How the legal system is destroying Medicine

[Neuron]

Medicine on Trial.

With the recent heated discussions on this board about the current medico-legal climate in the US, I though this article from the January issue of JAMA, and the replies published this week in the same journal, may be of interest to residents, students, and the odd lawyer here.

Merenstein, a family doc currently with the Johns Hopkins Hospital, was sued in 2002 for failure to order a PSA on a middle-aged patient who subsequently was found to have the most aggressive form of the cancer. Merenstein was a resident when he saw the patient.

The facts of the case appear to be as follows:

1.The patient, an educated 53 yr old, was seen by Merenstein for the first time in his resident clinic.

2.The patient had never had a PSA level evaluated before this visit.

3.Dr. Merenstein had a detailed discussion with the patient on the evidence for prostate ca screening, and the risks and benefits involved. He fully documented this discussion. The patient was encouraged to think about whether or not, having considered all the available information, he would like the test.

4.The reason Dr. Merenstein took his approach, instead of simply ordering the test, is that research has shown that the benefits of prostate screening is not a straight-forward, black-and-white issue (owing mainly to the high false positive rate and relatively low specificity of PSA). Because the evidence for the benefits of screening are not clear, the recommended approach is to discuss the issues with the patient and have the patient make an informed decision.

5.The patient never returned to Merenstein?s clinic for f/u.

6.The patient was later seen by an older FP who, disregarding the evidence, simply ordered the test.

7.The patient unfortunately turned out to thave the ca.

8.He sued Merenstein and the residency program.

9.At some point during the trial, Merenstein was ?exonerated?, but his program was found liable for US$1 million dollars.


This case was interesting to me because:

a.The doctor who practiced good medicine was sued ? precisely for practicing good medicine.

b.The plaintiff counsel held up bad medicine as the standard of care.

c.Incredibly (at least to anyone who is in medicine) plaintiff counsel actually attacked Evidence Based Medicine itself ? labelling it as a ?cost saving method?. He apparently even urged the jury to return a verdict to teach residency programs not to ever put residents on the street who practiced EBM. (!!!!)

d.To anyone with even a modicum of any medical knowledge, with any appreciation at all of medical science, this is the most absurd, insulting, and unimaginably stupid thing one could ever counsel. I think it is like saying that law schools should never let their graduates have any knowledge of the Constitution, because the Constitution is a tool to put people in jail.

e.The Jury, of course, agreed with counsel for Plaintiff.

f.The Jury were reported to say: "we had a hard time accepting that ignorance of PSA results was preferable to knowledge?, and "in the end the physician should recommend to the patient to get the PSA", thereby completely demonstrating that they had completely no clue.


It is cases like this which lead physicians to:

1.Believe that the law is destroying Medicine
2.Believe that med-mal lawyers are the scum of the earth
3.Believe that medicine is simply too complicated today for ignorant lay juries to judge medical cases entirely on their own
4.Practice bad medicine out of fear of being sued (ie. basically stop thinking, and just order every imaginable test under the sun)

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[Neuron]

Winners and Losers
Daniel Merenstein, MD
Baltimore, Md



JAMA. 2004;291:15-16.

There are many losers in this story: the man with incurable prostate cancer, me, my family, family practice residency programs, national guidelines, the shared decision-making model, and anyone who believes in evidence-based medicine (EBM). There were also a few winners: the man with prostate cancer's lawyer, to some extent his family, and anyone who wants to continue to practice outdated medicine or doesn't believe in continuing medical education.

The date was July 19, 1999, when as a third-year resident I saw a highly educated 53-year-old patient. In June 2002, my residency and I were served with court papers. June 2003, the trial.

On that day in July 1999 I saw the 53-year-old man for a physical examination. I discussed with him, and documented in his chart, the importance of colon cancer screening, seat belts, dental care, exercise, improved diet, and sunscreen use. I also presented the risks and benefits of screening for prostate cancer and documented the discussion. I never saw the patient again, and after I graduated, he went to another office. His new doctor ordered prostate-specific antigen (PSA) testing without discussing the risks and benefits of screening with him. Unfortunately for the patient, his PSA level was very high and he was subsequently diagnosed with incurable advanced prostate cancer. This patient lost on many accounts. For starters, he had a horrible cancer (Gleason 8), a cancer that is very difficult to treat in any stage and even harder to find early in its course. The literature does not support that early detection would have changed his outcome, although society and many physicians do believe so, thus making the patient live with the false belief that if something had been done differently, he would have survived longer. Clearly, this patient lost the most in this story.

When the trial started on June 23, 2003, I was nervous but confident. I realized that the patient was going to say we had never discussed prostate cancer screening but since I always do and had documented it, I didn't think this would be a very strong plaintiff argument. What I didn't anticipate was that the plaintiff's attorney was going to argue that I should have never discussed the risks and benefits and should have just ordered the PSA. But he did. In fact, a major part of his argument was that there is little risk involved in performing a PSA and that the standard of care is to order the test. Although we had the recommendations from every nationally recognized group supporting my approach and the literature is clear that screening for prostate cancer is controversial, the plaintiff's attorney argued otherwise.

In the medical world it is well accepted that screening for prostate cancer is a risky proposition, in which there is the potential for more harm than good. Nearly all of the national guidelines?including those of the American Academy of Family Physicians, the American Urological Association, and the American Cancer Society?recommend nearly identical approaches a physician should take when it comes to prostate cancer screening. This approach is discussing with the patient the risks and benefits, providing thorough informed consent, and coming to a shared decision. Family medicine has begun to stress the shared decision-making model because of the uncertainty in the literature with regard to such practices as hormone therapy, screening mammography, and many other medical procedures. The shared decision-making model and national guidelines are both losers in this story.

As the trial progressed we presented national experts who discussed the controversy surrounding prostate cancer screening and explained some of the potential dangers of PSA. We discussed such things as false positives, indolent vs aggressive cancers, sensitivity and specificity. Our experts explained that because of the questionable benefit vs associated risks of PSA screening, a shared decision by the physician and the patient was recommended by all of the national health associations. The science was clearly in our favor.

As a family physician I have reveled in keeping up-to-date and providing my patients with the best possible medicine. I have discussed with both patients and colleagues that simply ordering more tests because we have them is not always the best medicine. We have discussed false positives and their implications. The active practitioners who keep up-to-date and stay informed are the losers in this story. During that year before the trial, my patients became possible plaintiffs to me and I no longer discussed the risks and benefits of prostate cancer screening. I ordered more laboratory and radiological tests and simply referred more. My patients and I were the losers.

A major part of the plaintiff's case was that I did not practice the standard of care in the Commonwealth of Virginia. Four physicians testified that when they see male patients older than 50 years, they have no discussion with the patient about prostate cancer screening: they simply do the test. This was a very cogent argument, since in all likelihood more than 50% of physicians do practice this way. One may have argued that we were practicing above the standard of care, but there is no legal precedent for such an argument.

As is well documented in the literature, physicians take quite a long time to change their patients' protocols. Thus, we know that many practicing physicians are not using well-proven interventions or implementing well-publicized national guidelines. The legal definition of standard of care protects these physicians and encourages them to change slowly, if at all. It is often claimed that malpractice is a mechanism for holding physicians accountable and improving the quality of care. This case illustrates quite the opposite: punishing the translation of evidence into practice, impeding improvements to care, and ensconcing practices that hurt patients. In our legal system, the physicians who are slow to change are the winners.

During closing arguments the plaintiff's lawyer put evidence-based medicine on trial. He threw EBM around like a dirty word and named the residency and me as believers in EBM, and our experts as the founders of EBM. He defined EBM as a cost-saving method and stated his belief that the few lives saved were not worth the money. He urged the jury to return a verdict to teach residencies not to send any more residents on the street believing in EBM.

Before this case, I believed that following the current literature and evidence-based medicine was well accepted in medicine and throughout the country. Neither my lawyers nor the judge ever questioned if the plaintiff's attorney could argue against EBM or the national guidelines; the argument was clearly admissible. Sackett and colleagues have generally been given credit for reviving the idea of EBM, which is generally defined as the "conscientious, explicit, and judicious use of current best evidence in making clinical decisions about the care of individual patients."1 Evidence-based medicine was a loser.

On June 30, 7 days after the trial started, I was exonerated. My residency was found liable for $1 million.

The plaintiff's lawyer was convincing. The jury sent a message to the residency that they didn't believe in evidence-based medicine. They also sent a message that they didn't believe in the national guidelines and they didn't trust the shared decision-making model. The plaintiff's lawyer won.

