The Health Care Bill has passed...

[AOII Angel]

[QUOTE=kddani;1878843]

Point 1- Attorneys are often sued for malpractice.

Yeah, but I can't sue an attorney for suing me frivilously, wasting my time and money when I had nothing to do with a case. Also, you have to get a lawyer to sue the other lawyer...I have a feeling that's kinda like getting a doctor to testify against another doctor!

In thhe case in question, they had enough information to know that I was the resident who had read the CT Brain on the patient after she had coded, but they did NOT sue the anesthesiologists or the ophthalmologists who were present when the patient coded and basically became brain dead. The whole case was ridiculous from the start. Every person listed on the complaint actually helped the patient after the incident and got slapped with the lawsuit for our trouble.

[Kevin]

Originally Posted by AOII Angel

Also, you have to get a lawyer to sue the other lawyer...

I won't do it, but I have a go-to lawyer to refer folks to when I see a legal malpractice claim. She does a pretty good job with those things. I suspect any lawyer probably knows someone who will handle a malpractice claim.. and since it can be malpractice not to advise your client that they might be the victim of malpractice, you better believe I'm making that referral if I think it's a good case. If that happens in a city like OKC's legal community (everyone pretty much knows everyone here), it damn sure happens in larger jurisdictions.

In thhe case in question, they had enough information to know that I was the resident who had read the CT Brain on the patient after she had coded, but they did NOT sue the anesthesiologists or the ophthalmologists who were present when the patient coded and basically became brain dead. The whole case was ridiculous from the start. Every person listed on the complaint actually helped the patient after the incident and got slapped with the lawsuit for our trouble.

Having the information does not mean that they had the time or expertise to properly evaluate that information, nor does it mean that they had all the information. There are just some things which can't be done until the case is at issue.

[AOII Angel]

Originally Posted by Kevin

True, errors are not malpractice unless you violate the applicable standard in your jurisdiction for malpractice. But malpractice does happen. The solution should involve targeting doctors who are repeat offenders for termination of their licenses, the prompt payment of claims which obviously involve malpractice, and a fair and just manner of scheduling compensation for victims so that the respective parties would at least have some sort of legal guidelines in settling claims.

From a lawyer's perspective, it is very difficult to properly evaluate a case before even getting to the first settlement demand. The client comes into your office, tells you her 'tale of woe,' and that's all you have to go on until you submit the case to an expert for evaluation. Often in the meantime, you'll have a deadline or a statute of limitations issue and have to file your case just to avoid that deadline (be it a winner or not, because contrary to your assertion, failure to do so could result in a malpractice case being brought against the attorney).

Compound that with the fact that in jurisdictions like Oklahoma, it costs the attorney (who usually foots the bill because sick/injured/dead people can't usually afford justice) a minimum of $5,000 for an expert's opinion just to file the case. Note that at least around here, we only have one malpractice insurer. That insurer will not insure any doctor who testifies or signs an affidavit against another doctor, so we either have to go out of state or go to a professional 'hired gun.' Getting a real, honest assessment of the case is damn near next to impossible.

As for something being 'frivolous,' while to you, it might appear to be frivolous, the attorney simply can't in all cases properly evaluate the case without first getting something filed and taking depositions and conducting discovery. He can't do that without shelling out some serious coin of his own to do so. So if you mean frivolous as in 'bad faith,' I'll bet that the number of those cases being filed is damn next to nil. But of course, just like with any other tort law, some losing cases will get filed. If the case does make it to trial, however, it cannot be said to be frivolous at all -- there are a lot of mechanisms preventing truly frivolous claims from making it to that stage and I'm convinced they work very well -- sometimes too well.

One of the conclusions of this 2006 study was that ". . .the number of meritorious claims that did not get paid was actually larger than the group of meritless claims that were paid." So who really should have more protections in the legal system? The folks who are killing and maiming through their negligence? Or the folks who are killed and maimed? Right now, clearly, the killers and maimers are better protected and are demanding more protection. I guess money talks.

http://www.hsph.harvard.edu/news/pre...s05102006.html



Oh, absolutely, I agree with you here. The administrative and litigation costs in settling malpractice claims are absurd. Unfortunately, both sides only favor outcomes which clearly stack the deck in their favor. For example, the insurance/physicians side wants to place hard caps on pain and suffering awards -- something which not only is morally objectionable in that it places a monetary value on human life, telling doctors and insurance companies when it's okay just to make a business decision and intentionally kill someone or maim them, it also disproportionately harms the most grievously injured patients by not affording them a proper level of compensation for their injuries.

Some things I'd possibly be in favor of (depending on the setup) would be accelerated discovery schedules, faster court dates, judges with medical expertise who are better equipped to wade through fact-intensive pretrial motions, etc. I had a friend of mine (a doctor) go through exactly the same thing. Didn't cost him a penny of course, just a lot of stress. That's why we have malpractice insurance. Turns out that the case (wasn't even that good a case) was filed by the attorney simply because the statute of limitations was about to expire and he had to get something filed to avoid malpractice on his own part. That stuff happens -- and when you have a client/victim who has twelve doctors on his charts, it's impossible, possibly even malpractice not to name every single one of them without knowing *precisely* what their involvement in the case was... and charts can be wrong.



