Malpractice

[DrAwsome]

Just wondering, what's the statute in general for malpractice cases? My understanding is that it's 2 years but not sure. and what are the best states to practice in liability wise?

---

Members don't see this ad.

 

[Winged Scapula]

In general, it is 2 years from the date the injury occured. There is some state to state variability but 2 years is most common for the statute of limitations for medical liability. There have been cases where it was claimed that the patient did not know an injury occured, so the date was extended to be 2 years from when the discovery of injury was made.

For pediatrics it can be to age 18, or longer in some cases. There is a fair bit of state to state variability.

Worst states to practice in? Reputed to be PA (especially Philly), NJ, NY, and Florida.

Better: states with Tort Reform (although in those states a higher percentage of cases brought forth tend to go to court, although physicians still overwhemingly win). Some states, including Texas and California, I believe, the loser has to pay the court costs of the other party, aka the "English Rule".

Best: practice outside of the US and its lottery mentality population

 

[DrAwsome]

In general, it is 2 years from the date the injury occured. There is some state to state variability but 2 years is most common for the statute of limitations for medical liability. There have been cases where it was claimed that the patient did not know an injury occured, so the date was extended to be 2 years from when the discovery of injury was made.

For pediatrics it can be to age 18, or longer in some cases. There is a fair bit of state to state variability.

Worst states to practice in? Reputed to be PA (especially Philly), NJ, NY, and Florida.

Better: states with Tort Reform (although in those states a higher percentage of cases brought forth tend to go to court, although physicians still overwhemingly win). Some states, including Texas and California, I believe, the loser has to pay the court costs of the other party, aka the "English Rule".

Best: practice outside of the US and its lottery mentality population

I did not realize that PA, NY and FL were so bad to practice in. How come? I was aware of TX, and seriously considering practicing there. Also have considered moving to Canada to practice since my husband can easily find work there and currently works with a Canadian based company. They should really tell you about all these things when starting/before starting med school! Although I don't know what you mean by lottery mentality population?

 

[Winged Scapula]

I did not realize that PA, NY and FL were so bad to practice in. How come?

1) high malpractice insurance rates
2) high rate of litigation
3) high rate of frivolous lawsuits
4) punitive environment against physicians (see Amendment 8 in Florida)
5) lottery mentality of citizens

I was aware of TX, and seriously considering practicing there. Also have considered moving to Canada to practice since my husband can easily find work there and currently works with a Canadian based company. They should really tell you about all these things when starting/before starting med school!

Well yes, they should tell you about a lot of things but remember that academic physicians are somewhat shielded from the realities of a clinical practice.

Although I don't know what you mean by lottery mentality population?

People who see suing a physician as a way to make big bucks, akin to winning the lottery. It has gotten so bad in Philly, that defense attorneys commonly seek to move the trial out of that city because the juries tend to award huge sums to the plaintiffs because they too see doctors as filthy rich and besides, "the insurance company pays it". They just don't see how emotionally devastating it is to a physician. Drive near any hospital in Philly and see billboards about how to sue your doctor. Reportedly only 7% of PA medical residents actually stay in the state to practice medicine, citing the environment as the number 1 reason.

 

[nancysinatra]

Also have considered moving to Canada to practice since my husband can easily find work there and currently works with a Canadian based company. They should really tell you about all these things when starting/before starting med school!

Good luck with that! I went to medical school in New York City and my school's administrators could not have placed Canada on a map if their lives depended on it. Only 3 cities officially existed from what I could tell: New York, LA, and Boston.

 

[DrAwsome]

Good luck with that! I went to medical school in New York City and my school's administrators could not have placed Canada on a map if their lives depended on it. Only 3 cities officially existed from what I could tell: New York, LA, and Boston.

Meh, school administrators usually suck and are clueless. I am a big big big proponent, among other things, of having actual physicians be school administrators because non physicians have no clue what they are doing. At my school, the assistant dean was someone who had I think only a bachelor's degree and would tell everyone who did not initially match, even for competitive specialties, to go into FM.

I'm seriously considering starting some sort of company/website/something to help med students get more informed of all the process, which includes the financial, litigation, etc aspects of medicine.

Sort of in the same way that I am a proponent of having undergrads KNOW what they are getting into by going into liberal art/lame degrees where they'll come out with 100k in loans and no jobs. The educational state in this society has become insane.

Why do I see myself sporting a maple leaf soon?

 

[nancysinatra]

People who see suing a physician as a way to make big bucks, akin to winning the lottery. It has gotten so bad in Philly, that defense attorneys commonly seek to move the trial out of that city because the juries tend to award huge sums to the plaintiffs because they too see doctors as filthy rich and besides, "the insurance company pays it". They just don't see how emotionally devastating it is to a physician. Drive near any hospital in Philly and see billboards about how to sue your doctor. Reportedly only 7% of PA medical residents actually stay in the state to practice medicine, citing the environment as the number 1 reason.

Aren't there some places in the US now that have doctor shortages because of the malpractice costs? I just applied for malpractice insurance, and it galls me to think that people are filing all these spiteful, bogus lawsuits. I feel very afraid that one day, it will happen to me! Well, eventually places like PA just won't have doctors, will be the result.

