$200 Billion Kool-Aid


98000 ReasonsWith health care reform being heavily debated about the country, trial lawyers are trying to preserve one of their cash cows.

Medical malpractice plaintiff attorneys continue to press their argument that lawsuits are essential to the nation’s health care. In fact, the trial lawyers created a web site called 98000reasons.org and are putting ads for the web site all over the Washington subway system to show our legislators some link between tort liability and the alleged 98,000 patients who die each year from medical mistakes. The logic on the front page of the AAJ web site states

“If less people need to seek legal recourse, that means patients are getting safer. Patients that are safer also means lower costs to the health care system. Everyone can support this.”

It will probably take a lawyer to explain that logic to me, but I digress.

The “98,000” number is taken from a study called “To Err is Human” done by the Institute of Medicine more than 10 years ago.

There are multiple criticisms of the IOM study. The method in which “deaths due to error” were determined was suspect. The patient population was composed of skewed samples. See here, here, and here to learn more about the criticisms of the study.
Regardless of the reliability of the statistics, those with an agenda cite the statistics as hard facts.

“The equivalent of two full jumbo jets are blowing up every day of the year due to medical malpractice and the only thing that can save us is more lawsuits!”

It’s obvious that patients die from medical errors. Whether that number is 98 per year or 98,000 per year, medical providers can always take steps to improve upon the care that they provide. Focusing on the imperfect nature of the humans who provide medical care is not the point of this post. Humans will always make mistakes – even lawyers.

The trial lawyers want us to believe that they are there to help our nation minimize mistakes. The American Association for Justice is pushing the concept that any attempts to reform the nation’s medical malpractice tort system would have disastrous effects upon the safety of our health care.

A quote on the AAJ site states “The simple truth is that any reduction in the risk of civil liability would remove a critical safety incentive.”
Phrase it however you want to …
The threat of liability improves safety.
Making doctors fearful of losing millions of dollars makes doctors practice better medicine.
We can sue our way to better health care.

Lawyers want doctors running scared.

The trial lawyers got their wish. Doctors are afraid of being sued for millions of dollars and getting dragged through a multi-year lawsuit. So a vast majority of doctors have responded by practicing “defensive medicine.”

Health care providers spend hundreds of billions of health care dollars per year on low yield testing that is fueled by the fear of malpractice lawsuits — a fear that lawyers assert is beneficial to create.

Then lawmakers started questioning whether our health care system could put the vast amounts of money spent on defensive medicine to better use.

Suddenly the trial lawyers started singing a different tune.

Trial lawyers created a “report” titled “The Truth About ‘Defensive Medicine‘”
The report contained multiple assertions, including …
“Direct costs associated with medical malpractice are a tiny fraction of health care costs.” Technically the AAJ statement is correct, but it is misleading. Direct costs of medical malpractice litigation and payouts may be a small fraction of the health care pie, but defensive medicine is an indirect cost that, by some estimates, adds hundreds of billions of dollars to health care costs each year. That’s not so small.
“There are little or no savings to be gained from reforms aimed at eliminating such tests.” In other words, tort reform won’t save the system any money. Would you like grape Kool Aid or fruit punch?
“Extra testing provides benefits to patients.” Hey – it’s good for patients when doctors perform expensive low yield testing to protect themselves from lawsuits. Nothing bad happens from all the radiation. There are no complications or extra costs incurred from false-positive testing. Pay no attention to that man behind the curtain.

If you don’t believe any of the above, then the AAJ report tries to convince everyone that defensive medicine is a figment of the imagination of all the doctors who say that they perform testing to protect themselves from lawsuits. Headings in the “Defensive Medicine” report include “Academics question the existence of defensive medicine” and “President Obama’s Budget Director Doubts the Existence of Defensive Medicine.”
The report states that

One government agency found that doctors chose not to order any tests or diagnostic procedures 95 percent of the time. Doctors who ordered tests almost always did so because of medical indications, and only one half of one percent of all cases involved doctors who ordered tests due solely to malpractice concerns.

If “defensive medicine” occurs in only 0.5% of all medical cases, then obviously the “risk of civil liability” isn’t having its intended effect. All of us doctors are hardly doing anything to protect ourselves from civil liability. We’re not scared enough.

On one hand, the AAJ asserts that we should increase/maintain the threat of liability to maintain the safety of our health system. On the other hand, the AAJ asserts that the doctors are not responding to the threat – which is apparently why 98,000 people per year are allegedly dying from medical mistakes.

