I didn\’t want to Get Steamed

Thanks a lot.

I was doing perfectly fine this morning, minding my own business.  Then I read an article by Ezra Kline entitled Medical Malpractice Costs.  Now I am all worked up, in a lather, in a tizzy, and beside myself.

I didn\’t ask for that.

Let me first say that malpractice reform is not one of my usual soap boxes.  The reasons for my non-attention to this issue are as follows:

  • As a primary care physician, malpractice insurance is not a major line-item on my budget
  • Neither I nor physicians in my practice have ever been sued
  • I know that medical care is far from perfect and don\’t want to give the impression I think otherwise
  • I don\’t want bad physicians to continue practicing medicine, and hope that they will be held accountable for their poor care quality.  (Yes, like most physicians I have seen some very bad doctors.  Most docs can tell you who they wouldn\’t send their enemies to.)
  • I think that this issue has been over-emphasized, as it is a central issue for the specialists (who have controlled the game up to now).  The AMA and other societies have gone after tort reform in lieu of making things fair for primary care.  That frustrates me.

So the fact that an article about malpractice got my goat is quite significant.

In this article, Klein starts out by citing (word police: I got the spelling right this time) articles that question the validity of doctors\’ arguments for tort reform.  The first, an article by David Leonhardt makes the point that despite the cost to the system (estimated at 3% by him, although most estimates I have seen are more near 10%), malpractice cases are not indicative of the actual prevalence of malpractice:

At the same time, though, the current system appears to treat actual malpractice too lightly. Trials may get a lot of attention, but they are the exception. Far more common are errors that never lead to any action.

After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim. For every notorious error — the teenager who died in North Carolina after being given the wrong blood type, the 39-year-old Massachusetts mother killed by a chemotherapy overdose, the newborn twins (children of the actor Dennis Quaid) given too much blood thinner — there are dozens more. You never hear about these other cases.

So we have a malpractice system that, while not as bad as some critics suggest, is expensive in all the wrong way

While I do agree that most true malpractice does not lead to claims, Mr. Leonhardt (at least in this citation) doesn\’t address the following:

  • This is a legal system where someone is innocent until proven guilty.  Some negligence taken to trial doesn\’t result in a claim because the evidence was not conclusive.
  • Studies have also shown only 17% of malpractice claims appear to involve actual injury. (Localio AR, Lawthers AG, Brennan TA, et al.  N Engl J Med 1991;325:245-251).  This means that the majority of those found guilty are probably innocent.

I think Mr. Leonhardt\’s case is pretty weak, but that is not what got my eggs all scrambled.

The second article cited is by Kevin Drum, who argues that most patients don\’t even know medical malpractice has occurred, and that filing a lawsuit is one of the only ways to get at the truth.  He goes on to criticize those favoring malpractice reform:

We could fix this pretty easily by making it much easier for patients to see the records of their own cases. If we did, that would cut down on \”frivolous\” lawsuits and it would increase the number of justified lawsuits. That would be fairer for everyone, but it probably wouldn\’t cut medical malpractice costs. It would increase them. That\’s why the medmal warriors never talk about this. They like the idea of cutting back on frivolous suits, but they\’re much less keen on admitting that there\’s also a lot of genuine malpractice that goes completely unnoticed.

This article also fails to note the high percentage of lawsuits that are frivolous  (Why is the word frivolous in quotes, but the word justified is not?).  It also seems to imply that patients have no access to their records, which isn\’t the case in most situations.  It is only when the lawsuit is filed that the access to the records is restricted (from both patients and doctors, by the way).

But this too is not what toasted my tacos.

What really bothered me was the commentary that followed by Mr. Klein:

The sad irony of the malpractice system is that it has led doctors and hospitals to be much less transparent with their data, which has made it harder to find out when things go wrong, which has made it harder to put in place systems that keep things from going wrong. But the best way to reduce malpractice costs would be to reduce malpractice.

The problem isn\’t in courtrooms so much as on the operating table. But because it\’s doctors who are angry about malpractice suits, most of the fixes are from their perspective. What we need is malpractice reform from the patient\’s perspective. That wouldn\’t be the system we have now, or mere caps on damages: It would be serious work and investment in better practices.

Am I reading this wrong?  Is he saying that to reduce malpractice lawsuits we should simply stop doing malpractice? Hmmm.  That sounds pretty radical.

While we are at it, why don\’t we set up ethics guidelines for politicians so we can get rid of corruption in Washington DC?  Or how about giving people guidelines on eating well so that there is no more obesity?  Maybe the UN can set up guidelines for human behavior so that terrorists stop killing people.

