Perfect Medicine?
Posted by WhiteCoat on October 29, 2007
This new post is a continuation of several people’s comments on the Defensive Medicine #2 post from yesterday.
According to several comments, many people seem to think that physicians are getting off easy for all the errors that they commit.
It seems like people are criticizing physicians for any errors that result in a harm to a patient. Is it the consensus that no physician should ever make a mistake? In other words, are doctors required to practice “perfect” medicine?
And if your answer to the above questions is “yes,” how can you define “perfect medicine” in the face of inconclusive or conflicting medical studies on so many topics?
October 29, 2007 at 10:42 am
I don’t expect physicians to be perfect. I don’t expect medicine to be perfect.
What I do expect is that when something goes wrong, there is an honest, empathetic discussion about it. If further medical care is needed, the least you could do is reduce or waive the bill.
There is a long history of erecting a wall of silence after a patient is harmed by error - and then blaming patients for resorting to the legal system to obtain information that should have been given to them in the first place.
It’s too bad that the cases you have chosen to cite are among the more egregious examples of a system run amok. For once I would like to see some substantive discussion on the issue instead of physician-driven sensationalism.
I’ve been an injured patient so I see this issue from a different perspective. I never thought in a bazillion years this would happen to me - no one ever does. I was stunned at the silence, at the way no one even wanted to look me in the eye. I felt dirty - not only because of what happened and how I was being treated, but because I was naive enough to think they would actually discuss it with me and say they were sorry.
Before you ask - yes, there was some permanent damage; no, I didn’t sue; and yes, this incident was serious and unusual enough that someone should have been asking a lot of questions about what happened. I’m not aware that they ever reviewed my case, even though I asked them to.
Most of us stay silent about these things. It’s traumatic to talk about them (I won’t even discuss it with my current doctor) and for the most part we are simply trying to get on with our lives.
But you need to hear some of these stories, otherwise your discussion is little more than one-sided rhetoric.
October 29, 2007 at 11:32 am
And while the cases are sensational, they are still what are “case law” for all future medical injury awards. If a case ever gets to trial, these are the “standards” for which juries get to hear, cases for which plaintiff attorneys cite in their arguments, and judges therefore must consider in their decisions.
Granted, an apology directly from the doctor is much better, and in some cases averts a lawsuit. However, it can and has been used to “hang” a doctor as admission of liability and therefore loses the ability to defend a case, at least per the defense lawyers.
In instances where I have simply lost patients from my practice because they were upset with something, not necessarily malpractice, I have tried to apologize. They obviously were not accepted.
So the science of apology still needs refining both in the giving as well as the receiving.
October 29, 2007 at 12:55 pm
An error in and of itself can not make a patient rich; the error must demonstrate negligence or non-adherence to a standard of care for that practitioner with their training and expertise (eg. an ER physician isn’t expected to know as much about cancer care as an oncologist) and the error must result in actual cause-and-effect-type harm which could have been prevented with adherence to the standard of care. The standard of care takes into account patient age, risk factors, etc. Many different people can have the same basic complaint and the standard of care would be different for all of them.
It’s actually a pretty hard legal standard to meet to recover in these cases, as long as the jury follows directions. The John Edwards CP cases didn’t necessarily clearly show cause-and-effect between the physician’s actions and the patient outcomes, although he tried to make them show cause and effect with his “channeling of the baby” bit. It would be hard to prove that the baby would have been perfect or not had CP had he not been delivered by C-Section 2 hours earlier.
October 29, 2007 at 2:44 pm
Damn I think this comes all comes from the sense of entitlement.
Imho the reason people in many first world country feel like that is because they live in time of plenty, they do not have work hard for the basic necessities ,enjoy life of luxury even when they do nothing productive and if the individual is lazy and worthless those things only exaggerate his flaws.
