They have “evidence” - an otherwise healthy woman dying of invasive cervical carcinoma despite several consecutive Pap smears that were signed out as negative. Cervical cancer is a slow-developing disease; this unfortunate lady didn’t develop her cancer during the year between her last negative Pap smear and her hysterectomy for supposed endometriosis. She’d no doubt had that tumor for quite a while; it was the cause of her chronic abdominal pain. Most people don’t appreciate that the Pap smear has a known (and fairly high - about 10%) false negative rate; to the average non-medical person, this doesn’t look like an unfortunate limitation of medicine, it looks like a gross error.
(Really, the only thing unusual about this case is that there were absolutely no abnormal cells on any of the Paps - at least, none that I saw. In the more usual Pap smear litigation case, an expert witness finds one or two abnormal cells on a slide and claims this is clear evidence of incompetence on the part of the cytotech and the suprevising pathologist. Of course, the expert witness looked at that slide for 45 minutes, while a cytotech screens 100 slides a day and only spends about 10-15 minutes on each slide. If we spent 45 minutes on each slide, Pap smears would be unaffordable.)
A definite “no” to #1 and #2. All doctors are in a position where they can seriously injure or kill a patient.
I think #3 may be more apropos - certainly OBs suffer from the fact that the average juror 's heart goes out to a brain-damaged kid perhaps more than it would to an equally-severely impaired adult.
The Russian roulette analogy isn’t as flawed as you might think. Remember, patients can bring suit for anything, justified or not, so long as they can find an attorney willing to represent them in court. And even a case that never makes it to trial can tie up hours of the physician’s time and cost the medmal carrier thousands of dollars.
No, I am not suggesting that physicians be shielded from liability. But putting caps on the “pain and suffering” portion of an award, and perhaps adopting Shodan’s suggestion of channeling any punitive damages assessed into some sort of pool to be used in improving healthcare, rather than awarding it directly to the patient, would cut down on the “lottery ticket” mentality that drives some people to sue. And perhaps medmal cases should be screened by special panels of experts before they are permitted to go before a jury, to get non-meritorious cases out of the system as quickly as possible.
In my state, they often are - and for good reason.
“Rural”, Luc, to answer your question about the discrepant statement, is relative. MsRobyn lives in Pennsylvania, a state that has large areas considered “rural” by the standards of people living in the northeast. When I moved to that part of the country, I laughed outright when folks there talked about “rural Pennsylvania” - why, you couldn’t drive for more than a half-hour or so without passing through at least a small town!
I practice in Nebraska. Nebraska has a total population of about 1.7 million people - and over 1 million of them live around Omaha, Lincoln, and along a corridor connecting Omaha and Lincoln. That leaves fewer than 0.7 million people for the entire rest of the state. If we were still in the 1880s, large parts of this state would legally qualify as frontier, as the population density in those areas is less than 2 people per square mile. My group provides outreach pathology services to several hospitals throughout the state which are too small to be able to afford to hire a full-time pathologist. When our pathologists go to may of those hospitals, they go by fixed-wing aircraft, because the driving distances are simply too long to be practical. (One of those hospitals in in Scottsbluff, in the Nebraska Panhandle - the distance from Omaha to Scottsbluff is 454 miles.)
In very small towns with only a few hundred or a few thousand people living in them, it can make sense for a family practice physician to provide basic obstetrics care for low-risk pregnancies. For a woman in Valentine (the largest city in Cherry County, population 2820), the nearest sizable town is North Platte (population 24,000) - and North Platte is 130 miles away. Omaha, with its university hospital, is 300 miles away, a 6-hour drive. These are not simply “inconvenient commutes” we’re talking about here!
Maybe she’d had it a while, and maybe she hadn’t. Almost this same exact thing happened to me a little over a year ago; a lifetime of (religiously annual) clean Pap smears, followed by an abnormal one which turned out to be cervical cancer (thankfully, not anywhere near the stage this poor woman had reached; in the end, it turned out the subsequent biopsy actually removed all the cancerous tissue, it was so limited, and I’ve been fine ever since).