As I see it, the only way to practice medicine is to keep up with the best available evidence and bring it to my patients. As I see it, the only way to see patients is by using the shared decision-making model. As I see it, the only way to step into an examination room is to look at a patient as a whole person, not as a potential plaintiff. As I see it, I'm not sure I'll ever want to practice medicine again.

http://jama.ama-assn.org/cgi/conten...5daf6c4f64b458dc2921190b&keytype2=tf_ipsecsha

 

[Neuron]

See http://jama.ama-assn.org/cgi/conten...5daf6c4f64b458dc2921190b&keytype2=tf_ipsecsha

for letters to this paper, including one from a group of lawyers who studied his case after reading his article, and Dr. Merenstein's reply.

 

[pseudoknot]

That's an interesting article...too bad the replies are off limits to those of us without institutional subscriptions to JAMA. Oh well, I'd probably just get more pissed off if I read them...

 

[MacGyver]

This proves that there is no such thing as "standard of care" in many cases.

Its perfectly acceptable to run the PSA, and its perfectly acceptable NOT to run it.

Once again, lawyers are trying to pigeon-hole a gray area into a black/white, right/wrong answer WHERE THERE IS NONE.

If I hear a lawyer come on here and say that a doctor has to violate a "standard" of care as a de jure part of the law before the case proceeds or hte plaintiff has any chance of winning, I'm going to puke.

If 50% of docs run the PSA, and 50% dont, the lawyers would have you believe that half of all docs are committing malpractice. What a load of BS.

 

[ERMudPhud]

Winners and Losers
Daniel Merenstein, MD
Baltimore, Md



JAMA. 2004;291:15-16.

A major part of the plaintiff's case was that I did not practice the standard of care in the Commonwealth of Virginia. Four physicians testified that when they see male patients older than 50 years, they have no discussion with the patient about prostate cancer screening: they simply do the test.

These are probably the same physicians giving z-packs for bronchitis and other practices that should be criminalized. The unfortunate fact is that there are all sorts of dangerous unsupported practices being done by "gome" docs in the community that end up constituting the "standard of care"

 

[xanthines]

Most of the replies are useless or unsubstantiative (ie quit whining; do more to educate others, etc)

The only interesting reply was by a group of Wake Forest Law professors (I assume, from the JDs). They say that this ruling doesn't hurt EBM because it doesn't set a legal precedence. Legal precedence is set by Judge's intructions to the jury and the decisions that follow. In this case, there was none of that. On top of that, no appeal was filed so no one can really say for sure if it's a precedence. Secondly, the doctor was exonerated. Only the residency program/clinic was held liable (the patient came in several times before Merenstien saw him and he wasnt diagnosed or tested; they should have supervised the doc more closely; a health maintainence protocol was absent at the clinic at the time). Thirdly, they point out that EBM that relies on the absence of information (in this case, the value of PSA isn't clear) is very different than EBM that relies on substantial evidence. Basically, if there was actual, widely-accepted evidence that PSA screening is useless and may constitute a health risk, then a jury probably would never have seen this case.

I don't have an on-line subscription, but I walked over to the library and copied some pages.

-X

That's an interesting article...too bad the replies are off limits to those of us without institutional subscriptions to JAMA. Oh well, I'd probably just get more pissed off if I read them...

 

[Seaglass]

The only interesting reply was by a group of Wake Forest Law professors

Yeah, their response was interesting, but it didn't make me feel any more comfortable that I wouldn't be sued by practicing the standard of care.

C

 

[joedogma]

Clear evidence that the lawyers are winning and using a terrible system to truly ca$h in. This is the kind of nonsense that truly frightens me as a budding physician. What about the judge? I am not sure what state this was in but I am pretty sure that in NY the judges have some say into the size of compensation rewarded. It is unfortunate but every patient is a potential plaintiff. We need tort reform badly...this is the kind of BS case where the $250,000 cap would have helped. Anybody know if this case can be (or was) appealed? Chalk up another victory for the trial lawyers...I think I will go throw up now

 

[kinetic]

Doctors won't win for a number of reasons:

1) Most people in this world don't have to reason rigorously like physicians. We're running around panicking about whether that journal article was "a randomized multi-center double blinded case-control study with appropriate power". Patients only care about one thing: outcome. And sometimes - whether you think this makes me the devil incarnate or not - they are relentless in their stupidity about it. They don't care if you followed standard of care or not - that's why you get them coming in and demanding full body CTs for random coughs because their Aunt Mildred once had the same cough and that was cancer. Laypeople think via anectodes, not facts.

I once told a patient that getting him a chest MRI for his symptoms was neither indicated nor responsible because if we performed one on every patient routinely, it would not be cost-effective and the system would collapse. All he heard was "I don't want to spend money on you because I'm a greedy bastard". They think nothing about society as a whole, just "do I get what I want today"? It's great.

2) Most people in this world are of the mentality "doctors are rich and so are hospitals - not like us, Joe 6-pack. They deserve to get socked every once in a while because they don't know what it's like to be poor, those bastards. They drive around in jets and eat diamonds for breakfast." That's what class warfare gets you.

3) Most people don't care about right and wrong. Flash them the money and they get deaf real fast. That's why you get So-and-so, the Injury Attorney - call me if you have ever had a child because we can find out the broken leg the incurred at age 25 had anything to do with their delivery. And people call that guy.

It's too bad that people who AREN'T litigious get hurt because of the actions of the other people who often file silly lawsuits. The doctors move away or retire and the whole community gets worked over. What are you gonna do? Pass tort reform? While lawyers trot out poor Mrs. Watson, the frail elderly lady in a wheelchair? Good luck. Like I said, anecdotes are proof for most laypeople.

 

[juddson]

Clear evidence that the lawyers are winning and using a terrible system to truly ca$h in. This is the kind of nonsense that truly frightens me as a budding physician. What about the judge? I am not sure what state this was in but I am pretty sure that in NY the judges have some say into the size of compensation rewarded. It is unfortunate but every patient is a potential plaintiff. We need tort reform badly...this is the kind of BS case where the $250,000 cap would have helped. Anybody know if this case can be (or was) appealed? Chalk up another victory for the trial lawyers...I think I will go throw up now

How would the $250,000 cap have changed the basic calculation the posters on this thread have made - which is that the jury missunderstood the evidence and conflated bad outcomes with bad medicine?

This case (if it is) is a poster-child for reform of the liability system. Reforms consisting of (1) professional juries, (2) elevated standards of proof and (3) better gatekeeping functions would have corrected the infirmity demonstrated by this case, which is that (allegedly) good medicine was driven out by bad. A $250,000 cap does NOTHING to address this basic principle. A cap on damages would permit to continue a seemingly broken liability system all the while attempting merely to put a bandaid on the bleeding this system appears to create.

I anticipate somebody will respond that a cap on damages would remove the "incentive" to file the suit in the first place, and therefore ultimately reduce the potential of theses suits to drive good mediciine out of practice. But there are two basic problems with this response. The first is that most cases end in settlement, and those settlements average about $135,000 - well under the cap. The second is that the patient who died was 53 (or so) and therefore had about 12 more years to work. If he was a six figure earner (he was "educated") this $1 million award might have only covered his economic damages and might have included an amount for non-economic damages far less than $250,000. A damages cap like the one floated most often may have had no effect at all on a case like this. The third (and most important) is that it ignores those instances where genuine malpractice causes genuine injuries that clearly exceed the $250,000 cap. Caps elevate the "interest" held in preventing suits like the one in this thread above those interests involved in (1) making sure that genuinly injured patients (and there are many of them) are justly compensated for the injuries resulting from truly negligent doctors, and (2) making sure that genuinely "bad" medicine is driven out of currency by the regulatory effects of the tort system.

Reforming the "liability" system rather than the "damages" system accomplishes all of the goals that damage award caps are designed to secure (cutting down on frivilous lawsuits, ensuring the bad medicine does not trump good medicine) while at the same time permitting "truly" injured patients to receive adaquate compensation when genuine negligence is evidence.

MacGyver said:

If I hear a lawyer come on here and say that a doctor has to violate a "standard" of care as a de jure part of the law before the case proceeds or hte plaintiff has any chance of winning, I'm going to puke.

Now how am I supposed to resist this!!!??? The chance to have Macgyver doubled over a toilet bowl is simply too much.

Doesn't anybody wonder why the doctor wasn't held liable by the jury in this case but the residency program was? I was curious. To everybody who is thinking about this case critically, this fact should raise a flag in your mind. Think about it: If the doctor didn't do anything wrong, how can his employer be held liable for his employee's/doctor's actions? Well, the answer was probably in that the residency program (the ONLY party who was held liable here) was held liable NOT because the doctor violated some standard of care, but because the residency program itself has violated some standard of care. If you take anything away from this discussion, take this: that the "standard of care" calculation worked for the doctor. The jury determined that he did NOT deviate from the standard of care, and therefore exonerated him from the charges brought by the plaintiff. AND, that the residency program DID violate the standard of care (in some way) which led to the injuries complained of by the plaintiff.

