Gross Negligence Standard

[VentJockey]

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So I'm doing a little bit of personal research on the gross negligence standard in Georgia. This seems to me to be a very good way of curbing malpractice abuse. I'd like to see this adopted in my state, and expanded from care delivered under EMTALA to all medical care. Yes, I know, the trial lawyers will never let it happen. But I want to write a paper advocating this, and I'd like to know if anyone is aware of any research about the effects of the gross negligence standard in Georgia, and how things have panned out since it was passed. Can anyone link me to some good information about how things have gone?

 

[Birdstrike]

So I'm doing a little bit of personal research on the gross negligence standard in Georgia. This seems to me to be a very good way of curbing malpractice abuse. I'd like to see this adopted in my state, and expanded from care delivered under EMTALA to all medical care. Yes, I know, the trial lawyers will never let it happen. But I want to write a paper advocating this, and I'd like to know if anyone is aware of any research about the effects of the gross negligence standard in Georgia, and how things have panned out since it was passed. Can anyone link me to some good information about how things have gone?

It can be gotten around very easily with testimony by the plaintiffs experts. Start by reading how Dr Peter Rosen and Steven Gabaeff did exactly that:

http://www.epmonthly.com/features/c...-slippery-slope-for-dubious-expert-testimony/

 

[Groove]

I still get nauseated when I read about Peter Rosen's involvement in that case and his "expert testimony".

 

[RustedFox]

I get sick about that as well.

 

[SpaceLeftBlank]

So I'm doing a little bit of personal research on the gross negligence standard in Georgia. This seems to me to be a very good way of curbing malpractice abuse. I'd like to see this adopted in my state, and expanded from care delivered under EMTALA to all medical care. Yes, I know, the trial lawyers will never let it happen. But I want to write a paper advocating this, and I'd like to know if anyone is aware of any research about the effects of the gross negligence standard in Georgia, and how things have panned out since it was passed. Can anyone link me to some good information about how things have gone?

The problem is that the gross-negligence standard, when properly applied, is essentially an immunity provision. At a time when a ton of other tort reform got passed in my state, they shot down the gross negligence provision on that basis.

People--not just lay people but often lawyers--mistakenly think that "gross negligence" means "really bad negligence." But it doesn't. From a legal standpoint, it's a level of conduct that is so reckless as to be considered the same as intentional conduct. Which means to prove a malpractice case under the gross-negligence standard, you essentially have to prove that the physician intended to cause harm to the patient. Which means that the most incompetent quack around would probably still get a pass.

Even a lot of physicians admitted (often privately) that that's not exactly the kind of standard we should be holding physicians to.

 

[Zebra Hunter]

The problem is that the gross-negligence standard, when properly applied, is essentially an immunity provision. At a time when a ton of other tort reform got passed in my state, they shot down the gross negligence provision on that basis.

People--not just lay people but often lawyers--mistakenly think that "gross negligence" means "really bad negligence." But it doesn't. From a legal standpoint, it's a level of conduct that is so reckless as to be considered the same as intentional conduct. Which means to prove a malpractice case under the gross-negligence standard, you essentially have to prove that the physician intended to cause harm to the patient. Which means that the most incompetent quack around would probably still get a pass.

Even a lot of physicians admitted (often privately) that that's not exactly the kind of standard we should be holding physicians to.

So what kind of standard should we physicians be held to, and who should be in charge of setting those standards? Should we just continue with simple negligence and whatever a lawyer can convince the Jury of non-medical personnel to believe as the standard?

IMO, it should be damn difficult to win a case against us. Why the heck would you want to place added pressure on the individual trying to save your life? Misses happen, not performing absolutely perfectly in each situation happen, and even if you never made the wrong decision in your entire career, you are still, more than likely, going to be sued, and you might still lose if Peter Rosen decides to provide expert testimony against you. Are you really okay with that?