Can anyone tell me why we never thought of this???

I expect better from Ezra.  I follow his column daily and while I may not always agree with him, he\’s a thoughtful advocate for what he represents.  But the connotation of what he and the other two gentlemen are saying really boils my macaroni.  Really.

Why am I so worked-up?

The first thing (that flushes my goldfish) is that it implies that doctors are not anti-negligence.  All of these articles seem to suggest that there is a hush-hush conspiracy among doctors to protect lousy doctors from lawsuits.  This is not the case.  Nobody is complaining that doctors who give too much chemotherapy or cut off the wrong leg are getting sued.  Tort reform is not about that.  What makes doctors so frustrated about the current medical malpractice system is that doctors are being sued for bad outcomes, not negligence.

Please get rid of the bad doctors.  The real problem with the system is that so many good doctors are sued for situations that are not cases of malpractice, that the really bad doctors can hide in this large group.  Simply having a lawsuit against you does not mean you are a bad doctor.  Most of the time it just means you had a bad outcome with the wrong person.  Getting rid of frivolous lawsuits will make it more obvious who is really committing malpractice.

The second implication that tangles my yo-yo is that doctors who are angry about malpractice suits are somehow anti-patient.  We spend our lives working to do what is best from the patient\’s perspective.  I don\’t know any doctors who want to harm patients and get away with it.  No, you can really want what is best for the patient and still think that our system is bad.  It is a false-dichotomy.

But the real thing that put ricotta in my pasta is the implication that doctors are idiots.  I\’ve written about my frustration with doctors who think the best way to get patients to quit smoking is to inform them that it is harmful.  I\’ve also talked about how patronizing it is to educate an obese person of the fact that they need to lose weight.  There are no smokers I have met that think it is healthy.  There are no obese people I know of who don\’t realize they should lose weight.  It is not the lack of education or stupidity of the smokers and overweight that is the cause of the problem.  It is far more complex than that.

Ezra, doctors do realize that cutting down on malpractice is good and harming people is bad.  Most bad medicine is not done because the doctor thought it was a good idea; it happens because of being rushed, tired, not having good information, having a bad day, getting lazy, being over-confident, or not communicating well with the patient.  In short, it happens because doctors are normal people who doctor for a living.  Saying we should focus on \”best practices\” is ridiculously simplistic, and seems to imply that some docs believe in \”mediocre practices\” or \”lousy practices.\”

Yes, we should have a system that identifies the low-quality doctors and either improves their care or gets rid of them.  Yes, patients should get the best possible care.   Yes, people harmed by medical negligence deserve to be compensated.

But simply saying doctors should stop messing up is not the solution, and it is not what the tort-reform debate is all about.

It really bakes my tuna noodle casserole when someone implies otherwise.

52 thoughts on “I didn\’t want to Get Steamed”

  1. He’s so off his rocker here it’s not funny (for the record, I’m WAY in favor of tort reform, having seen the purely predatory medmal side of the fence). Check out this article from 4 years ago though, where he’s singing quite a different tune… Whichever way the wind blows for this guy, I guess.

  2. He’s so off his rocker here it’s not funny (for the record, I’m WAY in favor of tort reform, having seen the purely predatory medmal side of the fence). Check out this article from 4 years ago though, where he’s singing quite a different tune… Whichever way the wind blows for this guy, I guess.

  3. Yeah, but looking through that website, I noticed that he was saying the exact same thing as he said in this article about 2 years ago – basically verbatim. I get the impression that pundits think tort reform is whining doctors getting their way. It’s frustrating.

  4. Yeah, but looking through that website, I noticed that he was saying the exact same thing as he said in this article about 2 years ago – basically verbatim. I get the impression that pundits think tort reform is whining doctors getting their way. It’s frustrating.

  5. My wife once met a malpractice lawyer. He got all awkward when he realized her husband was an MD. He says, “We don’t sue for just nothing. I only sue when someone dies.”
    When Mrs. D tells this I’m like, “WTF? Just because a person dies it doesn’t mean malpractice happened. Does this lawyer not realized that everybody dies? “

    Everybody should live to be at least 90. If they don’t a doctor must have screwed up and deserves to be punished. God bless the legal system!

  6. My wife once met a malpractice lawyer. He got all awkward when he realized her husband was an MD. He says, “We don’t sue for just nothing. I only sue when someone dies.”
    When Mrs. D tells this I’m like, “WTF? Just because a person dies it doesn’t mean malpractice happened. Does this lawyer not realized that everybody dies? “

    Everybody should live to be at least 90. If they don’t a doctor must have screwed up and deserves to be punished. God bless the legal system!