 

[DrAwsome]

Aren't there some places in the US now that have doctor shortages because of the malpractice costs? I just applied for malpractice insurance, and it galls me to think that people are filing all these spiteful, bogus lawsuits. I feel very afraid that one day, it will happen to me! Well, eventually places like PA just won't have doctors, will be the result.

It's sad to think that our gov is so spineless and greedy that they won't pass tort reform. I guess I don't get what it is that the gov wants. Do they have an innate hate of doctors? I mean they want to pay us pennies, sue us, increase requirements, pass no reform, and work us like dogs.

There is an astronomical shortage of about 91,000 doctors coming up in 2020. If they keep it up, that's going to sky rocket. Less and less people are going to go into medicine.

Yet healthcare is an essential part of any industrialized powerful nation. Why do they insist on not passing reform for example?

I also don't understand why physicians cannot practice with a no liability waiver in general. I've seen a number of physicians do this, and I would assume it's legally binding no? I've had a number of doctors make me sign this as well and I don't believe I can sue them if something were to have gone wrong. Why can't we do this as a profession? Does it make sense to practice in fear?

 

[Law2Doc]

1) high malpractice insurance rates
2) high rate of litigation
3) high rate of frivolous lawsuits
4) punitive environment against physicians (see Amendment 8 in Florida)
5) lottery mentality of citizens



Well yes, they should tell you about a lot of things but remember that academic physicians are somewhat shielded from the realities of a clinical practice.



People who see suing a physician as a way to make big bucks, akin to winning the lottery. It has gotten so bad in Philly, that defense attorneys commonly seek to move the trial out of that city because the juries tend to award huge sums to the plaintiffs because they too see doctors as filthy rich and besides, "the insurance company pays it". They just don't see how emotionally devastating it is to a physician. Drive near any hospital in Philly and see billboards about how to sue your doctor. Reportedly only 7% of PA medical residents actually stay in the state to practice medicine, citing the environment as the number 1 reason.

Just FYI, the rates of "frivolous lawsuits" as that term is actually defined is remarkably low in every jurisdiction, and greatly exaggerated. There have been a number of studies on this. So you are never going to find a "high rate".

 

[Winged Scapula]

Just FYI, the rates of "frivolous lawsuits" as that term is actually defined is remarkably low in every jurisdiction, and greatly exaggerated. There have been a number of studies on this. So you are never going to find a "high rate".

I suppose you have a point, but I would venture it depends on how it was defined.

I would define suing someone for a known complication without obvious sequelae as "frivolous". Since it happened to me, my N=1, means there are lots of them.

 

[Winged Scapula]

Aren't there some places in the US now that have doctor shortages because of the malpractice costs?

Yes, there are areas in which finding a Neurosurgeon or Ob is very difficult; hospitals have to come up with all sorts of incentives to get them to take ED call. Most won't because those tend to be uninsured patients with higher than average complications and propensity to sue.

There is an astronomical shortage of about 91,000 doctors coming up in 2020. If they keep it up, that's going to sky rocket. Less and less people are going to go into medicine.

That is debatable (the "doctor shortage" and fewer people going into medicine). Medical school enrollment is at an all time high and will continue to be especially in times of economic downturns when people see medicine as stable employment. You will always have the eager pre-med that doesn't care how much in debt they have to go, or what regulations there are, because of the fantasy of being the man/woman in the white coat.

I also don't understand why physicians cannot practice with a no liability waiver in general. I've seen a number of physicians do this, and I would assume it's legally binding no? I've had a number of doctors make me sign this as well and I don't believe I can sue them if something were to have gone wrong. Why can't we do this as a profession? Does it make sense to practice in fear?

You can go "bare". Many cases of physicians in South Florida being unable to GET (let alone afford) malpractice insurance and going bare.

As for whether an agreement to not sure or to arbitration is legally binding, I'm not sure. I'll leave that to the lawyers.

 

[thesauce]

Just FYI, the rates of "frivolous lawsuits" as that term is actually defined is remarkably low in every jurisdiction, and greatly exaggerated. There have been a number of studies on this. So you are never going to find a "high rate".

By the 2006 NEJM Harvard study, it was 37%. I consider that high, as do the study authors.(http://www.ncbi.nlm.nih.gov/m/pubme...arvard public health 2006 medical malpractice).

What study(ies) are you referring to?

 

[Winged Scapula]

By the 2006 NEJM Harvard study, it was 37%. I consider that high, as do the study authors.(http://www.ncbi.nlm.nih.gov/m/pubme...arvard public health 2006 medical malpractice).

What study(ies) are you referring to?

Again, I would venture that it depends on how you define frivolous.

Perhaps L2D defines it as "no verifiable medical injuries" (which in your citation above accounts for 3% which is a low number).

You and I probably define it as "no error" (which would include possible/known complications/unsatisfactory results) which I agree is high at 37%.

 

[michaelrack]

You can go "bare". Many cases of physicians in South Florida being unable to GET (let alone afford) malpractice insurance and going bare.

.

Agree with WS that in most states a doctor can legally go bare.

However, this will prevent a doctor from most hospital affiliations as well as getting on many insurance panels.

 

[Dr. USMLE]

.

 

[Winged Scapula]

Agree with WS that in most states a doctor can legally go bare.

However, this will prevent a doctor from most hospital affiliations as well as getting on many insurance panels.

Absolutely correct.

