If the prudent and well educated, highly seasoned physician practices EVM and stay along the lines of Bayesian approach at “diagnostic” testing, we may reduce wasteful “defensive” testing. The risk actually can rise of you order tests unnecessarily leading to stupid pathways. Why would anyone want to order a PSA in a pt with an EF of 15% with severe MR???? It is still being done!!!! Why order FOBT if you are already doing a Colonoscopy??? Non-thinking physicians (or “providers”) deserve to be sued. On the other hand, where is the justice for the careless physician harming an elderly man with no wealth? No attorney would accept the case. Recall, it takes ~ $100,000 just to break even. If the elderly person is not worth > $250k (notice Calif MICRA), even if the case is justified, no attorney would seek out those who are traumatized… This is reality.

As a trial attorney who has specialized in the defense of physicians and hospitals over the past 40 years, I read with interest Dr. Siegel’s comments. He raises several appropriate issues involving tort reform and the medical profession. I believe it equally appropriate to point out what I view as an inaccurate assessment of relationships between the doctor/hospital and his/its counsel. First, although this may be unintentional, Dr. Siegel implies that “meeting with lawyers” in defense of a claim is onerous and burdensome and, further, that “nuisance suits” (not “suites”) are ubitquious. In my many years of toiling in the litigation vineyard FOR doctors and hospitals in professional liability litigation, I have seen very few “nuisance” claims and those that were filed were dispatched quickly and without significant expense. Virtually all of the cases I have defended over the years have been meritorious in some sense of the word. For a claimant to file a medical malpractice suit, he must first secure counsel who is willing to front the expenses of the litigation (expert witnesses, costs of discovery, travel expenses to meet with and prepare the expert for discovery and trial testimony, etc.), then his counsel must engage reputable experts (usually from acedemia) who are willing to criticize the care provided and opine that “standards of care and practice were violated” by the doctor or hospital staff. Only then can a case proceed to trial. I’ve run out of debate space.

Dr. Wong makes some good points, but I believe he has some misconceptions about the legal system and medical malpractice litigation. Almost every MD in this country has professional liability insurance–with policy limits of at least $100k and usually more. An elderly man with no wealth can sue a doctor for med. malp. if appropriate under the facts and should have no trouble in finding a plaintiffs atty. to take the case on a contingent fee basis–no cost to the “elderly poor man” and no fee paid to the atty. unless there is a recovery either by settlement or at trial and jury verdict. If there is a settlement or jury verdict, the professional liablity insurance carrier pays it without any expense to the MD other than potentially increasing his premium when the policy comes up for renewal. The MICRA – and other state caps on noneconomic damages- limits have nothing to do with the claimants net worth, but simply limit the damages recoverable for pain and suffering/disablity. The economic damages–i.e. medical bills and past/future wage loss are not capped. Consequently, there can be “justice” for the elderly poor man if he has in fact received substandard care resulting in injury and damages. As for “seeking out those who have been traumatized”, look at the print and other media for atty. ads. doing this.

In addition to my previous comments about Dr. Siegel’ posting, I wish to speak briefly about the nature of the “tri-party” relationship between a physician, his professional liability insurance company and the defense atty. engaged by the insurance co. to represent the doctor. The defense atty. owes his duty of allegiance and care to the doctor–not the insurance company. The atty. is paid for his services by the carrier after submitting an intemized invoice for services and expenses advanced. The doctor incurs no expense for this representation. Attys. who are engaged by the carriers must satisfy the carriers criteria re. education, training and experience in the med. mal. arena. When a suit is filed, the carrier contacts one of its approved panel counsel in the area where the alleged malpractice occurred and that atty. then becomes the doctors’ counsel for the litigation. This of necessity involves meetings, research of the medical literature and numerous telephone conferences, correspondence and the like to advocate the doctors position in defending the suit. Throughout all this, the atty. is evaluating the case for the doctor and carrier toward the objective of resolution–either by settlement or trial to jury. Of necessity, the doctor becomes integrally involved in this “process”, as resolution becomes reality.

