A Plan For Intelligent Health Care Reform Part 7…Medical Liability and Malpractice Reform

Dewey Cheathem & HoweStoogesOkay, I promised to address the 800 pound gorilla , known as the broken medical liability system in this post.

Regardless of what all the parasites who are currently getting fat off the current system will try to tell you, the civil liability system in this country is a disaster.

Anyone with half a brain and a lawnmower can see this.

A lawnmower?

Yep.

Take a look at any lawnmower you buy in the U.S.

What do you see on it?

Every one of them has a stupid sticker on it telling you not to put your hands and feet under that sucker while it’s running. Do we really need that? Is there really any benefit from that? Is anyone who is so stupid that they would put their hands and feet under a running mower, actually going to read such a label?

Of course not. That label is there for one reason and one reason only. It is there because the company making that lawnmower is scarred to death of being sued. I have no doubt in my mind that the genesis of this was some idiot losing a finger or toe at some point in the past and then suing a lawnmower company.

One of my favorite past-times when I’m not stamping out disease is riding my mountain bike. My bike, like most other modern bicycles has a lot of nifty features that enhance the convenience, comfort and performance of the riding experience.

One thing it has is quick release levers on the wheels. These are little gizmos that allow me to simply flip a lever to loosen the axle and remove the wheel from the frame, making things a lot easier when it comes time to fix a flat. Without a quick release, wheels used to be attached with a nut and bolt that required use of a wrench to remove the wheel. With a quick release, it’s much simpler. You just flip a lever and the wheel is easily removed. To put the wheel back on, you just put it in place and flip the lever back. No need for tools. No need to fiddle with adjusting the tension each time, etc.

Unfortunately however, as with most great innovations in our society, this too has been rendered worthless by lawsuits. My bike still has the quick release levers, but unfortunately also came with lawyer tabs. These are little bumps of metal on the fork, which prevent the wheel from coming off if the quick release lever is accidentally left in the open position, or if it somehow gets knocked into the open position while riding.

Basically, with lawyer tabs on the fork, once the quick release lever is flipped, you still end up having to loosen the the axle ( just as you would if you had no quick release) every time you wish to remove the wheel. You then still end having to re-tighten the axle and adjust the tension every time you want to put a wheel back on.

Lawyer tabs entirely defeat the purpose of the quick release.

(Fortunately lawyer tabs are no match for Mr. Dremel, so my personal quick releases now actually work exactly as designed!….Please note, Dr. Sam in no way endorses anyone modifying their bicycle in any way that might compromise safety. Do not follow my dangerous and negligent example. Leave your lawyer tabs alone! They are there to protect you from your own stupidity.)

So what’s all this got to do with medicine?

Do you really need me to spell this out for you?

Regardless of all the propaganda being spewed by the disciples of John Edwards, the ridiculous lawsuit culture absolutely has a tremendously damaging effect on the cost and efficiency of, and access to, needed medical care in the United States.

Just as the makers of my lawnmower and my bicycle have altered their products to cover their asses legally, every physician in the U.S. with half a wit, alters their products (medical practice) to cover their asses legally.

Unfortunately, in medicine CYA doesn’t mean just slapping on a sticker or putting inconvenient little blobs of metal on a bicycle fork.

In medicine, CYA means getting an expensive and potentially harmful CT Scan for every headache that comes into the ER (whether medically indicated or not).

It means getting x-rays for every twisted ankle whether it meets the criteria of the Ottawa Ankle Rules or not.

It means doing a full extensive inpatient cardiac workup for every case of chest pain that presents to the ER, even if the patient has had exactly the same inpatient workup twenty times in the last 2 months.

I could go on, but I imagine you get the picture. All of this stuff is extremely expensive and wasteful. It costs society a bundle.

Additionally, CYA medicine is terribly inefficient. You know when you go to the doctor or the ER and you end up waiting for an eternity before being seen? A big portion of that is because of CYA.

If somebody comes to my clinic, regardless of the reason for their visit, they get asked a lot of CYA questions. For instance, they all get asked if they use tobacco products. If the answer is yes, they all are counseled at length about the dangers of tobacco use. They are counseled about why they should quit. They are counseled about ways to quit. About half of them get visibly annoyed with me as I am doing all this silly condescending counseling. I’ve even been verbally threatened with physical violence a time or two. Still, I do it anyway. Every time they come in. Over and over and over again.