So WHAT did the residency program do (or fail to do) that the doctor did not do (or failed to do)? The answer is in the letter by the Wake Forrest Professors. What should jump out at you is that fact that the residency program had no health maintenance protocol at the time. And THIS mayrepresent a seperate and distinct violation of a standard of care wholly apart from the doctor's decision not to do the blood screening. (I say may be a violation of a standard of care because I actually don't know for sure. I have no clue whether these sorts of protocols are in fact prescribed by the applicable standards of care for residency programs - somebody will have to answer that for us). An expert in court probably testified that the standard of care for residency programs in FP is to have these protocols (either calling for the blood test, discussion, whatever) and that in its absence, their residents (who are, after all, doctors in training) are left to "blow in the breeze" without the guidance of their post-graduate trainers. And therefore, this failure to have these protocols represents a seperate and independant deviation from the standards of care that residency programs in FP are obligated to follow - and it was surely this independant determination which permitted the jury to apply one standard of care applicable to physicians to the doctor and find he did not deviate from it, but at the same time to apply a different standard of care applicable to residency programs to the residency program and find that they did violate it.

Finally, let's look at one other issue. The author/doctor noted that four other expert witnesses (four other doctors) testified that they simply order the blood test in all cases for patients over 50. Did anybody notice that the author/doctor didn't mention what kind of doctors they were? Might these doctors have been urologists? Would a jury have acted unreasonably if they decided to believe four urologists that testified that the standard of care is to do the blood test in patients over 50, and that in any event this is what they do with thier patients over 50? Would it have been unreasonable for a jury to determine that a group of urologists who urge the use of the blood test are right, and that a family practice doctor who decided not to do it is wrong? If "most" doctor do it (as the author/doctor admits in his article) is it unreasonable for the jury to question a system that urges it not be done. If most urologists do the test, one needs to ask why. One needs to question the basis upon which "most" doctors (and perhaps most urologists) determine that the test should be done automatically. One answer is that it represents nothing more than defensive medicine. That is, that most doctors do the test knowing it has virtually no diagnostic value but will save their ass in a lawsuit. That would be A LOT of doctors doing something for no reason. The alternative needs to be considered seriously, though - that MOST doctors do this blood test because they feel it has genuine diagnostic value and improved patient care and THAT is why it has broad currency in the Commonwealth of Virginia. Remember, at some point in the trial four other doctors (some of whom might have been urologists) got up on the stand and said that, yes, they do automatically order the blood test. And by someone they were probably asked why. Thier response was almost certainly NOT "CYA medicine". The jury more than likely sat witness to an expert doctor testify that he automatically orders the blood test for his patients over 50 because its diagnostic value outweights the risks of taking the test. A jury could reasonably decide to take this sort of testimony to the bank.

In any event I HAVE NO IDEA IF ANY OF THIS HAPPENED. I was not in the courtroom, and I don't know any medicine at all. I'm only setting forth a possible set of circumstances that MIGHT explain the outcome of this case. I anticipate that something like 40 of you are going to respond that I don't know anything about medicine, and that I'm a filthy lawyer, blah blah blah. I'm just presenting stuff to think about.

Anyway, something to consider.

Judd

 

[juddson]

Doctors won't win for a number of reasons:

1) Most people in this world don't have to reason rigorously like physicians. We're running around panicking about whether that journal article was "a randomized multi-center double blinded case-control study with appropriate power". Patients only care about one thing: outcome. And sometimes - whether you think this makes me the devil incarnate or not - they are relentless in their stupidity about it. They don't care if you followed standard of care or not - that's why you get them coming in and demanding full body CTs for random coughs because their Aunt Mildred once had the same cough and that was cancer. Laypeople think via anectodes, not facts.

I once told a patient that getting him a chest MRI for his symptoms was neither indicated nor responsible because if we performed one on every patient routinely, it would not be cost-effective and the system would collapse. All he heard was "I don't want to spend money on you because I'm a greedy bastard". They think nothing about society as a whole, just "do I get what I want today"? It's great.

2) Most people in this world are of the mentality "doctors are rich and so are hospitals - not like us, Joe 6-pack. They deserve to get socked every once in a while because they don't know what it's like to be poor, those bastards. They drive around in jets and eat diamonds for breakfast." That's what class warfare gets you.

3) Most people don't care about right and wrong. Flash them the money and they get deaf real fast. That's why you get So-and-so, the Injury Attorney - call me if you have ever had a child because we can find out the broken leg the incurred at age 25 had anything to do with their delivery. And people call that guy.

It's too bad that people who AREN'T litigious get hurt because of the actions of the other people who often file silly lawsuits. The doctors move away or retire and the whole community gets worked over. What are you gonna do? Pass tort reform? While lawyers trot out poor Mrs. Watson, the frail elderly lady in a wheelchair? Good luck. Like I said, anecdotes are proof for most laypeople.

Yes, reform the liability system. Couldn't agree more.

Judd

 

[docB]

These are probably the same physicians giving z-packs for bronchitis and other practices that should be criminalized. The unfortunate fact is that there are all sorts of dangerous unsupported practices being done by "gome" docs in the community that end up constituting the "standard of care"

Z-packs for bronchitis - guilty, sometimes, especially in smokers and kids. I know the evidence doesn't support it but I have gotten tired and lazy about fighting with every hacker and parent. And I feel that every patient is a potential plaintiff and every angry patient is a more likely plaintiff. This case illustrates how EBM doesn't protect you and can't be explained to a jury. Don't even get me started about narcotics for migraines.

 

[Homunculus]

How would the $250,000 cap have changed the basic calculation the posters on this thread have made - which is that the jury missunderstood the evidence and conflated bad outcomes with bad medicine?

This case (if it is) is a poster-child for reform of the liability system. Reforms consisting of (1) professional juries, (2) elevated standards of proof and (3) better gatekeeping functions would have corrected the infirmity demonstrated by this case, which is that (allegedly) good medicine was driven out by bad. A $250,000 cap does NOTHING to address this basic principle. A cap on damages would permit to continue a seemingly broken liability system all the while attempting merely to put a bandaid on the bleeding this system appears to create.

I anticipate somebody will respond that a cap on damages would remove the "incentive" to file the suit in the first place, and therefore ultimately reduce the potential of theses suits to drive good mediciine out of practice. But there are two basic problems with this response. The first is that most cases end in settlement, and those settlements average about $135,000 - well under the cap. The second is that the patient who died was 53 (or so) and therefore had about 12 more years to work. If he was a six figure earner (he was "educated") this $1 million award might have only covered his economic damages and might have included an amount for non-economic damages far less than $250,000. A damages cap like the one floated most often may have had no effect at all on a case like this. The third (and most important) is that it ignores those instances where genuine malpractice causes genuine injuries that clearly exceed the $250,000 cap. Caps elevate the "interest" held in preventing suits like the one in this thread above those interests involved in (1) making sure that genuinly injured patients (and there are many of them) are justly compensated for the injuries resulting from truly negligent doctors, and (2) making sure that genuinely "bad" medicine is driven out of currency by the regulatory effects of the tort system.

Reforming the "liability" system rather than the "damages" system accomplishes all of the goals that damage award caps are designed to secure (cutting down on frivilous lawsuits, ensuring the bad medicine does not trump good medicine) while at the same time permitting "truly" injured patients to receive adaquate compensation when genuine negligence is evidence.

MacGyver said:


Now how am I supposed to resist this!!!??? The chance to have Macgyver doubled over a toilet bowl is simply too much.

Doesn't anybody wonder why the doctor wasn't held liable by the jury in this case but the residency program was? I was curious. To everybody who is thinking about this case critically, this fact should raise a flag in your mind. Think about it: If the doctor didn't do anything wrong, how can his employer be held liable for his employee's/doctor's actions? Well, the answer was probably in that the residency program (the ONLY party who was held liable here) was held liable NOT because the doctor violated some standard of care, but because the residency program itself has violated some standard of care. If you take anything away from this discussion, take this: that the "standard of care" calculation worked for the doctor. The jury determined that he did NOT deviate from the standard of care, and therefore exonerated him from the charges brought by the plaintiff. AND, that the residency program DID violate the standard of care (in some way) which led to the injuries complained of by the plaintiff.

