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As promised, here is the reaction I’ve found in the medical blogsophere (at least the part of it that I have been able to discover thus far).
GruntDoc says nice things about Kevin (as he should) but argues the show used a bad example of defensive medicine.
The Medical Quack comes up with the same appraisal in his entry, “Defensive Medicine: Cautious or Costly? – ABCNEWS” And over my med body! agrees with GruntDoc.
White Coat Rants starts what promises to be a series on defensive medicine. He takes the same ground as everyone else, that the ER’s decision was justifiable. He adds a second part disagreeing with the father/physician who wrote a comment to the blog that ate Manhattan–a medical blog I’d never read before. And one who also has the same opinion.
Defensive Medicine: Do I Need This Test?
This very morning, by coincidence, my doctor sent me to have a c/t scan, (cat scan) to help diagnose a minor pain which I keep complaining about but which he can’t figure out. Cat scans, which typically cost several thousand dollars, are often cited as the key example of what’s called defensive medicine: the practice of ordering too many tests or medical procedures “just to be sure” of a diagnosis. The costs of defensive medicine are likely in the ten of billions of dollars, but what are we are patients supposed to do? Should I have questioned such an expensive test? To save (CBS’s) money, should I have asked for an x-ray instead?
Tonight’s story, which is on the nationwide practice of defensive medicine, focuses on the case of a Richmond college student who went to the emergency room with stomach pain and (guess what?) was immediately given two cat scans. [READ THE REST]
Kevin MD was interviewed for this story, and wonders how the footage was used. I won’t be able to catch the program tonight. But I will try to round up the blog reaction later this week.
Feel free to leave your own reaction in the comments or point to anything you’ve found in the web.
PS: Watch here.
I realize this is a week old, which makes it virtually prehistoric in blogosphere years. But I can’t let the story of the year’s largest Massachusetts medical malpractice award go by without commenting. KevinMD asks “Did emotion trump science?” Looking at the story, one can understand why he asks the question. The plaintiff’s lawyer’s claim that they brought their child out to be viewed by the jury because “the family felt strongly that they wanted [jurors] to meet him,” doesn’t sound remotely plausible. Did that really help the Jury assess whether the doctors had been negligent and had caused the child’s cerebral palsy?
I doubt it.
This is the sort of situation that makes trials by medical judges in special medical courts look a lot more sensible. No precedent was set by this decision–no lines of causality established that can be followed in future decisions. All that was established is that a rough labor and a defective baby can mean a huge medmal pay out.
When you consider how many expectant mothers get angry at hospitals for making them get a C-section, you realize that this sort of financial loss does not encourage rational caution and care, but rather CYA defensive medicine.
In light of numerous stories about shortages of doctors, the decision of the Minnesota Supreme Court looks like it will do more harm than good. I can’t say it will change much nationally, since twenty-five other states operate the same way. But it still seems like a step in the wrong direction.
For the first time, the high court recognized that patients can sue hospitals for allegedly granting privileges to doctors with questionable credentials. The unanimous decision adds Minnesota to a list of at least 25 other states that recognize negligent credentialing claims.
In their opinion, justices looked to some of those states when they concluded that hospital peer review committees have a duty to protect patients when they make privileging decisions. Existing peer review confidentiality measures can continue to protect those discussions, but nothing in the law prevents patients from using other outside information to make their cases, the court said. Attorneys say that could mean anything from prior lawsuits and state disciplinary records to divorce papers. [Read the Rest]
Allegedly, we need high medmal awards in order to motivate doctors to do their best and not do bad things to patients. But how many layers of motivation do we need? Weren’t the doctors being sued in this case already plenty motivated not to be sued? Are we supposed to believe that the hospital wasn’t sufficiently motivated?
