How the legal system is destroying Medicine

[ERMudPhud]

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.
Judd

The definition of stabilize is rather vague and until recently physicians and hospitals have erred on the side of doing everything rather than face EMTALA charges. When I was chief resident I did a survey of our frequent fliers. One had over 300 ED visits in one year. Another ran up over $1,000,000 in hospital bills in one year. All uncompensated. End stage renal disease noncompliant with dialysis in fulminant heart failure doesn't get fixed cheaply or quickly. The costs get even higher when the same patient comes back with the same problem every few weeks. Our costs for providing free care can easily meet or exceed what a tort lawyer spends on a case and our relationship with the patient can last for months to years. Unlike tort lawyers we are both legally (and morally) required to provide this care with absolutely no hope that it will ever be compensated by anybody. When I see a patient who can't or doesn't pay their bill the taxpayers aren't bailing me out, the hospital doesn't have some slush fund compensating me, and their isn't anyone I could really sue. I just don't get paid.

None of this really has any bearing on medical malpractice but the argument that the tort system is designed to protect the poor while doctors are whining about providing a minimal amount of care to the poor isn't really supported.

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[xanthines]

I see your point about the costs, which is why I said that being sued sucks. I don't relish the fact that lawsuits cost money irrespective of outcomes, but that's the reality in which we live (except for me on Mars, obviously! )

And about that...

I think it IS low impact because no legal precendence was set about EBM, the physician was exonerated (despite court costs), and it wasn't really news-worthy at all. Merenstein explicitly states that he wrote that article for cathartic purposes and was surprised at the response it received. Look, instead of bashing his fax machine he wrote an article about how he felt. ALL of the "facts" came directly from him and are not peer-reviewed or checked for accuracy and nor should they be. This is not a case report of MI in 12 in a 12 year old kid or sucessful treatment of hodgkins with blood-letting. It's not even a report on the latest effects of aspartame. It's simply how one guy felt: "Man, being sued sucks!" It doesn't actually change anything unless you don't want it to. If other people can't see that, then shame on them for not thinking analytically and objectively.

edmadison: Good catch on the use of "always." I'll retract my statement and revise with "You SHOULDN'T leave a dying person out on the street."

-X

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.

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.

 

[EvoDevo]

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...)

Excellent idea. But I have some questions about the mechanics of such a system. Would you have MD/JD's on the bench? A rotating lottery system drawn from the local Medical provider community? Older docs (and possibly less up on new thinking)? Young docs?

But a great idea nonetheless.

 

[MacGyver]

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.

Parsing responsibility down to the minutiae is a smokescreen that lawyers use to fill thier pockets.

Consider the following analogy:

A parent is walking with their child on a sidewalk. Child starts running at full speed. Child trips and falls.

Now, parental logic dictates that the child is at fault, becaue the child was running. This is the common sense approach.

However, lawyers parse responsibility down to the minutiae. They fault the maker/owner of the sidewalk, stating that the child would not have slipped if there was a special non-slip covering on the sidewalk. Furthermore, they dig up every single past incident of slips on the sidewalk, and use this in court. Its enough to sway a foolish stupid jury into thinking that the maker/owner of the sidewalk really DOES have some responsibility in the case, when reality is the child is 100% at fault.

Parsing responsibility down to the minutiae is an INHERENTLY ILLOGICAL APPROACH TO THINKING ABOUT THE WORLD, yet lawyers get a free pass to use it every day in court. 95% of slip and fall PI cases are based on this kind of idiotic logic.

Parsing responsibility to the minutiae is based on what COULD happen, not what actually DID happen. Thats why its a joke.

Same logic goes into 9/11 families sueing airlines. Yes, airlines could be safer if there were 10 security checkpoints that each person had to go thru, and if there was a full strip body search of each and every passenger. According to "parsing responsibility down to the minutiae" since this would make airlines safer, airlines should be REQUIRED to do these things.