I document all this great counseling in their chart.

In great handwritten detail.

Every time they come in.

Over and over and over again.

Ten years from now when “Smokey” has a heart attack or gets diagnosed with lung cancer or emphysema, all my documentation will hopefully make it ever so slightly harder for his/her liar (whoops, I mean lawyer) to pin the blame on me.

Sorry if that means you get to sit in my waiting room a little longer, while I complete all this valuable counseling and documentation. I don’t have much choice.

I do at least provide some magazines for you to read.

To be honest though, I’m thinking of getting rid of those. After all, the risk of someone getting a paper cut might be a little too high.

Probably the biggest tragedy of all this CYA is in loss of access. There are some medical services, such as delivering babies for instance, that are just so damn risky from a medical liability standpoint, that many doctors are simply discontinuing them.

If anybody is aware of a single family medicine physician in the entire state of Mississippi who still delivers babies (Outside of the Family Medicine Residency training programs, where deliveries are a requirement for training) I’d like to know about it.

This used to be a standard part of family medicine practice. Not anymore, however. It’s just too damn risky. To my knowledge, every family medicine physician in the entire state has stopped.

Many OB/GYN doctors are also beginning to discontinue this part of their practice. Increasingly, women are having to travel hundreds of miles to receive routine prenatal care and to have their babies delivered.

Okay, okay Dr. Sam. I get it. The medico-legal climate sucks and is playing a huge part in all of our country’s health care woes. But you promised to offer your solution in this blog posting. Let’s have it please!”

Fair enough.

First off, I do not intend here to propose a solution to the entire civil liability mess that America has become. I am not here today to fix the problems with lawnmowers or bicycles or hot cups of coffee.

I am here only to propose a fix for the medical liability mess.

First, what is the root of the problem? I think at it’s heart it is basically a matter of myopic self-centered greed on the part of a significant portion of the legal profession, supported by the willing participants who make up a small but significant part of our population.

It is about folks willing to say, “To hell with justice. To hell with right and wrong. To hell with society and tough crap for any damage done to society as a whole. I see an opportunity to get some cash and I’m gonna pursue it, no matter who gets hurt in the process.”

The plaintiff’s attorneys are very good at being persuasive. They are very good at bending, stretching, and outright avoiding the truth. They are very politically savvy and well understand the value of padding the pockets of the appropriate corruptible politicians to avoid changing the status-quo. They know they’ve got a good thing going and they don’t want to give it up.

If we wish to avoid having our society continue to go down the drain however, we as a people had better face the truth and make some meaningful changes.

In medicine, bad outcomes happen. No matter who the doctor is. No matter what hospital you go to. No matter what is or is not done for a patient. Bad outcomes happen.

Babies are born with defective brains. People have fatal reactions to medications. People die from what normally is a mild infection. etc., etc., etc.

It is not necessarily some-body’s fault. Sometimes, life just sucks. Sometimes it sucks really really badly and some horrible things happen to really wonderful people.

Life is not fair. Life is not always sunshine and lollipops. Sometimes it’s a big shit sandwich served on moldy bread.

When it does suck, it is not necessarily some-one’s fault. Sometimes it’s just life.

We as a society need to accept this basic truth.

That said, sometimes, it is some-one’s fault.

Sometimes when a baby is born with a defective brain, it is indeed because somebody screwed up. Sometimes when somebody dies from what is normally a mild infection, it is indeed because somebody was negligent and/or incompetent. Sometimes when someone has a fatal medication reaction, it genuinely is because some incompetent moron prescribed it inappropriately or some drug company did not do a good enough job of testing it.

The thing is, when life hands someone a giant feces-burger, regardless of the cause, regardless of whether or not somebody is at fault, why should they and some smarmy attorney receive a financial windfall in the form of non-economic and/or punitive damages?

The U.S. is practically the only country in the world where this is the typical result.

Should we as a society have a system in place to offer assistance to those in need? Should we have a system to help people who have been handed terrible misfortunes such as bad medical outcomes?

