Healthcare Update – 02/02/2010


See more news stories from around the web over at ER Stories in the Satellite Edition of this week’s Healthcare Update.

When it’s dead and you don’t know what to do with it, send it to pathology. When it’s alive and you don’t know what to do with it, send it to the emergency department — and don’t take it back. Wesley Healthcare Center in Auburn, IN sent a patient to the Angola Hospital emergency department and then wouldn’t take him back after he was cleared for release. Demonstrating an efficient use of resources, Gregory George was forced to stay in the emergency department for a week with around-the-clock care.
One former employee of the nursing home stated that the “patient dump” had been planned because the nursing home staff was fed up with the patient’s “excessive complaints” to the State about the nursing home.
In other news, the Joint Commission has declared that this incident shows how nursing homes may be a danger to patient safety. All nursing homes must close. Immediately.

Here’s a good way to help clear up California’s budget deficit. Start fining hospitals for mistakes.
If this takes off, soon they’ll be fining housing contractors for using the wrong pipes, police stations for arresting the wrong people, schools for failing to use the right curriculum, law firms for filing the wrong motions, and legislators for drafting crappy legislation. Instant riches!
Ooooh ooooh, I know! Maybe they can fine citizens when they move out of the state. Then California would have a budget surplus in no time.

Can’t take the heat? Get out of the kitchen. California city mayor has been to the emergency department five times in past six years suffering from chest pains after getting into arguments at city council meetings. Maybe it’s time for a career in horticulture?

Difficult decisionmaking. An elderly patient with multiple organ systems failing goes to the emergency department for an exacerbation of heart failure and decides he wants “everything done”. He is put on a ventilator, goes on dialysis, requires a feeding tube, and dies after six months in the hospital. The patient’s daughter questions whether her father’s decision was the correct one.

Attorney wins $3.8 million verdict for client in bad faith medical malpractice insurance claim, then takes $1.7 million in attorneys’ fees. When costs of the suit are paid, the attorneys will likely make more money from the case than their injured clients. Now the attorneys are suing each other about how the attorneys’ fees should split. Ironic how the attorney with the money is now referring to the ones suing him as “bank robbers.”

Now craziness has a name … it’s called CYA.” This editorial in the Chicago Flame about health care reform and defensive medicine is spot on.

Interesting paper about defensive medicine and “disappearing doctors.” This 2005 study finds that increasing malpractice premiums generally don’t affect the numbers of physicians practicing in each state, but that increasing premiums do affect the willingness of some specialists to remain in practice – such as rural surgeons who tended to just retire. This study showed that “direct tort reform increases physician supply in the short run by 2.4 percent” and reduces growth of expenditures between 5 and 9 percent. Note that the paper was published shortly after tort reform was enacted in Texas and that there have been significant and sustained increases in physician supply in Texas since tort reform was enacted.
A graph in the paper notes that between 1993 and 2001, malpractice insurance premiums for internists in Texas increased by nearly 150%. After tort reform was enacted in Texas, medical malpractice premiums dropped by more than 40%.
What else do physicians do when faced with increasing malpractice payouts? Order tests. Significant increases in cardiac catheterizations and CT scans were noted with increased malpractice payouts.
Don’t worry, though. According to the trial lawyers, defensive medicine doesn’t exist.
Hat tip to Ezra Klein

What’s with the bizarre viral infections coming out of Africa? AIDS, ebola virus, now the chikungunya virus. Get bit by a mosquito carrying the disease and you could come down with high fevers, a rash, and severe arthritis for several years. Yes, you can sign me up for the vaccine, thank you. More about the virus from Wikipedia and from the CDC.

Minnesota is the 34th state to begin monitoring the prescription of narcotics. According to this article, 117,000 Minnesota adults abuse prescription drugs each year. Next month, prescription records for patients will be available in a centralized database. The comments section to the article has many anecdotes about people who fear they won’t get needed pain medications and about how people currently abuse the system. One post wonders whether everyone will just begin using aliases and fake addresses. That may work until you have to show a copy of your ID when picking up a prescription. No ID? No Vicodin.


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  2. The problem with your Texas claims about costs and such is that they’re 5 years old. More recent studies since the passage of “reform”, and the facts on the ground, show no savings in costs of healthcare, nor has Texas position in physicians, either by specialty or overall, per capita, changed much if at all. You can verify the number of physicians at the Texas Medical Board website, the physicians per capita at:

    And the dollars spent on healthcare here:

    For more up to date information on why and why defensive medicine nor tort reform is not a significant driver of healthcare costs, you can look here:

    If “malpractice pressure” did in fact drive the ordering of more tests (as opposed to the payment model), wouldn’t Texas’ have shown a marked decline in healthcare spending?

    Is nice to see yet another debunking of the “disappearing docs” claim. In short, docs go where the money is. Always have, always will, and rural America ain’t the place where the money is.

    • Matt,

      It never ceases to amaze me how completely you have sold your soul. I have to assume, based on what you state to be your profession, that you are of reasonable intellect (given that a JD is a professional degree). Now, what I can’t believe is that you can not see the simple disconnect that forces this problem. There is NO perfect test in medicine. Even the best of tests predict the presence or absence of disease to the tune of 0.01% accuracy (or roughly ~1 in 10,000). Additionally, no human being can possibly do every thing right all of the time. It simply isn’t possible. So, every doctor lives with the fear that their “1 in 10,000” case (where a given test fails to find disease) occurs when they have made (or are perceived to have made) some unrelated error. The fear being this “error” will be pounced on by you and your ilk, and a suit lost. Now I understand, that happens rarely. I get that. I also understand that there are real cases of malpractice – I get that too. But the damage a suit can do is simply too great to ignore. It is much akin to an Africian American fearing false arrest. It is a rare event, but it happens enough that fear of the police is rampant in our cities.

