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Treating the Medical Hit-and-Run
I wish President Obama could meet one or two of my clients who are victims of medical hit-and-runs. When the President tells the American Medical Association that he is open to curbing the rights of injured patients to sue in court, he shows that he just doesn't understand either what they go through or how important their lawsuits are to protect the safety of other patients.
Medical hit-and-runs happen when a patient is gravely injured or killed by preventable medical error, but then the doctors and nurses pretend nothing happened. This occurs every day across America. Most patients lack the wherewithal to tell the difference between preventable harm and the normal "stuff happens" consequences of the disease they started with. So a policy of denial can quell embarrassing questions, at least for a time.
But when families find the truth, sometimes by accident and sometimes by hiring a lawyer, the trust and confidence these families had reposed in their caregivers vanish in an instant. Medical injury compounded by betrayal carries its own peculiar kind of pain: searing and long-lasting.
Why do victims of medical hit-and-runs need the right to sue in court? Certainly, the money is part of it. Financial compensation in court sometimes is the only way to stave off bankruptcy when a serious injury has destroyed someone's ability to work and left the family with an unending stream of medical bills.
Lawsuits are part of the healing process from medical injury. When an injury has attacked someone's dignity and identity, the ability to haul the betrayers into court and demand accountability is a powerful tonic. Not so much for revenge, but out of the feeling, as so many of my clients tell me, "I just don't want to see this happen to someone else."
By exposing incompetence and flawed system structures, hit-and-run victims help contribute to safety reforms that protect everyone.
If medicine had a well-oiled safety system, maybe we wouldn't need lawsuits. The problem is not too many lawsuits, but too many people getting hurt and killed because medicine has barely begun to take seriously patient safety. A full decade into the 21st century, our medical industry denies that patients have any legitimate role in monitoring and enforcing the safety of their own care. A complex structure of confidentiality and "privilege" laws ensures that safety reviews are conducted in secret and never reported in any publicly accessible forum.
The statistics released by the system do not support the medical industry's claim that robust enforcement of patient safety is taking place behind closed doors. Hospital peer review is the latest example. New data from the Department of Health and Human Services show that 49 percent of U.S. hospitals have never reported a single sanction against any physician's privileges to the national data bank to which they are required by law to report. This despite the fact that the same law was written twenty years ago to block patients from ever finding out the contents of any individual report. Patients just cannot understand peer review reports, the medical industry successfully lobbied Congress.
As for medical licensing boards, most of the serious discipline involves low-hanging fruit like practitioners who abuse drugs or alcohol or molest their patients. A study of medical boards' responses to criminal convictions found that two-thirds of the doctors convicted of insurance fraud received only non-serious penalties. Serious discipline for patterns of negligent harm to patients is rare.
Meantime, the system-wide efforts to address the pandemic of medical error all rely on voluntary efforts and the good will of well-meaning medical executives. When greed or arrogance or just short-sighted cost-benefit calculation frustrates reform, patients have only one recourse to force attention to safety: file a lawsuit.
Does the threat of lawsuits cause doctors to order unnecessary tests and treatments? This "defensive medicine" argument from the medical lobby has been around for a while, and objective reviewers like the General Accountability Office have never found any solid proof that defensive medicine even exists. The proof that it doesn't comes from the "reforms" that some states have implemented to crack down on patients' lawsuits. Texas and California, for example, have eliminated nearly all malpractice lawsuits, yet aggressive, procedure-intense medicine thrives in both states, making them among the most expensive in the nation for medical care. What drives high costs in medicine is the fee-for-service payment system that rewards doctors who order the most care, not those who order the most thoughtful, most effective care.
Hurting patients by failing to follow basic safety rules can be undeniably expensive for medical providers - and it should be. Our broken system needs lawsuits to force accountability and to bring urgency to the safety message. And that can potentially save billions. If the President and Congress focused on safety first, instead of costs first, we could create health care reform that would help everybody.
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See Patrick Malone's Profile
Thanks to everyone for their comments. I neglected to mention in the original post the source for the statistic about half of American hospitals never having reported any peer review discipline to the National Practitioner Data Bank, despite being required by law to do so. The source is a new report by Alan Levine and Sidney Wolfe of Public Citizen. You can read it at:
http://www.citizen.org/publications/release.cfm?ID=7659&secID=1158&catID=126.
As we know, the public option currently being discussed is modeled after Massachusetts Plan, under which about 97% of all Massachusetts residents are now covered. However, in recent estimates, CBO left out two crucial features, including a 'public health insurance option' and 'employer mandate and an individual mandate'. The estimates with 'no employer mandate and an individual mandate' ended up with 36 million uninsured.