Yes, absolutely, I think we should.

Should we as a society have a system in place to weed out and eliminate incompetence and negligence? Should we have a system to hand out appropriate punishments when people have been negligent or malevolent? Should we have a system to protect the public from incompetent and/or negligent and/or malevolent physicians, hospitals, corporations, etc?

Yes, absolutely, I think we should.

Our current system however takes this role away from society as a whole. Instead, it puts this prosecutorial/policing role into the hands of individuals who stand to gain tremendous financial benefit from it, and puts the decisions regarding the outcomes of such cases into juries composed of people largely unqualified to make competent decisions.

In so doing, it really does very little to remove genuinely bad physicians from practice, but does a lot to completely terrorize the rest. It also does a lot to render the rest of the medical community much less effective. It does a lot to make otherwise good physicians much more likely to practice bad medicine because rather than devoting their full energies and thought process toward taking care of patients, they are devoting a huge amount toward trying to avoid being sued.

In a nutshell, the reason we have this 800 pound gorilla, is because we’ve made available a really huge pile of bananas, and we’ve put a group of idiotic school children in charge of deciding how many bananas to feed the gorilla.

Wanna get rid of the gorilla? Take away the bananas and send the school children out of the jury box and back to school!

How do we do that?

I discussed this at length in the comments section of Graham’s blog post about malpractice.

He advocates a system of no fault insurance. I think a superior way to fix this problem is instead to take these cases out of the standard courtroom altogether.

I think we should form a special health court or medical court (or whatever you want to call it), that is modeled largely upon the U.S. military court martial system.

This would be a court in which the jury is not made up of a bunch of people with little or no understanding of the practice of medicine, but instead would be made up of other physicians. It would actually be a jury of one’s peers.

In the U.S. military, court martial juries are not made up of the typical man on the street, but rather are composed of fellow military officers. These jurors are actually qualified to judge another officer’s conduct. These are people who will not be easily swayed by whichever side has the most persuasive lawyer or expert witness. Rather, they are much more likely to recognize the truth.

In the court martial system, the prosecution and the defense are still represented by trained lawyers, and the proceedings are presided over by a lawyer/judge.

The same should be true in health courts. The lawyers can make their arguments, the judge can ensure a fair trial is held, but ultimately the folks determining whether malpractice has occurred are not people too stupid and/or unfortunate to get out of jury duty, but rather are people who have been through the rigors of medical school and residency training and have actual clinical experience and understanding of what the hell the expert witnesses are talking about.

Second, I think the cap on non-economic damages that can be collected by a plaintiff should be zero.

Does this mean I place no value on pain and suffering? Absolutely not.

I recognize that pain and suffering exist, but I also recognize that money won’t make them go away.

I also recognize that the severity of a persons pain and suffering is no lesser and no greater due to it’s source, regardless of whether that source is incompetence, negligence, malevolence, or just bad luck, and regardless of whether or not the source has deep pockets.

Does this mean that I feel that there is no place for punishment, including financial punishment, to be inflicted upon those guilty of incompetence, negligence or malevolence? Absolutely not!

I absolutely think there isa place for such punishment. I just don’t think punitive funds extracted from the wallet of the defendant should be transferred into the wallet of the plaintiff and his/her attorney.

If the court decides to impose financial penalties, even severe ones, I’m perfectly fine with that. I think 100% of such penalties however should go into the treasury of the state and ideally should be used entirely to help finance the health courts system.

Should actual economic damages, including legal fees, be recoverable by a plaintiff? Yes, I think this is perfectly reasonable.

If the breadwinner of a family is rendered unable to win bread, and someone else is at fault, then yes, I think it is reasonable for that breadwinner and/or his/her family to receive financial compensation from the guilty party to make up for the lost bread.

If a person or their family suddenly faces huge costs associated with an injury sustained due to someone else’s fault, I think it is perfectly reasonable for them to recover those lost funds from the guilty party.

Further, if the injured has to hire an attorney to pursue such damages, I think it is perfectly reasonable for any associated attorney fees, court costs, etc to also be recoverable from the guilty.