      Medicine is still a profession that is taught through what is essentially an apprentice system. And, as these fears, reasonable or not, have existed for generations of learners, the practices used to combat them (over testing) now form the standard practices of the profession. It is not unusual to spend thousands of dollars to find cases that themselves occur so infrequently as to be once in a career events. The problem is that now, so long after the start of this lunacy, we even blame ourselves (“He violated the standard of care”) when those tests aren’t run. There is no question that even if sweeping, nationwide reforms are enacted, it will take YEARS before the effects are felt. And if reforms are only local, they won’t really save much at all. Too many physicians will have trained elsewhere, learning the expensive, “protective” manner of practice, to drive serious cost savings in a state.

      If you want proof and not just rhetoric, I can offer two examples. Blood cultures in pneumonia and strep swabs for sore throats. Both of these tests are scientifically antiquated. We know, proven time and again in large, well validated studies, that neither of these tests will effect patient outcome. In fact, strep swabs have been shown to be harmful in that the number needed to treat (to avoid rheumatic heart) is many times greater than the number needed to harm through potentially life threatening anaphylaxis. However, tradition in medicine is so strong that in many places these tests are not only routinely performed, but are used as markers for “quality of care”.

      Now, neither of these tests is associated with many lawsuits – so there is little personal risk to the physician to changing their practices. Why is it so difficult for you to understand that if the ailment IS one often associated with a suit (orthopedic injury, obstetrics, chest pain, or stroke) it will take even more time to evolve practices? Oh yeah, you just don’t want to see that, after all, it would mean less money for you…

      Look, the biggest difference between our healthcare system and those with a single payer is not the source of the payment – it is the limitation on low-yield testing. If one agency pays for everything and says “look, we are not going to pay for that test, it is too low yield and too expensive”, then the standard is changed immediately. Unfortunately, the American public will never stand for that.

      Look at this article (completely unrelated to tort):

      A woman is injured by a group of rugby players. About halfway down are the paragraphs: “Ms Winch was treated at Bronglais Hospital in Aberystwyth where she underwent five x-rays. She was released on Sunday morning.

      There are concerns she may have fractured her cheek bone and Ms Winch will have to call the hospital for her results on Tuesday.”

      Could you image this occurring in the U.S.?!? The lead story wouldn’t be the injury but rather the fact the the ER refused to perform a facial CT (expensive, but gives you an answer right now) and sent the poor woman home with an undiagnosed fracture (number one cause of lawsuits against emergency physicians in terms of number of suits filed). But hey, we don’t practice defensive medicine. Whatever.

  3. Also, it’s interesting that you focus on the attorneys battling over a sum they contracted to receive and ignore the real point of the $3.8 million dollar claim:

    “Poppe said he then advised Daniels that she might have another case — against Grimes’ insurer, American Physicians Assurance Corp.— for refusing to engage in settlement discussions for two years, then making an offer of $75,000, even though the company’s documents showed it had valued Daniels’ damages at $1million. (Kentucky law allows bad-faith claims when insurance companies don’t resolve claims “honorably and expeditiously.”)”

    I thought insurers just paid millions no matter what, and all the good cases were settled? At least that’s what the doctors tell me.

    I wonder, when the doctors sue insurers, which they do frequently, how much do they pay their attorneys?

    • You know Matt, you keep leaping to doctors suing insurance companies. I do assume that even someone as sociopathic as you understands the difference between a contract dispute and medical malpractice, right? Keep in mind, insurance companies, under ERISA, are fairly well insulated against suits based on the medical outcomes of their decisions. That risk is left to the physician. I not sure that any physician, or physician’s group would honestly argue that an attorney is well suited to determine if a breech of a written contract occurred. What we take issue with is that fact that you are very poorly suited to determine if a medical practice is poor. Even more to the point a contract in contravention of sound public policy is unenforceable. On the grand stage, the current system of medical torts in this country is in direct contravention of sound public policy and as such should be changed.

      • ERROR: the above should read “I not sure that any physician, or physician’s group would honestly argue that an attorney is NOT well suited to determine if a breech of a written contract occurred.”

    • Probably because no one puts much stock in surveys of physicians by their own lobbyists. Just like you wouldn’t put any stock in a survey of health insurance execs on whether docs are paid too much. Or lawyers on whether there are too many lawsuits.

      • Given that the Democratic party has been bought, part and parcel, by the Trial Lawyers Association (I’m sorry, the Justice League of America or whatever nonsensical they call themselves now), it is hard to put any stock in healthcare reform occurring that has anything to do with actually reforming healthcare.

  4. By the way, WC, did you read your own study all the way to the end? It directly refutes the access claim you’ve been making for some time, as well as many of the claims about malpractice driving costs:

    “Our analysis suggests that state-level tort reform is unlikely to affect the practice of medicine by averting local physician shortages. We also find no relationship between the level of malpractice premiums and the presence of raditional tort reform measures such as damage caps. This evidence does not imply that traditional tort reform measures are ineffective,
    for they may have reduced the growth of (perhaps
    unusually high) premiums in the states where they were enacted. However, our results do call into question the view that states with traditional tort reforms have lower levels of premiums or defensive medicine than states that have not
    implemented such reforms. Last, while increasing malpractice liability pressures do seem to substantially increase expenditures on diagnostic procedures, we find little evidence that malpractice payments are driving the dramatic increase in overall healthcare expenditures.”

    Note also that they do not state that “decreasing” malpractice liability pressures will reduce expenditures on diagnostic procedures. The evidence from Texas 5 years later in fact shows they do not!

    I wonder why you would cite this study given that it explodes so many of your beliefs regarding access, cost, etc.

  5. “Last, while increasing malpractice liability pressures do seem to substantially increase expenditures on diagnostic procedures, we find little evidence that malpractice payments are driving the dramatic increase in overall healthcare expenditures”


    You miss the point. If liability pressures produce SUBSTANTIAL (their word, not mine) increases in expenditures, then that is an easy place to reduce costs. But as I discussed above, it will take a significant, pervasive change and a great deal of time to have that impact.

