Before getting to the meat of your post, I would just ask: What’s the alternative? Caps? No malpractice system?
The CBO says that the evidence of defensive medicine is “weak or inconclusive.” Do you have a more authoritative source than a doctor’s blog or a single poll?
Ok, well, I’ve made a well-cited claim that malpractice has no real effect on the overall cost of health care. Where is your well-cited counter-claim?
The links I provided cite, among other things, a Stanford paper, a study by the health care research firm Lewin-VHI headed up by Robert Rubin, M.D., former assistant secretary of Health and Human Services, and data from the American Tort Reform Association which was used in compiling statistics on caesarean section rates. Speaking of which, here’s more evidence of increasing C-section rates.
As I indicated, there are competing arguments for how important defensive medicine costs are, as well as how much of this is accounted for by malpractice suit abuse. “Authoritative” conclusions are hard to come by, but I think it would behoove you to look at the data and not just dismiss it on the basis of one of my links being a medical blog. The CBO is fine and dandy, but it is not generally viewed as a health care oracle.
I think judicious caps on malpractice suit awards can play a role in lowering costs and fostering other improvements in health care.
But as the subject of your thread was Edwards and whether his tort actions have helped the downtrodden, I’ll ask this once again: Does the high rate of C-sections in poor, predominantly Hispanic counties in Texas (arguably attributable to their reputation as lawsuit hot spots) really serve the downtrodden? How about this recent poll conducted by the Harvard School of Public Health, which shows that:
“Among practitioners of defensive medicine who detailed their most recent defensive act, 43% reported using imaging technology in clinically unnecessary circumstances. Avoidance of procedures and patients that were perceived to elevate the probability of litigation was also widespread. Forty-two percent of respondents reported that they had taken steps to restrict their practice in the previous 3 years, including eliminating procedures prone to complications, such as trauma surgery, and avoiding patients who had complex medical problems”.
How exactly does putting patients through expensive and potentially uncomfortable or painful imaging procedures help them? Do limitations on practice including avoiding complex procedures or patients with multiple medical problems (due to fear of lawsuits) really benefit the downtrodden?
I’d appreciate your addressing these questions, as they bear directly on the main topic of your thread.
I should have been more specific. I was looking for citations for the claims you’re actually making (i.e. increased C-sections are primarily caused by the practice of defensive medicine which is the result of malpractice suits). None of those cites say this. More importantly, none of those cites indicate that caps would reduce the practice of defensive medicine. Indeed, when you look at areas that have instituted caps, health care costs have not decreased. Cite
I believe that there are some doctors who practice defensive medicine. What I don’t believe is that what they actually fear is litigation. What they fear is what they wrongly think is the result of malpractice litigation: increased malpractice premiums. My contention, which the evidence strongly supports, is that the two are not strongly related. You’ve not said anything to refute this fact.
But, even to the extent that malpractice litigation does lead to defensive medicine, “the highest estimate for costs of defensive medicine in the United States is only 9 percent and many experts believe this number is too high.” Cite
Malpractice suits simply are not a significant part of the high health care costs in the United States.
More importantly, you are blaming the enforcer of the law instead of the violator of the law. If a doctor doesn’t follow the proper standard of care, they ought to be punished. If there is such widespread malpractice that it is leading to negative results, we ought to reduce that malpractice, not the eliminate the right to redress when it happens.
I’ll deal with the portion of your remarks that actually constitute a limited attempt to be responsive to my questions (which are specific to the purported subject of this thread).
I don’t think you understand what “standard of care” means in the real world.
If “the enforcer of the law” (courts in which malpractice suits are decided) determines that huge judgments are in order for not performing C-sections, then C-sections increasingly become the standard of care, particularly in places where such lawsuits are common (i.e. Hidalgo County, Texas). If your response to medically questionable C-sections is to “punish” the physician, then the result will be increasing avoidance of caring for women with problem pregnancies or outright flight of physicians from these areas (in some rural locations, women already have to travel great distances to cities with obstetric practices that will see them, as primary care physicians cannot run the risk of delivering babies as was their practice in the past).
I don’t think that John Edwards is The Great Satan for having made a fortune in medical malpractice cases. I also don’t believe that he can be praised for having “helped the downtrodden”, as the impact of his brand of lawyering has demonstrably hurt people in need when it comes to quality and efficiency of health care. You have not addressed this problem, apart from offhandedly demonizing the medical profession.
For some voters, Edwards’ background will be neutral or positive. In the main, I think it’ll be a strike against him, as opinion polls about tort abuse have demonstrated (whether or not the respondents might feel differently if they were affected on a personal level).
