Malpractice
[T]he average physician spends almost 11 percent of his or her career with an open and unresolved medical malpractice claim. A major contributor is the length of the process of adjudicating such claims: The typical medical malpractice claim isn’t filed until almost two years after the incident occurred, and it isn’t resolved until 43 months post incident. When dealing with open claims, physicians spend up to 70 percent of that time with claims that never result in a payment.
Source: Health Affairs blog.
The corollary to this is that, depending on who you talk to, there are between 48,000 and 100,000 deaths per year that are attributable to medical error. There is an estimated maximum number of 1,000,000 additional injuries per year. If you are a doctor and practice for thirty years, then on average, it is highly likely you will be responsible for the death of one person and contribute to the additional injury of ten people.
Yet another reason why tort reform is necessary. The gravity of cases our system has to deal with is overwhelming especially when many of the cases are junk, eventually being thrown out at the expense of the doctors who must respond. We need to develop more streamlined channels of addressing malpractice lawsuits. A person should not sit around for three years to receive money they probably desperately need.
The tort reform makes sense to try and deal with claims in a more timely manner. However, it seems the more regulations are made the messier things get. So I’m not entirely sure how this could turn out to be an effective solution.
“average physician spends almost 11 percent of his or her career with an open and unresolved medical malpractice claim”
– This is one obstacle that keeps the brightest students from becoming doctors.
@Evan Carr, Your last sentence, “A person should not sit around for three years to receive money they probably desperately need” was a neat rhetorical turn. Tort reform, in the states where it is enacted, has very little to with helping “people get money they desperately need”. Legislatively, “tort reform”, has been about capping awards, shortening the statute of limitations, and generally limiting the ability of plaintiffs to file a suit in the first place. Contrary to the claims of the insurance industry(where I work) and the US Chamber of Commerce, filing a successful lawsuit which results in a net recovery is not as simple as it sounds and most people who sue their doctors really are injured, thus most cases are not “junk”.
This seems to be one of these issues that will not be assuaged without a drastic change in how the system works. I, however, don’t have an idea of how things will change, and if they’ll change for the better.
I am blessed having practiced medicine for > 30 years & have never been sued by a patient & have never been responsible for a single death or injury to any of my patients.
I’m not alone. There are many doctors who choose to be extremely hypervigilant in everything we do, every day, without exception. . . because we knew from day 1 that medicine is always a high risk sport. There simply is no room for error.
The “system” is not responsible for the choices we as physicians make to do right by our patients – every patient. No US doctor is forced to participate in any “system.” No doctor is forced to waste precious resources claiming “defensive medicine.” No US doctor is forced to treat every patient.
One of the reasons we chose to go into medicine, which requires a minimum of 7 years after college, is because we write the orders – not follow the orders.
Indeed, these issues that will not be assuaged without a drastic change in how some doctors choose to practice medicine – and these docs are not the best and the brightest.
Unfortunately, many Americans have no choice of who their doctor is. Patient choice and transparency are basic rights needed to safeguard the real practice of medicine with real physicians.
Dorothy Calabrese, M.D.
Allergy & Immunology San Clemente, CA
+1 Dorothy
@Dorothy “One of the reasons we chose to go into medicine… is because we write the orders – not follow the orders.” – Nice.
In spite of all the grumbling by providers, it is fortunate, for them, that the insurance carriers, for the most part, blindly pay the fees for their orders, and that providers don’t have to negotiate with each patient individually. If the carriers were not the primary payer, if most patients paid cash and providers had to work with patients to provide therapies which fit their ability to pay, then your view of who gives the orders and who follows might be different.
Hi Jardinero1 – good viewpoint to liven up the natural flow of the Goodman blog debate!
PHYSICIANS ALWAYS MAKE THE ORDERS
Physicians by oath and by the authority granted them by their state licensing boards write the orders – completely blind to any other factors except the best interests of their patient.
WHAT IS A LIMITING FACTOR FOR PHYSICIAN ORDERS?
Yes, LIMITING factors exist that I cannot control. Yet, my orders, have never waivered. You do what is best for the patient. . . period. . . or hang up the stethoscope. I have helicoptered out with teams to rural areas where incredibly the local US “hospital” didn’t even have a WARM cotton blanket to swaddle a severely premature baby who faced impossible odds. They made the phone call to the perinatal center for a neonatal transport because at that time the “deaths” counted against the receiving hospital – once we picked up the baby – so the best hospitals and doctors also earned the worst perinatal statistics. There are times you are powerless to do the right thing so you make do. And there were the runs from the hospital ER with the EMTs to the scene of a major accident. . . and you start by pronouncing the deaths and wait for a lone survivor clinging to life – you don’t even have access to deliver oxygen or an IV until the “jaws of life” cuts the patient out of an otherwise inextricable steel tangle. In those times of “physician blindness’ – we must frustratingly remember: “they also serve who only stand and wait.”
