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Tilting at Windmills

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May 30, 2006
By: Kevin Drum

THE MALPRACTICE NON-CRISIS....Today comes news about the latest study of medical malpractice claims. A Harvard team examined 1,452 closed cases in four areas that collectively account for about 80% of all malpractice suits, and here's what they found:

  • Administration and litigation costs in our system are indeed very high, but the vast majority of the claims in the study were properly decided: the patients who suffered injury due to medical errors were compensated and those who weren't, weren't.

  • About 150 of the cases involved patients who received compensation even though there was apparently no medical error.

  • 236 of the cases involved patients who received no compensation even though they suffered injury due to medical error.

That's some out-of-control malpractice system, isn't it? I think we all agree that it would be nice to increase the accuracy of these cases, but if we did, the cost of malpractice payouts would go up, not down.

More detail here, including the fact that nearly all cases are settled out of court, and of the ones that do go to court, patients lose 80% of them. This study, by the way, follows a long line of earlier studies that show the same thing: malpractice claims are actually pretty rare; compensation is generally fair; a more accurate system would pay out more, not less; and malpractice payouts have not been rising any faster than the overall rate of medical inflation. The malpractice "crisis" is mostly just hype.

Kevin Drum 9:39 PM Permalink | Trackbacks | Comments (86)

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Comments

Prediction:

The Bush administration will totally ignore this study.

Posted by: Colin on May 30, 2006 at 9:43 PM | PERMALINK

Who paid for the study? OK, it was a Harvard study. But who paid for it?

Posted by: Frequency Kenneth on May 30, 2006 at 9:45 PM | PERMALINK

Hell's bells, Kenneth, is clicking the link too much work?

"The work reported in the New England Journal of Medicine was supported by grants from the Agency for Healthcare Research and Quality and the Harvard Risk Management Foundation. The related study was supported by the Policy Synthesis Project of the Robert Wood Johnson Foundation."

Posted by: Kevin Drum on May 30, 2006 at 9:46 PM | PERMALINK

THE MALPRACTICE NON-CRISIS

Wrong again Kevin. The Harvard study actually shows 4 in 10 malpractice torts are baseless.

http://www.fortwayne.com/mld/journalgazette/news/nation/14553137.htm

"About 40 percent of the medical malpractice cases filed in the United States are groundless, according to a Harvard analysis of the hotly debated issue that pits trial lawyers against doctors, with lawmakers in the middle."

Posted by: Al on May 30, 2006 at 9:49 PM | PERMALINK

Well, I had to scroll all the way to the bottom of the press release, but:

"The work reported in the New England Journal of Medicine was supported by grants from the Agency for Healthcare Research and Quality and the Harvard Risk Management Foundation. The related study was supported by the Policy Synthesis Project of the Robert Wood Johnson Foundation."

Posted by: jefff on May 30, 2006 at 9:51 PM | PERMALINK

It's hype that waxes and wanes predictably, with the scary stories about "runaway juries," etc., cycling up shortly after markets fall and insurance company asset pools lose value, then ebbing off once the markets head back up and the insurers are all fat and happy again. I can't blame them -- after all, it works every time.

Posted by: twc on May 30, 2006 at 9:52 PM | PERMALINK

Also from the same article, the AMA points out:

"However, the American Medical Association, which favors caps on malpractice awards, called the study proof that a substantial number of meritless claims continue to slip through the cracks, clogging the courts and forcing doctors to waste time defending them, association board member Dr. Cecil Wilson said."

Posted by: Al on May 30, 2006 at 9:52 PM | PERMALINK

40 percent of the medical malpractice cases filed

Of which 72% were thrown out or otherwise not payed. Meaning the system works.

Posted by: xyz on May 30, 2006 at 9:54 PM | PERMALINK

Kevin - "Agency for Healthcare Research". Gotta love that name!

Sounds like that name was picked so nobody will know if it's a patient-care advocacy group, an insurance company group, or an HMO lobbyist group.

Posted by: Frequency Kenneth on May 30, 2006 at 9:55 PM | PERMALINK

The Agency for Healthcare Research and Quality is a respected (if small) government agency. Freq/Kenny could find them at www.ahrq.gov.

While the study (despite AMA's spin) does indicate that our malpractice problem isn't much of a problem at all, healthcare quality--particularly patient safety--is a very big problem. Studies indicate that up to 98,000 Ameicans die each year in hospitals from medical error. This I believe even Freq/Kenny and Al might agree is not right.

Posted by: Chocolate Thunder on May 30, 2006 at 10:01 PM | PERMALINK

Freq. Ken., like all Republicans has a tin ear for truth, but a sharp ear for lying.

Wasn't there was a study about a year ago that showed that many conservatives have some brain structure that specifically facilitates lying?

Posted by: cld on May 30, 2006 at 10:02 PM | PERMALINK

Wasn't there was a study about a year ago that showed that many conservatives have some brain structure that specifically facilitates lying?

There was, indeed. Here are some additional findings about conservatives and where their heads are.

Posted by: Randy Paul on May 30, 2006 at 10:07 PM | PERMALINK

One of the problems with the malpractice system is that the medical profession is not very forthcoming at the beginning, when an honest appraisal and an apology would lower the temperature all around. That is actually being tried in some places. For the patient dealing with the old stonewall, the problem is different: It is a long, costly process to get a doctor to read and evaluate patient records and come up with an opinion that is available to the patient. Typically, the patient's lawyer has to foot the costs at the outset, which drives the process towards the contingency fee system. Meanwhile, insurance companies have their pick of lots of doctors who charge them even higher fees to read and review the same records.

In other words, if the world were full of honest men, in particular the guardians of patient safety, this would be a lot less of a problem, but there is a white coat invisible wall, just like the blue uniform invisible wall when it comes to police misconduct. Considering that police departments have internal affairs offices that have the power to investigate claims, it would appear that the police are doing a better job of self-enforcement than the docs.

For the patient, it may take five or more years, a bruising trial, and often enough, bupkus at the far end. It is no wonder that most cases either get dropped or settle; some cases are pretty clear cut, so the doctor and the insurance company are willing to settle.

By the way, the right wing has made a big deal about runaway juries, but the truth of the matter is that juries are usually loathe to bring in a verdict against a doctor; it takes a really annoying performance by the defense to bring them out of their pro-doc prejudice. Some venues such as San Diego are famous for almost never penalizing a doctor in a malpractice case.

Finally, it may perhaps be a matter of opinion about those 40 percent that were supposed to be without merit. For those cases that really lack merit, again, one reason that unmerited suits sometimes get filed is that the patient and his attorney are fumbling around in a fog created by the hospital or doctor who treated the patient. Records are not always accurate, and have been "updated" on occassion.

Posted by: Bob G on May 30, 2006 at 10:16 PM | PERMALINK

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Posted by: david on May 30, 2006 at 10:29 PM | PERMALINK

Two phony conservative horrors debunked in one day: medical malpractice and Google's anti-Americanism.

Posted by: G. Jones on May 30, 2006 at 10:31 PM | PERMALINK

"Litigation costs remain high . . ."

After that, one can stop reading, because we are not told HOW high. Payouts are not the expense; litigation is the expense.

Posted by: dan on May 30, 2006 at 10:42 PM | PERMALINK

Yes, it's true: the AMA's response was to point out that the system was not 100% accurate. Some people have the nerve to bring cases that they lose.

Of course, they didn't bother to point out what else the study said: (a) those cases were mostly dismissed, (b) there were more cases in which good claims went unpaid, and (c) the losing cases accounted for only 13-16% of the total administrative costs. What's more, groundless cases are often filed because it's the only way to force hospital administrators to release information about the case.

