Why we talk about malpractice reform

[Bfgrn]

But the bigger picture is why are people on the right so willing to undermine our justice system for doctors, corporations and polluters? If someone files a lawsuit, shouldn't a jury of our peers be able to determine if it is valid or frivolous?

Undermine the justice system? Wake up. A patient can reach into their doctor's pocket and pull out $5,000-$10,000 at any time regardless of wrongdoing. Since it costs doctors MORE in time out of work, they just settle to make the bogus claim go away. Should such a setup exist in our wonderful justice system?

Or perhaps we should focus on your latter sentence. When a doctor is sued, are they EVER tried by a jury of their peers? No, of course not. In a medical lawsuit, there is an average of ZERO doctors on the jury. So you take topics that require a decade of education and training and let them be settled by people with no knowledge of it.

Tort reform IS government intervention. It's bureaucrats dictating what a jury of our peers can or can't do. It undermines our justice system and gives the big guy a baseball bat he can use to beat the final measure of injustice into the little guy. Not only does the person or family suffer from the results of the doctor mistake or negligence, or the corporate toxins or dangerous product, the person and family must also endure the measure of the final insult: 'Yes, you were gravely wronged, but you will not justly compensated'

Except that is NOT the focus of tort reform. What you are describing is tort abolition. No proponent of tort reform has EVER suggested that patients who were wrongly treated should go without fair compensation. No one. The only people who EVER bring that up are people who don't understand the topic.

The two focuses of tort reform have large focused on removing the ability of patients to sue doctors for a set of documented setups that doctors that have been proven not to be malpractice, and making the loser of lawsuits pay for expenses of the case. It means that everyone acknowledges that it's sad when your baby comes out misshapen, but maybe you should blame the doctor less and reconsider why you snorted crack off of rotting meat when pregnant. If a surgeon cuts the wrong limb, they should be sued, even under the proposed tort reform.

It's clear you don't actually understand the facts behind this issue. I recommend you do a bit more unbiased reading before returning to this thread.

What a litany of doctor ass licking and utter bullshit. Almost 250 human beings die every DAY because in a 'decade of education and training' theses doctors can't even learn to wash their hands? My mother taught me that as a kid.

Not only don't you know what tort reform is, you don't even understand our justice system and what a jury of our peers means. It does NOT mean a jury of citizens with a vested interest, bias or conflict of interest. It means a fair trial by a jury of citizens withOUT a vested interest, bias or conflict of interest.

Tort reform is an effort to LIMIT or CAP the amount of compensation a person or family can receive, no matter how egregious and devastating the MALpractice is to a patient. I remember watching on C-Span in 2005 as Republicans argue on the floor of the Senate to limit the amount of compensation a person or family can receive to $250,000 as a lifetime amount. THAT is bureaucrats dictating what a jury of our peers can or can't do. It means no matter the circumstances and REAL cost to a family who would have to take care of a child or family member from birth to grave, bureaucrats dictate they can only receive $250,000, a measly amount if you amortize that over a human beings lifetime and the exorbitant costs that can be incurred. A JURY should decide the amount of compensation based on the facts of the case, not some Politburo. THAT is how our justice system is supposed to work, every citizen has the right to a FAIR trial.

It amazes me how you folks on the right say you are against government intervention into people's lives; then you embrace the most egregious and overbearing government intervention into people's lives and bureaucrats dictating that is right out of the Soviet Union.

BTW, the same doctors have no problem taking HMO's and insurance companies to court.

Take a look at the record of a host of state medical societies, often joined by the American Medical Association (AMA), who complain about lawsuits and argue that compensation to injured patients should be severely limited. Yet when an HMO, a health insurer or even an auto insurance company has treated doctors unfairly, these doctors go straight to court. And to top it off, while lobbying to limit patients’ ability to sue and collect compensation from doctors who commit malpractice, they say it is unfair to limit their right to sue and collect compensation from HMOs and health insurers.

