Home / Medical-Legal / It Didn’t Feel Like A “Win”

It Didn’t Feel Like A “Win”

By Birdstrike M.D.

 

My kid and I are outside in the front yard blowing bubbles, enjoying the blue skies and 70 degree weather when she says, “Cool Daddy! Look, there’s a police car coming down the street. Oh, cool! I think he’s coming to see us!”

Uh, oh, I think to myself. Despite my kid’s excitement, I know that rarely does anything good come delivered by a policeman. My wife is inside, my one kid is with me and my other is inside, so they’re not coming to give me some tragic news. Or are they? My parents….my siblings….is everyone okay? Why is a sheriff pulling into my driveway?

I exhale for a minute. Maybe it’s Jim, the officer that lives in the neighborhood, I think to myself. He’s probably just stopping by to chat or say, “Hi.” As the car rolls closer, squinting to look beyond the window glare I see that it’s not Jim. It’s an officer I’ve never seen before. Clearly none of us has done anything to get arrested….

“Daddy! I wanna go see inside the police car! Daddy, will he give us a ride? Ooh, ooh, can I see his gun? Cool!” says my kid, jumping up and down with excitement.

“Let’s see what he wants,” I answer.

The driver door opens. A huge officer gets out, in grey uniform, bulletproof vest bulging underneath, with black wrap-around sunglasses, and a toothpick in his mouth.

“Are you Dr. Bird?” he asks, as serious as a heart attack.

“Yes, sir,” I answer.

“I got a present for ya,” he says, as he pulls a thick rolled up stack of paper from under his arm and hands it to me.  “Here’s your subpoena,” he says.

“My what?” I stammer. “What’s this all about?”

“You’re getting….” he starts before,

“Daddy! Daddy! I wanna ride in the police car. I wanna see the lights go on! Yay!” says my little one.

“…sued,” I finish the sentence for him.

“Yes, sir. You and every other doctor in this county it seems like. I’ve got about a dozen more to go serve. These lawyers are unbelievable. (laugh) I happen to know this one will sue you for breathin’ and win, too. You know, the one on the back of the yellow pages? You ever run into any trouble, though, you call him. Trust me, he got me out of a jam one time,” he says with another grunt-laugh.

“Wow. Thanks for that wonderful advice. You’ve really brightened my day,” I snark back at this guy, who apparently thinks it’s hilarious to be part-time process server and part-time comedian.

“Oh, don’t take it personally. It’s just business,” he says chuckling, as he spits out the same old lie and cliché I’ve heard a thousand times from doctors who’ve been sued.

“That’s great. Thanks. Anything else I can do for you today, officer?” I ask, dejected.

“Oh, yeah, I’m gonna have to give you a ticket for parking your car on the street overnight….Just kidding!” he says, and give’s a snort-laugh.

This guy’s unbelievable, I think to myself as I turn to walk away.

“Don’t worry, Doc. You’ll win that case. That lawyer will sue a dead dog if he could get it to settle for a bone and a biscuit,” he says.

“Uh, thanks for your…uh, support,” I say, shaking my head in disbelief.

Yep, it happened. After about 30,000 lawsuit-free patient encounters I finally got hit with a lawsuit. I guess 29,999 out of 30,000 isn’t bad, I think to myself. What’s that, 99.99% accurate? Well, it’s still not perfect; still not 100%.

I walked inside and ripped through the pages and start reading about the case of which I have zero recollection. What? This? This is nothing. This is ridiculous, I think to myself. Where’s the malpractice? Where the h—l did I not do everything as I was taught, as I should have and as I would do again?

I can’t find the malpractice, because it’s not there.

Almost every day in my training, it was either implied to me, or I was explicitly told that someday, no matter how perfectly I practiced, no matter whether I met or exceeded the standard of care, that I would be falsely accused of malpractice someday and be sued. In each of those teaching moments, I was told how to practice so as to decrease the chances of such a false accusation and how to document, so as to be able to fight the inevitable false accusation in court. Never once was I told, or was it implied that it wouldn’t happen.

Though these words were never spoken, the unspoken lesson was: You are getting excellent training. You are going to be an excellent doctor. You will be prepared to handle any situation thrown at you. You will go out into the real world and do your best with every patient you see, and one day you will be sued for it, and possibly put on trial. I trained at a top notch institution. My teachers were right.

Over the next week, I obsessed about the case. Over and over and over again, it ran through my head, what would I have done different? I can think of all kinds of things I could have done differently, but none of them seemed better, or even equally as appropriate as what I did. In my head I kept hearing the mantras of physicians that have walked the plank of false medical malpractice allegations before me, “It’s the cost of doing business,” “It’s not about you, it’s about money,” “It’s not personal,” “Every doctor gets sued.” Yeah, bulls—t, I thought to myself. The more I thought about it the more it infuriated me.

Also, reading through the record, I couldn’t help but think, of all the patients I’ve seen, why this one? There’s nothing here, nothing at all. Not only did I not commit malpractice, I cannot see where any of the other providers even might have or possibly committed malpractice.

As the months went on, I went through the “process.” I met with my lawyer. I reviewed the record ad nauseum. I read every bit of literature about this case I could find. The more I read, the more I was certain I did nothing wrong. The more I thought about it, the more I realized that didn’t matter. Also, the more I was told and the more I told myself it “wasn’t personal” and “was just the cost of doing business” the more I took it personally. It is personal. When you dedicate your life to helping people, often times without payment, often times at 3 a.m. dog tired, on your kids birthday or your third holiday in a row, and it’s routine business that you’ll be extorted for money just for doing your job and doing it well, you’re damn right it’s personal.

Along came the depositions. The plaintiff deposed their “expert” who plainly put, was not an expert. He was a hired gun, paid thousands of easy dollars, to testify that everything I and my co-defendants did was absolutely wrong. Also, he was of a completely different specialty than my own. His testimony was laughable. His answers seemed to indicate he hadn’t even read the evidence closely or at all. Regardless of how bogus his testimony was, my attorney tells me, he made enough (false) accusations to get the case to trial.

One by one, our experts line up drooling to testify that their expert was absolutely wrong. They had the truth on their side and they were actual experts. But would the jury understand? Whose “experts” would they believe? As strong as my case was, I resigned myself to the fact that that’s what the case would come down to. Not what was right, or what was wrong, but whom the jury chose to believe, for whatever reason they chose to believe him. As difficult as it can be to judge another physician in a different specialty I can only imagine how difficult of a task it is for a jury with no medical background to judge the decision making process of a physician, in a complex medical case. How many times have you gone to an M&M conference and a dozen experts argue over a case with a bad outcome and even those highly trained experts couldn’t agree on what the “standard of care is” let alone whether or not it was met?

Over months, the trial draws closer. My tension waxes and wanes, fades and returns with each deposition, each email from my attorney and with any patient encounter that reminds me of the case. Ultimately as the trial closes in on me, the tension builds. All the while, I know I met…No, I exceeded the standard of care. As the trial date gets closer, the more I realize how little that may matter. How would I come across to a jury? I’ve never been on trial. I know I’ll be very nervous on the stand. Will that be seen as appearing “guilty” or will the jury understand and see my side of things?

