensate,” the cost and the pain that the system now inflicts, both on doctors and on patients, could be greatly reduced.

30 thoughts on “Myths about Medical Malpractice: Part 2 Crisis or Hoax?

  1. The reason people feel malpractice is so important is that defending against the possible lawsuit is a constant presence with each patient we see. As a result we practice defensively, ordering ct scans, mri scans, extra admissions to the hospital, extra futile care in the ICU in patients with terminal illnesses. The politicians, Dr> Berwick, Nancy Pelosi, who I have spoken to, feel defensive medicine is 1% of health costs. I show it is 20-25%. A recent Ortho conference showed it was 30% for Ortho.
    That’s why health courts, experts hired by the court, panels of experts to assess damage and awards are needed. Anything to end the fear of a lawsuit.

  2. Yea! I get to comment first.
    Great post. Well worth the wait. Some thoughts.
    I don’t think the reason conservatives tout “tort reform” just to protect businesses in general from consumer suits. I think they do it because it makes such a great sound byte and resonates with an uninformed public. It scores political points. IMHO.
    I’ve been thinking about the “trained to fear suit” from medschool thing.
    I talk to my students about protecting their licenses all the time, and making their charting defensible. Yet I’ve never been sued, I don’t know anybody (in nursing) who’s been sued, and I don’t fear getting sued. I don’t even carry malpractice insurance anymore. Didn’t see the point, even though it is a measly $72/year.
    And it’s not like nursing is immune to lawsuits . . . I do know nurses are being sued more, and I see adverts all the time for conferences on how to protect yourself from being sued.
    Yet nursing malpractice rates are quite reasonable.
    While it is true that some doctors become quite wealthy, most have an income that is quite reasonable. If juries and judges are not imposing damages more than the doctor/insurance company can pay (and nurses carry the same amount docs do, up to 3 million), why is there such a difference in the premium rates?
    I suspect docs are getting taken to the cleaners on the true cost of their malpractice insurance, because they ARE taught to quake in their boots at the mention of the word “lawsuit,” or “lawyer.”
    Finally, on the thought that plaintiff’s attorneys actually turn down cases. That I find quite true. Part of the job I do when I do case reviews is to tell the lawyer what cases either have no merit, or don’t rise to the level of negligence or malpractice that justifies expensive litigation. The attorney I do case reviews for has told me he takes on quite a financial risk: he and the client pay all the bills until the case is settled or a verdict is rendered . . . and investment he might lose in its entirety. So he’s very careful about the cases he DOES take.
    He often sends records to me first because I charge a fraction per hour to review a case compared to what a physician charges. If I look at a case and see nothing violating the standard of care, he might drop that case. If I’m not sure, or if I’m convinced there IS a case for negligence or malpractice, he’ll get the more expensive physician consultant to look at the records.

  3. With modern technology and miniaturization, perhaps we should just videotape every surgical procedure. While there are obviously privacy issues, tapes could certainly document what happened and quickly when something goes wrong. In those cases, patient access to the tape should be a matter of right.
    Separately, I wonder how many times a doctor hears a patient say that he’s going to sue. Then he consults a lawyer and is told either that he has no case or the potential damages aren’t sufficient to be worth pursuing it. We could wind up with relatively few cases filed but many threatened.
    As noted in the post, the emotional ordeal alone, along with the time it takes to bring the claim to a resolution, can easily drive doctors to practice defensively independent of other considerations. Moreover, there are absolutely no adverse consequences for the doctor for ordering too many tests rather than too few or being quick to admit patients to the hospital even if only for observation.

  4. Panacea –
    When CVS started to open health clinics in some of its retail stores staffed by NP’s, after they had several hundred in quite a few states, they disclosed that in their first one million patient encounters, they were sued exactly zero times. At the same time, the clinics offer only a limited menu of primary care services. When I asked an NP at the CVS clinic near where I live what happens if you have a serious emergency, her answer was “we know how to call 911.” In addition, I suspect but don’t know that patients may have a different level of expectations from NP’s vs. doctors.

