Political opinion - medical malpractice

Gene DeMambro · Post by **Gene DeMambro** » Fri Jul 18, 2003 10:33 pm

Rich,

To the extent that you can, could you compare GE to other corporate manufacturing giants, like GM, Chrysler, appliance manufacturers, etc? How does the GE quality process differ so radically from that of the others, so that it puts GE on top?

Gene

TSDguy · Post by **TSDguy** » Fri Jul 18, 2003 11:54 pm

Good for her. Everyone deserves a good, ethical lawyer.

Exactly. But a lot aren't ethical which is what this thread is about. No other points are valid until the lawyers get out of filing absurd claims for money.

I've seen them do it behind the scenes. One guy in particular I'm thinking of had a client that almost slipped and didn't hurt himself while working on someone's yard. A few drinks in the guy and he was consulting me as to whether $80,000 was enough to sue for. This is how he made his living, and not all of his cases were settled out of court.

For medicine, you have to do something to discourage this kind of behavior, or none of us have any healthcare.

A good, reliable Pre-Trial Screening Program would have fleshed this case out, if it did indeed have illegitimate claims. And how could the case have made through the preliminary stage, and the Summary Judgement phase, without having at least some merit to the claims?

Either the screening isn't working very well or people are twisting facts horribly or just out right lying. That's what my "friend" did.

What state was it in?

WV, but who cares. The system isn't working anywhere.

Where? When? If the case has no legitimacy, then it can't win. Period

That's absolutely wrong. You can't find any records of cases that were won illigetimately because that's how they won-- no one found out. Meet a few evil lawyers and gain their trust and the truth comes out. People make their careers out of tracking down these scammers.

There are definetly negligent MDs out there, but you can't fight evil with evil. Again, that's whats causing the problems we have. Bill's favorite response to the problem sounds good to me.

RACastanet · Post by **RACastanet** » Sat Jul 19, 2003 12:53 am

This is for Gene... off topic as it is:

General Electric's secret to succes was created by its first President, CharlesCoffin, over 110 years ago. Coffin - a business man - replaced Tom Edison - a tinkerer - in 1892 I believe (how is that for a tough act to follow?). What Coffin recognized was the need to recognize talent and grow it. He instituted the internal GE selection and training process to insure a steady flow of competant management. To this day there is a corporate school located in Crotonville, NY dedicated to growing talent. By the way, P&G is really great at this as well.

Coffin also brought integrity to the business, and put strict financial controls in place that exist in some fashion to this day. For a company the size of GE ($135 Billion in revenues last year) it does its best to stay out of the news. In my view, GE was unfairly punished by Wall Street in the past few years as a result of the shenanigans by Enron, Worldcom and a few others. Such is life.

Fast forward to 1980 when Jack Welch was named CEO. Relentless and tough. Recognized that GE would die unless it transformed itself. So, in 1981 or so he began the relentless transformation. Out with the old, in with the new. Be #1 or #2 in your market or fix it, sell it or close it. That was not enough, you had to be highly profitable as well. For instance, in 1980, GE had an 80% market share of irons. However, there was not much profit in irons and toasters etc., so the entire small appliance business was sold to Black and Decker. (That in itself is a Harvard B school case study. Instead of licensing the GE name brand, B&D scrapped the logo for theirs. People buying small appliances wanted GE, but not finding it made a random selection and usually not B&D. B&D blew an 80% market share overnight!)

Then, eliminate layers of bureaucracy. Be fast and agile. So, about 10 years ahead of corporate America he transformed GE into a diversified global company. Those that were late to react were history - remember Westinghhouse? Bethlehem Steel?

Fast forward to the mid 1990s. GE alum Larry Bossidy was running AlliedSignal (now Honeywell) and told his buddy Jack about the Six Sigma concept being used by Motorola to improve quality. Jack loved it and embraced it, and declared GE would use the process and improve upon it. It became a large part of the GE culture. Get with it or get out.

To be honest, it did not take hold quickly. Also, in some businesses it still has not. But, the bottom line is Jack made it a cultural shift, not the flavor of the day. And, instead of applying it to just manufacturing, he applied it to everything from accounts payable to product development. That led to a huge improvement in all facets of the businesses.

So, where did GM and Chrysler go wrong? They were/are too bureaucratic and slow to react to changes in the world market and new competitors. Plus, it took a lot of balls to do what 'Neutron' Jack did. He had no patience for weak or missed promises and troublesom unions. It was a painful change that many did not survive. However, for those that understood what he was doing, life was good. I have often said that if Jack told me business would improve if I howled at the moon, I would be out there howling at the moon.

Jack unfortunately let his ego get the best of him last year, so it turns out he is human. However, he was unjustly accused of raiding GE profits for his retirement when in fact the Board literally pushed the package on him in 1995 when he was in poor health and contemplating retirement. GE's growth and stability has made a lot of happy retirees. And, there are a lot of millionaires out there as a result of him, and not just the top management.

So, Jack brought change, swift and often painful. And demanded integrity. The big 3 auto manufacturers have yet to fully grasp what they need to do (in addition to building Bill G. a reliable, economic, safe, fuel efficient, non polluting, great handling, non rollovering, crash resistant, fast, nice looking, roomy car requiring no maintenance) to be profitable in a global economy. They are mired in their past glories.

So here in 2003, GE Medical Systems, Transportaion (locomotives), Aircraft Engines, Power Sytems, NBC... are all product, profit and market leaders. My advice to GM and Chrysler? Invest in GE.

Rich[/u][/i][/b]

Gene DeMambro · Post by **Gene DeMambro** » Sat Jul 19, 2003 2:15 am

For medicine, you have to do something to discourage this kind of behavior, or none of us have any healthcare.

I agree, and haven't said otherwise. But limiting payouts would do minimal to reduce the amount of frivolous cases to trial.

This lawyer was reported to the state Bar Association? You volunteered to be a witness for the defendant in this case, testifying as to the dubious nature of the claims?

I've taken great pains to make sure I support the ethical lawyers, who represent their clients in an above board fashion. I have no use for any other kinds.

Absurd claims for money? Throw the cases out, and fine the plaintiffs and the lawyers for wasting the court's (and the defendant's) time and money.

But cases with merit deserve to be heard.

