Chris Seper over at Medcity News discusses effort underway in his own backyard to do just that.
Ohio is the latest state to introduce new legislation that would dramatically increase the legal standard to win a civil suit against a doctor working at an emergency department. It also offers the same protection for doctors helping after floods, tornadoes or other disasters.
The bill says physicians would have qualified civil immunity while working in emergency rooms and be subject only to lawsuits if they showed “willful or wanton misconduct” — a high standard for liability usually reserved to determine punitive damages.
The Ohio bill would specifically apply to services being provided under EMTALA regulations. I would interpret that to mean any physician taking care of a patient that was seen or admitted to the hospital through the emergency room would be protected by this higher standard. That includes hospitalists and all other subspecialists that care for hospitalized patients admitted through the emergency room. I can't recommend admission on an ED patient and then sign off. By default, that makes me fall under the same rules as an ED doc.
And how does the lawyer respond?
Emergency room physicians are protected already, as long as they act within the concept of the standard of care, and don’t deserve an exception beyond what other physicians receive, Lansdowne said. “They can be wrong, and as long as they act in accordance with standard of care, they are not liable,” he said.
The only problem I see in today's malpractice environment is the irrational standard of care that has been established, not by science, but rather by the fear of the lawsuit itself. Everyday of my life I see head CTs ordered on patients with drug overdoses because they are acting funny. Should that be the standard of care? Of course not. Is it? Yes. Because just one of those patients may have fallen or bumped their head and experienced a subdural hematoma. In the six years I've been practicing as a hospitalist, most of my patients who have been admitted to my service with altered mental status and a drug overdose have had a CT scan. A normal CT scan. Now, I fear the doctor who doesn't order one on that one patient who has a bleed AND a drug overdose. They're toast. And because they're toast, everyone gets a CT scan. That's the standard. But it shouldn't be. And it's a legally driven mentality that feeds on itself. All us docs know the likelihood of having a drug overdose AND a head bleed as the cause of the altered mental status is minuscule. But none of us are willing to be the doc who doesn't order it just that once and be wrong.
When the standard of care in a community is the wrong standard; when it's based on fear rather than science, everyone loses, except the lawyers. It's time to discard standard of care as the legal basis for malpractice in this country. And find something that isn't bankrupting our country. What's the answer? You tell me.
21 Outbursts:
Blogger ID = credibility obviously.
So are you suggesting that laws be passed based solely on this or that group's perception of a situation, regardless of the reality?
Is that all you can think about in this argument, the basis on which laws should be based?
No, I'm not suggesting that. I'm TELLING you that doctor behavior is based on their perception of the threat to their happiness and livelihood, regardless of the actual risk, assuming you can quantify it. And I think you can't find a financial equivalent for peace or freedom.
until we know what the risk/reward calculation is we can't say that's necessarily a bad thing, can we?
Sigh. IT'S A DAMN BAD THING for people who don't have a brain bleed but are being scanned, anyway, because the doctor doesn't want to miss it. As a patient, I would be perfectly comfortable with the choice not to have the CT scan (assuming I had no reason to suspect a brain bleed myself), and willing to accept the risk of a bad outcome for me instead of the doctor risking his career. Because, you see, I would think that the risk of having the CT scan was the worse risk to take. But I'm not given that option in the current climate. Lawyers won't let doctors offer that kind of risk to patients.
Why do you think that's what juries and courts ARE made up of?
Because they are made up of largely lay people, and you KNOW they don't understand medicine like doctors do. Indeed, you refused to refute my example of the average joe on the street's ignorance of the consequences of an unnecessary CT scan.
The most comprehensive study of the medical malpractice system ever concluded that the system does a pretty good job, according to its authors.
Well there's a red herring. I asserted that juries don't accept the balancing of risks, and you present irrelevant evidence of what a good job they are doing. "Good" by YOUR FREAKING definition of good. I'm saying they AREN'T doing a good job, and the evidence is that people who don't need them are receiving CT scans.
Medical malpractice cases generally take multiple days. Keeping the jury in a frenzy for that long is simply impossible.
Oh, shut up. You can't deny that emotionalism is a huge component of every medical malpractice case.