More accuracy would be good, but it would raise costs, not lower them. We should be working on that, not on pretending that costs are out of control when they clearly aren't.

Posted by: Kevin Drum on May 30, 2006 at 10:47 PM | PERMALINK

In America the only thing that our politicians find important is how much money their constituents pay.

Insurance pay conservative politicians large amounts of money.

Doctors pay conservative politicians large amounts of money.

Trial lawyers pay liberal politicians large amounts of money.

Victims don't pay anybody.

Facts are completely irrelevent. Conservatives don't care about studies like this one because doctors and insurance companies don't pay them to care. Neither do malpractice victims nor liberals pay conservative politicians to care. Liberals are currently out of power, so the contributions of trial lawyers don't count. If liberals were in power the parts of the study suggesting that improvements in the current system might benefit victims wouldn't count.

The key to everything is the victims don't pay politicians to care. Politicians only care about the people who bribe them (legally or illegally).

Posted by: Ron Byers on May 30, 2006 at 10:50 PM | PERMALINK

Kind of like that frivolous litigation crisis Bush used to chirp about all the time - never telling the American people that half of all lawsuits filed in the U.S. are businesses suing other businesses. Those damn Republicans!

Posted by: Stephen Kriz on May 30, 2006 at 10:51 PM | PERMALINK

'The Bush administration will totally ignore this study.'
--colin


What study?

Posted by: The Bush Administration on May 30, 2006 at 10:53 PM | PERMALINK

Ron Byers: Politicians only care about the people who bribe them (legally or illegally).

How true. This accounts for most of our politics, and, for all the noise made about it, demagoguery is a distant second in importance. Most often the latter is used in service of the former.

BTW, thanks for remembering to refer to "campaign contributions" as bribes. Jimmy Breslin was big on this use of plain English. We should do everything possible to make this usage more common. It's plain and accurate.

Posted by: alex on May 30, 2006 at 11:02 PM | PERMALINK

Doctors are very upset for two reasons:
1) They pay insurance rates that are very high even if the doctor has never been charged with anything.
2) They see the courts in action, more often as character or expert witnesses than as defendants. To see our justice system is to hate our justice system. Ask anybody who has ever gotten a speeding ticket.

Therefore, we can tell ourselves as much as we want that the doctors are wrong, but the doctors will not change their point of view. If you were paying $50,000/yr or more in insurance, you would hate everybody and everything associated with the system too. If you were paid half your regular hourly rate to wait in a courtroom for six hours when you could be saving lives, you would hate our judicial system too.

Posted by: reino on May 30, 2006 at 11:02 PM | PERMALINK

Al seems to have VERY serious reading comprehension problems -- and the AMA seems to have even more serious truth-telling problems. As Kevin pointed out -- and as not only the study's own site, but the articles on it in "Science" and "Science News" explicitly state -- it shows that there are over 50% more patients unfairly DEPRIVED of awards than patients who unfairly receive them. The only response the AMA could come up with to this study was -- so help me God -- to mention one fact but not the other one! Naughty boys.

http://www.hsph.harvard.edu/press/releases/press05102006.html
http://content.nejm.org/cgi/content/abstract/354/19/2024
http://www.sciencedaily.com/releases/2006/05/060511084336.htm
http://www.sciencenews.org/articles/20060513/fob1.asp

Posted by: Bruce Moomaw on May 30, 2006 at 11:24 PM | PERMALINK

BTW, thanks for remembering to refer to "campaign contributions" as bribes. Jimmy Breslin was big on this use of plain English. We should do everything possible to make this usage more common. It's plain and accurate.

I agree, but I doubt if the MSM would take to the use of the word bribe. However the phrase vote inducer or life-style enhancer might slip in.

Posted by: hellsbellskenneth on May 30, 2006 at 11:28 PM | PERMALINK

I'm not sure your link supports the idea that there's not a problem, though you only say there's not a "crisis", which is probably correct.

However, even when the insurance premium rate cycle is at its ebb, med-mal insurance policies are hugely expensive, and the cost is passed on to consumers. Plus, litigating this sort of stuff in court inhibits pursuit of small, but legit, claims. Perhaps the whole thing should be socialized (i.e. technical courts) along with health insurance, and a more aggressive disciplinary procedure imposed for docs who end up before a technical court on multiple occassions.

Of course, you have to make sure the technical courts don't give any "professional courtesies"... docs are almost as bad as cops in this regard.

Posted by: Will on May 30, 2006 at 11:30 PM | PERMALINK

Actually, this study meshes with common sense. It never did make any sense that the lawyers representing patients had some Svengali-like power to hypnotize large numbers of jurors into viciously persecuting innocent doctors, while the lawyers on the other side mysteriously lacked this same power.

This does leave us with the separate question of whether -- when juries DO award malpractice settlements at all -- they award payments that are much too high. But this seems unlikely, if juries aren't providing awards at all to enough patients. Sure enough, the study also found that the average award was $482,428 ($521,560 for those regarded by the reviewing physicians in the study as justified) -- and 26% of the claims involved death while another 54% involved "significant or major disability". Excessive?

Posted by: Bruce Moomaw on May 30, 2006 at 11:32 PM | PERMALINK

The study itself suggests specialized medical courts to cut down on the trial costs (which are 54% as big as the total awards) -- a system which New Zealand and part of Scandinavia already have. However, as Will points out, we'd better make sure that we don't end up with a system allowing the medical profession to cover its own ass.

Posted by: Bruce Moomaw on May 30, 2006 at 11:35 PM | PERMALINK

(Just on TV: A commercial on the History Channel, Detroit area, 5/30/06, approx. 11:28 pm, during "Modern Marvels" program on "Dynamite.")

Commercial advertising a program that will let YOU cash in with a "real executive salary" by helping professionals avoid the "$160 billion" spent every year to settle "frivolous lawsuits."

Posted by: gar on May 30, 2006 at 11:41 PM | PERMALINK

As a physician, I should point out that all doctors make mistakes. Our errors are mostly harmless, but occassionally serious and, rarely, lethal. The majority of this mistakes never lead to a malpractice claim, in part because patients are usually quite forgiving of our errors. One result, however, is that many serious cases of malpractice are never compensated, nor is the doctor penalized in any meaningful way. The system could be reformed, but not by following the recommendations of either the AMA or the Bush administration.

Posted by: Platypus on May 30, 2006 at 11:42 PM | PERMALINK

Of which 72% were thrown out or otherwise not payed. Meaning the system works.

Meaning 72% of the time, some lawyers made $10-20K even though no one did anything wrong.

Simple proposal for legal reform: allow juries to assess damages against any of the four parties in the room (defendant, plaintiff, defendant's lawyers, plaintiff's lawyers). If you believe juries generally get it right, why not? If you believe they don't...


Posted by: eeyn524 on May 30, 2006 at 11:49 PM | PERMALINK

A few other factoids:

-- Fewer than 20% of American MDs belong to the AMA. The AMA is the "establishment" organization, and it sometimes takes positions that are not in line with the views of most American MDs.

-- Insurance companies make gigantic amounts of money from medical malpractice insurance, and as always with insurance companies, their interest is in NEVER paying a claim. So it is very much in their interest -- and therefore in the interest of their Republican politician allies (including Joe Lieberman) -- to pretend that there is a "crisis" that needs "solving."

-- There is no organization or group with similar resources that can counter the very well-funded message of the insurance cos. It thus has become the CW. (And no, "trial lawyers" are not an effective countervailing force, for the obvious reason that the insurance cos have just as many trial lawyers on their payrolls as there are plaintiff's lawyers. The legal profession is split down the middle.)