Gene

IJ · Post by IJ » Sat Jul 19, 2003 5:41 am

"Remember, only those people or entities that harm their patients pay out."

1) Only these may actually pay out to patients (although I don't doubt that there are actually cases settled all the time where people pay out something less than the amount they think they would spend on a lawsuit when they are in the right). But people do "pay out" to the trial system all the time when they WIN. Pyrrhic victories occur all the time. Legal defense is not free.

2) I harm patients ALL the time. I have given people antibiotic associated diarrhea that can be fatal (using the right antibiotic). I have given people catheter related infections that can be fatal (using a catheter when one was needed). Same goes for breathing machine and their complicaitons. I have given people hypoxia from IV fluids building up in their lungs (when they needed the same for low blood pressure). We use medicines all the time which can have unpredictable or unavoidable and serious permanent or fatal reactions. This however is sometimes standard of care even if the patient is harmed. What if we had a drug that killed 1 / 100 people it was used in but you had a 90% chance of cure with it and a 90% chance of death without it? For 99 people in that situation it's the best thing; for 1, it's lethal. Don't doubt that explaining to a jury you gave a lethal medication with full knowledge of the risk is a difficult thing to do (a jury composed of the biochemistry experts who released OJ to the public).

3) And what the right thing is to do is a matter of opinion. Physicians disagree over what to do dozens of times per DAY. We simply have too many unique people in unique situations that have never been rigorously evaluated in trials to know the "right" thing to do all day (nevermind that we simply can't be up to date on "everything" that is standard of care, as it changes by the minute now--no matter how hard the smartest people try. So expert for the defense said they did the right thing, expert for the plaintiff says they screwed up, and if the patient had a compellingly sad outcome, well, anything can happen. Standards may help here, but I see the debate being over whether deviation from the standards was justified or required. The standard is usually the right way by definition so at least there would be less.

Let's revisit the case of my lady who had her kid swapped, or who swapped 'em herself, depending on your opinion. Let's say instead she had some kind of health damage that was traumatic but left no long term damage--maybe she experienced a bunch of pain. Let us describe the amount of pain as equal to the suffering she endured having her baby swapped, so clearly, she'd seek the same compensation-- 2 million was it? So here we have her claim that a loss of some of her health is worth 2 million to her. Why the F--K is she a chainsmoker then? The value americans place on a bad outcome in a hospital is FREAKISHLY disproportionate to the value they place on their lives outside of the hospital, where they lead some fantastically unhealthy lives. Why is this?

First, people know damned well there's a lot of money in a healthcare related lawsuit--or can be. This babyswap case lady didn't think her suffering was worth 2 million! I would have simply had the hospital revisit its identification measures there and elsewhere and probably accepted the kind of apologetic gestures they make in such situations (for example, payment for the hospital stay). I would not have tried to punish the charity.

Second, we have an adversarial medical system. I know this because I've walked into a room to have a stranger greet me with (after NO unpleasant experience yet, and after a required one (IV placement) or an unavoidable one (ER waiting room full)) "who the hell are you? You had better not screw up because I will SUE your ass!" I've also heard, "I just want you to know I am a successful trial lawyer and I have most of my cases in situations involving trainees like yourself." Don't doubt that these litigious patients interfere with their own care because they've been taught by ambulance chasers and news pieces to view their medical team as an enemy and get what they deserve. It's very good drama and therefore news when those people who are supposed to be charitable and caring end up making mistakes or even being bad. In Mexico, by contrast, (so a doctor who worked there 20 yrs told me) bad outcomes are chalked up to God's will, or, if the doctor makes a serious, plain error, they may have the problem settled "out of court," not something I support obviously but also an indication that the culture is not just trying to make a Lear jet off grandpa's demise.

I also disagree with the assertion that a lawsuit is going to make Duke more likely to check blood types on it's organs. You can bet your a$$ the bad publicity alone will force an institution to do that. And I don't know why this is being forgotten--the people who made that error are the same kind of regular people as nonmedical types. I mean a nurse, a doctor, a transplant coordinator with kids, maybe a dog, they shop, they struggle to get to the bank, they read the same paper. And they have hearts themselves, they don't just shuffle them. Being responsible for that death--and the possible to probable deaths of the other kids who DIDN'T get those organs??--is eating them up. Just the fear of having done something like this has kept me from sleeping after 18 straight hours of work with lunch eaten walking between patients. Just as you'd feel if you crushed a litle girl under the wheels of your car after not looking once. Does anyone honestly think that getting sued for millions after hitting a girl with your car is going to make people or you in particular drive better? That is some big crock of poopy, and I should point out here that people who do the very same amount of damage with their cars don't seem to be getting hit with these lawsuits the way doctors are. Why does the award sometimes seem to be larger when the person responsible (or sometimes not) for the harm was actually trying to help the injured party?

Incidentally, we have people working on preventing errors of types that haven't happened yet. It's not (not fully?) because the hospital is afraid of lawsuits. They really are good people trying to do right.

----

"I believe if the high profits were taken out of the medical industry and more uniform quality standards established, there wouldn't be a "cash cow" to milk with unwarranted lawsuits."

Le, there aren't any that I've seen. Some doctors I've met have made about a million a year, and that's quite a lot--too much if you ask me because it makes me wonder what their #1 goal at work is. Although, if people succeed, I think generally they should be rewarded because otherwise they will take their successful intellects elsewhere. The average is more like 120k--and after 23 years of education, some of it with brutal hours (my record is a 39 hour shift) even in school (had a friend who studied 18 hours a *weekend*) and compared to what people in business and sports make, I don't see that as being a big deal. Don't we want to make this important job a rewarding one to attract good people? At the hospital level, taking care of medical patients even with ruthlessly efficient billing is generally a money-losing proposition. My hospital has been losing millions of dollars a year for some time.

In a related note, you can make $ hand over fist in very low risk fields such as dermatology, radiology, allergy, etc. These people work a heck of a lot less hard than docs who do medicine, surgery, OB and peds (those fields where the bulk of the bedside helping occurs). One also gets paid absurd amounts more for cutting than for thinking or handing someone a pill. The reimbursement for a surgery that was unneeded or took no more time or expertise than a medical treatment is FAR higher than noninvasive care. Why the heck is that? What does this tell impressionable med students about their fields-to-be and the objectives of medicine?? This is another thing I think we ought to fix about our system ASAP.