Yet somehow they manage to find for the defendant 75% of the time?
Yes, the defendant whose livelihood has been set aside while he defends himself, who has undoubtedly had his confidence in his skills shaken, who has surely had many sleepless nights over this, whose patients and family have had to do without him for the weeks he had to devote to preparing for and trying the case. At least he was found not guilty. The rest of that crap I just mentioned, well, there's no charge for that, is there?
Here's rational for you. Pretty much every physician I know who has been in practice for 20+ years has been served with a suit at least once. Some are great docs. Some aren't. Doesn't seem to matter. Being sued doesn't mean you were negligent. It just means that you were sued.
And you think insurance covers legal fees? Good lord.
Then let's let the defendants in every case decide themselves if they're at fault. After all people are just too damn dumb. Or at least too damn dumb to dare to judge those with a medical degree.
"Answer # 1 is typical lawyer speak."
Wouldn't those be questions we'd want to ask about ANY laws?
Actually, I didn't say don't worry about it. I asked was your fear reasonable - was it based on some hard numbers. You make a claim that you will be sued no matter how good or bad a physician you are. Putting aside the fact that how good you are overall doesn't much matter as to whether you're negligent once (a lifetime of good driving doesn't mean that you shouldn't have to pay for damages the one time you do run the stop sign and hit someone), what is the basis for that claim. Where are the hard numbers?
And tens of thousands in legal fees? Won't you be insured?
Again, maybe your fear is rational. But where is that evidence which supplies you the information you need to truly determine what your risk is, and what actions you should take to avoid it?
Don't you think you ought to know that before you act?
We do. A legal malpractice case goes before a jury as well. We even let juries decide matters of life and death. In fact, one of the founding principles of our country is that people ought to have the right to a jury, rather than a star chamber made up of self proclaimed elites dictating decisions from on high. So important it's enshrined in the Declaration of Independence AND the Constitution. But hey, maybe our founders just weren't as smart as physicians.
Yet they're not smart enough to determine if a physician has committed negligence? Only physicians are that smart, although they're apparently not smart enough to base their fears on actual risk analysis?
" And find something that isn't bankrupting our country."
Bankrupting? Really? Don't you think that's a bit dramatic?
Yes, the lay public can fully understand medical decision making as explained to them by two biased sets of physicians and lawyers representing both sides.
I watched Star Trek this week and will be giving an astrophysics lecture next week.
Are there any commenters on this blog that are not Anon??!?! WTF? Get a damn blogger ID for Christsakes.
As for the immunity - I of course would love it to pass but it won't. And if it did, EVERYONE would be admitted through the ER so all MD's that ever see them on that admission get immunity. The insurance companies would veto that in a second since they would have to pay all "emergency" out of network fees to the nonparticipating MD's.
Again, maybe your fear is rational. But where is that evidence which supplies you the information you need to truly determine what your risk is, and what actions you should take to avoid it?
Don't you think you ought to know that before you act?
This really isn't relevant. Perception is everything. Doctors are not trained as lawyers or statisticians. They perceive a threat. Regardless of how great the chance of being sued is, the consequence of such a case is immense. I'm far less likely to be bitten by a snake than a mosquito, but I practice a lot more defensive evasion and avoidance with snakes than mosquitoes. (And maybe that's not smart, given the harm that a mosquito can do, but perception is reality.) I perceive that the consequence package of a snakebite is enormous.
So part of what goes on here is that doctors want to prevent that misery at all costs. There's no real downside for the doctor to practice defensive medicine.
As Dr. Happy points out, no doctor wants to be the one who gets the patient with both a drug overdose and a head bleed. The problem is, the CT scan protects the doctor from that terrible scenario. But what about the patient? Well, the patient who has a head bleed benefits. Everyone else has a negative consequence, because CT scans, even if they are "free" to the patient, are potentially harmful to the patient.
So much of this issue is emotional. That can't be exchanged in any way for dollars. I don't think you can encapsulate a proposal for medical lawsuits into just risk versus dollars, but let's try.