Yes, I knew Paps had a high false negative rate, but I too was very freaked out at the chain of events. How could I have several false negatives in a row? My doc’s explanation: she said of the 100 or so types of the HPV virus that causes almost all cervical cancer, a few subtypes (one of which I had; lucky me!) is much more virulent and progresses much more quickly than the rest. That, and that was the first time she’s departed from teh traditional Pap and done a Thinprep Pap on me. So who knows whether I had it before, and it just wasn’t detected by the older test? It will probably have to remain a mystery.
(And no, I didn’t sue anybody. I was just happy they caught it early and I was OK with just an outpatient procedure under local anasthesia.) The moral of the story: don’t skip Paps! If I had, I might be dead or dying now, because the cancer was about to become invasive.
If, as you seem to be, you are equating jury awards and/or our malpractice system in general with accountability, and if, as you seem to imply (or I at least infer), you derive a correlation between our system of malpractice awards and increased patient safety/decreased doctors malpractice due to this increased accountability, do you have any numbers to back it up?
Do we have less incidents in this country of doctor error/malpractice than occur in other developed countries which have far more stringent limits on malpractice suits?
According to your logic, it would seem that more caps on malpractice suits = less doctor/hospital liability = more doctor error.
Eva, this woman’s tumor was quite different from yours - it was very, very deeply invasive (2 cm or greater, as I recall), and extended well beyond the surgical margins of the cervix. It’s possible to develop CIN lll or even microinvasive squamous cell carcinoma in a year’s time, but not a tumor that size. The pain that woman had been experiencing, which was mistakenly attrbuted to endometriosis, was caused by the tumor spreading beyond the cervix and into adjacent pelvic structures - and she’d been having that pain for more than a year’s time. She’d done everything right, she’d never (to my knowledge, at least) skipped any Paps - and yet she’s dying anyway. But that case is just an exceptionally sad example of medicine’s limitations. Even getitng a ThinPrep Pap smear yearly doesn’t guarentee a woman won’t die of cervical cancer; it just greatly decreases the chances of it happening. Unfortunately, a sizable segment of the population demands perfection in medicine, even though perfection is impossible to obtain in any human endeavour, and when perfection isn’t forthcoming they aren’t as understanding as you are.
I work in the medical field as a paramedic – a group which recently also has come under the eye of medical malpractice lawlyers. Here are my thoughts on lawsuits…
One basic premise that seems to come about is that the doctor, nurse, paramedic, ect. was intentionally being negligent. Hea, guys, you’re dealing with people here. How anyone reasonably expects doctors to be right 100% of the time is beyond me. Medicine is a team sport for a reason, to minimize those mistakes by allowing more than one person to be involved, but it is still going to happen.
Each time I touch a patient, I am doing my best to do what I believe is right for them. I don’t keep sterile fields because I’ll get sued/fired/disciplined if I don’t; I do it because that is what is best for the patient. Now if someone was to get injured (gurney tipped over), or has a bad outcome (died in spite of my efforts), I’m going to question if there was anything else I could have done, or should have done differently. I don’t need someone to sue me to get me to do that.
Now what is the answer? That I don’t have. I do think that the amount of $ being awarded is getting out of hand. I do believe that there are a large number of lawsuits being filed just to get a settlement. However, while I am all for holding medical professionals accountable for gross negligence, I don’t like the idea that if I make a mistake simply because I am human I can get my ass sued off for it.
<hijack>
And lets shift some attention back to the patient, where it belongs. The patient has the right, and the responsibility, to question every decision, procedure, and medication that a doctor makes or recommends. Too many people blindly follow what the doctor says, just because the doctor says so. Lets take a little accountability for one self here. Can you stop the doctor from cutting off the wrong leg once he knocks you out? No. Can you stop him from giving you a drug you don’t believe you need, or get him to help you find a better one because you don’t like the one you’re taking, absolutely.
artemis:But putting caps on the “pain and suffering” portion of an award, and perhaps adopting Shodan’s suggestion of channeling any punitive damages assessed into some sort of pool to be used in improving healthcare, rather than awarding it directly to the patient, would cut down on the “lottery ticket” mentality that drives some people to sue.
But it might not bring down medical malpractice insurance rates all that much. Remember, insurance rates are based on other factors in addition to losses from payouts for liability cases.