If the threat of civil liability makes doctors practice better medicine, the threat of criminal liability would be lead to even better health care. Doctors who allow patients to become ill or die should be considered felons. With doctors so afraid of being thrown in jail, the medical profession would find a way to make patients live forever. The  practice of medicine would be perfect.

Problem solved.

Funny, though. If the AAJ assertion that “any reduction in the risk of civil liability would remove a critical safety incentive” is true, I don’t see the lawyers plastering the subways with advertisements advocating legal malpractice suits as a way to improve the practice of law in this country. Or advocating that we implement judicial malpractice to improve the practice of court proceedings in this country.

I know. The Democrats are just waiting to pass health care reform before putting legal and judicial malpractice on next year’s agenda.


  1. I work primarily with the geriatric population in a hospital setting. Certain adverse events…falling, catheter acquired UTI’s, DVTs, wounds are increased in this population. We’re afraid of patients falling so we don’t allow them to get up unassisted..this increases people being sedentary (they’re not giving us the staff to ambulate all these folks with supervision) so the risk of DVTs goes up. So we give heparin to prevent this till they develop HIT. Elderly folks swollen from their renal failure due to the ACEI or ARBs that quality control insist they be on for their CHF. Now we have increased risk of wounds due to their edema and catheter acquired UTI’s because now we need mega accurate intake and out puts to assess their renal failure tx. Levaquin for the pneumonias and keep your fingers crossed they don’t develop c-diff. It goes on and on.
    A litle long winded but it seems we just run in circles and the more we do to prevent adverse events, the more problems we cause.

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  3. The lawyers forget that the current “standard of care” has defensive medicine built in. They are right – I do not admit the 35 year old with reproducible chest pain for serial enzymes as defensive medicine. I do so because it is the standard of care. It is the standard because of the need to practice defensive medicine.

    I love their circular logic!

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  6. I’m not entirely convinced WC in your arguments. Sure, you’re a good doctor I presume and therefore would do a good job regardless if you could be sued or not. However, what about the population of doctors who honestly could care less about their patients or their job? Perhaps its only the threat of lawsuits that keeps them straight.

    And as a consumer of healthcare and not a provider, I like knowing that if a doctor royally f’s up I have something covering my behind. How would you like it if they got rid of fraud protection on all your credit cards? You’d be pretty irked I bet.

    But on the other hand you have people who sue at the drop a hat and that’s not right either. But my point is that it isn’t so much of a cut and dry issue as you’re making it out to be.

    • You example using credit cards is apropos.

      If they got rid of fraud protection on my credit cards, I would probably stop using my credit cards.
      However, if the government made credit card providers liable for 10x damages every time there was a fraudulent charge, most credit card issuers would probably stop offering credit cards.

      Due to a combination of factors, including both reimbursement and liability, many medical providers are deciding not to “offer credit cards” any more. Once Medicare payment cuts take effect, many more will likely make that decision.

      Presently, you have the option not to go to doctors if you are afraid of their malevolent intentions.
      In the future, you may not have the option to obtain timely medical care because few providers are willing to provide the care you need and the wait to see an appropriate provider/specialist will be unbearably long.
      Or perhaps liability for medical malpractice will be abolished/limited under a national health care system – as it is in the military now.

      Then what will you do?

      • “However, if the government made credit card providers liable for 10x damages every time there was a fraudulent charge, most credit card issuers would probably stop offering credit cards.”

        Heck WC, why didn’t you start by saying that then? I was reading your arguments to imply that doctors should have absolute immunity from legal actions. You have my vote for any reform involving getting it back down to normal fraud protection levels (if you don’t mind carrying on the credit card analogy).

        PS – apropos….*grumbles* damn y’all doctor’s shorthand…makin’ me look it up in urbandictionary and all. 🙂

  7. By and large, all of the licensed professionals in the country — lawyers, engineers, architects, accountants, pharmacists, veterinarians, physical therapists, etc — are judged by the same malpractice system. If you have some ideas for enhancing this system, I’m all ears.

    Except for doctors. They believe they’re entitled to special rules. In many states, they get them.

    Why should they get special rules?

    You complain that “On one hand, the AAJ asserts that we should increase/maintain the threat of liability to maintain the safety of our health system. On the other hand, the AAJ asserts that the doctors are not responding to the threat – which is apparently why 98,000 people per year are allegedly dying from medical mistakes.”

    Yet, your argument for special rules is no better. On the one hand, you’re saying defensive medicine costs hundreds of billions every year. On the other, you say that doctors don’t respond to civil liability. Which is it?