I think in most cases, they do. In other cases, the client doesn't show up until the statute of limitations is looming and you have to get something filed to cover the bases. Still, in other cases, you really can't start to exclude innocent doctors from the case until you've had an opportunity to conduct discovery. Sometimes, due diligence doesn't happen until after the case gets filed because it simply cannot.

Originally Posted by Kevin

Having the information does not mean that they had the time or expertise to properly evaluate that information, nor does it mean that they had all the information. There are just some things which can't be done until the case is at issue.

I thank you for explaining why this happens. Now, why don't they fix this. Just like with medicine, saying that "It's always been that way." doesn't make it right. The malpractice insurance premiums have driven a lot of physicians out of practice in states like Mississippi and West Virginia. OB/GYN and Neurosurgery can be cost-prohibitory to practice.

Originally Posted by Kevin

I'm not sure that's a bad thing though. Docs wouldn't be doing that if the risk/reward calculus for practicing that sort of medicine didn't come out in their favor. They obviously must know that doing that means that they are operating at the standard of care and that it is more likely to save lives or prevent injuries to patients.

I have to disagree with you here. The use of radiology services has jumped astronomically in the past 5 years with CT imaging increasing more than 60% since I started residency. This has actually decreased physicians' ability to utilize physical diagnosis (hands-on examination) skills which are FREE in exchange for high cost CTs which have a very REAL risk of CANCER! If you look at my PACS system (radiology archival system) there are patients that come to my ER that have had abdominal CTs for abdominal pain every month for 10 months that have NEVER found a single abnormality. That is $30,000 worth of medical imaging to cover an ER doctors butt that has provided to patient with over 1,000 x-rays worth of radiation. Not a good idea. More expensive is not always better!

[Kevin]

Originally Posted by AOII Angel

I thank you for explaining why this happens. Now, why don't they fix this. Just like with medicine, saying that "It's always been that way." doesn't make it right. The malpractice insurance premiums have driven a lot of physicians out of practice in states like Mississippi and West Virginia. OB/GYN and Neurosurgery can be cost-prohibitory to practice.

Trouble is, the only folks really shilling methods of 'fixing things,' are just shilling means to enriching their respective constituencies, not actually fixing anything, and in many cases, making things worse.

Obviously, there must be disincentive built into the system to keep docs from performing open-heart-surgery while tripping on painkillers (it happens). And the 'driving folks out of business' argument just doesn't play well with me. They tried that argument recently in my state, but ignored the fact that while some practices did close, more practices opened in their place, meaning that there was a net-gain in the number of practices opening. It's pure speculation on my part, but I imagine that's the case in Mississippi and West Virginia as well. Unfortunately, the 'tort reform' side of the argument relies a lot on what can objectively be called misinformation or outright falsehood. They don't want an honest answer, they just want to increase their clients' (not doctors, but malpractice insurers) bottom line.

Case in point, take any of the states which have passed major medmal reform legislation, e.g., Texas. Their rates continued to climb in lock-step with the rest of the industry (but of course, the insurers ended up with a lot more cash than before).

Docs, I think, are too quick to blame the legal system for their malpractice insurance rates. They might instead look to the folks who they keep writing those big checks to (hint: not lawyers).

I have to disagree with you here. The use of radiology services has jumped astronomically in the past 5 years with CT imaging increasing more than 60% since I started residency. This has actually decreased physicians' ability to utilize physical diagnosis (hands-on examination) skills which are FREE in exchange for high cost CTs which have a very REAL risk of CANCER! If you look at my PACS system (radiology archival system) there are patients that come to my ER that have had abdominal CTs for abdominal pain every month for 10 months that have NEVER found a single abnormality. That is $30,000 worth of medical imaging to cover an ER doctors butt that has provided to patient with over 1,000 x-rays worth of radiation. Not a good idea. More expensive is not always better!

I think I must have heard a study confirming that on NPR recently. But I don't see any way around that short of some sort of medical tribunal actually putting out standards for that sort of care. While that, absent a statute, probably wouldn't bind a court, part of what goes into winning a medical malpractice case is proving by a preponderance of the evidence (or more depending on the state) that the physician violated the standard of care. If all physicians had some sort of guidelines as to what would and wouldn't violate that standard, maybe they could get away from defensive medicine. I'm not an expert in that field, but something like that would probably have some serious pull if physicians would actually stick to those rules more-less.

What I definitely don't think should happen is that bad doctors get insulated from practicing bad medicine.

[AOII Angel]

Originally Posted by Kevin

What I definitely don't think should happen is that bad doctors get insulated from practicing bad medicine.

