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William B. Eadie
William B. Eadie
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Malpractice Entitlements on the Way

7 comments

When someone crashes into your car, they have to pay to fix your car. When someone makes a mistake that hurts you, they have to make things right. We do that though a civil justice system, and the rules apply to everyone. Well, almost everyone. Through scare tactics and misleading statistics, the AMA has managed, in cahoots with insurance companies, to make "special rules" for your doctor in many states.

Misleadingly called "tort reform," the fact is that it is more appropriately descriped as "Malpractice Entitlements." Why? Because these efforts don’t keep out "frivolous" lawsuits (which, by the way, the system already does a very good job getting rid of through procedures like motions to dismiss). Instead, they often "cap" damages on ALL claims, whether valid or not, and thereby reduce the costs of malpractice.

In a sickening sense, this Malpractice Entitlement encourages lax behavior, because no matter the result, careless doctors cannot be held fully liable for their actions. Just as "personal responsibility" is a buzzword in many circles for conservative ideals, "personal responsibility" requires doctors to be held accountable for the full costs of their mistakes.

For anyone worried about medical costs, consider this fact: the single best way to reduce the cost of medical malpractice claims is to . . . wait for it . . . reduce medical malpractice. This makes sense, and other industries have become safer for everyone in an effort to reduce the costs of their mistakes. It makes sense: if you pay for your errors, you have an incentive to reduce errors. But the insurance lobby spends a LOT of money making sure we don’t look at it that way.

As Daniel R. Levinson pointed out, we should be angry about how many preventable mistakes occure every year:

If a 747 jetliner crashed every day, killing all 500 people aboard, there would be a national uproar over aviation safety and an all-out mobilization to fix the problem. In the nation’s hospitals, though, about the same number of people die on average every day from medical "adverse events," many of them preventable errors such as infections or incorrect medications. Where’s the outrage?

Think you know about a frivolous lawsuit? "Lotto" jury verdicts? You might be surprised to learn that many of these cases are not at all what you’ve been told. For example, the McDonalds Hot Coffee case is not at all about "runaway juries": the jury’s verdict was punitive damages–that is, punishment for McDonald’s bad behavior in keep its coffee above scalding temperatuve despite numerous earlier burns–and amounted to just one day of coffee profits. One day. And that verdict was reduced. Many other bogus lawsuit claims are debunked on scopes.com.

UPDATE: See my latest Malpractice Entitlements post (and another).

7 Comments

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  1. Mohammad says:
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    I like your article. Medical malpractice reform is a difficult subject but I respect both sides. I follow another blog that has good info about it from time to time. http://Www.equotemd.com/blog
    Dr. Gupta

  2. james O'Hare RPLU AIC AIS says:
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    There is too much med mal, and as a 25 year claims guy, I have job security. Medical care wont get better based on punitive damages. Mistakes happen and trying harder, based on financial penalty, wont fix the problem.

    More nurses, less fatigue and better communication would be a great start. Malpractice is not influenced by cash penalties.

    Medical consumers ( patients and their families) need to be educated and ask questions. Only 1 event in 10 turns into a claim, and enough to threaten insurance companies. Patients need to become active consumers. I have interjected myself into several hospital admissions from friends. This was a critical element in obtaining top care.

    Lets go with mandatory insurance, minimum limits of $500k. No insurance , no practice. arbitrations, better staffing, and caps only on non measurable causes of action like pain.

    Good reform reforms the whole thing, not just one side of the bar.
    regards Jim VP med mal claims Physicians Ins co Fl

    You may be better served by arguing for higher limits and mandatory insurance coverage. I need insurance to drive my car, but the neurosurgeon doesn’t need it to poke around in someones brain?

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    Thanks for the comments.

    @James O’Hare, you write that “Mistakes happen and trying harder, based on financial penalty, wont fix the problem.” To the contrary.

    “Financial penalty” as you put it is just another word for “accountability”: making sure that for an error there is a consequence. We have a word for the lack of consequences: “externalities.” When we create malpractice entitlements–or what the insurance lobby likes to call “tort reform”–we change the game and make avoidable mistakes into externalities. We remove the incentive for Doctors to avoid avoidable mistakes.

    Humans make mistakes, but when we put in systems to reduce avoidable errors, we reduce the error rate (see, e.g., airline pilot checklists, etc.). When, by contrast, we simply remove accountability, we increase error rates (see, e.g., financial system crash).