    On the subject, how many dead or injured patients would it take for you to believe that doctors should be subject to the same liability rules as every other professional?

    • “On the one hand, you’re saying defensive medicine costs hundreds of billions every year. On the other, you say that doctors don’t respond to civil liability. Which is it?”

      Of course doctors respond to civil liability. That’s why there is so much defensive medicine.
      Guess I should have explicitly labeled the paragraph ending in “We’re not scared enough” as “–IRONIC HUMOR AHEAD–“.
      The preceding paragraph formed the segue into the
      paragraph about imposing criminal liability on physicians who allow patients to get sick. Get it? Even more liability = even better care? Har har?

      I think that any patient harmed by a physician’s negligent action should be reasonably compensated. But every child born with CP and every patient who suffers an MI after visiting an emergency department is not a victim of negligence and $60 million for a botched crotch lift is not reasonable.
      If you believe that patients all deserve to be compensated for negligent medical care, why don’t you take the cases in which liability is clear, but damages are small?

      Physicians are subject to unique limits on their ability to practice, so why shouldn’t they have special rules? Is there a national practitioner databank for any of the other professions you have mentioned? Do you even know what the National Practitioner Databank is? Or what the implications of being listed in the NPDB are? Does an inability to obtain malpractice insurance make members of any of the other professions essentially unemployable?

      This country needs to determine what it values more: a right to nit pick every potential medical mistake for multimillion dollar legal redress or access to available health care.
      We won’t have it both ways.

      Perfect care or available care?

      If we continue down the path we’re headed, we won’t have either.

      • “Of course doctors respond to civil liability. That’s why there is so much defensive medicine.”

        If this is true, how come there isn’t LESS defensive medicine in states where doctors have the civil liability protections they seek?

        It seems if your statement, one you repeat often, were true, it would be easily provable by looking at a state like California, which has had your protections for three decades. The fact that you cannot point to any actual proof that there is less defensive medicine in these states (in fact a recent look at Texas showed exactly the opposite) makes it seems that your statement is a recitation of a faith-based belief, rather than one based on objective truth. Which is fine, of course.

  8. Max:

    You argue that “By and large, all of the licensed professionals in the country — lawyers, engineers, architects, accountants, pharmacists, veterinarians, physical therapists, etc — are judged by the same malpractice system.” I would argue that this is not the case, especialy for attorneys.

    If your attorney by nature of gross negligence loses your case, you must first prove that the case was winnable before you can even move forward with the legal malpractice case. Can you even sue a judge for malpractice?

    I would greatly appreciate your explanations of how medical malpractice cases and legal malractice cases are the same.

    • You can’t sue a judge for malpractice but — unlike with every other professional — you can have every one of the judge’s decisions reviewed by a panel of judges on appeal, and have any one of those decisions reversed if it was erroneous.

      In the context of malpractice by litigation / trial attorneys, yes, the party bringing suit has to prove “causation,” i.e. that the negligence by the attorney actually ’caused’ damage. To put it another way, if the party would have lost anyway, the attorney is not liable.

      That’s the same as in medical malpractice, where the patient must also prove “causation,” i.e. that the negligence by the physician actually ’caused’ damage. To put it another way, if the patient would have died / been injured regardless of the physician’s negligence, then the physician is not liable.

      • Max,

        You are off base. No other profession has endures the daily advertisements by lawyers to “look over” their work. The public is practically assaulted by ads for malpractice attorneys. From 1/2 hour long infomercials to spam emails, the public is told that their doctors are out to kill them. How many ads are out their for “sue your broker” or “sue your lawyer”?

        And the reality is that some people can not be saved. Bad things happen. One of the favorite claims by the former ATLA is that 98,000 preventable deaths occur in hospitals each year. One problem with the report they quote is that the overwhelming majority of these “errors” by far were “failure to rescue” – meaning that the physician missed a deadly disease or disorder. To accept this we must accept that the patient could be saved if the disorder were to have been discovered, and that is hard to know.

