DoctorsKnowUs.com: Helping Doctors Blacklist Patients

The BBQ Pit
101

Let me ask you the same question I asked in the last post: 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?

Let me propose a hypothetical and see what you say. Suppose a 35 year old computer programmer goes into the hospital for a routine procedure, and due to clear negligence on the part of the doctor, ends up paralyzed from the waste down. He’ll never be able to walk or run or dance or have sex again. Don’t you think it’s a little unfair not to compensate him at all for that loss?

102

I’m not sure I understood your proposal then. But before we quibble about it, let me ask you a question: Under your proposal, do you think that average total awards assessed by courts against doctors would go up, go down, or stay about the same?

103

Luc,

As to your “consensus” issue: my point is that “consensus” doesn’t enter into it. Let us take an example from this board - someone is misdiagnosed, told they have a wart under their fingernail and is then told by another doc that they actually have an osteomyelitis and will now lose the tip of their pinky. (The story went on, but this is enough for this thread.) What if that misdiagnosis was clearly a sloppy mistake that resulted from a rushed doc not listening completely to the patient’s story? But it would take the hours of expert testimony, investment etc, and what if the potential client was a 70 year old fat gay neo-nazi who would not engender lots of sympathy? How many lawyers would take that case? For the damages associated with a pinky tip? This guy wasn’t those things; he was in his forties and a successful family guy - he was still told that no one would likely take his case.

Worse. That most often it is more harm than good.

I can’t answer for the hospital; not privvie. But no, the insurance company doesn’t audit my cases or policies in the office. They do offer classes on how to document proactively. They don’t tell us how to practice or how to make medical judgements.

I think that lawsuits have little correlation with who is lazy or sloppy or greedy, other than that successful lawsuits often have more to do with lazy or sloppy documentation, rather than actions. (Example: Failing to document that the child was alert and active when they came in for a routine mouth sore with fever but several days later, after being well and afebrile for two days, the child happened to develop menigitis. Did you assess the child for being alert and active? It isn’t written down, therefore it didn’t happen. that child might have been comatose at that visit but you didn’t assess for it!) And sure documentation is important, but these are awfully big slaps for being brief in the chart. As to the desire for more income - most suits are for not doing (failure to diagnose), rather than for doing - the income hogs with their in office labs, radiology suites, and surgicenters usually are not being sued for ordering the test or advising the procedure when watchful waiting might have sufficed. Restraint is riskier from a malpractice POV, even if it is better medicine.

104

I still don’t see your point. 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?

Just so we’re clear, you are saying that in each and every case, the harm is equal to, or outweighs the good?

Do they ask you questions about the way you practice? Do they ask you questions about your procedures? Frankly, your answer seems kind of evasive to me.

I take it you concede that your previous characterization was a little on the generous side?

In any event, let me ask you this:

In what percentage of medical malpractice lawsuits did the doctor (or some other health care provider) make a mistake that caused or worsened the patient’s injury?

105

I am really the one who doesn’t understand your point. If a lawyer knew that a medical consensus existed that malpractice had occurred, and that the case would be likely worth the investment of resources in terms of a settlement, then they would take the case. And the point is? They would also take the case if there was no such consensus but the case was concievably winnable, if the possible pay-out was substantial enough. Just simple business. If it costs me $15K to invest in the case, and I have a one out of ten chance of winning a $1,000,000 dollar settlement, and my share of that would be $300K then that case is a very good case for me to take. The bigger the potential jackpot the smaller the odds of winning that make good business sense. “Consensus” really doesn’t enter into it.

“Each and every case” … nah I’d never argue absolutes. I am sure that cases exist were something done for defensive purposes did some good. I am discussing in the aggregate, on the whole, overall … not whether an exception exists. That is why I said “most often” and not “always.” Clear?

What is evasive? The answer is a clear “No.” I am not asked about my policies or procedures or practices.

And no, I stand by my characterization. Most docs are good caring people. Most docs get sued.

And finally I have no idea to the figures. Anecdotally, I think only a few but that is an admittedly biased view. The closest to impartial we have, again, is what the courts think, and they think only a small fraction of those that get to trial. Do those that settle represent a higher percentage of medical mistakes as causitive factors or not? No way to know.