By contrast, in case the proposed provisions with respect to the strong public option, medical IT, increased efforts in prevention, and a broader array of cost-saving plans and beyond add to the Massachusetts Plan with the provision of employer mandate and an individual mandate, the cost containment does not matter at all. And most importantly, the promising stem cell research is making its way.
To date, private insurers have coexisted profitably with Medicare and Medicaid for many years.
Basically, healthy society leads to better productivity and better performance.
In a capitalist system, lawsuits are required to root out poor business practices and inferior products from the market. In theory, businesses that do harm to trusting consumers should be put out of business. The market corrects and the corrections come through lawsuits. Doctors will complain about "frivolous" lawsuits as though they are common. In my experience, no lawsuit is frivolous from the victim's perspective. And, if the doctor or practice or hospital is getting too many "frivolous" lawsuits, you can bet there is something wrong in their procedures that causes harm to patients or there would not be so many of them. Unfortunately, the justice system is a consumer's last recourse when harmed by a product or a business or a doctor. To give doctors protections against lawsuits will put many more patients at risk since the incentive not to harm patients--threat of a lawsuit--will be gone. Then doctors can lie to any patient and mistreat them and the only consequence will be to lose the patient. That leaves the doctor in business and the rest of that doctor's patients unaware and unprotected of their risk for harm. Lawsuits are a check on the capitalist system and without them, the system fails the consumer. You get a buyer-beware economy where deception rules the market. It is unsustainable.
I certainly don't believe most doctors are bad people or poor physicians, but they need to stop protecting the ones whose failings are arrogant and repeated !!
A doctor destroyed my arm with his negligence when I was a child. I not only received ABSOLUTELY NO COMPENSATION, my family was bankrupted, and it was only through a charity hospital that I got my arm even partially restored !!! Also, a dermatologist in North Palm Beach physically attacked me where he had just operated on me because he got mad at me!!! Nurses were the only witnesses so I couldn't do anything about it without hurting their careers!!
The AMA doctors these days are mostly a PR org. Notice their main concern about healthcare reform was whether their bottom line was affected !!! SHAME ON THEM !!!!!
FIRST, DO NO HARM !!! CARE ABOUT THE PATIENT FIRST AND FOREMOST !!!
A lot of these mistakes are paid for by the taxpayer.For example if someone on medicaid or medicare is injured in the hospital or thru professional negligence and must be fixed - it is the taxpayer who will pick up that 2nd, 3rd, 4th hospitaliztion and all the surgeries and meda required to try and save the lifeor fix the problem. In other words the hospitals are going to have to supervise the docs a lot more carefully and hopefull staff adequetely.
Just last year the Bush administration passed a law that the government will no longer cover days in the hospital caused by the hospital - infections, med errors ,surgeries etc . What happens to these people when they are discharged and yet need further treatment I have no idea.
How about a national database? People log in and rate their doctors. Knowledge is power. Doctors can't hurt more people if they don't have any patients.
It is difficult enough to get an Md thru an HMO, imagine if the bad doctors were made public - it 'd be impossible!
Great idea! Just like rate my professor!
Excellent post- from a medical malpractice attorney's point of view.
Do medical mistakes happen? Yes. Because doctors are humans. Should a medical mistake be pursued in court? Yes. However, for every attorney fighting for justice for a patient who suffered from medical mistake, there are more frivolous lawsuits from"ambulance chasers". The facts are that defensive medicine is practiced every where. The facts are that medical malpractice premiums have gone up exponentially because of the risk of suit, regardless of the facts of the case. Regardless of that there has not been an equivalent increase in number of cases.
Could doctors do better? Yes. But the trial lawyers of america make a lot of money pursuing malpractice suits, often frivolous. And frivolous or not, the can take up to 2 years to get resolution. This is not a one sided case. And, as opposed to the medical profession, where everyone but the doctors have a final say, the lawyers of america govern themselves and set their own rules, standards, and fees. Doctors do not charge in 6, 10, or 15 minute intervals or on contingency. If we did, no one would be able to to receive care.
I realize that most of the posters think doctors are the enemy and the worst people in the world, but the majority of doctors are not. We are trying to practice medicine by doing the best for our patient within a system that uses the words doctor-patient relationship and patient care as buzzwords.
"I realize that most of the posters think doctors are the enemy and the worst people in the world, but the majority of doctors are not."