-- That Republican politicians echo the claim of a "malpractice lawsuit crisis" is positive proof that acceptance of the idea will benefit the economic elite, i.e., the wealthy and corporations. That is what motivates Republican politicians. It's what they do. It's ALL they do.

Posted by: bleh on May 30, 2006 at 11:50 PM | PERMALINK

Sounds like that name was picked so nobody will know if it's a patient-care advocacy group, an insurance company group, or an HMO lobbyist group.

Yuck. Yuck.
Har. Har.

Now there's a shrewd whelp.

Do you suppose "InFrequently Fucked" suckled on one of Lynne Cheney's tits?

After all, where else would he learn so deeply about verbal misdirection?

Show us your true pedigree Frequently.
Can you pass the test?

Sample question:

1. The Bush Administrations air pollution plan will expose generations of children to more air pollution than allowed under current law. This plan is called:

The Blue Skies Initiative?
The Clean Skies Initiative?
The Clear Skies Initiative?
The Clear Lies Initiative?
The Industry Guys' Initiative?

Yuck. Yuck.
Har. Har.


Posted by: Cruel Troll Killer on May 30, 2006 at 11:55 PM | PERMALINK

Platypus tells the truth.

Posted by: nolo on May 31, 2006 at 12:27 AM | PERMALINK

Simple proposal for legal reform: allow juries to assess damages against any of the four parties in the room (defendant, plaintiff, defendant's lawyers, plaintiff's lawyers). If you believe juries generally get it right, why not? If you believe they don't...

Creating a downside risk for plaintiffs will only serve to benefit the hospitals, since even people who have legitimate claims will be wary running the risk of paying damages. A system where plaintiff lawyers work on contingency is almost a built-in discouragement against frivolous lawsuits, since lawyers are unlikely to spend a great deal of time on longshot cases.


Posted by: xyz on May 31, 2006 at 12:50 AM | PERMALINK

xyz:

since even people who have legitimate claims will be wary running the risk of paying damages

Isn't this an admission that the system doesn't do a very good job of separating legitimate from illegitimate claims? And why is the proposed risk of plaintiff's paying on a legitimate claim worse than the existing risk of a defendant's paying on an illegitimate claim?

Two big problems with the contigency system:

(a) it encourages a certain subclass of lawyers to go after long shot jackpots. File fifty $50M lawsuits, win one, you've got $1M. Since you've already more or less admitted that the system gets it wrong sometimes, the jackpot seeker is likely to win eventually.

(b) in some cases (probably small, but definitely nonzero) the plaintiff and defense lawyers are in collusion. Plaintiff's lawyer files frivolous suit, defense lawyer collects $20K in legal fees from defendant. In really bad cases, the defense lawyer shares $10K of the take with the plaintiff's lawyer. In slightly less bad cases, the defense lawyer keeps the $20K but returns the favor next year by filing a frivolous suit against one of his collaborator's clients.

Don't get me wrong - I'm in favor of malpractice victims getting their payment, and to sort out the true from the false, we have to let pretty anyone file their case. I think the average jury would not assess damages against a plaintiff who was actually injured, even if they decide the doctor was not at fault. But there should be some punishment/downside for the obviously fradulent cases, and their lawyers, and the fact is there are lawyers willing to make their living off these cases.

Posted by: eeyn524 on May 31, 2006 at 1:17 AM | PERMALINK

Sorry: File fifty $50M lawsuits, win one, you've got $1M.

Meant $1M average per lawsuit.

Posted by: eeyn524 on May 31, 2006 at 1:34 AM | PERMALINK

The REAL problem isn't health care. It's the economy at large.

Insurance companies have a very simple business model traditionally. They take premiums, invest them, pay out claims, and the profits on the investments is their profit. This always isn't 100%, but it's usually the case.

However, over the last few years, two things happened.

#1. The investment market has cooled down.

#2. It's cooled down after a particularly hot time. So while during the 90's, insurance companies had huge rates of profit growth...the market slows down, but at the same time expects the same rate of profit growth. So premiums have to go up to cover the difference.

At the same time, modern investment is a competitive game. If one company is making 5% profits, then other companies need to top that in order to attract people to their stock as opposed to others.

Posted by: Karmakin on May 31, 2006 at 1:37 AM | PERMALINK

Eeyn524: "Why is the proposed risk of plaintiff's paying on a legitimate claim worse than the existing risk of a defendant's paying on an illegitimate claim?" If you're going to set up such a system, you had better make sure you properly calibrate the damages to be paid by either side to that side's total financial resources, or you'll intimidate non-wealthy patients into not suing hospitals even if they have a good case.

Posted by: Bruce Moomaw on May 31, 2006 at 1:38 AM | PERMALINK

The big majority of serious and preventable medical mistakes never result in malpractice suits - patients are not just forgiving, they usually don't know enough to realize they've been screwed.

The anesthesiologists, years ago, had a weird response to extremely high malpractice premiums: they hired some analysts to systematically examine their methods and look for improvemments. They succeeded: the risks of surgical anesthesia have gone down by a factor of more than twenty in the last generation.


Posted by: gcochran on May 31, 2006 at 2:14 AM | PERMALINK

Anesthesia lends itself well to systems analysis--you're taking a relatively healthy person through a series of physiologic changes, like flying a plane. Clinical and emergency medicine do not lend themselves to this kind of review. How do you get from "My tongue has flashing pain," to "You have lymphoma." Every case is different and filtered through languages, culture, psychology and so on.

Posted by: Bad Shift on May 31, 2006 at 2:33 AM | PERMALINK

Have any of you guys ever actually spoken with a real live doctor about this issue? The problem is not that malpractice awards are out of control, it's that malpractice SUITS are out of control. A vast majority of cases are thrown out, but defending onesself until the case is thrown out COSTS MONEY. It also raises malpractice insurance rates across the board by creating a greater risk for insurers. The absence of effective legal and organizational sanction against the small percentage of bad docs means that the risk is borne across the entire pool. Many of the insurers have decided to withdraw from the medical insurance business because it's not a profitable business for them.

America already has a shortage of qualified physicians, and while there are megabucks being made in medicine they are not generally being made by physicians. It's a dirty little secret, but becoming a doctor in most specialties is not a very good business decision. The up-front investment (education) is huge, the work is grueling, the overhead is tremendous and the margins are tight. If you happen to make one decision which is arguably a mistake, the repercussions are extreme. This leads to defensive, burnt out doctors who cannot make their practice turn a profit. I don't think this does our society any good.

Bush may be for medical liability reform for all the wrong reasons. This in itself does not mean that medical liability is not broken. I appreciate that Kevin needs a punchy blog line for it, but the reality is that medical liability is broken. Bush almost certainly isn't the person to fix it right, but it does need to be fixed.

=darwin

Posted by: Darwin on May 31, 2006 at 2:34 AM | PERMALINK

The statistics showing the death rate caused by medical error are misleading to the lay person. People die in hospitals at a certain rate. Errors are made at a certain rate. When you fish the data to find error and then death, you will find plenty of both. In reality, most people who die in hospitals die far after the moment that would have been dignified for patients and families.

Posted by: Bad Shift on May 31, 2006 at 2:39 AM | PERMALINK

Darwin is right, some of you should consider following a doctor around for a shift or two, just to see how much time and money is devoted to not missing that one sub-arachnoid hemorrhage, no matter how unlikely. It would be eye-opening.