This US General Accounting Office report (pdf) tentatively concludes that payouts in malpractice suits are the chief factor pushing up the insurance rates, but also notes that companies raise premiums to make up for investment losses in bad economic times. Moreover, it complains about the lack of necessary data to determine what’s driving insurance rate changes.
In other words, the question is: are skyrocketing med-mal insurance rates really due to some kind of explosion of litigation or excessive awards, or are insurance companies trying to get doctors (and plaintiffs) to make up for their lost profits in investment income? Or both?
Here is an op-ed (from a trial lawyer, admittedly) arguing that at least in New Jersey, rising insurance rates are due to insurance-company profit-grubbing rather than to a sue-happy clientele:
In NJ, at least, there seems to be no med-mal “litigation explosion”: instead, there’s actually a steep decline in lawsuits. Are we doing the right thing by blaming the problem primarily on greedy patients and focusing on tort reform, rather than sharing the blame with greedy insurers and seeking insurance reform too?
(And by the way, I wish people would stop posting reasoned discussions of important and complex issues in the BBQ Pit! Any chance the OP could ask a Mod to move this to Great Debates?)
Oh #### you, you ####### ######! Kissing up to everyone just get people pleasently predisposed to your pissant POV! You slimey son of a salamander! You … That better?
Anyway.
Those numbers are open to debate, reasoned or otherwise. Certainly the overall economy and performance of investments also impacted medical mal rates, perhaps in a few states more than medical mal pay-outs did. Those states were the exceptions, I think. Most insurance companies did lousy in the markets for several years; all had rates go up as a result; generally those companies with larger payouts had rates skyrocket much more than those without. Others may have taken advantage of their fellow companies problems to gouge a little. The situation is indeed complex, and must also allow for the effects of years of cutthroat competition leading companies to take some less favorable acturial mixes for their rate structures or risk not having business and then having to payout when they had no investment reserves to buffer. Several big players have folded as a result. If time allows (today is likely to get busy) I’ll find some of the analyses that came out after those reports that concluded investment performance was a smallish factor in this variability most of the time.
I would, however, refer you to my posts for a commentary on how the specter of jackpot awards impacts medicine beyond its effect on medical mal rates and those rates consequent impact on access to healthcare.
Well, look. Either there is evidence of malpractice or there isn’t. In your professional opinion, the relevant doctors didn’t do anything wrong. Someone else’s opinion might be different. But if the consensus really does support your analysis, then I doubt any lawyers would take this person’s case.
I don’t understand your point. Certainly the fact that “all doctors are in a position where they can seriously injure or kill a patient” doesn’t mean that (1) and (2) are incorrect.
I don’t understand your point here either. #3 talks about the ease of detecting and proving malpractice, not about emotional appeals to juries.
The second clause represents a huge huge “if.” Attorneys do NOT sign up every case that walks into the door. Far from it. And insurance carriers do NOT make an offer in response to every demand letter. Far from it.
And it can cost a lot of time and money for the patient and his or her attorney. What’s your point?
Well, earlier you said this:
It seems to me that if this claim is correct, then the proposals you just made wouldn’t have much of an effect. Physicians would still be reluctant to discuss or admit mistakes, etc.
Perhaps, perhaps not. If MsRobyn really believes that using an obstetrician is a life or death matter, then perhaps she would not object that folks are being channeled by market forces into traveling long distances to seem them.
Errr, for what it’s worth, I do believe that the possibility of being hit with a malpractice suit, including the possibility of a large jury award, makes doctors, hospitals, and other health care providers less likely to commit malpractice than they otherwise would.
Absolutely not. It’s based purely on my common sense and general knowledge of human nature. I didn’t enter this thread to debate that issue, although if I find the time, I will try to dig up some numbers to support (or undermine) my position.
I have no idea beyond my own speculation. Although your question makes me wonder what the situation was like in the Soviet Union and/or communist China. If doctors and/or hospitals did not face malpractice liability in those places, and committed more malpractice, it would support my position. If I find the time, I will try to look it up.
