13 December 2007

Malpractice reform

Probably the most frustrating thing about the malpractice crisis is the "crap shoot" element that is introduced by carefully selected juries composed of uneducated laypersons making judgments on complex and controversial technical matters.

A lot of doctors on the web get very emotional about suits, especially ones in which they are named. And I think we all hate practicing in the environment of "what if it happens to me?" It's scary; every single day I wonder what will happen if the patient I am seeing right now will be the one to go home and die unexpectedly from some unforseeable disease or complication. The grieving family will take the stand and testify what a loving father/mother the patient was, a hired gun expert will testify that Dr Shadowfax was clearly negligent, and the jury will feel sorry for them and award the survivors a gajillion dollars.

So I practice defensively, admit more people than really need it, order a lot of tests just in case, and, most importantly, chart incredibly defensively, especially with anyone I am sending home.

It sucks, and it sucks all the more because I don't have any confidence that when I do get sued (it will happen, odds are) there is no reason for me to assume that the quality of the care I gave will have any bearing on the ultimate outcome.

What I want, both as a practicing physician and as the manager of a large medical group, is for a system that accurately relates "bad care" and financial liability. It's not personal, to me. Our group takes care of over 150,000 patients annually, and in a high-acuity environment like ours, staffed by fallible human beings, mistakes are going to happen. So compensating injured patients is and ought to be just a cost of doing business.

But the problem is that it's not predictable, or rather that it is predictable for the wrong reasons. A sympathetic plaintiff is a potent threat, and I can recall several cases which we settled despite excellent care, because the risk of a huge judgment was too high. On the other hand, I have seen a number of cases where the care was, let's say "debatable," but our attorneys play the game well and the lawsuit went away. Certainly we win more than we lose, so if some contend the system is rigged in our favor I wouldn't necessarily disagree, and we can tell a case that is a potential loser, so there is some predictability.

But it's still broken. We're compensating the wrong patients, and not compensating those that should be.

If I were to redesign the med mal system, I would include the following elements:

1. Patient compensation fund.
It would more or less replace professional liability insurance, and would require actuaries to determine to what degree it needed to be funded. Funding could come from a variety of sources, including "premium payments" by healthcare providers or by surcharges on healthcare services or even by taxes, if that was thought to be good policy. Patients who had been determined to have been injured through medical error or negligence could be compensated according to a standardized schedule.

2. Administrative health courts
Judges with training in healthcare law/liability would preside and juries would consist of a mix of doctors and consumer advocates with special training. Patients who thought they had been injured could apply to the courts, discovery & testimony would be gathered as they are today, and the jury would issue a finding of fact. Verdicts might be: no injury; injury due to error; injury due to negligence; injury due to gross negligence. The courts would have the authority and duty to refer cases of negligence to the license boards for review. A summary of the findings of every case would be made public (with details redacted for privacy) to allow the medical industry to learn from the cumulative experience of the courts. And -- critically -- cases which had been previously decided could be used as precedent to guide future care as well as future cases.

What do you think? I'm dreaming, of course.


  1. Well if you are dreaming:) Here is another dreamland solution - get the liability of of the picture altogether. E.g. med staff and hospitals cant be liable in court for anything except criminal negligence . After all you always have an option not to use medical services

    Imho it should be contract basis e.g. patient signs a waiver (for planned on non -emergency condition) and has a mark on his driver license (similar to blood donor) whether he signs a waiver or not .

    Therefore some hospitals could opt to take patients with signed waivers only (and thus save on law costs) and some may opt to take everyone (but charge more )

  2. I think it would be valuable to have a panel of experts preside over med-mal cases; but beyond that I think most stuff should stay the same. In my state we did pass tort reform (despite my wishes, since I know a few doctors I wouldn't let work on a stray dog, why should they get a cap on awards when the amount of damage they can do is unlimited) so anyway, ACEP says my state gets an A- in legal environment and NOTHING CHANGED.

    When the law passed I thought, well that sucks -- but at least I should have less BS work to do. Nope, nothing changed at all. The docs gets caps on damages and everything is business as usual.

  3. "So I practice defensively, admit more people than really need it, order a lot of tests just in case, and, most importantly, chart incredibly defensively, especially with anyone I am sending home."

    Does it work? You're doing all this, so have you asked yourself if it works?

    Multiple studies have shown that if you want to reduce your risk of being sued, the thing to do is not test more, but treat your patients better. Even spending three minutes more with each of them will reduce your risk significantly.

    The real reason you're dreaming is because #1, liability insurance is a very profitable industry, and those carriers do not want to give it up for some public fund.

    On #2, you say we should use prior cases, but every time you try to do that, some physician will say "but this patient is different because of X". It's why there aren't universal standards of care - because physicians can't agree on them.

  4. I like the Shadowfax solution. Dan points out the futility of caps. That is true in other tort reform as well, maybe more so. The bad lawyers aren't winning million dollar verdicts; they are burdening the system with a bunch of $5000 nuissance claims.

    What I like about Shadowfax's solution is first predictability for both parties. The Patient's Comp system allows for quick resolution of problems that is better for the injured person. Second, I would be willing to give up some rights to sue if I was more confident that bad doctors stopped practicing. I think a recommendation to the licensing body is a little light on this score, but I think it is a good consession to patient advocates.

  5. I believe you are talking about two very seperate things. It sounds like you want people(doctors?) to learn from their mistakes, and the malpractice system should make this happen.
    Sorry. Can't work. If you consider the frequency of "mistakes" that will come to this level of awareness, there won't be enough learning going on(If learning is equall to mistakes which it should).
    The malpractice system we have now isn't the boogey man doctors make it out to be. Sure, we get sued wrongly, but if doctors really wanted medical malpractice to go away, it would in a heartbeat with universal coverage, since 90% of awards are for future healthcare costs...Don't see many docs in that line...
    No, as doctors we too often react to the symptoms in front of us. Bigger picture...
    The waiver idea and the actual savings seems disconnected, since most studies argue that malpractice healthcare costs in small.
    If what you want is a system that encourages responsible behavior, good luck. Don't expect it from civil law. Criminal law can only make a weak claim.

  6. Currently 8 states have patient compensation funds, so the idea isn't that outrageous.

    I was a plaintiff in a wrongful death case in a state with caps on noneconomic damages. I thought my law firm was appropriately conservative. I think the whole process is more rational than you would expect.

  7. Every state has established Medical Malpractice statutes and it is important to become familiar with these laws prior to filing a Medical Malpractice case. With respect to Florida Medical Malpractice cases, the damages awarded to the Plaintiff will be reduced depending on how much of the injury was the Plaintiff's fault. If a Plaintiff is determined twenty-five percent responsible for their injury, than the damages awarded to them will only be seventy-five percent the original amount. A Florida Medical Malpractice Attorney may only collect thirty percent in fees on the first $250,000 awarded to the Plaintiff and only ten percent on amounts greater than this. In contrast, a Massachusetts Medical Malpractice Attorney fees are limited to forty percent of the first $150,000 awarded and only twenty five percent of damages awarded over $500,000. There is usually a statute of limitations that requires Medical Malpractice claims to be filed within two years from the date the injury occurred, or within two years from when the injury should have been detected. Visit Clinical Negligence to get more information about this.


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