I get an email from my lawyer. “Just to let you know, the trial is set for –/–/—-. There will be a routine mediation meeting tomorrow. You do not need to attend. We are taking this to trial. You did nothing wrong. We will fight this every step of the way.” Deep breathe, exhale.

The next day, breaking the silence comes a “ding.” It’s an email on my phone. I open the inbox, and I see two words that shock me:

“CASE OVER! “

“The charges against you have been dropped. No money will be paid on your behalf. There will be no trial. Congratulations. You are dismissed with prejudice”

I could hear and feel the air start to leak out of the balloon of pressure hanging over my head: “Dismissed with prejudice.” I ask my lawyer to translate: that means “Over. Permanently. Done. You are innocent. You won.”

Well, it didn’t feel like a “win,” but it was over.  I was relieved not to have to roll the dice.  Even though I was vindicated, there was no “win” in being falsely accused of committing malpractice considering all the time spent reviewing charts, attending legal meetings and depositions, and all the mental stress and sleepless nights.  Others have said that although a dropped lawsuit is a win in a literal sense, it is a great loss for patients and doctors because it drives a harmful and dangerous wedge in the physician/patient relationship.  As I progressed forward from this point on, I truly understood how true this is. I couldn’t help but feel that from then on, memories of this lawsuit and the process would be irreversibly intertwined with each patient interaction, each handshake, each differential diagnosis and treatment plan, as much if not more than the science, pathophysiology and the text books I read.

 

………………………………………………………………………………………………………………………………………………………………………………………………………………….

This author does not divulge protected patient information or information from real life court cases.  Any post that appears to resemble a real patient or trial can only be by coincidence. This author does not post, has not posted and will not post factual identifying information about real patients.  To the extent that any post is based on the real life experiences of the author, names, dates, ages, sexes, locations, diagnoses, and all other factual information are routinely changed to the extent that it should be considered fictional.  Any opinions expressed here are of the author alone and not those of epmontly, WhiteCoat, my employer or any of the hospitals with which I am affiliated.

73 comments

  1. The phrase “it’s the cost of doing business” is never all that comforting. I have heard that told to me about owning my pharmacy. A break-in, bad checks, shop lifting. It is hard to not take it as a personal afront when people are trying to steal from you.
    A jury trial would frighten the hell out of me. Just think among the people weighing in on your professional judgement watch Honey Boo Boo. Not really a jury of my peers.

    • “The phrase ‘it’s the cost of doing business’ is never all that comforting”

      You’re right, nothing “right” or “just” ever seems to follow that statement, does it?

      Plus, how can we expect a jury of non-medical people to learn enough about Medicine in 1 week to pass judgement on complex medical decisions? Paid “experts”?

  2. Great story, Bird strike. I suspect that the attorney was trying to shake you do for a few ten thousand dollars and folded. It is a poker game after all. The easy way to avoid lawsuit related stress:

    View every potential patient encounter as a lawsuit.
    Practice extremely defensive medicine to minimize the risks of ever missing anything. Those sonosite ads for ‘zero tolerance for error’ sum it up.
    Finally, try not to care too much about the potential future plaintiffs that I you see at work. If you wanted to like your patients you should have become a small animals vet.

    • “View every potential patient encounter as a lawsuit…try not to care too much about the potential future plaintiffs that…you see at work. If you wanted to like your patients you should have become a small animals vet.”

      It’s a shame that it has come to this, but for many physicians, it has.

  3. How much did the win cost in dollars and years and willingness to take the hard decision?

    Those people ought to be in jail. If they are not, you did not win (and nobody else did either).

    • The first response the attorneys will give in “defense” of the system is, “most claims never go to trial, and most trials end up going in favor of the physician.”

      Is this the systems biggest defense, or its biggest indictment; that the vast majority of those accused are never found liable by their own court system? Why do 9 false accusations need to be made for every one that sticks? Why does the criminal court system have a conviction rate >90% with a much higher standard, yet the medical malpractice system is accurate to <10%, with a much lower standard of proof?

      Maybe some of the attorneys that read this blog (who so far are strangely silent) can respond to this one.

      • You’ve misused statistics that don’t compare to make your point. Your comparison of conviction rates to the “medical malpractice system” is inept. For several reasons.

        1. A prosecutor has the advantage of being able to perform a full investigation PRIOR to filing the charge.

        2. Your malpractice number is likely a false one, although to be fair I have no idea what you’re calling the “medical malpractice system”.

        3. A “conviction rate” isn’t necessarily evidence of a bunch of good cases. And a prosecutor rarely tries a case – AGAIN, because they get to find out all the facts BEFORE filing. Which is not the case in a civil matter.

        4. What is “their own court system”? That makes no sense.

        It’s hard to respond substantively to unknown terms and poor statistics.

        The best “defense” of the civil justice system is that it is enshrined in our Constitution as and important protection mechanism of individual liberty.

      • “The best “defense” of the civil justice system is that it is enshrined in our Constitution as and important protection mechanism of individual liberty.”

        Where is it enshrined in our Constitution that we must file so many claims that the overwhelming majority of claims filed against physicians never make it to court, and that the majority of those that do so end in favor of the physician? That tells me that the majority of the claims being filed are unprovable, and therefore false accusations. Is that what your founding fathers had in mind?

      • “Where is it enshrined in our Constitution that we must file so many claims that the overwhelming majority of claims filed against physicians never make it to court, and that the majority of those that do so end in favor of the physician?”

        You keep using the word “claim”. Do you mean lawsuit? You need to be clear there. And the overwhelming majority of all lawsuits don’t make it to court because people settle. People settle for all sorts of reasons, and the court has no control over why one might. Are you arguing for more to go to trial? You should be more precise because it’s difficult to respond to your claims.

        “Is that what your founding fathers had in mind?”

        My founding fathers? Are you not a US citizen?

      • I love it. “There are all these people saying that thousands and thousands of baseless lawsuits are filed. This is obviously false and those people are idiots, because if the parties settle out of court then by definition there was no lawsuit.”

      • I guess arguing with what you want people to say is easier and more fun than arguing with what they actually did say.

  4. Congratulations! Doesn’t make up for the time that case spent in your brain (and undoubtedly continues to do so, despite the “win”). But I can tell you from experience that actually having to show up in court is every bit as distasteful as you were projecting, and a colossal waste of your time to add insult to injury. So: you will continue to think about that case despite the dismissal and it will affect you. Just don’t take Dr. apathy’s advice and you’ll still be doing the job your teacher’s taught you to do.

    • Thank you. I hope yours turned out just as well in the end. How this all affects us personally is important, of course, but how does affect the patient-physician relationship? Does it make it better or worse? Is the ultimate effect good for patients, or bad?

      Is it a positive when the system affects physicians so profoudly that certain specialties flock out of entire states resulting in critical physician shortages? Where is the “justice” in that?

  5. Retired because of this kind of crap.

    Dr. Apathy, you are absolutely right — and that is very, very sad. Sad for physicians, sad for the profession of medicine, and sad for patients. Dangerous and wasteful too.

  6. Pyrrhic Victory – “One more such victory and we are undone.” Pyrrhus of Epirus

  7. Don’t worry guys, Obamacare will make this all moot soon enough.

    • No it won’t. It’ll only restrict your ability to order tests and imaging studies, and you’ll get sued more.