While I concur with Mr. Peck’s extensive experience, of the 4 elements (Duty, Breach of duty, Causation, and Damages) that are necessary for a case to move forward, the most pragmatic is compensatory (and non-comp) damages. More prevailing than death (with respect to amount of damages won by the plaintiff) is disabling illness – partly due to loss of income and other time-related costs (rehab, relevant medical costs, etc). Comparable damages differ greatly. For example, attorneys would more likely accept a case of a young and outstanding (and employable) pianist who had a medical misadventure on his/her hand than an elderly, retired man who died with clear causation from aspiration attributed to NG tube misplacement into the trachea. Having done hundreds of tort claim reviews using EBM and critically analyzing each case with a Sherlock Homes approach, I still find ~ 1/3 of the cases having merit. Accordingly, I concur with Mr. Peck’s comments and remain critical at how cavalier (sp?) many practitioners are in caring for the “elderly poor” and resource-limited population.

While I respect Dr. Siegel’s impeccable repute, I question the utility of “Peer Reviews.” Many of these so-called Peer reviews have been tools used by cost-conscious administrators (MD and non-MD) to de-credential physicians for whatever reason (though often due to inability to generate wide profit margins for the “Company”). Many who do these reviews are not compensated so often spend little effort in seeking out the truth. They often “shoot from the hips” and give their so-called “expert” opinion irrespective of sound evidence.

I further concur with Mr. Peck’s comment with regard to Dr. Siegal’s implication that ““meeting with lawyers” in defense of a claim is onerous and burdensome.” For physicians (Latin = “teacher”) to prevail, s/he needs to teach the nuances of medicine with his/her attorney. This requires dedicated engagement and active participation. Unfortunately, settlement surfaces as the optimal resolution if the physician is not engaged in the process since JDs can only do what s/he is equipped. Thereafter, as many physicians do not realize, obtaining HMO contracts and future re-credentialing becomes an uphill battle – due at least in part to the NPDB. Physicians need to return to academic medicine using EBM in practicing outstanding medicine and being a resource for our true allies – our attorneys.

It’s easy. Remember thel Democrats Politians are Lawyers, rich, and arrogant.
They lie to the poor, from on high, witness Ted Kennedy, Nacny Mussolini Pelosi, etc

Solution:
Put the money up from the attorney, if they lose the suit, Doctor keeps the money.

Will make everybody get more real. Right now doctors are sitting ducks.

infowars.com

Hey David Peck- it’s parasites like you and the Poster Boy for Attorneys, John Edwards, who are ruining our country. We the people think you guys are parasites, look at the polls. This crap started back when people started to sue charity hospitals….when you stinking lying attorneys got involved.

So your a good liberal, if you like Nationalizing things, and the system, great. Nationalize laywers and bring Medmal as a government provided for the doctors, of and lets give all the lawyers a salary, say 35K a year.

there’s change we can believe in.

The health system doesn’t work, the Dr. are not get paid a fair fee, no one whant’s to accept it. The drug companies giants are governing over public health. Socialize medicine is with in our reach and if they do their home work it is excellent coverage, patients do well on it, Dr. do well and hospital do well, along with all the drug companies. Cut the greed and someone make it work. They all live longer then we do here in the USA. Put Guliani there he will make it be affective, Medicaid and Medicare we know that most of the time it will fail.

As a student, I now wonder if I will ever be able to pay off my loans. With the Governement deciding which tests I can and should order, how much I will be reimbursed, and probably how many patients I am supposed to see in a day … I may have entered the wrong field.
I also think most estimates on money saved in tort reform are wrong. They don’t include the malpractice insurance of the staff, the radiologist, and every consult a patient will need during a stay in a hospital.
My solution? A little responsibility for all involved parties. Lawyers who lose frivolous lawsuits are responsible for the court fees of all three parties. Doctor, patient, and Lawyer! This way blatent cases are still taken before a court justly, yet a ambulance chaser will think twice because a little more is on table. The funds of all parites involved are not leeched by a compromise without admitting fault.
I also like the point of having an insurance company liable for denying a test that could have saved a life. Case in point -my insurance- will not pay for a dermotologist to remove a mole or the pathologist to asses it unless it is found to be malignant! Impossible to know until it’s under the microscope.
Finally- the next president should be an accountant, not a lawyer or neighborhood organizer. Just thought I’d throw that out there.

