luc, perhaps part of your problem is that you’re trying to get doctors to talk in absolutes, and they just can’t do that. Medicine is not a field of absolutes and 100% certainty. There’s only one absolute a doctor can count on: all patients die eventually. (And, of course, there’s the corollary, that all bleeding stops eventually, but that’s mostly just a joke between medical personnel.) Everything else is ambiguous. Sometimes patients who by all rights ought to die make full recoveries. Sometimes patients who have good prognoses just up and die, and nobody knows why. Anything is possible in medicine, and you simply can’t say that something is always or never the case. You wind up having to play the odds and make risk/benefit analyses based on those odds.
That’s what the good docs here are trying to explain to you. Tests that are done purely out of liability concerns have an incredibly low probability of doing the patient any good, and in most cases the risks of doing the test outweigh the probable benefits. (If the benefits outweighed the risks, the tests would be done as part of good medicine, not as a cya measure.) That’s not to say that cya testing has never caught something unexpected, because once in a while it does. That’s why it’s cya; if the tests never caught anything, nobody could later claim you should have run that test.
It’s like a lawyer deciding whether or not to take a case. You weigh the probability of winning (benefit) against the probability that you would simply be wasting your and the client’s time, energy, and money (risk), and decide accordingly. There are no guarantees that a good, solid case will win, and no guarantees that a weak case will lose. There’s just the statistics and your instincts.
If you were that worried, there are better ways to do this. Like talking to you patient.
“Mrs. X, just to finish up, have you had any bad experiences with the medical profession before? Is there anything I can do to re-assure you?”
That would probably help, as would talking to the patient’s previous doctors.
In Ireland, it has got to a point where the leading medical insurance company can no longer afford to insure doctors, mainly because of OB-GYN suits. The government agreed to take on this responsibility, BUT the cover is not retro-active, leaving doctors personally responsible for any cases that occurred in the period when the MDU was insuring them.
Now THAT is a fucked up situation. It could lead to the situation of a 75 y/o, retired doctor being personally accountable for millions, when they thought they were fully insured throughout their career, and paid all their premiums. Not a good situation.
Also, talked to a consultant urologist the other day, he has currently got 5 suits pending, and has had 30-40 suits against him in his entire career. He has NEVER been found against. He feels most suits are filed because of unreasonable patient expectation, rather than actual negligence or damage. Even when you do everything right there is still the possibility something could go wrong. Complications are not the same as negligence and a 1% possibility of something happening isn’t the same as a 0% possibility.
Speaking of unreasonable expectations, we had a patient who wanted to have the radiologist disciplined because she had to wait for 3 hours…while the department dealt with emergencies…which she was not. X-raying someone to see if they have passed an asymptomatic kidney stone, which they think they did, is not exactly high priority.
As far as the focus on preventing mistakes, this is a good idea, but isn’t that already implemented?
I worked for a hospital system for many years, part of which involved setting up systems for case tracking and case review. Care givers at our hospitals were already part of a system that reviewed negative outcomes, and tried to come up with ideas (in a non-judgemental way) on how those outcomes could have been avoided - if possible. Insofar as a given reform can reduce the “circle the wagons and tell nobody anything - we might get sued” attitude, it could assist in that process, but I don’t know how much increasing the focus on prevention is going to help the current system. As the interviewee in your article mentioned, there is always going to be gaming the system, as we saw in unbundling of services in the 80s, and so forth. If we instituted a worker’s comp-like system as recommended, I expect a long line of lawyers lining up to sue the system because
it didn’t cover their client’s injury
it didn’t pay out enough
the available money for settlements, if it is administered by the government, is infinite. “Come on - my client deserves $10 million. That is nothing to a state budget of $10 billion!”
Modern medicine has been a victim of its own success. Patients now expect that the outcome from every case should be a rapid and complete cure. If that doesn’t happen, someone screwed up. So, in a sense, actions that are designed really to improve the system don’t address the problem, which is one of perception.
I would entirely support reforms designed to make the payouts for genuine cases of malpractice more fair, instead of the rather haphazard system we now enjoy. But the most effective reforms will have to remove the incentives that make the system what it is now.
A systems approach that improves patient care is a good idea, and ought to be implemented where it doesn’t exist. And making the work product of case review discoverable is a counter-productive idea. Because it is not aimed at the outcome of improved patient care; it is lawyers trying to get an edge. But the systems approach will never reduce mistakes to zero, and it will not reduce unavoidable mistakes at all. It can’t. And as long as patients and their lawyers are encouraged to think that every negative outcome deserves a substantial payoff, the unavoidable mistakes are going to be what drives a lot of lawsuits and settlements.
Another factor is that “the perfect is the enemy of the good”. The pathologist earlier described the dilemma of the Pap smear. The pathologist could spend hours and hours on each and every smear, and thus reduce the incidence of “unavoidable” false negatives - somewhat. But every hour spent on this smear is an hour that cannot be spent on all the others. Looking for zebras in every horse herd is an expensive process. And in an era of defensive medicine, it is far too easy for a lawyer to point at the doctor and say, “Aha! So you admit that you could have found the carcinoma if you had just spent a little more time!”
What I am saying is that improving patient care is something we all want. Making it more difficult and expensive to give good care seems to be the direction that our legal system is pushing us.
What I would like is some way to incorporate into law the unpleasant fact that most adults learn sooner or later.