Posted by: Bad Shift on May 31, 2006 at 2:43 AM | PERMALINK

Ditto what Bad Shift and Darwin said. There is a tremendous amount of money spent in this country on performing CYA testing and CYA treatment and CYA consulting because of physician fear of malpractice.

I've only been threatened with malpractice once so far (knock on wood). An RN got caught calling in narcotics for himself under my name (on a recorded line by our employer!!!). I had to turn him over to the DEA's drug abuse diversion program and he wanted to sue me for breaking patient confidentiality. Fortunately the lawyers for my employer covered that one.

Posted by: J Bean on May 31, 2006 at 2:59 AM | PERMALINK

"The absence of effective legal and organizational sanction against the small percentage of bad docs means that the risk is borne across the entire pool."

Then why in God's name doesn't the profession police itself more effectively to get rid of that "small percentage of unusually bad docs"?

Posted by: Bruce Moomaw on May 31, 2006 at 3:01 AM | PERMALINK

Bruce Moomaw:

you had better make sure you properly calibrate the damages to be paid by either side to that side's total financial resources, or you'll intimidate non-wealthy patients into not suing hospitals even if they have a good case.

True, but that's why we'd let the jury decide. As a compromise, the damages against the plaintiff's side could be limited at most to the defenses actual costs, and it should be emphasized that this is only if the jury decides the plaintiff's case was not only unproven, but was unreasonable. In other words, loser pays, but in the plaintiff's case only if the jury decides it was an especially bad loss.

The juries already have the task of calibrating damages; if you think they're doing a bad job of it that sort of disproves KD's point.

Malpractice is a special case, since it's generally the "little guy" filing the suit against a wealthy insurance company. However, in other types of cases it's very possible under the current system for a private citizen to be financially destroyed by a lawsuit in which they are completely vindicated. I see something wrong with that.

By the way....for the universal health insurance (UHI) advocates: do you think malpractice claimants would get more or less money out of the UHI than they would under the current system?

Posted by: eeyn524 on May 31, 2006 at 3:02 AM | PERMALINK

Bruce Moomaw:
"Then why.. doesn't the profession.. police itself?"

Individual doctors often have little say in the matter, as medical licensing is usually done by State Governments. Also, a (once-)typical doc in solo practice has very little time to dedicate to anything other than the daily practice of medicine. If it were as easy as knowing who not to refer patients to, that'd be one thing.. but anyone with a license can and usually will practice.

=darwin


=darwin

Posted by: Darwin on May 31, 2006 at 3:23 AM | PERMALINK

In that case, let's propose a "three strikes and you're out" rule, or its equivalent, to doctors who keep losing serious malpractice cases. It would certainly be fairer than depriving seriously maimed patients (or the survivors of killed patients) of the large awards they're morally entitled to.

And, once again: if the medical profession are morally pure victims of the current situation, then exactly why did the AMA feel obligated to lie through its teeth (albeit ridiculously badly) about the conclusions of this new NEJM study?

Posted by: Bruce Moomaw on May 31, 2006 at 4:27 AM | PERMALINK

...they need to run that study in Miami. Between the phoney claims and bogus practitioners, the Latins have made this the medical malpractice capital of the US.

Posted by: Gordon on May 31, 2006 at 6:04 AM | PERMALINK

Not having a dog in this hunt, I wonder how many workers would like to put their work on the line each day such that a law-suit might be risked on their abilities? It's no wonder that doctors and the AMA declare a crisis; they also risk human lives.

However, we might wish that more critical professions would be subject to law-suits based on competence: for example, Secretary of Defense, Attorney General, Vice President, and President.

Posted by: Hedley Lamarr on May 31, 2006 at 7:02 AM | PERMALINK

Some more on the subject. First, there's a detailed review of the situation by U. of Nebraska student Christopher Smith at the Aemrican Medical Student Association site ( http://www.amsa.org/hp/MedMal_AlternateSolutions.pdf ), which I'm still going over -- but which makes some particularly interesting points:

(1) The average award size IS increasing sharply in recent years. Kevin points out that it's increasing no faster than the rate of medical-cost inflation -- but that rate is itself twice that of the regular inflation rate: 8% per year over the 1992-2003 period, compared to the regular inflation rate of 4%. Average award size has doubled during that period (something that the CBO and Ralph Nader's "Public Citizen" agree on).

Why? Are those evil Svengali-like trial lawyers gaining more excessive clout? But -- as the CBO pointed out in 2004 ( http://www.cbo.gov/showdoc.cfm?index=4968&sequence=0 ) -- the number of claims made, and the fraction of cases won by said evil lawyers, are NOT increasing: "Although the cost per successful claim has increased, the rate of such claims has remained relatively constant. Each year, about 15 malpractice claims are filed for every 100 physicians, and about 30 percent of those claims result in an insurance payment." So, if they're Svengalis, they are a very peculiar type of Svengali, with power to bewitch jurors in some ways but not in others.

So what IS making the average cost per award jump? Additional payments to the lawyers themselves? But those have only risen about $15,000 during the same period, in which the average payment per claim (according to the CBO) has risen by ten times that much. What's happening here? Neither Smith nor the CBO says.

BUT:

(2) Smith cites a swarm of evidence that policing the medical profession to get rid of a minority of seriously bad apples really WOULD greatly improve the situation: "In addition to their ethical obligation to protect the well- being of patients, physicians have the opportunity to take an active role in improving malpractice liability. Fewer adverse events will lead to fewer lawsuits and lower malpractice premiums. For example, after the implementation of strict professional standards, anesthesiologists saw a drastic decrease in deaths and malpractice premiums... Addressing patient safety issues should also include tougher professional discipline. In 2003 one percent of physicians accounted for 12% of total malpractice damages paid. The five percent of doctors with the highest payments accounted for nearly one-third of total damages. Of the doctors with five or more malpractice payments since 1990, only 22% were disciplined. The National Practitioner Database shows that nearly 60% of physicians with 10 or more malpractice reports had no reports of disciplinary action, although under-reporting makes this data difficult to generalize. Licensing boards and professional associations must do a better job of disciplining doctors who continuously put patients at risk. Proper sanctioning of this relatively small number of providers can save lives and lower malpractice liability for the rest of the profession." (pg. 6)

(3) Smith, the CBO and a study mentioned in that same "Harvard School of Public Health" URL that Kevin links to all agree that the horror stories about high malpractice premiums chasing MDs out of business are just that: spook stories. Smith: "While the AMA insists that doctor walk-outs, early retirement, declining willingness to perform high-risk procedures, and hospital closings pose an imminent threat to healthcare access, a 2003 GAO study found that 'provider actions were not substantiated or did not affect access to health care on a widespread basis'. In fact, the number of physicians in the United States has INCREASED by 30% over the past decade." CBO: " GAO investigated the situations in five states with reported access problems and found mixed evidence. On the one hand, GAO confirmed instances of reduced access to emergency surgery and newborn delivery, albeit 'in scattered, often rural, areas where providers identified other long-standing factors that affect the availability of services.' On the other hand, it found that many reported reductions in supply by health care providers could not be substantiated or 'did not widely affect access to health care.' " And http://www.hsph.harvard.edu/press/releases/press05102006.html : "In a separate study released May 10 by the Robert Wood Johnson Foundations Synthesis Project, [Michele] Mello examined the effects of the recent increases in malpractice insurance premiums on the delivery of health care services and the impacts of state tort reforms. Reviewing existing studies, the report concluded that the deteriorating liability environment has had only a modest effect on the supply of physician services. 'The best evidence shows, at most, a small overall decrease in the number of physicians practicing in high liability states compared to lower-risk states, though some rural areas have been more affected,' Mello said. Aside from caps on noneconomic damages, most tort reforms adopted by states in response to malpractice crises have not been effective in boosting physician supply or reducing insurance or litigation costs." Damages caps 'help constrain growth in litigation costs and insurance premiums over time, but disproportionately burden the most severely injured patients.' "

(4) CBO also agrees with Kevin that the whole thing is pretty much a tempest in a teapot: "Malpractice costs amounted to an estimated $24 billion in 2002, but that figure represents less than 2 percent of overall health care spending. Thus, even a reduction of 25 percent to 30 percent in malpractice costs would lower health care costs by only about 0.4 percent to 0.5 percent, and the likely effect on health insurance premiums would be comparably small." And that reduction -- if you produce it by capping malpractice awards -- would come by piling a huge additional burden on a small number of unlucky people.