    And I think that the statement “we find little evidence that malpractice payments are driving the dramatic increase in overall healthcare expenditures.” is a re-demonstration of one of the very few facts you and I agree on – the actual risk of having to payout on a suit without merit is low. So, if we measure trends of payments versus expenditures, there is no correlation. However, if we look at the author’s first statement (“increasing malpractice liability pressures do seem to substantially increase expenditures on diagnostic procedures”), we define the problem. It is the “pressure” (or, in other words, the perceived risk) that is driving up costs – not the actual risk.

  6. The issue of rising medical costs is a complex one. I know that Matt does not want to believe that tort reform has anything to do with them, so I suggest liability reform. Lets make the patient have a greater liability in their care by having them directly pay for their diagnositic tests and treatments. Rather than insurance companies contracting and paying hospitals and healthcare providers, lets have the healthcare providers bill the patients and the patients then get the money from the insurance companies.

    In this way the patient is the one who decides if they want to pay for the MRA for their migraines. If they decide they dont want the test and down the road they blow a AICA berry, no suit because they choose not to get the test.

    Right now patients are disconnected with the costs of their care. Physicians are also disconnected from the costs because they bear the costs of liability. Lets let the old saing be true, “you get what you pay for!”

  7. “I know that Matt does not want to believe that tort reform has anything to do with them, so I suggest liability reform.”

    Nonsense. I believe that liability costs will effect medical cost. The costs of insurance do have an effect, but it’s tiny, and really doesn’t vary much. I know you want to shout defensive medicine, and that’s fine, but none of your proposals have ever been shown to reduce defensive medicine. So discussing it is kind of pointless.

    As to your payment reform, I agree, that’s the cure. However, no serious change is being proposed to your payment model, so that’s also a moot point.

    As far as physicians bearing the costs of liability – that’s simply untrue. They transfer that to their insurer. The average malpractice premium is less than 10% of your overhead. And you really have no concept of your risk, so it’s impossible to propose solutions when your fear is not grounded in reality.

  8. In short, the whole tort reform thing is much ado about nothing – UNLESS you’re a victim of malpractice or a malpractice insurance company. For the rest of us, the vast majority of physicians and patients, it has a negligible effect on our lives even if the centerpiece of all tort reform proposals – caps – were enacted nationwide.

    • Matt:

      If you have health insurance or pay taxes, the tort reform thing has a lot to do with you. When a patient comes in with a bad headache that you think is just a migraine but they get a MRI so you dont get sued in the future and they cant pay for it or have a government insurance that doesnt pay for the whole test, the money has to made up elsewhere. This comes out of the pocket of those who pay taxes and those who have private insurance. The patient will always want everything because they are isolated fromt he cost. We have a system that is like a restaurant that you dont ever see or pay the bill. You go in because you are hungry, but you are not sure what you are hungry for. Since you are not paying the bill, you order everything on the menu becuase on of those things may be it. The Chef doesn’t want to offend you so they oblige and cook everything. The bill is then handed off to the government or someone else.

      I will bet that you eat differently when you are the one paying the bill.

    • “If you have health insurance or pay taxes, the tort reform thing has a lot to do with you.”

      No, it really doesn’t. If it did, states like California, which has had this “reform” for 30 years, would have markedly cheaper health insurance and markedly cheaper healthcare. They don’t. The proof is in the pudding there. Caps on non-economic damages don’t change the cost of healthcare.

      What’s more, the other thing you have to remember about a medical malpractice claim is that if it’s paid, the health insurer or the government has a subrogation interest for anything they’ve paid to date. For example, let’s say you are in a car wreck, and run up $100,000 in bills covered by your health insurer or the government. You eventually settle your claim for a number in excess of that. You will typically be paying the health insurer or the government back. That shifts the cost from all the people in the health insurance pool or the taxpayers on to the party responsible for the harm or their insurer. How is discouraging that a good thing for the taxpayer or the other members of your health insurance pool?

      I agree with you on the payment model of medicine, it’s designed for maximum inefficiency. Neither the patient nor the physician is incentivized to look at cost, regardless of liability.

      • Matt:

        The cost of medicine has more to do with “defense” which was the point of my post. When you go out to eat, do you order everything on the menu? No. But in medicine, you might be sued because you didn’t order the thing on the menu that might get you sued. This is where the real cost is. Caps can help a bit, but to really bring down the costs we need to shift the liability. First, we need to follow the legal profession and have signed contracts and arbitration agreements with our patients. Secondly, we must hold them liable for the results of their own decisions. Third, we must connect patients to the costs of their care.

      • Throckmorton – Great analogy ..the menu/resaurant!

        I agree with connecting patients to cost of care, like mdcd patients that use the ED for colds and other minor things they could see a clinic or private doc (if they accept mdcd) for. I agree with other med professionals that say they should have a 5 dollar co-pay or more. (Although in the ED you can’t refuse and they’d still be seen and then not pay the bill)

        But as a patient, I only go to tests my docs order for me… and I’ve had many of the expensive ones. If I had to pay cash for them first ..I would not be able to do it. Is that what you mean by connecting patients to cost .. pay up front? I happen to have a plan with a fast turn around time (1 week from when ins co gets bill)..but it would still be a hardship. I know ED would be excluded at least. But out patient tests add up too.

        “we need to follow the legal profession and have signed contracts and arbitration agreements with our patients”

        Can you expound on that? Regarding payment/ regarding lawsuits?

        I’d gladly sign something absolving my physicians of lawsuits. it bothers me to think that may get in the way of treatment. I just want my docs to go with their instincts and NOT be concerned about being sued. But I guess that would be a perfect world. It just bothers me that a physician has in the back of their mind I might sue and so lawsuit is in the pt/Dr exam soup… and in my case to me ..because that is not how I think ..i feel I have other important things to be focused on. I would even sign an agreement absolving them from suits even if I died.

        Maybe that makes me stupid, but I view the 2 docs I know best as docs who have always tried to help me and especially one ..has worked hard to facilitate healing me. I would never turn around and hurt them that way ..with a suit.