Every hospital and insurance company that I have had the pleasure of credentialing with has required up-to-date malpractice insurance. I would be interested to hear what the workaround is for those whom have decided to go without it.

 

[nancysinatra]

That is debatable (the "doctor shortage" and fewer people going into medicine). Medical school enrollment is at an all time high and will continue to be especially in times of economic downturns when people see medicine as stable employment. You will always have the eager pre-med that doesn't care how much in debt they have to go, or what regulations there are, because of the fantasy of being the man/woman in the white coat.

I wonder if there have been studies about the type and quality of applicants nowadays compared to past generations of med students. Given all the debt and regulations, you'd think the best and brightest would start gravitating toward other professions. I have no doubt there will always be eager applicants. I just wonder how good they'll be.

 

[nancysinatra]

Agree with WS that in most states a doctor can legally go bare.

So then what happens when these docs get sued? Do they hire their own defense attorney? I would think that could be hard, or at least, exorbitantly expensive. Insurance companies have their own attorneys, whose job it is to prevent the insurance company from having to pay out, right? If you're on your own though, you wouldn't have that, and so wouldn't you be a walking bullseye in the eyes of plaintiff's malpractice lawyers?

 

[Winged Scapula]

So then what happens when these docs get sued? Do they hire their own defense attorney? I would think that could be hard, or at least, exorbitantly expensive.

I would assume so (hire their own, being expensive - but cheaper than malpractice premiums).

Insurance companies have their own attorneys, whose job it is to prevent the insurance company from having to pay out, right?

Yes and no. The insurance companies goal is to spend as little money as possible. That may mean they would prefer you to settle because it may cost them less than a lengthy trial.

I speak from experience. When I was sued, the settlement request was for a very small amount (according to attorneys I spoke with). I am sure that my provider would have preferred I settle and just have them write a check because it would have cost them less than my pricey attorney, depositions, expert witness interviews, etc. If it had gone to trial, it would have been even more.

If you're on your own though, you wouldn't have that, and so wouldn't you be a walking bullseye in the eyes of plaintiff's malpractice lawyers?

Some states require malpractice insurance. Some states require that you show a certain level of assets if going bare. I understand that nearly 40% of Florida physicians were going bare in the early '00s.

The key is two-fold:

1) asset protection; essentially you appear to own nothing and have no money on paper except the limits set by your hospital/insurance companies
2) liability waivers signed by patients

Believe me, if I was going bare and only required to show $250K in assets that is a lot less attractive to a potential plaintiff than if I carried the standard 1 mil/3 mil policy (or more depending on specialty). But we're getting outside of my area of expertise as far as how plaintiff's attorneys see these things, and I understand going bare is not as common as it once was.

 

[thesauce]

So then what happens when these docs get sued? Do they hire their own defense attorney? I would think that could be hard, or at least, exorbitantly expensive. Insurance companies have their own attorneys, whose job it is to prevent the insurance company from having to pay out, right? If you're on your own though, you wouldn't have that, and so wouldn't you be a walking bullseye in the eyes of plaintiff's malpractice lawyers?

Well. Your options otherwise are either 1) don't practice, or 2) pay out the nose in premiums which could be higher than your liability from lawsuits you might face.

 

[Law2Doc]

... I consider that high, as do the study authors...?

The authors of this study actually got a lot of publicity and mileage asserting exactly opposite of what you claim they posit. They have gone on record saying that, as demonstrated by this study, the US legal system is actually quite good at dissuading frivolous cases, and cite a figure of about 10% of claims that did not have merit but received compensation, even noting that among this figure there were many many close calls (arguably a close call isnt frivolous). Several of these authors even did the media circuit telling the public that their study showed that frivolous lawsuits were overblown. There were smaller follow up studies at Harvard and elsewhere as well that I will try to track down, that demonstrated more or less the same thing.

I think you have to realize that the phrase "frivolous lawsuit" has a technical legal definition not always appreciated by physicians. Doctors often use the phrase whenever a doctor gets sued but no wrongdoing is found. In fact most losing cases are not frivolous -- A plaintiff can lose a lawsuit and it not be frivolous. To survive dismissal, a suit has to make out a basic case which demonstrates a cause of action, an alleged deviation of the standard of care by someone with a duty to provide care, and damages (basically "I hurt, you did it, and here's what it costs to make me whole"). On top of this in most jurisdictions, a malpractice complaint must contain a sworn statement from a physician indicating that there appears to have been a deviation from the standard of care based on his review of the medical records. Even in the most idiotic of cases, if a plaintiff is able to make out the elements of a case and provide this doctors affidavit, the case is not deemed frivolous, as that term is defined. The plaintiff may lose badly, he may initially name a dozen physicians in the suit whose names merely appear in the medical record but who will ultimately be dismissed due to lack of involvement, but none of this makes this suit "frivolous".