      • Nope. Obamacare is the huge first step to single payer. As more people are eligible for Medicaid, fewer are overwhelmed with the need to file suit to pay for their bills if they have a devastating injury as a result of malpractice. And once it’s single payer, the biggest single part of any malpractice award – medical bills, goes away.

        Now, the govt. might choose to pursue you for some compensation, I don’t deny. But it won’t be in open court. It will be in some soul sucking bureaucratic process which will make a civil trial seem like a walk in the park.

        And remember, right now the vast majority of malpractice never even results in a claim, much less a lawsuit. When the govt. is reviewing this much more closely on a wholesale basis, and someone is tasked with recovering the govt.’s expenditures to reduce expenses, you’re all going to be in that bureaucratic hell much more often.

        Enjoy.

        • IANAD

          I think as the US Medical system under Obama/Romney/taxpayer (there will NEVER be a “single payer” system again) approaches the perfection of the British system, the number of a avoidable injuries will approach the number of victims in the system.

          The number of entities attacking the remaining doctors will skyrocket.

          Until the doctors cut NPs and PAs loose so they can be independently attacked.

  8. Also, before you guys descend into your discussion of the need for “loser pays”, you might enjoy this very detailed discussion of the subject:

    http://newtalk.org/2008/08/would-loser-pays-eliminate-fri.php

    It includes Walter Olsen of Overlawyered fame and Philip K. Howard of Common Good and the tobacco industry.

    • Too much to read and digest in one sitting, but maybe “loser pays” should involve lawyer culpability for filing meritless claims or for defending meritless claims. As it stands now, many lawsuits primarily benefit lawyers. Requiring lawyers to have insurance for filing a losing claim or requiring an attorney to post bond prior to filing a claim would have a significant impact on the frequency of lawsuits.
      Having skin in the game changes behavior rather quickly and effectively.

      • “many lawsuits primarily benefit lawyers.”

        In the sense that they work on them and do their job? That’s like saying “many illnesses primarily benefit doctors.”

        “Requiring lawyers to have insurance for filing a losing claim or requiring an attorney to post bond prior to filing a claim would have a significant impact on the frequency of lawsuits.”

        Wait, I thought we were trying to reduce “frivolous claims”. Now it seems you’re just trying to reduce access to the courthouse period. Essentially pricing out the poor. You’re also, of course eliminating the ability to pursue, for example, civil rights cases, which are often losers many times before you get something like “separate but equal” overturned.

        These proposals would make sense if, like in a criminal case, you could do discovery pre-filing. But as of now, you’re just making litigation a rich person’s game.

      • And maybe, if you’re a physician, and thus in the top 1% of income earners in the US, making it only a rich person’s game doesn’t seem quite such a bad result.

        • Nice job with the class warfare there Matt. But if we’re going to go there, let’s do so factually. The cutoff for the top 1% of earners is actually: $380,354. While can change by some thousands depending on the source of your statistics and the year you use, it’s consistently well over 300k.

          While the salaries of some specialists skew averages upwards, the vast majority of physicians aren’t anywhere near that. In fact, most physicians are in the salary range, give or take, of a UPS driver.

          http://blogs.payscale.com/ask_dr_salary/2007/04/no_college_requ.html

      • Oh, and if discovery is the problem, great! Let’s set up a system like some single pay systems have where a health care court consisting of a judge and medically trained folks engage in some discovery ahead of time. If they rule that this is a frivolous lawsuit, the buck stops there.

        Of course, this will never see the light of day because trial lawyers will lose the ability to sway an ill informed jury in the large percentage of cases that are frivolous.

      • As to class warfare, well, deal with it. That was somewhat tongue in cheek, but I’ve had to listen to physicians yammer on endlessly about the greed of lawyers and plaintiffs. Don’t get sensitive when it’s used against you.

        UPS drivers average $73,000. Physicians average twice that. Surgeons average over 3x that. You can confirm with the Dept. of Labor if you’d like.

        I don’t begrudge anyone a living, and think doctors should earn whatever the market will bear, but don’t try and sell me the UPS/plumber/dogcatcher salary line.

        • I suppose it would be rude to ask what the modal salary is for those four groups (physician/UPS driver/plumber/dogcatcher) are. (I’m betting the dogcatcher, being an SEIU city employee, is probably the sum of any two of the others.)

          And what are their average malpractice insurance costs, by group?

      • UPS drivers:

        http://usatoday30.usatoday.com/money/companies/management/2003-10-14-ups_x.htm

        “Thirty months into the job, the company’s U.S. drivers earn top union scale wages — up to $70,000 or more a year.”

        http://www.bls.gov/ooh/healthcare/physicians-and-surgeons.htm

        “Wages of physicians and surgeons are among the highest of all occupations. According to the Medical Group Management Association, physicians practicing primary care received total median annual compensation of $202,392, and physicians practicing in medical specialties received total median annual compensation of $356,885 in 2010.”

        Looks like I undersold you a little bit. But you are right – specialists are only in top 2%. Other physicians will have to make do in the top 5%:

        http://www.financialsamurai.com/2011/04/12/how-much-money-do-the-top-income-earners-make-percent/

        You do deserve it though, and I wouldn’t begrudge you all you can make. Stop accusing everyone else of being greedy though, as if you work for minimum wage. And let’s stop trying to make it harder for those who don’t make that much to get into court, which is their Constitutionally guaranteed right.

        • “Wages of physicians and surgeons are among the highest of all occupations.”

          We know full well this is what it’s about. You want a piece of our money. We’re not stupid. I’d have a lot more respect if you just owned it, rather than hiding behind “Justice,” “the Constitution,” and “the Founding Fathers.”

          The defense rests.

      • Larry, stating the average malpractice costs as to each won’t tell us much, since we don’t know who pays it. A UPS driver’s liability coverage may be paid by his union. A physician’s may be paid by the hospital they’re employed by. So knowing the cost doesn’t tell us if it should be deducted from the average salary.

        • I’m betting that who ever pays it carries it on the books as an expense of having the employee on the payroll, implying, economically that it would be paid to the employee if it didn’t have to somewhere else.

      • I don’t know why you think the payor wouldn’t just keep it for themselves. Seems a tough bet to make that they’d give it away if the expense disappeared when they already have the employee at the current price.

        • What part of “implying” is causing you the most trouble?

          All of the loadings on a salary are part of the expense of having an employee. In terms of the….oh, never mind,

          Trying to explain finance and economics to the Free Stuff crowd is not a good use of my time.

      • Also, WC forgets that the plaintiff’s counsel already has skin in the game, as he/she is funding the litigation.

      • “We know full well this is what it’s about. You want a piece of our money. We’re not stupid. I’d have a lot more respect if you just owned it, rather than hiding behind “Justice,” “the Constitution,” and “the Founding Fathers.”

        The defense rests.”

        What a silly thing to say. Because it’s not YOUR money. The only way it’s ever YOUR money is if you’re uninsured (probably because you’ve already had a bunch of paid claims) or you’re drunk or something like that and subject to punitives. In both cases, you will file bankruptcy anyway and as an unsecured creditor the plaintiff gets nothing. To say it’s “your money” is just evidence that you’re upset but don’t fully understand what we’re talking about.