        Unless GROSS negligence coming into the OR under the influence of drugs or alcohol and removing my spleen instead of my appendix.

      • “But in medicine, you might be sued because you didn’t order the thing on the menu that might get you sued. This is where the real cost is.”

        Except that’s not where the cost is. You guys keep saying this and claiming we need to do X or Y reform to do it, but every time we’ve tried that reform it doesn’t change things. You say you “might be sued because of X, Y, or Z” but you really don’t know. You don’t know how likely it is that you’ll be sued if you don’t, how likely it is the other party will prevail, or what the cost is. In short, you’re just guessing. It’s like never driving faster than 25 because you heard a story about someone who drove 55 and got in a car wreck. How can we draft legislation to alleviate fears that aren’t based on any assessment of actual risk?

        The legal profession has signed contracts, but few if any lawyers utilize arbitration agreements. And really you’d have a hard time utilizing them in the medical field I think given that they have to be reciprocal.

        Simply put, it’s very difficult to shift the liability for one’s own negligence. Not sure what your second point about holding the patient liable means. As to your third, good luck. I don’t see any physician sponsored legislation out there to move us toward that. I wish there was, but the public doesn’t seem to want it.

      • Matt, you’re looking at a gray world using black and white glasses.
        “It’s like never driving faster than 25 because you heard a story about someone who drove 55 and got in a car wreck.”
        That’s not a bad analogy. But it doesn’t catch the gravity of the fears that doctors have – fears that trial attorneys and the AAJ foster because they are allegedly GOOD for patient safety.
        Look at the issues with Toyotas and gas pedals right now. A handful of cases have been widely published in the media. Gas pedals stick. People have died because of it. Others have barely escaped with their lives from car accidents. What’s the effect? Ray LaHood comes out with the brain dead statement that no one should drive their Toyotas any more. Suddenly the subset of Toyota car owners in this country is paralyzed with fear. THAT is what doctors have to deal with.
        Suppose you had a baby son or a baby grandson. I just came up with a new breed of pit bull that only bites when it’s justified. I have genetically removed all frivolous biting tendencies from their personalities. Would you be willing to lather up your son with barbecue sauce and toss him into a dog kennel to play with a bunch of these genetically modified dogs? After all, I’ve made things safer, right?
        In reality when there is a risk or a perceived risk, no one is going to want to be the first one to jump in the water. They’re going to see whether things are really safe, first. You won’t get immediate changes in behavior from physicians any more than you’d be willing to exhibit the same behavior yourself. Every time a law firm publishes a news release about the next multimillion dollar judgment against a physician, it just reinforces the notion in our minds that the waters aren’t safe, or that the dogs really will bite, or that the gas pedals stick, or that speed causes accidents, or whatever analogy you want to use.
        Of course you’ll respond that people should be responsible for their negligent acts. I agree. That’s the second part of your argument that falls flat. Tell me how to act non-negligently in a prospective manner and I’ll do it. You wouldn’t dare even try to tell me how to manage a patient with chest pain in a prospective manner, because on the one patient in a hundred that has a bad outcome using your algorithm, you’d be crucified in court.
        Here’s a challenge, though. I dare you to come up with an algorithm on how to practice any aspect of law at all in a non-negligent manner. You pick it. Contract law. Personal injury. Criminal law. come up with your manifesto and I’ll publish it in a post. I’ll lobby all the other blogs to republish it. I’ll submit it to the ABA Journal. Your piece on how not to be negligent could be the building block for a new world order. You’ll be famous. But I know you’ll never do it.
        Until all you retrospectoscopic finger waggers can tell me what not to do wrong in a prospective manner, you’re blowing smoke.
        Consider yourself outed.

      • By the way, Throckmorton is exactly right. One of the biggest things we can do to reign in health care costs is to create a free market. Consumers need to have some skin in the game.

      • I agree that if a patient knows how much must be paid, then it stands to reason the patient becomes more vigilant about when and where you seek care and what for.

      • ” But it doesn’t catch the gravity of the fears that doctors have – fears that trial attorneys and the AAJ foster because they are allegedly GOOD for patient safety.”

        Actually, my analogy makes even better sense than yours since you’re far more likely to be in a car wreck than ever pay a dollar as a result of a suit. You may even be more likely to be in a car wreck than even get served with a lawsuit, it’s hard to say because the number of physicians served isn’t kept nationwide. The AAJ and the plaintiff’s lawyers may “foster” fears, but if so it’s a byproduct of the lawyers doing their job. You’re afraid, but generally based on apocryphal stories of cases you no little about. The people stoking the fear aren’t those attorneys.

        ” Suddenly the subset of Toyota car owners in this country is paralyzed with fear. THAT is what doctors have to deal with.”

        Another bad analogy. Why? Because if your car is a Toyota, and the gas pedal sticks, there’s a VERY high possibility that you will be injured and suffer some damage, and you’ll have no control over it. If you’re a physician and you’re negligent, there’s a very high possibility that the patient will do nothing about it. Yet you can control whether you’re negligent. What’s more, again, you will likely suffer no out of pocket damage, other than the time you spend at trial, if you’re in one of the tiny subset that actually go to trial!

        Interestingly, there are stories of bad physicians doing horrible things all the time. But you don’t see patients deciding they’ll never go to a physician anywhere again.

        “In reality when there is a risk or a perceived risk, no one is going to want to be the first one to jump in the water.”

        Nonsense. You drove to work didn’t you? You’ve flown lately haven’t you? You have entered into partnership agreements or employment agreements haven’t you? You’ve taken out loans, right? All of those things involve risks, and likely far larger risks than the risk that you’ll ever pay a dime out of your pocket as a result of your professional negligence. So how can you claim this one thing has paralyzed you to such an extent?

        And really, the evidence as far as tests ordered and cost of healthcare shows that when you get the changes you want, your behavior doesn’t change at all!

        “I dare you to come up with an algorithm on how to practice any aspect of law at all in a non-negligent manner.”