I'll agree with you here. Unfortunately, the bad doctors aren't always the ones getting sued. I know some scary cases that would make your hair curl, and I doubt anyone would sue the physician involved. There are many factors into why people sue, and it's rarely the actual malpractice involved. The doctor must have amazing bedside manner (I can't imagine because his interpersonal skills seem non-existent) because nothing seems to stop his parade of poor care. I think what we do need is a set of standards that we are required to follow, but it will never pass until the older generation of doctors stop practicing medicine and the old paternalistic standard is completely abolished. It would also be nice to have more educated people evaluating these cases since determining what meets standard of care is not exactly at the level of the lay public. Otherwise, I am on board with a lot of what you say, Kevin, I am often sickened when blatant malpractice is ignored and physicians continue to practice the same bad medicine over and over again.

But I don't see any way around that short of some sort of medical tribunal actually putting out standards for that sort of care. While that, absent a statute, probably wouldn't bind a court, part of what goes into winning a medical malpractice case is proving by a preponderance of the evidence (or more depending on the state) that the physician violated the standard of care. If all physicians had some sort of guidelines as to what would and wouldn't violate that standard, maybe they could get away from defensive medicine. I'm not an expert in that field, but something like that would probably have some serious pull if physicians would actually stick to those rules more-less.

This is what is wrong with medicine in a lot of ways now days. Medicine is NOT an exact science. When patients come to the ER complaining of cough, fatigue and chills, the ER doctor SHOULD think viral infection, NOT Cancer. Yes, the patient could have lymphoma or leukemia, but these are called Zebra diagnoses. We are not supposed to be chasing after zebras when horses are so much more common. When the patient comes back with the same symptoms a month later, THEN you do the work-up for Cancer. The doctor didn't MISS the diagnosis of cancer. It isn't MALPRACTICE. If we take every single patient with vague symptoms and do multi-million dollar work-ups, we will NEVER decrease the cost of health care in this nation.

[Kevin]

Originally Posted by AOII Angel

This is what is wrong with medicine in a lot of ways now days. Medicine is NOT an exact science. When patients come to the ER complaining of cough, fatigue and chills, the ER doctor SHOULD think viral infection, NOT Cancer. Yes, the patient could have lymphoma or leukemia, but these are called Zebra diagnoses. We are not supposed to be chasing after zebras when horses are so much more common. When the patient comes back with the same symptoms a month later, THEN you do the work-up for Cancer. The doctor didn't MISS the diagnosis of cancer. It isn't MALPRACTICE. If we take every single patient with vague symptoms and do multi-million dollar work-ups, we will NEVER decrease the cost of health care in this nation.

If that's the mentality docs are approaching their craft with, then they really need to get educated on what constitutes malpractice. Missing an obscure diagnosis when more obvious symptoms were presented in an ER setting is almost never going to be malpractice. Doing a CT in that case, or treating anything beyond an acceptable minimum just opens the door to other sorts of medical errors.

Do you think part of this 'defensive medicine' aspect is really that hospitals and certain practices want to conduct as many expensive procedures as possible in order to bill health insurance companies/medicare for more services delivered?

I know that the practice of law is often handled that way -- especially by insurance defense firms. They do an excellent job at billing that file. Most of them bill by the hour, and there's a saying about those guys that you'll never be deposed by an insurance defense attorney. . . because there's never just an insurance defense attorney there. They invariably send 2-3 lawyers (or more) to sit and bill their full hourly rates for listening to another lawyer conduct a deposition... but I digress.

[AOII Angel]

Originally Posted by Kevin

If that's the mentality docs are approaching their craft with, then they really need to get educated on what constitutes malpractice. Missing an obscure diagnosis when more obvious symptoms were presented in an ER setting is almost never going to be malpractice. Doing a CT in that case, or treating anything beyond an acceptable minimum just opens the door to other sorts of medical errors.

Do you think part of this 'defensive medicine' aspect is really that hospitals and certain practices want to conduct as many expensive procedures as possible in order to bill health insurance companies/medicare for more services delivered?

I know that the practice of law is often handled that way -- especially by insurance defense firms. They do an excellent job at billing that file. Most of them bill by the hour, and there's a saying about those guys that you'll never be deposed by an insurance defense attorney. . . because there's never just an insurance defense attorney there. They invariably send 2-3 lawyers (or more) to sit and bill their full hourly rates for listening to another lawyer conduct a deposition... but I digress.

I don't think that physicians are ordering more tests to bill more because THEY don't get to bill more for those tests. It sounds good to lawyers because it works that way for y'all, but it doesn't work that way in medicine. The primary care doctors never see a dime for all of these extra tests. They really do just think they're protecting themselves from being sued. It's more common than you think, too. I've seen it happening at more than one hospital in more than one state, and have friends in other states that have the same experience. Physicians really think that lawyers are out to sue them if they miss anything. It may not be true, but that's the perception.