Tuesday, May 25, 2010

Tort Reform and Frivolous Lawsuits: Show Me the Money!

The following is cross posted with permission from our friend of the blog and contributing author, Dr. Michael Kirsch of MD Whistleblower (please see our blog roll). Thank you, Michael!

Several months ago on this blog, I informed readers that I was a defendant in a medical malpractice case. I offered no specifics, as I didn’t want my attorney to fire me as a client, in case he discovered the post. Although the plaintiff was granted two 45 day extensions to troll for an Ohio physician to sign an affidavit of merit against my care, none could be found. My lawyer had reviewed every syllable of the medical record, and couldn’t divine an allegation against me. My lawyer and I were groping guests in a Chamber of the Absurd - trying to figure out what allegations the other side might concoct.

After a few months, I was dropped from this case that should have never been filed in the first place. Years ago, as a younger and more idealistic gastroenterologist, I was kept dangling on a lawsuit for a few years. I endured the light hearted amusement of the discovery process, including expert witnesses outside of my specialty who claimed in their written reports that my care was negligent. The deposition was so much fun, that I was disappointed when it ended. “One more hour, please”, I begged, After the ‘experts’ reviewed my testimony, they recanted, but I wasn’t formally dismissed until a few days before the trial date. Nearly 20 years later, the memory of this unfair experience still lurks in a dark recess of my mind. Lawyers don’t get this, as they don’t appreciate how deeply personal malpractice litigation is for physicians. For them, win or lose, they close their briefcases and move on to the next case.

Had the plaintiff’s attorney reviewed the record prior to suing me, he would have concluded that my care was proper and that I should not be targeted. Although in Ohio, an affidavit of merit is required to sue a physician for medical malpractice, judges will extend leniency to plaintiffs and grant extensions, as occurred twice in my case.

On March 31, 2010, I received a letter from my medical malpractice insurance carrier. Although the letter was marked PERSONAL AND CONFIDENTIAL, in all caps, bold and underlined, I feel I can share it with loyal Whistleblower readers.

Here is an excerpt:

Many physicians wonder about the magnitude of the expenses incurred in defense and/or investigation. In this case, they were $9,120.85.
Where was the rush to sue me? The statute of limitations was far in the distance. Because I was named as a defendant from the outset, with no supporting affidavit, nearly $10,000 was incinerated.

I am sure that this scenario occurs in all 50 states every day. Imagine what the aggregate financial cost is of defending innocent physicians, or doctors like me who should never been defendants in the first place. The costs of the discovery process, which I escaped, are orders of magnitude higher than my costs were.

The inarguable facts, disputed by plaintiff attorneys, are that the current dysfunctional medical liability system fails to:


Narrowly target negligent physicians
Capture most patients who have been victims of true negligence
Improve medical quality
I have no idea how many tens of millions of dollars or more are being vaporized in the medical malpractice crucible. With a health care system that is sagging under escalating costs, couldn’t we find a better use for this money?

Keep in mind that the actual costs of litigation are but a fraction of the costs of the medical liability system. Sure, my case burned up 10 grand, but, I will spend much more this year ordering tests and consultations that are as much to protect me as they are to protect my patients. Sad, but true.

Failing to include any real tort reform in the Patient Protection and Affordable Care Act, the health care reform panacea, is legislative malpractice. Hey, that gives me an idea. If I can get one citizen to sign an affidavit of merit attesting that our representatives breached the community legislative standard, defined as what a reasonable legislator would do, can we sue them? We wouldn’t need a judge to grant an extension. Millions of Americans are ready to sign this affidavit yesterday.

18 comments:

  1. Legislators are generally immune from lawsuits in their official capability, and are certainly immune from "legislative malpractice suits", although I do appreciate the humor of the suggestion. We already have a system in place to deal with it. Its called the ballot box.

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  2. While I don't have a better solution, the ballot box hasn't gotten it done for us.

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  3. There is small hope though. So far in the primaries incumbents, both republican and democrat, are not doing too well. Now whether people are
    looking at the issues and voting out people who do not agree with them or just voting against incumbents I think it is a good thing. I would love to see the House and Senate have term limits like the president. Maybe a 4 terms for the House since theirs are half as long. New blood every few yrs would be a good thing. There would still be corruption but a corp or union that helps you get elected once does not feel like it is owed as much as one that helps you keep the job for 30 yrs.