        I see the problem though. The above quote. You think one CHOOSES to be negligent. It’s because you don’t understand the meaning of the word. It’s not an intentional act, per se. It’s not like a battery, where you make the conscious intentional choice to strike someone.

        Negligence is effectively an accident. You’re negligent when you think the light is green when it’s red. You’re negligent when you accidentally operate on the wrong leg. You didn’t CHOOSE to make the mistake, it happened. Doesn’t mean you should be insulated from the consequences though.

        There is no algorithm for humans to achieve perfection. That doesn’t exist. It’s in our nature to make mistakes. That’s why we buy insurance – not because we plan on running our neighbor’s kid down in our car, but because we understand there’s a cost if we accidentally do. The purpose of a lawsuit, though, is to determine 1, if indeed you did make a mistake, and two, what the cost to another person was of your mistake. Sometimes there’s a dispute about whether you did, sometimes there’s a dispute just about the value of the mistake.

        I think you’ve been the one who’s been outed. For using and discussing terms that you don’t understand. Hopefully the above helps clear them up for you.

      • Far more likely to be in what kind of car wreck? A fender bender? Of course you’re right. No one is afraid of those. A head on collision where people are killed? I doubt those are more common than being served with a malpractice suit.

        People stoking fears aren’t attorneys? Have you actually visited the AAJ site? You don’t think that attorneys who brag about their $60 million verdicts for a botched thigh lift gives physicians cause to stop and wonder? Your logic circuits need some rewiring.

        The gas pedal analogy is a great example – for just the reason you cited. In a very small percentage of the millions of Toyota vehicles on the road, a malfunction beyond the control of the driver will cause a situation in which the driver can be seriously injured or killed. With medical malpractice, a small percentage of patients will be successful in a multimillion dollar judgment against a physician. I agree with you that many of those judgments are legitimate. The issue is not whether patients deserve to be compensated. The issue is whether or not the potential for those judgments affects physician practice patterns. It undoubtedly does.

        If doctors can “control how we’re negligent”, tell me how. You make these overreaching nonsensical statements but have no support for them. Just give me a link. A sentence. Anything. How can we control how we’re negligent? I’m really not that smart, so enlighten me.

        Driving to work and flying in an airplane have nothing to do with perceived risk and you know it. Some people, such as John Madden, are so afraid of flying that they don’t do it. Similarly, some doctors are so fed up with the specter of medical malpractice that they leave medicine. BUT … most people who are afraid of being injured take steps to protect themselves from being injured. Drivers wear seat belts and drive cars with air bags. Maybe overly cautious drivers don’t drive at night or don’t drive on highways – even though there are no “studies” to prove that it is more dangerous to drive at night or to drive on highways. They’re doing things that they perceive will lessen their risk.
        Doctors do the same thing. Whether from news releases about how a doctor was successfully sued for failing to obtain a CT scan or from an anectdotal story from a colleague about how they were sued for not calling a surgeon quickly enough, doctors create their own “safety behaviors” to lessen their perceived risk.

        Your logic about negligence is again, short sighted. True, negligence is an accident where one doesn’t follow rules. “Don’t go through a red light” is a black line rule that everyone should follow. But even that black line rule has exceptions – and your argument fails there. What if someone is sitting at a red light and an ambulance with sirens blaring is boxed in behind them? Does the person pull into the intersection and break the law? Or does the person wait for the light to change and fail to yield to an emergency vehicle? Answer that question and put your house and retirement account on the line if you’re wrong. I can guarantee you won’t definitively answer that simple question. Guarantee it.
        Medicine is different. Many times treatment comes down to medical judgment. That medical judgment is often based on studies and group opinions that conflict. There is no perfect consensus in any aspect of medicine. Doctors have been sued for giving tPA to stroke patients and for not giving tPA to stroke patients. So which is the negligent path to avoid? Do we give it or don’t we give it? Should doctors wait to close a partially contaminated wound or close it immediately? Which is negligent?
        I can come up with a million scenarios, but you get the picture. You keep focusing on the retrospective – compensating people for a “mistake” after it has allegedly “occurred”. I’m asking you to look prospectively – how do we prevent all these “mistakes”?
        You won’t even venture an answer because by doing so it cuts off your ability to earn money with your retrospectoscope. “If only the negligent doctor has done this differently, my poor client would never have suffered these grave injuries ….”

      • WC you seem to have a problem with the fact that a lawsuit looks at past events. As if because things happen in the past it’s simply unfair to say they might constitute negligence when you look at them.

        You still don’t understand negligence but I think we both know it’s willful ignorance at this point.

        The “gravity of your fear”? When you can’t tell me how likely it is something will happen how much can this fear possibly control your life? Again, you don’t know whether you’re more likely to be sued or in a car wreck resulting in a debilitating injury yet according to you you’ve changed your whole practice but have you quit driving until you know?

        You want us to do a wholesale change (of some kind) and abandon a constitutional right because of fears you can’t quantify. You want to convince me you’re frightened? Ok I’m convinced. But don’t you think we ought to have more than fear to dwny fundamental rights?

        There are some who want universal healthcare because they’re afraid of being uninsured and having an accident and going bankrupt. Something that happens far more often than a physician paying a single dollar of a judgment. Should their fear be enough to enact universal care? No constitutional rights even involved. Or is their fear not as meaningful as yours? If we start abrogating rights due to each groups fear, rational or not, where does it end?

        What’s even crazier is that most physicians favorite “remedy” is something that has been shown time and again not to change their actions. It’s purely an insurance profit protection measure. Which is an even sadder reason than your fear of something you have never even attempted to quantify.

        You cry for the free market yet you run to the govt for protection. You say the govt shouldn’t declare healthcare a right yet you want to deny others CLEARLY defined rights. What is that if not hypocrisy?