So WHAT did the residency program do (or fail to do) that the doctor did not do (or failed to do)? The answer is in the letter by the Wake Forrest Professors. What should jump out at you is that fact that the residency program had no health maintenance protocol at the time. And THIS mayrepresent a seperate and distinct violation of a standard of care wholly apart from the doctor's decision not to do the blood screening. (I say may be a violation of a standard of care because I actually don't know for sure. I have no clue whether these sorts of protocols are in fact prescribed by the applicable standards of care for residency programs - somebody will have to answer that for us). An expert in court probably testified that the standard of care for residency programs in FP is to have these protocols (either calling for the blood test, discussion, whatever) and that in its absence, their residents (who are, after all, doctors in training) are left to "blow in the breeze" without the guidance of their post-graduate trainers. And therefore, this failure to have these protocols represents a seperate and independant deviation from the standards of care that residency programs in FP are obligated to follow - and it was surely this independant determination which permitted the jury to apply one standard of care applicable to physicians to the doctor and find he did not deviate from it, but at the same time to apply a different standard of care applicable to residency programs to the residency program and find that they did violate it.

Finally, let's look at one other issue. The author/doctor noted that four other expert witnesses (four other doctors) testified that they simply order the blood test in all cases for patients over 50. Did anybody notice that the author/doctor didn't mention what kind of doctors they were? Might these doctors have been urologists? Would a jury have acted unreasonably if they decided to believe four urologists that testified that the standard of care is to do the blood test in patients over 50, and that in any event this is what they do with thier patients over 50? Would it have been unreasonable for a jury to determine that a group of urologists who urge the use of the blood test are right, and that a family practice doctor who decided not to do it is wrong? If "most" doctor do it (as the author/doctor admits in his article) is it unreasonable for the jury to question a system that urges it not be done. If most urologists do the test, one needs to ask why. One needs to question the basis upon which "most" doctors (and perhaps most urologists) determine that the test should be done automatically. One answer is that it represents nothing more than defensive medicine. That is, that most doctors do the test knowing it has virtually no diagnostic value but will save their ass in a lawsuit. That would be A LOT of doctors doing something for no reason. The alternative needs to be considered seriously, though - that MOST doctors do this blood test because they feel it has genuine diagnostic value and improved patient care and THAT is why it has broad currency in the Commonwealth of Virginia. Remember, at some point in the trial four other doctors (some of whom might have been urologists) got up on the stand and said that, yes, they do automatically order the blood test. And by someone they were probably asked why. Thier response was almost certainly NOT "CYA medicine". The jury more than likely sat witness to an expert doctor testify that he automatically orders the blood test for his patients over 50 because its diagnostic value outweights the risks of taking the test. A jury could reasonably decide to take this sort of testimony to the bank.

In any event I HAVE NO IDEA IF ANY OF THIS HAPPENED. I was not in the courtroom, and I don't know any medicine at all. I'm only setting forth a possible set of circumstances that MIGHT explain the outcome of this case. I anticipate that something like 40 of you are going to respond that I don't know anything about medicine, and that I'm a filthy lawyer, blah blah blah. I'm just presenting stuff to think about.

Anyway, something to consider.

Judd

great post. personally, i get a little tired of the knee-jerk "lawyers are scum" attitude. my first reaction to the story was the same as yours-- the doc was exonerated-- last time i checked that was good, lol. the devil is in the details, and without being in the courtroom we'll never *really* have the non-spinned story. i think part of the medical school curriculum should include getting some court time-- whether it's a malpractice case, murder case, whatever-- just to get some familiarity with the process.

 

[kinetic]

DISCLAIMER: I didn't read the article because I don't have the time right now, but in reading the posts, I have some issues.

A $250,000 cap does NOTHING to address this basic principle. A cap on damages would permit to continue a seemingly broken liability system all the while attempting merely to put a bandaid on the bleeding this system appears to create.

Nah. Juries have been using the "pain and suffering" portion of awards (which is nebulous at best) to dole out humongous deals to plaintiffs. That's where the problem is: you get $500,000 for the malpractice part - which may be fair - and then they slap on $25 million (NOTE: this is a sarcastic exaggeration for all of you literalists) for "pain and suffering". Why? For the reasons I outlined above. It's "the little guy" getting his day over "Richie Rich" and "some corporation" for once, so sock it to 'em! They won't feel it! That's why the cap would help.

Also, the fact that there ARE these huge settlements seemingly waiting to be had drives the malpractice industry. These lawyers know who to target - that's why they show all their ads during daytime televsion in between 'Jerry Springer' and the soaps. "We don't get paid unless you do." And when you do get paid, guess who gets upwards of 30% of it? Why not work on a fee, rather than a percentage? Does the fact that the plaintiff got injured MORE mean the lawyer deserves more for taking case? Apparently. And you wonder why people hate lawyers.

The first is that most cases end in settlement, and those settlements average about $135,000 - well under the cap.

Nice redirection. "I oppose the cap, but anyway it's immaterial because most cases are under the cap anyway." So why oppose the cap? It seemingly will have little impact, right? The REASON most cases end in settlement is because lawyers can use the threat of multi-million-dollar lawsuits and protracted cases to force the hand of hospitals (and other businesses, too). Slip-and-fall in a grocery store? Well, I COULD go to court and likely win ...but there's always the chance the jury will screw me to the tune of $65 million. I think I'll just settle. You want to pretend it doesn't work like that?

Doesn't anybody wonder why the doctor wasn't held liable by the jury in this case but the residency program was? ...What should jump out at you is that fact that the residency program had no health maintenance protocol at the time.

First of all (and least importantly) I wasn't aware that residencies needed to have protocols specifically set up, but that's just me. The resident knew how to go about administering health maintenance by all accounts, so it would seem that he was TAUGHT them by the residency. Second of all, does anyone wonder where else you could sue everyone in sight and win money on an unrelated issue? I.E., the suit was not brought to bear because the plaintiff said, "I believe that the residency program in question is lacking in an appropriate protocol for health maintenance vis a vis the geriatric population." He sued everyone in sight and during the course of the trial came up with that issue. That's like suing GM for defective brakes causing your accident and instead winning on the fact that it's actually their fenders which are defective. Is that also wrong? Sure, but why should YOU get money for it. Just get GM to fix the problem. Or is that solution too radical?

You know what the real problem is? Everyone today thinks money must change hands every time a poor outcome is achieved. My dog died? Someone's gotta pay! I know someone was a fault here! It's just a matter of finding who!

 

[kinetic]

By the way, as I have posted in the past, my father died due to a medical mistake that could have easily been avoided. Guess what the lawyer did? He interviewed us all and then said, "I think we'll put you [points to me] on the stand. You're sure to get more sympathy from the jury (being a kid at the time) and that means more money." This while I was stil wondering where the hell my dad was. What a noble guy! I still send him Christmas cards (that contain pictures of me running over his wife).

I'm sure some lawyer will sue me for assault for that joke.

 

[xanthines]

I don't think it's just the lack of protocols. From my understanding the patient came to the clinic/hospital several times before and left with no diagnosis or treatment. It was only until Merestein saw him that a course of action (sort of) was formulated. My guess, is that jury (however wrongly) thought that the residency program as a whole, should have done SOMETHING before the patient got around to Merenstein. That's why Merenstein was exonerated and the residency program wasn't.

I guess, in theory, a health maintainence protocol should have caught that.

And remember: They didn't even try to appeal this case. I'm no expert, but that seems pretty unusual, especially in a case where A (as opposed to THE) standard of care was followed.

-X

Doesn't anybody wonder why the doctor wasn't held liable by the jury in this case but the residency program was? I was curious. To everybody who is thinking about this case critically, this fact should raise a flag in your mind. Think about it: If the doctor didn't do anything wrong, how can his employer be held liable for his employee's/doctor's actions? Well, the answer was probably in that the residency program (the ONLY party who was held liable here) was held liable NOT because the doctor violated some standard of care, but because the residency program itself has violated some standard of care. If you take anything away from this discussion, take this: that the "standard of care" calculation worked for the doctor. The jury determined that he did NOT deviate from the standard of care, and therefore exonerated him from the charges brought by the plaintiff. AND, that the residency program DID violate the standard of care (in some way) which led to the injuries complained of by the plaintiff.

So WHAT did the residency program do (or fail to do) that the doctor did not do (or failed to do)? The answer is in the letter by the Wake Forrest Professors. What should jump out at you is that fact that the residency program had no health maintenance protocol at the time. And THIS mayrepresent a seperate and distinct violation of a standard of care wholly apart from the doctor's decision not to do the blood screening. (I say may be a violation of a standard of care because I actually don't know for sure. I have no clue whether these sorts of protocols are in fact prescribed by the applicable standards of care for residency programs - somebody will have to answer that for us). An expert in court probably testified that the standard of care for residency programs in FP is to have these protocols (either calling for the blood test, discussion, whatever) and that in its absence, their residents (who are, after all, doctors in training) are left to "blow in the breeze" without the guidance of their post-graduate trainers. And therefore, this failure to have these protocols represents a seperate and independant deviation from the standards of care that residency programs in FP are obligated to follow - and it was surely this independant determination which permitted the jury to apply one standard of care applicable to physicians to the doctor and find he did not deviate from it, but at the same time to apply a different standard of care applicable to residency programs to the residency program and find that they did violate it.