Parsing responsibility down to the minutiae is about hypotheticals in a utopian world. It assumes that increases in safety, even minutely MARGINAL increases in safety, ALWAYS trump practicality and costs. According to this logic, if safety can be increased 1% by spending 500% more dollars and resources, then its negligence not to do so.

 

[xanthines]

Well, preferably an MD/JD or someone with a science/medical background as the judge. If not a formal education, just set up a system where a select pool of judges see ALL the malpractice cases and ONLY malpractice cases. Just like my finance/bankruptcy law example. The main criteria is an judge experienced in medical malpractice cases, preferrably with a medical or science background.

Someone other than the proscn/plaintff lawyers needs to be able to tell the jury what is important and what is not. The judge has to be able to know what is going on in order to give jury instructions. The judge has to have some background material so he knows when to allow/exclude evidence.

My issue is that medical malpractice cases are a lot more complex than your average traffic court case. As such, you have judges that give poor instructions to the jury and probably allow things to happen that shouldn't. I'm not saying this will benefit doctors necessarily, but it should benefit everyone on the whole by having judges rule whether a particular case has merit (saving taxpayer dollars). The actual court case itself could probably proceed much quicker (to everyone's relief, I'm sure). Finally, the outcome of any court decision will probably be more fairly and sensibly based in law and evidence, rather than on guesses and a vague understanding of science.

My issue is that the current system is simply not an instrument of justice. It's just a big ol' mess!

-X


PS. here's a website that kind of explains what i want done;

judges Q&A

Excellent idea. But I have some questions about the mechanics of such a system. Would you have MD/JD's on the bench? A rotating lottery system drawn from the local Medical provider community? Older docs (and possibly less up on new thinking)? Young docs?

But a great idea nonetheless.

 

[siguanabo]

what about the god damn expert witnesses who are themselves docs? Why in the world do these unscrupulous docs lend themselves to be expert witnesses when they know they are only hurting other physicians? They should make it illegal for other docs to be expert witnesses for plaintiffs. I can't believe they are happy cashing in while destroying the profession.

 

[xanthines]

This is why I would like to see judges familiar with extensive knowledge of medical malpractice law. You could cut off the sketchy expert witnesses at the start instead of researching their background (increased costs for plaintiffs, usually, although the same could hold true for the prosecution), spending time cross-examining the "expert" (costing the taxpayers more money, by the way), that still results in "legitimate" testimony. A judge could rule that certain witnesses are indeed NOT experts (ie the old retired GP testifying about invasive pediatric neurosurgery).

-X

what abuot the god damn expert witnesses who are themselves docs? Why in the world do these unscrupulous docs lend themselves to be expert witnesses when they know they are only hurting other physicians? They shiould make it illegal for other docs to be expert witnesses for plaintiffs. I can't believe they rather are happy by getting cashing in and at the same time destroying the profession.

 

[EvoDevo]

Hey X, thanks for the link.

Man, I think I need to do a MD/JD program.....

 

[MacGyver]

This is why I would like to see judges familiar with extensive knowledge of medical malpractice law. You could cut off the sketchy expert witnesses at the start instead of researching their background (increased costs for plaintiffs, usually, although the same could hold true for the prosecution), spending time cross-examining the "expert" (costing the taxpayers more money, by the way), that still results in "legitimate" testimony. A judge could rule that certain witnesses are indeed NOT experts (ie the old retired GP testifying about invasive pediatric neurosurgery).

-X

That wold help, but its not hte real problem.

The REAL problem with experts is that medicine is not a black/white field, yet lawyers continually portray it this way with the help of "expert" witnesses.

Consider the following example.

Surgical procedure alpha has been around for quite some time. The risks are well known and the outcomes studied thoroughly.

Surgical procedure beta is a newer procedure, and comes with its own set of complications and general outcomes. In some cases, beta is better than alpha but the reverse is also true.