  5. Panacea, Barry, Sidney
    Panacea–You’re entirely right that touting malrpactice reform scores poltical points.
    People are willing to accept the idea that many people who are trying to sell them products may be trying to rip them off–and may even be selling products that could hurt them.
    But most patients like and trust their doctors– and, I would say, with good reason. The majority of docs are trying to be careful and conscientious, which is one reason why such a small percentage of patients who are harmed by human error bring claims. (Another is that suing is very expensive– see part 3)
    Also, patients usually don’t sue docs they like. So even when docs make an all-too-human mistake, patients are forgiving.
    Meanwhile, conservatives dislike the plaitniffs’ bar based on their belief that plaintiffs’ attorneys help consumers and employees sue corporations with “frivolous claims,” thus cutting into corporate profits.
    In part 3, I’ll talk a bit about the WalMart suit, where women workers sued WalMart. Conservatives celebrated the Supreme Court’s decision in favor of Walmart because it sent a signal that platiniffs’ attorneys cannot continue to “abuse” corporations. (I’m paraphrasing– see part 3.)
    The current “malpractice reform” bill in the House would protect, not just docs & hospitals, but pharmaceutical companies, medical device companies, nursing homes and many others in our for-profit health care industry.
    This shows what tort refrom is all about. But as you say, calls for malpractice reform to protect doctors make a much better sound bite
    This is why consersvatives use malpractice suits as the “poster child” for all suits against businesses. (I’m borrowing that phrase from the authors of the American Enterprise Institute report. ) Even though it’s a right-wing think tank, they are extremely candid about the ideological underpinnings that drive the “tort reform” movement.)
    What you have to say about malpractice rates for nurses vs. docs is very interesting.
    These companies know that nurses just don’t earn as much money as doctors . So they may be charging what the market can bear.
    Given profits at malpractice companies in many years, I have to think that docs are being “ripped off.”
    But it’s also true that patients are much, much less likely to sue doctors rather than nurses for two reasons:
    1) They don’t see nurses as “in charge.” They believe that even if a nurse did something wrong, the buck stops with the doc.
    2) We know that patients are far more likely to sue if they found the doctor arrogant, less than sympathetic, etc.
    Nurses are trained to focus on providing “comfort” even if they cannot provide cure.(That said, I have met mean, irritable nurses. But by and large, nurses feel that it is part of their job to be kind and comforting.)
    Doctors are trained that their job is to be intelligent and solve the problem. “Kind” is not emphasized. If anything, docs are taught that they should be professional, and not let their emotions show.
    This doesn’t mean that physicans are not kind-hearted. Most are. But on the whole, they have been taught that they are not supposed to reveal their feelings to patients.
    Finally, what you have to say about reviewing cases for lawyers and advising them that many patients don’t have a valid claim is revealing.
    Thank you, again, for an insider’s view. It cofirms that plaintiffs’ attorneys are not “chasing” injured patients; they are trying very hard to figure out which claims are valid.
    It’s also telling that a certain number of cases fall into a grey area where you just can’t decide.
    I’ll be talking more about that in part 3. It’s all tied up with the ambiguities and uncertainties of medicine– a major reason why a malpractice system that focuses on “shame, blame” and “adversarial” approaches is totally dysfunctional for everyone– doctors, hospitals and patients.
    If you atually read this post all the way through to the end, you will find that the National Association of Orthopaedists believes that that the major problem leading to marlpactice suits is medical mistakes caused by orthopods who refuse to follow safety protocols–even though, because they are human, they run a 20% risk of making a serious medical error.
    Frankly, Dr. Don Berwick, who has spent a career studying patient safety while running the Institute for Healthcare Improvement, knows a great deal more about malpractice and medical erorrs than either you or I do.
    I am very sorry to be so blunt. I don’t like to be rude. But you don’t seem to have any respect for the extensive research on this topic. Your mind is made up.
    This might be fine– except that you speak with such authority– as a doctor–in a way that might mislead other readers. I don’t want this blog to be used to spread misinformation.
    As for health courts, run by medical experts, experience shows that they are much more likely to find doctors and hospitals guilty.
    If lay juries don’t understand the medical evidence, the research tell us that they tend to give doctors the benefit of the doubt.
    When health courts are run by M.D.s who do understand the evidence, they are much harder on providers.
    Be careful of what you wish for.
    I will discuss this in part 3 of the post.

  6. Contrary to what Dr. Goldfarb says, the problem with malpractice isn’t lawsuits; the problem is malpractice itself. If physicians would spend as much time trying to eliminate malpractice as they do trying to limit their liability, we’d all be better off. In most states over the last 20 years fewer than 3 percent of physicians have been responsible for over half of all the money paid out for malpractice. If the medical licensing boards and peer reviewers would turn their attention to restricting the practice of the physicians who cause the bulk of the malpractice, we would go a long way toward solving the problem, and save lives and prevent injuries.