Gene DeMambro · Post by **Gene DeMambro** » Sat Jul 19, 2003 7:49 pm

But people do "pay out" to the trial system all the time when they WIN

So? The fact that a successful defense costs money must not be used as a barrier against legitimate claims. That's why Mass. requires a bond if a case goes forward that was rejected by the Tribunal. And that's why courts have the power to compel reimbursement to a defendant by a plaintiff who filled a frivolous suit.

I harm patients ALL the time

Do you violate the standard of care when you do it? Do you explain to the patient the hoped for benefit and the potential risks of the medication or procedure, and any possible alternatives? Do you truthfully and fully answer any questions the patient has regarding the affliction, and the treatment you are proposing? Do you document this conversation? Do you document the necessity of the treatment (antibiotic A vs. anitbiotic B due to culture and sensitivity report, the patient's renal/liver function tests, the patient's allergies or other contraindications, and other factors present)? Do you monitor the patient, and manage any potential adverse outcome that arises?

If so, then while a patient may be harmed by your suggestions (and her ultimate approval of treatment), you met the standard of care duty required, and you're covered. Is there direct evidence to the contrary?

I have yet to see a case where a health care provider met the standard of care, and was recognized in court as doing so, yet lost at trial and appeal. Contradictory information greatly appreciated.

Don't doubt that explaining to a jury you gave a lethal medication with full knowledge of the risk is a difficult thing to do

See above, especially the part regarding explaining the potential benefits and the potential risks of a treatment to a patient. Informed consent can go a long way. A fact the medical profession has learned the hard way.

"I just want you to know I am a successful trial lawyer and I have most of my cases in situations involving trainees like yourself."

A good admonishment to make sure we do all the things that we (as well as those supervising us) are supposed to do while treating a patient.

the people who made that error are the same kind of regular people as nonmedical types

In one respect they aren't. They have years and years of expert, comprehensive, in-depth training and specialized knowledge nonmedical types don't have. They're supposed to know about blood types, organs and the dangers of screwing it up.

And they have hearts themselves

Doesn't mean they get a pass. And what makes them so special that the rest of us don't, if they are the same kind of regular people as nonmedical types? How come doctors haven't petitioned the legislature to expand the Tort Reform Act to include those health care professionals who are currently excluded or change the Mass. Good Samaritan Law?

Does anyone honestly think that getting sued for millions after hitting a girl with your car is going to make people or you in particular drive better?

Suing for compenstion is not always about making things "better"? That job belongs to the legislature, generally. Suing for compensation is just that - making up for a loss that was someone else's fault. And then there's the punitive damage issue. As for me, yes, I've become a better driver after some close calls, and a fender bender or two (but nothing serious). Yes, I do believe it can help. Do we have any data on this?

should point out here that people who do the very same amount of damage with their cars don't seem to be getting hit with these lawsuits the way doctors are.

Do we have data on this? And earlier you mentioned the possibility of drivers getting sued for millions for hitting a girl with a car, which doesn't jibe with the contention that doctors get sued for more than drivers who kill with their cars. Looks like a contradiction to me.

where they lead some fantastically unhealthy lives. Why is this?

Because people have the right to make their own decisons, be they wise or unwise. A whole other topic for discusson altogether.

I would not have tried to punish the charity

In many states, non-profits and charities are covered by immunity caps; ours was recently upheld by the SJC. That's a public policy issue that needs to be addressed by the law-making bodies of the states.

because they've been taught by ambulance chasers and news pieces to view their medical team as an enemy and get what they deserve.

Why is that? What's medicine done to deserve such a perception? What has medicine done to bring a caveat emptor philosophy on them?

In Mexico, by contrast, (so a doctor who worked there 20 yrs told me) bad outcomes are chalked up to God's will, or, if the doctor makes a serious, plain error, they may have the problem settled "out of court," not something I support obviously but also an indication that the culture is not just trying to make a Lear jet off grandpa's demise.

What is the comparison between health care quality in Mexico vs. the United States?

And if the federal government is to be believed, people aren't making Lear jets off grandpa's demise here, either.

From the HHS report that Bill posted:

In theory, the tort system is designed to compensate those who have been injured, and prevent further injury to others. However, whether the tort system does either is arguable. In reality, medical malpractice claims are expensive to pursue, can take years to resolve, and can result in the injured party receiving little of the settlement.

The injured party sometimes receives little of the settlement, and yet there is the perception that people are making Lear Jets off of Grandpa's demise. Which is it?

I believe if the high profits were taken out of the medical industry and more uniform quality standards established, there wouldn't be a "cash cow" to milk with unwarranted lawsuits

Ian's right on this one, Le. Margins for hospitals, pharmacies, doctors, visiting-nurses and other health care insitutions are razor thin right now, and many operate at a loss. Another hospital here in Massachusetts just closed as a result; another in a rash of closings in recent years.

Again, let me repeat that I am not against Tort Reform, to the extent that it reduces the number of un-winnable lawsuits that make it to trial, or one that reduces the unnecessary financial burden on the various insurance or medical industries. I will support the efforts that protect the good health care providers and insurance companies, while protecting the right of people with legitiate harms to be heard at trial, and to collect a fair judgement if they win.

Gene

Bill Glasheen · Post by **Bill Glasheen** » Sun Jul 20, 2003 4:19 am

Gene

We are miles apart in our opinions of what is fair. In my industry these days, we have the graduates of the tobacco lawsuit wars filing repeated fishing expedition class action racketeering lawsuits. They get thrown out, and new ones come back. It's all about the money; it has nothing to do with justice.

And then there are those law firms that blackmail people with lawsuits and get settlements for $$$ only because it's cheaper than defending themselves in court. Happens all the time. It's legal extortion.

Sorry, Gene, need to get your head out into our world and walk in our shoes a bit.

A simple course in mathematical modeling will show you why caps work. For example, a sophisticated firm looking to solicit donations fills out a confusion matrix (benefit of a true positive, loss of a false positive, etc.) before running the modeling software. The software then will create a model that shows that some people in the population are worth soliciting even though the likelihood of a "hit" is less than 50%. Why? Because the cost of a false positive is low, and the reward of a true positive is so high. Put "caps" on the true positive, and that equation changes drastically. In other words, fewer people not likely to donate will receive the solicitation.