In short, while Smith (like the new NEJM study) discusses alternative litigation techniques at length (no-fault, arbitration, etc.), it looks to me as though -- to the extent that there's a problem at all -- the best way to solve it is simply to crack down on the small number of rotten apples in the barrel of MDs. If (as "Darwin" suggests) the medical establishment itself isn't up to policing itself, then set up an equivalent of the three-strikes-and-you're-out system within the malpractice litigation system itself: two or three serious malpractice judgments against a doctor and he loses his license for good. One other conclusion that comes out of these documents is further proof that the AMA, to put it bluntly, is composed of psychopathic liars.

Posted by: Bruce Moomaw on May 31, 2006 at 7:30 AM | PERMALINK

Getting in a little late here with what I hope is an interesting data point:

I recently got the annual report from my medical malpractice carrier...

http://www.mmicgroup.com/PDF/2005AnnualReport.pdf

...and guess what? At least for this carrier (one of the largest insurers for this part of the country) their claim frequency is not only down, it has never been lower in the 25 years of the company's existence.

I posted more detail here:

http://www.dailykos.com/story/2006/5/9/18532/02628

(...for those who are brave enough to accept a challenge to their tidy little world-view)

Posted by: pdq on May 31, 2006 at 7:59 AM | PERMALINK

There has been some research showing malpractice premiums went up as the stock market crashed...and had nothing to do with soaring malpractice suits. The fact that the premiums haven't come down has more to do with the profit motive than anything else, and the fact that insurors are quite happy to lie and rake in the bucks. Oh, they must be supporting the Republicans...who lie and rake in the bucks.

This whole country is turning into a bunco jobs with rube voters on one side and flimflam men on the other.

Posted by: Carol on May 31, 2006 at 8:46 AM | PERMALINK

There has been some research showing malpractice premiums went up as the stock market crashed...and had nothing to do with soaring malpractice suits.

Indeed. As Kevin has noted, insurance company executives testified to the Florida legislature about the grave malpractice problem...then, testifying again under oath, admitted that the so-called "problem" was, indeed, hype. Malpractice insurance rate increases are attributable much more to fluctuations in the investment market than malpractice suits.

Posted by: Gregory on May 31, 2006 at 8:55 AM | PERMALINK

If Harvard researchers are so omniscient why don't we just have them mediate all malpractice suits. It's bound to be 1000 times cheaper than using lawyers.

Posted by: csm on May 31, 2006 at 8:59 AM | PERMALINK

"However, the American Medical Association, which favors caps on malpractice awards, called the study proof that a substantial number of meritless claims continue to slip through the cracks, clogging the courts and forcing doctors to waste time defending them, association board member Dr. Cecil Wilson said."
Posted by: Al

So 1% of meritless claims represents a "substantial number"? As I've said before, Al, you don't even try anymore. You used to at least be funny (to laugh at, not with), but now you're just pathetic.

Posted by: American Chickenhawk on May 31, 2006 at 9:08 AM | PERMALINK

If you read the study you come away with the realization that real progress in reducing malpractice is only possible when Doctors stop making excuses for each other. If they were to actually impose and enforce real penalties for the very few bad doctors who seem to commit the bulk of the malpractice everybody would benefit except the bad doctors. Even the malpractice bar would benefit because then they could focus their attention on more productive endeavors. The good doctors would benefit from lowered malpractice claims and by not having to associate with scumbag docs. Most important the patients would benefit. Of course, it has never been about the patients has it?

Posted by: Ron Byers on May 31, 2006 at 9:15 AM | PERMALINK

"Then why in God's name doesn't the profession police itself more effectively to get rid of that "small percentage of unusually bad docs"?

Posted by: Bruce Moomaw "

The comments above, especially the one from the student journal, are pretty good. The reason why the bad docs don't get taken out is simple. They have good lawyers who will sue any other doctor who tries to discipline them, I served as a consultant for years to the California medical board (Then called BMQA in a Jerry Brown PR move). The medical board had the youngest, least experienced lawyers. The bad guys had $400/hour specialists. One case involved 33 different examples of bad care from one guy. I spent 4 days being cross examined and I have spent thousands of hours testifying in court. The state lawyer (assistant AG) had been trying a case in front of the accountancy board the week before. He was a nice guy but out of his league. I had to spell the words for the ALJ (judge).

During the hearing (not technically a trial) I took the AG to lunch (He was brown bagging but it was a chance to discuss the case). When I submitted my expenses after the case, my payment ($75/hour) was held up for two years because I submitted a bill for $26 for lunch that day. It included two of us but was too much for the state. I finally quit being an expert after that guy got off scot free.

Malpractice suits, like many lawsuits, are lawyering contests. The determination of who wins is almost always the lawyers. Plaintiff lawyers are often good guys but many are not very good at trial work. The meritorious cases are usually settled without trial. The ones contested either have facts in dispute or a weak plaintiff lawyer. It is also getting harder and harder to win as juries get more sophisticated. I testified in a case in Bisbee Arizona which was won by the defense after they told the jury, a local Bisbee jury, that they would never get another specialist to come to Bisbee if the jury found against the doctor.

I have personally been sued by a bad doctor after my partner went to the hospital administrator about abuse. When I was chief of surgey about 30 years ago, I assigned an orthopedic surgeon, an outstanding guy, to supervise a new orthopod who was doing some odd things. He eventually recommended restricting the new guy's privileges on several types of cases. The new guy sued him and kept appealing for 10 years in spite of losing every appeal. The good guy eventually told me he would never ever get involved in peer review again and moved away, leaving the hospital. The poor surgeon is still there 30 years later. The good guy had to pay his own legal fees and they were thousands of dollars. Many thousands. For being a responsible staff member.

Read "Blind Eye" sometime. It is often easier to convince a bad doc to move on to someplace else than to really go after their license. They will sue everybody. I was told once by a lawyer that I should be very careful in my personal life when I had agreed to get involved in a disciplinary action against a really bad guy. If they had anything they could use to embarrass me, they would use it. These guys play for keeps.

As far as malpractice being a crisis, one problem is that doctors' incomes are way down the past 15 years and they cannot afford expenses they once paid. I know that malpractice does encourage older people to retire earlier than they might. The California MICRA reforms are 30 years old and have held premiums down pretty well over the years. That's why the Bush people are trying to make them national.

Quality improvement is a subject that has not yet taken hold. That is one reason I support single payer although I am not optimistic about better care.

Posted by: Mike K on May 31, 2006 at 9:22 AM | PERMALINK

But, but, what about all those obgyns who can't practice their love on their patients?

Actual facts don't matter.
sigh

Posted by: lilybart on May 31, 2006 at 9:32 AM | PERMALINK
Simple proposal for legal reform: allow juries to assess damages against any of the four parties in the room (defendant, plaintiff, defendant's lawyers, plaintiff's lawyers). If you believe juries generally get it right, why not? If you believe they don't...