        If you do not believe in defensive medicine, that is fine. Let’s look at “chest pain units”. According to the Amercian Heart Association and the standard practice of emergency medicine, all patients complaining of chest pain must be risk stratified according to a well known set of criteria. In these criteria, there is not a defined “no risk” for acute coronary syndrome – only low risk. What is to be done with low risk patients? They are admitted to an observation unit to have serial enzymes drawn and stress tests. Cost per patient? Roughly $2000. Yield? the standards state that if more than 1% of patients “convert” (that is test positive for ACS), then that system is doing a poor job of identifying patients appropriate for these units. So, at the cost of $2 million to the system, we find an additional heart attack (of a variety in which rapid intervention is not proven helpful). Research also tells us that despite these units, 2% of acute coronary syndromes will be missed in the ED. Missed MI is a huge liability for the emergency physician. Missed MI claims make up the largest single percentage of payouts in liability for EM nationwide. So we admit everyone, test everyone (at great cost), and still miss a few. We hope these misses are mere anomalies and that every “i” was dotted and “t” crossed – or it is somehow our fault.

        If you believe that the system, as it stands now, can, and should, absorb these costs (of admitting these patients), fine. But don’t pretend that they don’t exist. And don’t pretend that because we admit these patients that our motivation is to find that 1%. That is what we will say if asked. But the reality is that in Canada, Japan, England, Germany, etc, all these people would be sent home and the evaluation continued as an outpatient. If the pathology would be discovered in the outpatient realm – that is normal there and not cause for suit. But here the checkbook would be opened quickly! And guess what… their overall outcomes are the same!

      • >the patient must also prove “causation,”<

        The problem with that "proof" is there are many unethical physicians who will testify to whatever you pay them to say. A colleague recently had 2 completely unfounded suits tried. One expert witness had previously testified the exact opposite of his new testimony with regard to the "standard of care" (which was introduced as evidence in the new trial and quite damaging to the plaintiff). Both cases were in the favor of the defense.

        We don't need lawyers to obtain compensation for injured patients. When I have made a mistake that harmed a patient, if risk management has allowed, I have admitted that error to the patient and/ or family. If any of those patients were to file suit it would not go to court because I wound instruct the insurance company to write a check and settle the matter.

        Trials only happen when either the plaintiff demands a jackpot settlement that is completely unreasonable or when there was in fact no malpractice. Injured patients deserve compensation, and the lawyers only steal that compensation from the parties who truly deserve it.

      • Most of the public transit ads I see refer to “injury,” particularly automobile accidents. (FYI, the bulk of civil litigation in America relates to automobile accidents or premises liability.) TV ads in my area are devoted entirely to pharmaceutical injuries, and they’re all run by out-of-state attorneys, particularly attorneys in Texas. Maybe it’s different in your area.

        Taking your example at face value — and thus ignoring the difficulty of separating a physician’s fear of liability from their desire to treat the patient property and from their incentive to order treatment for revenue — your core question is, “What is to be done with low risk patients?”

        The major medical associations have had decades to answer these questions definitively but have chosen not to. Indeed, up until recently, they have vigorously opposed the comparative effectiveness research that would provide hard data to answer those questions. Maybe you can explain that one to me.

        Your opinion seems to be that doctors should have free reign to decide “What is to be done with low risk patients?” on an ad hoc basis, applying nothing more than their personal political beliefs about the level of care to which that particular patient should be entitled.

        My opinion is that the question should be decided according to the professional standard of care, as supported by expert testimony.

        I don’t think that’s off base.

      • No Max, you still miss the point. We have the research. We know that in unstable angina (UA) or non-ST elevation MI (NSTEMI), that there is a slightly increased risk from baseline of sudden cardiac death. We know that some simple, oral medications can help prevent this to a small degree. We know that emergent PCTA (“heart cath”) does not improve outcomes, but that PCTA prior to commencing cardiac rehab may help by identifying patients who need bypass surgery – but this can be done a week (or longer) after the event without changing the outcomes significantly. We also know that in countries where these patients are handled in an outpatient setting, the overall outcomes are the same – the same number of people die from complications of their UA or NSTEMI as they do in America. The difference? In America, for no benefit, other than to my med mal carrier, they will die in the hospital.

        See here is the thing. If I send someone home with unrecognized UA or NSTEMI, on the appropriate medications, to follow up with their primary physician, and that patient is the 1 in 10,000 who die suddenly, I’m screwed. The post-mortem (if one is even performed) will show the cardiac damage and I am left holding the bag. Why? Because the standard of care is to admit these folks. We agree, that is what the experts will say. Heck, that is what I’d say if asked. But the question is this – WHY is that the standard of care? The answer is simple. Defensive medicine. “Public health defenses” simply don’t play well. I can not stand up in front of a jury and say “I am the best emergency physician in the country. Study after study demonstrate that emergency departments miss 2% of all UA/NSTEMI patients that present to their care. Here are all of my records. I miss less than 1%. I missed the plaintiff’s case, but hey, anyone would have. Designing a system to pick up such atypical cases would cost billions of dollars nationwide and wouldn’t change the overall outcomes in the population as a whole.” That won’t play – and you know it. The jury doesn’t consider the population as a whole. They consider the one case in front of them. The idea here is that we are continually redefining the standard of care, but not based on what works, but rather what keeps lawyers and bureaucrats at bay.

