2004 June 15 Tuesday
Doctors Increasingly Unwilling To Treat Lawyers
Hospitals are even firing relatives of lawyers.
Some doctors are refusing medical treatment to lawyers, their families
and their employees except in emergencies, and the doctors are urging
the American Medical Association to endorse that view. Professional
medical societies are trying to silence their peers by discouraging
doctors from testifying as expert witnesses on behalf of plaintiffs.
And a New Jersey doctor who supported malpractice legislation that his
colleagues opposed was ousted from his hospital post.
The lawyers do not exactly score points for honesty when they blame the insurance companies for the high malpractice insurance costs.
Malpractice lawyers, led by the Association of Trial Lawyers of
America, counter that rising premiums have more to do with the
insurance industry than jury awards. They say tighter regulation of
the industry is needed.
I'm with the doctors on this one. The lawyers dominate the legislatures both as legislators and as lobbyists. They get the rules written for their benefit, not for the best interests of the public.
I recognize that the medical profession needs better oversight and better mechanisms for driving truly incompetent doctors out of the profession. But the lawyers are going after doctors for too many cases where it is hard to argue that doctors are at fault. The malpractice suits are not effectively targetting the bad doctors and the ability of quacks to testify as experts in lawsuits calls into question the ability of courts to ferret out the truth in medical cases. Plus, the average jury is in no way competent enough to pass judgement on the evidence.
If the lawyers were eager to advocate for better mechanisms for judging professional conduct (both medical and legal) then I'd be more sympathetic to their viewpoint. But they are effectively levelling a big tax on us all for a likely net negative return in terms of improved health and safety.
Update: A correspondent comments:
Notice that the lawyers interviewed in the article said, "I'm
not a personal injury lawyer, why bother me?" The lawyers feel no
responsibility to reform their own profession. It's like a general
saying, "I didn't hit any Iraqi prisoners."
Update II: To emphasize: I think there is a serious problem with incompetent and unscrupulous doctors managing to get away with practicing medicine for years. The medical profession does not do a good enough job policing itself. But the fact that these incompetent doctors manage to continue to practice demonstrates that the malpractice suits do not effectively target the incompetents. Yet the malpractice suits are driving up costs (both via insurance premiums and tests ordered as defensive medicine) and driving doctors out of obstetrics and other specialties.
Update III: Doctors win the bulk of the cases filed against them but winning is very expensive.
More than 30 percent of all claims filed in 2002 were closed without any payment being made, and of those that went to a jury, patients filing the suit lost more than 82 percent of the time, according to Jury Verdict Research, which tracks personal injury claims nationwide.
Doctors who win cases filed against them still have to pay for their legal defense, which averaged almost $92,000 in cases that went to trial, and more than $16,000 in cases that were dropped, the AMA says.
Overall, medical liability costs have risen almost 12 percent a year since 1975, the AMA says.
The dollar amounts don't even count the time and worry involved in defending against a lawsuit.
The doctors feel no responsibility to reform their own profession.
If the Doctors were better at keeping the bad apples out then the Lawyers would be few and the patient would be spared. I agree, the Lawyers have to much influence in our government, I for one do not care for Government over sight, so the fix is needed for both and but it can not be a fix if one side controls the over sight, what is needed is a independent board for the doctors and litigation restrictions on the lawyers (It once was simple common sense but today that has been removed by the government with the help of the lawyers)
OK, here is a lawyer joke:
One day, 3 friends are travelling in Norway: A Jewish Rabbi, a Hindu Monk, and a lawyer.
But they are caught in a snow storm, and their Jeep runs out of gas. Fortunately, they
find a nearby farm, and they desperately knock the door in the dark. The farmer opens the door, and
gladly offers them to stay there until the storm clears. But the farmer tells them that
the guest room is too small, and that only 2 people can stay there, and that one of them
needs to stay in the barn with the animals until the storm clears in the morning.
The Rabbi says: "Since I am a pious person who is not materialistic, I want my friends to be
comfortable, and I will happily volunteer and stay with the animals in the barn". And the Rabbi
goes downstairs to the barn. They thus agree, and the Hindu Monk and the lawyer stay in
the guest room, and they turn off the lights. But in a few minutes, there is noise, and somebody is
knocking the door of the guest room: "Let me in! Let me in!" They open the door, and see that
the rabbi is very upset. They ask him: "What's wrong? You were the one who wanted to stay in the
barn with the animals." The rabbi says that unfortunately there is a pig downstairs, and that
pigs are considered impure aninals in Judaism, and so he has no choice but to ask his friends
to take his place. At that moment, the Hindu Monk says that he wants to go to the barn instead of his
rabbi friend, since he, too, is spiritual, and that he does not care for comfort. The Hindu monk goes
downstairs and the rabbi and the lawyer turn off the lights.