 

[SpaceLeftBlank]

So what kind of standard should we physicians be held to, and who should be in charge of setting those standards? Should we just continue with simple negligence and whatever a lawyer can convince the Jury of non-medical personnel to believe as the standard?

IMO, it should be damn difficult to win a case against us. Why the heck would you want to place added pressure on the individual trying to save your life? Misses happen, not performing absolutely perfectly in each situation happen, and even if you never made the wrong decision in your entire career, you are still, more than likely, going to be sued, and you might still lose if Peter Rosen decides to provide expert testimony against you. Are you really okay with that?

It *is* difficult to win a malpractice case against a physician. Hell, it's hard to *bring* a malpractice cases against a physician, especially in tort-reform states. There are defense trial lawyers here in my state who have hundreds of trial victories defending med-mal trials--and this is in a state where only a minuscule percentage of the smaller number of cases that get filed even go to trial. The vast majority of medical-malpractice trials end in verdicts for the physicians. And every one of those had an expert--an expert physician--who said that the physicians on trial did something wrong.

The law, believe it or not, does not impose a standard of perfection, or even close to perfection. In fact, the law imposes on you, the physician, a standard that is likely, if you're like most physicians I know, much lower than the one you impose upon yourself. Physicians are held to the same standard everyone else is: act in accordance with the standard of care. Like it or not, it's your fellow physicians who help determine what that is in malpractice cases. You can complain about the Peter Rosens of the world, but the fact is that the defense side has Peter Rosens, too, and they have testified in defense of conduct few other physicians would find defensible.

There are also a lot of factors at work that aren't really much under your control. Patients tend not to sue doctors they like, for example, no matter how negligent they were. Patients who feel like they were ignored tend to sue if something goes wrong even if it's not the result of negligence. And of course, money drives it all, as much as people claim it doesn't. Plaintiffs' lawyers will decline very meritorious cases that are unlikely to bring big-money verdicts more readily than an arguable case with lots of potential damages. And it's always seemed to me that those economically well off tend not to bring personal-injury cases unless whatever happened to them makes them not-well-off anymore. By the same token, the not-so-well-off seem to view the personal injury system as a money grab.

I'm on the defense side because I'm a "true believer" (I'm married to a physician, and I also think that a lot of the lawsuits filed are BS and I want to do what I can to counteract them) but even I don't think that it's fair to entirely shut down the system. People who are genuinely injured by actual negligence--and yes, it does happen--should have some remedy. Unfortunately, the University of Michigans of the world, willing to admit when they acted negligently, and take responsibility for it, are still pretty rare. If they were less rare, it would take a lot of wind out of the sails of the very noisy plaintiffs-lawyer lobby.

 

[BAM!]

I'm on the defense side because I'm a "true believer" (I'm married to a physician, and I also think that a lot of the lawsuits filed are BS and I want to do what I can to counteract them) but even I don't think that it's fair to entirely shut down the system. People who are genuinely injured by actual negligence--and yes, it does happen--should have some remedy. Unfortunately, the University of Michigans of the world, willing to admit when they acted negligently, and take responsibility for it, are still pretty rare. If they were less rare, it would take a lot of wind out of the sails of the very noisy plaintiffs-lawyer lobby.

I don't think anyone wants to see patients have bad outcomes as a result of negligence. However, where doctors take issue is with the severity of the punishment if found negligent. Especially when even among doctors, we have a hard time agreeing what negligence is.

For example, if make a mistake in another job, maybe you'll be fired. OK, try to find another job. Hopefully your Emergency Fund will get you through the next 3-6 months.

If you make a mistake as a doctor (or maybe just have a bad outcome - everyone dies eventually), you can lose you job, medical license, house, personal bank accounts, and retirement accounts. Decades of hard work can be burned down in one patient interaction. All while trying to help and do good.

 

[BAM!]

I still get nauseated when I read about Peter Rosen's involvement in that case and his "expert testimony".