So all of you lawyers out there, if we forget about defensive medicine for just a minute, should doctors practice medicine to benefit the 1-in-a-million head bleed that would go undetected if the standard of care were "no CT scans for clear cases of drug overdose," or should they practice medicine to protect the other 999,999,999 patients who had no brain bleed and have only a negative consequence from the CT scan?
The odds are something other than a million to 1. You tell me, at what point is it right to subject every altered mental status in a drug overdose to a CT scan to catch the head bleed? If the odds are 50 to 1? 5000 to 1? Where do you draw the line?
A statistician would say to draw the line where the risks are equal. When the (accumulated) harm done to this particular patient population is equal for those with head bleeds and those without.
OK, let's accept that answer and say that's the kind of medicine that's right to practice. It won't mount to a hill of beans as long as juries and courts are made up of people who don't understand this argument.
Go out on the street and pose this problem to 1000 non-medical people: "You're in the ER with a drug overdose. The doctor has to decide whether to do a CT scan on you to make sure your altered mental status is not due to a head bleed, even though that's a very remote possibility. If the cost of treatment is the same to you whether or not you get the CT scan, would you want the doctor to order the CT scan?"
How many of them would decline? I'll bet not many.
Until juries and courts and the population in general accept the idea that there are risks to all medical decisions, nothing much will likely change. And trial lawyers don't want the public to understand and accept this. Much of their lawyering has to do with whipping up juries into an emotional frenzy.
Too long a reply, but I don't have the assets to shorten it.
I didn't say to base policy on anecdotal evidence. I'm suggesting anecdotal evidence contradicts what you're saying here. PERHAPS your view of reality might not be correct. Shocking huh?
And I'm 100% certain that legal fees are not always covered by insurance. Feel free to believe otherwise. You don't seem to be living in reality anyway.
Wow, great rebuttal.
We should let the lay public decide if lawyers are doing their job well too. Fair enough?
Answer # 1 is typical lawyer speak. It's VERY easy to speak from a position of relative immunity about how safe others should feel. There are few jobs in the world where your actions are so highly scrutinized that doing the right thing and having a bad result can still lead to you doling out tens of thousands of dollars in legal defense fees. And that's excluding missed work and the psychological aspects of being sued.
Is it rational to fear lawsuits? Of course it is. The majority of us practicing for 20-30 years will be sued at least once no matter how good (or bad) a physician we are. For somebody outside of the field to tell us not to worry about it is disingenuous at best.
"Wow, great rebuttal."
I don't think it was meant as a rebuttal. It appears to be a summation of your position.
Again, that's great as anecdotal evidence, but do you really want us making policy anecdotally? If I could come up with 50 tales of malpractice, would you suggest that we base policy on that? Or 50 tales of physicians committing fraud - should we make wholesale changes and impose new and more onerous requirements on all physicians to prevent it based on that anecdotal evidence? I think not.
Yes, insurance covers legal fees, which is to be expected because the insurer who is paying out is going to want to have a say in who the lawyer is.
"Is that all you can think about in this argument, the basis on which laws should be based?"
No, we can have a broader discussion, but it tends to get off track. We are discussing this proposed Ohio statute. So I think it's necessary to ask if we need it, and if you believe so, why and what you hope to achieve. Again, that discussion should be part of any law, don't you think?
If you believe that we should base laws on the fears of this or that aggrieved group, regardless of the legitimacy of that fear, that's fine.
"But I'm not given that option in the current climate. Lawyers won't let doctors offer that kind of risk to patients."
Lawyers don't set the standard of care - physicians do. If you don't think it's warranted, get together and publish a standard in that instance. It's that simple. As for the "current climate", since you have no idea what the number of med mal suits are, how can you compare this climate to any other?
" Indeed, you refused to refute my example of the average joe on the street's ignorance of the consequences of an unnecessary CT scan."
Nor can I, if you ask him today. But I do not believe that people cannot learn that over the course of a trial. If two people have a dispute over what caused a car wreck, I think you're certainly intelligent enough to listen to the accident reconstructionists and the witnesses and reach a fair conclusion. Despite the fact you have no formal training in accident reconstruction.
" I'm saying they AREN'T doing a good job, and the evidence is that people who don't need them are receiving CT scans."