        One thing I do notice is that your fear is mostly the fact you are sued more than the outcome. I don’t know how to help you there other than to remind you that there will always be some system where people will gather facts, in hindsight, to resolve a dispute. And there will have to be some mechanism to bring the parties in and require them to explain their side. It may be that after all facts are in there is no dispute. But even if there is there will still be a mechanism of determining who was right. And you won’t like that process whether we call it a “lawsuit” or “making ice cream with the playmate of the month”. You’ll bitch about it and (presumably) be scared to death of it. Because no one likes to do it. Disagreement isn’t fun under any circumstances.

        By the way, it’s funny to see you lecture about risks but then you refuse to acknowledge the risks you take every day which likely have far better odds of adverse consequences.

      • I like how you answered all the questions I posed. Take off your tap shoes and give it a shot.

        “I can guarantee you won’t definitively answer that simple question. Guarantee it.”

        You’re so predictable it borders on the farcical.

      • I’m typing on an iPhone killing time in an airport. Hard to keep track of all your questions on a small screen. Which ones specifically?

        Although I posed four rather straightforward ones to you that remain unanswered so your scorn seems a bit premature.

      • ” I’m asking you to look prospectively – how do we prevent all these “mistakes”?
        You won’t even venture an answer because by doing so it cuts off your ability to earn money with your retrospectoscope. “If only the negligent doctor has done this differently, my poor client would never have suffered these grave injuries ….””

        WC, was that the question you wanted me to answer? I can’t. I have no idea how to improve the way you deliver your services. Like you in practicing law, I don’t have the background to suggest that. That’s on you.

        I do know that at least one group of providers, anesthesiologists, did in fact look very hard at what they were doing and have significantly reduced their premiums:

        Whether that can translates to what you do I don’t know.

        I am certain, though, that it will require you looking into the past, something you don’t like doing, apparently.

        And like I said, I don’t really earn any money off med mal. Of the two cases in over a decade of practicing that I have handled, one settled very low five figures pre-suit with the hospital as it was a nurse’s actions, and one settled high six figures but involved what was an intentional act followed by falsifying the medical records. Also resolved pre-suit. So your constant insinuations and accusations that I’m somehow horrible because you think I earn a living doing this type of law don’t really make sense.

        And really, even if I did make my living handling those cases, it wouldn’t necessarily bolster your arguments any by calling me greedy. I realize that demonization is part of today’s political discourse, but for some inexplicable reason I expect more of you.

    • “I agree that if a patient knows how much must be paid, then it stands to reason the patient becomes more vigilant about when and where you seek care and what for.”

      I agree as well. Were this to happen, I think you would also see a demand for more effective ways to rate physicians, and you would see better physicians start charging more for their services.

      But for some reason physicians haven’t really pushed this kind of reform.

  9. Good reads WC – Thank you. 🙂

    I was deeply moved by the daughters NYT article regarding life and death decisions about her elderly father and the toll it all had been taking on her.

    I know what that is like ..although somewhat different. I give that woman a lot of credit for honoring her father.

    Off topic update:
    I feel like I am moving on from the worst of my emotions regarding Mom’s situation. I never did go to the hospital to review the ED records (because I was thinking she was neglected and had sepsis while in the nursing home and I think they hid things bad her sore was and that there were multiple not just one.)I let it go. She’s gone and she was declining over the winter.

    But ..earlier in January.. her former aide called me at home one night. Told me she had multiple cuts and bruises on her feet. (She had awful circulation and was diabetic) She said she knows for a fact that the wound dressing dated -changed on the 10th was still not changed on the 15th. She suspected a uro problem causing pain ..I thought bowel ..but either one -staff never pursued testing for her. There’s more. This woman was the best aide with my mother. I don’t know why she calls me because she gets quiet.

    Am I wrong to let it go? It won’t bring her back. On the other hand if there is negligence ..then it’s happening to other helpless elderly people. I can’t see the forest for the trees with this.

    Delete if you want to WC.

  10. You’re probably right to let it go. Keep opening up an old wound and all that happens is that the scar gets bigger.
    If you are genuinely concerned about quality of care at the nursing home, call the state and report what you know. They can investigate without you going through the torment of a lawsuit.
    Just make sure you’re making a report for the right reasons.

    • Not all state boards are as independent as one might think, and they don’t have the power to award you damages for the costs of future care as a result of negligent care.

      • You know WC – I feel guilty for not going to look at her records, the triage notes and initial assessments by the ED doc. BUT .. it is just such a painful thought. i feel like I am moving on and if I go back and read that stuff’s reopening all those feelings again. I haven’t even been back to that hospital since then and really like it there, but I was relieved to know my recent procedure would be at a surgery center instead.

        Here’s the thing: if I go back and read her records and they match up with what the staff told me about her condition.. then there is nothing to report ..and I would be relieved ..although greatly pained to be there and read all about it.

        But,if I go back read it and learn that the nursing home was neglectful and she suffered way more than she should have ..even if she would have died anyway.. that knowledge may just rip me apart and i don’t know that I should set myself up for that and then live with that knowledge. Ignorance is bliss and all.

        But ..if I never go ..then I may always wonder… and seriously ..what if? What if there are things that need to be rectified? And maybe that call would’ve made a difference for others?

        They are very short staffed. I saw that. there were good things and then not so good things. And I don’t want to hurt anyone. mad at one nurse tho.

        This past summer, I was talking with a doc that works does procedures, etc, in that hospital and told him about mom’s last days in the nursing home and how staff knew certain things, had concerns, didn’t call me, etc and he asked what NH.I gave him the name and he got this look of disdain on his face and shook his head and it was obvious he didn’t have good thoughts about the place. And we discussed some better ones. I only chose that one so she could have continuity of care with her doctor..but in reality ..he or his partner only went in once a month and the rest was handled by fax or phone. I also thought she would feel better knowing her doctor she trusted so much would be in to see her. (MISTAKE!)

        Anyway ..there is so much I could say but I guess I can’t be certain ..unless I go read the records.

        What do most people do in these situations?

        WC ..what do you mean about do it for the right reasons?

        Matt ..I don’t understand your comment.”they don’t have the power to award you damages for the costs of future care as a result of negligent care. ”

        I am *not* looking to make money on my mother’s death.