Judd

 

[neglect]

Wow, what a case! A real tragedy. Every tragic figure needs a fatal flaw, and Merenstein's seems to be that he (was) a thoughtful doctor who cared about entering into a discussion with his patients. Luckily, he lives, to learn from his mistake.

Although he was not found liable, this is most likely because he came off as a careful and thoughtful young doctor in training, who was mislead by his program to believe in this crazy EBM stuff. The jury obviously had some sympathy for him, poor EBM sucker. If that hadn't been the case, then bad stuff.

In this setting, 200 years ago you'd surely be held liable if you didn't bleed someone for pneumonia. Only 50 years ago you could probably be held liable for USING antibiotics. Both deviated from the standard of care. How about Heparin for stroke?

I agree with all of Merenstein's conclusions. Forget thought. It's nonsense. Overtest. Overtreat.

This case highlights the fact that in the real world, if you're not practicing defensive medicine, then you are a legal liability.

And forget treating patients like they can make educated choices. That's some more nonsense. If they can make educated choices regarding their health care, then why are they seeing us? Just order the test. Worry about what to do with it later - if PSA high, then refer to urology and let her take the liability.

Get informed consent prior to treatment - even for diabetes and HTN. There is no need for a discussion of pros and cons - that obviously won't hold up in court, which makes it a waste of time. All that's required is 'patient agrees with plan as detailed above.' Constant CYA. They want a chest MRI, order the chest MRI, unless it's not covered by their HMO. Medicine is truely horrible. At least the hours are good.

This case taught me a lot, thanks for the provocative post, Neuron. And Merenstein.

 

[MacGyver]

The author/doctor noted that four other expert witnesses (four other doctors) testified that they simply order the blood test in all cases for patients over 50. Did anybody notice that the author/doctor didn't mention what kind of doctors they were? Might these doctors have been urologists? Would a jury have acted unreasonably if they decided to believe four urologists that testified that the standard of care is to do the blood test in patients over 50, and that in any event this is what they do with thier patients over 50? Would it have been unreasonable for a jury to determine that a group of urologists who urge the use of the blood test are right, and that a family practice doctor who decided not to do it is wrong? If "most" doctor do it (as the author/doctor admits in his article) is it unreasonable for the jury to question a system that urges it not be done. If most urologists do the test, one needs to ask why. One needs to question the basis upon which "most" doctors (and perhaps most urologists) determine that the test should be done automatically. One answer is that it represents nothing more than defensive medicine. That is, that most doctors do the test knowing it has virtually no diagnostic value but will save their ass in a lawsuit. That would be A LOT of doctors doing something for no reason. The alternative needs to be considered seriously, though - that MOST doctors do this blood test because they feel it has genuine diagnostic value and improved patient care and THAT is why it has broad currency in the Commonwealth of Virginia. Remember, at some point in the trial four other doctors (some of whom might have been urologists) got up on the stand and said that, yes, they do automatically order the blood test. And by someone they were probably asked why. Thier response was almost certainly NOT "CYA medicine". The jury more than likely sat witness to an expert doctor testify that he automatically orders the blood test for his patients over 50 because its diagnostic value outweights the risks of taking the test. A jury could reasonably decide to take this sort of testimony to the bank.

Judd, this is EXACTLY what I was talking about earlier.

If 51% of doctors do procedure alpha, and 49% do not, does the 51% group set a "standard" of practice?

I dont think so, but plaintiffs lawyers would have you believe just that.

The most rational position is to assert that 51% of docs do one thing, and 49% do something else, then there IS NO STANDARD OF CARE, and therefore there is no VIOLATION of a standard, because there was no standard to begin with.

Lets stop trying to force pentagons into square holes.

 

[juddson]

Judd, this is EXACTLY what I was talking about earlier.

If 51% of doctors do procedure alpha, and 49% do not, does the 51% group set a "standard" of practice?

I dont think so, but plaintiffs lawyers would have you believe just that.

The most rational position is to assert that 51% of docs do one thing, and 49% do something else, then there IS NO STANDARD OF CARE, and therefore there is no VIOLATION of a standard, because there was no standard to begin with.

Oh blah, what an easy case. Of course you are right if 51% say X and 49% say Y. I don't think anybody on this forum is going to argue with you. The question is more accute when the percentages are more like 90-10. Or what if it's 51/49 for FP docs and 95/5 for urologists? What then?

Judd

 

[MacGyver]

Oh blah, what an easy case. Of course you are right if 51% say X and 49% say Y. I don't think anybody on this forum is going to argue with you. The question is more accute when the percentages are more like 90-10. Or what if it's 51/49 for FP docs and 95/5 for urologists? What then?

Judd

PSA testing is a controversial issue. There's no freaking way that its a 95/5 split, even among urologists. Its probably not 51/49, but its certainly closer to that than on the other extreme. Its probably 60/40 or maybe 65/35 at best.

"Standard of care" should have a very specific meaning. 60/40 split is NOT a standard of care. I'd argue that the threshold should be something like 95/5 at least.

To address your question though, FPs should NOT be judged by urologist's standards. There is NO CLEAR evidence backing up uros 95/5 split, and just because they are urologists does not make them an automatic authority. EBM should be the decidiing factor, and for the case of PSA its impossible to justify a 95/5 split.

This is another problem with the legal system. Only docs in the same specialty should be allowed to testify as plaintiffs experts.

 

[Tazmaniac]

I can't wait 'til a lawyer comes into the ER and I can sic the young, intrepid MSIII's to do their first ever blood draw .

-Todd

 

[group_theory]

If, half of the physicians are doing this, and the other half are doing that (as suggested by MacGyver), can't you use the "there are 2 school of thoughts" doctrine and therefore you are practicing standard of care as establish by many of your peers?

I remember asking a Health Law professor once about this (not this case per se) and he mentioned something about the different schools of thoughts as valid defenses.


Edit: found this
http://www.dpg-law.com/opinions/pa-super/9911/6589-fragale.html

the differing schools of thought doctrine "provides a complete defense to a malpractice claim when the prescribed medical treatment or procedure has been approved by one group of medical experts even though an alternate group recommends another approach, or the experts agree that alternative treatments or procedures are acceptable. The doctrine is applicable only where there is more than one accepted method of treatment or procedure." Levine v. Rosen, 532 Pa. 512, 519, 616 A.2d 623, 627 (1992), citing Jones v. Chidester, 531 Pa. 31, 610 A.2d 964 (1992). See also Sinclair v. Block, 534 Pa. 563, 633 A.2d 1137 (1993).

 

[juddson]

If, half of the physicians are doing this, and the other half are doing that (as suggested by MacGyver), can't you use the "there are 2 school of thoughts" doctrine and therefore you are practicing standard of care as establish by many of your peers?

I remember asking a Health Law professor once about this (not this case per se) and he mentioned something about the different schools of thoughts as valid defenses.


Edit: found this
http://www.dpg-law.com/opinions/pa-super/9911/6589-fragale.html

the differing schools of thought doctrine "provides a complete defense to a malpractice claim when the prescribed medical treatment or procedure has been approved by one group of medical experts even though an alternate group recommends another approach, or the experts agree that alternative treatments or procedures are acceptable. The doctrine is applicable only where there is more than one accepted method of treatment or procedure." Levine v. Rosen, 532 Pa. 512, 519, 616 A.2d 623, 627 (1992), citing Jones v. Chidester, 531 Pa. 31, 610 A.2d 964 (1992). See also Sinclair v. Block, 534 Pa. 563, 633 A.2d 1137 (1993).

The "differing schools of thought" doctrine would not have applied in this case. I'll get to why in a moment. First, let's see why a general negligence charge with respect to the doctor would have been just as effective (and probably explains why he was exonerated):

Remember, this jury charge (ie., on differing schools of thought) could very well have been charged by the judge when giving the jury instructions. This would explain why the doctor in this case was held to be not liable and why MacGyver's concerns about 49/51 cases are probably not well founded. As I said (and the Wake Forrest professors seem to be intimating) the theory of negligence the jury affirmed with respect to the residency program itself was probably wholly distinct from the sort of negligence the doctor was being accused of. Hence, the EBM version of medicine urged by the doctor versus the "we always run the test" version of medicine urged by the doctor/experts may have represented exactly that sort of 49/51 scenario that MacGyver anticipates. A jury charge consisting of the "differing schools of thought" doctrine would have induced the jury to let the doctor of the hook. On the other hand, the jury may have only recieved a common negligence charge (ie., did the doctor act unreasonably compared to another member of his profession; ie., did he violate the applicable standard of care) and STILL exonerated the doctor based on the fact that it believed even though a refusal to run the test based on EBM was not the most common practice, it was not an unreasonable one given the doctor's experts testimony that EBM in this case was justified. In either case, whether "differing schools of thought" doctrine or common negligence doctrines were charged, the jury in this case found the doctor not guilty. Either theory would have permitted them to so find.