What’s more, ask most doctors and they’ll tell you they want to limit compensation for injured patients to $250,000 for non-economic losses like permanent disfigurement, loss of a limb, blindness, or pain and suffering. Yet doctors are among the highest paid professionals in the country. When one looks at publicly available annual salary records for some of the critics of injured patients who sue, one finds that they earn well over $250,000 a year –without any pain or suffering at all.
More - http://www.centerjd.org/archives/issues-facts/MDHypocrites.pdf

 

[editec]

Here's a thought...don't screw up and your won't get sued.

 

[Greenbeard]

Tort reform is an effort to LIMIT or CAP the amount of compensation a person or family can receive, no matter how egregious and devastating the MALpractice is to a patient. I remember watching on C-Span in 2005 as Republicans argue on the floor of the Senate to limit the amount of compensation a person or family can receive to $250,000 as a lifetime amount. THAT is bureaucrats dictating what a jury of our peers can or can't do.

In fairness, while passing a federal cap has been a standby of the national Republican party, there's actually a decent chance it wouldn't pass in the current Congress:

House Republicans clashed Wednesday over a longtime GOP priority: limiting medical malpractice damages.

At a Judiciary Committee markup, Rep. Ted Poe (R-Texas) accused Rep. Phil Gingrey (R-Ga.) of proposing legislation that would violate the Constitution.

The panel was considering legislation sponsored by Gingrey, who does not sit on the committee and was not present, that would impose a $250,000 cap on non-economic medical malpractice damages. Poe, a former felony court judge and a member of the House Tea Party Caucus, said that violates the Constitution.

He also warned he'd vote against the measure if it imposes caps on states that don't want them.

"I got problems with that," Poe said. "I think it's a violation of the Tenth Amendment."

 

[SmarterThanHick]

What a litany of doctor ass licking and utter bullshit. Almost 250 human beings die every DAY because in a 'decade of education and training' theses doctors can't even learn to wash their hands? My mother taught me that as a kid.

Again, no one is claiming that doctors should avoid lawsuit IF THEY ARE ACTUALLY NEGLIGENT. You can point to all the negligent cases you'd like, and they would still be unaffected by tort reform.

Not only don't you know what tort reform is, you don't even understand our justice system and what a jury of our peers means. It does NOT mean a jury of citizens with a vested interest, bias or conflict of interest. It means a fair trial by a jury of citizens withOUT a vested interest, bias or conflict of interest.

You seem to be typing your opinion, not what the actual law is. Doctors sitting on a jury is not inherently a biased jury. It's an informed and educated one. If you are so stubborn as to think doctors would never find another doctor guilty of a crime, why is it that plaintiffs ALWAYS without fail have doctors on their side?

I find it interesting that you bring up the "jury of one's peers" point in your last point, to quickly backpedal away from it after being shown that a malpractice jury is never of the same peer understanding as doctors.

MEANWHILE, the point still stands that the fate of medical malpractice suits are decided by people who completely lack all understanding of the medical aspects of the case. The jury simply sees two doctors, one plaintiff and one defense, and from those two doctors must decide, irregardless of how each doctor represents medical understanding. If the plaintiff doctor directly contradicts medical understanding because they are being paid by the plaintiff, the jury is none the wiser.

THEREFORE, it would seem to be of benefit to the justice system to provide a set of reliable medical understanding to be used free of bias in the courtroom, that was not specifically constructed in response to any case.

Tort reform is an effort to LIMIT or CAP the amount of compensation a person or family can receive, no matter how egregious and devastating the MALpractice is to a patient. I remember watching on C-Span in 2005 as Republicans argue on the floor of the Senate to limit the amount of compensation a person or family can receive to $250,000 as a lifetime amount. THAT is bureaucrats dictating what a jury of our peers can or can't do. It means no matter the circumstances and REAL cost to a family who would have to take care of a child or family member from birth to grave, bureaucrats dictate they can only receive $250,000, a measly amount if you amortize that over a human beings lifetime and the exorbitant costs that can be incurred. A JURY should decide the amount of compensation based on the facts of the case, not some Politburo. THAT is how our justice system is supposed to work, every citizen has the right to a FAIR trial.

You seem to lump ALL ideas involving medical malpractice into this category of tort reform. As I mentioned previously, the largest aspect of the movement is to remove baseless lawsuits and making the loser pay for trial expenses.