        I have thought about something though.

        If I do get the courage to go review her records and if they prove the aide is telling the truth ..or that there is a discrepancy between what they told me vs the ED doc’s evaluation of her condition upon arrival … I will not feel good if I don’t address it with the administrator and I want one nurse in particular in the meeting because I already feel she grossly misrepresented Mom’s condition the day she died when I point blank asked her how her wound was healing and how was she. had she told me the truth ..I would’ve been there in a heartbeat! I would’ve been their Wednesday and Thursday too ..had they called with the concerns they were having. They used to call to tell me she was going to an appointment, that she got a cut on her leg from a wheel chair, whatever and this week ..there were a series of much more important things they knew about and did not call me. I would have one of my close friends go with me. I wouldn’t yell ..but be focused and professional and express my thoughts about it all and I want to ask that nurse some direct questions.

        Would Mom have lived? I don’t know. She was 85 and declining. She did not have the quality of life she had… unable to do anything for herself but eat and talk. She couldn’t even prop herself back up if she was sliding over in bed. Quality was not there.

        All that being said … I also don’t want to do any of it. It’s a haunting feeling ..the wondering.

        Mom’s aid ended up reporting abuse – an aide slamming an elderly patient into the bed rail and the patient had a large knee contusion and was complaining of pain in her knee the next day. She had called the other aide to change her pt and in anger she shoved the woman over. When Mom’s aid had to fill out the incident report ..she was told not to say the other aide pushed the woman ..just that the resident injured her knee on the bed. She stated she couldn’t do that. there’s more to the story and mom’s aide ended up getting fired. So ..either she’s lying to me for some reason ..or the nursing home is covering things up… which causes me to wonder even more about what happened with Mom that last week.

        And it still hurts that I didn’t see her for 5 days that week and she died on the 5th day when I always went there 2-3 times a week. I could’ve gone.

      • Actually, I realize that I was at that hospital in August for a procedure. I survived. It wasn’t the ED though. Probably overreacting about not going there again. Just the records ..not something I want to do.

        One of the ED nurses in the hospital I worked at, had her husband die of an MI in that ED and she had to go back to work there and did for years. That must’ve been hard ..seeing *the* cardiac bed when she had to go in there.

        I know I should just suck it up because we are better off when we face our fears instead of letting them magnify. I have to work on that. 🙂

  11. ” Every time a law firm publishes a news release about the next multimillion dollar judgment against a physician, it just reinforces the notion in our minds that the waters aren’t safe, or that the dogs really will bite, or that the gas pedals stick, or that speed causes accidents, or whatever analogy you want to use.”

    This is an interesting statement. Every time that you see news of a car wreck, is that another day you don’t drive? Every time you read of a terrorist attack on a plane, is that add another day until you’ll fly?

    You once said there are roughly 1 billion interactions between physicians and patients. Even you would concede that somewhere in there, there’s going to be some negligence on the part of the patient. And I think you’d concede that somewhere in that billion interactions there’s going to be a cost to a patient in the millions or even multimillions in lost income and medical bills alone, right?

    So, knowing that, a couple questions, if you will:

    1. How often would you expect there to be negligence involved in those billion interactions?

    2. How often would you expect there to be hard damages suffered of those interactions involving negligence?

    3. How often would you expect the damages to be in the millions?

    4. How many cases each year result in multimillion dollar judgments?

    I’m interested to see your answers.

    • Matt,

      Between 1882 and 1968, the Tuskegee Institute recorded 3,437 lynchings of African Americans and 1,293 lynchings of whites. Total of 55 a year over the time frame – against a population of several million. By your logic, African Americans had nothing to fear.

      Actually, this example fully works. African Americans of the day had no real knowledge of how to effectively lower their risk of these unjustified attacks. The Klu Klux Klan, much like the trial lawyers, fully believed they were defending their country against a serious threat, despite all logic and evidence to the contrary. And what they were doing, in reality, was destroying a basic trust in society; which had effects that carried over far outside these attacks (much like the trial lawyers).

    • Hey – some of us have jobs to work. And I still haven’t received page 1 from your manifesto on proper prospective care about anything there, Justice Roberts.

      You know how to use Google. Look the answers up yourself. Go to the National Practitioner Data Bank and you can find a ton of statistics.

      According to this NPDB Summary report, there were a total of 270,000 reports of medical malpractice between MDs and DOs between 1990 and 2010. Twenty billion divided by 270,000 is about 74,000. So malpractice reports are made in roughly 1 in 74,000 patient interactions.

      According to the 2006 report, the inflation adjusted mean payment was $332,000 and the inflation adjusted median payment was $107,000.

      Of course there is malpractice and of course patients need to be compensated when malpractice occurs.

      What’s your point?

      Because there aren’t a lot of multimillion dollar judgments doctors shouldn’t be afraid of them? I’m not buying what you’re trying to sell. Lawyers use the exact opposite when roasting medical malpractice defendants. “This life threatening complication can occur 1 in 100,000 times and the negligent doctor should have known to look for it.”
      By your logic, the state lottery system should go bankrupt, also.

      Your angle on the unreasonableness of fears doesn’t take into account the adverse licensing and malpractice implications of a NPDB report, either. Do you even have an inkling of what’s involved with those? An iota? A quark?

      I’m sure many patients suffer damages in the multimillions. And I’m all for compensating patients fairly. If there are multimillion dollar damages, then the patients should have periodic payments for their economic expenses. Right now the families and their attorneys get a windfall. If the patient dies two days after payment of damages, how much long term economic damages are there? Does the family have to return the unused economic damage money? After all, lawsuits are about *fairly* compensating patients, aren’t they, Matt?

  12. 1. How often would you expect there to be negligence involved in those billion interactions?

    Impossible to tell. But the published data suggest that of every 10 suits filed 4 will not involve any medical error.