In converse, I think that medical mistakes occur frequently. Human error is unavoidable. If the systems are insufficient then harm can result. A few go to trial and a few hit the jackpot. Many get nothing, either because the case isn’t big enough to interest a lawyer, or because they aren’t sympathetic enough of plaintiffs, or because the patient likes the doc and understands that they tried their best but made a mistake. The current system is intrinsically unfair and inequitable to all involved.

106

“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?”

Sorry if I was not clear – I work for a private ambulance company

I have no idea if the insurance company audits our charts. I also am not in management to know this. I do know that all of our protocols on how to practice medicine were set by doctors from the local ED and for the ambulance company. I know that we internally audit our charts to help insure that we are doing the best for our patients that we can. Now if the insurance company is auditing our charts, I am sure that they are doing so to help insure we are not going to get sued. It is in their interst that we don’t get sued. I can say that they have no influence on how medicine is practiced in our field, due to the involvement of many parties in making those decisions.

“Let me propose a hypothetical and see what you say. Suppose a 35 year old computer programmer goes into the hospital for a routine procedure, and due to clear negligence on the part of the doctor, ends up paralyzed from the waste down. He’ll never be able to walk or run or dance or have sex again. Don’t you think it’s a little unfair not to compensate him at all for that loss?”

If a doctor is grossly neglegant, such as coming to work drunk/high, I am all for him being punished. I also believe that there are relatively few cases where the doctor/nurse/paramedic are grossly neglegant. The remaining cases involve honest mistakes. No intent was present to cause any further harm, it just happened. Multi-million dollars for situations like this is where I have an issue.

107

Probably go down. That is largely the idea.

It would also lead to more settlements out of court, in cases where doctors are willing to settle for paying actual damages, rather than resist the idea and go to court. Thus cutting down on the transaction costs of recovering actual damages.

The whole purpose of my proposals is to reduce the overall cost of health care, so it may not be productive to consider only their effect on court-awarded settlements. I am hoping that a reduction in the amount awarded for pain and suffering (and loss of companionship and so forth - non-economic damages in general) will reduce the cost of malpractice insurance, and thus make health care more affordable and more generally available. As well as allowing more doctors to take on high-risk patients.

But I am also hoping that there will be fewer cases of large punitive damage awards, since much of the motivation to ask for punitive damages is removed from the plaintiff and her attorneys. If I am not going to collect, I am more likely to settle for reimbursement of my actual damages, and avoid the overhead of court costs and trials.

The publicly administered fund I mentioned would thus receive less money, but since it is receiving none at all now, any increase would be an improvement. Judges may need to be allowed to impose punitive damages on their own initiative, and the criminal justice system will still operate, so those sanctions on gross negligence or malice will still be available to hold doctors accountable.

Lawyers can still ask for punitive damages, but they would only do so when they actually believed they were merited, rather than simply another way to shake the money tree.

I would even recommend the proposals for torts in general, not simply medical malpractice. I see no reason why law firms should reap billions from punitive damages against tobacco firms, for instance. Those lawsuits should have come from the various attorneys general of the several states, not from private firms looking for a payoff.

I am disinclined to believe in the equation “Larger settlements == more accountability == better health care == more justice”. This disregards the effect on the marginal costs of delivering health care.

Regards,
Shodan

108

Ok, and let me ask you a hypothetical question: If a change were to be made in the law that resulted in average awards assessed against doctors dropping by 98%, would you agree that doctors would have become less accountable?

109

Ok, so you think that whatever questions asked by the insurer are a total waste of time?

I don’t understand your position. Can you define what you mean by “honest mistakes” and give me a few examples?

110

Correct, you’ve missed the point. Let me ask the question again with emphasis on the word “unlikely” and with an explanatory parenthetical:

Do you concede that in the situation described, and assuming that the consensus is as I describe (i.e. that the medical community agrees with your statements as to the limits of pap smears) , that a lawyer would be unlikely to take the case on?

That’s not exactly what you said before.

That’s not exactly what you said before.