Frivolous is thus not really the opposite of meritorious, under the legal definition. You are allowed to be found wrong and still have had a basis. It should be noted that there are stiff monetary penalties (sanctions) for attorneys who file frivolous cases, which is why few get filed. You would be hard pressed to find a lawyer who would risk sanctions on a contingency fee case -- that's a double hit -- you spend a lot of time working on a losing case for free, and get hit with a fine to boot. So we don't really see this. What we do see is lawyers relying heavily on extremely sketchy doctor's opinion to get them over the hurdle if being frivolous. If a doctor says something in the record deviated from the standard of care, that by definition is not frivolous -- none of the judge, lawyer or plaintiff is qualified to audit such an opinion. So in my opinion, the problem isn't frivolous lawsuits, which are rare and there are already sanctions in place to deal with them. the problem is shill doctors willing to offer credibility to an otherwise meritless claim. Its mazing what some doctors will say for a steady stream of $200/hour on the side. This is, and has always been within control if our own profession. Plaintiffs lawyers may be out to get us, but it's really other doctors that keep the more questionable suits in the game.

As you can see, I enjoy and have a lot to say on this topic... 🙂

 

[Law2Doc]

I wonder if there have been studies about the type and quality of applicants nowadays compared to past generations of med students. Given all the debt and regulations, you'd think the best and brightest would start gravitating toward other professions. I have no doubt there will always be eager applicants. I just wonder how good they'll be.

In a recession economy, the best and brightest always go to professional schools and delay entering the work force. As of this moment in time med schools and law schools are filled with as qualified students as they've ever had.

 

[Law2Doc]

I would assume so (hire their own, being expensive - but cheaper than malpractice premiums).



Yes and no. The insurance companies goal is to spend as little money as possible. That may mean they would prefer you to settle because it may cost them less than a lengthy trial.

I speak from experience. When I was sued, the settlement request was for a very small amount (according to attorneys I spoke with). I am sure that my provider would have preferred I settle and just have them write a check because it would have cost them less than my pricey attorney, depositions, expert witness interviews, etc. If it had gone to trial, it would have been even more.



Some states require malpractice insurance. Some states require that you show a certain level of assets if going bare. I understand that nearly 40% of Florida physicians were going bare in the early '00s.

The key is two-fold:

1) asset protection; essentially you appear to own nothing and have no money on paper except the limits set by your hospital/insurance companies
2) liability waivers signed by patients

Believe me, if I was going bare and only required to show $250K in assets that is a lot less attractive to a potential plaintiff than if I carried the standard 1 mil/3 mil policy (or more depending on specialty). But we're getting outside of my area of expertise as far as how plaintiff's attorneys see these things, and I understand going bare is not as common as it once was.

A lot of the asset protection loopholes have been closed over the years ( the same techniques that made you poor for creditors were also being used to make you poor for tax purposes and Uncle Sam took issue with that). You can still transfer assets to somebody else if you do so before any causes of actions are brewing, but you have to really trust them -- plenty of people have put assets into a spouses name only to realize after a divorce that maybe this wasn't the shrewdest of plans. Liability waivers by plaintiffs don't really hold up if you are negligent, so I wouldn't bother. Right now insurance is the safest course, although I agree it's expensive and perhaps tempts litigation. But in any medmal case there will be a dozen other deep pockets in the room to tempt litigation, so you will be drawn into the case even if the deep pocket is the hospitals carrier or the anesthesiologists carrier, etc. It's better to be covered in such a case even if you weren't the primary bait.

 

[thesauce]

The authors of this study actually got a lot of publicity and mileage asserting exactly opposite of what you claim they posit.

Not quite. Their stance is (according to this paper) that more cases have merit than not. They admit in this article that cases with no merit are "not uncommon." If they then went on the circuit to push for more than this paper actually delivers, so be it.

They have gone on record saying that, as demonstrated by this study, the US legal system is actually quite good at dissuading frivolous cases, and cite a figure of about 10% of claims that did not have merit but received compensation,

And this is where we don't see eye to eye. 10% of doctors being falsely convicted is WAAAAY too high. If 10% of criminals were falsely convicted, would that be okay? Not to mention that the % of cases without merit is much higher (37%) and these cases incurred financial and emotional costs to the physician all the same.

I think you have to realize that the phrase "frivolous lawsuit" has a technical legal definition not always appreciated by physicians.....

The rest of us were referring to the common sense definition. To every rational person, a "frivolous" case is one that lacks merit. Just because a group of lawyers got together to rename something so obviously defined, doesn't make any of these cases acceptable. This kind of garbage: "even in the most idiotic of cases, if a plaintiff is able to make out the elements of a case and provide this doctors affidavit, the case is not deemed frivolous, as that term is defined" is a web spun by immoral people trying to take a cut and dry scenario and make it intellectually palatable and financially rewarding. No matter how hard lawyers try to argue otherwise, these suits are frivolous and what you've defined as "frivolous" is just "fraud" and should be criminally indictable. We don't need lawyers explaining what's right and wrong in this sense.

 

[Law2Doc]

...
The rest of us were referring to the common sense definition. To every rational person, a "frivolous" case is one that lacks merit. Just because a group of lawyers got together to rename something so obviously defined, doesn't make any of these cases acceptable. This kind of garbage: "even in the most idiotic of cases, if a plaintiff is able to make out the elements of a case and provide this doctors affidavit, the case is not deemed frivolous, as that term is defined" is a web spun by immoral people trying to take a cut and dry scenario and make it intellectually palatable and financially rewarding. No matter how hard lawyers try to argue otherwise, these suits are frivolous and what you've defined as "frivolous" is just "fraud" and should be criminally indictable. We don't need lawyers explaining what's right and wrong in this sense.

um I think "common sense" is in the name if the beholder. And that it's the group of doctors who redefined a term that long existence in the legal vernacular. Sorry but the fact that you don't like something doesn't make it garbage or immoral. In fact, as I mentioned above it's actually doctors who are the driving force getting these cases into court in the first place. Without them, these cases don't get filed. The medical field needs to address this not keep whining about immoral lawyers. Sorry, but no.

