Mr. Turkewitz,

Thank you for your reply. It has given me a few new perspectives on the malpractice issue to contemplate.

Even with this new information, however, I think there is one thing that the idea of a "medical court" could try to address. That is the inefficiency inherent to the current system. From the Harvard study:
"In monetary terms, the system’s overhead costs are exorbitant. The combination of defense costs and standard contingency fees charged by plaintiffs’ attorneys (35 percent of the indemnity payment) brought the total costs of litigating the claims in our sample to 54 percent of the compensation paid to plaintiffs....Substantial savings depend on reforms
that improve the system’s efficiency in the handling
of reasonable claims for compensation."

I have no problem with the idea of plaintiffs' lawyers working for a contingency, even a large one. Indeed, I agree that contingency system acts as a filter on lawsuits since (as you have mentioned), no plaintiff's lawyer will want to take a case without merit from which they have little chance of receiving compensation. The fact that more than half of the value of compensation paid to wrong plaintiffs ends up going to attorneys fees, as well as the fact that the study found that it took an average of five years to settle a case, however, demonstrate that there is great inefficiency in the current system that could potentially be remedied by allowing an alternate route to pursuing litigation. Indeed, an alternate path to litigation could also allow genuinely-wronged patients whose cases are not lucrative enough to attract legal representation to pursue relief, much like the small-claims court system.

Also, thank you for the information about price gouging in the medical malpractice insurance market. Remedying the problem of overpriced insurance is something on which physicians should focus.

I have one other question that will hopefully have a shorter answer. What is your feeling about the physician apology laws that some states have passed or are considering? The laws I'm referring to allow physicians to apologize to patients without that apology being admissible if litigation ensues. Personally, I feel as if they will improve the physician-patient relationship, will allow physicians to more easily admit to mistakes (which is important for both patients and for the education of the physician), and will generally help to relieve the (unfounded or not) perception by physicians that the current medical environment is overly-litigious. Granted, most of the laws (like the first one to be passed, the one in MA) do not cover admissions of fault, just sincere statements of apology, but they seem as if they're a good idea. Here's an article about the issue: http://www.law.com/jsp/article.jsp?id=1176282248998

I appreciate your response to my earlier questions. Thank you for taking the time to write and post this response.
 

I'm glad you are asking these questions and are open to this discussion.
Recently, I was involved in a debate about whether juries are out of control and whether they should be allowed to decide cases. I clearly believe they should. Thomas Jefferson said it best “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
A recent study by the Center for Justice and Democracy dispelled a number of myths.
Some of the biggest truths revealed are: (1) average jury verdicts are decreasing, not increasing, (2) In 2007, Lawyers Weekly reported that “for the second year in a row, the nation's largest verdicts to individual plaintiffs have fallen dramatically.” The publication reported that its “Top Ten Verdicts in 2006” were about one third of the average in the previous year, (3) juries are not anti-business or anti-docter, in fact the opposite is true, (4) high jury awards are frequently reduced after verdict, (5) In 2001, the latest year studied by the U.S. Department of Justice, plaintiffs won before judges 50 percent of the time in 2001, while only winning 26.3 percent of cases before juries, dropping from 30.5 percent in 1992. According to the Harvard School of Public Health, patients “rarely won damages at trial, prevailing in only 21 percent of verdicts as compared with 61 percent of claims resolved out of court.”
If you go to this link, you can get a copy of the Center for Justice and Democracy's Study.
I also don't think medical review panels are the answer. I handle medical negligence cases in Kentucky and Indiana. The latter has tort reform and medical review panels. Before filing your claim in court, you must first file a
"propsed complaint" with the department of insurance. I filed one such proposed complaint in 2004, the panel has yet to come to a decision. Regardless of how long it takes them to come to a decision, it is likely to still not be the end of the case since the panel does not decide damages. A lawsuit must still be filed in order for a jury to determine the damages. It is a long and inefficient process.
There was also a recent Princeton study examining the reasons for the high cost of healthcare. They found lawyers and lawsuits played a negligble role. You can find the report here: http://www.poppelawfirm.com/blog/index.cfm?id=548
Hans Poppe
www.PoppeLawFirm.com/Blog
 

