Malpractice Systems in Other Countries


Nice article from the AMA comparing medical malpractice systems in other countries to that in the US.

Litigation costs in the US are twice those in other countries, with half of US payments going to legal costs rather than compensating patients.
Few other countries allow cases to be decided by jurors. Most use judges or administrative procedures to determine liability.
Canada and the United Kingdom impose caps on pain and suffering awards to “screw the injured” (a “Mattism” – not actually quoted that way in the article).
Most European countries prohibit contingency fees which are almost exclusively used in the United States.
Canada, Europe and Australia all have loser-pays provisions in their medical malpractice systems. The US does not.
Sweden’s average award for 2004: $22,000. US median award for 2005: $400,000 with 21% of awards being more than $1 million.
Internists in Canada pay between $1800 and $3200 per year for malpractice insurance. Internists in Cook County and Madison County, Illinois pay more than $41,000 per year. Obstetricians in Cook County pay nearly $180,000 per year in malpractice insurance.

Unfortunately, the article quotes Common Good’s Phil Howard, so according to certain people who read this blog, none of it can be believed.


  1. While I disagree with the principle behind socialized health care, at least the countries that implement it recognize the necessity to curtail excessive legislation.

  2. We get european healthcare, along with European physician salaries, and our malpractice costs will be similar. But I thought you were opposed to that kind of healthcare system. Perhaps you just want the parts that make you more money but none of the benefits to the public?

    You can believe Mr Howard if you want. You run the same risk that you run in relying on any lobbyist to reach a conclusion. No different than relying solely on the AAJ.

  3. You can quote numbers all day long but what I really want to see is an explanation *why*. Sure they pay less but I highly doubt that that is without it’s tradeoffs and I’d like to hear what some of those are. I’d hit up Google Scholar right now if I wasn’t so bloody tired….

  4. I have to say I did enjoy this quote from Mr. Howard:

    “Elsewhere, “people just don’t see the legal system as a way to get rich,” but rather as a last resort, he added. And cost isn’t the only concern in the U.S.

    “At some level, it doesn’t matter how much the cost is as long as people trust the system,” he said.”

    Really I enjoyed it for two reasons. One, I’ve yet to meet a person with a malpractice award that felt they “got rich” as a result and wouldn’t trade their newfound wealth for their health. Particularly a really large one.

    And second, it’s humorous to see someone who has dedicated his life and whose firm has been a primary lobbyist in undermining trust in the foundation of our justice system so that their corporate clients will be better protected wax poetic about how important trust in our system is.

    • True, Matt. The only one’s getting rich from awards are the Kings of Tort involved with Mega-Class Action Suits.

      • Like the one you physicians have Filed against health insurers that you’ve collected tens of millions on? How much do you think the attorneys who handle those should get paid. Did any physicians offer to pay by the hour or were you fine with your attorneys fronting all costs and working on contingency?

  5. So how much extra are you willing to pay in taxes so that the government can support those that were injured by the negligence of others?

    • To a large degree, I believe it already happens. I admit that some cases fall through the cracks, but many are picked up by state/federal programs.
      We’ll find out about the tax thing soon enough. They won’t go down.

      • If you think it already happens you’re fooling yourself. Contrary to popular opinion, getting on disability is neither a quick nor easy thing for most people. And, that’s not much of a living, particularly if you weren’t a high earner, or even worse, a stay at home mom or a child. Disability payments are based on what you paid in.

        Our social safety net is nothing like that of the countries whose legal systems you desire so fervently. And the cost of seeing a physician there is much, much less as well, so even if you are poor, it’s not nearly as daunting. But of course, they pay their physicians much less as well.

  6. All claims in England are against the NHS, which has a policy of settling meritorious claims as fast as possible (rather than defending the daylights out of them to discourage lawyers and patients).

    England also has far more options for paying your lawyer. E.g., it has public funding of civil lawyers for the poor, has ‘legal expenses’ insurance that funds plaintiff’s litigation, and a number of unions fund litigation for their members.

    You can’t pick-and-choose a couple parts of a system and claim you’ll get similar results. (see the ‘legal action’ one)

    • Thanks for the links.
      One of the things I noted was that a vast majority of cases are settled.
      One of the other things I noted is that there isn’t a National Practitioner Databank in England.
      Just like the current system of defensive medicine now – if there isn’t a downside to settling litigation, you’d probably find that a lot more physicians would be willing to settle meritorious cases.

      • The vast majority of cases here are settled. If we outlaw the NPDB, what mechanism do you as a physician have for tracking your brethren and policing yourself? If a colleague has multiple paid claims and all are settled confidentially, do you not want to know so your profession can do something about it?

        “you’d probably find that a lot more physicians would be willing to settle meritorious cases.”

        Are you implying that many physicians KNOW they have committed malpractice yet fight it so they won’t do defensive medicine? That doesn’t make sense. It also seems to be at odds with the oft stated cry of physicians that they want more fairness to the patient and for it to be cheaper and faster for the legitimately injured to get what they’re owed. I think you might want to get your stories straight on that.

      • DensityDuck on

        Matt: “If we outlaw the NPDB, what mechanism do you as a physician have for tracking your brethren and policing yourself?”

        Presumably the NHS does that in England. I expect that practicioners who get too many complaints are disciplined by the NHS, rather than incurring a direct financial penalty from the aggrieved party.

      • “I expect that practicioners who get too many complaints are disciplined by the NHS, rather than incurring a direct financial penalty from the aggrieved party.”

        If you want to argue for universal healthcare, where the government picks up the tab for everything, including your salary, and gives everyone a deep social safety net, then by all means go ahead.

        What it sounds like you’re wanting is to be free of the government, except when it pays the cost of your mistakes. Am I misunderstanding?

      • “If we outlaw the NPDB, what mechanism do you as a physician have for tracking your brethren and policing yourself?”

        I’d imagine the same mechanism that lawyers use to track their brethren and police themselves. Oh, that’s right. They don’t HAVE a mechanism. How silly of me to forget.
        Multiple claims settled confidentially are business as usual for the rest of the business world – including attorneys. Apparently in your vast legal experiences you’ve never come across the term “confidentiality clause”. OK for Ford, GE, and Enron, but a horrible miscarriage of justice if it ever got into the hands of us evil, sneaky know-nothing doctors.