How do return precautions play into this? I imagine the doctor gave some sort of standard Exit Care return precaution form. Likely it said something to the effect of, Return to the Emergency Department if you have worsening chest pain or shortness of breath.

Just because the patient was discharged, does that mean that the care ended? Was his fate sealed at this moment?

How protective can a "follow up with your PCP in 2-3 days" statement be? If he had, then perhaps he wouldn't have died.

 

[SpaceLeftBlank]

I don't think anyone wants to see patients have bad outcomes as a result of negligence. However, where doctors take issue is with the severity of the punishment if found negligent. Especially when even among doctors, we have a hard time agreeing what negligence is.

For example, if make a mistake in another job, maybe you'll be fired. OK, try to find another job. Hopefully your Emergency Fund will get you through the next 3-6 months.

If you make a mistake as a doctor (or maybe just have a bad outcome - everyone dies eventually), you can lose you job, medical license, house, personal bank accounts, and retirement accounts. Decades of hard work can be burned down in one patient interaction. All while trying to help and do good.

It's actually pretty unlikely that all of those things will happen to you--or even one of them--as the result of one, or even two lawsuits. I've represented physicians sued more than once, who went to trial more than once, and lost more than once. Can't think of one of them who lost their job or any money out of pocket to a judgment. They all kept their jobs--or got better ones. Yeah, at some point, you can be sued often enough for it to be an issue professionally. But that's pretty rare, and it apparently becomes pretty apparent to licensing boards, etc., that there maybe really is an issue with the physician's competence.

 

[Zebra Hunter]

My father, an OB, has been sued 3 times in his 34 year career. All three were frivolous suits, he went to trial twice and won, but the 3rd case the plaintiffs attorney decided to hire 19 expert testimonies. My father's attorney told him this case would take several months and time out of his practice, so my father decided to settle rather than risk hurting his practice. In what world is this okay? In the admirable pursuit of trying to compensate patients that were truly harmed, we are emotionally scarring thousands of physicians in an attempt to find those 1 or 2 truly negligent physicians.

And I hate the mantra "don't worry, the cards are stacked in your favor" that I often hear from lawyers. No matter the likelihood that you win your case, the fact that you were even sued is emotionally damaging and can take months to years to fully recover from.

 

[SpaceLeftBlank]

My father, an OB, has been sued 3 times in his 34 year career. All three were frivolous suits, he went to trial twice and won, but the 3rd case the plaintiffs attorney decided to hire 19 expert testimonies. My father's attorney told him this case would take several months and time out of his practice, so my father decided to settle rather than risk hurting his practice. In what world is this okay? In the admirable pursuit of trying to compensate patients that were truly harmed, we are emotionally scarring thousands of physicians in an attempt to find those 1 or 2 truly negligent physicians.

And I hate the mantra "don't worry, the cards are stacked in your favor" that I often hear from lawyers. No matter the likelihood that you win your case, the fact that you were even sued is emotionally damaging and can take months to years to fully recover from.

It's a terrible experience to go through and be sued. I'm not suggesting that it isn't. But I don't think you're going to get many people--even many physicians--to agree that blanket immunity is the answer. The ratio of totally non-negligent physicians to totally negligent ones is not anything resembling thousands to one or two, either.

One of the best answers so far to the issue, in my view, has been strong tort reform. In my state, which has it, filings of med-mal cases has dropped dramatically. And it's become so expensive to pursue a case, a plaintiff's lawyer has to be pretty sure they're going to win before they'll even take the case. It's the rare truly frivolous case that sees the light of day in such places. If you don't live in one of them, you'll either want to move to one, or start becoming more politically active and lobby for it. IMHO, that's something physicians could use a lot of improvement in doing. If I end up becoming one, it's something I hope to help fix.

 

[Zebra Hunter]

It's a terrible experience to go through and be sued. I'm not suggesting that it isn't. But I don't think you're going to get many people--even many physicians--to agree that blanket immunity is the answer. The ratio of totally non-negligent physicians to totally negligent ones is not anything resembling thousands to one or two, either.