These should all be real, objectively measurable amounts however. If I or my loved ones are hurt due to another’s fault, I absolutely will have the same thirst for justice as any other person would. I absolutely deserve to be compensated as much as possible for any financial loss. Further, my pain and suffering has immeasurable worth. This pain and suffering only be somewhat compensated by one thing however, and it’s not money.

That one thing is justice.

Justice is seeing the guilty party suffer some form of punishment.

Justice is seeing the guilty party forced to account for their actions.

Justice can come in many forms. In the arena of dealing with physicians, that might mean temporary or permanent loss of license. That might mean forced remedial education. That might mean jail time. That might mean severe financial penalties.

I’m fully in favor of any and all of these things. Put me as a medical professional on a jury facing a truly rotten physician, and I’ll gladly vote to bury that clown under that jail and piss on his grave.

Now then, what is not justice?

Justice is not me suddenly joining the nouveau riche simply because some quack kills my kid.

Justice is not a system that enables that same quack to continue practicing his quackery on an unsuspecting public by simply making quiet out-of-court settlement payments.

Justice is not subjecting every other (non-quack) physician in the country to a form of chronic economic terrorism, whereby they are forced to view every person they come in contact with as a potential plaintiff and act defensively.

Justice is not forcing every accused physician, whether the accusation has merit or not, to feel compelled by this economic terrorism to make a desperate out-of-court settlement, for fear of facing financial devastation at the hands of a carefully picked group of mind-numbed easily swayed jurors.

Justice is not taking every competent physician who has made an out of court settlement, or suffered at the hands of a jury of his not-peers, and lumping them together into an indistinguishable group with the relative handful of true quacks, who have also made such settlements and/or faced such judgments, so that competent physicians suffer irreparable loss of professional reputation, and the medical profession is effectively rendered impotent in policing it’s own ranks.

Justice is not forcing every member of society to pay the price of all the above in the form of ever increasing medical costs, loss of access to needed and valuable medical services, and continued exposure to the quacks who are enabled to quietly fly under the radar and remain in practice.

I think both recovery of measurable economic damages as well as implementation of true justice can be achieved via a specialized health court system.

Here are some other details I would propose for such a system.

First, I would outlaw contingency based legal fees whereby an attorney tells prospective clients “It won’t cost you a cent unless I win you some money, then I’ll just take 40% of whatever we get.”

I think instead lawyers should be required to have set fees regardless of whatever judgment occurs.

As a physician, my fees are determined not by the outcome of a case, but by the services I perform. Should I treat a patient who has little or no money, it is within my discretion to write fees off as charity, and I think attorney’s should also have this option.

They should not however have an incentive to seek out large financial settlements and/or judgements on the idea that because they are getting a percentage, then the larger the amount the better, regardless of the facts in a case.

Second, I think out of court settlements for filed cases should be outlawed. If a person feels strongly enough about a case to make a formal accusation of malpractice in the form of filing a lawsuit and dragging a physicians reputation through the mud, then that person should be perfectly willing to see that case go before a competent jury.

The other side of that coin is that if in fact genuine malpractice has occurred, then that physician should not be allowed to avoid a jury of his peers by simply paying the victim off with an out of court settlement.

Third, as mentioned above, I think it is perfectly reasonable for a plaintiff to recover from the defendant all court costs and attorney’s fees should they prevail in a case. Well, I think the reverse is true as well. If the defendant prevails, I think they should be able to similarly recover all of their associated “reasonable” legal fees from the plaintiff.

(“Reasonable” should be determined by the court. By this I mean, the court needs to have the discretion to prevent some exceedingly deep-pocketed entity from scaring anyone out of suing them, by simply having a massively expensive legal team.)

Now, some will say that this will be unfair to the poor as they will be afraid to pursue cases out of fear of being held responsible for the defendants legal fees. The answer to this is to make responsible for these fees the person who actually files the case in court, i.e. the plaintiff’s attorney.

This will put the onus of professional judgment squarely where it belongs, with the licensed professional. Rather than simply accepting and pursuing any and all potential cases, in the hope of collecting a fat out of court settlement, and standing to lose at most only a few hundred bucks in court filing fees, the attorney’s will be forced to exercise some professional judgement about whether a case truly has merit and stands some reasonable chance of winning if presented to a jury of medical professionals.