That said, I don't think the "differing schools of thought" doctrine was actually charged in this case (even though if it had, it would cleanly explain the exoneration of the doctor). Why? Because this doctrine generally only applies in cases that do NOT allege a failure to diagnose. Hence (from the case linked to above)

"Additionally, appellants argue use of such language was erroneous in that it is inappropriate in a case alleging failure to properly diagnose. This argument is premised upon appellants' primary contention that the "differing schools of thought" terminology has replaced the "best judgment" language. While the case law upon which appellants rely holds that differing schools of thought instructions are inappropriate in failure to diagnose cases, we find no support for appellants' theory that a similar rule applies to the "best judgment" instruction. See Sinclair, supra, Levine, supra, and Morganstein v. House, 547 A.2d 1180 (Pa. Super. 1988), appeal dismissed as improvidently granted, 525 Pa. 498, 581 A.2d 1377 (1990). [my emphasis]

This case clearly involves that allegation. Ie., the plaintiff's allege that the failure to run the blood test meant a failure to diagnose the prostate cancer (and has been stated, the residency program may also have been found negligence in having its resident's fail to diagnose the cancer in previous visits to the program by the patient). Therefore (assuming the rule set forth in the cases sited in the quoted text is applicable in the current jurisiction - no idea if it is for sure) the "differing schools of thought" doctrine would not have applied here.

Not sure it matters, though. As this case probably demonstrates (given that the doctor was exonerated) even the ordinary negligence standard (ie., the "standard of care charge") would ordinarily permit the jury to find the defendant not liable in 49/51 cases and probably also in 80/20 cases. I think much beyond that and you are asking quite a bit from a jury. Unlike MacGyver, I think a juror (whether a professional one like a doctor or a lay one) is entitled to hold that a defendant has acted "unreasonably" when he finds himself in devaition from the practice of 95% of his collegues.

Judd

 

[juddson]

PSA testing is a controversial issue. There's no freaking way that its a 95/5 split, even among urologists. Its probably not 51/49, but its certainly closer to that than on the other extreme. Its probably 60/40 or maybe 65/35 at best.

"Standard of care" should have a very specific meaning. 60/40 split is NOT a standard of care. I'd argue that the threshold should be something like 95/5 at least.

To address your question though, FPs should NOT be judged by urologist's standards. There is NO CLEAR evidence backing up uros 95/5 split, and just because they are urologists does not make them an automatic authority. EBM should be the decidiing factor, and for the case of PSA its impossible to justify a 95/5 split.

This is another problem with the legal system. Only docs in the same specialty should be allowed to testify as plaintiffs experts.

Well, of course you know that I am not suggesting that it actually is a 95/5 split with respect to this blood test. Frankly I have no clue. I was suggesting from a theoretical standpoint that you need to address the hard cases, not just the easy ones. And a 49/51 split is an easy one.

More to the point, the doctor was exonerated in this case. He doesn't say why - but my guess is that it was because the system WORKED for him - that is, the jury determined he was not negligent given the split in standards of care.

Judd

 

[Seaglass]

Actually, the Wake Forest Law professors who reviewed the case said that Merenstein got off because of multiple standards of care. From their letter:

It is difficult to determine how a jury reaches its decision, but jury members reported that the jury felt there was more than one "standard of care" that applied to prostate-specific antigen (PSA) screening. This reasoning is consistent with the "2 schools of thought" legal principle, which permits a physician to select among several different, accepted methods of practicing medicine without committing malpractice. Thus, the jury's exoneration of Merenstein's personal behavior appears to be an acceptance rather than a rejection of EBM.

C

 

[juddson]

Actually, the Wake Forest Law professors who reviewed the case said that Merenstein got off because of multiple standards of care. From their letter:

C

See, MacGyver, you have your knickers all in a bunch for nothing. The system worked for this doc because the jury understood that splits in standards of care are acceptable. As I said, the 49/51 split is an easy one for a jury to deal with. Not liable as this case demonstrates.

Wondering why, by the way, the doctor/author didn't bother to mention this aspect of the jury responses. Dishonestly?

Judd

 

[neglect]

See, MacGyver, you have your knickers all in a bunch for nothing. The system worked for this doc because the jury understood that splits in standards of care are acceptable. As I said, the 49/51 split is an easy one for a jury to deal with. Not liable as this case demonstrates.

I must not understand this case at all. No doubt due to my not being a lawyer. This case shouldn't upset anyone! It's nothing! Unless you think 1 million is nothing. Unless you think the impact on the doctor's future as he goes through state boards/hospital credentialing/patient care/finding insurance is nothing.

But wait, I think 1 million IS something. In fact, I think it's a lot. Even broken up it's a lot of somethings. I think it could have bought quite a few PSAs and normal prostate workups.

Oh yeah, wait up again, I think a doctor's career is important because he's exactly the sort of doctor I'd like to send patients to, as well as go to myself. But he probably wont' be practicing long - his malractice rates are going to be huge (he just cost one insurance company one million and they will try to recoup). He sounds like he's just smartened up and will leave medicine soon.

Here is where the nothing is:
- care for people who are more likely to sue.
- coverage for other doctors who provide care.
- Training doctors who equal liability.

Yep. Nothing. Loving medicine.

 

[Neuron]

Hi there Neglect,

I should like to thank you for bumping this thread up! I had in truth completely forgotten where I put it after I made my initial posts, and fear I neglected responding to those who took the time to read through it (I confess to not being very good with timely responses, as I post only during down times at the hospital).

I?ve just read through some of the responses. The point you make is precisely and exactly what I felt when I read them.

For instance:

...my first reaction to the story was the same as yours-- the doc was exonerated-- last time i checked that was good, lol.

More to the point, the doctor was exonerated in this case. He doesn't say why - but my guess is that it was because the system WORKED for him

The system worked for this doc

The system worked for this doctor, indeed. I wonder if I?ve ever heard worse horseshlt in my life.

The point that he was exonerated is beside the point. The crux of the issue is this: a physician conscientiously practicing the highest standards of his profession, basing his evaluations and decisions on the most current scholarship, who involved his patient in his own healthcare decisions, and who acted in the best interests of his patient, was called before the courts to answer the charge that he was incompetent, irresponsible, and wanting in his care.

The question to answer is WHY should this have occurred at all?!!

An analogy:

Think of the noblest war-hero you?ve ever known, winner of the Purple Heart, Distinguished Service Cross, Medal of Honor, et cetera. Imagine that this man returns home to the US after exemplary service to his country, and instead of being feted, is dragged before a court and charged with treason. The reason? He failed to single-handedly wipe out all his enemies and save every single one of his comrades (including those fatally wounded because they didn't follow his commands).

The judge hearing the case decides, like any sane person would, that this is bullshlt, and lets him go.

I suppose the lawyers would say ?Will you look at that, the system WORKED for him!!!?.

 

[Neuron]

{last post on this issue, I?m spent}.

The argument that the doctor should be satisfied that he was exonerated betrays a deep misunderstanding of the issue.

Merenstein was brought to court not for practising bad medicine. He was brought to court precisely because he practiced excellent medicine. I realize this may be a difficult concept for non-MDs to grasp, but to have to work in a system that is so badly twisted by greed is terrifying. It is terrifying because for us, the MDs in the trenches every single day, you?re ****ed if you practice excellent medicine, and you?re ****ed if you practice lousy medicine.

The only thing that matters is that everything should be completely prevented, or cured, or treated at precisely the moment the first dysplastic cell appears, and if this doesn?t happen, it is completely, totally, intolerable. Unacceptable.

Lung cancer is not caused by loss of heterozygosity on 3p, microsatellite repeats throughout the genome, gastrin-releasing peptide/ bombesin autocrine-paracrine loops, ERBB, BCL-2 and MYC proto-oncogene amplification, and of course has absolutely nothing to do with smoking your lungs black over 60 thousand years.

Lung cancer is caused by your doctor, who didn't order a spiral CT everytime he saw you. Because, if he did, that tumor would definitely have been caught early, and "a life would have been saved".

 

[xanthines]

I must not understand this case at all.

No offense, but I agree!