One of the best answers so far to the issue, in my view, has been strong tort reform. In my state, which has it, filings of med-mal cases has dropped dramatically. And it's become so expensive to pursue a case, a plaintiff's lawyer has to be pretty sure they're going to win before they'll even take the case. It's the rare truly frivolous case that sees the light of day in such places. If you don't live in one of them, you'll either want to move to one, or start becoming more politically active and lobby for it. IMHO, that's something physicians could use a lot of improvement in doing. If I end up becoming one, it's something I hope to help fix.

Where did I say blanket immunity is the answer? And yes, I exaggerated, more like 100s to 1 or 2 truly negligent cases. EM docs have essentially a 99% chance of being named in a suit during their entire career. That needs to change and I don't think just capping pain and suffering goes far enough. Malpractice should be decided by our own peers, not a jury of non-medical personnel. There should be a pool of funds to compensate patients and family who were truly harmed following deliberation between physicians within our own specialty, and we could do away with malpractice insurance altogether. Of course something that actually makes sense will never happen, however.

 

[RustedFox]

SpaceLeftBlank: The argument here I think that people want to make is that bogus lawsuits (and we can all agree that many of these cases are bogus) still result in findings for the plaintiff, and often for Jackpot-value. Its not that docs shouldn't be held accountable; its that there are attorneys out there that are finding methods to sue "good docs" who don't commit negligence for multimillion dollars.

THAT'S the $hit that has to get knocked off.

 

[SpaceLeftBlank]

SpaceLeftBlank: The argument here I think that people want to make is that bogus lawsuits (and we can all agree that many of these cases are bogus) still result in findings for the plaintiff, and often for Jackpot-value. Its not that docs shouldn't be held accountable; its that there are attorneys out there that are finding methods to sue "good docs" who don't commit negligence for multimillion dollars.

THAT'S the $hit that has to get knocked off.

Well, yeah, that would be great--trick is, how do you do it? If you think docs have cornered the market on having bogus suits filed against them, you're very much mistaken. If anything, that's a much bigger problem for other professionals, businesses, and Joe Blow. Med mal suits cost a lot of money to file and pursue, which cuts a lot of them down. On the other hand, lawyers, for example, are easy to sue, and lots of people suddenly realize that their lawyers committed malpractice when, for example, the lawyer makes the dreadful mistake of pointing out that the client hasn't, you know, paid their bill.

The problem is that all of the easy solutions for bogus med-mal suits sound an awful lot like "let's no hold docs accountable anymore," which rarely flies. It's easy to propose legislation that does that. What's hard is plaintiffs' lawyers and their clients not being greedy and deciding to show a little restraint. Or docs and hospitals actually being accountable and taking responsibility when they do make mistakes that cause injuries. It's not necessarily the system that needs to change as much as people do. I've always said that if people were willing to take responsibility for their actions and resolve differences like reasonable adults, I'd have to find a new line of work.

Of course, I am finding a new line of work, but that's not why. 🙂

 

[Greenbbs]

Anyone think that it's ironic that as I read this thread, the ads supporting this page are for my local injury/negligence/a****** law firm??

 

[Birdstrike]

Well, yeah, that would be great--trick is, how do you do it? If you think docs have cornered the market on having bogus suits filed against them, you're very much mistaken. If anything, that's a much bigger problem for other professionals, businesses, and Joe Blow. Med mal suits cost a lot of money to file and pursue, which cuts a lot of them down. On the other hand, lawyers, for example, are easy to sue, and lots of people suddenly realize that their lawyers committed malpractice when, for example, the lawyer makes the dreadful mistake of pointing out that the client hasn't, you know, paid their bill.