Shit happens. And it isn’t always somebody’s fault.
And even if it is somebody’s fault, that shouldn’t be seen as a chance to get rich, for your or for your lawyers.
A systems approach to preventing error works fine. At some point, of course, you are going to have to say to the patient, “No, that one wasn’t preventable. So, as sorry as we all are for your loss, you don’t get any money. Because if we gave the money to you, we would have to give it to everyone, and that hurts everyone more than it helps anyone. Sorry - no.” And have some way in law to make that answer stick.
Well, you did offer your opinion on the definition of “accountability.”
Dude, look back at the thread - he totally misrepresented my position. (And I note that you did not bother to answer my question about where I made the assertion he claimed I had made.)
It seems to me that most people would agree that near-total civil immunity for malpractice would amount to a reduction in “accountability” by any reasonable definition of that word. In any event, you are free (of course) to choose your own definitions.
Agree.
If a minority feels differently, then maybe in fact there isn’t a consensus.
Ok, then you’re not really in a position to assess whether there is a flood of frivolous lawsuits clogging the courts and driving up malpractice insurance costs by way of nuisance settlements.
Now, your point seems to be that even if most of these malpractice suits are legitimate, they still result in harm to the quality of patient care. I’m skeptical of this position, but you’re certainly entitled to your opinion.
Perhaps you can give me examples of a “good faith mistake in judgment”; an “inadvertant error” and “criminal negligence”?
Errr, I’m not sure what your point is here. But let me ask you a question:
Do you agree that there are situations where $250k is a little on the low side? For example, a 30 year old person who becomes paralyzed and loses the ability to walk; to run; to dance; to have sex, etc. for the rest of his life? Of course no amount of money can bring back the person’s ability to walk, but IMHO, $2 million would be more appropriate.
I have no idea, but I would imagine that the percentage is significant.
If I were negligent and caused my client 5 million dollars’ worth of harm, I don’t see why he shouldn’t be able to sue me for 5 million dollars.
Your points are good. I would hope that a system that encourages physicians to be forthcoming with admissions of errors and that encourages prompt settlement of the results of errors without involving the court process would reduce the numbers who resort to the courts. It would need to be coupled with strict guidelines for the court system if it was resorted to. Certainly some sue because they feel that the physician needs to be punished. That thirst for revenge may be less satisfied. Still, I think that more errors would be brought to light and their causes considered more fully. Total pay-out might not substanitally decrease, though, because more would be paid. But the interests of accountability, fairness, and system improvement would be better served.
Luc,
Dude. I use the dictionary definition. You can use whatever meaning you like.
Likewise for “consensus.” A small minority has a different opinion and therefore maybe there isn’t consensus? You do use words in a very TwiddleDeeish way. Consensus is what the vast majority believe is true, not a unaminimous opinion (which virtually never exists in medicine). Look it up. Dude.
Past links have provided the hard figures for average payout increases and percent of mega-awards. Scroll back and link to them. You want to know “average excess”? I’d need to know the details of every case and average it out. Don’t got that info nor is it critical to the discussion. What is just for “non-economic damges”? Why stop at $2 million? Seems like ten mill is close to the infinity that human suffering is worth. 100 mill is closer yet. A billion gets even nearer. Why stop? How do you decide what a human life is worth in a jury room left to your own devices without guidance, a leg, a child’s health? You can never replace them. You can never make it up. So don’t make up numbers that are still paltry compared to suffering.
A good faith mistake in judgment - I believe that a fever in a particular child represents a low risk of being a sign of a serious illness but in this case was wrong. Some others would have been more aggressive and believe that I should have been. If I was I could have caught the child’s osteomyelitis earlier. Perhaps I missed some warning sign that would have flagged this as not just another viral illness. I did my best but didn’t know something. I didn’t recognize something and harm resulted.
An inadvertant error- I get distracted by a conversation with Mom about older siblings behavior issues and write a script for a medicine that a child who is in the room is allergic to. I forget to ask my usual allergy questions and for some reason the warning label isn’t on the chart and it gets by the pharmacist too. A serious drug allergy reaction results.
And criminal negligence? I carve my intials into my patients organs and cause harm or I leave the operating room to cash a check. Or I come to work drunk or high and prescribe medicines that do harm. I prescribe controlled substances for recreational use. I don’t like someone so I do something bad to them on purpose. Stuff like that.
Removing a Pt’s left leg instead of his right, that’s gross negligence.
Giving 10cc’s of a drug instead of 1.0 cc’s of a drug due to a calculation error is not negligence. It’s a mistake. A neurologist who is performing spinal surgery accidentally nicks a nerve (while taking all normal precautions). It’s a mistake.
There is a difference. I believe that gross negligence deserves to be punished. I believe that mistakes should be reviewed so they don’t happen again and the patient compensated accordingly. Punitive damages are appropriate when punishing someone, not when someone is being educated.
It seems that way to me too. It also seems to me that no one in this thread has ever expressed support for such a step, and that you are bringing up a strawman. It also seems to me that you are bringing up the strawman because you are unable to come up with plausible arguments. And, it seems to me to be an instance of deliberate dishonesty.
I am not going to make “dishonest lawyer” jokes, because there are several lawyers on the SDMB (Dewey Cheatum Undhowe, Bricker, many others) who are honest, principled debaters.