WHAT IS NOT A LIMITING FACTOR FOR PHYSICIAN ORDERS?
(1)Insurance coverage.
(2)Patient money for medical care.
You tell the patient what to do that is in their best interest to the best of your ability. You tell them the cost. The patient decides whether to follow your orders. The power is with the patient – whether they can or whether they even want to follow your orders (unless they are a minor and a judge must decide). I do not “water down” physician orders to suit the situation. It demeans the poor that they are not even told what is in their best interests because a physician arrogantly decides for them – as if we are gods. It is criminal to write excessive orders because an affluent patient with premium insurance is an “easy mark” for a physician with no ethics. There will always be a physician god like Conrad Murray MD. It just doesn’t have to be me.
When I read John Goodman’s “Priceless” I finally found a path to participate in the reality-based health care policy dialogue in a meaningful way because it is going on here today in this blog – and needs to be expanded to more and more participants. I need to learn all points of view – particularly those of Jardinero1’s – views that physicians are insulated from in the course of day-to-day medical practice dealing with patients. This blog gives me a welcome opportunity to also challenge others’ views to further refine my thinking and then as a result the larger action I must take as a physician and patient advocate.
I strongly believe that as a physician if you don’t write the best orders and take full responsibility for what all that entails – hang up your stethoscope!
Dorothy Calabrese, M.D.
Allergy & Immunology San Clemente, CA
Dr Calabrese,
I agree with you that ability to pay shouldn’t be a limiting factor on orders but it does have an impact on orders. It just happens to be the case that the majority of doctors, in the USA, giving orders are also reimbursed by insurance and the ability to pay is rarely a factor, most of the time. But what if the majority of patients don’t have insurance? What if the majority of patients pay cash and say they can’t afford the diagnostic methods or treatment regimen you order? Unless, you are able to give away your services, all the time, then the orders are going to change to something the patient can afford.
Two of my kids have severe allergies and I happily follow the allergist’s orders and the carrier dutifully pays the bill. The carrier has paid thousands and thousands over the last year to treat my kids. I am happy with the outcome, and I don’t care what it costs since I am only responsible for the deductible. The same is likely true for ninety-nine percent of the other patients in the clinic. I wonder how the diagnosis and treatment would be different if we all had to pay cash. Would my son’s doctor have ordered the MRI of his head? Would the treatment regime of twice weekly shots have been different? I can’t predict how it would be different but it would have to be different because I would have struggled mightily to pay for it.
Great point: “the orders are going to change to something the patient can afford”
Doctors orders can never change because they are not predicated on anything except the medical condition of the patient. Otherwise you open the malpractice door wide and invite the trial lawyers in >> the post topic.
Any good trial lawyer will skewer you if you deprecated appropriate medical orders that are the standard of care for every other patient. Mistakes are not when you follow the standard of care. Malpractice judgments are based on errors when things go terribly wrong because the physician didn’t follow the standard of care. Physicians cannot make excuses for not following the standard of care because the standard of care allows for every possible scenario including moving on to very specialized care when the patient is an outlier. I only treat outliers. Who am I if I don’t explain to these patients that they are simply outliers, why that is the case, and how the next level in the standard of care is what they need? There is no choice to simply repeat what all the other doctors have done for completeness. When you write the patient orders you must include in your udgment all the previous orders and why they did or did not work.
A physician tells the patient what they need to do that is medically necessary. Nothing more. . .nothing less. From that point there are many journeys a patient may choose from . . .a discussion for another day and another post.
Doctor orders can never be predicated on anything but what is in the best interests of the patient irrespective of what is possible. . .because what is possible is not part of your job. That is why you don’t get sued. That is why if you have the unfortunate experience of having to go before a jury – a jury will acquit you – because you wrote the correct orders and that is your job. Propofol was an “exclusive” insomnia treatment for Michael Jackson outside of the medical standard of care. Conrad Murray MD wrote the orders and now is sitting in jail for 4 years. At Columbia NY Presbyterian, we were carefully trained that it didn’t matter if the patient was President Clinton or the guy with a park bench for an address. The doctor orders were the same for the same patients.
Deprecation of the orders happens after the best possible physician orders are decided. That is then the responsibility of everyone on the inpatient team. As a physician, you are NOT responsible if your outpatient orders are not followed unless the patient is a minor and you are obligated to get a court order.
From that point forward, for example:
(a) the pharmacist may match a medication order to something analogous but cheaper that is in the Medicaid pharmacopeia
(b) the social worker may need to transfer the patient to a hospital where their insurance is accepted for ECT if that is what the patient needs
(c) the patient may decide to live with chronic illness untreated until their access to the care they need becomes available
(d) the parents may seek a second opinion to check out their choices
(e) parents may legitimately choose to let their terminally ill child die earlier rather than later
etc etc etc etc
There are many scenarios. The take-home point is that as a physician if you do not want a malpractice judgment against you, you don’t deprecate your well-considered medical orders. Get the right diagnosis, then write the orders or refer the patient. . . but never write different orders for patients with the same medical needs based on how you feel or perceive their socioeconomic status etc. That is not the physician’s job.