 

[DrAwsome]

um I think "common sense" is in the name if the beholder. And that it's the group of doctors who redefined a term that long existence in the legal vernacular. Sorry but the fact that you don't like something doesn't make it garbage or immoral. In fact, as I mentioned above it's actually doctors who are the driving force getting these cases into court in the first place. Without them, these cases don't get filed. The medical field needs to address this not keep whining about immoral lawyers. Sorry, but no.

Really, so you are saying that a patient can sign a liability waiver yet you can still be sued? Then what the heck is the point of one and why are they not legally binding?

 

[thesauce]

um I think "common sense" is in the name if the beholder. And that it's the group of doctors who redefined a term that long existence in the legal vernacular. Sorry but the fact that you don't like something doesn't make it garbage or immoral. In fact, as I mentioned above it's actually doctors who are the driving force getting these cases into court in the first place. Without them, these cases don't get filed. The medical field needs to address this not keep whining about immoral lawyers. Sorry, but no.

This is the definition of a straw-man argument. You've posed this as a doctor vs. lawyer debate with the underlying assumption that we all must be on the "doctor's side," when I'm sure that everyone here would agree that the doctors who perpetuate these suits are no better than the plaintiff's attorneys. It's the malpractice industry that has somehow gotten others to believe that "only" 37% of cases without merit and "only" falsely convicting 10% is "good" that is the problem, doctors and lawyers alike.

 

[medicinesux]

I can't begin to tell you how nice it is to go to work without having a BOUNTY on my head! The malpractice environment in medicine nowadays where no one takes personal responsibility for their own health and everyone expects doctors to play God is an outright abomination. I am sorry but I decided to refuse to continue to play my act in that circus! Took my skills and talents elsewhere after packing up and leaving the world of Barnum Bailey. Have never looked back since!

 

[Winged Scapula]

Really, so you are saying that a patient can sign a liability waiver yet you can still be sued? Then what the heck is the point of one and why are they not legally binding?

They can deter some people from filing.

I have not seen anyone actually present patients with a liability waiver; however, an agreement for arbitration before seeking lawsuit is not uncommon in my community.

As for why are they not legally binding: I'll let our attorney answer that (but just bear in mind that even if a patient signs a consent listing the known complications and has one of those complications, they can still sue, stating they "didn't understand" the consent 🙄 ).

 

[Winged Scapula]

um I think "common sense" is in the name if the beholder. And that it's the group of doctors who redefined a term that long existence in the legal vernacular. Sorry but the fact that you don't like something doesn't make it garbage or immoral. In fact, as I mentioned above it's actually doctors who are the driving force getting these cases into court in the first place. Without them, these cases don't get filed. The medical field needs to address this not keep whining about immoral lawyers. Sorry, but no.

While I understand that the term "frivolous" has a legal definition (and perhaps that it was legally defined with help from physicians), I don't think we can discount the relevance of the "common or layperson's" definition.

I would like to see fewer of these cases filed however, I am much more frustrated with physicians who actually make a living as expert witnesses for the plaintiffs.

 

[DrAwsome]

They can deter some people from filing.

I have not seen anyone actually present patients with a liability waiver; however, an agreement for arbitration before seeking lawsuit is not uncommon in my community.

As for why are they not legally binding: I'll let our attorney answer that (but just bear in mind that even if a patient signs a consent listing the known complications and has one of those complications, they can still sue, stating they "didn't understand" the consent 🙄 ).

That's ridiculous though. Seriously? So if i tell you after this procedure you can get an infection and you get one I can still get sued? Then what the heck is the point of informed consent?

 

[DrAwsome]

I can't begin to tell you how nice it is to go to work without having a BOUNTY on my head! The malpractice environment in medicine nowadays where no one takes personal responsibility for their own health and everyone expects doctors to play God is an outright abomination. I am sorry but I decided to refuse to continue to play my act in that circus! Took my skills and talents elsewhere after packing up and leaving the world of Barnum Bailey. Have never looked back since!

What is it that you do now if I can ask?

 

[Winged Scapula]

That's ridiculous though. Seriously? So if i tell you after this procedure you can get an infection and you get one I can still get sued? Then what the heck is the point of informed consent?

You absolutely can be sued for a known or possible complication. I was.

The purpose of informed consent is to show that the patient was given sufficient information to make a decision regarding his or her body and health care, understood the risks and accepted them. It does not preclude patients from filing medical malpractice suits and even if you claim, "I informed them and they signed" they can claim they didn't understand, etc.

I'll let L2D get into more details on that.

 

[Law2Doc]

That's ridiculous though. Seriously? So if i tell you after this procedure you can get an infection and you get one I can still get sued? Then what the heck is the point of informed consent?