I look at it this way. The current contingency fee system massively encourages frivolous lawsuits. Making the filing attorney who loses a case responsible for the defendants legal costs, would in effect be a sort of “reverse contingency fee” system, that I think would have a similarly massive effect of discouraging frivolous lawsuits.

Fourth, similar to the criminal court system, I think there should be the availability of court appointed attorney’s. I think these should be available to both the plaintiff and the defense should they request them. Nobody should have the excuse that they can’t pursue a legitimate case due to being poor and unable to afford legal representation.

I do think the court-appointed attorney should have the professional discretion to refuse to file a case that he/she feels has no merit, which is only fair since it is the attorney who will be responsible for all court costs and defendant legal fees should they lose.

If the attorney fails to pursue a legitimate case to which he/she has been appointed, for whatever reason, then they should certainly face potential liability/legal malpractice issues of their own. What is that old saying again? “What’s good for the goose is good for the gander.”

I think this fairly well summarizes what I think would be a successful solution to the clearly broken medical liability system in our country.

I will clearly acknowledge that I am not by any means a legal expert.

Therefore, I welcome feedback and input from those who are. If you see some tweaks or modifications to the above proposals that you think should be considered, please leave a comment. Please also clearly describe the rational behind your suggestions.

I welcome respectful and even spirited debate, but please, do not follow the example of “Anonymous” who participated in the debate in Graham’s blog post. This individual seemed unable to leave the red herrings, straw men, and ad homonym attacks out of their arguments.

I have no interest in any of that nonsense and reserve the right to exercise full editorial control, including deletion, over any of that stuff I might observe.

Otherwise, I look forward to any feedback.

Cheers,

…Sam

p.s. Okay, okay, I know I said that I was only intending to address with this blog post the medical liability disaster in this country and that I had no intention of making suggestions regarding fixing the rest of the civil liability system meltdown that is crippling our economy.

I still stand by that mostly, but what I will offer is that many of the reforms I mention above, (such as eliminating the ability of plaintiffs to receive funds from non-economic and punitive damages, outlawing the percentage-of-winnings based contingency fee system, and making the losers in civil cases responsible for all court costs and the legal fees of the opposition) would go a long way toward making some serious improvements.

Jus’ Sayin’

7 Responses to “A Plan For Intelligent Health Care Reform Part 7…Medical Liability and Malpractice Reform”


  • America has pretty much been relegated to being a collection of fast buck pitchmen, scam artists, and extortionists, with a healthy serving of non-producing middlemen mixed in. There are a relative very few producers (in the Ayn Rand sense) and thus most of the citizens of the US are “looters” or “moochers”. Consequently, if justice were the real goal of our legal system, and efficiency the goal of our economic system, we’d really have one helluva lot of unemployed folks out there. The health care system is ripe for the pickings of the pitchmen and the scammers (the Kevin Trudeaus), the extortionists (the John Edwards) and the middlemen (the insurers).

    There is virtually no hope that reform will take place. Silly Rabbit.

  • Sadly, I must say that I think you have fairly well summed things up.

    I know it’s become somewhat cliche to say this, but the little bit of history I have studied leads me to conclude that ours is a nation in decline in much the same fashion as the ancient Roman Empire.

    My fear is that just as the ancient western world was plunged into the terrible period of the dark ages after the fall of Rome, our modern western world may be headed for a similar ugly period.

    It doesn’t have to be this way. That’s the sad part.

    Sincerely,

    Sam….the Sad Silly Wabbit.

  • I reread my somewhat bitter response to your well thought-out analysis, and I feel ashamed for having so abruptly slammed it down. Unfortunately, the leaders of America, (and perhaps all of the “Western” world), both political and economic, don’t subscribe to well thought-out analyses. Emotion rules the day. Sound bites and fleeting impressions keep Americans happily digesting the drivel that CNN spews out in between lawyer ads and spots for detoxifying “Kenoki Footpads”.