Ok, let me ask you a couple followup questions: In what percentage of medical malpractice cases where the plaintiff prevails is the jury award far in excess of what you deem reasonable? In those cases, what is the average excess? Conversely, in what percentage of medical malpractice cases where the plaintiff prevails is the jury award far below what you deem reasonable?

111

No.

I mentioned before that I don’t measure “accountability” by the amounts collected by plaintiffs and lawyers.

Put it this way - suppose they passed a law that mandated a $10 million fine on any lawyer who was found to have filed suit on behalf of a client whose case had no merit. Would you agree that such a law would make lawyers more accountable?

Regards,
Shodan

112

Well, it seems to me that your definition of “accountability” is a little unusual. For example, I think that most folks would agree that a law giving doctors total immunity from civil liability for malpractice would make doctors less “accountable.” Under your definition, however, they would not be.

Of course, you are free to use whatever definitions you want. But it seems to me that if you are going to contradict somebody’s point by using an unusual definition of a word they used, you should make it clear from the beginning.

Just MHO of course.

Of course.

113

What the hell are you talking about?

Nowhere have I advocated making doctors immune from lawsuits. I can only conclude that you are unable to refute the arguments presented, and have therefore resorted to misrepresenting them to have something to argue about.

Under my reforms, doctors would be completely accountable for actual damages, as well as for any punitive damages assessed. Don’t talk stupid.

Well then, since accountability is a good thing, do you support such a law?

And, since (apparently) the greater the consequence the more “accountability”, and since unlimited “accountability” is so obviously a good thing, how about $500 million? How about $10 billion? How about the death penalty?

Or is there some point at which the harm to the rest of us by raising the transaction costs of health care, or legal advice, or anything else, become too high to support?

Regards,
Shodan

114

Quote:
There could be situations where, for example, someone comes in for a condition like irritable bowel syndrome and something sets off an alarm with the treating physician. He/she checks and finds out that the last four MDs who’ve treated the patient have been sued. Should the M.D. have the right to then suggest that the patient get treatment elsewhere?
[/quote]

How is this different than any other business or individual providing service exercising their rights to, as the sign goes “We Reserve the Right to Refuse Service”???

If a patient has proven themselves someone prone to frivolous and career damaging lawsuits against doctors, then those providing the service against which this person BRINGS lawsuits, they absolutely have the right to protect themselves. Even IF that means “sorry, I cannot take you as a patient”.

This does NOT constitute “denying treatment” to that patient, the patient is perfectly free to seek treatment elsewhere. It might mean that this particular patient has to sign waivers guaranteeing non-suits against that doctor.

Quote:
the physician is forewarned of what may lie ahead and can protect him/herself with extra documentation, specialty referrals and the like.

I think you misunderstood the above poster’s meaning. I believe that what he/she meant, was that if the doctor is cognizant of the patient’s proclivity for frivolous and/or damaging lawsuits, he can then document items that would protect him in CASE of a future suit, NOT that he would provide better care or better medical records, but that he would make sure that the patient couldn’t lie and say the doctor did something negligent.

Quote:
I also did not see in that story any documentation that physicians are “blacklisting” patients, or that anyone had necessary treatment withheld because of data on the website.

Ah, you’re a mindreader. I see. You have no way of knowing any such thing. It’s very likely that the site exists to provide protection and forewarning and is NOT there for doctors to refuse treatment just because a patient has been involved in a suit.

115

And nowhere have I claimed that you advocated making doctors immune from lawsuits.

Maybe I need to spell it out for you real slow-like:

Under . . . your . . . definition . . . of . . . “accountability” . . . making . . . doctors . . . immune . . . from . . . lawsuits . . . would . . . not . . . affect . . . their . . . “accountability.”

Kindly show me where I misrepresented your position.

[quote]
Under my reforms, doctors would be completely accountable for actual damages, as well as for any punitive damages assessed. quote]

I’m not sure what you mean by “actual damages,” but under the definition of “accoutability” that I have been using, your proposal makes doctors less accountable. Now, you are free to come up with your own definition of “accountability,” and argue that your proposal does not reduce doctors’ accountability. But like I said, you should alert people that you are using an unusual definition.