        “Committing malpractice” and having a “meritorious claim” are not synonymous. Many claims where there is clear negligence are settled early. Got any links to substantiate your claim that the settled cases compromise a “vast majority”? Didn’t think so.
        When there is a legitimate question as to whether there was harm done, in the current system, cases often go to trial because the stakes are higher for the physician. The strict “policing” of the NPDB actually does more harm than good for injured patients.

        Your arguments are increasingly following the oft-decried strategy of throwing dirt at your adversaries and hoping that some of it sticks. Obviously not working well for you in this forum. How’s that working for you at trial?

      • Apparently your comprehension skills are waning again. I actually noted the confidentiality clause in the initial post.

        “our arguments are increasingly following the oft-decried strategy of throwing dirt at your adversaries and hoping that some of it sticks. Obviously not working well for you in this forum. How’s that working for you at trial?”

        Your criticisms are odd, considering how poorly thought out most of your posts are and how sloppy and half baked some of your conclusions are.

        If you want to outlaw the NPDB, I’ve got no problem with it. Of course, as we all know, your position on government involvement in medicine seems to be based not on any particular principles, other than how you think it benefits YOU. So I’m sure you’ll want the government to leave you alone, but still immunize you and pay for your mistakes. Wonder why that never goes anywhere?

        ” Got any links to substantiate your claim that the settled cases compromise a “vast majority”? Didn’t think so.”

        Is this a serious question? Do you have the Internets at your house? That’s like asking if there are any links to substantiate my claim that the sun sets in the west. But, since I’m dealing with you, I’ll indulge: (that’s a link to a lobbyist, which is why I’m attaching the quote with the sources of the answer)

        “Medical malpractice cases account for only about four percent of tort cases. Examining the Work of State Courts, 2005, A National Perspective from the Court Statistics Project (2006) at 29.

        In the Harvard closed claims study, only fifteen percent of claims were decided by trial verdict. Other research shows that 90 percent of cases are settled without jury trial, with some estimates indicating that the figure is as high as 97 percent. Testimony of Neil Vidmar, Russell M. Robinson, II Professor of Law, Duke Law School before The Senate Committee on Health, Education, Labor and Pensions, “Hearing on Medical Liability: New Ideas for Making the System Work Better for Patients,” June 22, 2006 at 17.”

        Here’s another, of a study of 7 states. The link has a lot of good info, but the pertinent quote is here:,_2000-2004

        “About 95% of medical malpractice insurance claims settled prior to trial

        Most medical malpractice insurance claims that resulted in a payout were settled prior to being decided by a jury or bench (judge) trial. In Florida, Maine, Missouri, and Texas 5% or less of these claims reached a trial decision.

        For claims that were settled prior to a trial decision, the settlement was reached in most cases after a lawsuit had been filed in court. Of the nearly 8,300 claims settled in Florida, about 6,300 were concluded after a lawsuit was filed, but prior to a trial decision.”

    • Sorry, I meant to say how poorly thought out most of your posts on legal matters are. You seem to be very knowledgeable in the field you’ve actually been trained in.

  7. I would love to see a direct comparison of standards of care. Here if someone comes in short of breath and is on birth control you get a ct angiogram to rule out PE. If you miss a PE this could result in a big suit. If you put some one on anticoagulation imperically and they get a bleed you can be sued. In many areas of the UK and Canada, they only do ct angiograms M,W,F from 8 to 5. If you come in at other times they start you on anticoagulation and send you home to get the scan later. If you bleed, sierra hotel.

  8. Hey Whitecoat, I was curious if you saw this article on propfol:

    The short of it is that apparently practitioners were misusing/reusing the vials of propfol, spreading hepatitis C to patients. The trial lawyers went after Teva instead of those practitioners and got a judgement for $500 million. The health department report didn’t find any blame on Teva itself. But it’s all about justice for the injured, right?

    • Your claims are only half true. The plaintiff who was represented by “trial lawyers” (what do you call the 6 defense lawyers who tried the case?) sued a number of defendants, including a nurse, perhaps the nurse’s employer, and it appears a physician group.

      There’s obviously more to this case than what you think, as the compensatory damages were $5.1 million and the rest was punitives against Teva ($356M) and Baxter Health Care ($144M). So clearly the jury was angry about something. I’m guessing the actual providers pointed the finger at the companies as much as anyone and some seriously shoddy practices by the companies was found. In fact your article seems to state as much:

      “The company failed to conduct adequate testing of propofol medicine made at a plant in Irvine, California, the FDA said in a December warning letter posted last month on the agency’s web site.”

      So yeah, it is all about justice for the injured. Some 114 people have hepatitis C as a result of these mistakes. 12 people listened to all the evidence, exonerated a number of defendants, and found 2 not only responsible, but responsible in a way that ought to be punished (although the award will almost certainly be reduced significantly).

      Mike, are you aware of some facts from the trial, which likely took several days at a minimum, that indicates to you that the wrong decision was reached? BTW, it doesn’t appear that the health department ever investigated the manufacturer’s culpability. At least not from your article.

      • Matt:
        Elevated endotoxin levels do not cause Hepatitis C….period. Read for comprehension. 12 jurors can and do get it wrong. It’s not about justice, it’s about deep pockets.

      • Joe,

        We’re trying to summarize a trial that lasted at least a week based on a short newspaper article. Physicians often complain that journalists get medicine all wrong, do you think they do better with medicine and law mixed together?

        Although you’re right about one thing, a civil lawsuit is all about the money. I’m sure if these people could sue to have it undone, they’d choose that. But with limited exceptions, every civil suit is about the money.

        As for punitive damages, if you said to me I think those shouldn’t go to the plaintiff, but rather charity or something like that, I’d agree with you.

        I don’t know whether they got it right or wrong, but I do know the jury listened to all the evidence, not you or I. So I doubt I’m in a position to second guess them until I do review the evidence. And I doubt you are either.