  7. All right Nick, educate me. You have clearly been taught how to differentiate people in giant taco costumes from those in chalupa costumes. My Peterson’s Field Guide was no help in this case.
    Are you equating Michael Jackson with Frankenstein? Never thought of that…

    Good analogy to NCLB, except that law was meant to do some good. This is clearly influence of a lobby more than anything. 56% of Americans think Tort reform will have an impact on HC costs.

  8. All right Nick, educate me. You have clearly been taught how to differentiate people in giant taco costumes from those in chalupa costumes. My Peterson’s Field Guide was no help in this case.
    Are you equating Michael Jackson with Frankenstein? Never thought of that…

    Good analogy to NCLB, except that law was meant to do some good. This is clearly influence of a lobby more than anything. 56% of Americans think Tort reform will have an impact on HC costs.

  9. I agree that defensive medicine is probably a bigger deal than suspected. You really have to sit in our shoes to realize how much of what we do is defensive. I personally don’t believe that SSRI’s make teens commit suicide, but won’t Rx them because of the potential liability. That means that my depressed teens have to wait 6 months to see a pediatric psychiatrist before getting meds. That’s one small example among thousands of the day-to-day drain defensive medicine has. Those outside of the medical field have no idea. They really have no idea.

  10. I agree that defensive medicine is probably a bigger deal than suspected. You really have to sit in our shoes to realize how much of what we do is defensive. I personally don’t believe that SSRI’s make teens commit suicide, but won’t Rx them because of the potential liability. That means that my depressed teens have to wait 6 months to see a pediatric psychiatrist before getting meds. That’s one small example among thousands of the day-to-day drain defensive medicine has. Those outside of the medical field have no idea. They really have no idea.

  11. Dude, just like going to the grocery store, you just shouldn’t blog when you’re hungry.
    Damn, now *I’m* hungry.

    I said more or less the same thing.

  12. Dude, just like going to the grocery store, you just shouldn’t blog when you’re hungry.
    Damn, now *I’m* hungry.

    I said more or less the same thing.

  13. This kind of reminds me of teacher reactions to No Child Left Behind — it’d be a totally weird way to waste your energy to go through five years of higher education in order to not teach someone’s kids. To get them in a classroom and just make ’em dumber.
    Similarly, while there’s plenty of screwing up to go around, it does seem excessive to assume that the medical profession is out to make a lot of Frankensteins/Michael Jacksons.

    Also: is the gentleman in the Taco Bell kilt actually a chalupa?

  14. This kind of reminds me of teacher reactions to No Child Left Behind — it’d be a totally weird way to waste your energy to go through five years of higher education in order to not teach someone’s kids. To get them in a classroom and just make ’em dumber.
    Similarly, while there’s plenty of screwing up to go around, it does seem excessive to assume that the medical profession is out to make a lot of Frankensteins/Michael Jacksons.

    Also: is the gentleman in the Taco Bell kilt actually a chalupa?

  15. Michael Kirsch, M.D

    The current medical malpractice system works so poorly for everyone, except one stakeholder, that it should be dismantled. It tortures the medical profession nearly at random. Indeed, most physicians who are ensnared are released after some anxious months or years. I have no idea how Leonhardt quotes such low cost estimates of defensive medicine. The majority of patients who have been negligently harmed are never compensated. We have a system that works poorly for patients and, in my view, adversely affects medical quality. Those who argue for the status quo have transparent reasons for doing so. www. MDWhistleblower.blogspot.com

  16. Michael Kirsch, M.D

    The current medical malpractice system works so poorly for everyone, except one stakeholder, that it should be dismantled. It tortures the medical profession nearly at random. Indeed, most physicians who are ensnared are released after some anxious months or years. I have no idea how Leonhardt quotes such low cost estimates of defensive medicine. The majority of patients who have been negligently harmed are never compensated. We have a system that works poorly for patients and, in my view, adversely affects medical quality. Those who argue for the status quo have transparent reasons for doing so. www. MDWhistleblower.blogspot.com

  17. So according to this guy, me dying of a risky experimental procedure that I agreed to on the grounds that an offer of 10% chance of improved quality of life and 80% of death seemed like a better bet than 40 years of extreme pain is malpractice, but “cutting the wrong leg off” isn’t!?
    They allow this guy out by himself? 😉

  18. So according to this guy, me dying of a risky experimental procedure that I agreed to on the grounds that an offer of 10% chance of improved quality of life and 80% of death seemed like a better bet than 40 years of extreme pain is malpractice, but “cutting the wrong leg off” isn’t!?
    They allow this guy out by himself? 😉

  19. Taco shells are like tortilla chips in colour/texture; this guy looks more like his skin is a soft flour taco, like you’d make a wrap or a tortilla from.

