02 September 2007

Medical Liability Follies, Part 2

Some more thoughts on the $5.39 million malpractice verdict:

I've said for a long time that one major deficiency of the medical liability system is that it delays and denies justice to those who truly have been injured by medical negligence. In this case, presuming that the verdict and award are upheld -- a big presumption -- the likelihood is that the plaintiffs will see only a small fraction of that award. According to the coverage as I understood it, the verdict was solely against the doctor -- not the hospital or her employer, though the media is notoriously imprecise in reporting that sort of detail. The medical liability insurance market in Washington is such that ER docs can't buy insurance for more than $1 Million per incident. It's just not available, not at any price, and certainly not in 2004. So the insurance company, having already expended a lot of money preparing and defending the case for trial, will pay the balance of their obligation under the policy. What does it cost to defend a case with a month-long trial? $100,000? $200,000? I don't know, but it's not cheap. Anyway, the absence of any other defendants with liability in this case -- the absence of any deep-pocket defendants, that is -- means that the plaintiffs will probably wind up with maybe 15% of the actual award (less attorney's fees). So there's justice for you.

This is assuming that Dr Dy is not independently wealthy and exercised a modicum of common sense in the disposition of her assets. It is rare for doctors to have to pay malpractice damages out of their own pockets. It's pretty easy to shield yourself from judgments: just pour all your liquid assets into your house, your retirement, and your life insurance. Most of these are not attachable. if you are lucky enough to own a vacation house or an airplane, well, that's going to be at risk unless you do some fancy legal footwork. It kind of sucks, because you may have a lot of money but can't easily access it, but it beats getting bankrupted by a huge lawsuit. (Some docs used to put their assets in their spouse's names, but it has been pointed out that the likelihood of getting divorced is a lot higher than the likelihood of getting a $5 million lawsuit!)

Another thought, which to me supports the notion that the verdict in this case may be at odds with what a reasonable medical observer might find: They went to trial. Now I have, as administrator of a large ER group, worked with a number of defense attorneys on cases being litigated. They are smart people. They make it really clear -- if there is significant risk, you do NOT proceed to trial unless you have a bullet-proof defense. I can't imagine a much more sympathetic plaintiff in this case -- young active professional, sent away from the ER, drops dead, multiple dependents. Geez, I wouldn't litigate this unless I really felt we had met the standard of care -- and felt we could show that at trial. Now maybe Dr Dy just made a bad decision and refused advice to settle, maybe her defense got shredded on cross-exam, or maybe the plaintiff's counsel set an unreasonable requirement for a settlement. Or maybe (my cynical side suggests) they presented a great defense but a jury voted with their hearts and not their minds.

Which ties into my next thought: we'll never know. A jury just made a strong statement as to the standard of care for diagnosing Aortic Dissections. Unless the case gets published, as a practicing ER doc, I have no clue how I am to incorporate this standard into my practice. What was the error that Dr Dy made that I must now avoid? How does this verdict improve American healthcare? As far as I can tell, it does not.

One sort of clinical thought: it is hard to read between the lines of the fuzzy media report, but they say that the plaintiff "collapsed at home and complained of chest pain in the ER." To me, this implies that maybe his chief complaint was syncope. Syncope is a tricky problem to work up in the ER. It's true that syncope with superimposed chest pain does send up a red flag that more investigation might be required -- though I would be more suspicious of PE than Aortic Dissection. It's for this reason that I have started sending D-Dimers on pretty much all my syncope cases that aren't obviously vagal. I have heard that a D-Dimer can be a useful screening test for Aortic Dissection as well, which makes sense based on the pathophysiology. But I think evidence to support that practice is not yet firmly established.

And one last thought, which really should have been my first thought: my heart goes out to Dr Dy. It sucks to lose a patient, or to have a case go bad unexpectedly. It sucks to get sued. It sucks to have a lawsuit hanging over your head for three years. And it sucks to lose at trial. Yes, I also feel bad for the family of the decedent, but I feel a special kinship and sympathy for the doctor, who has also suffered enormously through this process. For doctors, being sued destroys careers, destroys relationships, causes depression, substance abuse, all sorts of horrible consequences. If she's reading this, I hope you're taking care of yourself and I hope you have some family and friends to rely on in this tough time.

17 comments:

  1. We don't have enough evidence to really say much about the medical decision-making in this case. Maybe the doctor didn't even do a chest X-ray, just got an ECG in triage, gave him a GI cocktail, and OTD. The article said he was discharged in an hour. Which 99/100 times might have been good enough.

    In America, we have to order thousands of dollars of tests for the other 99, or 999, or 999,999 in order to "meet the standard of care" and not miss the one that dies.

    Because if anyone dies young or unexpectedly, we obviously didn't meet the standard of care, right?

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  2. "They make it really clear -- if there is significant risk, you do NOT proceed to trial unless you have a bullet-proof defense."