        You may not like or respect the US Constitution, but it’s a pretty meaningful document, the primary thing responsible for the strength of this great country. I would encourage you to read it, as I would any American.

        • Nice try but it is my money. I pay for my malpractice insurance directly out of my paycheck. I greatly respect the constitution and that’s why I don’t like people distorting its meaning, and hiding behind it as if it was written to promote suing doctors as much as possible whether they committed malpractice or not.

      • “Nice try but it is my money. I pay for my malpractice insurance directly out of my paycheck.”

        Your premium is, yeah. But insurers don’t work on premium dollar in – paid claims = profit. It’s a much more complex business than that, and in fact often operates at an underwriting loss while still turning a profit.

        “hiding behind it as if it was written to promote suing doctors as much as possible whether they committed malpractice or not.”

        Who’s hiding? But if you’re just going to accuse everyone who disagrees with you as holding their position purely out of greed, while claiming your own position is only based on the purest of non-financial motives, then there’s not much point in continuing the discussion.

      • “What part of “implying” is causing you the most trouble?

        All of the loadings on a salary are part of the expense of having an employee. In terms of the….oh, never mind,

        Trying to explain finance and economics to the Free Stuff crowd is not a good use of my time.”

        In lieu of actual responses, acting superior works I guess.

        Implying is a nice word, but it doesn’t know why that expense should factor in when we are comparing the relative salaries. Again, there’s no reason to think that the employer won’t simply keep any of those savings. Going to depend on the particular market for that employee, though.

        I’m not sure why we’re going so far afield from the discussion at hand though, since we have no real numbers to work from.

  9. “Oh, and if discovery is the problem, great! Let’s set up a system like some single pay systems have where a health care court consisting of a judge and medically trained folks engage in some discovery ahead of time. If they rule that this is a frivolous lawsuit, the buck stops there.”

    Well, if we’re going to adopt single payer there, and move toward a more socialist form, let’s make sure we have the same impact on what physicians get paid, medical equipment manufacturers receive for their products, etc. If it’s such a great system, why stop at only one component?

    “Of course, this will never see the light of day because trial lawyers will lose the ability to sway an ill informed jury in the large percentage of cases that are frivolous.”

    Well, a case of any kind needs an expert PHYSICIAN to even get in front of the slobbering morons you believe a jury consists of. But you guys need to get your stories straight. Another physician in here is arguing that the jury finding for the doctor is proof the system fails – but you’re telling me they’re just idiotic sheep waiting to be led by tricky plaintiff’s lawyers while the defense presumably sits mute. Which is it? Are they smart enough to find for you or are they too stupid to find for you?

    • Matt,

      We don’t need a single payer system to enact such a system. Why not have each med mal case evaluated by a panel of experts in that specific specialty with the doctor and institution redacted to eliminate conflicts of interest. The panel would be documented experts in the field rather than bogus “experts” that med mal attorneys use to say what they want said. If the case if viewed as frivilous it is dismissed and the lawyer (not the client) are asked to pay for defense costs. If it is deemed to have merit, it proceeds.

      • Reason #1 is the Constitution. I realize to some that’s a minor detail, but it’s a pretty big deal to some, and should be to more. #2, who will pay for these experts in every locale? #3,
        Who will determine the impartiality of these people? Where are these unbiased physicians with the time and willingness to serve on these panels for little to no pay? #4, How does this save money? Both sides will still want to produce evidence to this panel. You can say “just submit the medical records”, but then medical records can and are falsified at times, and don’t tell everything you need to know. The defendant will want to explain his case, and the plaintiff will want to have an expert to explain theirs. Both sides will just be doing it twice.

        This is a solution in search of a problem. The number of malpractice cases is relatively miniscule compared to litigation overall, and compared to the number of patient/physician interactions. All you’ve done is add more expense and more time.

        Why is it only the plaintiff’s lawyers who are believed to be spouting “what they are paid to say” but not the defense ones? Right there you indicate why we don’t let the foxes guard the hen house.

        And why does only the plaintiff’s lawyer have to pay if the case is dismissed? If it proceeds from your “impartial” panel, does that mean the defense lawyer or doctor have to pay? What’s good for the goose. . . .

        If you want to do something to speed this process up and make it more “fair”, then propose something that REDUCES the cost and time to get a claim resolved. You do that, and I think you’ll quickly find your insurers have no interest in that. They know how few malpractice claims are filed as opposed to the amount of malpractice, and they have no interest in paying more claims more quickly, regardless of their legitimacy.

      • plaintiff’s lawyers “experts”, that is.

      • Matt,
        The constitution was meant to be a shield not a hammer to be used by lawyers to attack what true justice is. I certainly don’t believe the framers had this purpose in mind when designing the constitution. Further, if the constitution limits what amounts to common sense it stands to reason that changes need to be made. In terms of who pays the cost, the lawyer and person filing the claim would be responsible for paying a fee to file to recoup the costs of such a panel if dismissed, if it proceeds to trial and the physician is found guilty they pay, and if it goes to trial and the physician not found liable, they lawyer and person filing the claim would be responsible. Just as there are costs for defense regardless of the merit of the suit, the cost of initiating the process should be borne by the person pursuing the claim. The cost of this could be reduced since the number of cases for each specialty would be relatively small and could be done by state or region. In terms of impartiality, it is pretty straightforward. Members of the panel would be vetted for conflicts of interest prior to making any decisions for things such as previous involvement in cases, drug company involvement, etc. In terms of determining experts, its not as difficult as you would think. If you were to ask me for a list of national experts on various conditions in my specialty, I could produce such a list in a few minutes.
        In terms of saving money, it saves money by eliminating the much higher legal costs associated with long duration trials, juries, etc. Limited evidence would be needed beyond the records and the if the injured party felt the records were falsified could present evidence to suggest such. If it was felt that they were falsified, then witnesses could be presented. When you look at med mal cases, the injured party usually presents the following witnesses: injured party/family member who cares for them/”expert” witness to review care, records/financial analyst to examine long term costs/potential witnesses to event. In such a review the injured party/family member, “expert witness”, and financial analyst would not be needed as is this would be only to see if the case proceeds. Potential witnesses who witnessed the event could be used but these would be limited. Neither the defense or plaintiff would be able to provide an expert as the panel would consist of experts in given specialty.
        You talk about expense and time. You are obviously not a physician. A single malpractice suit puts a physicians entire career at risk and into question. Think about the costs we spend on capital murder prosecutions; why shouldn’t physicians having their lives put under the microscope be given the same level of scrutiny even if it increases the cost a bit. It also allows physicians to be judged by a true jury of their peers; while you refuse to acknowledge it, a lot of med mal attorney focus on the damages of the patient rather than the potential negligence of the physician. Lay juries are far more likely to rely on emotion than scientific facts particularly when they aren’t able to completely understand the medical evidence and data. Physician experiences also suggests that med mal lawyers are more likely to use “experts” who push the party line. The reason is straight-forward; med mal lawyers try lots of cases and can use experts again and again, cultivating a network with time for each specialty, this is less likely the case for the defense.

      • Chris,

        People debate the meaning of the Constitution all the time. Whatever it does, it guarantees the right to a trial by jury. That’s clear. Your statement does not negate that in the least. Simply because you do not like the fact that people can claim damages and believe they’re wrong despite not reviewing the evidence does not change that right.

