Medical Malpractice -- Defensive Medicine
Clark Newhall sent me a letter and a copy of The Medical Malpractice Myth. Thanks. I'm enjoying the read. But, I think you miss my point.
I believe that medical malpractice occurs. Of course it does. Medicine is a human endeavor -- susceptible to human mistakes.
I believe that people subjected to medical malpractice should be compensated.
But I don't believe that lawyers should be unjustly enriched at the expense of medical malpractice victims. Nor do I believe that medical decisions should be driven by litigation concerns; instead, they should be driven by what is best for patients. To that end, I have a few questions:
1. Why do medical malpractice attorneys take such a big chunk of the money that is intended to compensate medical malpractice victims?
If the justification for taking a third or more of the victim's money is that the legal work is so darn tough and unpredictable, then let's simplify the process (a.k.a, "reform"), like my legislative colleagues helped me do regarding compensation for car-accident victims?
2. Is defensive medicine always a myth?
Many women would like to give birth naturally after having a previous c-section. However, many hospitals don't allow this, it seems, more as a reaction to litigation concerns than medical concerns. In that situation, it seems that litigation concerns waste resources and, worse, threaten great harm to people. Women are forced to either (1) give birth naturally, away from a hospital (which can be a health risk in a VBAC situation, since uterine-scar tearing is possible) or (2) undergo a surgical procedure they would rather avoid (which poses significant risks, in normal course and in cases of human error).
So, don't get me wrong. I'm not against compensating victims or against thwarting malpractice. I'm against lawyers walking away with so much of the victim's money and with lawyers driving medical decisions that are harmful to patients.
I believe that medical malpractice occurs. Of course it does. Medicine is a human endeavor -- susceptible to human mistakes.
I believe that people subjected to medical malpractice should be compensated.
But I don't believe that lawyers should be unjustly enriched at the expense of medical malpractice victims. Nor do I believe that medical decisions should be driven by litigation concerns; instead, they should be driven by what is best for patients. To that end, I have a few questions:
1. Why do medical malpractice attorneys take such a big chunk of the money that is intended to compensate medical malpractice victims?
If the justification for taking a third or more of the victim's money is that the legal work is so darn tough and unpredictable, then let's simplify the process (a.k.a, "reform"), like my legislative colleagues helped me do regarding compensation for car-accident victims?
2. Is defensive medicine always a myth?
Many women would like to give birth naturally after having a previous c-section. However, many hospitals don't allow this, it seems, more as a reaction to litigation concerns than medical concerns. In that situation, it seems that litigation concerns waste resources and, worse, threaten great harm to people. Women are forced to either (1) give birth naturally, away from a hospital (which can be a health risk in a VBAC situation, since uterine-scar tearing is possible) or (2) undergo a surgical procedure they would rather avoid (which poses significant risks, in normal course and in cases of human error).
So, don't get me wrong. I'm not against compensating victims or against thwarting malpractice. I'm against lawyers walking away with so much of the victim's money and with lawyers driving medical decisions that are harmful to patients.
posted by steve u. at 6/22/2006
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7 Comments:
Steve, thanks for making these points.
Clark Newhall would continue to disagree with you; however, I think there must be something to the medical malpractice issue. Clark would say financially speaking doctors can easily afford the premiums, I think the medical malpractice is more of a psychological issue rather than monetary.
When the fear of getting sued begins to overshadow the responsibility of doing the very best for the patient, then something needs to be reformed.
Even if issue is just the perception by physicians that medical malpractice rates are rising uncontrollably, medical malpractice reform could help some doctors feel more secure about their jobs - just be sure the reforms won't help the bad ones stay in business.
I suggest that "jb" and "reach upward" also read the book I sent to Rep. Urquhart. I will be happy to send them a free copy if they promise to read it.
To respond.
Rep. Urquhart, you appear to have confused cause and effect and to have made presumptions that do not stand up to scrutiny. The fact that Utah has one of highest rates of C-section in the nation has nothing to do with medical malpractice insurance premiums, given that the premiums for ObGyn physicians in Utah is lower than in almost any other state and given that the average malpractice verdict in Utah is the LOWEST in the nation by far. C-section rates are driven by 1-changes in standards of care which are decided by physicians and 2--reimbursement rates. In fact, if you follow this thought, you will have to agree that a doctor practicing "defensive medicine" is by definition engaging harming his patient with an unnecessary medical procedure. In other words, the doctor practicing "defensive medicine" is by definition engaging in medical malpractice. I am sure that if you ask a doctor this question: "Do you practice defensive medicine" he or she will always answer "yes." But if you ask "Do youperform unnecessary treatments, procedures and tests that harm or cost money to your patient?", he or she would be quick to deny that practice. Yet the two questions are really just one question. As I said before, one mans' defensive medicine is another man's good medical care. I can give you example after example from my own medical practice where the standard of care (defined by the peer-reviewed literature) changed over time to reflect more expensive or intrusive medical practice. The standard of care changed because doctors defined it differently. The old days when the family doc delivered the baby on the kitchen table are over and we are better off for the change. Women who wish to give birth outside a hospital can still do so, but if they consult a physician, that physician is going to use his best judgment. It would be wrong to say (and the physician would agree if asked directly) that the physician's best judgment is colored performance of unnecessary procedures that are either costly or harmful to the patient, particularly when those procedures are done solely to protect the physician against imagined liability. The argument is logically ridiculous.