One might get the impression that there is no real rationale for a lawyer including the hospital except to get at deeper pockets than the doctors have. I’m not the only one who doubts that suing hospitals is going to improve care and prevent medical malpractice:
But in a concurring opinion, Justice G. Barry Anderson was hesitant about the absence of any conflict, given that doctors often are tentative about participating in peer review “aggressively and meaningfully.” Though he agreed that Minnesota law permits patients to sue hospitals for not ensuring doctors’ qualifications, Anderson was “skeptical of the efficacy of negligent credentialing litigation as a method of improving health care.”
How much can frivolous medical malpractice legal expenses actually cost? In the case of Dr. Lawrence Stewart of McComb, Missississippi, an otolaryngologist, he had to fight for a year, hire a lawyer, and pay out $6,100–since he had a $10,000 deductible.
That doesn’t seem very high as medmal expenses go. But the surprise here is that Stewart wasn’t even the right doctor. He was named by mistake. It took him a year just to get himself extricated from the case, which was probably aimed at his deceased father.
The younger Dr. Stewart said he didn’t think twice when he was first served with a lawsuit in 2002. It alleged that he prescribed the nasal spray Stadol to Sarah N. Ratliff and neglected to inform her of the drug’s addictive risks.
“I didn’t really worry about it because I had a pretty ironclad defense: I didn’t even treat this person and never prescribed this drug before,” Dr. Stewart said. “I was pretty sure I was going to win this.”
Dr. Stewart said he had been wrongfully sued before in a flurry of class-action pharmaceutical lawsuits filed just before Mississippi enacted tort reform to curb the mass litigation. In the past, it usually took no more than a phone call or written notice to resolve the mistake. But this time, “neither phone calls, nor letters, nor notarized affidavits to the court helped,” Dr. Stewart said.
Finally, Stewart got freed from the accusations and the court ordered the plaintiff’s attorney to pay his legal fees. But as the headline says, “Lawyer who sued wrong physician won’t pay up.” He is appealing, claiming the doctor should have to absorb the costs of being mistakenly name.
That’s the way Kevin MD put it:
Patients are benefiting, lawyers are seething and scheming…
The story presents an interesting case study in how lawyers are trying to roll back the law that caps medical malpractice damages:
Liebbe wants to interrogate four separate doctors he feels “may” be worth suing on behalf of his client, whose 78 year-old mother died of a heart attack while working in her garden. One of them should have given her a stress test, Liebbe argues.
Thankfully, tort reform prevents this kind of shotgun discovery, which forces doctors to be at the beck and call of any random lawyer who smells an opportunity, rather than that of the patients they’ve committed to serve.
This isn’t to say lawyers like Liebbe still cannot sue. He just needs to find a medical expert to first conclude that his reasoning sounds legitimate on its face before he puts a doctor through the lawsuit ringer. Is that really too much to ask?
Under little media scrutiny, the Texas Supreme Court is currently weighing Liebbe’s arguments. Here’s hoping they keep tort reform in place.
That’s a pretty amazing power lawyers have had and, I guess, want to get back in Texas. I’ve watched enough courtroom dramas to know that there is nothing worse than a judge agreeing with a defense attorney that a prosecutor wants “to go on a fishing expedition.” Yet, these same attorneys, who would balk at this sort of power in the hands of a D.A., think they should have it themselves.
I suspect that when most people think about medmal costs, they think of expensive verdicts. But this story reminds me that there is much more going on. Having to worry about hours taken away by a lawyer fishing for someone to blame would be a real deterrent to becoming a doctor.
An odd thing to have to point out.
RangelMD writes some more about defensive medicine and medical malpractice:
In response to my last post about the prevailing CYA (Cover Your Ass) attitude of many docs in the medical profession, “Disabled” wrote,
“The best defense is a good offense, so accept that CYA is part of the job and do your job . . If you do your job correctly then you have nothing to worry about, right? Did you know that in some states a bartender (whose income is far less than $100K+ /yr) has to CYA because the drunk who refuses to get in a cab and drives and hurts him/herself can sue the bartender?”