        “Doctor, had you kept Mr. Smith, the wonderful, church going father of three, bastion of the community, and all-around great guy in the hospital for just four more hours and performed a simple blood test, would you have detected his heart disease?” “Yes, in all likelihood.” “And did you apply the AHA risk stratification guidelines when assessing Mr. Smith?” “Yes.” “And what did you determine his risk to be?” “He was ‘low risk’.” “I see, ‘low risk’, not ‘no risk’?” “Correct.” “And did Mr. Smith, discharged on your orders, go home after receiving aspirin and metoprolol and being given prescriptions for the same?” “He did.” “And these are generally considered cardiac drugs?” “They are.” “So you were concerned about his heart?” “He met the low risk criteria, the same as any patient walking in the door for whom I can not determine a source for their chest pain.” “I take that to mean yes, you were worried about his heart, after all, you gave him cardiac drugs…” “I could not definitively exclude his heart as a source of his pain” “I see. So you sent him home?” “Yes, on medications to control his symptoms if it were to be heart disease and to follow-up with his primary care physician.” “And Mr. Smith suffered a full cardiac arrest at home, twelve hours later, correct?” “He did.” “As a board certified emergency physician, are you aware of the survival statistics for out of hospital cardiopulmonary arrest?” “I am. In my area, we average roughly five percent survival to hospital discharge.” “And the survival rates for in hospital arrest?” “Roughly twenty percent.” “So Mr. Smith would be four times more likely to have lived if he would have been in the hospital?” “Not necessarily.” “Not necessarily?” “No, those numbers don’t take into account the baseline illnesses of the people involved.” “I see, so you think he was too sick to survive, yet you sent him home. If he would have stayed, his four hour blood test would likely have shown disease?” “Given what we know now, yes.” “And the course would have been?” “He likely would have undergone a cardiac cath in the morning.” “And that cath would have shown the extensive disease demonstrated at autopsy?” “Yes.” “So had you cared enough to admit him, for a simple blood test, he would have survived until cardiac cath which would have discovered his disease?” “Yes.” “And if his disease were discovered, he would’ve been placed on, according to the expert cardiologist’s testimony, ‘nitroglycerin, plavix, metoprolol, crestor, aspirin and lisinopril’. Yet, concerned as you were about his heart, you only placed him on metoprolol and aspirin?” “Correct, those are the two drugs most proven to prevent second heart attacks in the first twenty-four hours.” “So why would the cardiologist testify that all these other drugs would be used?” “Because those agents show long term benefit.” “I see. So they wouldn’t have helped Mr. Smith at all?” “That impossible to say.” “I see. So going back to Mr. Smith’s ill fated discharge, why did you release him?” “Well, based on the available data, the results of his history and physical, laboratory findings, and complete clinical picture, he was at low risk for UA/NSTEMI. He was given appropriate medications and sent home.” “I see. And does the AHA ever call for admitting these patients?” “Yes, if a hospital has a chest pain observation unit, these patients can be admitted there for serial enzyme tests.” “Does your hospital have one?” “No.” “Did you consider transfer to a facility with one?” “No.” “Why not?” “Because patients admitted to these units have less than a one percent chance of having UA/NSTEMIs.” “But Mr. Smith did have one.” “That is true, but he was given medicines to help stem any secondary effects from one.” “But he had those secondary effects.” “That’s true, but based on my exam, history and the laboratory studies available to me there was less than a one in ten thousand chance that would happen.” “I see, did you tell him that?” “I told there was a possibility it has his heart causing the problem and that he should take the medicines and follow-up with his doctor.” “But not that he might die?” “No.” “I see. So you just decided to take chances with his life, all on your own?” “No. Even if I had admitted him, there is no reasonable guarantee that he would have survived.” “So all those tests and medications the cardiologist testified about don’t work?” “They do, but in a very small percentage of cases. Most of those drugs are given to a thousand people for every one that is helped.” “Can you say that Mr. Smith wouldn’t have been the one?” “No, there is no way to tell that.” “But we know he is the one in ten thousand you let die, right?”