I have had several unpleasant [and a couple of life-threatening] experiences within our healthcare system, but the statement above doesn’t reflect my POV on US physicians. My biggest complaint with our physicians is that they have adopted two very harmful modes of operation:
1) US doctors--and I am speaking of the majority of my experiences with several doctors over two decades--have adopted a "business model that provides patient care," which amounts to seeing as many patients as possible per day, and doing the minimum required to treat any given patient.
2) Within the "business model that provides patient care," doctors make little or no effort to treat the patient in any preventative or systemic way, but treat only symptoms; if you do not manifest a set of preconceived, packaged symptoms for a given malady, you will likely be diagnosed as suffering from too much stress or a "virus." This occurs on a regular basis, even when just a little more investigation would reveal an underlying and treatable cause.
Such does NOT make them EVIL people; it does, however, clearly identify a strong trend with US physicians that suggests the majority are driven by profit rather than providing the best patient care, which in turn drives down the level of effective care for all patients treated by such a physician.
The US medical system is not designed for prevention, nor has it ever been. Partly, because people do not go to the doctor unless something is wrong. Partly our culture- please look at our culture of more is better, bigger is better, and resulting obesity. What has happened to the US healthcare system, because of insurance companies and government (please do not think this is the beginning of government involvement in healthcare- every year the it arbitrarily states how much each doctor will be paid for services, how much each test will be reimbursed, etc) healthcare is a business. It is the biggest business for everybody except patient care providers( doctors and nurses) and patients. If a doctor needs to pay their license, their office staff, their employee insurance, etc, they need to compete as if they are a business like every other business.
I am sorry about your experiences. However, doctors are not trained to work on preconceptions. They are trained to look at the symptoms and complaints and try to find the most likely diagnosis. There are patterns to diseases. A little more investigation? Investigation means tests, too many tests, then you are a doctor playing defensive medicine and jacking up thecosts. Healthcare is very complicated. There does not need to be reform, but a revolution. Unfortunately, there are many who are against that. There is already a doctor shortage in this country, and as long as all doctors are considered the problem, that shortage may get worse.
They are in it for profit to help defray the outrageous malpractice insurance they must maintain, not to mention the crushing debt of med school. The notion that the local doctor was a kindly, caring curmudgeonly practioner who would don his hat and coat and go out in inclement weather to tend to some frantic mother's feverish child, or even childbirth, is long over. I'm old enough to remember $15 doctor visits at the house.
Blame rampant greed of lawyers and outrageous medical school costs. Not the Doctors.
Yep, the lawyer told me that because I looked healthy, he would not win my case even though doctors' error had kept me in the hospital two weeks longer during which I almost died. I was operated on by a young doctor who unbeknownst to me was purchasing the practice of the UCDavis OBGYN professor I thought was my doctor. The operating doctor discharged me the first time without ever touching my hysterectomy wound area or he would have seen me wince. Then he went on vacation while I was still in the hospital that first time. I was back in with an infected blood clot (not a rare occurrance I later learned) although it took me two visits to the emergency to get readmitted because the first time the ER doctor had been socked in the jaw by the person before me and although I arrived in a wheel chair, he sent me home.
I know now that the only way for one to get an "infected hematoma" inside of one's belly is for the hospital staff to have put the infection there. And while the operating doctor was on vacation, his "helper" doctors were afraid to get involved with his "mess." They,almost killed me but I had no recourse. Besides as a middle aged, newly single woman without a job, I had to find a job as soon as I was well; I had neither time nor money to trot around trying to find justice.
As a nurse let me say that the fear of malpractice suit may be the only thing that keeps Mds and hospitals from being totally negligent. If they could they would stack patients in the halls and let nurse practitioners do all the work .
Even with malpractice suits hanging over their heads doctors protect each other and have an unofficial rule against testifying against each other, making it very difficult for patients to recoup losses that will effect the rest of their lives as well as livliehoods.
here in Texas they voted in a $250,000 recap , supposedly to limit the cost of malpractice insurance - did it effect it? - not in the least!
Keep up the good work attourneys - it is only your efforts that keep doctors from becoming total savages and hospitals from becoming butchershops.