The author of the original post stated:

“I do, however, have a question. While I do believe that genuinely-wronged people should have a right to pursue damages, I am also training to become a physician and I see med-mal as a reason why medical costs are rapidly increasing. Malpractice insurance premiums, while obscene, are not the biggest factor in this increase. Instead, from what I have seen and been told by physicians, unnecessary (and extremely expensive) tests are routinely ordered to cover the one-in-a-million possibility of disease so that doctors can more successfully defend themselves if sued. These are tests that would not be ordered if the perspective of frivolous lawsuits were not hanging over the heads of physicians.”

Sorry, but I don't buy that tests are ordered by Dr's to protect vs. the threat of litigation.

To establish malpractice, a standard of care must be breached. If there is no medical basis for ordering the test, then there is no basis for claiming a standard has been violated.

Moreover, the results of "unnecessary" tests may just as easily raise new potential issues that require care & treatment as they may rule out a condition, etc.

If truly unnecessary tests are being ordered it seems more likely to me that it is being done to generate $$$s for the Drs & their referral partners.

Also, you raise concerns about the efficiency of the system. Very few cases actually go to trial b\c of the screening process involved by lawyers like Eric who bring such cases and b\c the insurance co's along with their clients and experts assess the cases & the risks involved pre-trial. By the time a case is trial ready there is very little, if any, element of surprise left, thus the merit of the claim is ripe for evaluation. Truth be told the insurance carriers simply by reviewing the records and speaking to their Dr/client early on should be able to assess most claims and if they so desire can resolve them efficiently early on in the process.

The biggest expenses in litigating medical malpractice cases come at trial. Experts cost significant money to prepare for trial and to schedule their testimony in Court.

Trials are about risk – both sides face the risk of leaving the decision in the hands of a jury. Oftentimes, this will cause the two sides to reassess their positions and to settle during trial, like in Flea’s case, or sometimes cases will even settle after the entire case has been presented and the jury is out deliberating. The unknown can be a strong motivating factor, particularly where both sides have access to experts, have evaluated the claims, and can assess the merits based on similar cases decided in the past.
 

"Sorry, but I don't buy that tests are ordered by Dr's to protect vs. the threat of litigation."

Actually, I think that unnecessary tests are frequently ordered to protect against the threat of litigation, because of the asymmetries of risk and because doctors do not really understand the risks in malpractice litigation.

The risk of ordering an unnecessary test is that the doctor will be stuck with the cost of the test - this rarely happens, because the insurance usually just pays unless the test is exorbitant. The risk of failing to order a test (even if it is relatively unlikely to reveal useful information) may be a missed diagnosis. Clearly the bias is going to be towards the test. Even without the issue of malpractice litigation, good doctors may be tortured by missed diagnoses, wondering whether there was any way they could have caught their errors.

In addition, because of the relatively wide publicity of some "bad" cases, and because of poor reporting even of "good" cases, doctors are unreasonably fearful of malpractice even when they are acting in a medically reasonable way.

MD/PhD student, do medical schools include a class about the law of malpractice? Do you think it would be valuable if they did? Medical malpractice is a significant topic in most Torts classes in law school, including talking about the social costs of driving doctors to do unnecessary testing, so most lawyers (even those like me who don't practice in this area) are reasonably knowledgeable about the costs and benefits of the medical malpractice system. Would it help to give doctors a little more education in this area?
 

"MD/PhD student, do medical schools include a class about the law of malpractice? Do you think it would be valuable if they did?"

My medical school does not offer a class about the law of malpractice. I did, however, attend an optional session about litigation and clinical practice put on by the OB/Gyn department for medical students . It talked about things like the difference between true malpractice and a negative outcome that is not malpractice, the elements a plaintiff must prove (breach of duty of care, causation, damages), the importance of documentation (if you didn't write it down, you didn't do it), the importance of communication with patients, and it talked about the importance of admitting mistakes and apologizing. Also mentioned was the idea that many lawsuits are accepted by attorneys based on the level of harm instead of just the level of negligence (because jury awards are typically correlated to the magnitude of the injury to the plaintiff and not necessarily the level of negligence of the physician). The session was meant to reassure students, inform us, and to try to convince us to consider specialties that are more litigious like OB/Gyn.