You are mixing two tangential but different concepts: informed consent versus a waiver of liability. Informed consent requires you to explain the known risks, and have patients understand the risks and alternatives before a procedure. In theory if a patient knows the risks, consents to a procedure, and ends up with one of the known complications, they will have a higher hurdle to show you deviated from the standard of care. Signing a waiver of liability is a document which says they give up their right to sue you. In neither case does it give the doctor license to be negligent. You can't say this patient knows there's a risk of infection, so I can be cavalier about my sterile field, nor can you say the patient gave up his right to sue me so I don't need to bring my "A" game. For this reason, a waiver of liability is really pretty useless because it doesn't hold up in the face of negligence. Its basically the kind of "legal agreement" you see on the back of ski lift tags. I know if no doctors who use them -- not worth the bother. Informed consent is more of a barb than a shield -- if you fail to explain the procedure and risks that in itself is a deviation of the standard of care. All doctors doing invasive procedures should be using these, but should be aware that they still aren't protected from negligence. Sure there is a known risk of infection, bleeding, stroke, death,etc but that doesn't give the doctor license to make any of these risks greater, so there really isn't anything on such a form that will keep a person alleging negligence in court.

 

[michaelrack]

A lot of the asset protection loopholes have been closed over the years .

Asset protection is harder for docs than other professionals/businesses.When it comes to malpractice, a doc can't hide behind a corporate shield- his personal assets are at risk even if his medical practice is legally organized as a corporation.

 

[docB]

You are mixing two tangential but different concepts: informed consent versus a waiver of liability. Informed consent requires you to explain the known risks, and have patients understand the risks and alternatives before a procedure. In theory if a patient knows the risks, consents to a procedure, and ends up with one of the known complications, they will have a higher hurdle to show you deviated from the standard of care. Signing a waiver of liability is a document which says they give up their right to sue you. In neither case does it give the doctor license to be negligent. You can't say this patient knows there's a risk of infection, so I can be cavalier about my sterile field, nor can you say the patient gave up his right to sue me so I don't need to bring my "A" game. For this reason, a waiver of liability is really pretty useless because it doesn't hold up in the face of negligence. Its basically the kind of "legal agreement" you see on the back of ski lift tags. I know if no doctors who use them -- not worth the bother. Informed consent is more of a barb than a shield -- if you fail to explain the procedure and risks that in itself is a deviation of the standard of care. All doctors doing invasive procedures should be using these, but should be aware that they still aren't protected from negligence. Sure there is a known risk of infection, bleeding, stroke, death,etc but that doesn't give the doctor license to make any of these risks greater, so there really isn't anything on such a form that will keep a person alleging negligence in court.

I certainly agree with your explanation of the definitions. They do differ significantly from what most people in medicine and in the general public think they are. That illustrates one of the problems of the legal profession, they get to make their own definitions and then force the rest of us to live by them. The self serving definition of a "frivolous lawsuit" is a good example.

All of this also serves to keep lawyers employed as there is no way to prevent lawsuits beforehand. You can advise them of the risks and have them sign a document stating they were informed. You can't get a patient to waive their right to sue for negligence so every lawsuit alleges negligence. The definition merely requires a certain wording of the complaint.

 

[Law2Doc]

Asset protection is harder for docs than other professionals/businesses.When it comes to malpractice, a doc can't hide behind a corporate shield- his personal assets are at risk even if his medical practice is legally organized as a corporation.

Well, in the hey day of asset protection, a person wouldn't have to worry about "personal assets" being at risk because through various entity transfers (trusts, partnerships, foreign entities, family members) they would cease to have any personal assets. No need for a corporate shield, there were more bullet proof asset protection vehicles avilable. Sue me all you like -- the money is owned by XYZ trust in Seychelles, with the trust beneficiary being my kids in 20 years, so good luck with that. No way to reach the assets even if i wanted to give them to you, and foreign laws making attachment impossible.

A lot of this is illegal now, through fraudulent conveyance laws and the like. Also the IRS took issue with this after some big players managed to use similar transactions to avoid paying taxes.

 

[SeekerOfTheTree]

Does anyone know the legal environment in MI? I looked it up and found a document that said caps were at 250-500k but I am not sure. Does anyone know where you get more info?

 

[wholeheartedly]

Just to play the devil's advocate, how many of you have observed or are aware of situations where malpractice/negligence did occur and yet there were no repercussions to the physician?

After reading some malpractice stuff on here, I went to our state board website and was rather disturbed by situations where the board had received multiple complaints (from pts, other providers, allied hlth people) and did essentially nothing until a major issue happened.


Do you think having tighter board oversight would result in fewer suits? While people claim patients are in it for a payday, I think a high number are just angry, confused, and frustrated going for the only outlet they feel they can get some sort of recourse with.


Also, I'm perplexed by the assumptions on this site which frequently seem to be (1) if a resident gets in trouble with a program or fired they must have done something to deserve it while strangely ->(2) if a program loses any residents for any unknown reason the program must be malignant (3) if a patient ever complains about a physician, the patient must be lying, money grubbing, any number of other negative things yet I see frequent posts by residents and attendings on here about colleagues not following the standard of care and doing scary stuff 😕

 

[Substance]

It's sad to think that our gov is so spineless and greedy that they won't pass tort reform. I guess I don't get what it is that the gov wants. Do they have an innate hate of doctors?

It's more like they love lawyers. Lawyers have a stronger lobby than the medical lobby, and there are more lawyer politicians than doctor politicians, so the end result is pretty obvious.

