reforming liability laws

[Ray Zee]

by making it harder to sue for medical malpractice and putting limits on awards. do you not take away someones right to be made whole again. and do you now take away the worry about being incompetent.

in the product world wont big companies go back to the good old days of the ford gas tanks when they would calculate what it would cost to fix the deathly problem, and weigh it in against what the judgements would be for the deaths against them.

would this legislation really benefit the people by lower prices because insurance would go down. or would it be just another give away to business.

[El Barto]

There is a disconnect between the dollar amount needed to make a company take notice, and what it takes to compensate the victim.

Is there a way to hit a company with a $300 million penalty, while only forwarding $2 million to the victim and their lawyers?

Could the rest go to the state insurance fund (to help keep Health insurance rates down) or to the state (as a way to lower general tax rates), so that society benefits from the money, not just the lawyers and super-successful plaintiffs?

Winning a lawsuit should not be like winning the lottery, but neither should a truly guilty defendant get off easy.

[MMMMMM]

You raise some good questions and I don't know the answers.

However it is definitely true that gargantuan malpractice awards are a major factor driving medical costs upwards. Many doctors have actually QUIT practicing medicine because malpractice insurance was taking such a huge percentage of their incomes.

So blame the lawyers maybe, but that still doesn't give us a solution.

[Nepa]

Wouldn't tort reform just line the pockets of the insurance companies and not really reduce doctors insurance rates?

[Utah]

No. The reason being that market competition would drive rates down as costs go down.

[anatta]

Prior or during trial, either side can make a "998 offer" in California. If the jury award is higher than the Plaintiff's offer or lower than the Defense's, the losing side pays the other side's attorney fees and costs.

This is a huge advantage for insurance companies, as they have deep pockets, but payment of such fees for the little guy is ruinous. I filed a bankruptcy for a guy who was hurt very seriously, the insurance company offered him 1 million prior to the verdict, his lawyer advised to refuse, he took the advice, they found for Defense, and he owed about $300,000. The guy was really busted physically and now financially.

You don't see wise looking, soft spoken middle aged black guys doing commercials for the injured. He is on TV everyday shilling for AllState, talking incessantly about insurance fraud. What a brilliant choice for a corporate spokesman, you take the most disadvantaged segment of society and have them represent "the man" in commercials design to influence potential jury pools.

Google Quackenbush and California Insurance Commission. You will see real fraud to the tune of BILLIONS committed by insurance companies and their Republican political whores (massive rip-off of Northridge earthquake homeowners). Where are the TV commercials for that. I have even seen billboards with an 800 number for something like "citizen action group against insurance fraud" like this isn't funded by insurance companies. Joe public doesn't call this number, they just see this ad and if they are on a jury they think "oh yeah, this is a big problem...".

I don't belief that there are that many competent doctors who can't practice because of high insurance costs. This sounds like more propaganda to me.

[Boris]

The problem is that it is too easy for lawyers to convince a stupid jury that a defect exists or a mistake was made, when in fact that is not the case. In complicated cases there should be some sort of scientific review panel to determine if the defending party is at fault. This is not a perfect solution but is a better solution.

Medical malpractice in particular has a more perverse effect than simply raising insurance rates. What happens is that doctors are increasingly unwilling to treat patients with complicated or unusual medical problems.

[andyfox]

"Many doctors have actually QUIT practicing medicine because malpractice insurance was taking such a huge percentage of their incomes."

Do we have any statistics to back this up?

[MMMMMM]

"I don't belief that there are that many competent doctors who can't practice because of high insurance costs. This sounds like more propaganda to me."


There have been news paper articles I have read about this, and a close relative of mine is a doctor. Rates have been rising astronomically. Do some searching or reading and you will see that this is not propaganda.

I'm not saying all doctors are quitting or anything like that, but many have quit to go into other work or businesses because of this excessive burden. We're not talking of rates like 3% of your income; more like up to 20% (or even more?) in some areas and it has been rising unbelievably fast. Malpractice insurance rates in some states have increased by like 50% in the last couple of years. It's really insane. I'm not sure of the rates except that I recall and know it is huge. In Oklahoma, I think I recall a relative telling me that it would cost 10K to insure 80K of income. That's 12.5% and Oklahoma is probably not so lawsuit/award happy as some other states.

Another factor is that coverage terms may have been changed lately and it now costs a lot more to be covered for previous years even after you stop practicing. In other words say you retire, and 5 years later someone files a suit for what you did 5 years ago. You would have to have paid or be paying extra to be covered for past years even when not practicing, or else continue paying for some years even after you stop practicing.