  7. My WIFE,a psychiatrist, not an apocryphal, fictitious physician, I heard about, was sued for missing a “Brain Tumor” along with 2 internists and a neurologist. The patient had this mass removed from her brain by a neurosurgeon at an ivy league hospital. The expert witness for the plaintiff, a doubly boarded neurologist and psychiatrist , said the tumor was spreading, etc, and read the path report, and said it was a malignant tumor.
    The guy was paid 40,000 dollars for his expertise.
    This went to trial in NJ and it lasted 7 weeks.
    I read the path report and it said the mass was scar tissue, and this was sworn to by my wife’s expert. A health court would have been able to figure this out way before trial and issued a summary judgement. Take my word for it, after 35 years in medicine , this case was the purest junk case I have ever heard of. I was a reviewer for our state’s med mal ins company.
    The case went to the lay jurors, 8 of them, after a 7 week trial.
    All assertions were dismissed and the 3 remaining doctors on trial were declared not guilty of anything. The tumor was not a tumor.
    This is not liberal or conservative.
    In NJ fear of a suit is constant. The obgyn’s pat 250,000 for ins. Most are limiting practices to gyn alone , or changing to part time practice. 15% of all NJ docs are leaving Nj each year. They move to states where the fear of a suit is less.
    Is this good for patients?

  8. Sidney,
    According to your story, a neurosurgeon at an Ivy League hospital removed a brain tumor that wasn’t a brain tumor from the patient’s brain.
    But apparently he thought it was a brain tumor?
    And, according to your story, the platiniff’s expert witness outright lied saying that something was a brain tumor that definitely was not a brain tumor.
    And he wasn’t charged with perjury?
    Pure “junk caees” like this don’t make it to malpractice court. As noted, the cost of preparing a malpracice case is way too expensive.
    Someone may well fabricate a personal injury case pretending to have been seriously injured in a car accident when there was no injury, and they may find a sleazy lawyer willin gto take the case– becaue they lawyer doesn’t have to spend tens of thousands of dollars to prepare the case.
    My guess is that there was more ambiguity to this case than you are willing to admit. I’m prefectly willing to believe that your wife was not negligent, but I very much doubt the case was as black and white as you suggest.

  9. Robert: You’ve hit the nail on the head.
    Boards of Nursing are notoriously tough on bad nurses. They are pitbulls when it comes to nursing practice. I’ve sat in on public hearings on nursing discipline . . . it’s brutal. The burden is on the nurse to prove she is safe to practice.
    One nurse was trying to get a restriction off her license so she could pass narcotics unsupervised. She’d successfully completed a drug diversion program. She was successful, but the grilling the board gave her was intense. Another nurse was appealing disciplinary action because she’d attended a general hospital orientation (not nursing orientation) before getting her temporary license. The board didn’t care that this general orientation had NOTHING to do with patient care but rather covered things like cafeteria benefits, hospital culture, etc. In their mind she was still practicing without a license, and they told her she was lucky to be granted one in the first place.
    So, if Boards of Nursing nationwide can perform their due diligence in disciplining nurses, then why aren’t Medical Boards do the same thing?
    Sidney: Medical experts are very expensive. The ones down where I live charge somewhere around $500/hour. So what?
    Are you saying the expert for the plaintiff lied or that he was simply wrong? Either way, the system worked the way it was supposed to. A patient was harmed, or believed he had been. He sued. The case went to trial. Your wife won.
    You keep talking about this paper you wrote. OK: let’s see it! Was it published? If so, in what journal, on what date? Let’s do a little peer review and see how it holds up.

  10. Barry: I’d love to see empirical data on NP satisfaction. So I went looking 🙂
    I found a lot of abstracts on Pub Med that supports Nurse Practitioners, and indicates outcomes are as good and patient satisfaction is better than physicians in similar roles.
    This is just a couple of articles, but there were many more in the Pub Med search.
    Anecdotal, I’ve never talked to anyone who has had a bad experience with a nurse practitioner, and many many people who prefer them to both doctors and PAs because of their bedside manner. I’ve worked with GREAT NPs and find their knowledge within their scope to be extensive, and they know when they need to pass the case along to a physician.
    OTOH (and again, anecdotal) my experience with Physicians Assistants is 50-50. I know some really good ones. I know some really bad ones. I won’t see a Physician’s Assistant if I have another option unless I know their practice really well.