 

[docB]

Interesting points. We're definitely off in the realm of saying what we think is going on rather then anything evidence based but here goes...

Do you think having tighter board oversight would result in fewer suits? While people claim patients are in it for a payday, I think a high number are just angry, confused, and frustrated going for the only outlet they feel they can get some sort of recourse with.

I don't think more board actions would result in fewer lawsuits. The first thing anyone is ever told about the med mal system is that it's not about right and wrong. It's purely about money.

When patients or families sue because they are angry, confused or frustrated they are doing the wrong thing. They are supposed to sue because they think that they were injured by someone who did something wrong. If they're confused they shouldn't be suing. the lawsuit isn't supposed to be how you get an explanation.

Even if the board doesn't sanction a physician the investigation is not nothing. Many boards have a policy of investigating every complaint no matter how ill formed. That results in a lot of costs and difficulties for the accused. Also by the nature of things the board is often limited to either pulling someone's license or not. You have to view each board complaint, filed by these same angry, confused people, as a question of "Is this serious enough to remove this doctor's means of making a living?"

Also, I'm perplexed by the assumptions on this site which frequently seem to be (1) if a resident gets in trouble with a program or fired they must have done something to deserve it while strangely ->(2) if a program loses any residents for any unknown reason the program must be malignant (3) if a patient ever complains about a physician, the patient must be lying, money grubbing, any number of other negative things yet I see frequent posts by residents and attendings on here about colleagues not following the standard of care and doing scary stuff 😕

I think people interpret these things based on an biased by their own experiences. I know that my residency was well run so I would assume that anyone who was disciplined dug their own grave. That's flimsy logic on my part but that's the prism most people use. I also think that lots of people leaving a program is a red flag. There may be a good explanation but it will have to be good.

As for patient complaints few of them are for the departures from the "standard of care" that you mention. Most patient complaints are about wait times, pain meds, food, bills and other even less relevant things. In my experience they are not usually lying. They have just misinterpreted something and are still angry.

 

[wholeheartedly]

When patients or families sue because they are angry, confused or frustrated they are doing the wrong thing. They are supposed to sue because they think that they were injured by someone who did something wrong. If they're confused they shouldn't be suing. The lawsuit isn't supposed to be how you get an explanation..

I guess I meant angry, confused, frustrated AND thinking something negligent happened.

I think the board responses are pretty region specific, so that might be part of the issue as well. Regardless, you wind up with good docs getting bogus complaints (like you mentioned bills, wait times, etc) and the bad ones (negligent, or the ones who hand out opiods like candy) don't get intercepted like they should. We don't really have a system that works well for either party. This entire discussioin is still focusing on the patient being in the wrong. Malpractice suits aren't the answer, but negligence does occur and patients do need some resolution options.

But I won't hijack the thread anymore on this tangent beyond thinking that if we were to look for those resolution options it might reduce suits.

 

[docB]

I guess I meant angry, confused, frustrated AND thinking something negligent happened.

I think the board responses are pretty region specific, so that might be part of the issue as well. Regardless, you wind up with good docs getting bogus complaints (like you mentioned bills, wait times, etc) and the bad ones (negligent, or the ones who hand out opiods like candy) don't get intercepted like they should. We don't really have a system that works well for either party. This entire discussioin is still focusing on the patient being in the wrong. Malpractice suits aren't the answer, but negligence does occur and patients do need some resolution options.

I agree. The best fix would be to separate the punishment function from the compensation function. Let the board investigate and punish via license action and fines (that don't go to the patient) and let a different entity figure out what the aggrieved patient really needs or deserves for the action. When the same process is supposed to do both you have inflated accusations and a medical community that is unwilling to really look at its actions.

 

[Law2Doc]

I guess I meant angry, confused, frustrated AND thinking something negligent happened.

I think the board responses are pretty region specific, so that might be part of the issue as well. Regardless, you wind up with good docs getting bogus complaints (like you mentioned bills, wait times, etc) and the bad ones (negligent, or the ones who hand out opiods like candy) don't get intercepted like they should. We don't really have a system that works well for either party. This entire discussioin is still focusing on the patient being in the wrong. Malpractice suits aren't the answer, but negligence does occur and patients do need some resolution options.

But I won't hijack the thread anymore on this tangent beyond thinking that if we were to look for those resolution options it might reduce suits.

In a way we have separate handing of legitimate and less legitimate complaints, because if actual indefensible negligence has occurred, insurers are very quick to settle before this get to court. Most of the time the other kinds of suits get brought are at their heart, cases where there has been a breakdown in communication between the patient and doctor. In general if a patient and doctor have good rapport, the doctor won't get sued. In other cases, if things don't happen as expected he might. As mentioned above, these cases only make it to court if another physician signs an affidavit that the standard of care wasn't met. So doctors aren't powerless, and actually have a LOT of ability to impact the number of lawsuits, both with better lines of communication and by censuring so called "experts" who testify to things that aren't right. These are things that are totally under the doctors control and very little has been done on either of these fronts. Until doctors are willing to do either of these things, it's hard to take complaints about the legal system very seriously. I have a lot of reservations about my former field, but in this respect it really just is the loaded weapon, not the angry upset gunman (patient) wielding it or the guy (expert) egging him on. Until doctors take ownership of this issue and fix the things under their control, it's really pretty hollow argument.