Yes, the world is that sophisticated these days. Law firms may not (yet) be using sophisticated methods to make decisions like this, but they make similar such decisions with the power of human pattern recognition.

Bottom line - caps would lower the number of frivilous lawsuits.

And the wife (and law firm) of that obese baseball player that elected to take ephedrine and then work out in hot weather really don't need $600 million. It's obscene, Gene. Literally millions of obese clamor for this stuff (instead of eating right) and then somebody sues big time when one person dies. Hell, ASPIRIN isn't that safe! Makes me want to vomit just thinking about it.

Oh and what do you say for all those people that VERY QUICKLY received (I believe) billions for connective tissue disease because of the silicone breast implants - only to have science finally finish its work and prove conclusively that there was no association whatsoever between silicone and connective tissue disease. {It was discovered with statistical certainty that populations that had silicone breast implants had no higher a rate of connective tissue disease than populations that didn't.} Don't confuse me with the facts, brother, we have a sick lady here! Poor dear! All she wanted was bigger boobs! Obviously it was the evil, for-profit company that did this to her (NOT!!!). We need to teach that company a lesson! This taught me one lesson that a physician who testifies in court all the time told me - law and the outcome of the legal system are not necessarily synonymous with God's truth.

If you'd like the literature on that one, I'd be happy to oblige.

- Bill

IJ · Post by IJ » Sun Jul 20, 2003 6:53 pm

"The fact that a successful defense costs money must not be used as a barrier against legitimate claims."

Of course not. Should the fact that legitimate claims should be brought be a barrier to us doing something about how some areas are losing OB's and ER's because the cost of these cases? I don't recall advocating a system that rejects legitimate claims.

"I harm patients ALL the time" --> "Do you violate the standard of care when you do it?"

Please see my detailed description of how there frequently is no objective standard of care, or standard is a matter of opinion. Again, people vary, what therapy is right for people varies, and opinions about "a" standard or holding to one or breaking one vary even more.

"Do you explain to the patient the hoped for benefit and the potential risks of the medication or procedure, and any possible alternatives?"

We get consent for invasive procedures and unusual circumstances, but this raises the interesting possibility of having to take to the patient every decision we make, discuss the risks and benefits, and essentially get their permission to use antibiotic A instead of B, which is a lot like letting them dictate their medical care. Let me be the first to explain that patients who do this (MD's among them) get worse care. Seriously, if I have to mention a side effect with a very low rate of occurence it may yet scare some people into choosing an inferior antibiotic, and then THEY can have a bad outcome from that and sue me because I'm the one with the medical expertise and I was letting this person with no training pick what drugs they should take. On a practical level, additionally, having in-depth conversations about every therapy provided (say, ten drugs used... and I have 15 patients on my service... that's 150 conversations held, questions answered, and documented in the chart??) is not possible.

"I have yet to see a case where a health care provider met the standard of care, ***and was recognized in court as doing so***, yet lost at trial and appeal."

Emphasis added. This caveat doesn't help when nonexperts decide what standard of care, and the right thing to do with an individual, is/are. Nor is it a comfort to those in the right who win the case but in a practical sense, lose big.

"Informed consent can go a long way."

It can, but neither is it a total defense. Does anyone lose the right to sue because they signed something that said they knew they could have the complication? Also, it is / can be obtained only in a fraction of cases.

""I just want you to know I am a successful trial lawyer and I have most of my cases in situations involving trainees like yourself" [is] a good admonishment to make sure we do all the things that we (as well as those supervising us) are supposed to do while treating a patient."

Actually, no. The patient in question was going to be dead in weeks of a brain tumor. He was going to get a shunt placed in his brain to extend his life for up to 3 weeks instead of days (inappropriate use of resources) but he had a sudden rapid heart rate which caused a small heart attack. This suggested to us that he had fixed (not active) heart-vessel blockages. I would have put the shunt in anyway, because IF a cardiac catherization were done and those vessels were stented, (really inappropriate use of $) it would delay surgery for a month and he would DIE. However these litigious nonexpert family members forced the surgeon to obtain the cath for RISK STRATIFICATION only, in other words spending thousands and risking injury and sometimes death of the patient in question, for no useful data. His shunt was delayed, and we ALL paid for that unnecessary procedure. In other words, litigious patients can make care worse for themselves and others.

I would recommend, "I am very worried about my ___, so I would appreciate it if--and I expect--you would keep me informed about what's going on with him/her, what you're doing about it, what's likely to happen, etc. Please let me know if we can help in any way. In particular I'm anxious about an intern etc doing x or y, so if you could talk to me about how you/that person is being supervised or their level of experience, I would much appreciate it." People who say THIS get excellent care for themselves and loved ones. DEMAND the same openness and courtesy of your doctor. If they fail to provide it, we take transfers at my hospital.

"Doesn't mean they get a pass."

I never asked for one. I only tried to correct the perception that health care professionals only care about their mistakes if you hit them in the pocketbook. I think I would much rather get a frivolous lawsuit than face no lawsuit when one of my errors, or appropriately delivered medical care, seriously injured or killed a human being.

"Suing for compensation is just that - making up for a loss that was someone else's fault."

That's why the requested figures run in the gazillions, is it? Do you honestly believe a babyswap hurt that woman to the tune of 2 million dollars??? She wanted more from the nonprofit hospital, FYI.

"You mentioned the possibility of drivers getting sued for millions for hitting a girl with a car, which doesn't jibe with the contention that doctors get sued for more than drivers who kill with their cars. Looks like a contradiction to me."

It would be if I hadn't raised the driver case precisely to highlight the selective way cases are brought in this culture. Since when does raising a hypothetical possibility of a driver getting sued make it so, anyway?

"What is the comparison between health care quality in Mexico vs. the United States?"

Are you implying the tort system is somehow bringing fabulous $, education and drugs to our country??? I whole heartedly agree it plays a ROLE, but this kind of comparison can't be made.

"The injured party sometimes receives little of the settlement, and yet there is the perception that people are making Lear Jets off of Grandpa's demise. Which is it?"