        Sorry for the long post, but do you get the point? We have built this whole sub-industry around chest pain for the sole purpose of “finding” unstable angina or non-ST elevation MIs at unbelievable cost. Why? Because no physician wants to go to court and say that they missed a diagnosis on a patient who died from that disease. We ignore the fact that no treatment, other than two simple oral medications has been proven to reduce risks of complications in a wide percentage of the population. We ignore the fact that all available data show us that the increased complications from the other treatments probably balance out their benefits in wide practice (as counties that only use the two drugs have the same long term survival as the U.S.). No, we simply don’t want to have dueling experts trying to explain complex statistical arguments to a jury. Heck, I don’t even understand all of the arguments and esoterica employed by our cardiologists. But I can understand ‘they missed the heart attack in the emergency department and sent him home to die’. And so can a jury. So I will spend millions and millions of the system’s dollars over the course of my career (to no benefit of my own – CMS rules preclude an emergency physician from billing for observation unit admits) in order to not “miss” a UA/NSTEMI patient and not have to face the scenario above. But I can tell you in full truth, that is the reason I do it. I know, and am well supported by the literature, that in the long run, all of it will make no difference in patient outcome.

        (BTW – the above case is completely fictional and not related in any way to a real patient or case).

      • Throck, in answer to your question, lawyers can be sued for noneconomic loss, by the person they have a duty to, their client.

      • Matt,

        But not by the person they hurt…

        Classic! The spawn of Satan finally admits he serves but one master – not the truth, but rather the meal ticket! Way to go Matt. You are a fine upstanding member of society with much to add to the whole…

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    • Wow ..what a story! Sad too.

      I have to say.. I am in agreement with the doctor in questioning *why* it took the lawyers 4 1/2 years before they decided they couldn’t win the case. Something seems just wrong about that because they obviously made money during the delay to get to court. These are legal professionals and if I were the client ..I would want to sue the lawyers for dragging it out and charging. I assume the family didn’t have to pay them but there sure as heck was emotional investment in trusting that their lawyers would represent them appropriately. Were they mislead by the lawyers or was the legal team just stupid to not see early on ..or did they know that ..but just stall to exact a certain amount of money out of the insurance company?

      The emotional toll on both sides during the 4 1/2 years…

      How can they get away with that???

      • Seaspray, the only parties who benefit by delaying a med mal case are the providers insurer and their attorneys. And the provider too if they’re hiding assets and trying to avoid bankruptcy lookback provisions. The plaintiff and their lawyers have zero incentive to delay.

  10. Not to seem unfeeling, but, even if the number is 98,000, what is the number of those people that would have died even with no medical intervention of any kind?

    Probably 98,000. We all die. When we die, we hope that we made enough impact on the lives of the people around us that they care we are gone.

    We hope that those people will experiance grief. Some of those people will lash out in anger at anyone they can try and blame for their emotional pain at the loss of their loved one.

    I will admit that there is some number of people who die because some medical person made a grievious error. This is especially tragic when it is a child or the primary financial support for a family.

  11. All a very interesting post.

    Can we agree on a few things?

    Maintaining respect for the court system is of paramount importance and is to govern all that follows:

    1. Determination of injury should be stable across the jurisdictions through which the person might present.
    2. Parties injured in and by the medical system should be compensated for their losses.
    3. Parties who are not injured should not be compensated.
    4. Compensation should be available to folks of any means and severity of loss.
    5. An impartial actuary, an employee of the courts, should determine losses.
    6. Punishment is the purview of the State, not the injured party.

    • 1. Determination of injury should be stable across the jurisdictions through which the person might present.
      Agreed. Currently not present in our legal system. The lack of uniformity in determining injuries is a HUGE flaw that results in tremendous expense.

      2. Parties injured in and by the medical system should be compensated for their losses.
      Wrong. There has to be negligence involved. See #1 above. Same problem applies.

      3. Parties who are not injured should not be compensated.
      Goes without saying.

      4. Compensation should be available to folks of any means and severity of loss.
      Agreed within reason. At some point we’ll have to say that your hurt feelings or your surgical site that didn’t heal perfectly are not compensable. De minimis injuries should not be compensated. This concept goes hand in hand with the “loser pays” doctrine. Litigants would have to make a value judgment whether it is worth pursuing compensation (and a potential financial loss) for small injuries.