      • Matt:
        Hepatitis C is caused by lack of safety technique…period. This is drilled into every RN and MD from the start. Hep C is not caused by poor quality product that is a separate issue. I use propofol, it EXPLICITLY on the vial states it is for one patient. Is there blame? Obviously. But how about blaming just the people who actually caused the hep C and not go after every deep pocket in the pond. This verdict is not about justice.

      • Again, Joe, since neither of us has read the actual complaint, we do not know WHAT all the allegations were or even specifically what the alleged harm was. If what you’re saying is unequivocally true, then there was probably some other theory that this case was pursued on rather than only “I got hepatitis C from what they did.” We don’t know. The first page of the complaint probably had more information in it than the article we read. In fact, you only know that two of the 6 defendants had a verdict rendered against them. You know nothing about what happened against the other 4. Doesn’t that strike you as odd?

        If you have not read the complaint, then you probably don’t know what the claim is, or at least what all of them were. So I’m not sure how you can conclude justice wasn’t done. You’re a physician – do you routinely diagnose without examining the patient? Why not? Because you don’t know all the facts. Just like in your analysis of this case. (I’m assuming your last name isn’t Frist, of course.)

      • Matt,

        As often seems to be the case, we’re angry for what we see as attorney’s going after an entity, that has no connection to the major problem mentioned in this lawsuit, that coincidentally has deep pockets.

        Is this made without all the information? Absolutely. Do I think there’s still something fishy going on in this suit? You bet. If we assume that the trial was about the Hep C exposure, then I fail to see how the drug manufacturer has any liability unless the unopened drug vials contained Hep C to begin with. Your own link seems to indicate the the Hep C issue was the only thing really going on. If that is true, I can’t fathom how the manufacturers could be responsible for what happened unless the situation I mentioned above is true.

        Lastly, c’mon it wouldn’t take much to get 12 random people mad at a drug company.

      • VA,

        Again, the point is you don’t know what happened. Maybe the physician was sued, and he blamed the companies. Then the companies were added and they blamed the physicians. That’s the point – we don’t know. You don’t even know what the causes of action were against each defendant because you haven’t read the most basic document – the Complaint. And you’ve seen literally none of the evidence. Yet you’re quite sure that some injustice was done. It’s amazing how many people reach conclusions in this world about things when they don’t know all, or even 1/10 of the facts.

        If there was truly zero evidence to tie the drug companies to the case, then they probably would have gotten out on summary judgment.

        “Lastly, c’mon it wouldn’t take much to get 12 random people mad at a drug company.”

        Really? Why do people believe that every other person but them is a sap just begging to be tricked by a sneaky plaintiff’s lawyer while the very expensive defense lawyers sit their like potted plants? It shows both an inflated sense of one’s self worth plus an ignorance of how diverse our society is.

        There are verdicts for defendants all the time, including drug companies.

      • Out of curiosity, what do you guys think the value of this case should be, assuming SOMEONE screwed up and this guy now has Hepatitis?

        And what kind of professional punishment, if any, should the provider suffer if in fact they are the culpable party?

        Also, if you wanted to argue that punitives (these will undoubtedly be knocked down) should be paid to society in some form rather than the plaintiff, I would agree with you on that.

      • Matt,

        You’re right, I don’t know exactly what happened in this case. I’m just saying that if, and this seems to be what every source I’ve seen focuses on, the problem was with reusing syringes and/or vials of medication leading to Hep C exposure/infection, then the drug company shouldn’t be liable for that outcome. That’s all. If new facts come to light showing that there was something else going on, then I’ll gladly reevaluate my position.

        I don’t think jurors are any more petty than anyone else. I would just suggest this… think about how many people in the country have some kind of negative feelings towards the drug companies. We dislike them because they twist the facts and often just lie about the products they’re hawking. The general public doesn’t like them because drugs are often very expensive. Heck, if I was in a jury for the case of some shady banker being accused of screwing his clients out of money, I might have some slightly different thoughts about it not entirely based on the evidence presented.

        For the Hep C infected. Find out about how much the therapies/doctor visits cost and multiply that by that life expectancy for each patient then fix that number so that if its invested in a safe savings fund (say a no risk 8% return) will stay stable and continue to fund their care. This is definitely worth some pain ans suffering money as well, and I don’t think you and I will ever agree on a way to determine that.

        As for the people responsible, they should get raped in court.

      • “This is definitely worth some pain ans suffering money as well, and I don’t think you and I will ever agree on a way to determine that.”

        I leave it in your good hands as a juror. I think you and 11 others are certainly capable of making that determination.

        I’d certainly rather have you doing it than your insurer’s lobbyist, which is what tort “reform” would have us do.

        “As for the people responsible, they should get raped in court.”

        If we knew the facts of the case, we might well conclude they did!

    • Which one were you in? And if all you were damaged was in the 3 figures, why should you get more? You seem to be angry that an attorney in a class action makes much more than the individual litigants, but that’s because in a class action, typically the reason you’re pursuing it in that manner is that no individual plaintiff’s damages are worth it to pursue on their own. Yet as a group who have all suffered similar harm, it’s a rather large number.

      Imagine American Express was charging everyone an extra $10/mo for a year with no contractual basis for doing so. You and I, as card holders, have suffered a $120 loss. We’ve been wronged, no doubt, but it’s cost prohibitive for us to pursue against an army of lawyers that AMEX can throw at us. But together with all the AMEX cardholders, that’s a large number – that’s what a class action is for. They’re expensive, they’re time consuming, they’re fought by very good, very expensive lawyers for the defense, and the plaintiff’s firm usually has to have the means to fund it as well as distribute the claims and keep the claims process open for years. So yeah, they’re going to get paid more than you or I.