Patient John Doe has a surgeon Dr. Smith who uses procedure alpha. Unfortunately, bleeding (a stated normal complication of the procedure) results and Doe goes into hypovolemic shock and a coma. He stays in the coma for a few weeks, eventually emerges but has some memory loss and speech difficulties.

Mr. Shark, esquire, attorney at law, comes along and pays the inventor of procedure beta, Dr. Sellout an outrageous sum of money in the form of $50,000 to testify against Dr. Smith. Dr. Sellout is a professor of surgery at Harvard Medical School, has over 100 publications in every surgery journal you can imagine.

Dr. Sellout takes the stand and claims that Dr. Smith was negligent becaues he did not use procedure beta. He rambles on and on about how famous he is for inventing the surgery and how many news shows he went on to brag about it.

Dr. Smith has his own expert to testify on his behalf, claiming that in fact it is OK to use procedure alpha for John Doe.

Mr. Shark lawyer is setting up a false paradigm. His paradigm is that one side is right, and the other side is medical malpractice. REAL MEDICINE ALMOST NEVER OPERATES THIS WAY. Lawyers love to reduce complex decision making down to simple right/wrong answers. Juries dont have the patience to delve deep into complex matters. Its total bull****, and they pay outrageous sums of money to "expert" witnesses who are willing to sell their souls.

Lawyers frequently take contentious medical issues, issues on which reasonable medical professionals disagree, and cast them into black and white neat little boxes. This is the real problem with medical experts.

 

[MacGyver]

Another tactic lawyers routinely use is to ignore practical and monetary constraints and throw out a false paradigm of anything less than perfect information is malpractice.

Stabby McLawyer, esq: Doctor, did John Doe come to your ER

Dr: yes

Stabby: what were his symptoms, doctor?

Dr: He complained of a headache

Stabby: what did you do?

Dr.: I did a thorough neurological exam.

Stabby: What did you find?

Dr.: Neuro exam was normal

Stabby: What did you do after that?

Dr.: I gave him a tylenol and told him to get back in touch with us if he experienced any other symptoms or the pain got worse.

Stabby: You didnt order an MRI?

Dr.: no.

Stabby: Why not?

Dr.: He had no other symptoms, he described the pain as minor, there was nothign found on neuro exam, the conditions under which the headache arose was not suspicoius.

Stabby: Why not take the MRI, just in case?

Dr.: Well, we dont routinely order MRIs for everybody with a simple headache. Unless they have other symptoms that are suspicious for possible serious brain injury, we watch and wait.

Stabby: So what you are really telling the jury is that you were too greedy to do a simple test and be thorough?


You get the idea. Lawyers routinely ignore practical/cost constraints and play the "what if" game.

Stabby: What if you had done the MR scan, woudl you have caught the aneurysm that John Doe had?

Dr.: Perhaps.

Stabby: Perhaps? Isnt it true that a later MRI at another hospital revealed a massive aneurysm in the basilar artery?

Dr.: **** you greedy sumbitch lawyer. I dont have to take any **** from you!

 

[xanthines]

In both of your examples my theoretical judge, well-versed in medical malpractice law and some familiarity with medical jargon/knowledge, would carefully instruct the jury to base their decisions not on emotion but on whether or not they objectively thought Dr Smith had adhered to contemporary standards of care.

Let's face it: There are always going to be scummy lawyers out to get you. I'd just like to see some methods implemented to save innocent doctors from being screwed so often and to such a degree. This is why I'm not thrilled about limiting lawyers fees or capping jury awards; they're too clear-cut and I think they would hurt patients that really are victims of medical malpractice more than it would help doctors getting it up the rear.

Of course, another big issue is that insurance companies are total dinguses too. But that's whole different rant!

-X

 

[deltamed]

Why even have juries?

Don't many civil cases go to judge only and no juries? Who gets to make that decision and if the defendant does, why do doctors ever pick jury trials?

 

[mdterps83]

[Caution] Red Herring [Caution]

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."

 

[OzDDS]

http://www.washingtontimes.com/national/20040816-011234-1949r.htm