  11. Panacea —
    It’s very interesting that Boards of Nursing are so much tougher on nurses than medical boards are on doctors.
    Here are a few theories (in no particular order):
    Most doctors found medical school to be an ordeal– sleep deprivation; much bullying, much competition. Some feel that anyone who went through that experience deserves to be a doctor. So they are very, very reluctant to pull a license.
    I’m guessing that while nursing school is also exhausting and hard, there isn’t the same degree of bullying, competition, hazing, etc. It’s not the “Lord of the Flies” experience that med school is.
    Secondly, what you describe could be a gender difference. (Insofar as, even these days, most nurses are women) Even as children, girls can be so mean to other girls–especially when they gang up on someone. (I think of the Margaret Atwood novel, “Cat’s Eye”–is that the title?)
    Boys, of course, are also rough on each other, but not in quite the same way. Girls can be vicious.
    Finally, doctors, like policemen, seem to have a “blue wall of silence” code. It’s “us” against “them”- -and “them” includes patients as well as civilians who claim they were abused by a policeman.
    Of course patients and civilians are the people that doctors and police are trained and hired to protect, so this is extremely disturbing.
    I don’t know whether nurses stick together to the same degree, but from what you say, and what I’ve read, I think not.
    This might also be a gender thing, at last in part. Boys are taught that you never “tell” on someone. It’s just not manly.
    Also, Nurses are trained to empathize with patients.
    This also helps explain why they are not as likely to be sued. They are be more likely to show sympathy (while docs have been taught to hide emotion.)
    And while there are fearsome nurses out there, they are less likely to be described as “arrogant.” (Society doesn’t view nurses as “god-like.”)

  12. Maggie: Nurses are notorious for “eating their own young.”
    Nursing school was by and far the most difficult experience I’ve ever had, but the goal was to help you be successful even when I went to nursing school in 1984-5.
    Medical schools seem to want to run out anyone not “tough enough,” so I do agree with your point . . . however if that is in fact what physicians are doing, it is a poor excuse. A cop out. Just because you graduate from med school and finish residency is not a free pass to make mistakes.
    And it just makes another argument for reforming medical education. I don’t buy the “but we gotta make sure residents get every experience they can.”
    The brain can only take so much before it turns to mush. I seriously doubt docs retain much useful after so many hours. The scientific evidence shows increased risks for mistakes. We don’t want people to drive sleep deprived because its the same as driving drunk as far as your judgment and reflexes go. Why on earth do we want physicians in training practicing that way?
    You may have a point on gender issues when it comes to nursing. I don’t know enough about the female experience in med school to have an opinion.
    Of course, there is no excuse for the eat your own young mentality we often find among nurses, and this is something the profession has made efforts to improve. The influx of men into the profession may help turn that around, I hope.

  13. I once read a post by a doctor who described the mentality of most medical disciplinary boards as something like this:
    1. The guy probably has a spouse, kids and a mortgage. Give him a break and don’t take away his livelihood.
    2. We’re all human and we all make mistakes.
    3. If we do take away his license, he will probably sue us and we don’t want that.

  14. I work in an area of the country where shortages of doctors has led to extensive use of nurse practitioners. Unfortunately, in my own experience nurse practitioners are abour as likely to be sued, depending on specialty, as doctors in the same specialties. I personally know of two different NP’s, one a nurse-midwife and the other an ER nurse practioner working in walk-in care, who were sued for failure to diagnose and who ended up paying out of court settlements. In both cases part of the complaint was that they WERE nurse practitioners and the patients were upset they had not been referred on to doctors.
    I do think that all medical practitioners who have the opportunity, inclination, and ability to spend the time to develop good relationships with their patients are much less likely to be sued, and that NP’s frequently do that as well or better than doctors. Both the NP’s I refer to above were working settings where their relationship with the patients were brief.
    I do think that most people who see nurse practitioners — including me on some occasions — are very satisfied, but unfortunately in the event of unhappy results suits still occur, and I suspect will occur more often as use of nurse practitioners increases.