But in a few minutes, there is a big noise, and desperate screams: "Let me in! Let me in!"
They open the door, and see that the Hindu monk changed his mind. They ask him what went wrong.
And he tells them that there is a cow downstairs, and that cows are sacred in his religion, making
it forbidden for him to disturb them. At that precise moment, the lawyer then says that since
he is materialistic, he does not
have any such superstitious beliefs, and volunteers to go to the barn. The lawyer goes downstairs,
and his friends turn off the lights in the guest room. But in a few minutes, there is a big
noise, and somebody is hitting the door. The Hindu monk and the rabbi open the door to see
what went wrong. And they see that it's the cow and the pig complaining at the door!
Physicians' refusing to treat lawyers is an elegant vengeance.
I think the "Punitive Damages Tax" that has been implemented in several States is a good answer.
Its too much to ask for a group to police themselves (either Lawyers or Doctors), so the incentives have to be arranged correctly. Lower (effective) Punitive Damage awards should weed out the less worthy medical malpractice suits (since collected damages will be lower, resulting on lower lawyer's fees). This should help get rid of the bad apples on both sides - lousy doctors and unscrupulous lawyers.
In the mean time I hope my doctors know I'm one of the good lawyers! :-)
One aspect of this that is frequently overlooked is the fact that lawyers can turn away clients anytime they want as well, AND that in some states where lawyers are fighting against malpractice reform, the lawyers themselves are partially or fully protected against malpractice lawsuits!
You're right, it's too much to ask a group to police themselves. The market can do it, along with civil courts and outfits like Consumer Reports. You're a shitty doctor, Consumer Reports lets everyone know it, and your business suffers, which forces you out ot business. Natural Selection, free-market style.
Caps on punitive damages won't really solve anything. Tort reform may be necessary, but in cases like the Mississippi tort reform laws, the punitive damages caps are on a sliding scale, corresponding to the net worth of the company being sued. Huh? That's just like our sliding income tax scale.
Human nature is human nature. If the lawyers see a gold mine they are going to try to dig.
I blame the courts and judges who have allowed these malpractice suits and awards to get out of hand
Non lawyers have no idea what they are talking about. They are ususally jealous and not well read. Point in fact - comments like, "lawyers have too much say in government" is moronic. Laws are passed by legislators, who, 90% of the time have law degrees - do I need to paint this picture any more clearly???
Perhaps the government should be run by people with chemistry degrees.
"Perhaps the government should be run by people with chemistry degrees."
Well,they certainly couldn't do any worse than the lawyers.A tiny car full of circus clowns could hardly do worse.
1 lawyer in town starves,2 lawyers in town make a fine living for 3 lawyers.
Where there's a will,there's a lawyer.
What we need is a legal system similar to the one in England. If a person files a lawsuit and loses, that person is responsible for all costs of the suit, including court costs AND the legal fees of both lawyers.
It would also help if criminals were kept in jail or executed. Every time a criminal is released, you can be sure the lawyers AND the judges are in line for more work.
This post brings up important points. First, physicians sometimes have the right to choose their patients in non-emergent situations. In most (but not all) states, physicians can legally refuse to accept patients based on their professions. However, in most states, physicians can NOT refuse to accept patients based on their race, ethnicity, or religion.
Second, medical malpractice lawsuits have little correlation with medical quality. Great doctors can get sued for malpractice, and poor doctors may never get sued. Lawyers who argue otherwise are dishonest. Why is this so? It is because most persons do not know enough medicine to determine whether they received good medical care. A kindly, smooth-talking, incompetent physician can convince patients he's doing a great job dealing with their difficult medical problems. A top-notch physician whose patient has a bad outcome may never be able to convince him (or his family) that he did as good as anyone could expect. Thus, we have incompetent doctors with happy patients and excellent doctors being sued. One way to resolve this is to eliminate jury trials and use salaried, medically-expert panels to decide the merits of potential malpractice cases. By using salaried experts, we could avoid the problem of hired-gun doctors who work for malpractice lawyers and always seem to find that medical care was substandard. By carefully choosing the panels (which could be comprised of physicians, nurses, pharmacists, other health care professionals, and health-educated lay citizens), we could avoid the problem of doctors covering up for each other.
Third, physicians have failed abysmally at policing themselves. I have reported incompetent physicians to state medical boards and seen them completely exonerated. When I was practicing in Virginia, a state with 16,000 licensed physicians, an average of only 4 physicians per year were disciplined for incompetence or negligence by the state medical board. State medical boards should perform quality reviews of all actively practicing physicians. State medical boards should impose practice limits on physicians who haven't mastered some aspects of their field (for example, forbidding a family practice doctor from treating advanced cardiac disease), should require that possibly incompetent physicians prove their abilities by having experts observe or supervise their care of patients, and should suspend the license of poor physicians. This never will happen unless people convince their state legislatures to mandate it.