    However, the attorneys don't call the shots, the insurer does, or as you mention the insured if they have negotiated that into their contract. And the insurer may have said - "hey, my maximum liability is $1 million, so what do I have to lose? The plaintiff won't settle for less than policy limits, so let's take our shot".

    That assumes no bad faith claim will result of course.

    Interestingly, scalpel contradicts himself in saying we don't know what happened, but now he's going to assume a standard of care to the nth degree. That doesn't make sense.

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  3. In my experience (take it FWIW) the advice to settle/defend is usually given by the defense counsel -- they are the ones with the strategic understanding of the dynamics of litigation to make a knowledgable recommendation. The insurer can and does weigh in with their perspective. Most policies nowadays include a consent to settle clause for the defendant, unless you are really in a shitty market for insurance, so they can't compel you to settle. They (and I, as the employer) can turn the screws a bit to "encourage" a recalcitrant doc to settle a losing case.

    But anyway, my point was that the attorney is the one who is going to make the best recommendation. You can proceed to trial over the objections of counsel, but it's usually not wise.

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  4. That's not my contradiction, that's the bizarre contradiction between what is considered appropriate care by the medical establishment compared with the "standard of care" created by attorneys. As shadowfax mentioned in the first post, "... the state Physician Quality Assurance Commission did review the case and found Dr Dy's care to be within the standard of care. (pity that's not admissible at trial.)"

    The standard emergency room treatment of GERD is to administer a GI cocktail and discharge the patient. The standard emergency room treatment of an aortic dissection is to call a cardiovascular surgeon, obtain multiple diagnostic tests, and admit the patient.

    From a medical standpoint, the physician apparently gave appropriate treatment. From a legal standpoint, the physician obviously did not.

    Because appropriate treatment from a legal standpoint is to never miss a one in a million diagnosis that is potentially fatal, particularly in someone who is young. That's the cost of defensive medicine in this country. A heartburn workup usually costs over $10,000 because we can't afford to miss ANY faintly-striped zebras.

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  5. In my experience working for insurance companies, the adjuster makes the call, with the help of the attorney of course. But the attorney's assessment of the likelihood of winning may be secondary to other concerns.

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  6. "That's not my contradiction, that's the bizarre contradiction between what is considered appropriate care by the medical establishment compared with the "standard of care" created by attorneys."

    Actually, it is your contradiction. Or at least your disagreement with another physician. Attorneys don't testify to the standard of care, physicians do. In fact, nothing the attorney says is evidence.

    "Because appropriate treatment from a legal standpoint is to never miss a one in a million diagnosis that is potentially fatal, particularly in someone who is young."

    Again with an incorrect assumption. Were this true, physicians wouldn't win nearly as often as they do. Perhaps the reason YOU practice defensive medicine is that your understanding of how the standard of care is determined and your relative risk is based on a number of false assumptions.

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  7. "Attorneys don't testify to the standard of care, physicians do."

    Attorneys pay physicians to testify to what the attorney wants to present to the lay jury as the standard of care. That does not make it the standard of care (a mythical creation of attorneys, not a medical concept at all).

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  8. "Attorneys pay physicians to testify to what the attorney wants to present to the lay jury as the standard of care. That does not make it the standard of care (a mythical creation of attorneys, not a medical concept at all)."

    Why do you believe that all expert witnesses make up their testimony to fit what they think the person paying them wants them to say? That opinion is clearly not based on any actual interaction with counsel or experts for plaintiff or the defense. Almost every attorney on either side wants an independent and honest evaluation, because if they don't get it, their case, and their expert, will be ripped up at trial. It's not pretty when that happens. I'd suggest you educate yourself more before reaching conclusions on the subject.

    The standard of care is a legal concept that applies across the board in all negligence cases. However, physicians have made an even higher standard for themselves with the locality rule. How would you have us judge the negligence of physicians if not by the standard of care? Or do you just feel that a physician cannot be negligent?

    How does the medical board judge you? What standard do they use?

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  9. In some cases, there are legitimate differences of opinion, and in other cases, professional "experts" exist whose willingness to testify one way or another is well-known, thus there is no "standard."

    That's why the defense attorney can easily find an expert to testify that care is appropriate, and the plaintiff's attorney can find someone on his list of "friendly experts" to testify otherwise.

    The process really isn't as innocent as you try to paint it.

    While I've never gone in front of a medical board, I have gone before a hospital quality assurance committee, which I would assume is similar. The difference?

    No paid experts.

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  10. Now being up the in the great Pacific Northwest I am willing to bet you have heard of a little thing called "anchoring". That is when the ED physician sees a patient and decides the diagnosis and proceeds to collect all history and exam elements and tests to support same. It is not negligent, it just is. I would be willing to bet that any one who has worked in an ED has seen this many times, I have. Try reading some of Pat Croskerry’s abstracts.

    We all have biases. That is the reason more women are sent home with an AMI than men. The key to overcoming it is recognizing it. I suggest you read the book “Blink”. You usually can trust your gut if you recognize and overcome your bias.