The following statement of yours is peripheral to the subject of this thread but deserves a response.
This remark demonstrates an astonishing ignorance of the reality of being hit with a malpractice lawsuit. A number of studies have documented how devastating this can be to physicians, going far beyond economic issues. One recent study.
Reply to whatever you want, but don’t pretend you’re doing so in the interest of keeping on topic.
It is you who doesn’t understand malpractice law. “Not performing a C-section” only becomes actionable if doing so violated a pre-existing standard of care. Given your “huge judgments” comment, I would also respectfully refer to the actual statistics on judgments. It is unfortunate that some physicians don’t understand what they can and cannot be sued for (part of the responsibility for this rests on those propagating these myths). But I see no reason to get rid of malpractice because these physicians are misinformed.
I have done nothing of the sort. I have demonized the small minority of doctors (12%) that commit malpractice. And no, you have not demonstrated that malpractice suits hurt either the quality or efficiency of health care. You have not shown that they have the negative effect you say, and you have entirely ignored what positive effect they do have.
So what are you claiming? That physicians who lose malpractice claims didn’t commit malpractice? Or that they didn’t deserve the results?
A reminder of your thread title: Trial Lawyers, Edwards, and “Helping the Downtrodden”.
You miss the point. The “standard of care” is what lawsuit judgments have enforced.
One can be sued for virtually anything. Collecting a judgment or settlement is another matter, plus what harm is done along the way.
Ding ding!! We have a winner in the Strawman Contest!!! (let me know where I have suggested “get(ting) rid of malpractice”, or as I suspect you mean, getting rid of malpractice suits. I would love to eliminate medical errors, which unfortunately will be impossible as long as humans practice medicine. But I digress. 
I see a contradiction in your remarks. One the one hand, you suggest punishing doctors for “violating the standard of care” by doing questionably indicated C-sections (to protect themselves from lawsuits). Then you allege that no negative effects of these suits have been demonstrated. You can’t have it both ways.
As long as you keep hiding behind strawmen there is nothing further to debate.
How exactly do you think a court goes about determining whether malpractice has been committed? You seem to have little idea. You seem to also subscribe to the myth of widespread frivolous litigation. We’ll save that one for another day.
Let me rephrase since my haste obscured my point: I don’t see why physicians not understanding the basis on which they will lose a lawsuit means that we should limit or restrict the operation of the system as it stands.
Here’s how you commit malpractice: you violate the standard of care. If you see or hear of someone who has done that, and you move in the opposite direction too far, you can also violate the standard of care that way. Your suggestion that there’s no safe place is inaccurate. That doctors overcompensate one way or another does not prove that these negative effects are caused by the suits themselves.
You disputed my argument that those who lose malpractice cases deserve the consequences. In order to do so, you must disagree with the premise that losing means having committed malpratice, or that, having committed malpractice, one deserves what one gets. I was asking which it was.
Oh, I also realize now that I replied to the wrong quote. You cited that study in support of your position that litigation itself, and not premiums, is what doctors are avoiding. My mistake.
Nobody ever claimed lawyers are “helping the downtrodden.” The basis of our legal system is that people avoid doing things that are illegal because they hate dealing with lawyers. When a company does something wrong, they are punished by having to give obscene amounts of money to lawyers. If lawyers weren’t the despised parasites that they are, then the system would fail; the more obnoxious they are, the more we hate giving our money and time to them, the better we act.
Seriously. For example: If lawyers were decent, and less greedy, that would decrease the pressure on corporations to value safety.
I don’t care that Edwards was a trial lawyer. He creeps me out totally on his own charisma.
Boy go to work for a day and see what you miss. I’m sure I’ll miss some things. Sorry.
First off, to claim that Edwards helped the downtrodden because a few people got some money because he represented them is to claim that Sam Walton is much morerso a champion of the downtrodden because Walmart employs and therefore gets money in the pockets of all those people. I see no evidence that Edwards was motivated by anything other than avarice.
Gaudare asks about my claim of contingency fees of 1/3 to 1/2. I had gotten that off of several lawyer sites but for response I’ll stick to Wikipedia
Captain Carrot sorry for my misread across the table. So it is a million to a million and a half for a box falling over.
Despite Richard parker’s claim that
Edwards did indeed claim that last time round. See this article for a recap
I remember hearing it myself. It wasn’t so long ago.