Accountability is not necessarily a “good thing.” Let me make my earlier statement a little clearer:

I am skeptical that making doctors and health care providers less accountable than they are now will improve the quality of patient care.

A side note: Quite frankly, it appears to me that you are responding to points you have imagined me to be making and not to points I have actually made. I’m not sure if this is because you are setting up straw men or if you just aren’t reading my posts carefully. I’m certainly not going to let you get away with it though.

116

I…have…nowhere…advocated…making…doctors…immune…from…lawsuits…
and…so…your…argument…is…moronic…because…it…is…based…on…a
…proposal…I…have…not…made…or…implied…

See above.

Nope, another misrepresentation.

As I mentioned, doctors under my proposal remain completely accountable for actual damages and all punitive damages, plus up to $250,000 for pain and suffering. Your assertion that I advocate removing their accountability for whatever damages they inflict thru negligence is simple bullshit. You either cannot understand English, or (more likely) understand fully, but choose to misrepresent a position you cannot refute.

Let me make your earlier statement a lot clearer:

Unlimited accountability is fine for doctors, but not for lawyers. In other words, you are perfectly willing to subject others to a standard you are not willing to apply to yourself.

Why does the threat of being sued out of business automatically improve the quality of health care, but does not have the same effect on legal practice? If doctors work better under threat, why don’t lawyers?

I am trying to come up with a justification for your attitude besides hypocrisy. Not having much success, I am afraid.

Regards,
Shodan

117

I’m well aware of that – it was a HYPOTHETICAL I proposed to show that your DEFINITION of “accountability” is unusual.

Kindly show me where I claimed that you were making that proposal.

I NEVER made such an assertion.

And by the way, can I take it you now concede that complete immunity from civil liability WOULD lessen doctors’ accountability?

I made absolutely no claims about the proper level of accountability for lawyers.

Anyway, your strawmen are getting really old. Really old.

118

Shodan,

Hey, don’t get too frustrated. The rest of us understand that Luc’s definition of accountability is the unusual one. Accountability does not mean level of punishment, it means who is held responsible. Punishment is not accountability, it is an issue of fairness and of accomplishing goals. Being executed for stealing a loaf of bread when starving is not holding me any more accountable than would be requiring me to pay for the loaf plus provide the baker with a month’s worth of menial servitude as penance. Both hold me fully accountable for my action. One seems more fair. greater punishemet doesn’t always better accomplish the goals; sometimes it prevents goals from being accomplished, including the goal of accountability.

I think that your proposals are a good start. They hold physicians fully accountable but begin to make the process a bit more fair. They hold those more responsible as more accountable, and eliminate the deep pocket equals more accountability even if less responsible mentality.

Do you have any comments on the types of proposals that I referenced earlier that encourage a greater systems approach to medical errors? I think the proposal goes farther to provide fair compensation to those injured by preventable errors whether or not they can interest a lawyer in the case, while doing more to reduce preventable errors. I am interested in your thoughts.

119

Err, since you feel the need to jump into this little semantic spat, maybe you feel like taking a shot at a question I had asked earlier:

If a change were to be made in the law that resulted in average awards assessed against doctors dropping by 98%, would you agree that doctors would have become less accountable?

And maybe you can point out where I claimed that shodan was proposing making doctors immune from lawsuits?

And perhaps you feel like taking a shot at the questions I asked of you in my last post?

Do you concede that in the situation described, and assuming that the consensus is as I describe (i.e. that the medical community agrees with your statements as to the limits of pap smears) , that a lawyer would be unlikely to take the case on?

In what percentage of medical malpractice cases where the plaintiff prevails is the jury award far in excess of what you deem reasonable? In those cases, what is the average excess? Conversely, in what percentage of medical malpractice cases where the plaintiff prevails is the jury award far below what you deem reasonable?

120

Actually, I am not jumping into this little semantic spat. I am empathizing with Shodan’s apparent frustration at trying to engage you in a meaningful conversation on this subject and asking him some follow-up questions. Your line of questions have veered into the irrevelant, inconsequential, and incomprehensible. But Shodan has some informed POV’s that I’d like to see fleshed out. Still, I’ll try to do my best to respond to you, since I am being directly addressed.