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  11. There was once a case where 2 gentlemen were drinking and decided to fly an airplane. Of course they crashed the airplane and were killed in the crash. The plane caught on fire. The NTSB ruled that the crash was due to the pilot being drunk, there was nothing wrong with the plane to cause the crash. Sounds straight forward.. right?
    The pilots wife sued the manufacturer of the airplane. She also sued the manufacturer of the engine, the manufacturer of the fuel tanks, the manufacturer of the magneto’s and the people who ran the FBO (fixed base operator) at the airport the plane was kept at. It was a small public field, back in the pre terrorist day’s when there was easy access to the flight line. There was no control tower or similar in this small airport designed for the private pilots.
    Anyone want to guess the outcome of suit? To make a long story short, the manufacturers of the various components were found at fault because the airplane, when hitting the ground at a high rate of speed, caught on fire. The folks who ran the FBO at the airport were found at fault because no one tried to stop the pilot from flying, even though it was after hours and the FBO was closed. The complaint was “wrongfull death”. She won well over $100 million in compensation. Where was the wrong done? Ohh yes, the pilot flew drunk. But the deep pockets (Cessna, Continental airplane engines, etc) ended up paying despite the fact there was nothing wrong with the plane at the time. The FBO wasn’t even there at the time, and in fact it was closed.
    I’m sure this jury found some fault in the part of everyone that was named in the lawsuit.. but I haven’t heard of anything. My point? Much like the case mentioned in this post – it seems like when med mal attorney’s go after someone, they include every possible person and hope the case sticks to someone with deep pockets. What do they have to lose by including Teva et all in the case, and everything to lose. I’m sure Matt will disagree totally with what I’m saying.. but it is what it is.

  12. The reason everyone gets sued is because often at the beginning of the case, particularly in a highly technical case like the one you described (which of course is not one you’ve seen any of the evidence in but just heard about), or a med mal, you have to have all the potential defendants in early.

    If you don’t and your statute runs, the ones who are there will blame the one who’s not. That’s more of an issue with med mal which has a really short statute of limitations.

    Also, if you don’t and as discovery develops it turns out someone else is liable, you have to bring them in and they get a chance to re-depose everyone if they want, and you replow the same ground, you push your trial date, etc. Costs go up as you do everything twice.

    Now, do people sue looking for coverage? Of course they do. Just like responsible parties often work very hard to get out of paying. Or refuse to admit when they do know who is responsible (physicians).

    “I’m sure this jury found some fault in the part of everyone that was named in the lawsuit.. but I haven’t heard of anything”

    Why does it surprise you that you haven’t heard of anything? Have you read the transcripts? Even read the pleadings?

    I never understand why people are surprised about something they know literally nothing about.

  13. Matt, the problem is that everyone gets named in a lawsuit but they don’t seem to get dropped when it’s determined that they were not responsible for the outcome. I know of cases where the pathologist was named even though he wasn’t involved until the post. See my previous post about the ID specialist who was asked to see the patient after the esophageal perforation and pulled him through the aftermath. He was eventually dropped, but only after the patient went to his lawyer and insisted on it. Left up the the attorney, he would not have been.
    I mentioned a previous case where a woman got drunk and hit a horse-drawn carriage that took tours of the downtown area. Everyone involved got sued. It was a rental vehicle, so the rental agency was sued. The owners of the singles bar where she got drunk was sued, and the manufacturer of the carriage was sued (should have had seatbelts, you know, even though it never went faster than you could walk. Now even carousel horses have seatbelts.) The person at fault was the woman.
    In the case mentioned above about the hepatitis C, it is true we weren’t at the trial but it is hard to understand how the drug manufacturer could be held liable for the outcome, given what we do know about the transmission of hepatitis c.

    • “Matt, the problem is that everyone gets named in a lawsuit but they don’t seem to get dropped when it’s determined that they were not responsible for the outcome.”

      Dave, it’s hard for me to comment on cases where we’re dealing solely in what someone heard, not the evidence in the case or specific knowledge of the causes of action. Again, when you haven’t read the complaint, you really have no idea WHAT the claim is. And if you haven’t seen the evidence, you don’t know what the defendants are saying and who is accusing who, or who is truly responsible.

      As I mentioned before, there were 6 defendants. We don’t know who was responsible for what, other than the manufacturers got hit on some punitives. It might have been that the medical providers testified about something being mislabeled. Again, we simply don’t know.

      It’s like reading a three paragraph article about someone’s medical treatment. You can’t really come to much of a conclusion about the quality of the treatment based on that. Why you think you can determine the right or wrong of a multiparty, likely week long lawsuit without even knowing what the cause of action is, much less seeing the evidence, is a mystery.

      It’s not a crime to acknowledge that forming opinions without facts is generally a bad thing.

      • Matt,

        I am directly aware of a case (against one of my partners) where exactly what is described above occured. My group took over the contract at a small rural ED in 2003. Shortly thereafter a case was filed against my partner (an African-American Gentleman) for a case that occured in 2001. My partner did not work in the state in 2001 (he was in residency). Our group did not work in the hospital in 2001. What we eventually found out was that the original documentation was shoddy at best. The signature on the chart was illegible. The patient remembered being treated by a “black man”. As the statue of limitations approached, the lawyer found the name of the “black doctor” from a nurse and filed the suit. We spent literally 3 years defending ourselves. Why? Apparently the case moved forward so that if the correct doctor could be identified, the defendant could be essentially reassigned. How is it fair, under any reasonable standard, for a physician to have to defend themselves for being the only Africian American physician employed in the ED? HE COULD NOT HAVE EVEN SEEN THE PATIENT. It cost him and us three years of despositions.

      • If true, that’s terrible. Not how it should work. What do you propose we do to correct that in the future?

        Although I doubt you were deposed for three years, although I have no doubt the case drug that long. I also doubt you had to do much of anything for three years. I know you weren’t deposed constantly during that time – maybe 2 days, tops. And a day or two preparing. But again, it never should have happened.

        Although I wonder why your attorney didn’t just file a motion for summary judgment early in the case. That would seem to be the proper response.

      • The motion for summary was declined. We as a matter of contract with the hospital essentially picked up the previous group’s tail so the judge allowed the case to go forward on the theory that our group had assumed responsibility for the previous group’s actions. I, as a partner, was deposed 4 times – actually 3 times for deposition, the other cancelled at the last minute by plaintiff’s attorney – so 4 times I was off of work. My colleague, the one who was sued, not only was deposed 6 times but as a new grad would have liked to move to a different state for family reasons. He felt essentially tied to the area because of the need to return for appearances. He also found what should have been a wide open job market to be quite stagnant given the pending case. My personal opinion is that he should have sued the plaintiffs attorney and plaintiff for defamation, malicious prosecution and general douchebaggery. The plaintiffs attorney should have been disbarred for continuing a claim against someone merely because they are black and have the audacity to practice in rural America.