I’m sorry but that’s a blatantly off kilter comparison. How exactly does a bartender cover his/her ass and how does such CYA increase the overall price of alcohol? And these types of lawsuits are rare compared to the sheer number of bartenders and the amount of alcohol served in this country.
This all seems fairly much like commonsense to me, but maybe I’m missing something. Read the rest and see what you think. What I thought was strangest was the “interaction” in the comments. Apparently demanding private financial information is considered a skilled response in a medmal discussion in the blogosphere.
And honestly, I’m not positive that I should gripe about this medical malpractice ruling. But Kevin gripes just a bit, and I think I see his point. He writes,
Are physician-patients held to a higher standard?
Apparently yes, according to this malpractice lawsuit
The lawsuit alleges that a doctor cannot be held as responsible for misdiagnosing another doctor if the patient-doctor failed to give information. Normally, the doctor should ask the right questions but when a doctor is a patient he should know enough to produce the information without being asked.
Now I would really like to get some doctors’ opinions about this, but some anecdotal evidence makes me think that this might be a dangerous decision. Not that the verdict was wrong. It may be quite right. But the reasoning virtually makes all doctors their own doctors rather than really being the patients of others. But I don’t think doctors are encouraged to do this. Rather than diagnosing and treating themselves, I would think doctors would be encouraged to seek out someone else who can look at the issues more objectively.
Am I wrong?
So, if we’re telling doctors that they need to submit to the care of other doctors when they are sick, how can we then turn around and say that they are more responsible for any medmal problems? While the decision may be generally right, the specific rationale for the decision, claiming that doctors are responsible for their own health care, makes no sense.
Since I just blogged a medmal story about Kentucky, here’s one from Pennsylvania.
Skuba said reduced reimbursements from the government and insurance companies have taken a toll on the hospital’s resources, including a trust fund that has kept the facility in the black and supported a recent 11,400- square-foot expansion that cost more than $2 million.
Another critical factor is the hospital’s difficulty in attracting and keeping qualified physicians and specialists, Skuba said.
Pennsylvania’s medical malpractice rates have chased specialists away, he said, noting the hospital once had seven orthopedic specialists and now have only two.
So medical malpractice expenses are a factor. Not the only one, but they are a factor.
The Kentucky Post reports, “State facing doctor shortage.” Right now there are 213.5 physicians for every 100,000 people, while the national average is 267.6/100,000. It is interesting to see the report’s list of reasons.
Doctors are retiring earlier.
More doctors are entering administrative medicine rather than treating patients.
The threat of litigation and difficulty of dealing with managed care has affected physician ranks.
The need for more physicians also is growing as the population ages and as more people can afford more care.
“The Centers for Disease Control reports that hospital and doctor visits have surged by 20 percent over the past five years,” the report said.
Some observations. First, notice that there is only one reason offered that explains the shortage. The rest are simply statements about how the shortage is happening. What I mean is this:
Why are doctors retiring earlier? It doesn’t explain anything to say they are doing this. We need to know why they are retiring and why they aren’t being replaced at the same rate as retired doctors were replace in previous years. So likewise:
Why are doctors entering administrative medicine rather than treating patients?
Why isn’t the increased demand translating into more doctors? This bothers me more than anything else. How can the fact that more people can afford more doctors be an explanation as to why there is a shortage? It should work in exactly the opposite way. Likewise, a surge in hospital visits should provide incentive to expand more hospitals.
So in the list, the only real possible cause is this: “The threat of litigation and difficulty of dealing with managed care has affected physician ranks.”
Since this is a medmal blog my first instinct is to latch on to the medical malpractice explanation. And I’m sure that is a factor. But until someone really investigates I can’t be sure if it is any more important than the “managed care” explanation. I wouldn’t be surprised to learn that doctors are effectively becoming subject to price controls and are finding they can’t make it in practice. But, then again, there may be some other factor.
Still, there are plenty of other cases of shortages (mammogram readers, for example) where we have direct evidence of liability worries causing shortages. It is hard to believe that it is not affecting Kentucky.