I do think that all med schools should offer a session or series of sessions like this and I think it would be very helpful to have a malpractice attorney leading the discussion with the medical staff. I found the discussion to be helpful, but there is still much I don't know about the topic.
 

Elizabeth said...

"Actually, I think that unnecessary tests are frequently ordered to protect against the threat of litigation, because of the asymmetries of risk and because doctors do not really understand the risks in malpractice litigation.

“The risk of failing to order a test (even if it is relatively unlikely to reveal useful information) may be a missed diagnosis. Clearly the bias is going to be towards the test. Even without the issue of malpractice litigation, good doctors may be tortured by missed diagnoses, wondering whether there was any way they could have caught their errors."

Hmmnnn....maybe the tests aren’t unnecessary, after all. If the chance is small that a person has X, but a test will tell you, & if X is a serious illness, then the asymmetry of risk appears to advocate for the test as sound medicine, No?
 

"Hmmnnn....maybe the tests aren’t unnecessary, after all. If the chance is small that a person has X, but a test will tell you, & if X is a serious illness, then the asymmetry of risk appears to advocate for the test as sound medicine, No?"

Well, not really. There's always a chance anyone could have anything. You have to have a reasonable cut-off based on probabilities or everyone who went to the doctor would get every test possible to detect any occult illness they might have. Ignoring the financial aspects, tests do come with risks. CT scans, for instance, are relatively quick and cheap, but a few full-body CT scans is quite a bit of radiation, which will incrementally raise your lifetime risk of cancer. Also, chances are that if you scan someone, you'll find some benign thing that needs a biopsy, and even a needle biopsy carries its own risks. Also, it's not like patients have infinite time and patience for you to do unlimited tests on them.

Not doing a test to cover every possibility is why coming to the doctor for a sore throat and fever takes 20 minutes with few tests vs. hours of work and thousands of dollars of workups because of the one-in-a-million chance your sore throat is due to something more sinister than infection. A rapid strep test takes a few minutes, costs a few dollars, and if positive tells the doctor to put you antibiotics so that you don't run the risk of developing rheumatic fever. That is reasonable. An abdominal and thoracic CT for a sore throat (with no other indications) would be overkill for the very, very small chance that you'll find something else.

Tests aren't always benign and time and resources aren't unlimited. That's why "sound medicine" is based on probabilities, not 100% certainty.
 

"I do think that all med schools should offer a session or series of sessions like this and I think it would be very helpful to have a malpractice attorney leading the discussion with the medical staff."

So there was no attorney (or other holder of a law degree) involved in the session you attended? Interesting. It wouldn't seem that difficult to find a lawyer who would be willing to participate in such a session. I've participated in similar trainings related to my own specialty (patent law) free of charge.
 

Let me chime in here, md/phd is completely right. I think that non-scientists have gotten caught up with what tv portrays doctors as doing. A chemist I used to work with called a piece of analytical equipment that would test for "everything" a "Quincy box", refering to the TV show where an obscure analysis would "prove" the murder case. I am thinking of an episode where he found cyclamates, which had been banned for 10 years, "proving" the person had died a decade earlier and had his body preserve since then. You can can only test for things that you think might be there.

In hindsight, everything looks obvious, even the one in a million longshot.

A CT scan is "quick and cheap". When I had one for kidney stones, it was ~$900. Order an extra 50 CT scans a year (only one a week), and that is on the same order as a docs malpractice premiums.

Tests have false positives as well as false negatives too. Following up the false positives in tests ordered for defensive medicine adds to the cost too.

Defensive medicine could easily dwarf malpractice costs.
 

"I think that non-scientists have gotten caught up with what tv portrays doctors as doing."

I don't know if you're talking to me, but FYI, I have an SB in science and a PhD in engineering, both from MIT, and I definitely take offense at the idea that lawyers can't understand science.
 

Elizabeth:
You are the exception rather than the rule.
 

Elizabeth, you are a patent lawyer, not a litigator or a juror. I have very high regard for my patent lawyers.