Many people in school are shying away from medicine as a career choice now for this reason, that when they would get out and finally start practicing, they would be crippled as to overcoming their massive student loans by exorbitant malpractice insurance rates which would eat a large slice of their incomes.

PLICO (Physicians' Liability Insurance Company), one of the larger medical malpractice insurers, is still not taking in enough premiums to cover awards and is asking doctors to actually front them money now in some fashion (over and beyond their premiums--and again I forget the exact details, because I am not in the field myself).

I am sure some of my information above from memory is less than fully accurate, but in general that is how things are and the direction they are moving in. Take my post in general terms rather than exact specifics and I won't be misleading you.

If you know any doctors, ask them about it. I would be curious to know what the rates are in the highest and lowest states, and more detail on the way coverage and liability are figured for past years even after one is no longer practicing.

[The Armchair]

Here are a few sources:

CBS (http://www.cbsnews.com/stories/2003/02/03/health/main539094.shtml)

Washington Times (http://www.washtimes.com/business/20030831-102451-9582r.htm)

Some regional paper (http://www.southcoasttoday.com/daily/10-03/10-06-03/a01lo366.htm)

A Florida paper with an interesting work-around (http://www.thejournalnews.com/newsroom/062204/d01a22uninsureddocs.html)

[adios]

I was on a jury in a malpractice case about 13 years ago. Perhaps my perspective is poor since it was 13 years ago. I've said this before but from what I observed the doctors seemed to have a big advantage in Court. There's an old saw that states that doctors don't testify against doctors. From what I saw, as to the quality of the expert witnesses in the case, this saw has some credibility. It was like a scene straight out of the movie, The Verdict. Now some will say it's because the plaintiff had a lousy case but I didn't think so. Also there was a lot of sympathy for the defendent doctor. He had had a long and distinguished career as a doctor and many jurors had a hard time using the term "malpractice" with what his alleged error was. I was convinced he made a mistake and I think that several jurors didn't want to use the term "malpractice." Also there were a few jurors that outright lied when questioned during jury selection. They stated that they had no problem making a big award but when they got behind the closed doors of the jury room they revealed that they had a major problem with making big awards to plaintiffs. Also the judge's instructions were that we could not discuss an award unless we found for the plaintiff. We were a hung jury and when discussions about awards came up as a compromise they were quickly squelched due to the instructions of the judge. I realize we could have ignored the instructions and perhaps we should have.

From your perspective what do you think is driving up insurance rates and medical costs?

[The Armchair]

[ QUOTE ]
by making it harder to sue for medical malpractice and putting limits on awards. do you not take away someones right to be made whole again. and do you now take away the worry about being incompetent.

in the product world wont big companies go back to the good old days of the ford gas tanks when they would calculate what it would cost to fix the deathly problem, and weigh it in against what the judgements would be for the deaths against them.

would this legislation really benefit the people by lower prices because insurance would go down. or would it be just another give away to business.

[/ QUOTE ]

You're falling prey to a canard -- actually, two. First, there'd be only a minimal, if any, cap on punitive damages. You don't have to worry about another "Unsafe At Any Speed" situation, because if there's evidence of wrongdoing at that level, there will be big punitive award. Of course, the standard to allow juries to give punitive awards is pretty high, as it should be, but not impossibly so.

Second, you're assuming that people "cannot be made whole" given caps. No one has proposed that all awards be capped, just "non-economic" damages -- mostly emotional harm and pain and suffering. Medical bills? Paid for -- including long-term care trust funds.

Awards for pain and suffering have become a loophole. Juries are awarding enormous sums here, as they can do so without being overturned by appellate courts (the standard is roughly the same for economic harm). In essence, this gives juries a way to give punative damages to the injured -- it's just under the pretex of "compensatory" damages.

An example, for illustrative purposes? Sure. Let's assume a doctor royally screws up. Your one-day procedure turns into a 3-month ordeal.

Under the current system, the jury could (and most likely would) award you enough money to pay for all the bills associated with the 3-months, including but not limited to medical bills, hospital stays, lost wages, etc. Under the capped system, this would be entirely unchanged.

Under the current system, the jury would be almost certainly unable to award punitive damages, unless there was some circumstance (doctor was drunk, doctor intentionally tried to kill you to mask a mistake he made, etc.) that would make punies appropriate. This, too, would remain unchanged.


Under the current system, the jury could award you $5 billion dollars and a ham sandwich for "pain and suffering" -- compensatory damages. Under the new system, this amount -- and ONLY this amount -- would be capped at $250k.

[MMMMMM]

No, Andy, but my father recently retired from medical practice and he says so, and I've read newspaper articles from time to time supporting this.

If you actually want proof, you're on your own as to finding it.

[andyfox]

.

