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I thought this blog entry had a particularly compelling way of illustrating the problems of liability in today’s legal climate.
Take a look at any lawnmower you buy in the U.S.
What do you see on it?
Every one of them has a stupid sticker on it telling you not to put your hands and feet under that sucker while it’s running. Do we really need that? Is there really any benefit from that? Is anyone who is so stupid that they would put their hands and feet under a running mower, actually going to read such a label?
Of course not. That label is there for one reason and one reason only. It is there because the company making that lawnmower is scarred to death of being sued. I have no doubt in my mind that the genesis of this was some idiot losing a finger or toe at some point in the past and then suing a lawnmower company.
The writer goes on to talk about how the quick release lever for the bicycle fork and front wheel has also been rendered useless due to liability concerns.
It is easy to generate sympathy for unfettered liability since there are real victimizations that happen and such victims need to be protected by the courts. But that truth doesn’t change the fact that our legal culture is often not rational about liability. The evidence is all around us.
Even in lawnmowers and bicycle forks.
hat tip: KevinMD
Maybe the connection is defensive medicine or maybe there are something about the expectations that seem relevant to medical malpractice, or maybe I’m just being too imaginative. But this jumped out at me:
I explain exactly how this is a waste of an ambulance, especially as how the hospital is 800 yards away from the woman’s address. I suggest that a taxi would have been more appropriate. I could explain how people who are actually ill are now waiting for an ambulance while she gets a free ride to hospital. I could refuse to take her.
Then I get a complaint, then I get fired.
The writer, not being stupid, doesn’t do any of the things described above and so getst to keep his job. And he actually makes the defensive medicine connection explicit.
The problem is this, the people up in Control aren’t allowed to use the 3lb of grey squishy stuff nestled between their ears to determine how important a call is. They have to mindlessly follow a computer script, if they deviate from the script they’ll miss out on any chances for promotion.
While the computer script is useful it’s a real shame that our call-takers can’t use their common sense. It’s why we end up going to people who ‘aren’t breathing’, yet are able to make a 999 call.
And all because the computer system we use has never been sued.
I think the overarching medical malpractice point is that it demonstrates unrealistic expectations. Those expectations certainly could be affecting what sort of medical malpractice cases are allowed and how much damages are assessed for. In fact, I can’t help but suspect that one side effect of “defensive medicine” is that it confirms those unrealistic expectations and trains patients to go look for a lawyer whenever they are not met.
From an Attorney Personal Injury blog we get Nevada: How is that Medical Malpractice Cap Working?
Nevada, the bloggers point out, has put a $350,000 cap on compensation for pain and suffering. They think recent events show how wrong this is:
A hepatitis C outbreak linked to unsanitary syringe use at a Las Vegas clinic (Endoscopy Center of Southern Nevada) sickened six people and put 40,000 at risk has changed people’s thinking.
Dr. Dipak Desai is under investigation by county, state and federal agencies following the discovery of a hepatitis C outbreak linked to unsafe syringe use at his practice, Endoscopy Center of Southern Nevada. He’s accused of ordering nurses at the center to rely on the unsafe procedure of reusing syringes and single-use medication vials on multiple patients. As a result of the problems uncovered at the Endoscopy Center of Southern Nevada, state health officials are inspecting all of the state’s 50 surgical centers. So far, they’ve uncovered unsafe infection control practices at more than half a dozen other clinics across the state.
Reading thus far, I wasn’t sure what their point was. Do they think that anyone who would engage in such behavior would have been dissuaded by the prospect of more losses in court to offset pain and suffering? If the doctor is guilty of what he has been accused of doing, then I expect his behavior is simply impervious to threats of future losses. And if he is guilty it looks likely to me that criminal charges will radically end his lifestyle.
But the blog entry goes on to list the symptoms of Hepatitis C, an incurable disease, and ask, “Who wants to trade their long-term health for these daily medical problems for $350,000?” Too true. But what about the $350k plus all medical bills, including resulting complications, as well as compensation for lost revenue? Maybe the blog would still be persuasive to you regardless, but I find it interesting that nothing is said about other ways in which a jury can reward a plaintiff in this situation. No one would walk away with only $350,000. They would get a lot more.