If every lawyer, judge and juror understood science 0.1% as well as you do the number of gross errors in scientific matters before courts would drop to very low levels.

40% of the American population believes evolution to be false. Evolution is the most fundamental concept in biology. It is the scientific idea for which there is probably more supporting data than any other.

I am an MIT grad too, just had my 30th reuninon this weekend.
 

"Elizabeth, you are a patent lawyer, not a litigator or a juror."

As it happens, you are right, although you still have no way of knowing that I'm not also a litigator - many patent lawyers are. I also worked with an exceptional litigator in Boston a few years ago, who did employment work and a little personal injury, who also had an SB from MIT. I have worked with a number of litigators who had a fine grasp of science, even without a degree in it.

One of the more difficult things about becoming a lawyer was the fear and suspicion of my fellow scientists. Many of them seem utterly convinced that lawyers are evil scum (except their lawyer, of course, if they have ever needed one), and that because the justice system is not perfect, it is a scam. The lawyers sometimes seem a bit perplexed by the scientists, but I don't see the same loathing in the other direction.

Most scientists would recognize the pitfalls of generalizing to an entire system on the basis of one or two anecdotes in their own fields, but many seem incapable of noticing themselves doing the same thing about the law. Offers of statistical evidence (and Eric has many good links here on NYPIL) are ignored in favor of ranting.
 

Elizabeth,

Scientists and engineers are only human, they worry not about the most likely case, but about the worst case that is reasonably lkely to occur. Particularly when that worst case is completely outside of one's control.

There is the autism mercury case going on, and this could be another gross miscarriage of justice, like silicone but with much worse effects on health in the general public. Not having silicone breast implants won't kill anyone, not having childhood vaccines will kill children, lots and lots of them.

Steve Novella has a good post on it.

http://www.theness.com/neurologicablog/default.asp?Display=117

As does Orac.

http://scienceblogs.com/insolence/2007/06/a_myth_memorialized_aka_simpsonwood_reme_1.php

One of plantiff's lawyers makes a big deal out of the reduced standard for a legal verdict, calling it "50% plus a feather".

As someone who has read a great deal about autism and mercury, there is absolutely no way that a reasonable reading of the literature could support the "mercury causes autism" idea.

http://daedalus2u.blogspot.com/2007/03/discussion-of-false-mercury-causes.html

I think it is normal to fear what one does not understand. The arguments put forth by plaintiffs in the autism case sure sound like a scam to me. None of them are plausible from what is well known about physiology.

I think that scientists generalize from the few cases they know the science on, where the verdict was completely at odds with reality. The Dow Corning silicone case was one where in hindsight it is pretty clear it was a miscarriage of justice.

The quote "50% plus a feather" sounds (to me) like someone trying to game the system.

When potential witnesses have death threats made against them, what is one to think?

http://www.kevinleitch.co.uk/wp/?p=540
 

I agree that it's unlikely in the extreme that vaccines cause autism (and my three-year-old is up-to-date on all her vaccines). But wouldn't it make more sense to wait and see what the court says in the case before excoriating them for getting it wrong? Personally, I'll be shocked if most of the families recover a dime.

The fact that someone brought a suit or made an argument doesn't make the system a scam. And the "50% plus a feather" characterization of the burden of proof is a bit of a red herring, too. The plaintiffs have to demonstrate that it is more likely than not that they were injured by vaccines in order to recover. That's where the 50%+ comes from. But in this case, the scientific evidence is good enough that it seems unlikely that they will be able to meet that burden. But the system is not a scam because someone tries to recover through the system with a faulty claim, any more than a scientist is a failure because his experiments disprove his hypothesis rather than proving it.

"I think that scientists generalize from the few cases they know the science on, where the verdict was completely at odds with reality. The Dow Corning silicone case was one where in hindsight it is pretty clear it was a miscarriage of justice."

There are two problems with this.

One is the one I alluded to earlier - the scientists have a biased sample to look at. They generalize not from the few cases they know the science on, but from the few cases that get heavy news coverage (complete with a media slant on whether the outcome was just - and guess which sells more papers, a court's getting the science right or getting it wrong?).