First off, juries already have the power to "assess damages" against a plaintiff's lawyer- deny recovery.

Its expensive to file a lawsuit. Lawsuits which require a mountain of technical evidence are even more expensive. It AIN'T just putting a sympathetic face on the stand who says "I'm hurt, the doctor did it, give me money." Many states require that a lawyer get a doctor to certify the claim is not friviolous before filing suit. Try that some time- see how easy it is to get one doctor to say another fucked up. Many states have friviolous litigation statutes for cases which prove not to be well grounded in law and in facts, which means if you lose, and it is a frivolous lawsuit, you not only lost your "investment" in your case (cause your client ain't got a dime- he spent all his money just making ends meet now that he can't work thanks to the tortfeasor), you could have to pay those hourly fees that the defense lawyer charges plus their expenses and, as I said, lawsuits which require technical evidence aren't cheap.

EEYN524 has an uninformed opinion, as shown by his later comments about filing as many lawsuits as one can until one hits the jackpot. I gather your retirement plan is based upon investing in lottery tickets. What do you propose the lawyer do to pay his mortgage, pay his staff, his office rent, eat, feed and clothe his family, fill his car with gas and on and on and on while he is filing all these expensive lawsuits waiting for that miracle 1 million dollar payout. A lawyer gets 30% to 40%, if he is lucky enough to win one of these suits. Do the math, how much money would have to be awarded the plaintiff for the lawyer to get a million dollar fee? How many cases are there that approach that level? Now what is the quoted average in this article?

EEYN524 must be a Republican because s/he has no fucking clue about money or how to run a business and I assure you successful lawyers are successful businessmen.

For the record, I don't even do medical malpractice cases. But I have seen doctors keep a family member in the ER while they are bleeding internally and then 9 hours after they were admitted, shove an "informed consent" form in front of the patient and say, "sign this or you are going to die!" Why was that family member in the ER? Because the gas passer poked a hole in the esophagus during a "routine" gall bladder operation, then the surgen released them from the hospital after 24 hours without figuring out there was internal bleeding. And to top it off, no-one, not the surgeon, not the anesthesiologiest had any clue as to how that tear in the esophagus happened. It was just one of God's mysteries. No we didn't sue.

Posted by: molly bloom on May 31, 2006 at 9:37 AM | PERMALINK

Actually the link to the AP article provided by wingnut kenneth does illustrate part of the problem, but not what he suggests. It helps illustrate once again the myth of the liberal media. http://www.fortwayne.com/mld/journalgazette/news/nation/14553137.htm

The headline is sensational and is what he grabs on to: "4 in 10 malpractice torts baseless, Harvard finds" Anyone skimming the first three paragraphs will find their preconceived notions that there is a malpracice crisis reinforced.

Not until the 4th paragraph do we start getting a challenge to that view, but then that is quickly turned into a he said/she said dispute with the AMA arguing the other direction.

While the study shows that more people who are injured dont get compensation the story makes little mention of that, instead there 4 sentences in a 26 sentence article devoted to an anecdote about a single case in which a woman sued and got money despite no clear evidence of negligence.

At the end, what is clear evidence as Kevin has correctly pointed out that the so called malpractice crisis is overstated is reported in the media with a headline that suggests the opposite and leaves most readers probaby merely reinforcing what they already believed.

The crisis may be more along the lines of a communication crisis, with a mass media that reinforces such false beliefs rather than dispell them.

Posted by: Catch22 on May 31, 2006 at 9:39 AM | PERMALINK

Kevin is right--malpractice is overblown. It's a symptom of our healthcare system's focus on individual actors while utterly ignoring the fact that these doctors are operating in a system which tolerates and pretty much ensures that medicine is practiced very, very poorly.

Just one quick stat--when people show up at an ER having a heart attack, they should get an aspirin immediately. It makes a huge difference in their outcome. But people don't get it about 10% of the time (and when you dig deeper into that stat, like whether they got it in a timely manner, it's much worse). Let me say that again--one out of every 10 times, hospitals can't get their act together to hand someone an ASPIRIN.

We've got a healthcare system in which hospitals routinely fail to do the most simple, basic things. The level of incompetence that's tolerated is mind-boggling. If we tolerated these kinds of mistakes in the airline indusry, planes would smash into each other and fall out of the sky on a daily basis. Seriously, it's like a car manufacturing plant where every year, a whole pile of cars are shipped without brakes.

We tolerate an absolutely spectacular level of incompetence in our medical system. Malpractice is just the most egregious tip of a very large iceberg. Hopefully we'll get serious about making the major changes we need in order to get some quality, but capping penalties on the worst offenses is about the most unimportant thing to be doing right now.

Posted by: theorajones on May 31, 2006 at 9:49 AM | PERMALINK

Sorry the link was provided and the AMA spin provided by "AI", not Kenneth who apparently is just commenting about his ignorance as to who funded the study.

Posted by: Catch22 on May 31, 2006 at 9:50 AM | PERMALINK

I strongly believe that this study should not be ignored and something should be done in this regard.

Posted by: Bobby on May 31, 2006 at 9:57 AM | PERMALINK

Kevin, are you incapable of comprehending plain English? Had you read the article you cited you would have learned, The costs of litigating claims, including defense costs and contingency fees paid to plaintiffs lawyers, averaged $52,521 per claim. Overall, these administrative costs amounted to 54% of the compensation paid to plaintiffs.

But by your lights there is no problem here. The malpractice "crisis" is mostly just hype.

Everything's fine, lawyers need to pay to straighten their kid's teeth and all.

And you wonder why I think you're a moron?

Posted by: Norman Rogers on May 31, 2006 at 10:09 AM | PERMALINK

Meaning 72% of the time, some lawyers made $10-20K even though no one did anything wrong.

As many cases were likely taken on contingency, that would almost certainly be the doctor's attorney that made the money (which was probably far less than $10-20K), while the plaintiff's attorney racked up expenses with no compensation.

Simple proposal for legal reform: allow juries to assess damages against any of the four parties in the room (defendant, plaintiff, defendant's lawyers, plaintiff's lawyers).

If your plan is to radically drive up the costs and decrease the quality of the results of the system, that's a good proposal.

If you believe juries generally get it right, why not?

Well, because there are only two parties and a smaller number of issues in a case currently. Increasing the number of parties, and giving the current parties and their attorneys competing interests in the courtroom (1) encourages attorneys to act other than in the best interest of their clients, which will decrease the quality of their advocacy, (2) increases -- through the proliferation of parties and legal issues -- the complexity of the case facing the jury and the difficulty of resolving it appropriately, (3) by the same proliferation of parties and issues, increases the length, complexity, and cost of litigation, (4) by increasing the uncertainty involved from every party's perspective, and by increasing the length and complexity of litigation, increases the compensation attorneys on both sides will demand in order to be involved in such cases, which will drive up the cost of litigation, and drive up the cost of medical malpractice insurance which must bear the cost of such litigation, (5) by increasing the uncertainty involved, will create a disincentive to make claims, including those with merit, (6) by increasing the uncertainty involved, and the cost of litigation, will increase the incentive to pay out to settle claims even those lacking in merit.

Its a great way to drive costs up, while making the system less effective at actually doing justice to those who have been wrongly injured, or exonerating those wrongly accused.

Posted by: cmdicely on May 31, 2006 at 10:18 AM | PERMALINK

You can split hairs over whether or not there might be a malpractice crisis in America, but I guarantee all the anti-patient types trolling out here would call a lawyer the minute they thought they were a victim of medical malpractice. Stinking hypocrites.