Sure, it sucks being sued, but Merestein was exonerated. He wasn't penalized the $1M. I don't know if his malpractice premiums will go up, but I don't think they should. Unfortunately, it's a fact of life that physicians are automatically named in lawsuits.

Those Wake Forest Law professors point out that Merenstein was not the first doctor he'd seen at the clinic. Up until Merenstein, no course of action was discussed or initiated despite several visits. Thus the Residency Program/Clinic is liable because NEITHER standards of care was adhered to (the jury had no qualms whatsoever about EBM). That's why they got the punishment and not the physician.

This case sets no legal precedence about anything and in my opinion this case has a low impact on medicine as a whole. If anything, it reaffirmed EBM (which appeals to me )! OK, so the physician is taken to court in a malpractice case. It stinks but it's standard procedure, as it should be. The patient failed to get adequate care that met either of the accepted standards; shouldn't the patient get some justice? I'm not a lawyer and in fact, I think the world could do with less of them. However, sometimes we actually need lawyers.

-X

 

[MacGyver]

This case illustrates the way lawyers think as a whole. They are trained in the art of debating and spinning things into ways that make the situation a 180 reverse from common sense. Just look at the way law school courses work. They dont care if you are on the right side or the wrong side, they just want you to argue your side regardless. Lawyers are trained to think that its absolutely irrelevant whether or not you have the facts on your side.

Here's a good example:

Lets say I'm speeding into a parking lot at 40 mph, and crash into a light pole. I'm permanently paralyzed as a result.

Common sense: you were speeding, therefore its your fault.

Lawyer's reasoning: Supermarket had prior incidents of speeding cars in their lot. Supermarket failed to install speed bumps. Supermarket failed to install special high friction concrete mixture for better traction. Supermarket failed to install signs warning people not to speed. Therefore, the supermarket could have prevented this accident and is negligent because they KNEW this could happen and yet did nothing to prevent it.

Common sense: well, its POSSIBLE that it may have been prevented if the supermarket had done those things, but PRIMARY responsibility lies with the driver. The supermarket didnt break any building codes or regulations by not having those things.

Lawyer reasoning: Primary responsibility is irrelevant. If the supermarket was responsible for even a 1% increased chance of bad outcomes, they are liable.

Jury comes into the trial using mostly common sense. You give them a quick overview of the case and they overwhelmingly vote for the defendant. However, give them 2 weeks in front of a savvy plaintiff's attorney, a spin doctor extraordinaire, and things are entirely different. Not because there were new facts presented, but because the plaintiff's attorney convinces them that even though the supermarket was only 0.0005% responsible for the accident, that they are still liable and therefore should pay big. After all, the supermarket wont really miss the money. They make 10X that in a year. Surely it wont hurt to give this guy a few million, which is only 5% of the supermarket's gross earnings.

Juries of common people are ENORMOUSLY prone to swings in judgment by good spin doctors. After 2 weeks, the jury goes from thinking "its the speeder's fault" to thinking "well the supermarket COULD have done things differently, and this money will help the guy and it wont hurt anything to give this money to him."

 

[xanthines]

I just can't stop posting!

Failure to reasonably prevent accidents or injuries are ALWAYS punishable, whether you are a doctor or not. You can't ignore someone dying on the street and you can't just leave your loaded gun out in the yard. If common sense really existed, then it would never be an issue; especially an issue that comes up so frequently. Albert Einstein said, "Common sense is nothing more than set of prejudices collected before the age of 18." I agree.

For your argument about the parking lot, if the store knew of past incidences then why not install speed bumps. Aren't the store owners afraid of being hit? what about the customers? Wouldn't that be bad for business? These are reasonable and logical questions. This is where my own little crack-theory comes in: I think the store owners are guilty of negligence, but I also think the driver is guilty of idiocy and shouldn't receive a penny from the store owners. The store owners should pay a penalty of some sort, but NOT to that driver.

Likewise, the clinic in the case that started this thread did nothing as an entity itself. How many times DO you have to visit the clinic before either 1) Getting the PSA test automatically OR 2) Having the risk-benefits discussed with you? It wasn't until Merenstein saw the patient that something was actually done. Therefore Merenstein is guilt free but the clinic is not. The clinic failed to meet any standard of care as a clinic. If it trained its residents better or had protocols in place for such an obvious incident (Now HOW many men get prostate cancer every year?) then something might have been done earlier. But it didn't. A very loose argument, admittedly, could be made that the the clinic is guilty of fraud: uuuuuh, we didn't find anything; why don't you come back another 5 times? Ka-ching!

Just my $00.02

-X

 

[MacGyver]

For your argument about the parking lot, if the store knew of past incidences then why not install speed bumps.

Indeed, why not install neon signs that say "dont speed" every 5 feet in the parking lot?

the problem with your logic is that "preventability" boils down to the minutiae. People/corporations should not be punished for minutiae.

Take a look at your car. Suppose I told you that if you bought more expensive brake lamps, it would result in a 2% less risk of being rear-ended by someone else. According to lawyer logic, if I told you this and you FAILED to act on it and install the costly lamps, and somebody rear-ended you and was hurt, YOU would be liable.

If the supermarket can get sued for not having speed bumps, then they can also get sued for not having "no speeding" signs in the lot. After all, an eager plaintiffs lawyer would certainly be able to show that having those signs would result in a 5% lower risk of wreck.

When one party is 90% responsible for a bad outcome, then the FULL BURDEN should shift to that party. The legal system introduces ENORMOUS wasting of resources when everybody is trying to protect that 10, or 5, or even 1% share of responsibility that could result in a jackpot verdict. When supermarkets have to divulge thousands of dollars just to cover their 1% of the responsibility for what idiots do in the parking lot, the result is higher prices, lower economic productivity, and decreased efficiency.

 

[edmadison]

Boy, this is getting messy. Let me see if I can clear some of it up. First, don't overanalyze jury verdicts. Juries are charged by the judge on the law, but they are essentially free to ignore it. Perhaps they found the Doc not liable because they wanted to give the plaintiff money, but liked the doc; QED: hold the program responsible.

As tort liability, you all are mixing several doctrines. First, negligence is where there is a duty to provide care, a breach of that duty and damage caused by the breach. Med Mal is a textbook negligence. In such cases, the plaintiff must prove each of those items (duty, breach and injury) by a preponderance of the evidence. If they do this (in the juries eyes) they win. In a negligence case, the defendent can argue that the plaintiff contributed some negligence of his own, e.g. the driver I hit was speeding too. In the past, any negligence by the plaintiff resulted in no recovery. This rule was changed for some good reasons and now states differ as to what happens. Some states have pure comparative negligence where the defendant pays the proportion of total injuries based on his conduct. Thus, if I'm being sued and found to be 10% at fault and the plaintiff 90%, I pay 10% of the total bill. Other states require that the defendant be at least 50% resposible for the injury.

Second, strict liability is where liability is incurred irrespective of the defendants negligence. This doctrine arose from products liability but as applies to failure to warn. If it would have been reasonable to warn of a risk (in certain circumstances) and it was not done, the court can find for the plaintiff without actual negligence.

The reason I bring this all up is that various hypotheticals fall under different doctrines so it is hard to compare them.

Finally, all the legal theories and rhetoric are fine and dandy but as I noted before, once the door to the jury room is locked, they can do what they want.

BTW, xanthine, average citizens are under no duty to rescue someone lying on the street. You can walk right by. There are exceptions: public officials, parents must help their children and those who caused the harm.

Ed

 

[xanthines]

Indeed, why not install neon signs that say "dont speed" every 5 feet in the parking lot?

the problem with your logic is that "preventability" boils down to the minutiae. People/corporations should not be punished for minutiae.

I must respectfully disagree. The question is whether or not the doctor/clinic/supermarket did ANYTHING to prevent a known hazard from turning into an accident. You don't have to go the extra 110%, just do SOMETHING.

Totally offtopic rant: I should mention that I do agree with you on that people/corps shouldn't be punished for failing to jump through every little ridiculous hoop. I also feel like there should be some sort of system set in place to prevent frivolous lawsuits. If anyone replies with judges and grand juries, I'll vomit. Medicine is a complicated, technical field with many intricacies and subtleties. There are bankruptcy courts with judges that have extensive experience in finance law.

Why can't we have a separate malpractice court with judges that are somewhat knowledgeable about medicine? (ie MD/JD?, JD/RN? etc etc...)

 

[southerndoc]

MacGyver, I like your speeding in the parking lot scenario. Unfortunately that's how the tort lawyers -- and even more unfortunate, many juries -- think.

 

[MacGyver]

MacGyver, I like your speeding in the parking lot scenario. Unfortunately that's how the tort lawyers -- and even more unfortunate, many juries -- think.