[Ray Zee]

i too think a fair amout of doctors are changing how they practice. but thats the result of many claims. so this in effect washes out the bad from the good somewhat but not all. those that are especially careful probably will stay in business less fearing claims. those that screw up will get run off and justifiably so. i would rather have fewer good doctors than easy access to quacks. there is a reason why hospitals now require patients to have written on their body what is to be taken out or cut off before the operation.

perhaps we need lawyer reform and not medical damage.

but you can be sure if this kind of legislation goes through, the big winners will not be the doctors or us. it never works that way. the insurance companies will charge more for something else to make up the shortfall in revenue if there is any. and the lawyers will demand more for their cases.

[El Barto]

This article is somewhat on topic:

Edwards Made Almost $39M in 10 Years (http://story.news.yahoo.com/news?tmpl=story&cid=694&ncid=696&e=3&u=/ap/20040903/ap_on_el_pr/edwards_taxes)

[Zeno]

Perhaps we need lawyer, legislature, and insurance reform.

For my reform proposal click here Eat this you scum (http://www.nv.doe.gov/news&pubs/photos&films/Images/photolib/8X10/XX33.JPG)


Le Misanthrope

[GWB]

http://img.photobucket.com/albums/v191/HLBrock/0830.jpg

[ACPlayer]

If the Insurance companies are pushing for these changes it is good for those entitites.

Insurance companies are not in the business of protecting the health of the people.

Insurance companies help fund the people who make the policies.

Out government has got out of the business of trying to protect the interests of the public.

[Utah]

If the Insurance companies are pushing for these changes it is good for those entitites

The ideas of it being good for the insurance companies and it being good for the consumer are not mutually exclusive. It can be good for both.

[stripsqueez]

[ QUOTE ]
perhaps we need lawyer reform and not medical damage

[/ QUOTE ]

i just dont get how lawyers get blamed for huge insurance premium increases - how are the lawyers to blame ? - they are simply instruments exercising the law

you could blame the law - if someone stuffs up when they shouldnt and i suffer a loss as a result it seems a fair thing that the wrongdoer should pay - i do have some issues with how much they should pay - sensible laws say they should return the person suffering the loss back to the position they would of been in if the wrong doing didnt occur - thats a neat concept but whats it worth to compensate someone for the loss of a leg ? - is $100,000 enough or $10,000,000 ? - silly debate really - i dont know how much is enough and the law struggles to come up with clear consistent answers which is an argument for statutory change - being a bleeding heart i think society should be able to afford a heap

as a lawyer i am aware that before the recent "insurance crisis" the law of tort was in fact contracting in this country so the often heard claims that you can sue for anything and get a windfall are really the stuff of media beat-up and urban legend

i blame the middle men - i would guess that maybe 3% of an insurance companies employees are employed to process claims - presumably the rest are into marketing, investment and stuff that has little to do with protecting people from catastrophic loss

stripsqueez - chickenhawk

[Stu Pidasso]

Financial Data: According to the National Underwriter Data Services, the medical malpractice combined ratio, a measure of profitability, was 137.5 in 2003, the latest data available. This means that for every medical malpractice premium dollar collected, insurers have been paying out almost 1.38 dollars in claims and expenses. The combined ratio for medical malpractice has barely changed since 2002. Losses and loss adjustment expenses rose slightly in 2003 from the previous year but premiums rose 18 percent for the period. For all lines of insurance, the combined ratio was 99.5 in 2003 and 106.8 in 2002.


According to data from the National Association of Insurance Commissioners, medical malpractice insurers’ return on net worth was a negative 7.4 percent in 2002, down from a negative 4.7 percent in 2001. Results have deteriorated steadily from 1998 when the rate of return was 7.6. Results in 2002 were worst in the following states: Arkansas, Nevada, Montana, Mississippi, Illinois, and Missouri, with return on net worth ranging from minus 33.7 percent in Arkansas to minus 24.4 percent in Missouri.


Claims: The cost and frequency of claims continue to rise. A study by Aon Risk Services, released at the beginning of 2004, finds that medical malpractice claims costs have increased at a steady 9.7 percent since 2000 and are likely to rise at the same rate in 2004. Frequency, or the number of claims, is growing at 3 percent a year; claim severity (the dollar amount) is increasing 6.5 percent annually. Hospital liability claim costs for 2004 are expected to reach almost $150,000 per claim, compared with $79,000 per claim in 1996. The average claim against a physician is expected to reach $178,000, compared with $120,000 in 1996.

There's lots more here (http://www.iii.org/media/hottopics/insurance/medicalmal/)

Stu

[ACPlayer]

It can be, but if it is then that is just happenstance. The insurance companies are not in the business of worrying about wbether it is or it is not good for the people.