  20. Taco shells are like tortilla chips in colour/texture; this guy looks more like his skin is a soft flour taco, like you’d make a wrap or a tortilla from.

  21. They all look the same to me when wearing giant costumes. This is possibly more important than the discussion about malpractice. If not, it is fascinating.

  22. They all look the same to me when wearing giant costumes. This is possibly more important than the discussion about malpractice. If not, it is fascinating.

  23. Not to be a contrarian, but I had something bad happen to me that resulted in permanent disfigurement, and the health care team got away with it. I had to have surgery and skin grafting, and I later discovered that none of this was even in my medical record. I asked to have my case reviewed, but as far as I know, this was never done. I didn’t sue, and I was stiffed for all the out-of-pocket expenses for the surgery, the dressings, the Silvadene, the whole 9 yards.
    Granted, this was a few years ago and the attitudes and behaviors surrounding medical injury were somewhat different than they are now. But it still really burned my bacon. I think some of you are a little naive about what actually occurs when something goes wrong with a patient’s care.

    I don’t know that I received negligent care, per se. But if the issue was staff training, or team communication, or poor awareness of this type of complication, or a sloppy handoff from one specialist to another, wouldn’t it benefit patient care to analyze what went wrong so it could be prevented from happening to someone else? I mean, isn’t that the whole point?

    This whole topic just cooks my grits.

  24. Not to be a contrarian, but I had something bad happen to me that resulted in permanent disfigurement, and the health care team got away with it. I had to have surgery and skin grafting, and I later discovered that none of this was even in my medical record. I asked to have my case reviewed, but as far as I know, this was never done. I didn’t sue, and I was stiffed for all the out-of-pocket expenses for the surgery, the dressings, the Silvadene, the whole 9 yards.
    Granted, this was a few years ago and the attitudes and behaviors surrounding medical injury were somewhat different than they are now. But it still really burned my bacon. I think some of you are a little naive about what actually occurs when something goes wrong with a patient’s care.

    I don’t know that I received negligent care, per se. But if the issue was staff training, or team communication, or poor awareness of this type of complication, or a sloppy handoff from one specialist to another, wouldn’t it benefit patient care to analyze what went wrong so it could be prevented from happening to someone else? I mean, isn’t that the whole point?

    This whole topic just cooks my grits.

  25. A quick lesson in Legal 101:
    The concept of innocence and guilt applies to criminal court, not to the civil justice system (although I’m sure to the doctor who’s the defendant, it feels like the same thing).

    Civil juries are asked to decide on specific questions, e.g. Did malpractice occur? Is the plaintiff entitled to damages? The standard of proof is based on the preponderance of the evidence. In this sense, the bar is set lower than in criminal court, where the standard is “beyond a reasonable doubt.”

  26. A quick lesson in Legal 101:
    The concept of innocence and guilt applies to criminal court, not to the civil justice system (although I’m sure to the doctor who’s the defendant, it feels like the same thing).

    Civil juries are asked to decide on specific questions, e.g. Did malpractice occur? Is the plaintiff entitled to damages? The standard of proof is based on the preponderance of the evidence. In this sense, the bar is set lower than in criminal court, where the standard is “beyond a reasonable doubt.”

  27. Innocence is still presumed; the burden of proof is just less. The doctor doesn’t have to prove that malpractice WASN’T done, the prosecution has the burden to prove it was.

  28. Innocence is still presumed; the burden of proof is just less. The doctor doesn’t have to prove that malpractice WASN’T done, the prosecution has the burden to prove it was.

  29. You are right here – 100%. The lack of records is egregious and constitutes fraud if the billed for your problem. I don’t side with doctors who harm patients out of bad care or neglect. Some mistakes, although not intentional, are so bad that they deserve recompense. I am not anti-malpractice. I am anti “frivolous” malpractice.

  30. You are right here – 100%. The lack of records is egregious and constitutes fraud if the billed for your problem. I don’t side with doctors who harm patients out of bad care or neglect. Some mistakes, although not intentional, are so bad that they deserve recompense. I am not anti-malpractice. I am anti “frivolous” malpractice.