Here is a report that a medical malpractice attorney is suing a “medical expert” because he changed his testimony after being confronted by more evidence than he had at first.
supposedly the expert committed (1) professional malpractice, (2) fraud, (3) negligent misrepresentation, (4) breach of fiduciary duty, (5) breach of contract, (6) breach of the implied covenant of good faith and fair dealing, and (7) negligent infliction of emotional distress.
Dr. Swerdlow, the expert witness in this case was bearing witness against a surgeon for allegedly not meeting the proper standards of care and thus causing a death. However, he had not read the surgeon’s own deposition. When he was challenged for this by the defense, he conceded he should have read it before making a judgment.
Swerdlow then did what he believed was eminently reasonable. He asked for the defendant’s side of the story; namely the surgeon’s deposition. He read it. Then he wrote an addendum addressed to all attorneys stating now that he had read the entire record, he did NOT believe the treatment rendered was below the standard of care.
As a result, the case was dismissed. So the plaintiff’s lawyer now believes he has the right to sue.
If he wins his lawsuit, it will pretty much be an official admission that expert witnesses are not really experts at anything except making the agenda of the lawyer who hired him look plausible to a jury. But the only reason these experts are plausible is to the extent that people belive them to be giving their honest opinion.
If an “expert” can be penalized for changing his mind when confronted with new evidence, then his testimony is worthless.
A Tulsa-based consumer group says many Oklahoma nursing homes appear to be operating without malpractice insurance.Hugh M. Robert, executive director of the Oklahoma Center for Consumer & Patient Safety, says the lack of insurance often leaves families with no legal recourse if a nursing home patient suffers serious neglect or abuse.Robert told a Capitol news conference some nursing homes are operated by shell companies that have no assets and no insurance.He called for enactment of a Senate-passed bill to require nursing homes to carry insurance [from "Nursing Home Malpractice Insurance Void Reported in Oklahoma"]
I completely understand why people would want to require nursing homes to carry insurance. On the other hand, if this put nursing home care out of reach of patients who need it, I’m not sure how anyone would be better off.
Apparently, the lack of insurance is due to skyrocketing rates. The rates were raised in response to a series of expensive medical malpractice lawsuits.
Becky Moore, executive director of the Oklahoma Association of Health Care providers, says a blizzard of lawsuits has led to a fivefold increase in insurance rates in recent years.
She says the company that supplied insurance to most nursing homes in the state is in bankruptcy.
It doesn’t seem likely that simply requiring insurance, without dealing with tort reform, is going to do much that will help Oklahoma patients. What do you think?
Today, a NYT article ran in the fashion and style section entitled, “For Top Medical Students, an Attractive Field.” The writer, Natasha Singer, says,
As thousands of medical students await word this week on residency programs, two specialties concerned with physical appearance — dermatology and plastic surgery — are among the most competitive.
Only 61 percent of seniors at American medical schools whose first choice was dermatology received a residency in that field last year, compared with 98 percent for those whose first choice was internal medicine and 99 percent for those seeking family medicine, according to a report by the Association of American Medical Colleges and the National Resident Matching Program, which pairs candidates and programs. Although there are far fewer positions in dermatology (320 residencies in 2007) than in internal medicine (5,517) and family medicine (2,603), the field is attracting some of the best and brightest future doctors. [READ THE REST]
As a UK Guardian blogger pointed out, there are a couple of interesting facts about this story. The first is that the same journalist wrote essentially the same story in November 2006. The second is that this later version never mentions medical malpractice as a reason why doctors are avoiding more traditional medicine and heavily competing to get placed in cosmetic medicine.
Here are a couple quotations from 2006.
Robert Huckels, vice president for marketing at MedSurge, said some nonspecialists were turning to cosmetic medicine because they were tired of heavy patient caseloads, long workweeks, high malpractice insurance premiums and the paperwork and payment structure imposed by Medicaid and managed care…
But doctors have increasingly been complaining about their income, particularly as malpractice insurance costs have risen, Mr. Huckels said…
I wonder why the reporter decided that was not an issue worth mentioning this time around.
John Ritter’s family sued his doctors for $67 million. How could this happen in California which has medical malpractice caps?
The astute reader will question how the poster child for tort reform, California, could nourish a lawsuit totaling such a large number. In California, non-economic damages are capped at $250,000, as they have been, for almost thirty years.