Posted by: brewmn on May 31, 2006 at 10:22 AM | PERMALINK
What's more, groundless cases are often filed because it's the only way to force hospital administrators to release information about the case.

This is an important point. All information pertaining to a patients care should be available to a patient on demand, without filing a malpractice case.

That might increase the filing of legitimate malpractice claims based on that information, but it would certainly decrease the filing of groundless malpractice claims to get the information when no malpractice has occurred.

This is a simple, common sense solution that everyone but the bad docs and insurance company lawywers should support.

Posted by: cmdicely on May 31, 2006 at 10:25 AM | PERMALINK
The juries already have the task of calibrating damages;

That's not all that true, in the sense of calibrating them to ability to pay; they may choose to do so outside of the law, but legally the task before them is usually to determine what damages were actually caused and assess those against the responsible party, not to calibrate them according to ability to pay (except in the case of punitive damages, which are on top of actual damages, and where the resources of the wrongdoer may be relevant.)

Posted by: cmdicely on May 31, 2006 at 10:29 AM | PERMALINK

Theorajones,

Since I've entered an ER with a heart attack, I feel I can address this issue.

I honestly don't recall whether I was given an aspirin. I was given a lot of things, including an EKG, blood draw (multiple, actually), and major drugs through my IV to thin my clot. There was a lot of stuff happening there.

During transport, the ambulance driver gave me nitroglycerin, as well.

Remembering to give me an aspirin seems like a good policy, and easy to do, but they are doing lots of stuff all at once. Also, there might be situations where you shouldn't give the patient aspirin.

Of course, this is exactly why malpractice is difficult to litigate. Medicine is still not an exact science. Some people use different protocols.

In my case, 2.5 hours after I developed symptoms, and about 1.5 hours after I entered the hosipital, I had my clot removed via catheter and two wire-mesh stents placed in my right coronary artery. The hospital apologized to me that it wasn't faster, but it was a Saturday morning and none of the cath lab staff was in the hospital.

Subsequent research by my wife showed that this was a new treatment protocol for heart attack, and that they get best results if it is done within an hour of entering the hospital. Should I have sued them for malpractice? I sure didn't think so. I made a very good recovery and I'm feeling very good today, and they were forthright with me about what was going on.

If hospitals and doctors did more of this, they'd be sued less.

Posted by: Doctor Jay on May 31, 2006 at 10:36 AM | PERMALINK

If this were indeed the incredibly profitable line of business you were describing, insurance companies would be fighting to get into the market.

In the mid to late 1990s, prices decreased substantially as competition became fierce, and investment income on premium was extremely high.

As investment income shrank, and losses developed unfavorably, insurance companies lost their shirts from the late 1990s to early 2000s. Rate increases since 2000 have put the price back in line with actual costs and current investment income.

Posted by: exhuming mccarthy on May 31, 2006 at 11:29 AM | PERMALINK

Dr. Jay, you made a very good point. The people treating you gave you every indication that they were taking your care seriously and doing everything they could given the circumstances. The hospital apologized for not doing it fast enough. You wouldn't think of suing under the circumstances of your case. Most people wouldn't.

Unfortunately many people don't have the same experience with health care providers. Some physicians are just plan nasty and have no business dealing with human beings. I encountered a case a few years ago involving one of the bad actor doctors who was a woman. She had a thing about treating women. She just couldn't. One of her women patients (a relatively young mother of twins) was going bad and the hospital nursing staff knew it. The hospital just couldn't get her to pay any attention to the woman. Ultimately somebody on the hospital staff stepped in. The woman was rushed to surgery, but later died. The family was convinced that the doctor's inattention lead to mom's death. Our experts told us that as bad as the doctor treating the woman acted, the woman's death probably couldn't have been avoided had the bad doctor acted promptly. Like about 99 out of 100 such cases, they concluded that a malpractice claim would be a waste of time. Had the bad doctor just paid modest attention to her dying patient, the family wouldn't have even thought about a malpractice suit. She didn't and they did. Think of all the pain inflicted on the family because the doctor was a bitch. Our experts, the folks who recommended against a malpractice claim, wrote the the state board of healing arts. I understand that her actions in the case were not isolated. She had a long history of other similar problems with women patients. Finally that history lead her to an early retirement from medicine. Now the Staff of the hospital where she practiced knew of her history. They stood moot. She was one of the club, even though she was absolutely around the bend deep in her own tormented psychological hell.

Posted by: Ron Byers on May 31, 2006 at 11:54 AM | PERMALINK

My wife works in a hospital system. She and her peers KNOW certain doctors that should be avoided, because of the many complications that seem to arise from their particular care. But she is contractually prevented from sharing this information with patients, or even suggesting that their subsequent problems might be due to malpractice. This legally sanctioned omerta is not good for anybody but the poorly performing doctor.

Posted by: xyz on May 31, 2006 at 12:16 PM | PERMALINK

Mike K,

You have a good post but it's still not clear to me that the best reform path is not to remove the bad guys as you say. Sure, if you or your colleague try to bring action against a bad guy you are rowing upstream. But does not that suggest that the best course of action would be to strengthen the medical disciplinary boards at the state level?

For example, one of the big calls for reform is to limit damage awards to a plaintiff in a medical malpractice case. Given you examples would it not be better to limit damages that could be awarded to a doctor in a delicensing case?

Posted by: MSR on May 31, 2006 at 1:09 PM | PERMALINK

Maybe I'm misunderstanding this, but the study seems to be saying that out of 1500 cases, 380 of them were solved incorrectly by the malpractice system, and in at least 10% of the cases, doctors faced unfair and potentially career-damaging censure.

That may not be the vast economic threat it's made out to be, but it sure doesn't sound like a good system through which doctors or patients can have any reasonable expectation of justice.

As someone inside the system, I can say that the emotion surrounding these issues for doctors and patients is intense. There's just gotta be a better way to handle this than to turn it into big business for either lawyers or insurance companies.

Posted by: Jonathan Dworkin on May 31, 2006 at 2:11 PM | PERMALINK

My mother was clearly injured in a malpractice experience-- disabled, in fact, because for a week after it was determined she was allergic to a medication in the hospital, they kept giving it to her. The chart even has a resident screaming in all caps: "SHE IS ALLERGIC!! Why do you (the other doctor) keep prescribing this?" Finally a nurse put a huge note on the IV trolley: "ALLERGIC TO __!" (This same nurse smuggled my father copies of the chart-- no, they weren't going to let my mother have it.) My mother was disabled by 2 strokes because of this medication, and spent 50 days in the ICU, at a cost, by the way, of almost a million dollars. And she'd gone into the hospital for a fairly simple procedure.

Okay, so afterwards, they tried to sue for malpractice. Against the leading cardiologist and biggest hospital in the state. No attorney would take their case, even though they had the charts showing the allergy and the effect, and a promise from the nurse (a real heroine) to testify. The attorney said it was unlikely that it would pass the crew of doctors who act as gatekeepers to the state's courts-- only, of course, for medical malpractice. Virtually no cases made it to court past that committee. My parents finally gave up, deciding that they had to move on past the injustice and concentrate on healing. Their finances, of course, never recovered from the many thousands of dollars of unrecompensed bills.

Those malpractice litigation statistics don't take into account that many states don't allow malpractice plaintiffs access to the courts without the approval of a physician committee.