My point is that in politics today, very few are worrying about whether some particular legislation is the best public policy.

If they were, they would considering systemic changes to health care in this country, driven by public policy requirements, rather than concentrating on one small part of the puzzle.

[scalf]

/images/graemlins/blush.gif disclosure..i am a physician..

outsiders do not understand what a "game"; and actually a "business unto itself" malpractice has become...

but rather than go thru details; i ask all of you: Why are physicians; of all professionals, the ones that are sued the most???

let me ask you, those who went to college; were the pre-meds a group of screw-offs; or were they in general the kinda person who was studying late in the library (a nerd type)??

how is it that a person graduates from a top ivy league school under grad with honours; goes to a top med school for 4 years; goes thru intership, 5 years residency, probably a fellowship; then has to pay 200,00 for malpractice coverage, just getting started; my question is: what is it about medicine that attracts such incompetent people; this must be true; for the same people going to same undergrad schools; with same grades, who go to law school, business school, engineering...these people are also making critical decisions which involve huge sums of money and public health....

so my question is???

why are doctors sues so much more than other professionals??

i am suffering from cognitive dissonance; it just does not make sense to me..

gl

/images/graemlins/confused.gif /images/graemlins/diamond.gif

[ACPlayer]

Because they have more money (and access to more money) than plumbers, electricians, etc.

Because their decisions effect peoples lives rather than pocket books and extract more sympathy from other people scared about their lives.

[Ray Zee]

because when a doctor screws up he does big time damage. and much of which can never be fixed for any amout of money. most docs are good and have great intentions. and never screw up enough to be sued. but it is the ones that are tired of the profession and dont keep up with new tech. and those that come to an operation drunk or on pills. or get complacient and dont pay attention and make a mistake.
when you get into a profession that can have such a big effect on someone you owe it to every patient to be on top of your game. if you arent you must make it clear to those involved and then let them decide if they want a tired or drunk doc operating on them. if you dont get a good lawyer.

[The Armchair]

[ QUOTE ]
most docs are good and have great intentions. and never screw up enough to be sued.

[/ QUOTE ]

That is so far from the truth that even the world's most powerful telescope would fail to find it. The fact is that medicine is more art than science, and things go wrong for all sorts of reasons, most of them beyond our knowledge.

Think about all the things we cannot do right now, medically -- cure the common cold, explain why cancer develops, determine why we have consciousness, etc. Now imagine being a doctor, with a living, breathing, sometimes conscious human being, its innards open for your view and tampering. You expect perfection, even if the doctor's performance is textbook in quality? That's silly.

Let's face it, the human body is one of the most ridiculously complicated machines on the planet, and even its best mechanic is ill-equipped. The body is not as simple as a car (and NASCAR mechanics -- the best in the world -- regularly make mistakes), for many reasons. Want some? Good:

1) Each one is unique.
2) There are no real blueprints.
3) We aren't entirely sure what individual parts are for.
4) We didn't build the prototype, or, in a manufacturing sense, even the current models.

One cannot expect even the world's most gifted, knowledgable, and responsible doctor to not make a horrendous screw up.

[rigoletto]

[ QUOTE ]
by making it harder to sue for medical malpractice and putting limits on awards. do you not take away someones right to be made whole again. and do you now take away the worry about being incompetent.

in the product world wont big companies go back to the good old days of the ford gas tanks when they would calculate what it would cost to fix the deathly problem, and weigh it in against what the judgements would be for the deaths against them.

would this legislation really benefit the people by lower prices because insurance would go down. or would it be just another give away to business.

[/ QUOTE ]

Why not change the system instead. I know this is not going to sit well with you, but most West European contries has excellent health care systems with half the cost of the US, because it's socialized.

When I go to the doctor here (I'm from Denmark and moved here in the spring) all sorts of unnessecary tests are being made driving up the cost. This happens for two reasons: fear of liability and because the insurance pay for it anyway.

In Washing DC there are 8 CAT-scans, in Toronto only 2 for appr. the same size population. Studies show that only 2 is needed, but in DC the major health care providers are competing, so they all have to invest heavily in equipment. At the same time everybody in Toronto is cover for health which is not true for Toronto.

In Denmark there is a system of compensation to people exposed to doctors errors. They get compensated EVEN IF the doctor is held blameless. The review of the doctors action is seperate from the question of patient compensation and is made by a panel appointed by the authorities. Doctors can be put on probation and have their license revoked.

[Ray Zee]

iam taliking about malparactice screwing up. reread what i said please. of course all doctors will make mistakes in their careers sometime. but if they make a screw up because of negligence then thats what i am referring to. if you accept that to be okay you are off.