Here’s how the math works. Ritter was working on a new TV show “8 Simple Rules For Dating My Teenage Daughter.” He was 54 when he died. Had he not died, he presumably would have worked until some reasonable age of retirement. The logic continues he would have made the same money, year after year, as his current gig. Accordingly, he would have brought home high eight figures. In short, the family argued economic damages (not the non-economic number often touted in tort reform discussions) as the vehicle to hit the stratospheric target (source).
One of the interesting points made in the article quoted above, is that, if Ritter’s family had won their case, it might have had consequences for other celebrities seeking medical care. A doctor in California is normally told he needs to carry a million dollars worth of coverage. Basically, anyone making a great deal of income would have become too dangerous for a doctor to care for. Who is going to be willing to do a risky surgical procedure if it will mean that the patient’s relatives might successfully make you liable for over$60 million?
This would be yet another example of how medical malpractice risks tend to create shortages of doctors. In this case, however, the shortage would be for certain patients who entail a high economic risk.
It is pretty common to hear discussions of the malpractice problem in the medical blogosphere, but it is not that often that a blogger publishes a long analysis that covers the subject complete with charts and graphs.
It is worth looking at. I can’t vouch for the accuracy of everything there, and may even disagree with some of it (or at least question some of it). For example:
So doctors need to take a look at our system–if only from a malpractice perspective–and see if it really makes sense for our patients. Americans sue 350% more than Canadians, and 50% more than Australians or Brits. Perhaps this health care non-system of ours is actually worse for us from a malpractice standpoint.
Is this necessarily a result of the system? Couldn’t it simply be a cultural characteristic that Americans are more likely to sue?
I was especially helped by the explanation of the “no fault” system. But, I’m still not sure why it would be considered more acceptable to people than tort caps.
KevinMD wrote a really interesting editorial for USAToday about the growing shortage of primary care physicians.
How did we let primary care slip so far? The key is how doctors are paid. Known as “fee for service,” most physicians are paid whenever they perform a medical service. The more a physician does, regardless of quality or outcome, the better he’s reimbursed. Moreover, the amount a physician receives is heavily skewed toward medical or surgical procedures. A specialist who performs a procedure in a 30-minute visit can be paid three times more than a primary care physician using that same 30 minutes to discuss a patient’s hypertension, diabetes or heart disease. Combine this fact with annual government threats to indiscriminately cut reimbursements despite rising office and malpractice costs, physicians are faced with no choice but to increase quantity to maintain financial viability.
There are responses/recaps posted at the WSJ health blog and Medical Rants.
(I realize this is not technically a post about medical malpractice, though Kevin does mention that medmal costs ars one of the many expenses that force doctors to try to maximize their revenue and thus specialize. In any case, I thought it was too interesting not to blog about.)
I missed this editorial when it first came out, but Overlawyered.com caught it and gave me a second chance to notice it. I think the column is especially valuable as a clear demonstration of how medical malpractice rewards must be directly impacting medical expenses above and far beyond the cost of the amount that was won. In this case, a patient died of aortic dissection who came in with what seemed to be muscular back pain.
The odds against the person having this condition based on his presenting symptoms were astronomical. Nevertheless, the jury decided against the doctor. This basically means that every time a doctor confronts back pain he must run a CT scan on the patient.
Why not obtain a CT scan on every patient with back pain or, for that matter, perform every test known to medical science on every patient who is ill? After all, peoples’ lives are at stake.
There are two reasons. First, nearly every test in medicine is inaccurate. A test that is positive often leads to further testing which, if the test result is in error, is unnecessary. Such testing is sometimes invasive and therefore potentially dangerous, and if the patient is hospitalized unnecessarily there is the additional risk of life-threatening infection. Because of this, the search for extremely unlikely diagnoses would kill more patients than would missing those diagnoses. Researchers at Dartmouth University have shown that more care is often worse care.
The second reason is cost. Embracing this policy would necessitate closing the Pentagon and abandoning public education. As it is, some of my younger colleagues, paralyzed by the fear of being sued, regularly spend $2,000 to diagnose a cold.
This doesn’t even mention the fact that there are worries that the many scans used in this country are raising cancer risks, or that, in cases like appendicitis, relying on CT scans unnecessarily delays surgery. Scans are increasingly not being used because they make the best medical sense but because, if someone dies then a jury is likely to decide that someone must pay.
So we are left with bad medicine that is also more expensive medicine.