Posted by: cous on May 31, 2006 at 4:34 PM | PERMALINK

cmdicely:

Thanks for the civil response. Many of your points about allowing juries to order payments by the plaintiff are very true - it would make the system more complex. A less complex way would be a simple loser pays rule; however, its been argued somewhat convincingly that that's unfair to less affluent plaintiffs. The suggestion to require a jury finding is effectively to modify the "loser pays" rule to "obviously dishonest losers pay". The standard of proof required for a finding of damages against the plaintiff could be set fairly high.

while the plaintiff's attorney racked up expenses with no compensation.

I'm not concerned about the plaintiff's attorney. He/she is an adult that can decide whether to take on cases. I'm concerned with the defendant that's out $10K-$20K for no reason.

Molly Bloom:

EEYN524 has an uninformed opinion...your retirement plan...EEYN524 must be a Republican

That's not very civil, especially the last part. In any case, your first point about the contingency doesn't address the problem of an unfairly targetted defendant.

You point out correctly that a good lawyer is a good businessman. But there are some lawyers that are neither, and they do a lot of damage on their way to the bottom. As for the math, the average cost quoted in the report is $50K. Filing $1M claims and working on 30% contingency, you only need to hit 1 out of 6 to come out ahead.

I'm sorry if I offended you (apparently you're a lawyer) with the points about lawyer misconduct. I don't mean to imply more than a tiny fraction of lawyers engage in these practices - but it doesn't take many to cause a problem. I'm a bit biased by living in a county that is famous nationwide for this kind of stuff.

Posted by: eeyn524 on May 31, 2006 at 4:44 PM | PERMALINK

In many states, during the 1980's, lawyers faced a similar crisis: Either malpractice insurance was prohibitively expensive or not available at all. So what did the lawyers do? They formed their own mutual insurance companies. Viola! Rates came down and more insurance companies entered (or re-entered) the legal malpractice insurance market. Why can doctors do the same?

Posted by: CT on May 31, 2006 at 4:49 PM | PERMALINK
A less complex way would be a simple loser pays rule; however, its been argued somewhat convincingly that that's unfair to less affluent plaintiffs. The suggestion to require a jury finding is effectively to modify the "loser pays" rule to "obviously dishonest losers pay".

There already are causes of action providing recovery in cases of an "obviously dishonest" parties in litigation, including actions for perjury, malicious prosecution, abuse of process, perjury, etc. Some of these can be the bases for countersuit and settled in the same action as the initial suit.

I fail to see how just allowing juries to find damages essentially on their own initiative against anyone that happens to be in the vincinity of the court room regardless of the law or the issues actually litigated is a better solution.

Posted by: cmdicely on May 31, 2006 at 6:17 PM | PERMALINK
In many states, during the 1980's, lawyers faced a similar crisis: Either malpractice insurance was prohibitively expensive or not available at all. So what did the lawyers do? They formed their own mutual insurance companies. Viola! Rates came down and more insurance companies entered (or re-entered) the legal malpractice insurance market. Why can doctors do the same?

I would expect that, given the nature of the business, lawyers are probably more equipped to setup legal malpractice insurance businesses than doctors are to set up medical malpractice insurance businesses.

Posted by: cmdicely on May 31, 2006 at 6:19 PM | PERMALINK

There already are causes of action providing recovery....

All of which involve yet another lawsuit and more legal fees, when the problem I'm worried about is blameless parties harmed by legal fees. In the particular issue of medical malpractice it's true that the "blameless party" is doctors and insurance companies who are fairly wealthy, but that still isn't license to inflict financial harm on them.

I fail to see how just allowing juries to find damages essentially on their own initiative against anyone that happens to be in the vincinity of the court room regardless of the law or the issues actually litigated is a better solution.

As opposed to letting them do that only to the one party in the room that was dragged into the proceedings against their will. However, as stated earlier, the power doesn't have to be "regardless of the law or the issues". It could be limited in amount to the actual damages the case inflicted on the defense, and only when the jury specifically finds that the case was without any merit.

Posted by: eeyn524 on May 31, 2006 at 6:38 PM | PERMALINK

First of all, even what the study says doesn't look that encouraging:

The reviewers judged that 63% of the injuries were due to error. The remaining 37% lacked evidence of error, although some were close calls.

Most claims (72%) that did not involve error did not receive compensation. When they did, the payments were lower, on average, than payments for claims that did involve error ($313,205 vs. $521,560).

$313,205 on average with no error ????

Why is that encouraging? That suggests a 10% chance of being forced to pay out on average $313,205. That is sick! And what kind of super-crappy reporting is this: "Most claims (72%) that did not involve error did not receive compensation. When they did, the payments were lower, on average, than payments for claims that did involve error ($313,205 vs. $521,560)." Aren't these people supposed to be statisticians? One presumes that even if there is no compensation payment to the plaintiff, there is still significant court costs. So why in the world are they confusing the issue by following up with "When they did, the payments were lower, on average, than payments for claims that did involve error ($313,205 vs. $521,560)." Are these compensation payments or payments including attorney fees (I seriously hope it is the latter). Presuming it is the latter, why didn't they mention how much EXPENDITURE was for the defended/no error cases? Isn't that the super important thing to know? Not reporting it if you know it makes you look like a hack. Not knowing it if you research the issue makes the researcher an idiot. Doctors aren't ONLY pissed about paying too much for claims that result from errors. They are pissed about paying vast amounts of money on claims with no error because it is vast amounts of money they had to pay even though they won the case.

Posted by: Sebastian Holsclaw on May 31, 2006 at 11:57 PM | PERMALINK

Whee, look who is the idiot now. It is me! Kind of. The compensation piece still is reported really poorly, but this at deals with the main problem:

"The costs of litigating claims, including defense costs and contingency fees paid to plaintiffs lawyers, averaged $52,521 per claim."

Posted by: Sebastian Holsclaw on June 1, 2006 at 12:03 AM | PERMALINK

"Are these compensation payments or payments including attorney fees (I seriously hope it is the latter)."

Seb, they are the former. Now tell me: why is that worse than depriving genuinely victimized patients of compensation -- especially since the whole headline-grabbing nature of the article lay in its revelation that the latter sin is actually COMMONER than the former, contrary to what the AMA is screaming?

Posted by: Bruce Moomaw on June 1, 2006 at 5:25 AM | PERMALINK

It is the former? (I tried to get the original study but it is behind the NEJM paywall. So if there is no evidence of error (more than 1/3 of the cases) a doctor is subject to just under 1/3 chance of being forced to pay on average more than $300,000 in 'compensation'. That sounds like a good reason for doctors to be angry.

"Now tell me: why is that worse than depriving genuinely victimized patients of compensation"

It isn't worse. It is about the same. Doctors who commit actual malpractice don't get any sympathy from me. Innocent doctors who are forced to pay $300,000 on average do.

And the more than 1/3 of innocent doctors who are dragged in to litigation despite there being no evidence of wrongdoing (according to the study) still have to pay large defense costs. So about 1/3 of doctors who are being sued are incurring huge costs despite the fact that they didn't do anything wrong.

In short my sympathy levels are:
For doctors who commit malpractice--low
For doctors who don't but have to pay enormous costs--high
For patients who are injured by malpractice and sue--high
For patients who have bad medical outcomes depsite good care and sue--medium (I regret the outcome and don't like the suit).

But 1/3 of suits without evidence of merit is a serious problem in my book. I would also like to better understand the non-compensated evidence of merit suits. Is it a binary threshold where any evidence of merit automatically means you should win? (Not an accusation, I can't see the study only the scientist's summary).

Posted by: Sebasitan Holsclaw on June 1, 2006 at 12:09 PM | PERMALINK




 

 

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