Now you seem to get all huffy on this topic, focusing on the outliers that most people don't really like or even care about instead of the actual topics, so let's break this down into a simple ethical question: Do you believe that doctors should need to pay thousands of dollars for frivolous lawsuits when all medical knowledge shows that no malpractice has occurred? It's clear that everyone would agree that doctors should pay when malpractice occurred.

 

[spectrumc01]

Malpractice insurance is in case a doctor makes a mistake and the patient gets screwded up or dead. My question would be, if the doctor needs the malpractice ins. more than twice why does he still have a license?

 

[SmarterThanHick]

Obstetricians get wrongly sued all the time. People are innocent until proven guilty in this country.

 

[geauxtohell]

only a handfull of doctors have committed malpractice and been sued for it....the problem, is this handful have committed nearly 90% of all malpractice....many in this handful have 3-10 malpractice suits/losses....

YET, THEY KEEP THEIR JOBS instead of losing them....thus malpractice insurance is very high for the 95% of doctors that have never committed or been sued for, malpractice....

the good doctors are having to pay for the handful of bad doctors that the AMA keeps

this needs reform....their licenses need to be taken away....3 strikes you are out!

First off, the AMA is a political action committee that has nothing to do with medical licensure. Individual state boards license health care providers.

Secondly, I agree that a small handful of doctors confound the statistics, but stripping physicians of their licenses, especially over something like lawsuit counts, is not the answer. If you think defensive medicine is being practiced now, wait until the results of a lawsuit could cause a doctor their entire livelyhood and not just jack their premiums. Licenses are taken away for gross malpractice that would shock the conscious or ethical shortcomings. That's the way it should be. Why would anyone go into a profession where their entire livelyhood could be taken away simply because they got sued three times?

 

[geauxtohell]

Not a fan of tort reform, however...I would be willing to try it for five years. If it doesn't drop medical costs by at least 5%, it gets reversed. All winning parties get interest, for the five years, they were not allowed to litigate. This would end the debate and we would finnally know if it does or does not.

Medical tort reform is an individual state issue that has been in place in about 30 states for at least a decade.

Some states, like Kansas, have such generous laws that favor physicians that they are scared to death of federal tort reform. They are afraid the caps from the federal government will be larger than their caps.

At any rate, despite tort reform being in place, the costs obviously haven't gone down and neither have malpractice premiums.

 

[geauxtohell]

also quantum

are you saying that this is NOT a State issue and the Federal gvt should usurp the States?

The point is rather simple.

If doctor's expenses go down, end costs go down. I never said it was not a state issue, just that you arguing that it has never worked is a bit off.

The pragmatic result is that the costs don't go down and the insurance companies make a shit ton of money.

As malpractice is a small fraction of medical expenses (about 3%) it's easy to see why the costs continue to go up in spite of interventions.

 

[geauxtohell]

But the bigger picture is why are people on the right so willing to undermine our justice system for doctors, corporations and polluters? If someone files a lawsuit, shouldn't a jury of our peers be able to determine if it is valid or frivolous?

Undermine the justice system? Wake up. A patient can reach into their doctor's pocket and pull out $5,000-$10,000 at any time regardless of wrongdoing. Since it costs doctors MORE in time out of work, they just settle to make the bogus claim go away. Should such a setup exist in our wonderful justice system?

Or perhaps we should focus on your latter sentence. When a doctor is sued, are they EVER tried by a jury of their peers? No, of course not. In a medical lawsuit, there is an average of ZERO doctors on the jury. So you take topics that require a decade of education and training and let them be settled by people with no knowledge of it.

Tort reform IS government intervention. It's bureaucrats dictating what a jury of our peers can or can't do. It undermines our justice system and gives the big guy a baseball bat he can use to beat the final measure of injustice into the little guy. Not only does the person or family suffer from the results of the doctor mistake or negligence, or the corporate toxins or dangerous product, the person and family must also endure the measure of the final insult: 'Yes, you were gravely wronged, but you will not justly compensated'

Except that is NOT the focus of tort reform. What you are describing is tort abolition. No proponent of tort reform has EVER suggested that patients who were wrongly treated should go without fair compensation. No one. The only people who EVER bring that up are people who don't understand the topic.