    2. How often would you expect there to be hard damages suffered of those interactions involving negligence?

    Again, impossible to tell. How often would you expect that those bad outcomes could not have been changed, even if the medical care was optimal?

    3. How often would you expect the damages to be in the millions?

    Again, if we turn to the published data, if the case involved error, the average is ~500K. Worse, if it didn’t involve error there is a 25% chance that ~300K will be paid out.

    4. How many cases each year result in multimillion dollar judgments?

    How many people die in plane crashes each year? Does that incredibly low number prevent fear of flying? Do people change how they live in response to that fear? Yep – and physicians change their practices (regardless if the fear is justified).

  13. SeaSpray, you said you’d be glad to waive a claim for simple negligence and I understand. But if you were injured by that negligence and had significant long term injuries rendering you uninsurable, who would pay for your care? Especially if you couldn’t work?

  14. WC you said people don’t worry about fender benders and for the most part you’re right- IF they have insurance. If you don’t then you probably care very much because if you don’t have a few hundred for insurance you probably don’t have q few thousand to pay out of pocket for a new fender.

    Those of us with insurance know it’s remote we will ever pay any of an excess judgment. So you, for one, don’t worry about a fender bender. Do you know how likely it is you’ll ever pay out of your pocket in a malpractice case? More or less likely than the fender bender in excess of your car liability coverage?

  15. Matt – I understand in that case. Then you are forced into it. Those are legitimate reasons to help and protect the patients in a bad situation.

    I just could not hurt my doctors. I could not. It would have to be for a situation so bad that one wouldn’t recover and then I would think even docs understand. I don’t think anyone negates that.

    But if a doc has done everything they can, you know they’ve worked hard on your behalf ..they’ve been a great doctor, supportive, skilled and there for you… you know they did their best ..then how do you turn on someone? Things don’t always work out the way we want in life.

    I have a question for the doctors that read this?

    If you as a practicing physician were harmed by your doctor..unintentionally ..but as a patient was left as Matt describes… would you sue?

    I just thought of that question and I have never seen a doctor address that. What would doctors do if they suffered harm from their doc? WC ..what would you do?

    I think I’ve said this here before, but Matt you may not have read it.

    I have a friend who has severe asthma and after years of working had to go on disability. She had been going to her doc for years and had a great rapport with him and the staff.

    She was about to get her monthly injection..when a pediatric emergency came in and the nurse had to leave. When she came back in ..she injected my friend with 10 x the dose and she went into an immediate anaphylactic reaction and woke up 3 days later in ICU. Her doc had told the husband to get family together because it wasn’t good. But she rallied back. She had a heart problem which was caused by that and they put her on meds.

    She said when she woke up her doc was standing next to her husband by her bed and he looked ashen. She told him she wouldn’t sue and not to fire the nurse because it was a mistake. She said he looked like he didn’t believe her. They allowed her to go on vacation,but she had to stay in the beach house. She sent them a post card, telling them she was alright and for them not to worry. When she went back to the office they all hugged and cried. Her heart condition cleared and she has been fine for years now.

    *I admire her so much for that.* I’d like to think I am that patient/person too. She could’ve won a suit ..but she did not want to harm them and she recognized it for what it was. An honest mistake. She actually told them “if her kids bake a cake, make a mistake and leave something out the cake doesn’t turn out right. But if a DR or nurse makes a mistake ..they could kill someone. Everyone makes mistakes.”

    That was her rationale.

    MORE people should be like that. What’s most important is she lived and is well. But some people would want money anyway.

    Regarding suing my mother’s nursing home (assuming there is actually just cause).. it would be like blood money or I don’t know ..whatever I bought..I’d remember why I had it. It would just feel very wrong. I do feel I will have to do something if something is wrong and I don’t know I said ..maybe a meeting to air my feelings.. maybe like WC said them. Or maybe I should try to bury it all.

    I also hope I am not disrespecting Mom by not looking into it. It’s very painful to think about. Honestly I have extremely mixed feelings about it, it was a tough year ..that I was feeling I was beginning to get past and I don’t want to get dragged back into the worst feelings.

    • SeaSpray, I understand your friend’s rationale. But a couple of thoughts:

      1. On your friend’s case, I don’t think that’s as unique as you think. The number of medical errors is far, far higher than there are claims. Most people don’t sue for med mal, either because they don’t know about it or because their claim isn’t large enough to be worth the trouble, or a large set because they fully recovered and it’s not worth the headache.

      2. You say some people want more money, but often those people want money to pay bills. If you don’t sue, the physician and their insurer aren’t just going to hand you all you need.

      3. Your physicians aren’t going to understand if they don’t agree with you that their mistake caused your debilitating injury. They’re going to be very angry, and their insurance company, who is actually paying those damages, isn’t going to have all these warm and fuzzy understanding feelings either. They’re going to expect the lawyers that represent your doctor to do all they can to reduce what you get paid to the absolute minimum they can.

      I appreciate your good feelings, and it would be nice if all our interactions can be like that. But at the end of the day your physician isn’t and probably can’t write a check for millions in future care. And their insurer doesn’t give a damn about your warm feelings for their insured doctor. They don’t make money by PAYING claims.

      • Hi Matt – 1. My friend did know she could sue and that is what is special ..imo. Her family was upset ..but she sat down and explained to her adult children why she would not sue and they understood.

        2.I don’t think any physicians would just hand over money. But I think they’d understand if you were in a catastrophic situation and they knew they were at fault.

        The thing about being a doc (from what I can tell) tho is that their patient encounters/work can be fraught with potential landmines when they are genuinely doing their best in such a noble profession as facilitating healing in their fellow man. It doesn’t seem fair.

        3.I understand the need for the ability to file suit in catastrophic cases if it was the fault of the doc. But ..there are so many variables.. and so should be clear cut.

        I am 100% against the MacDonald (coffee was too hot” kind of law suit ..the unfair..frivolous ones. I also think if a case is frivolous and tossed out ..the person trying to do that should be responsible for the doc’s legal expenses ..matter of fact ALL suits should be that way.

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