Richard Parker, you are either being specious or are hopelessly naive. Any of us can be sued for anything. What wins is what a jury of lay people is convinced is standard of care. Every plaintiff’s lawyer has their panel of professional witnesses who will say whatever you want them to. This I know from painful personal experience. Junk science and false claims of what really is standard often hold sway. It was a bad outcome is often enough to presume that a bad choice was made unless it is provable beyond any doubt otherwise. CP is not usually caused by physician negligence and the evidence that it was was poor at the time of Edwards record cases. He still hired enough “experts” to convince laypeople otherwise. The evidence of harm from silicone implants was always weak. He was able to convince a jury of laypeople otherwise. Suits and payments have little to do with whether or not negligence occured as this cite demonstrates
As to the costs of defensive medicine, despite the ballyhoo about the CBO report, I really do not think that the question has a definitive answer at this point. Quoting academic studies that estimate that defensive medicine adds 3 - 4 % to health bills as a counterpoint is not enough. Defensive medicine is an entrenched behavior that has the inertia of a tanker and looking at short-term costs in a changing cap environment really doesn’t answer the question. We instead need to know how many tests are ordered just out of defensiveness Here is one recent study that adresses that question:
More tests will usually help protect you in case of a suit, or at least many believe. But it is not just more expensive care, it is poorer care to order those tests. Spurious results lead to unneeded interventions. Every test, every intervention has risk.
But I’d really like to back up a little. There is no evidence that malpractice lawsuits under our current tort system improves the quality of care, and good reason to believe that it impairs it. Mistakes happen. The best docs make them. And bad docs make them. But the evidence is that most suits are not brought about for negligence but for bad outcomes, while the mistakes still occur. My personal experience is that at least half of all general practitioneers will be sued at least once and data suggests that
In truth almost all docs are well intended and actually trying to do their best, even if some are arrogant bastards in the process. Yet mistakes happen all the time. The current blame and punish system impedes open and honest evaluation of how mistakes occur and improvement of the systems to help reduce their frequency. It inhibits good doctors who made an error from forthrightly owning up to it, both to the system (in order to reduce future risks) and to the patient or his/her family.
Yes the few malignant MDs need to be weeded out, but that is not 12% of the physician population. Yes pain and suffering needs to be addressed but no amount of money can ever really compensate. Trying to get as close to infinity as is imaginable because the plaintiff is sympathetic and the lawyer a skillful manipulator of emotions is not tenable. Some guidance as to what must suffice, in addition to real calculable economic costs, like medical bills and lost income, etc, is needed. That is caps. Expansion and protections of programs like SorryWorks are a move in the right direction.
My experience backs that of DSeid. It is naive to think that the correct characterisation is “only bad guys get successfully sued”. That’s the legal academic theory.
The reality is much more akin to “serious harm will result in a finding of negligence”.
A few cases I’ve had some knowledge of through my own work or peers: A client used a particular method of doing something for (literally) a hundred years with no problem. It was a method that had been observed without comment by government safety inspectors without adverse comment for at least fifty years. When a person died as a consequence of the use of this method, a jury found that the method was so “obviously” negligent that the client was found to be not merely negligent but criminally so. After one hundred years, there is only one possible conclusion: it was considered negligent because harm had been caused and not otherwise. Another client had a triple redundancy system for avoiding a particular environmental problem: a state of the art and exemplary system. Exemplary, that is, right up to the day a combination of three separate failures beat the system and caused environmental harm. A few photos of poor, harmed little furry creatures later and you guessed it, an exemplary system had become a negligent system in the eyes of a jury.
It ain’t as simple as they teach you in lawschool.
Full disclosure: As a physician it’s unlikely my views would be considered unbiased…I have had personal participation as an expert witness in perhaps 50 medical tort cases over the course of my career.
Trial lawyers, including John Edwards absolutely help the “downtrodden.” On averge, those who are trodden down are least capable of helping themselves. They are at the mercy of life’s vicissitudes in part because there aren’t many folks in corporations (including corporate medicine) willing to help them spontaneously. There are so many fine points here it’s impossible to address them all, but I have enjoyed the posts on the tort system in general.
A few of my observations around the tort system and tort attorneys:
The tort system is not even close to the best of all possible systems for mitigating the results of, and preventing, injury. While in theory it is a mechanism of establishing a current standard of practice and evaluating whether or not that was violated, in practice that does not happen. The controls around vetting experts are weak; the motivations of experts are suspect; procedural rules prevent a free give-and-take exchange that would otherwise really clarify a point; the jury is not evaluated for their capacity to understand what can be very complex issues; and on average, the presentation skills of the respective attorneys far outweigh every other factor, including the facts and the merits of the case.