  4. james O'Hare RPLU AIC AIS says:
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    Thanks for the discourse.

    If one in 10 incidents result in a claim, and less than 10% of those go to trial, to wield the (financial you better practice better medicine hammer), and less than 20% result in indemnity via jury. – your argument only targets the super minority of doctors. Then,Hopefully – he/she has coverage.

    Better in my view to have no bare docs with 500k and pay the meritorious claims. Checklists do not work.

    Attempts to prevent wrong sided surgery included 3 nurses to check that it was the left leg that needed surgery. Nurse #1 makes a mistake, the other 2 sign off on it. Great on paper- only

    Good care comes from well rested nurses that are on top of their game. The financial penalty really is not felt be the physician and not any type of motivation to practice better.
    thanks
    Jim

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    James,

    You owe it to yourself to do more research. You state that, “Checklists do not work.” To the contrary, they have been proven to work in hospital settings, as Atul Gawande wrote about in 2007 (he’s since published a book on the subject, “The Checklist Manifesto”):

    “In what became known as the Keystone Initiative, each hospital assigned a project manager to roll out the checklists and participate in a twice-monthly conference call with Pronovost for trouble-shooting. . . . In December, 2006, the Keystone Initiative published its findings in a landmark article in The New England Journal of Medicine. Within the first three months of the project, the infection rate in Michigan’s I.C.U.s decreased by sixty-six per cent. The typical I.C.U.—including the ones at Sinai-Grace Hospital—cut its quarterly infection rate to zero. Michigan’s infection rates fell so low that its average I.C.U. outperformed ninety per cent of I.C.U.s nationwide. In the Keystone Initiative’s first eighteen months, the hospitals saved an estimated hundred and seventy-five million dollars in costs and more than fifteen hundred lives. The successes have been sustained for almost four years—all because of a stupid little checklist.”

    Read more http://www.newyorker.com/reporting/2007/12/10/071210fa_fact_gawande?currentPage=all

    Checklists worked; just as they did with pilots, just as they do in most complex professions.

    I agree with your other points about well-rested nurses, etc. And the fact that hospitals are vicariously liable for their employees (and thus, incentivized to staff more and promote rested nurses to avoid liability), helps. That’s why efforts to curb vicarious liability are counterproductive.

    I also agree that doctors should have mandatory insurance, just like drivers (who aren’t allowed to claim, “mistakes happen” when they injure someone).

    But your argument that civil litigation “only targets the super minority of doctors” doesn’t hold water. ALL doctors are incentivized to avoid avoidable error by the potential for lawsuits; the fact that not all doctors are sued means that either: (1) they are careless, but no one bothers to sue (essentially what “tort reform” aims to achieve by law: malpractice entitlements); or (2) they are careful, and don’t commit malpractice. I’m sure it is a little of both, but neither scenario supports the argument that those 90% of doctors are “not affected” by civil litigation.

    Thanks for the debate; please look out for future posts on this subject.

  6. james O'Hare RPLU AIC AIS says:
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    I look forward to your next article.

    Checklists are a great idea, but more so on paper, from my personal experience, in the last 25 years of claims, mistakes may have been averted, but never prevented.

    Two nurses counting sponges- they still get left behind. Maybe 3 nurses! Maybe the number of sponges counted preop was wrong.

    Putting ink on the leg to identify the proper one is a good idea, until the ink gets placed on the wrong one, then nobody says hey wait a minute? They do not teach left and right in Med School. A great question from any plaintiff attorney to a physician.

    My point is simply that you can’t legislate against mistakes. It is kind of like a cook and a recipe. Any one that I know that can cook, does not use one. Planes crash too,despite lists gravity wins. No list will trump human frailty.

    Lists will not put me out of work. I guarantee that. Cant replace art with science or vice versa. Both are required and a list only addresses one of them.

    When I had my ACL done, I wrote “other knee” on the left, so not to offend. It was a prank towards my ortho friend. When I woke up the ink was gone from that knee. Not sure to this day what that meant?

    Re incentivizing docs. I have never met a doctor that practiced medicine based on the financial impact of a mistake.

    Rates are low and the market is soft. lets get them all insured.
    regards jim

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    Great points, James. I’m not sure we disagree! Lists help, but they don’t solve everything (and they won’t put me out of work, either). But, like you, I’d like to see fewer injured people regardless of how it affects my income.

    That’s something I wish more “medical entitlement advocates” understood: doctors, lawyers (and insurance industry folks) want to reduce injuries.