[Ray Zee]

i love the idea of everyone having some kind of medical coverage. problem is what happens is that doctors arent kept on their toes through being able to make huge amounts of money. and having the risk of being sued for huge amounts of money.
by taking these away you get mediocre care from less qualified doctors. that may be why the rich from all those countries fly here for major problems.
when i was in austria i had a tooth ache. the people all told me that they go to private doctors as the ones that are free for them are really bad and you tend to wait a long time for care.
its like in our country people that have served in the armed forces can get free care at veterans hospitals. but usually only those with little money will go there. is that true veterans. would you go there for a major operation if you could afford a private one.

[The Armchair]

I read what you said -- but you don't understand that "negligence" is basically a meaningless term, especially in med mal. We're in a strict liability world, now.

[scalf]

/images/graemlins/blush.gif most malpractice cases are not really clearcut...they have a professional "forensic
' physician" who makes huge sums going around saying a particular doctor did not follow reasonable medical practice...and as a result damage was done...this is all that is needed (along with a horrible happening; i.e. blame the doctor for whatever happened) and huge sums of money change hands...

a lot of these cases are hotly debated by physicians..to expect a jury of consumers..that is not a trial by peers (for a doctor)...the idea of payments made to consumers who get poor results from the medical system getting compensated from a pool; then the system determinimg who was at fault...i.e. a panel of physicians who determine if a doctor acted correctly..

but hey lawyers take out 40-60 % of the money that victims are awarded...think about that..victims could get the same amount of awards...the system would save billions; there would be real analysis of physician performance...


but ray, what do you care...what if someone slipped on one of your rental properties...an expert witness came in and stated you did not have the correct guardrails on a stairstep; and lost all your money and net worth because of your negligence and lack of concern..you laff ray..hey it could happen to you...then maybe you'd want a just system..

finally ray, we have had the tort system for years....if it is working so gr8; why do we see continuing lawsuits; and increased awards...shouldn't this have prevented all these "mistakes"???

naw, the lawyers suck off so much money...it is just another tax on us all...

ray; i actually do wish that you would get sued for negligence; for example someone slipping on your property...the lawyer would ask you: "mr. zee; could this have been prevented with more safety measures??" and of course the answer is yes...after the fact; anything can be prevented; if you had known what was going to happen...

so yoiu would not be so arrogant zee; and the simple truth is: this could happen to you!!!

gl

/images/graemlins/smirk.gif /images/graemlins/club.gif

[Stu Pidasso]

[ QUOTE ]
its like in our country people that have served in the armed forces can get free care at veterans hospitals. but usually only those with little money will go there. is that true veterans. would you go there for a major operation if you could afford a private one.

[/ QUOTE ]

In my professional experience, I can say the overwhelming majority of vets hate the VA. However, that does not necessarily mean the overwhelming majority of vets thought they were getting poor care at the VA. Some Vets thought the care at the VA was absolutely fantastic, Some thought the care they got at the VA was absolutely horrendous. It mostly depended on weather the Vet liked the individual physcian he/she was assigned too and weather they were satisfied with the access they had to that physcian.

Vets often have services at the VA that they could recieve elsewhere and at minimal or no cost(because they are covered under another federal medical entitlement and/or private insurance). I have also seen Vets get care at the VA when it would have cost them less to get it elsewhere.

Personally, I would rather get private care than have care at the VA or the Military.

Stu

[rigoletto]

[ QUOTE ]
i love the idea of everyone having some kind of medical coverage. problem is what happens is that doctors arent kept on their toes through being able to make huge amounts of money. and having the risk of being sued for huge amounts of money.
by taking these away you get mediocre care from less qualified doctors. that may be why the rich from all those countries fly here for major problems.
when i was in austria i had a tooth ache. the people all told me that they go to private doctors as the ones that are free for them are really bad and you tend to wait a long time for care.
its like in our country people that have served in the armed forces can get free care at veterans hospitals. but usually only those with little money will go there. is that true veterans. would you go there for a major operation if you could afford a private one.

[/ QUOTE ]

Ray, I'm glad to say that your assesment is simply not true. I don't know about Austria, but in Scandinavia and Germany (the countries I'm most familiar with) health care in general is of a very high quality. There are a few (two or three) private hospitals in Denmark. They are very small and their major income is taking care of overflow from the public system (paid by the public insurance) and for people who don't want to wait say 2-3 months to get their sports knee injury fixed (in the public system, you sometimes have to wait when it comes to non critical procedures). Nobody goes to private hospitals for better quality. All studies suggest that public health care in Denmark is of the highest quality and they actually recently found that when it came to serious stuff like heart surgery the public hospitals where superior to any private hospitals in all of Scandinavia.