      • Matt,
        Per your previous posts…
        You were not there, therefore you are not allowed to make any hypothesis pertaining to this case.

        All trial data must be available.

      • Nor am I making any hypothesis as to the merits of the case. We were discussing why he was a part of it at all.

        But there was no trial – read his posts.

  14. ” We as a matter of contract with the hospital essentially picked up the previous group’s tail so the judge allowed the case to go forward on the theory that our group had assumed responsibility for the previous group’s actions.”

    Well, that explains why you weren’t immediately let out. One couldn’t know that from your initial post.

    I think it’s odd that your friend couldn’t move. If a witness moves, we go there to depose them. Or we pay to bring them back. Either way, it’s 6 times in 3 years. I leave the state more than that every year.

    As to the black issue, sometimes people don’t know who the person is, and you go off names or even identifying characteristics. If it were a white guy in a predominantly Hispanic or even black community and they thought it was a white doctor that had treated, I wouldn’t find it offensive if the only white doctor around is where they started. Although in most states they have John Doe statutes you can use if you’re not sure. I’ve had process servers serve the wrong person when there was a similar name.

    But again, there was a viable theory that your firm was liable, so it seems like they found the right people. Was it subsequently discovered that another party was responsible pursuant to contract?

    I’m glad it was ultimately decided in your favor, but I’m not seeing the total outrage here. Yes, it sucks being sued, and I’m sorry you had to go through that. I’m guessing you were deposed 4 times because new parties kept being added to the case? 4 days total in 3 years you were put out?

  15. You fail to understand. The group before us completely dissolved. We were not there before. The doctor named in the suit was not even an independant physician at the time of the occurence. We had agreed to pick up the tail for 3 physicians whose contracts we did not renew when we took over as the hospital felt they were promised that by the old now dissolved group. Only a lawyer can use that logic to defend going after a physician who it could be proven was not even in the state or a practicing physician at the time the injury occured because he shared a physical characteristic with the alleged injurer. My God, under that logic I should be arrested for rape because I am bald and the news just had a story about a bald man raping someone in Chicago. I’ve never been to Chicago mind you, but if I go there in a year, arrest me! And picking up the payments for a tail on 3 physicians none of whom were named by the way does not equate assuming full responsibility for everything every physician in the group did.

    And the case was eventually completely dropped. The physician who was sued still has to list it whenever he re-applies for privledges or if he seeks a new job. My group was never named, just the “Black Doctor”. They did depose us several times on the point of who was now responsible. The hospital was never named. Each time I was deposed, they tried to question me on the case. A case that occured over a year before I ever worked at the facility. Ahh, justice.

    • Again, though, it wasn’t immediately obvious that you contractually hadn’t agreed to be responsible. Often successor entities which had nothing to do with the original actor but assumed their liabilities contractually are liable for the damages. So discovery had to go forward. You confusing criminal and civil law is understandable, but a major, if common, misunderstanding and renders your comparison inapplicable.

      And the hospital not being named kind of defeats the “they name everyone” claim. They were apparently trying to find the right person, and it was not immediately clear that your group was not liable, otherwise you would have won on summary judgment. Now, you being deposed 6 times makes little sense, but I assume it was different lawyers. I certainly wouldn’t let one of my clients be deposed that many time unless the court made me.

      The point of a lawsuit is not just to determine damages on someone you know is liable. It’s to figure out WHO is liable. Let me give you an example:

      I recently represented the family of a woman who was killed when a semi crossed into her lane of traffic. I sued the driver and the driver’s employer’s insurance co. (under a theory of respondeat superior) stepped up and defended him. The driver said the trailer undercarriage separated and he lost control. So we had to sue them. They claimed it wasn’t properly maintained, so we figured out who the company was that maintained the trailer, and we sued them.

      Now, some of them may not have been liable. The thing is, we didn’t know. But the ONLY way to find out is to bring them into the case so we can get the documents, depose the employees, and get the info. No other way to do that.

      And if that poor dead woman was your mother, that’s what you’d EXPECT us to do. If we didn’t, and we went to trial and they all started pointing at the defendant who wasn’t there, you’d be pissed. Rightfully so.

      Because the point of the lawsuit is to one, gather the evidence. And if it’s clear someone has no liability and no other defendant is pointing the finger at them, I want them out. I don’t need another person working against me. So I drop them – just like you got dropped. And yes, that’s justice. The second point is to then determine who is responsible, and third what the damages are.

      If the others want to go to trial and blame each other, well so be it. But I have to bring them both in and proceed with my theory.

      So yeah, that’s justice.

      • Cool Matt. Hey, give me your name and number. I fell down yesterday. Even though as far as I know you were no closer to me than my partner was to the patient at the time of the alleged injury, you MAY be responsible. Let’s depose you three times to be sure that you weren’t. The claim made that little sense. And so do you.

        And I was deposed three times. He was deposed six times. The reason given to us by our lawyer was the hope that he would be investigating and essentially help them identify the actual doctor involved.

      • Did I contract with the place you fell to be liable? Is there some suggestion that I or one of my companies own it? If not, that’s not much of a comparison.

        I’m sorry your lawyer let you guys get deposed so much. I wouldn’t have.

      • No, you don’t contract with the place I fell. Neither did we at the time of the injury. I want you deposed on the theory that you may one day have an association with the place I fell, which, under the theory you put forth, means you will assume this liability. So please let me know where to send the summons – or, to keep things analogous I’ll just subpoena the next man named Matt I see.

      • I’m sorry, I guess I’m not understanding what you wrote. I thought when you said

        “We had agreed to pick up the tail for 3 physicians whose contracts we did not renew when we took over as the hospital felt they were promised that by the old now dissolved group.”