        So basically you’ve just created an extra hurdle for what reason? This can be done with a procedure that already exists in many states – an offer of judgment. Why have this unwieldy and expensive panel, other than to make it even more expensive for the parties? And why would the lawyer be responsible, on either side? The parties control the litigation and decide when it ends – not the lawyers. Heck, sometimes even the doctor gets to decide whether to settle. And if the side hit with costs files bankruptcy? Who pays this panel then?

        As to impartiality, why should we believe physicians will fairly judge their own? Your own posts already indicate your bias (plaintiff’s lawyers experts say whatever they are paid to, but defense ones can be trusted).

        “In terms of saving money, it saves money by eliminating the much higher legal costs associated with long duration trials, juries, etc. ”

        But you didn’t eliminate the trial. You just added another hurdle – no big deal for the insurer I agree, which is maybe why you’re pushing it. Unless you’re suggesting that the plaintiff cannot proceed if this star chamber says no merit. Is the defense required to admit liability if they do find merit?

        “Limited evidence would be needed beyond the records and the if the injured party felt the records were falsified could present evidence to suggest such.”

        You’re right I’m not a physician, but this comment indicates you’re not an attorney – as you don’t understand how it works. How does someone prove records are falsified if they can’t compel witnesses to give depositions? Where does this evidence come from prior to the discovery process?

        “A single malpractice suit puts a physicians entire career at risk and into question.”

        This is frankly nonsense. There are many, many physicians who have multiple PAID claims still practicing. Forget the unpaid ones, PAID claims.

        “Think about the costs we spend on capital murder prosecutions; why shouldn’t physicians having their lives put under the microscope be given the same level of scrutiny even if it increases the cost a bit.”

        Are you seriously comparing the possibility of an insurance company paying a claim to taking someone’s life? Wow. Malpractice trials already have high levels of scrutiny, from experts on both sides. Your star chamber simply duplicates that and adds more expense and without the benefit of all the evidence.

        “It also allows physicians to be judged by a true jury of their peers; while you refuse to acknowledge it, a lot of med mal attorney focus on the damages of the patient rather than the potential negligence of the physician. Lay juries are far more likely to rely on emotion than scientific facts particularly when they aren’t able to completely understand the medical evidence and data.”

        If this is true, how come juries rule for the physician so often? This physician conceit that jurors are made up of mindless simpletons grows tiresome. Obviously damages are important, but you don’t get there until you through liability, which you have to win at summary judgment, on directed verdict and at trial. And then again on appeal.

        ” The reason is straight-forward; med mal lawyers try lots of cases and can use experts again and again, cultivating a network with time for each specialty, this is less likely the case for the defense.”

        I’m not sure why you believe defense lawyers and insurers don’t use experts again and again. The limited number of lawyers who do med mal defense actually try as many if not more med mal cases as the lawyers on the other side. Why wouldn’t they have a network as well? And if plaintiff’s lawyers do use the same experts, that is brought out in court and the defense bar is more than capable of pointing out the potential bias. Your belief that experts who testify for plaintiffs are all tainted, while the defense experts are just good folks doing the right thing is naive at best.

        And all this is to what end? Making it less likely insurers will pay out money? That’s worth discarding the Constitution?

      • By the way, if you’re going to keep going on this line of “jury of their peers”, why stop at only physicians getting to judge themselves? That hardly seems fair. I know few physicians who could build a house, so I think if your contractor messes up your house, only a jury of other contractors can hear the case. Sound fair?

        How about if your mechanic messes up your car and you’re in wreck which permanently injures you. I doubt you have the ability and training to understand the engineering behind the modern vehicle, so let’s only let car execs decide those cases.

        And oh yeah, when you physicians file class actions against the health insurers for unpaid claims, I think we’re going to need a jury of the insurers’ peers, namely insurance execs, to decide those claims. The terms of insurance contracts are just too darn technical for the layman to understand.

        It’s only fair.

      • A panel of physician experts could be deemed a jury, and it would a jury of the physicians (defendants) peers. Its not about believing that people shouldn’t claim damages but that these claims should be vetted by experts rather than based on rhetoric. An offer of judgment does not use a panel of experts; you consider unwieldly and expensive but fail to accept the costs associated with a full trial. If 30-40% of cases were dismissed prior to trial, the cost savings would be there. The lawyer on the plaintiffs side should be responsible if they are trying to get a piece of the rewards (in for the rewards, in for the costs) particularly in situations where plaintiffs can’t pay for litigation and have no risk to filing a ridiculous claim; they have no skin in the game and it is professional ethics of the plaintiffs lawyer to actually vet the claim before filing. Defense attorneys would not be, but the defendant would be. You mention bankruptcy, this could be non-dischargeable just like a lot of other things are. You argument about physicians fairly judging their own rings hollow in light of judges hearing cases with plaintiffs and defendants who are lawyers; just as conflicts of interest are examined in those cases so could that be done here. As to not eliminating the trial; yes, that’s the point. If it is found to be lacking merit the case would be dismissed without a trial. If the panel finds merit, then it would proceed to a full lay jury trial. You argue that more than limited evidence would need to be presented; plaintiffs would be allowed for discovery (fronting the costs of such including depositions). If there were witness would cannot be compelled than they could be forced to compel to the panel, but my experience with the situation says this is likely < 1 witness per trial. You think that a single suit can’t put a career at risk; a single suit can lead to press coverage, a loss of patients because of it, a hospital not renewing contracts, etc. While many physicians have paid multiple claims and still practice there are a lot who had to move, lost significant income, etc. because of one claim. You obviously don’t view malpractice in the same scope as capital murder but it was hyperbole. I disagree that malpractice trials have high enough scrutiny. What evidence (outside of record tampering) could a plaintiff’s expert provide that an expert panel in the same specialty could not glean from the records?” Your argument that lay juries work because they rule for physicians to me speaks to the fact that there are a large number of unfounded suits that jurors see through but there are still some that jurors miss or where they are swayed by emotion rather than medical knowledge. An expert panel would be able to catch those cases. I don’t think all defense experts are saints; my experience, though limited, is that in such cases the defense finds a leading expert on a certain technique/diagnosis to justify the treatment delivered whereas the plaintiff often find an MD who is far better at speaking to juries and less considered an expert in the field. This isn’t an absolute but has been my experience.
        This isn’t about helping insurers avoid paying out. Its about helping physicians avoid an unnecessary stress in their lives when they are providing good care and are being sued for what is not considered a deviation of standard of care by the vast majority of practitioners in a given specialty.

      • Matt,

        those examples of juries of your peers are laughable. Medicine is a far more complex situation; a physician or lay person can understand the mechanics of a faulty roof or a poor mechanical fix; its far more easy to assign cause and effect in these cases. Not so much for the pathophysiology underlying medical conditions.

      • “A panel of physician experts could be deemed a jury, and it would a jury of the physicians (defendants) peers.”

        That’s fine, if you’re going to extend the courtesy to every type of case. But now you’ve changed your proposal – before it was just a hurdle before you got to a truly impartial jury. Now, though, you’ve just said the foxes completely are in charge of the hen house.

        ” Its not about believing that people shouldn’t claim damages but that these claims should be vetted by experts rather than based on rhetoric.”