      5. An impartial actuary, an employee of the courts, should determine losses.
      Power corrupts. Absolute power corrupts absolutely. No one person should make this decision. A roster of several experts should be provided to litigants and to the court, and a panel of several experts should be chosen. I like the idea of expert “hot tubbing.”

      6. Punishment is the purview of the State, not the injured party.
      “Punishment” in civil matters is meted out by juries. Only in criminal matters does the state determine punishment. I’m not opposed to a worker’s compensation type of model for providing relief to negligently injured patients, but then we’d have to do away with the National Practitioner Data Bank.

      • “The lack of uniformity in determining injuries is a HUGE flaw that results in tremendous expense.”

        How much expense? You have a habit of making blanket statements with little factual support. And what do you mean “determining injuries”? Do you mean damages?

        “De minimis injuries should not be compensated. This concept goes hand in hand with the “loser pays” doctrine. ”

        Those two concepts don’t go hand in hand in the least. And, given the cost involved in pursuing a med mal action, minimal injuries typically don’t result in filing. That will change with most of your “solutions”.

        “A roster of several experts should be provided to litigants and to the court, and a panel of several experts should be chosen.”

        Why do we need experts to decide the noneconomic value of a lost arm? Seems like more expense when we already have a neutral arbiter in place.

        “Only in criminal matters does the state determine punishment.”

        This is incorrect, per usual. The jury or judge does the sentencing in criminal matters. How can one make so many recommendations for change in a system they know so little about?

  12. Now wait a minute – I had a lawyer file some papers for me to be compensated for a plane ticket I bought unecessarily based on what the airlines representative told me – he actually told me to buy the ticket (long story). Net result – I didn’t get all of the money back for the ticket since it was a non refundable ticket – since I’m not 100% happy with the outcome and I feel I was wronged, should I be able to sue the attorney? Isn’t that similar to what we see medically all the time?
    All jest aside though.
    I can’t speak for where Max lives, but around here – several of the local large attorney factories actively advertise for you to send your medical records in for them to revue to see if they can find anything that wasn’t done correctly. Yes, they actually say in their TV adds to send your medical records to them so they can evaluate them. Not if you think you have a reason to sue – but so they can find a reason. I have yet to see ANY attorney advertise in any way that if you are unhappy with your lawyer to call them and they will review your case for free to see if there was any negligence or not. No, that doesn’t mean they aren’t out there, but they certainly don’t advertise like the med mal attorney’s do.
    Damn.. I hope Matt is ok – I would have sworn he would have chimmed in on this argument. Maybe he had a NSTEMI at home? (yes, that’s a joke, I would never wish anything harmfull on anyone, even Matt – for those of you who would think I’m insensitive).

  13. This is what scares me about aspiring to be a plaintiff’s attorney. The cases in the textbooks — the intoxicated doctor, the sponges left in a child’s stomach, the switching of the scheduled surgeon/obgyn without consent of the patient under amnesia so the doctor could attend a social event — make it seem worth pursuing. Reading the above hypothetical courtroom cross examination brings a good dose of reality for anyone thinking of entering medmal. Heck, in this legal market maybe I should just focus on Professional Liability for all professions but Doctors. Especially Realtor’s who have gotten people into mortgages they had no business being in. Fortunately, the ability for them to practice their trade even though it used to be practicing law holds them to the standard of an attorney. Good read, and good commentary.

  14. Children: The Lottery Ticket of the 21st Century

    We are, as a nation and perhaps a planet, at a cross-road in medicine.

    Since the beginning of the 17th century, and until about 1960, physicians were deeply respected avatars of knowledge, social engineering, and the exercise of political power. Their influence extended into most areas of society: health, criminology, demographics, and military. Everything from the design of water/wastewater systems to the upbringing of the new working generation was influenced by medical experts, whose values on the sanctity of life, the centrality of hygiene, the abnegation of aging and the fending of death impregnated society with a vision of success and propriety critical to the development of our capitalism. Rightly so.

    Yet, starting in the 1960’s, a few critically important forces began to undermine physicians’ central role in the planning and development of society. First, the failure to effectively mitigate post-war socio-medical issues created enormous frustration through Vietnam-era veterans, and governmental medico-structures were unable to deliver acceptable solutions to post-traumatic stress disorders, “mutilés de la guerre” generally, and Agent Orange. Next, the great abortion debate arising in the 1970’s pitted most physicians against a powerful enemy: the Catholic Church and an invigorated primary Christian movement, which – counting Protestants – account for about 84% of the U.S. population. Third, the birth of the AIDS-HIV epidemic in the 1980’s, and our medico-pharmacological inability to control or resolve it for over a decade shook the world’s faith in the conjoined medical-pharmaceutical industry. Finally, the 1999 Institute of Medicine report – “To Err Is Human” – was the icing on the decaying cake of medical respect.