The other problem is that the courts, unlike the scientific community, don't have the luxury of waiting until everything is clear. A suit has to be filed within a limited time after a party has been injured (typically two or three years, although there are various exceptions). Then a court has to decide it in a reasonably timely manner, using the best information presented to it. We now know that silicone implants are probably fine. But the court couldn't wait for that understanding to occur - it had to decide now whether to grant money to the particular parties before it. Waiting for scientific consensus to emerge would have left the plaintiffs dealing with large medical bills without help or the knowledge of whether they might get help in the future, and it would have left Corning twisting in the wind with the uncertainty of whether it might end up paying out a big settlement - that could have killed them all by itself.
 

Elizabeth, apparently the example I gave of silicone being a miscarriage of justice is not something you dispute. The two issues you take with it; that it is not representative, and that courts have to act quickly, doesn’t change that it was a miscarriage of justice. As scientists, we are accustomed to fixing our mistakes. It is apparent to me that the legal system isn’t. Why is that?

Pharmaceutical executives are not going to “wait” until the outcome is decided. They will make a business decision; can a particular company make sufficient profit from a particular vaccine to make its production and sale worth doing?

They might be willing to do something that is less profitable as a pro bono public good, but not if it is going to risk their company being destroyed. It is a better business decision to be profitable by making Viagra knock-offs than go out of business making childhood vaccines.

http://www.boston.com/news/globe/ideas/articles/2007/06/03/at_risk_vaccines/

If society doesn’t consider vaccines important enough to protect vaccine manufacturers from unforeseeable liability, then society will have to forgo the use of vaccines.

Right now, vaccine production by the pharmaceutical industry only remains viable at the whim of the legal system. I know that those in the legal system don’t consider that the outcomes of trials are due (solely) to “whims”, but that is the perception of many outside the system. I know that in the autism case on trial now, a judgment for the plaintiffs can only be via a whim because I know the science is strongly against a mercury or vaccination cause of autism.

A cloud of indecision might have killed Dow Corning as surely as a verdict against it. When innocent people are unjustly convicted, and evidence surfaces that clears them, they can be declared innocent and compensated for their unjust imprisonment (provided they have not been executed). When there is an unjust civil verdict, why must that unjust verdict stand as “correct” for all time irrespective of the damage done to innocent parties? I appreciate that any ability to readdress a case that is “decided” will be an opportunity for parties to “game” the system. I appreciate that people may have medical bills to pay. But in the case of silicone, the illnesses that required treatment were not caused by silicone. Autism is not caused by vaccination. Destroying the pharmaceutical industry to compensate people with autism is like burning witches to stop an epidemic.
 

"Elizabeth, apparently the example I gave of silicone being a miscarriage of justice is not something you dispute."

Not quite. I agree that silicone probably is safe for breast implants (not that I've done a ton of reading on the subject). But it does not necessarily follow that the decision was a miscarriage of justice. The court made the best call it could at the time that it made it - that is how justice works.

"As scientists, we are accustomed to fixing our mistakes. It is apparent to me that the legal system isn’t. Why is that?"

"I appreciate that any ability to readdress a case that is “decided” will be an opportunity for parties to “game” the system."

It appears that you already know the answer, but I'll restate in case anyone besides you and me is still reading this. Judgments need to be final so that the parties and everyone else can move on. Suppose that Dow Corning had won the silicone lawsuit. Would you think it was fair for them to still be worrying about it being reopened today? Suppose you were sued because someone fell off your porch, and you won. Would you think it was a good idea if he could start all over and drag you through the trial again in ten years? Even if he had some new argument he hadn't thought of at the time?

The law does correct mistakes in the law as they are brought to light (e.g., in Brown v. Board of Education). But it doesn't try to go back and compensate the parties, because there would be no end to it once they started.
 

Elizabeth, I guess I don't understand what you mean by "justice". I don't doubt that the court did "the best they could". No doubt when innocent people end up on Death Row, the court also "did the best they could".

Is that how we define "justice"? By a court doing "the best it could"?

In the Dow Corning case, if they had won, and it was later shown that silicone actually did cause injury, should they be allowed to continue selling it because a court had determined it was "safe"? Is that what you are saying?
 