This is all fun and games until one of you needs a lawyer!!!
"Its too much to ask for a group to police themselves..."
I am a lawyer whose father is a doctor. In this case, as in so many instances, there are two sides to a story. I agree that there have been some bogus med mal cases filed. Sometimes juries award way too much money in terms of damages. In most states, though, judges are elected, and they do not wish to hurt their retention chances by reducing or eliminating damages against doctors. But far too often, insurance companies decide that they will write a small ($10 - 20K) nuisance value check rather than pay to defend a claim. Doing so only feeds the bogus lawsuit cycle.
Also, doctors, like police and lawyers (I think we are as bad, if not worse, than doctors), do a poor job of policing their ranks. Making information about doctors' med mal records could potentially alleviate this matter, but this is doubtful. Consumer reports, for example, gives valuable information about a great many products. Yet year after year, people still buy cars that CR deems crappy. Why? Brand loyalty, laziness, refusal to gain information about the cars, etc.
On the other side of the coin, the number and size of med mal judgments has remained fairly constant over the last ten years. Yes, the 'largest jury award' may get bigger, but such singular verdicts by and large do not substantially affect the statistics as a whole. If the number and size of judgments has remained fairly constant, why are malpractice premiums rising? To answer that requires an understanding of the insurance business. Insurance companies do not pay settlements out of money paid from premiums. Rather, premiums are invested in stocks, bonds, real estate, etc., and the insurance company pays for settlements, judgments, etc., out of investment proceeds. In the last four years, the investment market has really suffered. The S&P was down about 40% at one time, and the NASDAQ lost over 70% of its value. Such returns are not going to cause the insurance industry to make any money. Interestingly, insurance companies made a substantial profit in 2003.
Unfortunately, that's not a very sexy answer. It's a lot easier to not treat lawyers than it is to police doctors' ranks, or to force insurance companies to suck up their losses. Not treating doctors also gains a lot of press in support of caps on medical damages.\
One-size-fits-all answers really do not work in this situation. Caps on damages can limit rightful recovery of an innocent plaintiff. Aggressive enforcement of practice laws can have a chilling effect on the practice of medicine. I like the English rule: loser pays legal bills. To my knowledge, this is only implemented in Alaska, and I think it does have a limiting effect on bogus claims. Insurance companies could have a reason to litigate bad cases, knowing that they could receive their legal expenses back. Granted, courts do not always make that determination, but I think it would make it more fair.
If there was a good way to police an individual doctor for risk of malpractice, the insurance companies would have found it, since they have the biggest direct financial stake in the matter. The problem is that they've found the answer- and it has nothing to do with how good the doctor is. It has to deal with what field he's in. Hence, good doctors in certain fields get reamed and chased out of unreformed jurisdictions. The problem can't be blamed on the insurance companies unless you can find a better way to determine the risk of a malpractice judgement. The sad truth is that a simply being an obstetrician carries a bigger risk of being sued for malpractice than whether or not you are a good one. For that the legal system is to blame.
Even if high returns on investments allowed insurance companies to charge lower premiums in the 1990s all that means is that the recent rises in premiums are putting the premiums closer to their real costs. The returns on the stock market during a bubble caused the insurance companies to underprice. Now we see the real costs of malpractice suits that were partially hidden in the 1990s.
I keep going back to this basic idea: the malpractice suits are punishing competent doctors both through the actual suits and through the insurance premiums. At the same time I seriously doubt the suits are driving many of the incompetents out of the profession.
We need better mechanisms of oversight of doctors and higher rate at which licenses to practice get suspended and revoked. We also need a legal system for malpractice suits that is more competent.
I am in agreement with what the doctors are doing. I definitely lean toward the doctors being right on this one. Having said that, I will point out that I have been told by many contractor friends and those who have done work for doctors and lawyers, that both groups are the most dishonest, cheating people when it comes to paying and settling up. Not all doctors and lawyers are this way, but they are the two professions that stand out.
Good comments here, esp. those by Dr. T. I don't believe either side is entirely blameless here, and I too feel that there are ways in which the med. profession needs better self-policing mechanisms. Too often a perception of infallibility can lead to carelessness, when rather simple error-proofing mechanisms (like those used by anesthesiologists, who color-code their anesthetics) can cut the error rate. I'll also argue (below) that the rise in malpractice lawsuits may also be driven in part by patients, otherwise reluctant, who have to face the crushing financial burden of medical care for someone injured, even if it was unavoidable. However, as many have noted, malpractice suits frequently have little correlation with the quality of doctoring. If practiced judiciously they can indeed have a salutary effect by compelling better procedures to reduce and combat medical error, but far too often malpractice suits merely crop up as a miserable symptom of society's litigiousness, in which doctors are punished for less-than-optimal outcomes even if they exceeded the standard of care. This has extremely dangerous consequences because it is especially damaging to a subset of specialties, and as someone in the medical field, I see a lot of this firsthand. (This, incidentally, is why even Consumer Reports-type ratings must be taken with a grain of salt-- docs in ultra-challenging fields with lots of sick patients, like neurosurgery and ICU or emergency medicine, will *almost always* have a greater failure rate and series of negative outcomes.)