  15. Pat S.
    You write: “I do think that all medical practitioners who have the opportunity, inclination, and ability to spend the time to develop good relationships with their patients are much less likely to be sued, and that NP’s frequently do that as well or better than doctors.”
    I totally agree.
    All of the evidence shows that heatlhcare providers are far more likely to be sued if patients feel that the provider didn’t care about them.
    Independent analysis of claims shows that in cases where providers wind up making a payment, the vast majority did, indeed, make a mistake that led to severe injury for the patinet.
    But doctors who patients liked and trusted also make such mistakes and are not sued.
    On the one hand, this is a problem because it means that malpractice suits don’t act as a deterrment to negligence. On the other hand, I have to assume that even excellent very conscientious doctors are likely to make a mistake at least once in their careers.
    I don’t think that lawsuits are the best way of dealing with that fact. Though I do think that patients deserve compensation.
    In terms of “punishing” providers who make a mistake, I would tend to prefer very high penalties for hospitals and doctors that try to cover up mistakes, no penalty for those who immediately disclose what happened (except that the hospital/insurer must compensate the patient)
    A couple of exceptions: doctors and hosptials with a high rate of repeated errors, and doctors who wantonly practice medicine when under the influence of drugs, alcohol, etc. Also, older docs who are “impaired” and continue to practice should lose their licenses, but I wouldn’t drag them through a trial.
    Certainly Nurse practioners are going to be provoiding more of our health care, so I would guess that, as you say, we may see more suits brougth against NPs–at least in absolute numbers.
    But my guess is that the percentage of NPs will remain lower than the percentage of MDs sued.
    Now if we could just reduce medical errors, and
    lower the total number of suits against doctors, hopsitals, nurses . . . anyone.
    I think hospials are in the best position to do this. But too many hospital CEOs don’t make patient safety a 1st priority. Paul Levy has written about this –see part 3.

  16. Barry, Panacea
    Barry– I’m afraid that your decription of these boards is generally correct.
    We need to change the disciplinary system.
    This probably means changing the culture beginning in med school.
    And much better legal protection for whistle-blowers.
    I completely agree that the idea that just becuase someone went through med school he deserves to keep his license is a cop-out.
    I just meant to say that many docs seem to feel great sympathy for anyone who made it through med school.
    I deeply believe that we should reform medical education. It should not be a “hazing.” And we put patients in jeopardy when we insist that residents work ridiculously long hours.
    The overriding goal of healthcare has to be to try to help patients, and at the very least, “Do No Harm.” Compared to that, giving residents the experience of trying to practice when they have been working for 14 hours is a very, very low priority,

  17. Robert–
    You write: “. If the medical licensing boards and peer reviewers would turn their attention to restricting the practice of the physicians who cause the bulk of the malpractice, we would go a long way toward solving the problem, and save lives and prevent injuries”
    Yes. Yes. Yes.
    We don’t have a “malpractice crisis” in the sennse that too many people are suing.
    We have a “medical errors” crisis. Too many mistakes, and too much complacency about that on the part of hospital CEOs

  18. I have to say that this particular conversation sounds very strange to someone living outside of the USA.
    Of course doctors are practicing defensive medicine and the cost of this is immense, not only financially but to the detriment of the health of the patient. When a doctor thinks of doing something to avoid being sued, he is thinking of himself/herself and not his/her patient.
    Study after study shows that doctors that get sued are sued after a precipitating event but before that there was a personal interaction between patient and doctor that left the patient feeling resentful. Few doctors are sued without this particular failure of the therapeutic relationship. How do I know this? My medical negligence insurance company told me so at an excellent seminar I attended, hosted by them for free!
    Here in the UK we have universal health care in the form of a National Health Service. American ‘conservatives’ would not like this because to them it reeks of socialism and communism. However it functions as a sort of Mutual Funds system and although it may be less than efficient at times, most of the money does actually go to improving the health of patients.
    Across the Atlantic things are different: Besides patients, many more people have the right ‘do well’ out of medicine. These important people include the pharmaceutical companies, the medical insurance companies,the Government (who taxes these) and yes, many, many lawyers who have to make a lot of money out of medicine. The enrichment of all these groups of people (including of course the buyers of their stocks and shares)is perhaps why the New England Journal of Medicine of January 2010 ranks American Medicine as the 37th best in the world.
    Congratulations guys, your health care is in the top 20% in the world. Why all this whining and complaining?