In an adversarial system, it is the job of attorneys to distort what might otherwise be an even-handed presentation. For the sake of brevity, and not flaming, let me characterize them as paid liars. (I certainly wouldn’t hire an attorney who just lets it all hang out there; I want me one who bends every issue in my favor.) For criminal cases, this works reasonably well because most of us want a system that protects us as much as possible and errs on the side of “not guilty” until defintely guilty. In torts, where responsibility to compensate (instead of criminal guilt) is the issue, competing liars persuading lay juries is not a good model for assigning damages and the responsibility to pay them.
In medicine, in particular, the cost of torts is not very directly related to the cost of either malpractice insurance or the cost of defensive medicine, although both have been endlessly quantified. What malpractice suits have done is raise the standard of care to the level of “perfect” and this is very expensive, not to mention capricious. Any baby with a fever, say, might have very early meningitis. Every baby with meningitis and a poor outcome would be a successful tort in my area (Chicago). The overall cost of evaluating, treating and following every baby with a fever is nearly unlimited. What gets practiced is not so much “defensive” medicine (meaning I’m doing it so I don’t get sued by lawyers) as medicine according to a perfect “Standard of Care” (meaning my own physician colleagues’ standards). This is a very expensive standard.
Most tort attorneys don’t have particularly noble intent (duh). Money that comes to the weak via the tort system is, on average, an incidental byproduct of the tort business, which is to make money for the tort system (plaintiff and defense attorneys alike).
Torts don’t typically result in “just compensation.” Many times the plaintiff gets nothing and many times they get a ridiculous amount. There is minimal correlation to any “just” amount because human suffering is non-quantifiable in monetary terms.
In medicine, our tort system has not been an effective way of getting better doctors and better medical care. (Of course the “medical system” hasn’t done that good a job either…) It’s too capricious a mechanism to weed out the bad. If I make 9,999 decisions perfectly and miss one, that one may result in a lawsuit based on my “incompetence.” Say the “average” doc would have missed 10 out of ten thousand…surely I am practicing within the overall Standard of Care. Many very good physicians get sued. Many bad physicians hide behind great personalities and defensive medicine. The net effect is cynicism and disillusionment. “No good deed goes unpunished” is a common phrase in my business. Making every patient a potential enemy is a bad thing.
It’s way off-topic, probably, but there are ways to fix the tort system. They won’t happen. In my career (about 100,000 patients) I have not been sued (with the exception of a minor case that went to deposition and was dropped), so factor that in if you like when evaluating the above opinions.
Chief Pedant, i think you’ve put your finger on some of the big issues.
It’s also clear that there are (at least) two different levels upon which this issue rests.
There’s the obvious one we’ve been talking about, which is the size of the payouts and whether there need to be caps or other restrictions that provide a better-balanced system. But there’s also the issue of determining negligence in the first place, which you raise in your post. We can do whatever we like to limit punitive damages or whatever, but there’s still the problem of a system that can, as you note, mitigate against getting to the truth.
I’ve always been opposed to the most radical tort reformers, because it seems to me that they are often in the pockets of big business and the medical profession, and that their solution is essentially to gut the tort system until it can provide little redress for victims, and threaten little punishment to the negligent or malicious.
On the other hand, i’m still uneasy about some of the massive payouts. I don’t believe that damages should be limited to mere compensation for expenses and economic loss, but i also don’t believe that winning a lawsuit should be like winning Powerball. And i think that there is considerable potential for this sort of thing with the “local sympathy” that goes on in tort cases, where the plaintiffs will often benefit from having the case held in their local area, a place where potential jurors are most likely to know and sympathize with them, and are more likely to ask for very large payouts from the company, doctor, etc.
What so many advocates of tort reform seem to forget, however, is that the tort system is not just about getting redress for the aggrieved party; it is also about the fact that the redress comes from the offending party, and thus acts as a punishment, a fine for doing the wrong thing. If we’re going to limit the amount that victims can receive in these cases, i think we need a strengthening of other mechanisms to ensure that the offenders are appropriately punished for their negligence or wilfull behavior. Perhaps stronger criminal laws to cover this type of negligence, or better-policed professional standards, so that (for example) it is easier to strike off doctors who fail in their duty of care and prevent them from ever practicing again.
Or perhaps we maintain the current system, but mandate that any payout over a certain amount goes to charity instead of to the plaintiff. Perhaps there could even be a cap on lawyers’ fees, after expenses. Measures like this might allow justice to be done, while reducing the “massive payday” motivation of some plaintiffs and their lawyers.
I honestly don’t have a perfect answer to what is a fraught issue, but i’m pretty sure that neither the radical tort reformers nor the staunch defenders of the status quo have all of our best interests at heart when they make their arguments.
I shouldn’t bite, I really shouldn’t…
But what occupation pays your rent, nitetime?