I'll grant you that in a few very specialized areas there are doctors superior to those in fx. Denmark. But this is a function of size rather than quality. In fact the danish health care system does pay for your treatment overseas if the is no treatment avaliable in Denmark.

As I explained in my previous post there is a system in place to keep doctors on their toes in Denmark. Health care is also under constant scrutiny from the media.

As far as I can tell the reason for having private health care in this country is more ideological than anything else. There is a firm belief in competition as the best way of developing the best service. The truth is that the organization of health care in this country is so complicated that the ordinary consumer has no influence on the market. Besides competition is not the best for everything. If your child is sick, are you then going to bargain for the best price.

[Matt Flynn]

ray i wrote a long reply but don't feel like getting my name splashed all over the internet for saying what needs to be said. if everyone understood what was done to them because of litigation, they would pass tort reform tomorrow. it's not just the unnecessary blood tests and ct scans.

i'll give one example. john edwards made a lot of his $48 million suing obstetricians for not doing c-sections in time to prevent cerebral palsy and mental retardation. the c-section rate varies widely from state to state. the cerebral palsy and mental retardation rate does not. reality: more c-sections don't prevent cerebral palsy or mental retardation. but that medical fact doesn't matter. the medicolegal fact that you can get sued and bankrupted if you don't do the c-section matters very much indeed. it shifts all the doctors' threshold for doing the operation. then, because everyone now does them sooner, that becomes the new "standard of care." but it's a medicolegal standard, not a medical one. so when your sister or daughter or you get that unnecessary operation, you can thank the trial lawyers.

there are hundreds of such examples. vast numbers of lab tests, CT scans, biopsies and so on are done solely because of trial lawyers. it's such a pervasive and insidious influence that many - if not most - doctors don't even realize that they're doing the tests without a sound medico-epidemiologic basis.

and to dispel a few myths:

1. doctors DO NOT profit from the extra tests. the ordering physician in general does not profit at all from the extra tests. the lab and radiology folks do. docs cannot own those labs in most cases due to strong federal laws. in the overwhelming majority of the cases, there's no financial incentive to order the tests.

2. malpractice litigation DOES NOT weed out bad doctors. can you give any proof of your claim? the north carolina medical board suspended or revoked 24 licenses last quarter. almost all of those docs had never been sued.

3. doctors DO police their own. have you ever read a quarterly report from any state medical board? feel free to google north carolina's. i assure you they are serious.

take me ray. my academic credentials are as good as they get, and i practice in a low-risk specialty. yet i constantly think about litigation and adjust my practice and my approach to patients because of it. i have to. the insurance company lowered my limits of coverage to $1 million per event. anything more than that is on me. i've never been sued: they did it to all doctors in my specialty in north carolina. all it takes is one crazy jury and i'm bankrupt, plus they can garnish my wages for the next ten years. i'm very good at what i do, but it doesn't matter. my ass is hanging in the breeze just for showing up to work.

because of various side projects i am working on, there's a reasonable chance i will become wealthy in the next ten years. if i do, i will essentially have to give up the practice of medicine. or rather, it would be financially stupid for me to keep practicing because of the liability. what about all the kids i see for free? what about the fact that the care i provide is in many instances a cut above what you would get elsewhere? it doesn't matter.

and the argument that when the stakes are high you have to step up each time fails to recognize that humans cannot be perfect, and that any decision can be quarterbacked afterwards.

suppose, for example, that poker was subjected to the same standard as doctors are. you, ray zee, are playing at lucky chances with a $6K+ stack in front of you that represents your surgical patient. you are a world class physician. when they come to me for a rec, i point to you and say you're the one i'd have cut on me.

then you go and play the AKs hand versus Marcus and the big guy. first you call preflop and call a small raise with AKs. then you call the flop. in each case, you and i both know you made the better decision, but the community of "doctors" (other poker players) in general didn't get the plays. look at the 2+2 posts if you want. so now when your patient dies (you lose the pot), the "expert" witness stands there and says the standard of care is for you to raise preflop and then to raise on the flop. you've made two "big" errors that aren't errors at all. but that's not what the jury will think.