        That one of those three was the physician at issue. Again, your analogy fails because you actually DID have a relationship with that place. If you didn’t, I’m not sure why your attorney didn’t get you out on summary judgment. But this is the problem with discussing a case without seeing the pleadings.

        But if you want to subpoena me that’s fine. Won’t be the first time, and I assume won’t be the last.

      • None of the three doctors was the issue. The accused doctor came well after we took over. The three whose tail we covered, left. None was African American, so they could not have been the doctor involved.

  16. Matt, it’s not just a few days off work in a couple of years and unless you’re totally clueless you know it. The emotional toll of a lawsuit is significant. It’s no small matter. Don’t blow it off.

    • I’m not “blowing it off”, but I also deal with people who are suing and being sued every day. Not everyone is such a prima donna about it. And often these people are talking about paying a judgment out of their pockets and paying a lawyer out of their pockets, unlike you guys. Yet few of my clients are as whiny as you guys. Hell, I’ve represented people in custody battles who bitch less. And that’s fighting for your kids, not just how much your insurer might pay.

      And really, it is not that much time off unless you try the case, and we both know that’s rare. And I don’t know about your attorneys, but I routinely meet my clients after work to accomodate their schedules.

      • “I also deal with people who are suing and being sued every day.”

        Hey, great. Do you feel that doctors should take the attitude of “shut up and do what I say, I’m not going to explain any of this, I do it all the time and it’s no big deal, stop bitching”?

        It’s very surprising to me that someone who claims to be so intellectually-superior doesn’t understand that HIS EXPERIENCE IS NOT GENERAL. Yes, *you* see lawsuits every day, but that’s because IT’S YOUR FUCKING JOB. It’s not MY fucking job to GET SUED. I can’t help but interpret it as a personal attack. And if it’s supposed to be just a normal part of the business process, then maybe you ought to be explaining that here–and explaining it right from the get-go, and explaining why it’s ME who is PERSONALLY LIABLE for this.

        Perhaps you’ve identified a business opportunity, here–“Doctors Representation Cooperative”. Instead of signing up for insurance in their own names, doctors could sign up into a co-operative organization which organizes its own group-level coverage, handles lawsuits at that group level, etcetera. I can’t help but wonder why hospitals don’t do this already.

      • “Do you feel that doctors should take the attitude of “shut up and do what I say, I’m not going to explain any of this, I do it all the time and it’s no big deal, stop bitching”?”

        Never. I’m completely available to my clients to explain anything. In fact, I typically overexplain, and have had them tell me they don’t need to know every detail. That said, I think some of you are drama queens about it.

        “It’s very surprising to me that someone who claims to be so intellectually-superior.”

        Who has done that? Certainly not me.


        You misread – perhaps you were too excited about getting to cuss. I said my CLIENTS (maybe you’ll see better with the caps) aren’t the complainers many of you are. People with much more on the line than just how much their insurer will pay don’t complain as much as you guys do. People who actually are PERSONALLY LIABLE. Do you personally know ANY doctors who have ever paid a judgment out of their own pockets? I doubt it.

  17. Sounds like you really have a shitty job. All your time dealing with confrontational people, half the time you’re going to be on the wrong side and it’s almost all about economics. Makes me glad I’m a doctor.

    • Not at all. I usually enjoy helping people. But as you know it does get tiring when for the most part all your clients are in a situation they don’t want to be in. But that’s why our jobs are professions, not just occupations.

  18. Density Duck,

    You’re wasting your breath. To use a bad analogy, I personally cannot understand why some members of a certain faith would get very upset about a cartoon, enough for some to threaten the life of the man who drew it, but obviously that cartoon caused enormous anger in a lot of people. I do not have the cultural, religous or historical background to understand this amount of anger but it is clearly there. And I admit it’s a bad analogy but I’m trying to make a point.
    Many of us have tried to explain to Matt why doctors and nurses get so upset about lawsuits, even though as he is so quick to point out, the penalties are usually picked up by the insurance companies, so it’s not the financial hit. He just doesn’t get it and I dont think he is capable of getting it.
    Unfortunately, he’s probably right that we’d be a lot happier if we regarded it as just a way of settling disputes, the cost of doing business, nothing personal involved, it’s only a few days away from work and the insurance pays anyway so what’s the big deal? Maybe there are even some doctors who think like this, though I don’t know any personally and I wouldn’t want them for my physician.

    • You’re right, Dave. I don’t get why you guys are so dramatic about it. Maybe it’s that you’re not used to being questioned by your patients. Maybe you’re just that convinced you’re right all the time that it’s simply impossible for you to come to terms with the fact someone disagrees with you. And maybe you think it’s going to cost you money.

      The funny thing is that I have been sued, and for far more than my net worth, and for something not covered by insurance. And I didn’t contemplate suicide, I didn’t fret endlessly and make overly dramatic announcements about how I was being run out of this or that or had to quit because the pain was all too much for me to handle. But maybe I’m just not as much of a complainer as most of you.

      And really, I wouldn’t even care and would probably be pretty sympathetic to your complaints EXCEPT for the fact you are always trying to limit the recourse of the injured as a result. And the only ones who really benefits from that is your insurer. And I personally think insurers have enough advantages in this world. And someone with a devastating injury can’t afford lobbyists, expensive law firms where they bill $500/hr, and all the experts an insurer can afford.

      It also annoys me a little that you guys are always crying for the free market, but then want the government to protect you from the downside of the free market – for example when you have to settle a dispute in court.

      And you would be a lot happier if you regarded it simply as a way of settling disputes. Why? Because no matter what you call it, we will ALWAYS have a mechanism for settling disputes. And it will ALWAYS have a procedure for gathering information, including your statement under oath, and it will have a process where both sides get to put a case on, and the other side will ALWAYS have a different take from you. And you know what – you’re not going to like it no matter what.

      ” Maybe there are even some doctors who think like this, though I don’t know any personally and I wouldn’t want them for my physician.”

      You wouldn’t want someone with some perspective on things, who can recognize that they might possibly make a mistake and there might be consequences, but they’re not life ending and you can recover from them and learn from your mistake and move on? That’s just the kind of even-keeled person I’d like for a physician.