They're TRYING to make lear jets, which is immoral. People are HELPING them sue for lear jets, when they ought not, and that is immoral. They WIN lear jets worth of $, which is immoral. And I'll let YOU decide whether the take the patient gets and the fees the lawyers retain are appropriately distributed.

A question: What would people WANT or expect if they were involved in the following tales?

--a patient with recurrent serious heart rhythym problems becomes suddenyl seriously unstable; the plan is to run in with a drug and see if it works, so they administer it, and the patient dies. Later, they realize they didn't see a decimal on the bottle and they gave 10x the right dose.

--a patient is given potassium IV (happens hundreds of times a day) but due to simple error it is too fast. The patient "dies" but is revived 30 minutes later after furious efforts--without any longer term damage.

--a cleaner skips a room by mistake; later a new patient uses an old toothbrush; it turns out that toothbrush was last used by an AIDS patient.

A second question: Given that we all make errors at work, what is an acceptable error rate for your doctor? As they are human, they WILL make mistakes... what would YOU forgive, how often, under what circumstances? Would you sue to get your expenses covered... your pain highly compensated... the person punished?

Gene DeMambro · Post by **Gene DeMambro** » Mon Jul 21, 2003 5:33 am

Should the fact that legitimate claims should be brought be a barrier to us doing something about how some areas are losing OB's and ER's because the cost of these cases?

Depends what that something is, and whether that something is fair to all parties involved.

I don't recall advocating a system that rejects legitimate claims.

I'm glad! That is a distinction that must be made by all parties in this debate.

Nor is it a comfort to those in the right who win the case but in a practical sense, lose big.

The fact that a person or entity might spend lot of money to defend against a properly brought suit can't really be helped. If it is a legitimate claim, and the decision ultimately is for the defendant, that's the system we have. Come up with a better one.

They're TRYING to make lear jets, which is immoral. People are HELPING them sue for lear jets, when they ought not, and that is immoral. They WIN lear jets worth of $, which is immoral. And I'll let YOU decide whether the take the patient gets and the fees the lawyers retain are appropriately distributed.

Which is why I support the ability of judges and Courts of Appeals to lessen absurd judgements, and sanction lawyers who aren't working in an ethical, above board manner. This includes those people who improperly settled for the billions from the silicone breast implant makers, And this includes those who seek to unfairly sink their teeth into the insurance companies. And this includes those law firms who unfairly "blackmail" for settlements. Swift, harsh, penalizing, crippling economic sanctions are in order, in my book.

Steve Blechler's (he was not obese; just ordered by a team mandate to drop a few) widow might have a cause of action against the manufacturers of the ephedra that he took. And $600 million, as compensatory damages, may be obscene (I agree). But if they had a duty that came with the marketing of their product, and they breeched that duty, there were injuries or harms, and the injury or harms were a direct result, then full compensation is in order. That, however, is for a trial to decide.

Please see my detailed description of how there frequently is no objective standard of care, or standard is a matter of opinion. Again, people vary, what therapy is right for people varies, and opinions about "a" standard or holding to one or breaking one vary even more.

It's not the patient's fault the medical system is so screwed up that two doctors can't agree on the time of day, if what you say is true. Taken to the extreme, one could say, "We really ought to be immune from trial, because we really don't have any clue what we're doing in this case, or even if it will work at all". That is an absurd position, but one that you'd have us all believe. There needs to be a line between competant action (or inaction) and incompetant action (or inaction).

At Bill's suggestion, I took a look a Six Sigma website. On their Healthcare page they had four case studies of how certain hospitals used Six Sigma to improve clinical quality and outcomes. In every case, one of the solutions to the identifiable problem was to develop standard operating procedures. A small sample size, to be sure, but hmm....

This caveat doesn't help when nonexperts decide what standard of care

Well, then the experts ought to then.

And if the "standard of care" definition is as of yet so undefinable, then maybe Bill, Rich and other quality experts really ought to be given more power to run the show.

We get consent for invasive procedures and unusual circumstances, but this raises the interesting possibility of having to take to the patient every decision we make, discuss the risks and benefits, and essentially get their permission to use antibiotic A instead of B, which is a lot like letting them dictate their medical care.

It is the patient who is charge of their medical care, and with whom the ultimate decision rests regarding treatment. A patient may get worse care as a direct result of her decison; one that may not be the one you recommended. But the law protects her right to make her own decision to accept or reject treatment, whether that decision is wise or unwise. While there may be countervailing interests of the State that may in some cases outweigh the right of a competant individual to refuse treatment, the right of a person in most circumstances to decline treatment is clearly recognized. These points are fact, and fully supported by law and medical ethics. I'd be happy to supply supporting information via e-mail or PM.

Seriously, if I have to mention a side effect with a very low rate of occurence it may yet scare some people into choosing an inferior antibiotic, and then THEY can have a bad outcome from that and sue me because I'm the one with the medical expertise and I was letting this person with no training pick what drugs they should take. On a practical level, additionally, having in-depth conversations about every therapy provided (say, ten drugs used... and I have 15 patients on my service... that's 150 conversations held, questions answered, and documented in the chart??) is not possible.

Physicians have the duty to inform themselves about the drug and warn their patients as they deem necessary. Physicians, after considering the history and needs of their patients and the qualities of the drug, are required to inform their patients of those side effects they determine are necessary and relevant for patients to know in making an informed decision. This point is fact, and is supported by law and medical ethics. I'd be happy to supply supporting information via e-mail or PM. As far as documentation in the patient's chart, well, that's a question you really ought to ask those people in charge of such things at BI. I'd be happy to give you my opinion on the matter off-line via e-mail or PM.

Do you need to explain to the patient the risk of developing Stevens-Johnson Syndrome due to Keflex? Probably not. Do you need to explain to the patient the risk of Stevens-Johnson Syndrome due to Lamictal? You bet your kiester.

It can, but neither is it a total defense. Does anyone lose the right to sue because they signed something that said they knew they could have the complication? Also, it is / can be obtained only in a fraction of cases.

My initial answer to this was "yes, informed consent provides immunity from liability". But I'm going to run this answer by a malpractice lawyer associate of mine (an ethical one, so Bill doesn't think I'm consorting with riff-raff

) , and get a straight, verifiable answer. But in those cases that I am aware of, where IC was obtained and documented, no lawsuit has ever made it past the preliminary stage. And assuming strong evidence of informed consent does grant immunity from negligence action if things go wrong (not due to a screw-up by the doctor), wouldn't it not make sense to get it for all procedures, even when not required? Simple CYA can go along way, too.