As to the outrageous verdicts driven by greedy trial lawyers, I dare say that as a lawyer you make a better living than I do. I was once asked why I left medicine and answered "I want to work harder and make less money." As a physician, I had an income of about 300,000 per year working less than 40 hours a week in emergency rooms. As a lawyer, I make about 1/5 that much working from 7 a.m. to 5 or 6 p.m. most days.
My personal experience can be summed up with a description of a case I won in December against St. Mark's Hospital. The nurse had failed to notice (on 9/11/01) that my client's heart monitor was alarming and showing abnormal rhythms. This went on for forty minutes. The client suffered a respiratory and cardiac arrest but was resuscitated. She is now unable to feed herself, clothe herself, walk without help, stand without help, talk for more than a short time, read, use a computer, etc. She is cared for by her 80 year old father. The experts we hired estimated her future medical care and her lost wages to total about 11 million dollars. The experts St. Mark's hired did nto even testify at trial. The jury foudn that this lady should be compensated in the amount of about 1.7 million dollars. They did not give a dime for pain and suffering.
This case took four years to get to trial and cost me personally about $170,000 so far (hard cash out of my pocket, not time spent) for experts, depositions, etc. St. Marks defended with 5 lawyers, one of whom is a big shot from Virginia who probably charges around $500/hour.
SO how much money has this particular greedy palintiffs' lawyer (ME) gotten out of this case. NOT ONE DIME. St. Mark's has vowed to fight this through as many appeals as possible and it will be years before I or my client sees a DIME. Most likely, she will have lost her father by then and willahve to go into a nursing home.
What is the point? The point is that this lady had NO RECOURSE except a malpractice suit. Could she have gone to the hospital and asked it to pay for its mistake voluntarily? She could have done that--except that the hospital denies that any mistake was made and thanks to Utah law (peer review privilege) has successfully hidden any investigation of the mistake it ever did (if it did one.) There is no way for this lady to pay for her loss of ability to work (she was a warehouse manager) or most of her her future medical care except through a lawsuit. I suspect that even though I spent $170,000 in money and thousands of hours in work ont his case, St. Marks spent even more, perhaps as much as $500,000. Why? Because St. Marks headquarters in Nashville, TN decided that Utah would be a good state in which to take every malpractice case to trial, just to show us plaintiffs lawyers what tough guys they are and to try to save money. How do I know that. I heard that very statement from the defense lawyer's mouth.
So, Rep. Urquhart, if you recognize that medical mistakes kill and injure people (as I am sure youdo recognize now that youhave read the first chapter of the book I gave you), then feel free to give me a call or an email to discuss ways in which this problem can be resolved. But do not make the mistake of thinking that "greedy trial lawyers" are ot blame for rising medical costs. After all, it is not we who are killing 100,000 people in hospitals each year.
Clark Newhall
cnewhall@cnewhall.com
801-363-8888
If the facts are as you state, your Saint Mark's story seems to make the case for reform. If liability is as clear cut as you say, and you work as hard as you say, and your client still has nothing to show for it, I can't imagine why you'd use so much energy to prop up the system that leads to such a scenario. It would seem you'd be first in line to look for ways to quickly compensate such victims.
Addressing my example, well, you didn't. The question is whether docs are refusing to perform vaginal births after c-sections because of health reasons or because of liability concerns. If it is liability concerns -- which it seems to be -- I can't understand, again, why you as a medical doctor wouldn't be first in line to change a system that is forcing women to have potentially dangerous surgery against their will.
Clark's story is interesting, because it contradicts Tom Baker's claim that insurance companies settle clearcut cases of malpractice quickly. Perhaps there's something not as clearcut about the alleged malpractice (or damages or causation) as Clark claims? Surely St. Mark's lawyers didn't go to trial and just shrug their shoulders.
C-sections are up 500%, but cerebral palsy rates are the same. And women don't have drugs for morning sickness because lawyers have driven the safe and effective Bendectin out of the market, resulting in a doubling of hospitalizations for pregnancy-related dehydration.
I'm not sure I can agree to spend time reading an entire book of trial lawyer propaganda. Rep. Urquhart rightly spreads the blame for some of our medical system's problems to both the medical and legal communities. But Dr. Newhall seems to argue that trial lawyers are always good for the system and that deficiencies in the system rest solely on the shoulders of care providers.
While I do not wish to denigrate Dr. Newhall's medical experience, his lopsided arguments do not pass what one of my college professors years ago called the Sixth Grade Test. That is, any reasonable sixth grader could give you a more accurate assessment of the issue.
For a non-medical parallel of how trial lawyers are helping to ban diving boards from public swimming areas, see this interesting article by Steve Moore. The diving board case parallels medical care cases.
I don't think anyone is arguing that trial lawyers serve no good purpose or that medical care givers are never negligent, but it seems clear that well reasoned reform is needed to improve the likelihood of optimum, cost-effective care.
Some excellent points. If you ask someone to pick a number between one and ten, chances are you'll get a number in that range. What happens when you ask someone to pick a number between one and infinity? Things get crazy!
My point is that I believe juries need direction as far as compensation is concerned. Otherwise, things usually get crazy.
I also believe tort reform can effectively compensate patients AND meet the financial needs of the attorneys involved.
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