As an example, many radiologists with training in mammography are dropping their practices, while radiologists-in-training are eschewing mammography training, since doctors reading mammograms are being sued so often for missed detections. While there are some cases in which mammograms are misread, there are many others in which an incipient breast tumor is humanly impossible to detect at an early stage no matter how lucid the mammogram and how adept the physician; simply because of the physics of the mammogram X-ray and the read-out, and the physiology of the tumors, you can't detect them every time at the outset. But a myriad number of mammographers are being sued for failed detections when breast carcinomas are diagnosed in retrospect, even though nothing could have been detected at the time of the mammogram itself. Even though many if not most such suits fail, there are so disruptive, upsetting, and expensive for physicians that they're simply hanging up their mammography shingles. And who suffers the most? Women who need mammograms. Because of the wreckage caused by these questionable lawsuits, there's a massive and growing shortage of qualified mammographers; thus, the paradoxical consequence of this litigiousness is that fewer women have access to mammograms, which is extremely frustrating for any of us with mothers, wives, sisters, or daughters who need them. There's no easy solution, and mammography technology is improving, but there has to be some common sense in the legal remedy department.
The brewing disaster with obstetricians probably needs little introduction. The problem here, again, is that the lawsuits are too often driven by bad outcomes rather than actual substandard care on the part of physicians. 1-2% of babies, sadly enough, are born with birth defects which cannot be averted with current technology (nature isn't 100% competent in the gestation and birth department), and the docs are often blamed even if they did everything possible to assist the newborn. At times the technical arguments are too difficult to follow and a jury can be swayed by emotion. The result, as in the case of mammography, is that ob/gyns drop the "ob" part and parents have to cross state lines (as in Nevada) to give birth.
I don't see easy solutions, but one absolute must in the reform department is to have a better screen for what cases go to trial, to ensure that cases are more properly rooted in the medical staff's actions and what they were able to do, rather than on the outcome itself and the emotional entreaties which that often entails. Perhaps these juries need to be partly composed of physicians, because it is extremely difficult to follow and appreciate the technical intricacies otherwise.
But I see both sides of this, and IMHO one of the drivers for the more questionable malpractice suits is the way in which the current medical system is structured, with all its financial trappings. If families lose a wage-earning family member, or are compelled to seek long-term care for someone ill and debilitated, this can pose a crushing financial onus to the point of bankruptcy. While there may be some unscrupulous money-grubbers who manufacture complaints, I'd suspect that most plaintiffs are reluctant to file for malpractice, but are boxed in by their situations and see the malpractice suit as a recourse even when it's not merited. Perhaps in such cases, a sort of Medicare-ish "supplementary insurance fund" could be introduced for families stuck in such a predicament, so that they have a viable option other than Chapter 11 or a specious malpractice complaint. This alone, IMHO, might help to greatly reduce the deluge of malpractice complaints. My cynical side says that lawyers might then find other ways to trump up bases for malpractice suits, but I'd surmise that most of 'em would switch to sharking tobacco companies instead; if patients have some alternative means to tackle the consequences of untoward health outcomes, then the demand side of the equation would increasingly dry up, at least as far as frivolous suits are concerned.
As a husband to a physician, I talk to many Doctors about malpractice claims.
In today's environment, if a Doctor follows accepted practice, and the physician's panel (who, unfortunately are often taking the work because they are so bad at medicine, that they need the money)agrees with the treating Doctor, a patient can often still sue. Additionally, juries are becoming notorious for awarding damages against the Doctor, because they don't like the official standard of care, which the Doctor has no control over. Most physicians I know are now settling claims with NO merit, because the national attitude has gotten so flaky.
Unfortunately, jurors do not make the connection that just because a person is poor and in bad physical straights, does not mean that the channel to correct a sad situation is through malpractice insurance.
If a case, with no merit, is filed, and rejected as unfit, the attorney walks away with no loss except a little time. The insurance company, however, will have already paid several thousand out to protect themselves from bad litigation.
Unfortunately, the US Tort system does nothing to attorneys who abuse the system, taking spurious, unfounded claims that they know have no merit.
To employ one family practice, pediatrics or internal medicine physician takes at least seven support people. Two who do nothing but the paperwork of tracking and CYA.
Family physicians put long hours in, working patient charts until late at night, but their income has dropped in the past ten years by about 30% in actual dollars. In purchasing power, it' worse.
Why be a Doctor? Beats me...