Accountable: subject to the obligation to report and explain.

Decreasing malpractice award to $1 wouldn’t make doctors more or less accountable than having the death penalty for a medical errors. This is a different question than whether or not either would be a fair or just punishment, whether the consequent payment to the injured party would be fair or just, and whether the resulting system would be more or less likely to reduce errors in the future.

Any system that is dedicated to reducing errors in the future need to hold doctors accountable for all preventable errors. Not to blame, necessarilly; not to punish, necessarilly (although either may be occassionally appropriate), but to be called to explain the causes and circumstances forthrightly and thus to collectively learn and improve. The current system leaves most preventable errors unaccounted for, for a variety of reasons. The current system leaves most of those effected by preventable errors without compensation while some hit jackpots and lawyers get rich. The current approach fails on fairness measures, fails on accountability measures, and fails in the goal of improving the quality of healthcare - it harms healthcare improvement instead - despite what your common sense about public floggings tells you.

Once again consensus has nothing to do with it. Consensus is, I believe, as was described. It doesn’t stop a lawyer from taking the case on. Or from winning large amounts. The lawyer needs only to know that he can find an expert willing to say that that it isn’t so with enough oomph to convince a jury of lay people that he is right and the defense experts are wrong. His opinion could be a very small minority view out of keeeping with medical consensus, doesn’t matter. Consensus is that Paps will miss some. Consensus is that commercial pathology labs will miss a few cells that someone looking for hours might find once a few thousands of slides but that such is not negligence. It is standard procedure. That doesn’t stop some expert from claiming that it shouldn’t be, and that the one out ten thousand case justifies having a pathologist spending hours on every slide (even though such would make Paps unaffordable for mass screening and thus would result in more cancer deaths overall). That expert may be convincing to a jury of lay people. If a lawyer believes that they have a chance at getting such an expert to convince a jury of that, such that the investment of resources is reasonable for the potential payment in return, then they will take the case. They do not care about medical consensus. They care about the ability to convince a jury about medical consensus. It’s just business.

To answer your other questions I’d need more data at my disposal than I have available. In general though, I would say that any time non-economic damages (above and beyond any concievable economic damages) are exceeding $250K then it become “unreasonable” because the consequence to the system is so devastating. Anytime an award for non-economic damges goes beyond physician policy limits in the absence of clear evidence of gross intent to do harm or criminal negligence, then it is unreasonable. A doctor’s life shouldn’t be ruined because of a good faith mistake in judgement or inadvertant error. These situations are becoming more and more frequent. I’ve never heard of an award below what I think is reasonable. Doesn’t mean it never happens. I have heard of preventable errors that never got to court or settlement. Your point is, of course, incomprensible yet again. We have established that no amount of money can replace a life. Placing the value of infinity as reasonable is unteneble.

I am painfully aware that the current system fails on all counts. I am interested in a system that holds doctors truely accountable (in the real meaning of that word), that provides fairness to patients harmed by preventable errors whether caused by negligence or not and whether a large settlement is probable or not, that works to reduce future errors effectively, that polices the rare true bad actor, that is fair to doctors who are trying their best, and that doesn’t impair the access of heathcare by driving some specialties out of certain markets. Once again Shodan’s proposals are a start. I’m not sure if they are enough. The list of the op would accomplish none of those goals and is just a bad idea borne out of understandable frustrations.

My last stab at getting you to understand: do the vast majority of lawyers get sued for malpractice? Lawyers I am sure make mistakes too. What if you and most lawyers were held accountable (in your sense of the word, punished to the tune of millions) for all mistakes? What if your mistake of documentation (not of action or inaction even) could result in your losing everything? What if insurance to help assure that you would probably not lose everything made it so that you couldn’t make a living? Would that be fair? Would it be in the public’s interest? What other industry has a majority of its members subjected to at least one lawsuit against them in their career, no matter how good they are, no matter how professional, no matter how caring, no matter how well trained?