The two focuses of tort reform have large focused on removing the ability of patients to sue doctors for a set of documented setups that doctors that have been proven not to be malpractice, and making the loser of lawsuits pay for expenses of the case. It means that everyone acknowledges that it's sad when your baby comes out misshapen, but maybe you should blame the doctor less and reconsider why you snorted crack off of rotting meat when pregnant. If a surgeon cuts the wrong limb, they should be sued, even under the proposed tort reform.

It's clear you don't actually understand the facts behind this issue. I recommend you do a bit more unbiased reading before returning to this thread.

We disagree on this one.

The right to be made whole and trial by jury is very much a component of our judicial system. No other industry is protected from civil litigation. Health care currently occupies a special protected niche.

Furthermore, it would certainly undermine our judicial system if only physicians were allowed on juries for med mal cases. It would also not be a fair trial. Both sides compensate for lack of medical knowledge by bringing in expert witnesses. That means plenty of physicians are willing to work for plaintiffs firms and testify against other physicians.

Except that is NOT the focus of tort reform. What you are describing is tort abolition. No proponent of tort reform has EVER suggested that patients who were wrongly treated should go without fair compensation. No one. The only people who EVER bring that up are people who don't understand the topic.

The whole reason we have a trial system is to determine the merit of a claim. Their are legal elements of a tort that have to be satisfied by the plaintiffs before a case can go forward (i.e. causation, damages, etc.). Unfortunately, there is not a crystal ball to determine which patients have legit claims and which ones are a stretch. That is hashed out in the legal proceedings. The fact that all plaintiffs lawyers work on contingency means they can't afford to take frivolous cases.

 

[geauxtohell]

Obstetricians get wrongly sued all the time. People are innocent until proven guilty in this country.

But the legal bar for "guilt" in a civil case is much lower than in a criminal case.

 

[geauxtohell]

Roughly one-fifth of tests that bone and joint specialists order are because a doctor fears being sued, not because the patient needs them, a first-of-its-kind study in Pennsylvania suggests.
The study comes a day after the Obama administration began a push to overhaul state medical malpractice laws as a way to reduce unnecessary tests that drive up health care costs.
"This study is a glimpse behind the curtain of what's happening in a doctor's mind," said its leader, Dr. John Flynn of Children's Hospital of Philadelphia. If doctors sense you might second-guess them or cause trouble, "you could potentially be risking more tests being done."

Study: Doctors order tests out of fear of lawsuits

One possible confounding factor I think might influence this (but can't say directly as the original methodology of the study wasn't linked) is that I think in teaching institutions with resident physicians, excessive labs and studies are ordered all the time not for fear of litigation but due to the learning process that residents go through. Just as medical students tend to write overly-long and verbose medical notes to try and cover for a deficit of experience and knowledge (I can personally attest to this), residents tend to over order labs to "toss out a wide net". It's through years of experience that a physician develops the clinical judgment to know when they truly need to order a lab. I've been taught that a good guiding principle is the question referenced in the article: "Will the results of this lab change my plan of care?" If the answer is no, why do it? This seems especially true with CTs.

One funny anecdote, I've often seen patients who are anemic have daily CBCs (blood counts ) drawn on them to monitor their anemia for fear that they will fall too low (which requires a significant blood draw). You can make a pretty good clinical assessment of anemia without having to know the hemoglobin level. If the person is asymptomatic and not actively bleeding, it might not be necessary to stress out if their hemoglobin is below 5.0 and you are treating it. Usually this persists for a day or two before a wise attending suggests to back off on the blood draws to every other day.

The moral is, if you are in the hospital and anemia is one of the problems that they are following and you are getting daily blood draws, it's not a bad idea to ask if you can't back your blood draws off to q48 hours or so (provided there isn't something more serious that needs to be monitored (like an electrolyte deficiency)).

 

[SmarterThanHick]

The right to be made whole and trial by jury is very much a component of our judicial system. No other industry is protected from civil litigation. Health care currently occupies a special protected niche.