        Except there are experts – for BOTH sides, in a trial. And if trials are decided on rhetoric, then you must be arguing the defense is the one spewing most of the mere rhetoric, since they win the majority of the time. Am I incorrect? Are you incensed because the jury usually finds for the defense?

        I acknowledge the cost of a full trial – I just don’t see your savings. You have the same need for all the evidence and all the attendant costs, if not more given that someone has to pay these experts, but you don’t let the parties get an impartial jury.

        Again, though, the insurer benefits if they don’t have to pay the claim, right? Why shouldn’t they ever have to pay when they wrongfully deny an obvious claim? Your comment that the plaintiff’s counsel has no skin in the game illustrates that you don’t understand how it works. They are putting hundreds of hours of potentially uncompensated time in the case, as well as paying all the costs up front. They have more interest in bringing a meritorious case given their outlay of costs relative to their net worth than an insurer has in settling a clear liability case given the size of the award v. it’s net worth. Yet you don’t punish them for taking a clear liability case all the way to trial. And then you try and lecture on impartiality?

        Judges hearing cases with plaintiffs and defendants who are lawyers? Huh? In a case with a lawyer as the actual litigant, one can always request a jury – who won’t be made up of all lawyers.

        So now your panel is going to permit one witness(party taking the deposition already pays the cost)? Despite the fact that multiple physicians as well as support staff may have been involved? How magnanimous of you.

        As for careers at risk, what’s the odds of this happening? And that compares with the death penalty in your mind? Perspective, man.

        Your claims of defense lawyers being able to find capable experts make me chuckle. Tell me again how a multimillion dollar insurer with a budget exponentially larger than the plaintiff’s counsel, is hamstrung in finding experts who are competent at testifying? I hope you realize how silly that sounds.

        “Your argument that lay juries work because they rule for physicians to me speaks to the fact that there are a large number of unfounded suits that jurors see through but there are still some that jurors miss or where they are swayed by emotion rather than medical knowledge.”

        So, based on a problem whose size you cannot quantify, we’re tossing out rights enshrined in the Declaration of Independence and the Constitution. All so physicians avoid unnecessary stress? Truly you need some perspective.

        What I don’t see in all your proposals is anything to actually reduce malpractice. Or make it so legit claims are paid faster. Or punish insurers or doctors who don’t promptly pay legit claims leaving injured parties struggling for years while they work the case over before settling what they should have settled years before.

        You’ve got all kinds of proposals to reduce “stress”, but not much to help with the victims of legit malpractice. People who are suffering far more than just “stress” that their insurer might pay a claim someday.

      • “That’s fine, if you’re going to extend the courtesy to every type of case. But now you’ve changed your proposal – before it was just a hurdle before you got to a truly impartial jury. Now, though, you’ve just said the foxes completely are in charge of the hen house.”
        No my charge from the beginning was to have the panel as the initial decision and only proceed if it is felt to have merit. If the panel does not find merit, the case is dismissed. If I misworded earlier that is my fault but the whole point is that large fraction of cases could be dismissed quicker.
        “Except there are experts – for BOTH sides, in a trial. And if trials are decided on rhetoric, then you must be arguing the defense is the one spewing most of the mere rhetoric, since they win the majority of the time. Am I incorrect? Are you incensed because the jury usually finds for the defense?”
        The problem is that its lot easier to pull at jurors heart string with a plantiff who is injured or sick than it is a well dressed physician who the med mal lawyers paint as a wealthy person with insurance so not to worry about the cost of a judgement.
        “I acknowledge the cost of a full trial – I just don’t see your savings. You have the same need for all the evidence and all the attendant costs, if not more given that someone has to pay these experts, but you don’t let the parties get an impartial jury.”
        I would argue that a panel of expert physicians that are blinded to the physician and institution is about as impartial as it gets. Are you assuming that physicians as a profession are unable to police their own conduct to determine what meets standard of care and what does not?
        “Again, though, the insurer benefits if they don’t have to pay the claim, right? Why shouldn’t they ever have to pay when they wrongfully deny an obvious claim? Your comment that the plaintiff’s counsel has no skin in the game illustrates that you don’t understand how it works. They are putting hundreds of hours of potentially uncompensated time in the case, as well as paying all the costs up front. They have more interest in bringing a meritorious case given their outlay of costs relative to their net worth than an insurer has in settling a clear liability case given the size of the award v. it’s net worth. Yet you don’t punish them for taking a clear liability case all the way to trial. And then you try and lecture on impartiality?”
        I wasn’t commenting about the plaintiffs lawyer not having skin but the plaintiff who can push a case with limited liability if the case is found friviolous. The reality is yes plaintiff lawyers are putting in work but again in my experience, in marginal or dubious cases they put in enough work to pressure a low settlement from an insurer who looks at the costs to mount an defense and find its cheaper to settle than pay for a defense. Insurers would have to pay if they are found guilty. If they take it to trial and lose, the cost of litigation is paid for with the award.
        “Judges hearing cases with plaintiffs and defendants who are lawyers? Huh? In a case with a lawyer as the actual litigant, one can always request a jury – who won’t be made up of all lawyers.”
        Judges still make significant rulings even with a jury trial and there are plenty of judge trials where one litigant or the other is a lawyer. If physicians aren’t impartial enough to judge each other, why should lawyers?
        “So now your panel is going to permit one witness(party taking the deposition already pays the cost)? Despite the fact that multiple physicians as well as support staff may have been involved? How magnanimous of you.”-
        I suggested an avg. number based on my experience with regards to the issue discussed. If the panel deemed more witnesses were necessary or the plaintiff and/or defense presented the need to the panel for my witness which was accepted, more could be included.
        “As for careers at risk, what’s the odds of this happening? And that compares with the death penalty in your mind? Perspective, man. “
        Look it up, its not hard. This happens all the time. Physician takes big judgment, hospital terminates priveleges or contract requiring physician to move their family search for a new job. When you get a new job or move states you have to be credentialed and get a new state license all of which require significant malpractice disclosure and some new hospitals won’t credential you with a history of malpractice suits. That’s the unfortunate reality we are in. A lot of physicians survive a suit, but there are a percentage that find it difficult to continue a career after suits.
        “Your claims of defense lawyers being able to find capable experts make me chuckle. Tell me again how a multimillion dollar insurer with a budget exponentially larger than the plaintiff’s counsel, is hamstrung in finding experts who are competent at testifying? I hope you realize how silly that sounds.”
        I never suggested that defense lawyers can’t find capable experts, what I suggested is that plaintiff lawyers often ( not always) find experts who are better at connecting with juries and sounding right rather than actually being a true expert in the field. In my limited experience, I have never seen a defense team use an MD expert in a completely different field but have seen this several times from plaintiffs. Also, having attended a few trials, when I look up expert witnesses, again, it has been my experience that plaintiffs witness are less likely to be university employed, leading edge researchers and more likely to be retired or older physicians or physicians without a true clinical practice who spend their days in court rooms rather than exam rooms.
        “So, based on a problem whose size you cannot quantify, we’re tossing out rights enshrined in the Declaration of Independence and the Constitution. All so physicians avoid unnecessary stress? Truly you need some perspective.”
        This is not something that can be quantified. How about doing something because it seeks truth and equality. Having impartial vetted experts should never be considered a hindrance to justice. Are you seriously saying that having vetted experts at a regional/state/national level be involved in cases is a bad idea compared with plaintiff/defense lawyers finding physicians to support an opinon?
        “What I don’t see in all your proposals is anything to actually reduce malpractice. Or make it so legit claims are paid faster. Or punish insurers or doctors who don’t promptly pay legit claims leaving injured parties struggling for years while they work the case over before settling what they should have settled years before.”
        I am not searching for a way to reduce malpractice, that is beyond the scope of this discussion. Again, I don’t pay claims. Im a physician and look at this issue from what I see. Victims of malpractice should be protected; the problem is we have far fewer true victims than we do malpractice cases.