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  4. Dr. Kirsch:
    I wasn't really suggesting the ballot box as a means of dealing with malpractice and/or torts reform.

    I think there are a few good point that you have introduced here, though, that bear further discussion. Before we do so, let's identify a few common areas of agreement if I may be so bold as to presume:

    1) It is in the interest of the medical profession and the general public to target and drive from practice physicians who are routinely negligent.
    2) The present system of tort lawsuits does not do this.
    3) The medical profession currently is largely self-regulating, and is not driving out or removing negligent physicians.
    4) Patients who are injured by negligent physicians should be compensated for actual damages, future damages if they can be determined and are applicable, and for economic damages caused by the negligence.

    It seems to me those are pretty reasonable goals that most could agree on.

    The legal definition of medical malpractice generally hinges on the "standard of care", i.e. what is the usual and standard level of care that the physician (or other medical professional) has a duty to provide to his/her patient. Unlike various state laws regarding statutes of limitation, etc, the standard of care (it seems to me) shouldn't vary. It should be the same whether the care is delivered in Fairbanks, Alaska or Miami, Florida.

    Who determines this "standard of care?" Of course, its the medical profession itsself. The general public, lawyers, lawmakers, etc, don't have the training to determine whether negligence has occurred, and too often, a medical malpractice issue turns into an issue of whether the "hired guns", i.e. experts retained by either the plaintiff or defendant, is more persuasive.

    Some, but not all, states have started to develop malpractice screening panels, (which in some cases are voluntary, and states are not). As we discuss this useful and interesting topic, perhaps we can also start to agree on some ways to accomplish the goals listed above, provided you agree they are reasonable. If you do not, Dr. Kirsch, I ask that you explain what parts are not, so we can agree on those before we go forward.

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  5. @TOE: Excellent points. Can't recall which of you erudite opinionators is the barrister.

    Here's a thought, not for eternity, but for the present.

    Vaccine immunity is instructive and might provide us with a paradigm. The National Childhood Vaccine Injury Act provides rapid, but limited compensation to individuals who have suffered recognized complications. Injured persons may have access to a special Vaccine Court, headed by masters who are well versed in the relevant issues. Litigants can to on to appeal to state court, but this is deliberately not the desired objective. This process permits speedy compensation on a no fault basis. Vaccine Court is attractive because it limits the use of ‘hired guns’ serving as medical experts and junk science. The Special Masters who are in charge know the issues well and aren’t likely to be rolled over.

    One wonders about extending this approach to the medical profession. What if every patient who suffered a recognized complication were automatically compensated? Would this serve the greater good more than the current medical liability system that aims to ‘make whole’ only those who have been negligently harmed? Keep in mind that the latter strategy only captures a small fraction of victims of medical negligence.

    Vaccine manufacturers pay an excise tax, which funds the effort. Physicians and hospitals would enthusiastically do the same.

    Comment sent on a bus in New England extending free WiFi!

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  6. I think your suggestion about using the vaccine program is instructive, but not necessarily helpful. The problem is, as I see it, that a complication shouldn't be rewarded with instant or near instant cash. I don't for one moment believe that a complication is always a result of negligence, either, although it certainly can be. If I go to the emergency room with severe abdominal pain and its diagnosed as appendicitis, and by the time I can undergo surgery the appendix has ruptured with all the assorted problems that will cause, I don't think I should be rewarded for that because I decided to "tough out the pain" too long before seeking treatment, or because the appendix decided to rupture early.

    It seems to me more logical to adequately compensate patients whose physicians have been negligent. How to do that and the mechanisms by which we weed out the "junk" lawsuits vs the valid malpractice is a valid debate, I think.

    Too often, though, I think that patients and their families equate negligence in care (which results in an adverse outcome) with poor patient skills on the part of the physician and the known complications of disease. As an example, when my mother was still alive, she had been treated by the same primary care physician for almost 20 years. This physician was part of a huge practice, the kind in which patients weren't names, they were a number. It was impossible for her or her family to speak with her physician on the phone. His staff always took the questions and would have to call us back with his answer, often several days later. When my brother or I would go accompany her to an appointment, the appointment lasted maybe 10 minutes, and the doctor had no time to talk or answer questions. When she was hospitalized for her final illness, this physician didn't even inquire about her with us, but did bill us for missing a scheduled appointment. I don't really think her primary care physician was guilty of malpractice, and neither my brother, sister or I blame her primary care physician for her death, but I can see how a grieving family might turn on a physician with such horrible patient skills. I think patients and families are much less likely to sue a physician who communicates and is responsive to their concerns.