    Additionally until there is a standard data set that is collected on all patients with a certain presentation it will be impossible to decreases variability and increases quality. Only in healthcare!! I remain amazed that most physicians see decreasing variability as “cookbook medicine”. Oh I know…your patients are different, best practices are unnecessary, standards of care impede your ability to do your job.

    I am so f-ing sick of our system. It’s broke. We spend more than twice as much as the next highest industrialized country. We have the shortest life expectancy and the highest infant mortality rate. We have over 65 million people uninsured. Our system is so grossly fragmented that we have the best doctors, the best facilities, the best equipment and we can’t get it right because everyone is so worried about getting their piece of the pie they forget the reason they entered healthcare. It’s like the “Dream Team” you put them on the court on and they get beat. They are more concerned about how they look than the common goal. Don’t even think about the poor patients! Think if you weren’t a doctor, how would you figure out who gives the best care? You would think that given our free enterprise system it would be the guy who charges the most, well we all know that’s not that’s not true.

    I could go on and on however that shall conclude my rant for the day.

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  11. the previous post is mine. I like this blog idea.

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  12. Advocate,

    Why is it broken? It has less to do with providers "forgeting the reason they entered healthcare" and more to do with.

    1. liability concerns and malpractice avoidance defensive medicine costs.

    2. America's unrealistic view of death and illness and willingness to torture their loved ones with futile invasive expensive care. Somewhere around 70% of the healthcare dollor is spent on 1% of the population and half of that spent in the futile last 6 months of their lives.

    3. Americas demand for the best now. "I just sprained my knee I need an MRI"

    4. The insurance industry both private and governmental. It insulates people from the true cost of healthcare.

    5. America is is grotesquely obese, lazy, nicotine, alcohol, drug addicted when it comes to their own personal health.

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  13. "And one last thought, which really should have been my first thought: my heart goes out to Dr Dy. It sucks to lose a patient, or to have a case go bad unexpectedly. It sucks to get sued. It sucks to have a lawsuit hanging over your head for three years. And it sucks to lose at trial."

    Oh . . . and it sucks to die.

    Why is it so hard for you doctors to accept the fact that when you make the wrong decision, it is costly. Why should patients bear the cost of your bad decisions? Regardless of the standard of care, Dy made the wrong decision--why shouldn't she pay?

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  14. It is always easy to make the right decision in retrospect. When a perfectly reasonable decision was made prospectively that turns out to be wrong should that doctsrs life be ruined?

    It is funny that people accuse doctor's of a "God complex" but yet want an im possible 100% perfection at a cheap price.

    In my practice as an ER doc some "zebras" slipped by in impossible unpredictable circumstances. Because of that should I be run out of medicine even though I have "saved" and would continue to save hundreds or thousands in the future?

    If that is your feeling then there would be no doctors left to practice because 100% perfection is not possible, and people with bad diseases die despite practice perfection.

    Of course I want to do the best I can. No I don't expect blanket immunity.

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  15. "Why is it so hard for you doctors to accept the fact that when you make the wrong decision, it is costly. Why should patients bear the cost of your bad decisions? Regardless of the standard of care, Dy made the wrong decision--why shouldn't she pay?"

    It's OK to be "wrong." Sometimes you can do everything right and the outcome is bad. In fact, if there is no fault, if there is no negligence then the decision is not "wrong."

    Negligence is generally defined in relation to "what any other reasonable doctor would have done in the same circumstance." So, hypothetically, if Dr Dy did the same tests that I would have done in the same case, and if the tests are those generally agreed to be the "right" tests, and they came back negative, and the patient goes home and dies, the care was not negligent. (We do not know this to be true in the incident case, but I am making a more general argument.)

    The point is that unpredictable outcomes occur. A bad outcome is not always indicative of bad care, and in fact, most bad outcomes are due to natural disease and patient factors, rather than suboptimal care.

    And we are very aware of the cost - the human cost - when the outcome is bad. They say "you're not a real doctor till you've killed a few patients," and by that they mean that till you see someone die because of (or in spite of) your efforts, you don't fully understand the burden of responsibility that comes with the white coat. What doctors object to is being blamed automatically for the outcome, when our ability to influence it is limited at best.

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  16. What is wrong with the system is that no-one has pointed out the obvious fact.

    THE DOCTOR DID NOT KILL THE PATIENT Without any treatment the patient would have died anyway

    So why is the doctor subjected to a process which virtually equates her actions(or lack of them) to actually killing the patient. The family of the patient should be grateful that there there was even a Doctor there - 'cos their actions can only push us down the road of there being no Doctors at all. Who you gonna sue then?

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  17. What is the point of having a state quality assurance board if their assessment of the case isn't admissable as evidence? Seems like they would be just as high a quality assessor of the standard of care as any hired guns either side could put up in front of a jury.

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