      • “No my charge from the beginning was to have the panel as the initial decision and only proceed if it is felt to have merit. If the panel does not find merit, the case is dismissed. If I misworded earlier that is my fault but the whole point is that large fraction of cases could be dismissed quicker.”

        You keep saying this as if it’s true, but there’s really no evidence of it, unless you don’t allow the parties to put on the evidence.

        “The problem is that its lot easier to pull at jurors heart string with a plantiff who is injured or sick than it is a well dressed physician who the med mal lawyers paint as a wealthy person with insurance so not to worry about the cost of a judgement.”

        Again, you illustrate how little you understand the process. One, if it’s so easy to trick these simpletons, why does the physician keep winning so much? And 2, neither the physician’s net worth nor the existence of insurance is admissible in trial.

        “The reality is yes plaintiff lawyers are putting in work but again in my experience, in marginal or dubious cases they put in enough work to pressure a low settlement from an insurer who looks at the costs to mount an defense and find its cheaper to settle than pay for a defense. Insurers would have to pay if they are found guilty. ”

        Why does the insurer get to keep going if liability is determined to exist by your star chamber? And who are these insurers who throw out dollars all the time? Please, tell me. And of course, you again illustrate you don’t understand the process by saying the insurer will be found guilty. The insurance company isn’t on trial.

        ” there are plenty of judge trials where one litigant or the other is a lawyer.”

        How many? In which ones can you not request a jury?

        “If the panel deemed more witnesses were necessary or the plaintiff and/or defense presented the need to the panel for my witness which was accepted, more could be included.”

        So the group who doesn’t have all the evidence will decide if evidence they don’t know about is needed? That is ridiculous. We’re back to having a full trial before the actual trial, with only one side having any downside.

        “A lot of physicians survive a suit, but there are a percentage that find it difficult to continue a career after suits.”

        What percentage and what is “difficult”? Don’t you think we should know before we make your wholesale changes?

        “what I suggested is that plaintiff lawyers often ( not always) find experts who are better at connecting with juries and sounding right rather than actually being a true expert in the field. In my limited experience,”

        This makes no sense. I hope you realize that. If the defense is hiring incompetent experts, then it’s their choice. They have far more funds than the plaintiff. Do you really think insurers aren’t adequately defending with the best witnesses? If you want to argue for tightening of expert witness requirements – fine. We don’t need the star chamber for that.

        “Are you seriously saying that having vetted experts at a regional/state/national level be involved in cases is a bad idea compared with plaintiff/defense lawyers finding physicians to support an opinon?”

        If you’re doing the vetting, or those with your mindset are doing the vetting, absolutely I’m saying that. You are suggesting wholesale changes to a system you barely understand, and all of them are designed to make it harder for one side to pursue a claim.

        ” Victims of malpractice should be protected; the problem is we have far fewer true victims than we do malpractice cases.”

        So where are your victim protection proposals. I just see proposals to make it harder for victims. And do you really believe that last line? Do you even know the number of filed malpractice cases? Do you have any idea how often malpractice occurs?

    • Matt,

      why not have a system where are all lawsuits are intially reviewed by a panel of experts in the specialty at question with conflicts of interest watched and cases blinded. If it is viewed as frivilous it is a loser pays scenario. If it is found to have merit, it goes to a full trial. This also allows the physician to be judged by a true jury of their peers rather than the lay public who may not understand the complexities of the medical situation. It also allows an unbiased review without med mal laweyers “experts” spouting what they are paid to say rather than the accepted standard.

      • Chris, the fact that you can’t see your own bias is indicative of why your proposal is ridiculous. You’re making proposals to resolve a system you evidently barely understand.

        Do you really not see the ridiculousness of having one side be punished for bringing a “frivolous” claim, but not punishing the other for not paying based on a “frivolous” defense?

        The fact that you can barely imagine a situation where the defense experts might not be honest is laughable.

        You do realize that you physicians have recovered BILLIONS from health insurers in class actions due to failure to pay proper claims right? Do you honestly think that health insurers are the only type of insurers who fight and refuse to pay legit claims? That only health insurers have their own physician “experts” who deny charges as unnecessary to benefit the insurer?

        Your blindness is EXACTLY why you shouldn’t be allowed to judge yourselves. And you’re just naive. There are probably others who would deny legit claims simply out of fear that their own insurance would go up, no matter how impartial you may claim them to be.

      • You’re also adding a ridiculous amount of expense to a system that doesn’t need any more with all of these expert panels. And you’re banking on everyone staying solvent to pay them. It’s just totally divorced from reality.

    • Matt,

      those examples of juries of your peers are laughable. Medicine is a far more complex situation; a physician or lay person can understand the mechanics of a faulty roof or a poor mechanical fix; its far more easy to assign cause and effect in these cases. Not so much for the pathophysiology underlying medical conditions.

    • Matt,
      You claim that a panel system would be unfair to the plantiff as they only get one bite at the apple whereas the defense would have two (the panel and the subsequent trial). Isn’t the nature of the legal system; in criminal prosecutions, the state usually has only one shot (I know there are exceptions) while the defense has endless ways out. So is the nature of the criminal system. It stands to reason that in a matter such as malpractice, the plaintiff be held to a similar standard. I have made it clear that I don’t think all plaintiff experts are frauds and all defense experts perfect. But it has been my experience, that plaintiffs laywers use “experts” whose credentials are nowhere near on par with those the defense use but that such experts are quite good at speaking to juries rather than actually discussing the medicine that forms the crux of the argument. You view my arguments as unnecessary since only a small percentage of med mal cases end in a verdict for the plaintiff. The problem is some of those cases end with big verdicts; the cardiologist who was sued after his patient died during a three some and dies and his wife sues. We need a system that truly vets complaints prior to handing over large sums of money, particularly when the science behind the claim doesn’t support the claim or inconclusive. You state you are not aware of cases where med mal attorneys pushing to settle with weak cases; either you are not seeing a lot of cases or are naïve. Im not in the med mal game but have friends on the insurance side; they routinely deal with this as med mal lawyers know what the cost of a defense is and in cases where they’re not sure of a return on their work they push for settlements that are at or below the defense threshold. You rail against the impartiality of a group of expert physicians; these physicians could be picked by a national group (ex. American Board of Emergency Medicine) and go through a process of certification including evaluation by trial lawyers. You consistently challenge the impartiality of physician panels but say nothing about the ethics of med mal lawyers; as you noted, they invest a lot in these cases and so they have a lot to lose. What stops them for pursuing a claim when they realize there is no true malpractice and they already have invested resources. What stops them from seeking multiple “expert opinions” when the first few tell them there in no malpractice?
      You have a problem with the increased expense that provides increased equity to it and the potential for cost savings if done in an efficient manner. I don’t know how this could be extrapolated to other parts of the law but it makes a lot of sense for medical malpractice despite your protestations.