No other industry provides services and can get sued for it in the same way as doctors. If your plumber messes up a job, he pays for direct damages to repair things and that's it. Even still, people don't go after plumbers fishing for easy cash. Well, maybe bowser.

Furthermore, it would certainly undermine our judicial system if only physicians were allowed on juries for med mal cases. It would also not be a fair trial. Both sides compensate for lack of medical knowledge by bringing in expert witnesses. That means plenty of physicians are willing to work for plaintiffs firms and testify against other physicians.

I disagree that it would undermine the judicial system. You could certainly claim it's unreasonable, but I can't see a basis to suggest the trials would be unjust if the jury selection process is exactly the same. Both sides do compensate for lack of medical knowledge by bringing in expert witnesses. How much medical knowledge is determined by two conflicting opinions? When has a journal article ever been published based on two conflicting opinions? When have you treated a patient after reading just two journal articles that disagree? Medicine is based on fact, and when definitive fact is not readily available, it uses the strongest more reliable data. How can a layperson possibly determine either power or reliability when two people they don't understand simply say opposite things?

In your medical experience, have you ever seen a patient who has gotten the opinion from two different doctors before? They always believe the one that told them what they wanted to hear, regardless of the evidence.

The fact that medical malpractice still relies on two doctors saying different things is ridiculous. There are specific guidelines that are standard of care, which should be referenced above all else.

The whole reason we have a trial system is to determine the merit of a claim. Their are legal elements of a tort that have to be satisfied by the plaintiffs before a case can go forward (i.e. causation, damages, etc.). Unfortunately, there is not a crystal ball to determine which patients have legit claims and which ones are a stretch. That is hashed out in the legal proceedings. The fact that all plaintiffs lawyers work on contingency means they can't afford to take frivolous cases.

Before the case can go forward in what kind of court? You can get sued in civil court for ANYTHING, and it can actually get to court. Why should doctors give up half a day to deal with frivolous lawsuits? I think we agree on this issue. My point is that the checkpoint which determines whether a case can go forward needs to happen long before any case gets to a courtroom, based on pre-determined precedence.

For example: if no damage has actually been done, e.g. the doctor put numbing medication in the wrong arm before surgery but realized the mistake before the surgery on the wrong site took place, the patient should not be able to sue the doctor. And while it may seem like the possibilities are endless, making it impossible to pre-determine which should be thrown out, common things are common. I bet any obstetrician can name 5 things which produce lawsuits that were not the result of malpractice. Let's start making the list, with the option to appeal for special circumstances.

 

[geauxtohell]

Before the case can go forward in what kind of court? You can get sued in civil court for ANYTHING, and it can actually get to court. Why should doctors give up half a day to deal with frivolous lawsuits? I think we agree on this issue. My point is that the checkpoint which determines whether a case can go forward needs to happen long before any case gets to a courtroom, based on pre-determined precedence.

For example: if no damage has actually been done, e.g. the doctor put numbing medication in the wrong arm before surgery but realized the mistake before the surgery on the wrong site took place, the patient should not be able to sue the doctor. And while it may seem like the possibilities are endless, making it impossible to pre-determine which should be thrown out, common things are common. I bet any obstetrician can name 5 things which produce lawsuits that were not the result of malpractice. Let's start making the list, with the option to appeal for special circumstances.

I am on surgery so busy as hell, but I'll address this and the rest later.

From this website:

Definition of Torts

There are four elements to a tort, all of which must be present before the court can order a remedy:

1. Duty. The defendant must owe a legal duty to the victim. A duty is a legally enforceable obligation to conform to a particular standard of conduct. Except in malpractice and strict liability cases, the duty is set by what a "reasonable man of ordinary prudence" would have done. There is a general duty to prevent foreseeable injury to a victim.

2. Breach of the duty. The defendant breached that duty.

3. Causation. The breach was the cause of an injury to the victim. The causation does not need to be direct: defendant's act (or failure to act) could begin a continuous sequence of events that ended in plaintiff's injury, a so-called "proximate cause".

4. Injury. There must be an injury. In most cases, there must be a physical or financial injury to the victim, but sometimes emotional distress, embarrassment, or dignitary harms are adequate for recovery.