These scenarios play out all the time. Usually they dont go to court, because the insurance company would rather settle than risk some million dollar verdict.

Our legal system rewards people for their negligence and stupidity.

 

[MacGyver]

I also think the burden of proof in civil court should be as it is in criminal court.

As it stands now, the plaintiff only has to have 51% "favorability" in a case to win. The standard needs to be changed from "preponderance of evidence" to "clear and compelling evidence" or some other more stringent burden.

 

[docB]

The tort system is easy to fix. Eliminate the contingincy system. Simple as that. And to those who will whine, "But the poor, THE POOR. How will they be able to sue everybody?" I say TS. Pass a law that forces lawyers to work for the poor for free just like EMTALA forces me to treat the poor for free.

 

[edmadison]

The tort system is easy to fix. Eliminate the contingincy system. Simple as that. And to those who will whine, "But the poor, THE POOR. How will they be able to sue everybody?" I say TS. Pass a law that forces lawyers to work for the poor for free just like EMTALA forces me to treat the poor for free.

OK but do the lawyers only have to work when its an emergency?

Ed

 

[juddson]

The tort system is easy to fix. Eliminate the contingincy system. Simple as that. And to those who will whine, "But the poor, THE POOR. How will they be able to sue everybody?" I say TS. Pass a law that forces lawyers to work for the poor for free just like EMTALA forces me to treat the poor for free.

You have to "stabilize" the poor for free. You don't have to reach into your own pocket (sometimes to the six-figure mark) to treat an indigent. A typical case takes two-three years to bring to trial. I'm guessing your relationship with indigent patients under EMTALA is measured in minutes and, perhaps, hours, not months and years.

You are right about the first one though - Tough shhit for the poor is about right. How about this one: Why not take away the right to sue if you didn't pay for your medical care (or have insurance to pay for it). That way, finally, we will recognise that only wealthy patients have a reasonable expectation of competent medical care.

Judd

 

[docB]

OK but do the lawyers only have to work when its an emergency?

Ed

I have to see everyone emergency or not. I have to determine if it's an emergency. They should have to see, interview and assess the case to determine if the case has merit. And if the client can't pay they should be forced to absorb the cost or spread the cost to their other clients (like we do).

 

[MacGyver]

You have to "stabilize" the poor for free. You don't have to reach into your own pocket

Yes you do. When doctors to treat poor people for free, they lose money because they lose the opportunity to treat "paying customers" with that lost time. Its an opportunity cost.

 

[southerndoc]

You are right about the first one though - Tough shhit for the poor is about right. How about this one: Why not take away the right to sue if you didn't pay for your medical care (or have insurance to pay for it). That way, finally, we will recognise that only wealthy patients have a reasonable expectation of competent medical care.

I'm not sure how things work where you are, but where I trained for medical school, all patients were seen without regard for payment. In fact, neither the medical student, resident, or attending looked at the insurance status of the individual.

It was only when we were prescribing an expensive drug that we looked at insurance status. When a patient didn't have insurance, we either tried to find samples, attempted to find a cheaper drug (if one was available that worked as well), or asked the patient if he/she could afford the drug.

For the most part, we tried to find the cheapest drug that would accomplish things -- whether the patient was insured or not.

 

[neglect]

No offense, but I agree!

Sure, it sucks being sued, but Merestein was exonerated. He wasn't penalized the $1M. I don't know if his malpractice premiums will go up, but I don't think they should. Unfortunately, it's a fact of life that physicians are automatically named in lawsuits.

Those Wake Forest Law professors point out that Merenstein was not the first doctor he'd seen at the clinic. Up until Merenstein, no course of action was discussed or initiated despite several visits. Thus the Residency Program/Clinic is liable because NEITHER standards of care was adhered to (the jury had no qualms whatsoever about EBM). That's why they got the punishment and not the physician.

This case sets no legal precedence about anything and in my opinion this case has a low impact on medicine as a whole. If anything, it reaffirmed EBM (which appeals to me )! OK, so the physician is taken to court in a malpractice case. It stinks but it's standard procedure, as it should be. The patient failed to get adequate care that met either of the accepted standards; shouldn't the patient get some justice? I'm not a lawyer and in fact, I think the world could do with less of them. However, sometimes we actually need lawyers.

-X

No offense taken. And I hope I give none when I tell you you're off base. in fact, you're not in the ballpark. I don't know where you are, but you're probably not at all familiar with the medical system or what people refer to as the real world, where things like money takes a role of importance.

Let's review what we know. Input: patient gets seen by doctor. Due to doctor's plan, lawsuit. Goes to jury. outcome: 1 million. Now you can SAY the doctor was "exonerated" but for God's sake, as you so naive that you don't think that actions speak louder than words? Dude, money talks, the words sit there, motionless and worthless, on paper.

Now what happens when the doctor wants to get insurance? Will his insurance CO say, 'well, he was EXONERATED, he's a great investment, he has no risk of being sued'? I think not. I don't think the insurance company is going to make this fine distinction. Hey, OJ got off, he was exonerated in a CRIMINAL TRIAL. But for some reason I doubt Shapiro whould let OJ date his daughter. This doctor is guilty of a very basic no no: he lost a lot of money.

How many family practice doctors have to work how long to cover a one million dollar settlement? And where does this come from ultimatly? Answer: your paycheck, but before you even see it. Every month you pay about 200 dollars for health care (average). You'll have to work a while to cover that. The insurance companies are going to f--- him for the rest of his career.

As for being of low impact, can I just say, huh? Low impact if you practice medicine on Mars. This case was published in one of the leading medical journals. It's impact can be measured on it's effects on the doctor, who will either give up medicine (despite being the sort of person I'd like to send patients to, see myself, and have my family see - enough of these and pretty soon I'm going to be seeing Dr. Nick), or carries scars. This case will impact my practice: defensive medicine is best, screw the cost containment. Over the last few weeks, thinking about this case, I've ordered some tests with very low pretest probs. Why? Why not, you can defend more tests.

Well, at least the family is happy with their money.

 

[Whodathunkit]

Juddson will always find a

But!


But!!


I think he probably enjoys getting medical people all hyped up. God Bless Lawyers! Without them, we'd probably turn on each other.

 

[japhy]

macgyver,

your parking lot example is ridiculous. apparently you have not heard of the legal concept of contributory negligence. even assuming this case would make it before a jury, the supermarket would most likely not be forced to pay the entire cost of the accident, medical bills etc.

first of all, it appears that the supermarket was negligent. if there had been accidents before, that they had knowledge of and had done nothing to prevent future accidents, yes there is a good chance they would be held liable. however, under contributory negligence, any award is reduced by the amount of cn the plaintiff is responsible for. let's say the jury finds the plaintiff responsible for 95% of the accident. further, let's say the damage award was $100K. the plaintiff walks away with $5K. then he has to pay his lawyer, so he walks away with nothing.

of course, contributory negligence is much more complex in the medical field.

 

[MacGyver]

macgyver,

your parking lot example is ridiculous. apparently you have not heard of the legal concept of contributory negligence. even assuming this case would make it before a jury, the supermarket would most likely not be forced to pay the entire cost of the accident, medical bills etc.

first of all, it appears that the supermarket was negligent. if there had been accidents before, that they had knowledge of and had done nothing to prevent future accidents, yes there is a good chance they would be held liable. however, under contributory negligence, any award is reduced by the amount of cn the plaintiff is responsible for. let's say the jury finds the plaintiff responsible for 95% of the accident. further, let's say the damage award was $100K. the plaintiff walks away with $5K. then he has to pay his lawyer, so he walks away with nothing.

of course, contributory negligence is much more complex in the medical field.

Japhy, even if the supermarket only had to pay 5% of the cost, its still bull****.

If I'm 90% responsible for getting hurt on a company's property, the company should have NO BURDEN to pay even 10% of the cost.

Thats what I'm saying. This legal system parses responsibility down to the minutiae. Thats an entirely wrong and flawed approach to take. It should be based instead on majority cause. If a person is 51% responsible for their own misfortune, then 100% of the liability should be assigned to them.

 

[japhy]

what is your rationale here, macgyver? why should you be responsible for all of your injuries (financially, that is) if you were not entirely responsible for the event? your rationale has no more basis than what is currently used, i.e. comparative liabilty. btw, the system you suggested was in place in the mid-1800's and early 1900's. however, due to issues with worker's comp and so forth, the system wisely changed.

you are making the same mistake that judd pointed out earlier. the 90/10 or 95/5 cases are easy. it seems odd that the supermarket should have to pay. in all likelihood, they will not, because the expense of bringing the claim is simply not worth it. however, in the case you put forward, 51/49, it becomes a lot more difficult.

anyway, i am interested in hearing your rationale for the system you propose.