  19. Sorry, somehow posted a fragment without meaning to.


    I think many of the docs understand and may even agree with your argument until you get to the bit that you always add. That little bit is the piece about a doc wanting to learn from his mistake. Yet many of us, including me, have listed cases where no mistake was made. Maybe it’s 1% of cases, maybe it is 50%. Fyrdoc listed a study at some point which indicated it was something like 40% of malpractice cases had no malpractice occur and yet 1/4 of those where no mistake occured there was still a payment made. So yes, you’re right, a huge percentage of bad outcomes don’t result in a lawsuit. Some of those bad outcomes that don’t result in a lawsuit were the result of malpractie. Many, however, were not malpractice. They were just bas outcomes. And according to the study listed by fyrdoc, if the person who suffered that bad outcome when there was no malpractice, there is a 1/4 chance they’d get money off the name(not the bank account yes you are correct) of the doctor.
    I will forever have to list my malpractice suit every time I apply for a liscense, hospital priveleges, new malpractice insurance, renew insurance contracts, etc. I am reminded of it to some degree almost every time I see someone with a similar complaint(and it was a very common complaint).
    So I should look at it as an opportunity to learn something? OK, well here is what I learned. I should ignore guidelines and my training and order additional testing even when the risk of a false positive outweighs the odds of a true positive. One of the authors of the relevent guidelines reviewed my case and had no problem with the care rendered. Since I was an intern at the time of the alledged malpractice, several of my attendings reviewed the care provided and had nothing to recommend. Of course since I was an intern I had a supervising resident and attending at the time, and they changed no orders.
    So just order the extra test. That’s the right thing to do. What harm can come from getting more info? Well, aside from the significant financial costs, there is a case where too much info clouds the issue. And incorrect info is harmful. Sure, an extra lab test is just a little more blood and another $50 from the insurance company. Unless it is falsely positive. Then it’s a follow-up test, or maybe a scan. What if that scan has contrast and cause renal failure? What if the followup test is a procedure with attendent bleeding/infection/injury risk. Well, it was just a test.
    Sorry this has been rather disjointed.


    • Couple of thoughts on what you’re saying, because I do appreciate it.

      1. That study you’re referring to does not conclude that simply being named in a lawsuit gives your insurer a 1/4 chance of paying regardless of malpractice. No study concludes that.

      2. I wouldn’t purport to tell you to learn something from every case – I meant that as a general statement. Why? Because sometimes you’re named simply to keep from losing you as a defendant in case the statute of limitations runs during discovery. I rarely if ever know all the facts in a claim when I file. It’s impossible to do so. That’s why I have to get people named as defendants or under subpoena and get the info from them. They won’t give it otherwise. You want less of that? Extend the statute of limitations for med mal, which is currently only 2 years.

      3. I hear what you’re saying about “why not order the extra test?” but I’d ask you – why would you? What evidence do you have that it reduces your exposure?

      4. In that situation you’re referring to – what’s stopping your profession from establishing bright line standards? And how do you keep physicians who don’t meet those standards from then trying very hard to explain why the standards don’t apply in their situation?

      5. Let’s say I agreed with everything you said. How do we fix it? Because we’ve tried the remedy your colleagues and your insurers have been pushing for decades. We’ve tried it in state after state. And testing doesn’t go down, there isn’t more healthcare access, and healthcare gets no cheaper.

      At the end of the day, I’m with you on much of what you’re saying. Where I can’t go is on your remedy. Or at least the proposals you’ve made to date.

      • “In that situation you’re referring to – what’s stopping your profession from establishing bright line standards? And how do you keep physicians who don’t meet those standards from then trying very hard to explain why the standards don’t apply in their situation?”

        Because all it takes a a lawyer to pay someone enough to say that the standard isn’t right.

      • Well, that would seem to be a problem with physicians then, wouldn’t it? Although generally the way a med mal lawyer approaches a case is they get a consulting expert who will not testify to review the case before they even proceed and see if there is any point in proceeding. They’re looking for an unbiased opinion when they do that.

        If you’re truly putting someone on there to pull stuff out of the clear blue sky, then that will probably be exposed on cross examination (Yes, I know you probably think defense lawyers can barely even tie their shoes, but you’re wrong). Jurors aren’t as stupid as you think they are.

        If one were going to make a career out of pursuing dubious cases on trumped up expert testimony med mal would be the worst kind because of the enormous costs involved in pursuing one. You’d be better off to do it in car wreck cases.

  20. Matt, your comment proves you don’t get it. It’s not about being questioned, not about the money. I’ll try again here one last time.
    In the not too distant past, a Japanese soldier or samurai warrior who felt he had not discharged his duty properly often committed hara-kiri. The core of his being was tied up with his duty to his lord, and life itself was unacceptable to him if he failed in that. Their society regarded this response as an honorable action. We westerners have trouble with this concept and cannot really understand it. During WWII the US govt, baffled by suicide charges and kamikaze pilots, contracted an anthropologist to try to explain Japanese philosophy to them, and her report was published later as a book, The Chrysanthemum and the Sword, which I would recommend that you read. To a similar degree, the training we receive in medical school and residency, and more than that the perfectionistic personality types that go into that profession, produce doctors whose psyche is somewhat similar to that of a samurai. Not being a good doctor, which is what a lawsuit implies, is personally devastating in a way I dont think you can understand. Intellectually, we know that we all make mistakes and that doing so doesn’t make us bad people, but mistakes often hurt other people we are trying to help, are not permitted in the environs of academic medicine (if you were a better doctor this wouldn’t have happened) and coping skills to deal with that are not taught. I think this should be rectified, and a big push in the field of medicine is to get away from the “culture of blame”, so that mistakes can be discussed and learned from. Our society is hung up on blame, however, and I think this push is doomed to failure.
    Another book, which I personally don’t like but which references this problem, is The House of God. In the book, an intern does not give steroids to a patient with severe viral hepatitis. This was a controversial treatment even when the book was written, but the patient died and the attendings mercilessly drove home to the intern in the course of the year how he had failed. The intern eventually committed suicide as a result of this. Although the book is fiction and is overly sarcastic and satirical, I am certain that this episode was based on fact. The book was written a long time ago, and hopefully things are changing. The fact that new doctors are placing more importance on family life is a sign of this – when I went to med school medicine was supposed to come before everything.
    I dont know if any of this makes sense to you, but I’ve tried. There are things about lawyers that I can’t understand – like, how can a lawyer defend a person he knows has committed a terrible crime, and try to get him off? I’m sure law school acculturates you to be able to do this without going home and slitting your throat, but I don’t get it.