If there are no damages, you can't sue. Any lawyer that tries to foolishly pursue that, would get denied after filing their papers. Litigation isn't as simple as "Hey, I want to sue you!" as some people would want to believe.

More pragmatically, the fact that plaintiff's lawyers work on contingency, means they can't afford to take bad cases.

 

[SmarterThanHick]

If there are no damages, you can't WIN a lawsuit. You can still sue. Such frivolous lawsuits happen all the time. You are right in that a good number of lawyers would turn down such a setup, but there's a lot of less reputable attorneys out there who are happy to dredge someone's name through the mud. It's not hard for these types to try to make the claim that a patient suffered some emotional damages, or time off work, or wrong-site IV placement.

Again, it costs doctors less money to just settle for a few thousand than to actually take the time out from work for a malpractice trial. And for the record this has very little to do with inflated health care prices. It's just about the justice surrounding malpractice.

 

[geauxtohell]

If there are no damages, you can't WIN a lawsuit.

That makes no logical sense and is not a true statement. To bring a case to court, you have to satisfy the four legal requirements I outlined above. If you can't do that, there is no case.

You can still sue. Such frivolous lawsuits happen all the time. You are right in that a good number of lawyers would turn down such a setup, but there's a lot of less reputable attorneys out there who are happy to dredge someone's name through the mud.

And those lawyers don't stay in business long. Also, people generally consider any litigation against them to be "frivolous", no matter how much they screwed up.

It's not hard for these types to try to make the claim that a patient suffered some emotional damages, or time off work, or wrong-site IV placement.

Pain and suffering/non-economic damages are capped in most states. Loss of work time is an actual economic damage that people deserve to make a claim for. Wrong-site IV placement is not an actual damage that would yield any sort of real claim. Damages have to be actual to have any merit. Placing a non-sterile line that results in infection is certainly a damage.

Again, it costs doctors less money to just settle for a few thousand than to actually take the time out from work for a malpractice trial. And for the record this has very little to do with inflated health care prices. It's just about the justice surrounding malpractice.

It's the insurance companies that ultimately make the decision. Most of the time, there is sufficient negligence to warrant some settlement, but far below the original claim. As with most things, there is usually some degree of fault, but unless it was catastrophic or done with malicious intent, the actual settlements are in the hundred thousand range and not the million dollar range.

 

[SmarterThanHick]

If there are no damages, you can't WIN a lawsuit.

That makes no logical sense and is not a true statement. To bring a case to court, you have to satisfy the four legal requirements I outlined above. If you can't do that, there is no case.

Still correct. There is no case unless you can demonstrate those requirements you outlined. Where does one go about demonstrating them? Certainly not before court, which means taking frivolous suits that make long stretches to claim those 4 requirements are met still can pull a doctor into court, spending hours upon hours just to get it thrown out.

There are still no hard boundaries to any of the requirements aside from established duty. What exactly constitutes direct damages? There is absolutely no precedent, leaving angry or malicious patients open to sue.

You can still sue. Such frivolous lawsuits happen all the time. You are right in that a good number of lawyers would turn down such a setup, but there's a lot of less reputable attorneys out there who are happy to dredge someone's name through the mud.

And those lawyers don't stay in business long. Also, people generally consider any litigation against them to be "frivolous", no matter how much they screwed up.

Also true. Nonetheless it still happens. You the system all too well: if something can happen, it will. So why allow for it if everyone agrees legitimately frivolous lawsuits hold no merit?

Wrong-site IV placement is not an actual damage that would yield any sort of real claim. Damages have to be actual to have any merit.

We agree on almost everything here. The difference of opinion is that I don't believe a wrong-site IV placement should be able to even make it before any sort of judge. The fact still remains that you just made a judgment regarding the merit of wrong site IV placement damages. In an actual suit, that doesn't happen until a doctor is dragged into court.

You can claim it's not the majority of cases, or that the plaintiff won't win the case, or that the person ought not receive compensation, and you'd be right on all accounts. Nonetheless the doctor is still losing money if it does happen, and these things DO happen.