As to the assertion that such consent is / can be obtained only in a fraction of cases, well, let's say that performing medical procedures (including drug therapy) without informed consent, except under clearly defined, exceptional circumstances, is grounds for a Battery action, and can cost a doctor big. While I can't speak for all physicians and allhospitals and under what circumstances they actively seek informed consent permission from patients, to not do so when required is an invitation for trouble. Again, I'd be happy to discuss this more via PM or e-mail.

We're not that far off as far as what's "fair", Bill. As I have written, I have no use for obscene or absurd judgements. I'm not going to defend them. I also have no use for unethical lawyers who engage in illegal practices, solely for the purposes of lining their own pockets, without regard to the law. I also have no use for those lawyers, fresh off the tobacco settlement (a righteous cause in my book), who then seek to unjustly damage your noble livelihood; and I hope your capable lawyers are going after these hooligans with even more fervor than they faced themselves. These remoras on society have no business being lawyers, if they don't change their tune. We only differ as to whether a hard-cap for non-economic damages alone will stem lawsuits. It is my contention that they will not stem the number of lawsuits filed (you maintain they will, and you defend it well). I maintain there are other avenues that can be pursued (such as many of those written in the HHS report) that will have the effect you and I both recognize as sorely needed. We recognize the need for reducing the number of non-merited cases that go to trial AND reduce the economic impact of justifiable adverse judgements on the medical and insurance industries.

I'd be happy to peruse any literature you have on instances where health care providers were recognized by a court as having met a duty, yet lost the decision. Thank you for your kind offer.

I'd be happy to expound on my position and contentions more via PM or e-mail.

Gene

Bill Glasheen · Post by **Bill Glasheen** » Mon Jul 21, 2003 2:08 pm

A few comments.

I don't recall advocating a system that rejects legitimate claims.
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I'm glad! That is a distinction that must be made by all parties in this debate.

The original topic was an expression of regret that "caps" on noneconomic damage had been rejected. The proposed legislation did not seek to put any restraint on the ability of the individual to seek economic damages.

The fact that a person or entity might spend lot of money to defend against a properly brought suit can't really be helped. If it is a legitimate claim, and the decision ultimately is for the defendant, that's the system we have. Come up with a better one.

Several suggestions have indeed been made.

1) Put caps on noneconomic damages. I've already explained why this would reduce the number of frivilous lawsuits.

2) Employ the British system, where the loser (litigant and/or law firm) pays the legal fees of the defendant found free of judgement. It works over there! Some argue this is unfair because only the wealthy would sue. I argue that in today's environment, only the wealthy can afford to defend themselves adequately - and - only those with deep pockets get sued.

3) Support binding arbitration.

4) Support the concept of managed legal care. Lawyers are put on salary, and people purchase services in much the same way that they purchase health insurance. No legal insurance? No ability to sue, except by use of "Medicaid" lawyers if you are economically disadvantaged. Sounds funny at first... But it's a pretty interesting idea.

None of these would pass, because it would take the big cash out of the legal industry.

- Bill

Gene DeMambro · Post by **Gene DeMambro** » Mon Jul 21, 2003 3:12 pm

2) Employ the British system, where the loser (litigant and/or law firm) pays the legal fees of the defendant found free of judgement. It works over there! Some argue this is unfair because only the wealthy would sue. I argue that in today's environment, only the wealthy can afford to defend themselves adequately - and - only those with deep pockets get sued.

I'm not sure that its only the deep pockets who get sued. It used to be said when I first got out of school that it was a good idea to not carry malpractice insurance so as to not have deep pockets if something went down. But nowadays, if something goes down everyone gets sued, no matter how shallow her pockets.

Shall we make the losers pay for the successful defense of a defendant in a criminal trial as well?

In addition to scaring away the less wealthy (which is why lawyers will work on contingency), I also argue it's unfair because it scares away marginal cases, when negligence is harder to prove. And if a case has a legitimate question of malpractice, it deserves to be heard.

Support the concept of managed legal care. Lawyers are put on salary, and people purchase services in much the same way that they purchase health insurance. No legal insurance? No ability to sue, except by use of "Medicaid" lawyers if you are economically disadvantaged. Sounds funny at first... But it's a pretty interesting idea.

Sounds interesting...and illegal. While there is no right to medical care, access to the legal system is a fundamental right. And who would pay for these "Medicaid" lawyers? The state? Massachusetts just had to override a governer's veto to not eliminate funding for Legal Aid now as it is. I'd bet many other states fair no better.

Gene

Bill Glasheen · Post by **Bill Glasheen** » Mon Jul 21, 2003 7:52 pm

Gene

Of COURSE these suggestions are illegal!! So are caps - for now...

Yes, just as in medicine where the government pays for Medicaid, so too could the government pay for Medicaid legal. Anyhow...I knew you wouldn't like it. But many physicians who have had to put up with HMOs have suggested managed legal care, with the tongue only slightly in cheek.

By the way, I wanted to comment on a few more comments of yours.

Please see my detailed description of how there frequently is no objective standard of care, or standard is a matter of opinion. Again, people vary, what therapy is right for people varies, and opinions about "a" standard or holding to one or breaking one vary even more.
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It's not the patient's fault the medical system is so screwed up that two doctors can't agree on the time of day, if what you say is true. Taken to the extreme, one could say, "We really ought to be immune from trial, because we really don't have any clue what we're doing in this case, or even if it will work at all". That is an absurd position, but one that you'd have us all believe. There needs to be a line between competant action (or inaction) and incompetant action (or inaction).

Your commentary, Gene, shows me (and many in the medical profession) just how much you and others misunderstand medicine and physiology.

Some of what physicians do is evidence-based care because a patient presents a classic set of symptoms and the treatment is clear. Many patients present with myriad symptoms and multiple underlying morbidities at various levels of severity. This is why guidelines and standard of care are helpful, but cannot substitute for physician judgement at the time the patient presents him/herself. As they say in our business, guidelines are guideposts, and not hitching posts.