    Two intersecting issues have accelerated the decline of physician respect. First, what I would call “the sickening” of the American (U.S.) population. Second, the inability of more and more expensive technologies to actually help physicians in their quest for differential diagnoses.

    The first issue has two key portions. Portion “A” is – simply – dietary and drug-type issues. With 35% of the U.S. population actually obese, and 74% actually fat, expanding fat problems make operations, hospital stays, and health costs a never-ending skyrocket. As one surgeon told me, “The fat on the outside reflects fat on the inside. Every organ, every vesicle, every internal structure is encased in fat. You can barely figure out what to operate on.” Portion “B” is worse: 20% of our population are alcoholics, drug addicts, or prescription drug abusers. 20% or more use tobacco. We consume 6.5 oz. of sugar daily, mostly in soft drinks, and watch about 4.5 hours of TV daily (even children ages 2 to 10). Our view of life, of health, of enjoyment, is conditioned by advertising and purchasing ability. It is no wonder that we are debt-ridden, and unable to work effectively. We are fat, ill-educated, addicted and lazy. It’s a bad prognosis.

    The second issue is equally disturbing. Despite the tremendous increases in sophisticated imaging technology, there is no significant decline in bad outcomes. The cost of this technology is huge, and is a reflection of “defensive” medicine. More cake icing: Patients do not want to return for additional physician reviews, and so the rate of hospital re-admissions is over 20% – for the same or related problem. The need for doctors to “get paid” by listing one of a group of several “differential diagnoses” commits the physician – via a process called “analytic anchoring” – to a potentially wrong, if not life-threatening, mis-diagnosis.

    Enter children. It has never been safer for a patient to be delivered of a child, and never in history more dangerous for a doctor. Save for a very few exquisitely-managed hospital “L&D” (labor and delivery) departments, neonatal injuries account for 75% of the cost of obstetrical malpractice insurance. Regardless of the extent of the injury, any neonatal injury will likely result in a lawsuit. With 49% of our pregnancies both unplanned and unwanted, it is a relatively predictable outcome: birth problem for mother or child = lawsuit. A lawsuit is a way to assure that the unwanted child has some available funding for life’s future.

    Hence, our view that children are the nation’s new lottery ticket.

    While it is true that physicians “win” jury-trial lawsuits 80-85% of the time, the vast majority of lawsuits are settled long before trial, and frequently at a significant fraction of the physician’s policy-limits (typically $1,000,000 for obstetricians, for example). Both insurance companies and physicians fear trials, because the hundreds of hours and hundreds of thousands of dollars spent on trial preparation are unaccounted for, and largely wasted.

    Most victories are pyrrhic, for patient, physician, insurer, and court systems. Further, the tax-payer shoulders a hefty portion. There is no victory in the courtroom. Laws in almost all states are so organized that an insurance company which – in good faith – defends a physician (most want to be defended, most think they acted properly) will suffer potential millions of dollars of excess “bad faith” losses. The losses cripple insurers and drive settlements, increase malpractice premiums, regardless of physician correctness.

    “To be named is to lose.” Naming is easy: 48,000 lawyers enter law-school annually; 18,000 doctors. But producing a personal injury lawyer takes three years. Developing a doctor takes no less than seven.

    There is no happy solution in sight. If Americans could commit to healthier eating, just a little exercise, and fewer tobacco, drug and alcohol panaceas for their depression and despair (clinically, 5% or more of us are depressed; probably 20% are largely, simply, unhappy), they would enter the hospital less frequently and, once there, experience easier surgery and exit with a stronger and better prognosis for rapid healing.

    In short, we have destroyed the key relationship between doctors and patients: the faith and trust that engenders the placebo effect. Most physicians (if we can still believe them) will tell you that the placebo effect accounts for 50% or more or all healing. Call it faith, if you will, and surely Christ did, and was recordably an impressive healer, if the record is correct.

    Faith in the healer requires returning to a world in which physicians are trusted, believed, and respected. We have our doubts about this possible eventuality.

    If it happens, expect that the costs of medicine will halve. And the value of your child’s lottery ticket status will decline as well.

    Sic transit gloria mundi.

    Eugene Rosov, Pres.
    Pediatricians Ins. RRG of America, Inc.

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