 

[Leukocyte]

Best: practice outside of the US and its lottery mentality population

The Malpractice system is broken. I agree that this seems like THE ONLY solution if one wants to remain practicing medicine. The other solution is to not practice medicine in the U.S.

Malpractice is a the ELEPHANT in the room that every practicing U.S. physician tries to ignore....but it IS still there.

For those who are still in residency: The true ugly reality of the broken malpractice system will only be apparent after one starts practicing as an attending. Practicing medicine in the U.S. as a resident is NOT like practicing medicine as an attending. There is a world of difference...thanks to the broken malpractice system...that wastes millions of heathcare dollars due to the practice of defensive medicine.

 

[docB]

The Malpractice system is broken. I agree that this seems like THE ONLY solution if one wants to remain practicing medicine. The other solution is to not practice medicine in the U.S.

Malpractice is a the ELEPHANT in the room that every practicing U.S. physician tries to ignore....but it IS still there.

For those who are still in residency: The true ugly reality of the broken malpractice system will only be apparent after one starts practicing as an attending. Practicing medicine in the U.S. as a resident is NOT like practicing medicine as an attending. There is a world of difference...thanks to the broken malpractice system...that wastes millions of heathcare dollars due to the practice of defensive medicine.

Not millions. This figure is at least hundreds of billions and possibly more than a trillion.

 

[45408]

You are mixing two tangential but different concepts: informed consent versus a waiver of liability. Informed consent requires you to explain the known risks, and have patients understand the risks and alternatives before a procedure. In theory if a patient knows the risks, consents to a procedure, and ends up with one of the known complications, they will have a higher hurdle to show you deviated from the standard of care. Signing a waiver of liability is a document which says they give up their right to sue you. In neither case does it give the doctor license to be negligent. You can't say this patient knows there's a risk of infection, so I can be cavalier about my sterile field, nor can you say the patient gave up his right to sue me so I don't need to bring my "A" game. For this reason, a waiver of liability is really pretty useless because it doesn't hold up in the face of negligence. Its basically the kind of "legal agreement" you see on the back of ski lift tags. I know if no doctors who use them -- not worth the bother. Informed consent is more of a barb than a shield -- if you fail to explain the procedure and risks that in itself is a deviation of the standard of care. All doctors doing invasive procedures should be using these, but should be aware that they still aren't protected from negligence. Sure there is a known risk of infection, bleeding, stroke, death,etc but that doesn't give the doctor license to make any of these risks greater, so there really isn't anything on such a form that will keep a person alleging negligence in court.

I agree with what you're saying, but I think that patients are probably less likely to sue if they knew of all these possibilities. I think it's fair to say (although someone may disagree) that lawsuits stem from an outcome that deviated from a patient's expectations. I don't think I've heard of any lawsuits in which someone tried a "Hail Mary" operation that failed.

When I'm consenting a patient for an extremely high-risk emergent operation, I don't mince words, and neither do my attendings.

 

[Law2Doc]

I agree with what you're saying, but I think that patients are probably less likely to sue if they knew of all these possibilities. I think it's fair to say (although someone may disagree) that lawsuits stem from an outcome that deviated from a patient's expectations. I don't think I've heard of any lawsuits in which someone tried a "Hail Mary" operation that failed.

When I'm consenting a patient for an extremely high-risk emergent operation, I don't mince words, and neither do my attendings.

just because the patient knows and understands that there's a chance that they will get an infection or that they will throw a clot, etc doesn't mean that when it actually happens they won't consider it an "outcome that deviates from their expectations", and they will still sue you, even though they vaguely remember you having a pre-op conversation with them. So you get sued for this regardless. You are not necessarily going to lose though, if you met the standard of care. However if you didn't inform the patients of the risk, there's liability associated with that, and that's probably appropriate.

As far as hail Mary cases, generally it is spelled out to the family that the patient isn't going to make it otherwise, so the outcome (death) is more or less expected, and lawsuits will be less likely. However I've certainly seen cases where acts of negligence put the patient into the position where a hail Mary procedure was necessary in the first place, and in that instance everyone involved in the patients care might be named in a suit and their actions evaluated as a result. Doesn't mean the surgeon doing the hail Mary attempt will lose (though others at his institution might) but he certainly might get inconvenienced by a lawsuit based on the incident for which he was batting cleanup.

 

[45408]

just because the patient knows and understands that there's a chance that they will get an infection or that they will throw a clot, etc doesn't mean that when it actually happens they won't consider it an "outcome that deviates from their expectations", and they will still sue you, even though they vaguely remember you having a pre-op conversation with them. So you get sued for this regardless. You are not necessarily going to lose though, if you met the standard of care. However if you didn't inform the patients of the risk, there's liability associated with that, and that's probably appropriate.

In patients who are high-risk, this is why it's important to have a conversation that will be more memorable than "vaguely remember a pre-op conversation."

 

[Law2Doc]

In patients who are high-risk, this is why it's important to have a conversation that will be more memorable than "vaguely remember a pre-op conversation."

Sure, but remember that the patient in 90% of cases is so focused on the upcoming procedure, their discomfort, and their outside life concerns, that honestly you won't make a great deal of memorable impact no matter how emphatic you are. It's always a vaguely remembered conversation.