  31. Michael Kirsch, M.D

    I think we all understand the process. I concede that the ultimate outcome for physicians is acceptable. The defect is that the system serves as a sieve, not as an effective filter as it should. This is where physicians feel that the injustice lies. I try to discuss this fairly at http://www.MDWhistleblower.blogspot.com (Legal Quality category), although some commenters felt otherwise. The wrong physicians are targeted and most negligently injured patients are never discovered. Who would accept any program with this performance?

  32. Michael Kirsch, M.D

    I think we all understand the process. I concede that the ultimate outcome for physicians is acceptable. The defect is that the system serves as a sieve, not as an effective filter as it should. This is where physicians feel that the injustice lies. I try to discuss this fairly at http://www.MDWhistleblower.blogspot.com (Legal Quality category), although some commenters felt otherwise. The wrong physicians are targeted and most negligently injured patients are never discovered. Who would accept any program with this performance?

  33. Rob, this is a good read…The real cost of malpractice is DEFENSIVE MEDICINE. Ordering and MRI as a screening test in the ER for every headache, the full round of esoteric lab work for routine complaints, the ‘gotta have it” lastest bell or whistle of diagnostic testing, when an adequate history and Physical examinaton (you know, god forbid, hands on in your face patient examination) makes the diagnosis 95% of the time.

  34. Rob, this is a good read…The real cost of malpractice is DEFENSIVE MEDICINE. Ordering and MRI as a screening test in the ER for every headache, the full round of esoteric lab work for routine complaints, the ‘gotta have it” lastest bell or whistle of diagnostic testing, when an adequate history and Physical examinaton (you know, god forbid, hands on in your face patient examination) makes the diagnosis 95% of the time.

  35. We should be thinking about a no-fault system like workers’ comp. It makes sense to compensate patients for all bad outcomes at least to some degree, even if it can’t be proved the doc was negligent, but weeding out or punishing “bad doctors” should and could be a separate process, possibly more effective than just making it harder for them to get insured. Licensing boards should do this, not courts. Think what could be done with all the money that goes to attorney fees (for both sides) and court costs. But we should not set up yet another separate insurance system like workers’ comp. In fact workers’ comp health care should be reimbursed like any other injury. It’s unacceptable, for example, to have an injured worker lose health insurance because they can’t work because of their injury. Independent examiners, instead of deciding whether or not a claim is covered, should simply decide who should pay: workers’ comp, health insurance, or, if we had it, the no-fault malpractice system,

  36. We should be thinking about a no-fault system like workers’ comp. It makes sense to compensate patients for all bad outcomes at least to some degree, even if it can’t be proved the doc was negligent, but weeding out or punishing “bad doctors” should and could be a separate process, possibly more effective than just making it harder for them to get insured. Licensing boards should do this, not courts. Think what could be done with all the money that goes to attorney fees (for both sides) and court costs. But we should not set up yet another separate insurance system like workers’ comp. In fact workers’ comp health care should be reimbursed like any other injury. It’s unacceptable, for example, to have an injured worker lose health insurance because they can’t work because of their injury. Independent examiners, instead of deciding whether or not a claim is covered, should simply decide who should pay: workers’ comp, health insurance, or, if we had it, the no-fault malpractice system,

  37. Second shot at this – taco shells and chips are hard corn tortillas, which are naturally a fairly bright yellow from the maise/sweetcorn they’re made from.Wraps, fajitas et al are made from flour tortillas, which are whiteish when raw, and turn pale brown with darker brown patches when cooked.

    Yes, I’m a better cook than I am a doctor, which is fortunate since I do cook, but am not a medic! 😀

  38. Second shot at this – taco shells and chips are hard corn tortillas, which are naturally a fairly bright yellow from the maise/sweetcorn they’re made from.Wraps, fajitas et al are made from flour tortillas, which are whiteish when raw, and turn pale brown with darker brown patches when cooked.

    Yes, I’m a better cook than I am a doctor, which is fortunate since I do cook, but am not a medic! 😀

  39. WHAT?

    This is exactly the problem!When doctors allowed themselves to be thought of as gods, they became personally responsible for outcomes.
    Ouch. Last year my father had a bad outcome. My mother decided not to pay the doctor; not because she could identify any negligence, but because he had been rude to them. It does not make sense to take self-responsibility away from humans.

  40. WHAT?

    This is exactly the problem!When doctors allowed themselves to be thought of as gods, they became personally responsible for outcomes.
    Ouch. Last year my father had a bad outcome. My mother decided not to pay the doctor; not because she could identify any negligence, but because he had been rude to them. It does not make sense to take self-responsibility away from humans.

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