The problem is that all of the easy solutions for bogus med-mal suits sound an awful lot like "let's no hold docs accountable anymore," which rarely flies. It's easy to propose legislation that does that. What's hard is plaintiffs' lawyers and their clients not being greedy and deciding to show a little restraint. Or docs and hospitals actually being accountable and taking responsibility when they do make mistakes that cause injuries. It's not necessarily the system that needs to change as much as people do. I've always said that if people were willing to take responsibility for their actions and resolve differences like reasonable adults, I'd have to find a new line of work.

Of course, I am finding a new line of work, but that's not why. 🙂

Aren't you a med-mal defense lawyer going to medical school?

 

[barnacle]

I don't believe in blanket immunity. At the same time I find it disturbing that I can be responsible for a significant portion of the patients I encounter...

Where are you have pain? It just hurts... Where does it hurt? I'm in pain...
How long has it been there.? A while... What does that mean? A minute, its been hurt'n for a minute...
What medicines are you on? They are in the computer.
Are you on any blood thinners? No... What about coumadin or warfarin? No... I spoke with your daughter on the phone she said you take Coumadin? Yeah I take it to thin my blood... Why are they trying to thin your blood? Because, when can I get a shasta...
What medical problems do you have? They are in the computer...
Do you have any allergies? No... EMS wrote down penicillin? Oh yeah my throat swelled shut and I almost died...
Have you had any surgeries? No... The ultrasonographer couldn't find your GB? Yeah, cuz they took it out...
Mam, you are having an NSTEMI, if you go home you will die, I'm begging you, please stay... I hear you, but there is no one to watch my cat, I'm leaving...
Do you do drugs? No... Your tox is positive for opiates, methamphetamines, ETOH 255? Did you do any drugs today?... No, can I get a shasta?

History is the most important aspect of a patient encounter, to make a diagnosis and formulate a good treatment plan. Histories in the ED often evolve and sometimes never surface. It is a miracle more stuff doesn't get missed and more bad outcomes don't occur. Do I expect patients to have the same medical knowledge as me? No. At the same time I just a human and I can't read minds and I don't have x-ray vision.

Do patients deserve compensation at times? Yes. Is suing doctors the answer? No. How about we stop suing docs, get rid of the lawyers, create a malpractice fund distributed by a competent medical board, and get the money to the people that actually deserve it... One can dream... 🙂

 

[WilcoWorld]

I don't believe in blanket immunity. At the same time I find it disturbing that I can be responsible for a significant portion of the patients I encounter...

Where are you have pain? It just hurts... Where does it hurt? I'm in pain...
How long has it been there.? A while... What does that mean? A minute, its been hurt'n for a minute...
What medicines are you on? They are in the computer.
Are you on any blood thinners? No... What about coumadin or warfarin? No... I spoke with your daughter on the phone she said you take Coumadin? Yeah I take it to thin my blood... Why are they trying to thin your blood? Because, when can I get a shasta...
What medical problems do you have? They are in the computer...
Do you have any allergies? No... EMS wrote down penicillin? Oh yeah my throat swelled shut and I almost died...
Have you had any surgeries? No... The ultrasonographer couldn't find your GB? Yeah, cuz they took it out...
Mam, you are having an NSTEMI, if you go home you will die, I'm begging you, please stay... I hear you, but there is no one to watch my cat, I'm leaving...
Do you do drugs? No... Your tox is positive for opiates, methamphetamines, ETOH 255? Did you do any drugs today?... No, can I get a shasta?

History is the most important aspect of a patient encounter, to make a diagnosis and formulate a good treatment plan. Histories in the ED often evolve and sometimes never surface. It is a miracle more stuff doesn't get missed and more bad outcomes don't occur. Do I expect patients to have the same medical knowledge as me? No. At the same time I just a human and I can't read minds and I don't have x-ray vision.

Do patients deserve compensation at times? Yes. Is suing doctors the answer? No. How about we stop suing docs, get rid of the lawyers, create a malpractice fund distributed by a competent medical board, and get the money to the people that actually deserve it... One can dream... 🙂

You have Shasta in your ED!?!