  19. The lawsuits against health care providers increase cost of health care, although it may protect from malpractice and other associated lapses in medical care. It is two edge sword, which cuts on both sides.

  20. Brian Kaplan, HealthBlog
    Dr. Kaplan–
    What you say is all too true. Our for-profit system seems very strange to people in most other developed countries.
    As you say, the system in the UK is far from perfect, but by most measures (access, equity, affordabilty, quality of preventive care) it is better than ours, and on other measures (outcomes) at least as good.
    And yes, in the U.S. patients sue because they never liked the doctor. He just didn’t seem to care about htem.
    If you read the post to the end (and I realize that it is long), you would have read the part that explains why lawsuits do not add much if anything to the cost of U.S. heatlhcare:
    If a patient is injured, either the patient, or the malpractice insurer pays the cost of repairing the injury. If the patient doesn’t receive compensation from the insurer or hospital, Medicare or Medicaid often cover the cost.
    Bottom line: errors are expensive, and in the end someone pays. As the American Enterprise Institute points out, whether the insurer pays or someone else pays, we’re simply talking about a redistribution of dollars. The total doesn’t change much.
    Compensation for pain and suffering is an additional cost, but as noted in the post, average awards in the U.S. are just not that high. Very, very few awards of $1 million or more.
    Moreover, if the patient doesn’t receive compensation from a malpractice insurer to repair the injury, treatment may be delayed. In that case, when the patient does receive treatment, it may be more expensive.

  21. Dr. Kaplan is correct. We are in the top 20%, nothing to sneeze at, lol. Poor communication is a major driver of litigation.
    One wonders whether it is necessary to demote quality of care (to perhaps 37th in the world), in order to elevate the business of medicine to the unequivocal number ONE spot in the world. Has the profit motive sold short the health of the patient? I believe so, and this factor alone has likely instigated lawsuits (many of them being class-action suits). Large corporations, with very deep pockets, often budget for payouts (frequently ‘settlements’, without admission of guilt) and then continue with business as usual. The ‘hit’ becomes a tax write-off as well. Always follow the money.

  22. Some random reactions to comments on part 1 and 2:
    I may have gone to the same medical school as Jenga. We also had an unforgettable speech the first day from the President or Dean in which he very movingly emphasized “do no harm.” I am unsure if it made a difference for me–I hope I already had learned that at home. On the other hand, strict adherence to primum non nocere conflicts with the weighing of a risk/benefit ratio, but it is still a very important principal.
    And later, upon my introduction to the pediatric eye clinic, our kindly chairman pointed out that each and every one of these patients we would see was somebody’s precious child. Again, I already knew that, but it was a great reminder, perhaps particularly for a young resident who did not yet have children.
    With all the technology, one hopes these important touches continue in medical education.
    Dr. Goldfarb teased us with his reference to specific data on the costs of defensive medicine. Someone appropriately wondered if it was peer-reviewed. With my limited internet search abilities, I was only able to find the following letter to a magazine in which he refers specifically to his unpublished research:
    And the orthopedic presentation to which he referred was apparently this one in which members of the Pennsylvania Orthopaedic Society were asked to voluntarily and anonymously record a consecutive series of patient imaging decisions. I assume the designation of defensive was made by each anonymous surgeon. This data only deals with the imaging portion of these orthopedic practices. And it does not imply that 30% of the cost for operating rooms, surgeons fees, or anethesia are due to defensive medicine. A very brief summary is found here. Perhaps this will be published at a later time in a peer-reviewed journal:
    All I can say is “so far, not enough info.” Perhaps someone else can find more details.

  23. Ruth,Richard
    Good to hear from you. I agree, poor communication drives malpractice litigation. Whether or not doctors listen to and talk to their patients makes an enormous difference.
    Attorneys who represent docs and hospitas in malpractice suits say that patients sue docs who they never liked (even before the poor outcome.)
    You write:
    upon my introduction to the pediatric eye clinic, our kindly chairman pointed out that each and every one of these patients we would see was somebody’s precious child. Again, I already knew that, but it was a great reminder, perhaps particularly for a young resident who did not yet have children.
    With all the technology, one hopes these important touches continue in medical education.”
    And you were very lucky to have such a wise chairman at your pediatric eye clinic.
    Instead of teaching docs to be afraid of their patients (as potential litigants) they really should give them the stats on what patients say as to why they sued their doctors.. . .