then comes the turn. you check it through to Marcus and he bets $4K or so with $800 behind. you have the nut flush draw and AK overcards with a jack-high board. big guy calls and you CALL! there is a $17,000 pot, and you fail to force Marcus to fold when he's got six outs to beat you. your rationale is Marcus may bluff big guy off a pair. yet there is no pair that the big guy can have that he would fold for $800 more. if he faded all that action with a pocker pair less than jacks, he will certainly fade the last $800. if he has the jack with the flush draw (the jack was the nonsuited flop card for those of you tuning in late), he would also be crazy to fold for $800 getting over 20:1. and in any case, giving Marcus six outs at a $17,000 pot overwhelms the slim chance/beneft of getting big guy to fold a jack. so you not only made two "mistakes" that weren't mistakes, you then failed to make an "obvious" move that cost you the pot. suppose that pot were open heart surgery. the equivalent is you were worried about brain survival so you took your patient off bypass a little earlier in the heart operation than was typical. you are a world class surgeon and you made a call you felt was right even though it goes against the medical grain. your patient died because the first set of sutures broke and he bled out 2 liters before you could restart bypass. he stroked, had a lingering postoperative course, and died 2 weeks later. your patient died because you made a mistake. you are world class and yet you would be bankrupted by that lawsuit. the stacks were high ray. you should've been better.

and don't forget, you will still have the right to play poker after you lose the lawsuit, but 30% of your winnings will go to the trial lawyer and his client for 10 years.

suppose instead the hand had happened to another doc you knew. now when you're in surgery you never take patients off bypass early because of the risk. over the course of the next 100 operations the situation comes up seven times. in each case, the risk to the patient of death is 6 outs (1 in 7) and the risk of serious brain damage is 1 in 2.5. the correct play is to take the guy off bypass early. but you won't do that, because the medicolegal "standard of care" is to leave the patient on bypass. your luck is slightly bad and you've got three semi-vegetables instead of 1 death with lawsuit. essentially, if you are good enough to understand, you have traded 1.5 brains for your financial safety. are you then evil ray? or is that just the way it has to be and screw the patient?

i'll leave you with a closing thought. one of the great achievements of medicine has been the lowering of the childbirth mortality rate for moms and babies. obstetrics saves thousands of lives every year. the average obstetrician in 1996 made $240,000 and paid $32,000 in medical malpractice insurance. the average obstetrcian now pays about $90,000 in malpractice costs. in many states it's over $130,000. meanwhile the average reimbursement for delivering a baby has gone done 15%. you do the math. why would any obstetrician in a high-malpractice state continue doing deliveries? the answer is they don't. in new york now there are seven entire counties that have no docs to deliver babies. when your grandchild dies of a preventable problem because your daughter had a midwife or a nurse instead of an obstetrician, you will think differently about medical malpractice. but that's not why you should be for tort reform.

and by the way, limits on jury awards are crap. what we need are professional juries, standards for bringing a lawsuit, stated fair compensation for various injuries, limits on lawyer compensation, and iron clad rules defending doctors against lawsuits brought for rare side effects of drugs and surgeries when those drugs and surgeries are the standard of care.

to give an example of that last, a derm i know gave a patient short-term steroids for moderate poison ivy. that's the standard of care plain and simple. his patient had a very rare side effect of losing part of his hip bone. the patient sued, saying if he had known he was going to lose his hip bone he would never have taken the medicine. well no [censored]. the doc lost. there is no defense against that ray. the benefits of giving steroids there grossly outweight the risk of severe injury, but when the rare very bad event happens, the juries often find for the plaintiff. there is no way for a doctor to defend against that. the system is broken.

matt

[Matt Flynn]

any doctor who came to an operation drunk would lose his license. pills can be another matter depending on the substance, but it's taken very seriously by the north carolina medical board at least. you would, at a minimum, lose the right to practice medicine for a while, have to attend rehab, have to be supervised when you returned, and have to pee in a cup regularly.

as for being tired, i had to laugh. how many docs wake up at three am on a given night becuase of an anxiety dream about a patient or situation? a lot. are those that can't get back to sleep then evil? kind of a self-fulfilling prophecy.

and what about surgical residency training? if residents couldn't operate tired there would be no residency programs.

matt

[nolanfan34]

Great post Matt.

I work in state government, where we're trying to pass tort reform on the state level. Frankly, the trial lawyer lobby is so powerful, it kills most legislation that would do anything to fix the system. The chair of the House committee that deals with this issue is a lawyer, and many, many reform bills that go to that committee are DOA.

From what I've seen, the docs are generally flexible to a number of solutions. But the other side refuses to consider anything that caps non-economic damages or lowers or creates a fixed rate for attorney fees. Period.

Washington, especially rural Eastern Washington, now has many counties without OBGYN's, like Matt was talking about. Their insurance rates are just through the roof.

It's bad enough in Washington that the doctors in this state were quoted saying they were thinking about not treating trial lawyers or their families. Obviously this is an exaggeration, but it shows the level of frustration about the current system.