Well breaking news - you are not entitled for good health ,food and shelter. If you fail to get any of these - tough luck. If doctor treats you wrong - ohh well- choose your doctor better next time. Medicine should be provided on contract basis -patient consents medical staff is exempt from any kind of liability and voila - problem solved.
October 29, 2007 at 3:39 pm
There doesn’t even have to be a medical error to make a patient (or her lawyer) rich. Just a judgment call with a bad outcome. Is it malpractice when a patient with “indigestion” suffers a cardiac arrest and subsequently dies in the waiting room of an ER? What if the ER was REALLY busy? What if the patient was only waiting 30 minutes? An hour? Two hours? When does it become “malpractice?”
Is it malpractice if an obese patient with leg swelling dies of a PE while waiting in the ER lobby for a doppler? What if the doppler was negative, but the posterior tibial vein was incompletely visualized due to the obesity? How soon must a doppler be done, and how far must we pursue an essentially negative but slightly incomplete study?
We get harangued by the antibiotic nazis for overprescribing antibiotics to kids with viral illnesses, but there is no test to exclude a bacterial illness in the ER. What if the kid goes home and ends up brain-damaged from sepsis because Mom was a bit too dense to notice the kid was getting worse? Guess whose fault that would be?
October 29, 2007 at 4:26 pm
Guess whose fault that would be?
There is more than either/or liability, remember. In the case of the antibiotics, the physician would cite guidelines about when to prescribe antibiotics in children, saying he didn’t meet the guidelines and it was his clinical judgment that the child likely didn’t have a bacterial infection, but he told the mother to follow up with his pediatrician or at the ER if worse/not getting better as a precaution.
If there was a judgment in this case, there would probably be some sort of distributed liability here where the mother was 95% liable and the physician was 2.5% liable because he failed to do a strep test or a white count (for example), the hospital was 2.5% liable because the RSTs took 2 1/2 hours to complete on average, making them impractical to do in the ER.
October 29, 2007 at 5:33 pm
Your confidence in the ability and judgment of lay juries is as cute and innocent as a little baby kitten.
The hairsprayed Edwardsian plaintiff’s attorney would have to channel the little tyke, since he is now too brain-damaged to speak for himself. “When Mom brought me in to the ER that night, I was asking for help. Not only did I not get antibiotics, but no cough syrup either. This overconfident, negligent doctor didn’t do anything for me at all.”
His “expert” would state that a CBC and blood culture was the standard of care in all kids with fevers, and that IV antibiotics should have been given within 30 minutes of presentation to the ER. He still had a fever of 101 when he was discharged. An oxygen saturation was only done on arrival, not on discharge, and it was “only” 96%. And why wasn’t an X-ray taken? The kid had pneumonia when Mom brought him in 5 days later, surely it would have shown something on the first visit.
If only, if only, if only……
Then the gorked wheelchair-bound tracheostomized kid gets paraded in front of the crying jury, and it’s all over. Or more likely, the case is settled long before that can happen.
October 29, 2007 at 7:59 pm
As I was reading the NYT online, I came across an article that was perfect on your entry. It’s sort of written in the patient perspective about medical errors. Here’s the link in case you want to read it yourself:
http://well.blogs.nytimes.com/2007/10/26/the-emotional-toll-of-medical-mistakes/
October 30, 2007 at 6:30 am
What jerks me around is the amount of money paid in proportion to actual loss. If I were to harm a patient, that is worth something. How much?? Not millions…. What about a death??? Doesn’t the guy have insurance to cover his needs??? If I knock off a breadwinner, it is unlikely that his wife is going to sleep in the fireplace wrapped in burlap, covered with ashes. More likely, she will get on with her life, care for their children and remarry. Don’t mean to be unpleasant. Many of us have been divorced. Is that easier or worse than that type of loss/???
October 30, 2007 at 8:44 am
“And while the cases are sensational, they are still what are “case law” for all future medical injury awards. If a case ever gets to trial, these are the “standards” for which juries get to hear, cases for which plaintiff attorneys cite in their arguments, and judges therefore must consider in their decisions.”