      • Chris, comparisons to criminal law again indicate you’re trying to “reform” (rig in your favor even more) a system you barely understand. You continue to equate an insurer paying damages, damages which they actually agree to pay in this situation, with the criminal sanctions of loss of liberty and life. You claim “savings” which are laughable. They remind me of the claimed Obamacare savings.

        And all based on third hand anecdotes. I would hope you realize the folly in this, especially with regard to Constitutional rights. Somehow I don’t think you do, though.

  10. Matt, how do lawyers handle malpractice amongst lawyers? Is it at trial, or does the bar take care of it?

    • The client files suit against their lawyer and they have a right to go to trial. You can also make a complaint to the bar and the bar (run by the State Supreme Court) can sanction them separately as well.

      Also, if you have a situation where a lawyer has disappeared with client funds, some states put a portion of your dues in a fund for victim compensation, and a victim can make a claim against that.

    • There’s one wrinkle to this, though. One has to find a lawyer who is willing to go against another lawyer.

      Having tried this, I can assure you it is quite difficult.

      Add to that that the trial is presided over by a lawyer who likely knows all lawyer parties well.

      • Ed, while there aren’t a lot of them, there are lawyers who specialize in legal malpractice. With any specialty, it’s going to depend on what the population of where you live is as far as how many. It’s no different than finding an expert physician to testify for a plaintiff.

        I don’t know why you would assume the trial would be presided over by a lawyer (judge) who knows the lawyer party. Many legal malpractice claims are against lawyers who never see a courtroom. And in big jurisdictions there will be many who have never laid eyes on a particular judge. In smaller ones, you can get a recusal – in fact the judge will probably want to recuse if he knows the attorney. I would.

  11. Personally, I like the New Zealand system for compensating victims of medical mistakes. It’s much easier for patient’s to navigate than the US system, and administrative costs are a lot less. It’s a lot less adversarial, and the victims of true mistakes, get help a lot more quickly. It also takes the lawyers out of the equation (gasp).

    Then we can leave it up to the state medical boards to keep doctors accountable. Many state boards are taking a more active role in this now.

    • It’s a good idea, but it works in part because of the deeper social safety net they have, which reduces the need for the higher damages. It’s unlikely we’re going to achieve that now, especially in the current environment.

      And, the government is paying it all. The insurers would never sign on to no-fault. They know there’d be an explosion in paid claims.

      • And the trial lawyers would never “sign on” either because they would lose their entire med mal practice.

        I think all insurers are currently “on board” with programs where hospitals/doctor admit medical mistakes. And the data show that payouts are significantly less in those situations. I can’t see why an insurer wouldn’t want to “pay less”.

        In the NZ system, people get a fixed amount based on their injury, so there’s no “jackpot” potential that there is in the US. All business people love the idea of minimizing their downside risk potential (except for trial lawyers trying to hit the jackpot)

        I believe that Obamacare is the first step toward single payor. I’ve posted that several times here before. I think single payor is a good thing and I wish you’d stop characterizing all doctors as being against it and saying that we “need to keep our stories straight”. Just because we are in the same profession don’t all have the same opinion on these issues. I think a productive exchange of ideas is a healthy thing, but your inflammatory statements are not contributing to a productive dialog.

      • An attorney who can competently try a med mal case can competently try about any kind of case. On either side. You really think they’re a bigger impediment than the insurers, who would no longer exist? Be serious.

        I hope they are on board.

        I love it when you guys use “jackpot”. Yes, victims with massive damages are sure “winners”. How lucky they are.

        Lawyers are business people too, as we all (including doctors) have to earn a living. Everyone likes to minimize risk. Is this news?

        That’s great about the NZ system, and I think with Obamacare we’re headed that way. But if you’re going to embrace it, give the victims of malpractice the social safety net of NZ as well.

        I didn’t say you were all against single payor. In fact I’ve noted that your largest lobbying organization was for Obamacare, so clearly you’re not all against it.

        I’m not sure what you’re talking about with inflammatory statements. I said no fault was a good idea. I just said it’s not going to happen here as we are already having a massive debate about whether we can sustain the current level of our social safety net.

        The fact that insurers would not want the government to take over med mal isn’t inflammatory, either. What entity wants to be legislated out of existence?

        What in my reply to you was inflammatory? I AGREED with you. It is you who is using inflammatory terms like “jackpot” and accusing people of opposing things just so they could hit this mythical jackpot.

      • “saying that we “need to keep our stories straight”

        I was saying that with regard to some of you asserting that the fact juries find for physicians more often than not is evidence that the system fails. Then other “reformers” assert that juries are so simple any tricky lawyer can get them to award millions for any tale of woe this evil lawyer spins and although we allow juries to put people to death, we can’t trust them to award damages.

        Those were the stories the “reformers” need to get straight.

      • Thor I misread your “on board” comment. I really doubt insurers are on board with any program that would require them to pay more faster. While individual payments may be less its likely that if the process of making a claim wasn’t so onerous that many many more would file. Including the numerous low damage claims not currently viable.

      • Quod erat demonstrandum

      • Never seen someone so fussy because another agrees with them, Thor.

  12. In a way I’m glad i got dragged in to my 1 and only lawsuit. It played an important role in giving me the resolve to leave clinical practice. I now work nonclinically, get paid the same salary as when I was an emergency physician, work no overnights, take vacation when I want to without worrying about being turned down due to insufficient staffing, and have ZERO risk of being accused of malpractice.

    The endless debate being had here about how to reform the medmal system, and the powerful forces that will keep any reform from happening, is rendered wonderfully meaningless to me. This f**ked up system has no effect on me at this point. Suck it, America! My services are no longer available to you.

  13. Retired because of this kind of crap.

    I’m with you Joebob, and as I said far, far above: “…that is very, very sad. Sad for physicians, sad for the profession of medicine, and sad for patients. Dangerous and wasteful too.”

  14. Doc in a state with a panel

    Indiana has had a medical review panel system in place since the mid 70s thanks to a physician governor at the time. While the panel doesn’t have an absolute say on whether a case can move forward or not, what they decide seems to be weighted pretty heavily. I think something like 80% of the cases are weeded out by the process.

    The panel, combined with caps on payouts, a state patient compensation fund, and a 15% cap on attorney fees, makes the malpractice environment here fairly reasonable. The lawyers really, really hate the system and have been trying to get it overturned for years.

    Some of the initial ACA versions actually had a “tort reform” section. Their version of “tort reform” was to withhold federal funds to any state that capped payouts or attorney fees. Yes, the lawyers are MUCH better at politics than we are. They put their own in office and give tons of money.

    If you push trial lawyers hard enough you can eventually get the truth out. I have had many heated discussions with my significant other’s father who is a trial lawyer that does a lot of personal injury/malpractice work. Usually he loves to talk about “justice”, “helping the little guy”, or “checks and balances” when defending what he does. It was a personal victory when one day I got him to admit that “yes, they are all greed cases”.

Leave a Reply

Your email address will not be published. Required fields are marked *

*

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>