See R.W. Sanders's Profile
Though my case is considered minor, I am disabled due to it and can no longer even play my guitar with any rhythm because my medicine makes me too spastic. Yet, living in California, when I tried legal recourse the first question asked by a prospective attorney was "did anyone die?" Why did they ask this, because unless there was a death involved and the cap was waived, a lawsuit is just not profitable. The lawyer can make much more money writing wills and handling bankruptcies. So now it has been seven years that I have been robbed of my ability to make a decent living or enjoy many very simple pleasures of life. I believe this has happened to countless others like me. So when I hear an advocate for malpractice caps, I am infuriated and unfortunately powerless.
thank you for the lawyer's perspective.
but honestly there needs to be an assessment and improvement from all sides. lawyers and doctors have to improve. there are frivolous lawsuits. they need to be minimized. there are medical mistakes, and they need to be minimized as well.
this has little to healthcare reform, which is absolutely necessary. tort reform and addressing medical mistakes need to be addressed for the benefit of all. but these can both be handled after healthcare reform.
I have one....Keep the medical community on its toes, and quell the frivolous lawsuits in one fell swoop.....LOSER PAYS. Go ahead, bring the case to court. It better be legit, or its gonna cost ya.
LOSER PAYS, I say.
I'll be happy to put a limit on awards when doctors put a limit on how much damage they do.
What a great post!! Most people don't understand that limiting lawyers' ability to protect individuals limits corporate accountability. Not only do medical errors occur with doctors, the hospitals are fraught with medical errors which end up causing numerous health problems for patients. The more we limit trial lawyers, the more we will see Enron, HealthSouth, Worldcom, Tyco, etc.
Jon E. Lewis
www.LFLMlaw.com
No, what most people don't understand is that 75% of the malpractice lawsuits lawyers file are deemed as frivolous and eventually dismissed, although the doctor still has to pay for the two years ( average) of lawyer costs incurred before this happens. If your really think the lawsuit has merit, than you should have no problem with the English rule (loser pays)!
...that's why doctors and hospitals have malpractice insurance. If the money for defense came out of their own pockets they would be much more careful and hospitals wouldn't have their doctors working 16+ hour shifts without a break either. No, the call to limit compensation for victims comes from insurance companies. The doctors just want to see their insurance rates go down and they think limiting compensation will do that because the insurance companies lie to them to get their support for this nonsense. The insurance companies want to limit their expenses so they can maximize their profits and getting laws written to ensure that is in their best interests. Doctors beware! You can't profit because the rules are fixed for the insurance companies to profit at your expense. Protect your patients. First, do no harm. Leave the system alone.
This is a tough one because while I'm that there are a few doctors, nurses, etc who do occassionaly act negligently, there's gotta be at least an equal amount of frivalous lawsuits. Why can't we just identify the frivalous lawsuits and tell those people to take a hike? Does is have to be "everyone can sue or no one can sue"?
Frivolous lawsuits don't make it very far, they are weeded out before too much damage is done. Defense lawyers are extremely well paid to make that happen. Many, many more potential lawsuits never happen because people do not understand their rights, or do not understand how the system works, or do not understand that their loved one died because of medical malpractice, or because people buy into the pejorative meme that people who file lawsuits are just out to make a quick bundle. Mr. Malone is right, we have the system of civil suits because we don't have robust regulatory enforcement.
"Frivolous lawsuits don't make it very far" - just plain wrong.
the rest of what you said is fairly accurate.
But frivolous lawsuits do occur quite often. And there is very little done to prevent them.
One the most common and highlighted issue is ObGyns and their ridiculous insurance premiums which can easily be as high as 200,000.
One of the problems is that parents can sue ObGyns up until the child is 18. SO any problems can be attributed to the ObGyns. Many of these are issues that have no specific cause and effect. And yet when lawyers use sympathetic children, whose condition can NOT be directly linked to the actions of the doctors, they are using empathy of children instead of scientifically based cause and effect findings.
It's a problem on both sides, and it needs to be looked at from both sides. Blaming one or the other is careless and doesn't honestly address the actual issues.
the amount of lawsuits compared to the amount of damge done in hospitals is zilch. Time and again I treated patients who were in again for grievous injuries the first time around- In twenty years of nursing when I asked - "have you seen an atty?" the answer was always no. First ,they are too debilitated , second ,doctors will not testify against each other.. Now in clearcut cases where they amputate the wrong leg or something ,people will seek out an attourney although the hospital usually tries to settle first.
You have absolutely no idea the harm that takes place in hospitals .In fact it is de rigeur among nursing professors to to take a companion into the hospital with them to prevent the usual "comedy" of errors that is so common amongst medical professionals
Pat Malone.....your medical malpractice story is right on. As you know we share a passion to uncover the truth of these medical cover-ups.....we ask "Is this good medicine?"....the providers/insurers ask "Is this defensible?"...I'm glad we are on the right side.....alan perer
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