 

[barnacle]

Yes, but don't tell anyone. We have turkey sandwiches too. If you get there earlier enough... They are usually gone by noon.

 

[RustedFox]

I don't believe in blanket immunity. At the same timeunprofessional opiniond it disturbing that I can be responsible for a significant portion of the patients I encounter...

Where are you have pain? It just hurts... Where does it hurt? I'm in pain...
How long has it been there.? A while... What does that mean? A minute, its been hurt'n for a minute...
What medicines are you on? They are in the computer.
Are you on any blood thinners? No... What about coumadin or warfarin? No... I spoke with your daughter on the phone she said you take Coumadin? Yeah I take it to thin my blood... Why are they trying to thin your blood? Because, when can I get a shasta...
What medical problems do you have? They are in the computer...
Do you have any allergies? No... EMS wrote down penicillin? Oh yeah my throat swelled shut and I almost died...
Have you had any surgeries? No... The ultrasonographer couldn't find your GB? Yeah, cuz they took it out...
Mam, you are having an NSTEMI, if you go home you will die, I'm begging you, please stay... I hear you, but there is no one to watch my cat, I'm leaving...
Do you do drugs? No... Your tox is positive for opiates, methamphetamines, ETOH 255? Did you do any drugs today?... No, can I get a shasta?

History is the most important aspect of a patient encounter, to make a diagnosis and formulate a good treatment plan. Histories in the ED often evolve and sometimes never surface. It is a miracle more stuff doesn't get missed and more bad outcomes don't occur. Do I expect patients to have the same medical knowledge as me? No. At the same time I just a human and I can't read minds and I don't have x-ray vision.

Do patients deserve compensation at times? Yes. Is suing doctors the answer? No. How about we stop suing docs, get rid of the lawyers, create a malpractice fund distributed by a competent medical board, and get the money to the people that actually deserve it... One can dream... 🙂

To this end, I frequently document when a patient is unhelpful, dishonest, or misleading with me. It helps (in my unprofessional opinion) to establish that the patient isn't the most credible of sources, and might dissuade attorneys from taking the case in the first place. Maybe SpaceLeftBlank could opine on this.

It makes me sad that I frequently think of patient counters in an adversarial fashion; but at the same time... it almost HAS to be done. As long as there are those who abuse the system, there's going to be danger to the provider. If the patient has no problem abusing the emergency care system, then they're likely also to have no problem abusing the legal system.

Eff that.

 

[b-real]

Aren't you a med-mal defense lawyer going to medical school?

I'm guessing he isn't going to med school to further humanity...

 

[Birdstrike]

I'm guessing he isn't going to med school to further humanity...

Hey, wait a minute, now. Let's be fair, here. He may be going into Medicine for all the right reasons:

1-Because he has an animal attraction to robotically clicking boxes in an EMR because anything else would be a letdown,

2-He has a fire that burns below to perform an important function as the leader of a hospital-based customer-service team of "equally-valued providers,"

3- He enjoys obsessing about preventing and dodging frivolous medical-legal bullets as opposed to firing them for large lottery-sized sums of money in return,

4- He gets the warm and fuzzies when meeting PQRS and meaningful use requirements foisted upon him by people that know nothing of the practice of Medicine as his ever sunny disposition allows him to view frustration as a welcome character-building exercise,

5- Last but not least, because he knows deep down inside, that spending a majority of his time using his degree while involved in patient care, diagnosing, treating, healing, is an outdated Cro-magnon-like concept, suitable only for uncultured and unenlightened species of physicians, soon to die off.

Honorable mention: because terms such as "ACO," "metrics," "patient-centered," "value-based modifier," "Press-Ganey," and "systems" are Word-Porn to him.

[/endSarcasmFont] [emoji4]

 

[WilcoWorld]

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