There have been a number of classic studies done where folks have tried to dissect whether a contentious procedure should or should not have been done. Let's take hysterectomies. When you look at a whole bunch of them, the best experts in the field will see the following:

1) Some clearly should have one
2) Some clearly should NOT have one
3) A large portion are equivocal. The experts can't agree

Nevertheless, a case may be presented in court, and a lawyer will attempt to characterize the situation as strictly binary. And when he sees the gray area, he might say

It's not the patient's fault the medical system is so screwed up that two doctors can't agree on the time of day, if what you say is true.

And that is completely unfair.

Please read enough of the following sometime, and you will get my drift here.

Overview of Mathematics in the 20th Century

This is a wonderfully entertaining book to read when/if you get the chance...

Chaos: Making a New Science
by James Gleick

Bottom line - not all things in life can be predicted. And not all things in life can be predictably changed the way you'd like them to be. Just ask any psychologist/psychiatrist.

This caveat doesn't help when nonexperts decide what standard of care
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Well, then the experts ought to then.

And if the "standard of care" definition is as of yet so undefinable, then maybe Bill, Rich and other quality experts really ought to be given more power to run the show.

The Doctors and Technicians in the world are good people. The Bill's and the Richs in the world are there to get all the barriers to quality out of their way, rather than assume doctors and technicians don't know squat and need to be culled or punished. That's the Deming philosophy.

For example, one of the major things that causes errors in hospitals is handwritten scripts. Make a doctor work a 35 hour shift with no time to eat sitting, and what do you expect? You get slopping handwriting that can't be read well by the pharmacists. You get errors due to memory about this or that drug that may be brand new, may have contraindications when mixed with this other drug (that the patient may or may not tell you they are taking), etc. Create a computerized Rx entry system in the hospital, and all that goes away. Good doctors + bad system = bad outcomes. Good doctors + good system = good outcome.

Alas, that's a drop in the quality bucket. And medicine keeps getting more complex with new drugs, new treatments, new diseases, new findings...

And many treatments and drugs were developed with animal models. Sometime we have to wait for a million people to go through the procedure or treatment before we learn all the nasty caveats. But avoiding all bad outcomes denys the majority the benefit of new therapy that could make them better. The good of the many outweighs the good of the few. And many must experience new therapies before we REALLY know what is best.

But in court, a prosecuting attorney will make it seem all simple - and often on an emotional level - because that gets the best results. But that's really not fair.

One more thing...

scaring away the less wealthy (which is why lawyers will work on contingency), I also argue it's unfair because it scares away marginal cases, when negligence is harder to prove. And if a case has a legitimate question of malpractice, it deserves to be heard.

We are miles apart here. My philosophy is Primum non nocere.

- Bill

IJ · Post by IJ » Mon Jul 21, 2003 8:00 pm

"It's not the patient's fault the medical system is so screwed up that two doctors can't agree on the time of day, if what you say is true. Taken to the extreme, one could say, "We really ought to be immune from trial, because we really don't have any clue what we're doing in this case, or even if it will work at all". That is an absurd position, but one that you'd have us all believe. There needs to be a line between competant action (or inaction) and incompetant action (or inaction). "

The system is not "screwed up" just because there are differences of opinion. Medicine can't be pinned down in the way computers or airline safety can be defined. There is a way to run airplane maintenance for a model, because they are all the same and can be exposed to quantifiable types of use and conditions and age. People can't. The fact just is that while there are many certainties (I mentioned routine post-heart attack care before, which many people don't get for no reason it all--that's flagrant stupidity) there are also uncertainties. Say someone has a massive pulmonary embolus (blood clot to the lungs, discussed on Bill's site before) and survives but is very limited. Should that person get... a blood thinner? That plus a clot buster? Plus mechanical removal of the clot? Which people--what about a person who had surgery 2 weeks ago and has a higher risk of bleeding... 3 weeks? 4? Who wants to be able to run? These issues are not well enough studied for us to answer all these questions with precision. There is no randomized controlled trial on thrombectomy right now, just a few dozen cases done at our hospital. We've had conferences where people argue about what to do in general and in specific patients and the discussions are heated, with good points on both sides all from people trying their best to do the best for the patients. And anything they recommend at this time might result in a very bad outcome for these sick patients.

How could we have all the answers about humans? They are incomparably more complex than airplanes and much harder to study (we can shoot a chicken at 500 mph into a jet engine, but ethics forbid the parallel study in a human). Some of these limits are difficult, many will take time (for example, the large prostate cancer prevention trial ongoing at this moment--it takes a lot of time to see an effect of an intervention on a disease that unfolds very slowly and relatively rarely).

"In every case, one of the solutions to the identifiable problem was to develop standard operating procedures . A small sample size, to be sure, but hmm...."

You're preaching to the choir here... I've advocated the same in this thread.

"Maybe Bill, Rich and other quality experts really ought to be given more power to run the show."

I think you should spend a week shadowing some doctors before you make this kind of a leap.

"The right of a person in most circumstances to decline treatment is clearly recognized. These points are fact, and fully supported by law and medical ethics. I'd be happy to supply supporting information via e-mail or PM."

I'm actually aware of medical ethics, having taken a bunch of graduate level courses on the matter and been immersed in hospital decisions for 4 years

. Obviously a competent person can refuse any therapy; what I am talking about is the impracticality and the **inadvisability** of presenting every medical decision to patients and telling them they're on their own with their decisions. We make recommendations, and we should answer questions to patient's satisfaction, but if we asked them to make each test or therapy decision, most would refuse, and many would make awful decisions; overall, harms would increase LOTS. What is that they say... A man who wants to represent himself has a fool for a client? Why would it be any different for medicine?

"As far as documentation in the patient's chart, well, that's a question you really ought to ask those people in charge of such things at BI. "

It has nothing to do with BI, or me. I've worked in 6 hospitals and a bunch of other settings. I'm just telling you the way it is. Please, spend a week with us on rounds. We can't write everything down.

Re: procedures, we get consent for all of them. But a paracentesis has fewer risks than some of the drugs we use, say, clot busters. Obviously we also get consent whenever it is required and the procedure is required; I never suggested otherwise. But it is fanciful to expect us to get informed consent for every drug we use--from the parents or guardian in the case of kids and incapacitated people? From the court when there are no guardians? There simply isn't time, it is quite impossible. Trust me that I am speaking from practical experience and not making this up and not incompetent.