    I also think that to some extent, the medical community has brought on the problem themselves. For many years, as medicine has become more and more skilled at treating disease and injury, some patients (dare I even say many?), have come to trust and revere physicians as almost an extension of God. Some physicians do little to dissuade them of this. Physicians aren't gods, however, and when complications occur, they physicians set themselves up for lawsuits from patients who want to know why their deity failed them.

    (continued)

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  7. Michael, I think this suggestion of a system similar to vaccines is a fantastic one.

    One question for you - is there anything in how this suggestion could be implemented that could or would be a deterrent to bad medical practice?

    If not - and there may be some excellent reasons not to make them connected, that is a perhaps a separate discussion - would you be in favor of some form or measure that would be a deterrent to substandard medical practice (as separate from unfortunate or unavoidable bad outcome)?

    ToE is the one of the three of us involved in the law. Pen's in banking. I do have a background in insurance claims, including medical malpractice.

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  8. (continued from above)

    I think the use of medical screening panels should be mandatory, not voluntary. I also think that the medical screening panel proceeding should be complete prior to any lawsuit being filed. Provisions could be written into law that would toll the statute of limitations during the proceedings of the screening panel and for 30 days after its report. (i.e. time enough to file a lawsuit even if the statute had expired) I would not bar a lawsuit if the medical screening panel didn't approve it, but I would write into the law that if one sued after the screening panel said no, and lost the lawsuit, then the attorney and client would be jointly liable for the physician's legal fees.

    I do not necessarily support arbitrary caps on malpractice awards. I do, however, believe that awards should be limited to actual economic damage, for future economic damage (if applicable), and to compensate the patient if possible for the damage caused by the negligence. I think also that in cases where its shown that there is gross negligence (going beyond something which is just an accident), that the matter be reported to that physician's licensing authority, and that they be required to take appropriate action. An example of what I would consider gross negligence would be something so egregious as removing the wrong kidney, operating on the wrong leg, prescribing the wrong drug or a drug the physician knows the patient is allergic to, etc.

    Part of the reason that the medical malpractice industry exists in the legal community is that legal fees for such suits are generally on a contingency basis. Eliminating contingency fees would probably reduce the number of suits, but would also probably result in some legitimate claims never being litigated due to patients being unable to afford the legal fees. A limited requirement for reasonable legal fees (to be reviewed and approved by the Court) to be paid by a physician who has a judgment of malpractice against him/her might help this while reducing the number of "nuisance suits".

    These are a number of ideas about torts reform in the general area of medical malpractice. Please note that where I use physician here, a better term would be health care professional, because any licensed health care professional can be guilty of malpractice, although I think that the overwhelming majority of health care professionals in the US are competent, caring, and truly doing their best to heal and improve the lives of their patients.

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  9. I have espoused the same concept of 'health courts' elsewhere in the blogosphere. Before a physician could become a traditional defendant, some form of health tribunal would screen the case. We would need to decide how to assemble these panels, who would need to be knowledgeable about medicine and law. If these guys said 'No Case', then the patient could still sue, but if he loses, then he pays all legal fees. Perhaps, he and his lawyer should split the legal fees. If the patient is impoverished, then need a mechanism such that all legal fees are paid. We could decide if the initial tribunal's finding is admissible at trial.

    I mention the vaccine courts as an example of solving a problem by tacking in a new direction, rather than trying to reform a broken system. Without vaccine immunity under this law, would vaccine manufacturers continue to pursue R & D on vaccines? I doubt it. So, the legal reform with respect to vaccines helps us all. I believe that real tort reform, however we get there, would help us all as well.

    Finally, I wonder, TOE, why your Mom continued with the same physician?

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  10. I see two separate problems for discussion - and if I may be allowed to 'think out loud', which is to say to throw out ideas without first screening in my own mind all of the possible aspects for deficiencies....

    We have two goals (among others) here which can be conflicting with each other.

    On the one hand, we would all like to see substandard care and bad (whether negligent, or other) physicians removed, and / or penalized as a means of assuring diligent, good care.

    Is the malpractice system the best way to do that? Could some other method do so better?