    I wish that men like you could argue, in Aristotlean fashion, for reform and reasoned voices would listen. But there’s no fast cash or votes in it for those who hold the reigns of power. Physicians are trained to look for the truth and act upon it once found. We find ourselves increasingly disgusted with a society that turns its back on fact in favor of magical thinking. The Roman Empire lasted millenia. The American experiment may be over in a total of a couple of hundred years.

    The biggest hope is that more people of reason run for office. But it may be too little too late. Physicians are too busy trying to care properly for patients in an increasingly hurried manner, much like the musicians continuing to play on deck as the Titanic sunk. I think physicians would make better lawmakers than do lawyers, but few actually can take the time to run for office.

    Maybe you can run for office Sam. I’d vote for ya

  • I did not find your comments to be overly bitter or deserving of shame.

    I thought they were actually pretty accurate, and for the most part, I agree with you.

    All my ideas regarding health care reform, including my ideas on medical liability reform, are really just mental self-gratification.

    As you’ve mentioned, they’d really have no chance of ever seeing the light of day in our age of corporate and political greed, all supported by voters with the attention span of a gnat and the maturity of children.

    I like your analogy of physicians being the musicians on the Titanic. That is perhaps the best one I’ve seen.

    I’d never run for office. I’m far too long-winded for our sound-bite society, and too politically incorrect as well.

    I’d be a lot like a non-insane version of Ross Perot, but without any of his riches.

    Still, if you can get my name on the ballots of all 50 states, I’ll make you my campaign manager!

    Cheers,

    Sam

  • Have you seen the warnings at the gas station to not “siphon gas by mouth”? Regarding physicians judging other physicians, how would you guard against cronyism?

    ####

    Hi Danielle,

    I don’t recall seeing those warnings at the gas station, but I suppose that’s another good example.

    As far as the cronyism you express concern about, I assume you mean “How would you guard against physicians sitting in a jury finding a fellow physician innocent of malpractice simply because they are buddies?”

    Please let me know if you meant something else.

    Basically, what it would mostly boil down to is professionalism.

    Physicians are professionals. A profession is different than just a job. It is a calling. It is in a physicians professional interest to expose true malpractice and incompetent physicians.

    Unfortunately, physicians are also human. Further, the concept of professionalism over all has been significantly eroded in our society, particularly in the past 50 years or so. This erosion has not bypassed the medical profession, though I personally do think it has not penetrated it quite as far yet as it has other professions.

    Given the above, your concern is a valid one.

    I think probably the best way to guard against this is the same way that it is guarded against in other jury trials, including the military courts martial system, in which a “Jury of ones peers” is not synonymous with a “Jury of ones friends.”

    There are almost a million physicians in the U.S.

    Simply select a jury pool composed of physicians who are not acquainted with the accused. This would not be hard.

    I currently practice on the Mississippi Gulf Coast. This is a fairly low population density area where “everybody knows everybody else”, and yet there are hundreds upon hundreds of physicians within 50 miles of me whom I’ve never met or ever had any contact with.

    Coming up with a jury composed of 9 or 12 local physicians whom I’ve never met and would share absolutely no sense of cronyism with, even ones in my particular specialty of family medicine, would be a piece of cake. I think it would be even easier in more heavily populated areas.

    In extremely rural areas, the trial could simply be moved to another venue.

    Alternatively, all trials could be held in the state capital, overseen by the state board of medical examiners, with a jury pool selected from an area of the state that is entirely different from where the accused is in practice.

    Being a member of the potential jury pool for such courts could simply be made a condition of licensing for physicians, and during the jury selection phase, legal council for both sides would have the opportunity to question potential jurors to vet out potential conflicts of interest and excuse inappropriate jurors from the trial. Obviously any physician being less than honest during this vetting process (for the purpose of trying to get on the jury so he can practice some cronyism) would be exposing himself to criminal prosecution for perjury, the punishment for which should be extremely severe in my opinion in order to discourage this crime.

    These are all just ideas off the top of my head.

    In any case, I don’t think cronyism would be a particularly hard thing to guard against.

    Hope this answers your question adequately. Let me know if not.

    Cheers,

    …Sam

  • Good article,thank you for sharing this!

  • I’ve got trouble with seeing your blog layout via the latest version of Opera. It is fine in Explorer 7 and Firefox however.Hope you have a nice day.

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