The only thing that proves is that physicians are taking that action. It does not prove the action is warranted anywhere but in their minds. There are all kinds of groups who believe this or that and act in response. Their perception does not necessarily equal fact. Is the system perfect? Of course not - I know of no human system that is.
"You can't deny that emotionalism is a huge component of every medical malpractice case."
I know of no human endeavor that emotion isn't a part of. Although don't we pretty much always have an injured victim in a med mal case? If this is such a "huge" component, why isn't it reflected in the results. Again, you seem to be confusing your perception with objective fact.
"The rest of that crap I just mentioned, well, there's no charge for that, is there?"
Any system that reviews one's work would have those elements. Do physicians not put their jobs on hold, lose sleep, etc. when they go before medical review boards as a result of their mistakes? Should we outlaw those as well? If you get run over by a car today crossing in the crosswalk, and the driver says you went against the light, are you not entitled to a trial because it will be inconvenient for the other guy? That seems a pretty weak justification for change.
"This really isn't relevant. Perception is everything. Doctors are not trained as lawyers or statisticians."
So are you suggesting that laws be passed based solely on this or that group's perception of a situation, regardless of the reality?
"Everyone else has a negative consequence, because CT scans, even if they are "free" to the patient, are potentially harmful to the patient."
True, but again, until we know what the risk/reward calculation is we can't say that's necessarily a bad thing, can we?
"It won't mount to a hill of beans as long as juries and courts are made up of people who don't understand this argument."
Why do you think that's what juries and courts ARE made up of? The most comprehensive study of the medical malpractice system ever concluded that the system does a pretty good job, according to its authors. It has flaws, namely its cost - but the Ohio proposal doesn't address that. Nor do most tort reform proposals.
What's more, juries seem to find for the physician the vast majority of the time, which from a physician perspective would seem to show that the system IS working in terms of discerning liability.
"Much of their lawyering has to do with whipping up juries into an emotional frenzy."
This is the kind of statement that is clearly based on little knowledge of trying cases. Medical malpractice cases generally take multiple days. Keeping the jury in a frenzy for that long is simply impossible. And it also assumes a jury consists of a bunch of empty headed sob sisters waiting to be led around by a plaintiff's lawyer while the defense twiddles its thumbs. Yet somehow they manage to find for the defendant 75% of the time?
This is worth than anecdotal evidence, it's policy based on guesswork.
"The only problem I see in today's malpractice environment is the irrational standard of care that has been established, not by science, but rather by the fear of the lawsuit itself."
You skipped one question. Is that fear of the lawsuit rational? What are the actual odds of being sued?
Physicians say they are sued way too much, and they claim to base their actions on this fear, and say we should have this or that reform. Well, don't you think we should be able to answer the following before we start changing policy?
1. How many medical malpractice lawsuits are there each year?
2. Given the number of physicians and the number of patient interactions, how many would we expect there to be?
3. Before we support this or that reform, what do we expect the result to be, and will we repeal the "reform" if the result is not achieved?
If you're going to argue the system is in need of repair, don't you think you should define the ideal first? And not just use this or that anecdote?
Take this proposed legislation. Is there evidence that the standard of care being used in Ohio malpractice litigation in cases involving emergency physicians incorrect? Or in cases when physicians are being sued as a result of their actions after a natural disaster? If not, it would seem that this is a solution in search of a problem. If so, what do we believe the intended result of this legislation is and how will we measure success?
The one obvious beneficiary of this legislation are the insurers of ER physicians. That much is clear. But what about the rest of us - the physicians, the patients, the taxpayers? What do we specifically get from this?
Again, you're not reading what I said. I am open to the possibility that this law IS needed. I was hoping you would be able to provide some statistics which might tell us.
If we're talking about legal fees in a med mal case, or any professional negligence, or even a car wreck case, about the only cost you would incur for legal fees would be your deductible, and I'm not even sure it counts there. You might want to read your policy before you make that claim too much.
Back to the original question and answer. What evidence is there that we NEED this law, and what are the expected outcomes?
Post a Comment
By Posting Here I Promise To Do Something Nice For Someone Today