We talked about car accidents and suing drivers before... let me pose an interesting question. I ust saw a show on the "execution of (name, name)" on HBO, I think. She was a borderline retarded woman with a history of murdering an ex who killed someone who left her. That someone had suggested she receive care and supervision years ago because of disinhibition of her rage from brain damage was NOT related to the court, which also heard she had graduated from college--she hadn't. Her lawyer opening admitted bungling these facts and testified to this effect at her appeal. Perhaps? Largely? because of this error, she died by lethal injection.

NEVER was there the slightest inkling in me while watching or any people on the show that this lawyer might be sued because he screwed up. Not even on the radar... What if a primary doctor had not informed a patient of a pap smear result (a result of a test HE did not do, NOT reported to him for that reason) that lead to cervical cancer and a death sentance when not acted on? I know exactly what--that doctor was successfully sued. How do you feel about "standard expressions" in your closing argument, about being on trial and hearing another lawyer say he didn't agree with how you questioned a witness (when you did what you thought best to help the client) and as a result YOU should be paying a large sum of money?

Bill Glasheen · Post by **Bill Glasheen** » Mon Jul 21, 2003 8:06 pm

Ian

I think we posted at the same time.

- Bill

Gene DeMambro · Post by **Gene DeMambro** » Mon Jul 21, 2003 10:08 pm

I dunno, I'd name a few volunteers I'd like to see shot at 500 mph into a jet engine...

Illegal in the Unconstitutional sense, Bill. Those state courts that have reviewed caps, Pre-Trial Screening Programs and mandatory annuity payments have ruled those ideas Consitutional.

Would Medicaid legal be as underfunded as Medicaid medical? Would it be voluntary on the part of the lawyers, so only a miniscule number of lawyers participate, like dentists do now in Mass. Medicaid (due to pitifully low reimbursement rates)? Would they all then be able to cancel their contract with Medicaid legal if the rates go down during the next budget cycle, like the pharmacies all did here two years ago?

The HMO question is a whole topic on to itself.

I'm just telling you the way it is...We can't write everything down.

In my opinion, an invitation for disaster. Maybe this is a barrier to quality...

what I am talking about is the impracticality and the **inadvisability** of presenting every medical decision to patients and telling them they're on their own with their decisions. We make recommendations, and we should answer questions to patient's satisfaction, but if we asked them to make each test or therapy decision, most would refuse, and many would make awful decisions; overall, harms would increase LOTS.

To purposely withhold information about medical procedures or drug therapy because the treating physician thinks the patient should have procedure A vs. procedure B, and not give the patient the option is clearly wrong. The patient has a stone-cold right to make each test or therapy decision and maybe even make an awful decision. To not facilitate this right, exceptional circumstances excluded, in my opinion, is also an invitation for disaster.

Would most really refuse? Do we have any data on this?

Give them all the information they need to make an informed decision (including saying, "if you elect to do nothing, which is your right, you will die" if necessary), answer all their questions truthfully and frankly, be available for additional consultation if they have more questions, and allow them to excercise their right of self-determination.

No one ever questioned your practical experience or your competance, Ian. But a lot of what you're talking about is just plain chilling. And just because no one's taken the good doctors at BI to task over it, if what you describe really goes on, probably tells me you folks are getting away with one, big time. This is my opinion.

Could you give an actual example, Ian, of a case where you withheld information from a competant patient, and your reasons for doing so? Are such cases in the minority? The majority? 50-50?

35 Hour shifts with no time to eat sitting or even hit the can? Equally as chilling. Other health professions have hard and fast legal limits on the numbers of hours a person may work in a day. Serial-killer handwritting on discharge prescriptions? Horrendous, and doctors HAVE been successfully sued as a result. Would you agree that legibly written prescriptions are a standard of care? I'd like to see the argument against that one (not that I expect anyone here to hold a contrary opinion). And how do we reduce physicians work hours and give them time to practice good nutrition and allow for their comfort? Maybe these are also barriers to quality...

What you all write about the need for variability in guidelines is all well and good. A good set of non-hitching post guidelines is just that. In cases where there is a clearly delineated line between competant care and incompetant care is clear, everyone wins. Everyone knows the rules going in. And in those cases, like the hysterectomy case Bill mentions, where the best experts in the field are all over the map, explain to the patient why she clearly should or should not have one, if she clearly fits either bill.

Yet, in those plethora of cases where it could go either way, explain BOTH sides to the patient, give your best shot based on all those things medicos use to base their best shots on, fully document (there's that word again...) your rationale and the patient conversation, let Mrs. Jones make up her mind, and go from there. In my mind this makes you liability proof in the event of a bad outcome not due to incompetence. This is my opinion.

Your commentary, Gene, shows me (and many in the medical profession) just how much you and others misunderstand medicine and physiology

Ian is the one who talks about the lack of objective standards of care and the diversity of contradictory opinions, and how proper it is. If that indeed is as true and as prevalent as he says, then there clearly is work to do. Bill and Rich definately need to clear away all those barriers to quality. Maybe I do understand it...as being scewed up in places. This is somethng mentioned by others here as well.

I refuse to believe, that as a matter of course, it is proper for the medical industry to hide behind such wild lack of precision as a means to protect themelves when they've done wrong. This is my opinion.

Many patients present with myriad symptoms and multiple underlying morbidities at various levels of severity. This is why guidelines and standards of care are helpful, but cannot substitute for physician judgement at the time the patient presents him/herself

And what do these doctors use to base their judgements on? Diving rods? Pig entrails? Craps odds at Foxwoods? I'd be willing to bet evidence-based decisions are used here as well. They may not be the entire part of the equation, but probably a large part. And in my mind ought to be a vast part of th equation. This is my opinion.

Ian and Bill both wax poetic about the need for physician judgement in treating the difficult patient, yet Ian agrees with the premise of having good, solid SOPs. Which is, as they seems to me to be contradictory opinions? What would be the ideal system, one that removes barriers to quality yet maintains physician judgement and allows patients to choose the best available options for their care? That would then become the standard of care. This is my opinion.

My opinions here are based on my experience, education, training, participation, both as a patient and a provider, in health care, including participating on physician's rounds.

Gene

PS- Bill, I sent you a PM just now