No, I do not consider it a miscarriage of justice when a court comes to a reasonable, legally defensible result, and then evidence emerges many years later that casts doube on that result.

"In the Dow Corning case, if they had won, and it was later shown that silicone actually did cause injury, should they be allowed to continue selling it because a court had determined it was "safe"? Is that what you are saying?"

No, because that would be different parties and a new cause of action. I'm saying that if a second action found that it was unsafe, the people who lost the first suit wouldn't be able to go back again and get the damages that they didn't get before. (That's a slightly more complicated question in this scenario because the lawsuit was a class action, but the principle is fairly simple.)
 

So then it isn't a miscarriage of justice when an innocent man is sent to death row? Or even executed? So long as the "court comes to a reasonable, legally defensible result"?

Does "miscarriage of justice" have a specific legal meaning that I am missing? I was using it in a generic sense as a layperson.

Is there some other term to use? Travesty of justice? Abomination of justice? Embarrassment of justice? Shameful justice? Contemptible justice? Injustice? Perversion of justice?

I guess what you are saying is that all that matters is the “process”, and if the “process” is followed, what ever the result it, is “justice”, no matter how disconnected from reality it is.
 

"So then it isn't a miscarriage of justice when an innocent man is sent to death row? Or even executed? So long as the "court comes to a reasonable, legally defensible result"?"

Of course it is. But even if it is a "legal person," Dow Corning is not a human being put to death. There's a reason why the standard of proof for criminal trials is different than for civil trials, you know.

At this point, I think we've probably both articulated our positions and reasons as well as we're going to do. Unless you actually bring up something new, I won't be responding further to this thread. Thanks for the discussion, though - it's been interesting.
 

I am beginning to see just how differently lawyers think about the law than everyone else, or rather how differently they think than I do. It is just a game. All that matters is the "win", by following the "rules". Judges are just referees. Change the rules, bend the rules, or break the rules, if the judge doesn't see the infraction, it isn't one, and the game goes on. Plaintiffs, defendants, witnesses, they are just hockey pucks and soccer balls. Pawns, rooks, and knights; fodder to be used in the game, and to the victor belong the spoils.
 

You are just coming to that conclusion now D ?

Justice has nothing to do with law.
 

I have been fortunate enough to have had only very limited contact with the legal system. With all the "high minded blather" (aka lies and spin) that lawyers, judges and politicians put out, distorting what the legal system is and does, I still had hope that regardless of what the legal system actually is, that there was some idea of what it *should* be.

As scientists, we know that what is important is accuracy and the absence of error. An excellent example of how important scientists hold this is just posted in The Questionable Authority. A scientist found an error in a published paper, notified the author, the author verified there was an error, and immediately retracted the paper, and notified potential readers as to the error. Would a lawyer ever do such a thing? Of course not.

Lawyers, judges and politicians only want a legal system that serves their own self-interests. Judge Bork's recent lawsuit is not an aberration, it is standard operating procedure. Shakespeare got it right.
 

Agreed D. Lawyers are interested in winning not getting it right. Elizabeth can quote all the legalistic BS she wants but her statements clearly show a lack of understanding where most the rest of us are coming from. Dow Corning went into bankruptcy over a lie. The scientific evidence never supported the claims made against Dow Corning. The lawyers were not interested in presenting the evidence. They presented the hype (and won). Somehow I don't think this is what the founding fathers had in mind. Another example of hype over science is cerebral palsy. The evidence does not support birth injury/CP in the vast majority of cases and for one subset of CP no conclusions can be made (look up the latest peer-reviewed work). Yet lawyerspeak is you can't prove CP is not related to birth injury's therefore let's sue OB's out of practice (which is happening right now). Let's parade a CP child in ronmt of the jury and pull on heart strings to get a mega-verdict. Screw the scientific evidence. This reasoning (or really lack of reasoning) shows the divide between science/medicine and law. This type of reasoning made John Edwards rich, it is also why this creep doesn't have a chance in hell of winning. Most Americans are disgusted with these lawyer antics. As I stated before law has nothing to do with justice.