    • It’s called the Constitution. Our American society believes, as embodied in that great document, that we are all innocent until PROVEN guilty and we are entitled to a defense when the state charges us with a crime. That’s how freedom works. Just like there are physicians who treat prisoners, but they do so without the constitutional mandate.

      I appreciate what you’re saying about mistakes but you’re forgetting something(one). The patient. They’ve got bills to pay. Medical bills. Mortgages. Tuition payments. Grocery bills. And maybe they can’t work. And maybe your insurer is stonewalling them. And maybe you are. And maybe the hospital is.

      And sad as it is to discuss money since money don’t bring back health it takes money to pay all those things. Now maybe you’re at fault for the injury and maybe you’re not. But I think our society ought to have a venue where we decide that.

      Now if your industry is tearing people up for making mistakes I’m sorry. That’s terrible. But cutting the rights of that injured person doesn’t really change that. A lawsuit doesn’t mean you’re not a good doctor any more than one wreck in a lifetime of driving means you’re a bad driver. It sounds like the reform should be concentrated internally on how you perceive yourselves. Being a professional is hard enough without being torn apart by your colleagues.

  21. I understand that the Constitution guarantees representation and I actually agree with that. I’m saying that law school and the legal culture enables you to represent a person who you KNOW or strongly suspect has done a terrible thing, do everything you can do to get him exonerated, and still sleep at night. Without that acculturation you wouldn’t do that.

    • I don’t think you need law school to understand that our society needs someone to represent the accused in order for it to function. That simply requires an appreciation of the concept of individual liberty as embodied in the Constitution.

      Does medical school enable a physician to give medical care to a convicted murderer in prison? In those situations you KNOW there has been a conviction.

      • Not comparable. One is simply keeping them healthy. In some ways, particularly if they aren’t serving a life sentence, that saves the system money.
        The other is attempting to return them to society.

  22. I agree with JustADoc. I’ve taken care of a lot of convicted individuals as has every other doctor. I have no problem with this and society as a whole is not hurt by it. If a hardened criminal gets loose because of some legal technicality or a persuasive lawyer, society does suffer. It also suffers if an aggressive prosecutor gets an innocent man convicted. This happens occasionally as has been shown with later dna testing, with no ramifications to the prosecuting attorney as far as any of us know.

    Matt, may I ask, if an attorney does discover that the individual he is representing really did commit the crime he is accused of, what is the legal and ethical responsibility of the attorney? Is it routine to advise the client to plead guilty, to go for a plea bargain, or to still try to get the guy off?

    • Interesting questions, guys. Let me see if I can cover them all.

      1. I don’t see the moral high ground for the physician keeping a convicted murderer alive after he’s been stabbed in prison or representing someone who has been accused, but not convicted.

      2. I don’t know how you define “legal technicality”, but I don’t agree that society suffers if the police violate the law and someone goes free as a result. It’s a balance to be sure, but as Americans we’ve generally leaned toward limiting the power of government, and there’s got to be a consequence for police not following the law.

      3. I don’t know any prosecutors who aren’t aggressive. Nor do I think simply because DNA evidence, which was unavailable at the time, subsequently exonerates someone that the prosecutor did something wrong. He or she, and the jury (who actually found the person guilty) were operating based on the evidence that was available. Don’t misunderstand me, though, there is prosecutorial and police abuse, and I’m not excusing that. But simply being “aggressive” is not the same. Your comments about both the defense actions and the government action illustrate the tension and the balance society strikes in criminal law though.

      4. An attorney cannot put a witness on who they know will perjure themselves. So if the guy says he did it, and you know if you put him on the stand he will lie, then you must withdraw. Most criminal lawyers (and I’ve not done a felony case in years, just misdemeanors, but I have a partner who does it) don’t ask if they did it. They simply look at the evidence the state has and determine from there. It’s not necessary for them to know if the guy did it. Now, I’ve met some guys who do death penalty cases who do them because they are morally opposed to the death penalty.

      5. The vast majority of criminal cases plea out, and I’d say since most criminal defendants likely are guilty, you’re working for the best deal. However, if the client wants a trial, you give them a trial. You advise them of the risks, the downsides, but ultimately they control the case. Typically the prosecutor puts an offer out there that is decent which makes your client have to think pretty hard about it if there is much evidence against them.

      I think maybe the difference from the attorney’s perspective and the laymans is that the layman starts out with the assumption that if the police arrested you it’s up to you to prove you’re not guilty. The attorney, because our system demands it, starts out with the assumption that we are all innocent and if the government is going to bring its weight and resources against us and punish us, we are going to make it prove its case. Laymen of a more libertarian bent generally have an easier time with that concept.

  23. I think we understand the above. But, for most of us without law school acculturation, if we prosecuted successfully a case where a guy unjustly spent several years in the slammer and then were found to be innocent, we would have a lot of trouble handling that. Prosecuting attorneys can handle that because of their training.

    Off the topic at hand, this does indicate a difference in the professions. If a doctor looks at the available evidence, and concludes there is a diagnosis which years later turns out to be wrong, there are ramifications for the doctor (and I’m not saying there shouldn’t be) although his or her judgement was reasonable at the time. But then, there’s not a twelve person committee to fall back on as the responsible party.

    • Who says they don’t beat themselves up about it? Do you know any who have faced that? I don’t. Remember the cops gather the evidence and recommend the charge and they presumably live with it despitE not going to law school. I would think a physician of all people could appreciate a little professional emotional distance.

      There’s no ramifications for the physician after 2 years typically. And there is a very very high chance that even if the doc didn’t meet the standard of care there’s no ramifications anyway.

  24. Pingback: Malpractice systems in other countries

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