Wrong. Case law is made on appeal. These are only relied on, by plaintiff and defense attorneys, once they’re reported on appeal.
“When does it become “malpractice?””
When the care falls below the standard set by physicians. If you want bright line standards, put them out there. Nothing is stopping physicians from doing that.
“Your confidence in the ability and judgment of lay juries is as cute and innocent as a little baby kitten.”
Considering they side with the doctor the vast majority of the time, what exactly is your complaint? And given the obvious bias of physicians, do we really want the fox guarding the henhouse? Why don’t we just let insurance adjusters hear all cases?
“What jerks me around is the amount of money paid in proportion to actual loss”
How much is typically paid over and above the medical expenses and economic damages?
October 30, 2007 at 9:02 am
Matt,
When lawyers complained that doctors aren’t policing their own, professional medical organizations began reviewing and sanctioning physicians who testified about unrealistic standards in court.
The response from the lawyers? Now the professional organizations are “witness tampering.”
http://goliath.ecnext.com/coms2/summary_0199-1876601_ITM
We can’t win.
October 30, 2007 at 9:21 am
Professional organizations such as you’re referring to, like ATLA (or whatever they call themselves now) for lawyers, are just lobbying organizations with no ability to pull licenses and actually stop them from practicing.
The reason they refer to them as “witness tampering” is because the only people who ever get sanctioned are those docs who dare admit that another physician screwed up. Surely you don’t believe that the only experts who have testified to incorrect standards are the plaintiff’s?
October 30, 2007 at 11:36 am
And what happens when a professional organization officially sanctions a physician? NPBD report. No hospital privileges. No malpractice insurance. Learn about what you comment upon before you make the comments.
If there was a NPDB for attorneys, there would be one heck of a lot of attorneys out of work. Haven’t really gotten to attorney accountability yet, though.
October 30, 2007 at 11:52 am
We’re not clamoring for liability protection on behalf of our insurers, so there is not a need for a national databank to determine if our claims are true. But if you want to find out about it, just call the state bar. They have records of all sanctions.
Are you saying one NPDB report prevents you from getting insurance or hospital privileges anywhere? A single report?
October 31, 2007 at 6:39 pm
Matt,
As a member of a hospital Credentials Committee, yes a NPDB report can make it hell for a physician to get privileges at my hospital. Even if the case was from years ago, when a doctor made an error when first in practice, he or she must come before my committee and re-live the whole case all over again.
We on the committee must then go back and try to verify that his side of the story is true or if the case was serious enough to make us suspicious that this doctor was capable of practicing medicine safely in our hospital.
With negligent credentialing lawsuits now a reality; if the hospital were to let this doctor practice at our hospital knowing that they had this mark on their record AND THEN harm came to a patient at our hospital, the hospital and the medical staff can be held liable. That is over and above what the patient will sue and receive in the malpractice case.
Matt, if you ever get involved in litigation regarding your line of work, you will forever be cynical of the legal system. To then have that litigation follow you where ever you go, even if you just settled the case rather than fight it to the expensive and bitter end, will then only BEGIN to make you understand the anxiety these doctors feel.
November 1, 2007 at 6:16 am
I have been sued, for far more than my net worth and on things not covered by insurance, and yes, litigation sucks. So don’t tell me what I may BEGIN to understand. It’s always much better to try and settle things amicably. Unfortunately, that’s not always possible, and so far, no one has come up with a better system for resolving disputes.
What do you suggest?
And by the way, on the “negligent credentialing”, the patient would only be entitled to the same damages they would get in a med mal case, absent punitives, which if you check it out as you describe, are unlikely.
November 4, 2007 at 4:09 pm
Hey, Matt -
How much of the $100 bilion costs of defensive medicine can we count on you paying? Put your money where your mouth is.