This has given me my laugh for the day! Be real. The issue for the lawyer is how big the potential payout is, balanced with whether or not there is a reasonable enough of a chance that they can convince a jury that there was malpractice. (One out of ten seems to be enough of a chance.) Are there differences of opinion out there? Can I find someone who can seem authoritative to say this was an error? Is documentation sparse enough? A sympathetic enough plaintiff and situation? Not if there was malpractice or not.
Amazing how your common sense can lead you so astray. You are among the many who simplistically believe that more is better. Defensive medicine has been estimated to directly cost at least $50 million additional per year in this country. (Legally you are always better off having ordered and done more than less.) But that is only the top of the iceberg. Defensive medicine is bad medicine. Each of these tests is of low risk perhaps, but they are done so often that real harm does result: directly from the test and indirectly from one bad result inducing another questionable result and a series of increasingly aggressive medical misadventures follow. You see every test has a false positive as well as a false negative rate. If you order tests in extremely low risk situations, then even a highly specific test will be much more likely to get a false positive than a true positive result. And the cost of that false positive is more testing and or interventions that have real risk. For a situation where no problem exists.
And again how the legal process hamstring attempts at a systems approach to improving patient care.
You see your view of human nature is that we docs are bad guys who will get away with what we can if it wasn’t for the noble lawyers defending consumers’ rights. I see a bunch of people who certainly want to be fairly compensated but who were bright enough that could have made more in another profession with less training investment required. I see people who really want to a good job, if not for the good of their patients then out of ego. But who will occassionally make mistakes out of humanity. I see people who need the tools to help them recognize their errors and how to learn from each others mistakes, because they all want to be the very best. (We are competitive bastards above all else!)
This has to be one of the fucking dumbest things I’ve ever heard. Period.
You apparently do not work in the medical field. The vast majority of those in the medical field are practicing medicine because they love what they do. We’re not doing it for money, fame, or pride. We do it because want to help people and because we love what we do. On a nightly basis I perform procedures on my patients that have the possibility of causing further injury, illness, or death. I perform them to the best of my abilities, not because I was worried that the company was going to hammer me for making a mistake, but because I want the person I am taking care of to get better.
I’m all for holding people accountable for their mistakes. What I don’t understand is the thought process that a large sum of money is required for this. If a doctor mistakenly damages a nerve during surgery, requiring an extended hospital stay and rehab, I’m all for the doctor’s insurance paying for related expenses, lost work time, ect. Why does someone need an extra million dollars to make their life whole again? Let’s take that money, or a smaller, reasonable amount, and reinvest it into continuing education and quality improvement to help insure the mistake does not happen again.
Doctors would still be liable for actual damages, so their accountablity has not been affected at all. Likewise their accountability for punitive damages. But my assumption is that plaintiffs should not benefit by the bad acts of others, thus they should not benefit from receiving punitive damage awards. The rest of us, who have been harmed by the wrongful actions of those found at fault, receive those benefits. The harm caused to the specific plaintiff is covered by the actual damage awards.
Tort reform is going to cost the lawyers, no doubt about it. But they are unfairly benefiting from the current system, and it should be changed, since the harm to the rest of us (in higher medical costs, litigation expenses, and general waste and inefficiency trying to protect idiots from themselves) outweighs the benefit to lawyers.
…legally deny medical care to lawyers?This would seem to be one possible solution! IfJames Sokolove (JD) cannot get medical treatment, he might alter his behaviour regarding malpractice lawsuits!
I’m not sure what your point is. Do you concede that in the situation described, and assuming that the consensus is as I describe, that a lawyer would be unlikely to take the case on?
Let’s make sure I understand you here: Is it your position that each and every time a test is done out of liability concern, it’s a waste of time?
And let me ask you something else: Does your (or your hospital’s) insurance carrier question you and/or your hospital about its policies, procedures, and conditions? Does the carrier do audits? Do you think these questions and audits are a complete waste of time? What do you think is the main motivation of the carrier?
That’s a bit of an overstatement, but I do believe that doctors are human like everyone else.
So you think that doctors are never lazy or sloppy? You think that doctors’ judgment is never compromised by a desire for more income? Gimme a break.
Any chance the OP could ask a Mod to move this to Great Debates?)