    Secondly it would be very helpful if there weren't frivolous lawsuits for bad outcomes. Again, how do we most effectively separate out the frivolous from the worthwhile? Would we be doing harm if we denied anyone their day in court who felt strongly they were wronged even if everyone else feels the case is frivolous - we have the judge to make that decision, is it appropriate to have some other mechanism effectively 'judging' also? I think the argument could be made it is not only desirable but necessary; if we can even significantly reduce frivolous suits, it would be a plus.

    So....is there some way to have doctors more rigorously regulateand discipline doctors? And to have lawyers perhaps me more rigorously restrict other lawyers from bringing frivolous suits?

    My thought was that it would seem to be the most efficient use of the skills if we could bring the expertise of the respective professions to bear on their own part problem.... the catch of course is the 'how?'.

    OR, we may need to deliberately develop some sort of corps of super professional who is both fish and fowl, doctor and lawyer (I'm not saying which is fish and which is fowl - grin) to handle both jobs in one stop shopping.

    There are a core group already of specialty expert witnesses...

    But if we separate out such functions from the activity of a vaccine court style resolution, instead of piggy-backing it on the function of med malpractice...that might work.....

    I'm thinking out loud here, so be kind, LOL!

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  11. Lost lost long response. Don't have energy now to recreate!

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  12. There are already a number of lawyers who have subsequently attended medical school and earned their MD, although in most cases, they don't practice medicine, they practice law. Usually they practice in either medical malpractice (plaintiff or defendant) or in product liability areas.

    Answering your earlier question, Dr. Kirsch, my brother and I tried for years to convince my mother to change physicians. She was of the generation who (probably subconsciously) thought a physician could do no wrong, and that it was ok to be treated that way. When she was no longer able to made decisions on her own, we were preparing to move her to a different physician when her final illness struck. As I said earlier... her final illness was one that no one could have predicted and no one was to blame for her death. The physicians and nurses at the hospital took incredibly good care of her. However, had they performed like her normal primary care physician did, I can understand why some might sue, simply in anger over the inexcusably bad people skills.

    The medical community in many instances has resisted some attempts to reform the regulation and licensing of health care professionals, while insisting that tort reform will solve all the costs of the medical system. I respect the amount of training you have, Doctor, but I think you realize that tort reform in itself will not significantly reduce medical costs. I also haven't seen any evidence that tort reform will reduce the amount of tests ordered, (other than anecdotal evidence).

    I think I can agree that some reform is needed, I think, however, that simply placing limits on awards, or on who can sue, etc, is not going to be the panacea that we might think.

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  13. "Would we be doing harm if we denied anyone their day in court who felt strongly they were wronged even if everyone else feels the case is frivolous"

    No! This is precisely the kind of case that a tribunal - or some similar forum - could screen out. If the plaintiff still wanted to proceed in care, despite being denied by the tribunal, then this individual (?and atty) should be liable for legal fees, and perhaps court costs, etc. This still preserves right to sue, but raised the risks to plaintiff appropriately if case is not deemed meritorious.

    Plaintiff attys insist that discovery process needed to separate the frivolous from the meritorious. I disagree, even though their argument sounds cogent. It is self-fulfilling, in my view. In my experience, I have heard of many cases where it can very quickly be determined that a physician should not be a defendant. Plaintiff lawyers will deny this, but I disagree with them. Of course, there are some cases that are too complex and nuanced to make such preliminary judgments.

    There is also the no fault concept, which I am not supporting but introducing. Would it be more utilitarian to bring relief to all who have been injured, including routine complications, rather than hope to 'make whole' only a fraction of those who have been negligently harmed?

    Finally, with respect to tort reform and saving $$. I believe, but cannot prove, that it would save money. The (non-partisan) Congressional Budget Office has concluded that defensive medicine costs the system billions. Keep in mind that the arguments for tort reform transcend its hoped for economic benefits. What about pursuing fairness and justice?

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  14. If I might speculate on another difficulty ToE that is sometimes a problem with older people, they resist change, which is possibly part of why your mother was so unwilling to switch?

    Michael, you mentioned complex and nuanced cases....do you think that a preliminary screening tribunal CAN make a determination in those cases,fairly, as to being frivolous or not frivolous? Or would such a tribunal only work for those cases which are simpler and clearly not legitimate? Would such a provisiion simply separate out simple from complex cases, effectively?