  24. “Attorneys who represent docs and hospitas in malpractice suits say that patients sue docs who they never liked (even before the poor outcome.)”
    Maggie –
    I think if you or I or anyone else met thousands of people over a period of 20 or 30 years, there is a 100% chance that there will be some that just don’t like us in a personal chemistry sense or don’t like the way we look. Some won’t like us if we talk too much and others don’t care for people who talk too little. You can’t please everyone. For physicians, some patients will have bad outcomes even if the doctor did everything right. Should poor personal chemistry coupled with an unfortunate outcome be the basis for a malpractice suit?
    On the other hand, if we tried a no fault system like some countries have, it could easily result in even higher costs if we start to compensate the families of people who die even if there were no malpractice at, say, $150K per life year lost (equivalent to $8 million for 80 years of life expectancy) or well into seven figure amounts for permanent brain damage. Five to ten million dollars per life is in the range that the EPA and other federal agencies use to balance the costs and benefits of regulations that impose compliance costs on the private sector.

  25. Barry–
    Attorneys who defend hospitals (and doctors) repeatedly use the same words “arrogant” and “cold.”
    In other words, the patient felt that the doctor didn’t care, wasn’t willing to listen to him, etc.
    If the physician seemed caring, a great many patients will forgive a mistake on the grounds that we are all human.
    What is surprising is how few patients sue, even when it is clear that a mistake was made.
    I don’t think we want a “no fault” system because we do want fear of a suit to act as a deterrent to medical errors. We especially want hospitals to pay more attention to patient safety.

  26. Barry said, “For physicians, some patients will have bad outcomes even if the doctor did everything right. Should poor personal chemistry coupled with an unfortunate outcome be the basis for a malpractice suit?”
    No, he should not, but he may be. People can sue for anything. What people (both plaintiffs and defendants as well as the general public) often forget is you can be sued for anything . . . but that doesn’t make the allegation true. That’s why we have a court system.
    I’ve been given charts from which it was very clear that the outcome was what it was in spite of the physicians best efforts, and the patient was just madder then hell about it. That’s why attorneys give medical and nursing experts charts: we can look at them and see whether or not there is a deviation in the standard of care. In these cases what I tell the attorney is, “I can find no deviation in the standard of care. The physician or nurse did all the things they should have been doing at the time they should have done them.”
    It’s important to note that at this stage, no litigation has been filed, so the insurance company isn’t involved yet. When an attorney gets that answer, that’s it. Unless he has other evidence I’m not privy to (which has happened), that’s the end of it.
    So I’m really not concerned about cases where bad chemistry leads to a civil suit. It’s just not likely to go anywhere, and this minuscule risk that it might is not justification to remove the only recourse a patient who has been harmed has.

  27. Hi, Dr K!
    The orthopedic study Sidney referred to certainly doesn’t seem to have been controlled. It wouldn’t be publishable even as a qualitative study from the sounds of it, since the respondents were able to cherry pick their data.
    Since he hasn’t said anything more about his study, I have to wonder if it also suffers from methodological problems that have kept it from being published. His LTE in Emergency Medicine News is a rehash of what he’s said here, but basically he’s made a wild claim with no evidence to substantiate it. What a shame.

  28. Panacea–
    Yes, those cases where the patient is “madder than hell” and never liked the sob in the first place are not likely to go anywhere unless there is medical evidence.
    Plaintiff’s attorneys have met many patients are angry at the doctor. They will do a quick consultation to see if there is any evidence, and that’s it.
    The “patients -are- far- more- likely- to- sue if the- doctor- was- arrogant theory- of- malpractice- suits” merely explains why so few patients sue. (Most patients don’t find their doctors arrogant. They want to believe that he cared. All he has to do is show real regret that things turned out badly. Then they won’t sue.
    In other words, “The patient didn’t like the doctor theory” is not meant to explain why doctors are dragged into court; it explains why so few are dragged into court.

  29. Hum, I’m not sure this addressed my question in the first post.
    If there is no problem with being sued, why is so much being spent by hospitals on Risk Management including large legal departments and outside legal firms that specialize in settling claims?
    Does anyone really know how many and how much is spent on settled claims? This information is generally declared confidential.
    I really think we need to have full disclosure from providers on the cost of suits and settlements. This can be done without revealing details.
    Again, given the profit motive, I think it seems unlikely that so much effort would go into defending against claims/possible claims etc. that doesnt pay back.