[Ray Zee]

scalf, i am not saying that i like the system of sueing. what i am saying is that putting caps and regualting lawsuits is not the answer as all it does is help others than the patients. i do believe the lawyers need some limits put on their fees and what they do. but that needs to be done by judges. not politicians with new laws. same with the doctor suits.
i realize it can happen to me as well as you. but i dont want the politicain to decide these matters. and by fearing a suit you bet i do all i can to keep current with prudent practices. that is what i am talking about. sorry i am coming across wrong.

[Ray Zee]

rigoleto,

if it works fine in denmark, that may be a good system you have there. whether it would work here i do not know. i still like the idea of choosing my own doctor and when i get to see him. but that is just me.

the worst part of our system is that the rich can afford it, the poor, vets, and govt. workers all get it free. and the hard working middle class cant afford it.

[Ray Zee]

matt, except for my poker hand i agree with you here. i guess everyone thinks i support suing doctors. i dont. i only support the suing and leaving large amounts of risk for them and anyone who is grossly negligent. reforming how trials go and what juries are supposed to do is another matter. and i do find it terrible what happens to people that make small mistakes and find themselves sued for all they got. or doctors in situations like you discribed. maybe they should be sued and maybe not. but that is what a judge is supposed to decide before the case can proceed. and a jury needs to be practical if that is the right word in its awards. we need jury reform and a better system of paying lawyers than giving them 50% of what they win. but we also need to know when we walk into that doctors office that he is fully competent to do his work. i dont know how to insure that. i do not belive in the industry police itself stuff. i have never seen that work.
the system isnt broken. it never was implemented right. and as long as special interests are allowed to run our country it will never be.

[Ray Zee]

imo, this turned out to be a really great thread. i got blasted from both sides--two doctors and a lawyer. so who knows. but all the posts really made me think about some different perspectives. and of course some info i didnt know. my position is still that if you are grossly negligent you should be punished severly. the amount i dont know. but certainly punishing people who make mistakes only that are mistakes after the fact isnt right. everyone agrees on that i hope.

[Matt Flynn]

makes sense to me ray (except for the hand, but that's why i keep the day job). everyone wants to be safe. there is some encouragement there. medical boards are far more stringent now. also, slowly we are moving towards mandatory recertification where every doctor has to retake board exams every 7-9 years. in dermatology it's open book and only required of those graduating in the last few years. soon it will be a proctored exam like the regular boards. that will help weed out the 007's and encourage studying.

my rec would be stringent requirements in residency requiring faculty members in a program to sign off on competency before graduation, and the same in medical school. none of that, though, can defend against honest error.

too bad it's come to this.

matt

[MMMMMM]

I agree we need the option of lawsuits, but what is throwing the system out of whack is truly astronomical awards for things like pain and suffering, or punitive damages.

I'm not saying such additional awards shouldn't exist, but if someone gets compensated say $1 million for actual damages should they get an additional $4 million on top of that for pain and suffering. How about an additional $10 million or $20 million or whatever. At some point the numbers become so huge that it imbalances the whole system and that is what has happened. Why shouldn't a sympathetic jury, faced with an "expert" witness, a sympathetic victim, and a deep-pocketed insurer, award them say an extra $50 million? What are the insurance companies and doctors supposed to do? A handful of astronomical awards have wreaked havoc on the medical profession and the insurance industry. If there is absolutely no cap on damages for pain and suffering or punitive damages, the current trend extrapolated might potentially bankrupt the industry.

Another problem is the threat of such huge malpractice awards makes plaintiffs and lawyers sue-happy because large settlements are easily obtainable from the sued because the dangers of going to trial are potentially so devastating.

I intuitively think the $250,000 tort reform cap proposed for pain and suffering compensatory damages is probably too low. Maybe pain and suffering awards should be capped at the amount of actual damages; e.g., if it is decided that actual damages would be $250, cap the pain and suffering at an additional $250K, and any punitive damages at $250K also. A million dollars in actual damages would be capped at $1M +$1M + $1M. Just taking a guess at some possible solutions here--maybe what I am suggesting would be impractical for some reason--I'm not an industry insider.

[Ray Zee]

maybe as boris said we need someone other than a jury of working peole to determine the size of awards. remember back before the big awards were in vogue. the big companies would leave dangerous products on the market if they thought the lawsuits would be less than the profits it generated. that practice is more of what i started this thread about. i mentioned the exploding gas tanks. that i one of the ones most people remember. by limiting awards there is no incentive for companies to make safer products or recall unsafe ones. some have suggested that the large punitive award goes into a fund rather than to the plantiff and lawyer. that might be a working situation. i lean towrd judges taking more responsibility for their courts. throwing out frivolous suits and adjusting awards that are too large. and not letting lawyers from either side cloud issues for juriors that may not even understand how the system works.