If expectations from the public (and the jurisprudence arena) are beyond reason (ie, “just fix me doc”) and the patients do not assume some reasonable responsibility (“I take a little white pill doc! You know what that is”), we will be imperiled with the spiraling descent toward wasteful litigation and premature settlement. Physicians need to also assume responsibilities such as getting rid of that non-sense, “No news is good news”… No news is …………………………….. NO news. Also TRUE medication reconciliation done by PharmD and not simply an MA – preferably by MD will reduce medication misadventures. How many times we see pts getting ATN from hypotension due to Lisinopril being raised from 20 to 40 mg a day when all along, the pt never even took the prescribed Lisinopril! Pts often don’t realize the danger they put THEMSELVES in when they try to “please the doctor” by telling the doctor what they think they want the doctor to hear. Document the suboptimal collaborative partnership, and that MAY reduce frivolous lawsuits. For the medical student who is in debt…face it, you’ll be in debt for the rest of your life so might as well enjoy your career. You’ll be in debt even when you buy a house or get married (or both).

What a great article! No suprise that tort reform is not being addressed. With 7M greasy attorneys in the US it is a numbers game. The number one greasy lawyer lives on Pennsylvania Avenue.

There are lawsuits filed that shouldn’t be but being the victim of a very unethical doctor and not being able to do anything about it also is not right. The threat of potential lawsuits is the only thing that keeps some companies and doctors from crossing the line. The focus should be on the drug/medical device makers who use all sorts of incentives to get the doctors to use their products. A number of the new products are versions of older drugs that the manufacturer has tweaked or changed the delivery mechanism. They usually charge a fortune for the drug. Ever noticed how doctors will write scripts based on your insurance. Not all doctors are ethical. My life has been turned upside down due to a doctor who decided to perform procedures that I did not even need. Those procedures have already cost me another surgery and future surgeries. It is almost impossible to sue a doctor and therefore I see this as another big spin to keep the focus off Big Pharma. Do some research and look at Big Pharma.

Let’s discuss nuisance suits—I have been sued 4 times by inmates and have won, in the state of Alabama. All of them were nuisance suits, none of them had a malpractice attorney, none of them took LESS than 2 years to resolve. I have also been sued as an add on to a Lilly lawsuit to get the case in State court (this DID involve an attorney) this was dismissed as fraudulent joinder, with prejudice.

In short, Mr. Peck, you are full of what Carl sandberg said that Norman Mailer would refer to as

Would most citizens really wish to forgo “socialized” programs such as police, firemen, public libraries, public schools, our armed-forces, Social Security – and yes, Medicare? Aren’t these the very type of programs and protections that make us civilized?

The United States stands alone as the only country in the developed world without universal health care. The “socialism” and “communism” objections are nothing short of fear-mongering largely propegated by the for-profit insurance industry.

Do the “happy with their current insurance” group realize how precarious your coverage is:

* Should you become seriously ill, your insurer can rescind your coverage.
* Should your medical costs exceed the allowable maximum, you will likely be forced into bankruptcy.
* Should you lose your job and have a pre-existing condition, you will likely be unable to purchase coverage.

Please, please, let’s tone down the rhetoric and focus on the facts: This affects all of us, Republican, Democrat or Liberiterian. The for-profit insurance industry is spending $1.4 MILLION per day to battle real reform. “Death Panels?” The for-profit insurance industry is presently a “death panel” via rescinding or decling coverage.

While Susan Devine has legitimate opinions, she makes no further insights into the topic of THIS blog – Tort reform and Medical Practice. Please re-direct your well-regarded opinions accordingly to capture the more appropriate audience.