    Further, would you support or favor requiring that such a tribunal performing this kind of screening, given the technical nature of understanding the medical issues, require all of the members of this tribunal to be both graduates of medical school and lawyers?

    If we are able to reduce the number of med malpractice court cases, there should be a resulting supply of otherwise unoccupied individuals to draw on from what ToE outlines, LOL.

    I would also like to hear you expound further Michael on the no-fault med malpractice idea, to reduce unnecessary tests by separating them from necessary ones. Would you recommend such an arrangement or system compensate all bad outcomes regardless of fault?

    And lastly - if I might impose on your patience further on a holdiay weekend, perhaps you would share your thoughts on the best way to get bad medical practitioners out of the field?

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  15. Michael thank you for the compliment of calling us erudite opinionators - the feeling is mutual.

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  16. To the erudite opinionators of prodigious intellect! Commenting on a train...
    First of all, I view the tribunal as a mechanism to screen out cases before they are formally filed; they're may be other effective remedies to consider. If the tribunalists are adequately schooled, then they may be very well able to accept the simple and the complex, as the vaccine court does. I would expect that it would consist of medical and legal professionals, and perhaps a normal person or two.

    The no fault does not directly address the medical liability situation. It is a new concept, whereby adverse events are automatically compensated. This might decrease frivolous litigation and compensate a high volume of injured individuals. For example, if an patient experiences a known complication of a procedure, then this person could be readily compensated. Those who support the status quo will argue that this doesn't address flawed informed consent, inadequately trained practitioners, etc. If you are wedded to the status quo, and earn a livelihood from it, then you will find fault with any reforms being offered.
    I agree that we do not have an effective system for policing the medical profession, and none is forthcoming. While incompentent medical care is often written and spoken about, I rarely encounter it personally. So much of medical practice depends upon style, training and judgement. Ten competent physicians might have half a dozen ways of approaching a clinical situation, and all may be 'correct'. Actual incompetence, in my experience, is rarer.

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  17. I think compensating a person for adverse events which have nothing to do with the standard of care they received sets a horrible precedent. This was the premise behind no fault auto insurance, and it did not reduce costs. Rather, by requiring everyone to have insurance, it simply added another cost to the privilege of driving, and added additional profits for insurance companies. Compensating people for adverse reactions invites an entitlement mindset that is already too prevalent in our society today.

    I would like to emphasize that I do not earn a living from the status quo... I have never filed a medical malpractice or personal injury case in my career. However, I think that once a malpractice screening panel gives its opinion, that opinion should be considered by the potential plaintiff and his/her attorney. If there is malpractice indicated, obviously, it should be considered by the health care professional and their insurance provider. If the screening panel says they see no malpractice, then obviously that should be considered.

    Unfortunately, many insurance companies will settle a case rather than take it to trial and risk a high verdict, especially in states where there is no pre-screening of the cases.

    As far as discovery, I see no reason why discovery on the part of the plaintiff should be necessary in a medical malpractice case. A patient's medical records, including any/all physician's notes, hospital notes, etc, should be his by law. The patient and/or his lawyer can request the medical records, and have them evaluated by whomever they want to give an idea if something happened that rises to malpractice.

    Generally the discovery that goes on is by the defendant. Medical records and/or research into prior conditions, etc will be requested, depositions taken, etc, to help the defendant show that his/her actions did not cause the damage alleged, or if it did, not to the extent alleged (comparative fault doctrine).

    As to the screening panels, in the states that already have them in place (unfortunately, on a voluntary basis), they usually consist of two to 4 physicians, and one lawyer who presides and advises on the legal aspects of the matter. No specific legal training is required for the physicians, nor medical training for the attorney, although obviously it wouldn't hurt. I mention this because if the screening panels were universal, it would take a great many physicians to go to law school, (or lawyers to medical school) to have everyone cross-trained as suggested. Most lawyers don't want to go to medical school, and most physicians don't want to go to law school.

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  18. This physician still fantasizes about getting his J.D. Agree that the no fault scenario leaves many gaps, but thought the concept is worthy of discussion. I think a case can be made to support it. If a person suffers a complication, why shouldn't this person be compensated in some way? Regarding your view that discovery should not be necessary by the plaintiff, good luck finding one who agrees with this. I like the tribunal concept. If it can be properly constructed, it could serve as a necessary filter withouth abrogating a patient's right to sue.

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