Dorothy Calabrese, M.D.
Allergy & Immunology San Clemente, CA
Dr Calabrese,
I think we are now talking past one another. I am making a different point than the one you are trying to counter.
Standards of care are the artifact of the time, culture and society in which they exist. They are not absolute and fixed. They are relative and transitory. The proper standard of care, in the USA, is the result of a time and environment in which cost is not a factor for consideration by either patient or caregiver.
My son’s doctor ordered an MRI because the insurance would pay for it. She had an MRI machine because the insurance carriers reimburse at a rate to make it a worthwhile investment for her. If the reimbursements weren’t available, there would neither have been a MRI machine in the office nor an order to use it. Some other diagnostic method would have been ordered instead.
Hi Jardinero1
You write: “Standards of care are the artifact of the time, culture and society in which they exist. They are not absolute and fixed.”
Actually, these are NEVER variables for physicians in private practice. The Medical Board of California licenses our docs to deliver the approved standard of care for the point in time in California when that the care is delivered.
You have made an excellent point that your choice of physician for your child ordered an MRI at a particular point in time. I cannot speak to why she ordered the MRI. Was her decision was predicated on insurance reimbursement criteria and/or availability of the MRI? Is that what she said to you? If so, there was either something fundamentally wrong in her basic medical training or she has lost her compass and needs the needle remagnetized. If you are saying that this particular doctor wrote orders based on other factors- I am saying in no uncertain terms, that is a GRIEVOUS MISTAKE. When you do this enough times with very sick patients, you leave the barn door wide open for malpractice attorneys if there is resultant irreparable injury or loss of life.
My single point regarding MALPRACTICE is that every patient you workup as a physician MUST get orders that are:
(1)the same orders as every other patient you see who is similarly situated based on medical criteria alone
(2) orders that are consistent with the current standard of care of your medical board – irrespective of whether the patient lies in the usual spectrum of illness or is an outlier
(3) orders you would want written for yourself or a loved one
(4) orders that the patient or healthcare professionals other than you can deprecate AFTER you write them for whatever reasons they wish [unless this is a minor child or the patient is a danger to themselves or others and you are required to follow up that your orders are followed by going to a judge]
If you write your orders based on what you anticipate the “groupthink” will be or what resources you believe are available are available or any other criteria than the medical necessity of the orders, you’re jumping on the “Orient Express” of collective guilt by association. . . and you are not being fair to your patients nor representing their trust in you very well.
Years ago, I had one of the most powerful woman malpractice attorneys in the state come after me for a deposition (and all the other doctors the patient had seen for 10 years]. She was going for my jugular based on everything she knew about her client from all the other depositions she had conducted. The attorney was pretty energized over her strategy and all the proof she had accumulated to show a jury that “we” as her consulting physicians were all “idiots” who had completely missed the patient’s diagnosis – causing her client totally unnecessary loss of quality of life for 10 years!
The hot shot attorney had more than a year of her time invested in the contingency case. She almost went into cardiac arrest when I told her on the phone prior to the deposition I had written a single order and what that order was. I had referred that patient to a national center that specialized in treating toxicology patients. I didn’t give a @#$%^&* if the patient’s insurance paid for the travel, workup, toxicology tests, etc. I am not a social worker, an insurance broker, or a family member who needs to step up to the plate and write a check. If the patient was indigent, Medicaid covers toxicology work-ups. It was my professional opinion that the patient was NOT an allergy-immunology patient and she needed a top toxicologist. I just write the same orders every day on every patient based on the 4 points articulated above.
It turned out the patient who was suing all her doctors for the big bucks $$$$ had regularly taken a brand of tryptophan tablets in 1989-90, which the CDC later confirmed was linked to the outbreak of eosinophilia-myalgia syndrome (EMS) At that time EMS was found caused by a defective manufacturing process which introduced the offending contaminant. I am not a toxicologist. My order was simple: see this toxicologist I am recommending [best in the world] or another toxicologist of your choice.
Immediately my deposition was shut down, the subpoena for records was cancelled and this top attorney simply hoped none of the other doctor defendants’ attorneys ever found this out. When the patient was definitely referred to the right specialist and simply didn’t choose to follow my orders. . . the burden for the unnecessary suffering shifted back to the non-compliant patient.
If doctors want to avoid malpractice suits – the first and best defense is writing the correct orders. It’s not bullet-proof. . .just a good start.
Dorothy Calabrese M.D.
Allergy & Immunology San Clemente, CA
My god, 43 months. Seriously talking about dragging things out to the point where no one can actually remember the event.