I am interested in how “pain and Suffering” are assessed-in terms of payouts. Is there any set formulae?
**Dseid **and Chief Pedant, thank you for the carefully considered arguments.
A few things are clear to me, and I expect that most of you would agree:
There is a serious problem with the practice of medicine today. There are 98,000 preventable medical deaths each year, more deaths than many of the other leading causes of death (though, see my next point). Not all of these are due to negligence; people make innocent mistakes. But many of them are due to negligence. There are far too many physicians and medical professionals who do not take reasonable care – operating on the wrong person, cutting on the wrong limb, etc.
The data, on even the simplest questions, is unclear on this topic. For example, one source citing the NPDB says that only 18% of doctors are ever sued for malpractice. DSeid’s source doesn’t cite a figure, but suggests that this number is higher (though it was limited to neonatal intensive care). But I don’t think **Dseid **was cherry-picking this figure. I’m sure there are others that would legitimately back his claim. So, what data do we trust? (I’ll return to this in a moment.)
Sometimes jury verdicts are unjust. Princhester’s anecdotes, and those of others notwithstanding, the debate here is over the frequency with which they are unjust. I don’t find Dseid’s evidence on this front to be any more compelling than the evidence I already cited that said that judgments closely track negligence and severity of injuries. (The relatively low mean, median, and percentage of million+ claims; the percentage of accidents that result in malpractice suits (less than 20%); as well as generic studies done on frivolous law suits).
*
Most doctors are doing their best.* I believe that since the majority of doctors are never sued for malpractice, this would be true no matter what you believe about malpractice suits. To the extent that the “blame and punish” system inhibits honesty and self-reflection, I think you’re probably right. But I don’t see why we should think that doctors are any more angelic or self-correcting than any other profession. Why doesn’t your argument apply to drug manufacturers, car-makers, and everyone else in the tort system? What is unique about the medical profession that should make doctors liability capped?
All that said, if we want to continue to debate this, I think we need to first resolve two questions: What kind of evidence is the most reliable? Why is the Harvard Medical School evidence more compelling than the Harvard Law School evidence?
Great post, Chief Pedant. Ever considered becoming a member of this here board? I’d be happy to sponsor your fee, if you weren’t inclined to pony up yourself.
When I mentioned support of judicious caps on malpractice awards, it was not to suggest that that’s any major solution to high health care costs or lawsuit abuse. Some caps that have been proposed or implemented seem in part unfair, notably in the case of those without jobs for whom non-economic damages are limited.
What should not be overlooked in any discussion of handling of malpractice cases is a potentially very useful tool: a mediation/arbitration model as a supplement to our current tort system mess.
Many complaints could be settled without resort to lawsuits, resulting in benefits to patients and physicians (although probable not to attorneys like John Edwards). One problem with the current system is that fear of lawsuits discourages open discussion of mistakes. A climate in which non-critical errors can be more openly debated and reasonable compensation awarded if justified, would be a boon to patients. Allegedly more egregious cases could still go to trial.
From a description of the current system in Mexico:
“Arbitration is done by exhaustive evaluation by doctors and lawyers who specialise in medical arbitration, supported by an independent consultancy of professionals contracted for each case through peer review. Lay people do not participate in the process. Referees are academics from medical institutions and universities selected by the academic board of Conamed by considering their expertise, academic background, impartiality in the specific case, and up to date knowledge in the particular branch of the medical specialty involved.”
This would seem to limit problems with dueling experts/guns for hire, though I am still concerned about the description of referees as academics. Academic physicians often have a research bent and a limited understanding of private practice conditions.
The Mexican system still sounds like a better way to settle disputes and direct compensation to the patient where applicable.
Minutes of Medical Review Committees are already exempt from discovery requests (at least in the states I have looked at).
My question to those who view medical awards as generally excessive (and I am not necessarily including you as one of those, Jackmannii) is simple. How much is your spouse worth to you? Or your child? Or your sight, or capacity to think?
And as for an arbitration scheme where malpractice awards are determined predominately by doctors, well, there seems to be somewhat of a conflict of interest going on there. Kind of like police brutality complaints being reviewed by the police. What an attorney gives a victim of medical malpractice is a skilled advocate. Even in an arbitration system, the hospital is going to have one of those. All that scheme does it shift the balance in the favor of the organized, rich, experienced body, which happens to be the one that has (allegedly) inflicted injury on someone.
:rolleyes: You’re so far from convincing here that it’s just sad. “OK, maybe he helped that little girl with her intestines ripped out, but maybe he somehow put somebody out of work, & they all starved to death. I mean, I don’t know, but it could have happened, so yeah, don’t think he’s good.” :dubious: