“Never go to a doctor whose office plants have died.” —Erma Bombeck
At 80 he was grey, trim, and smiled a lot. His heart had been damaged by a prior heart attack, but it still pumped well enough to get him through his daily 9 holes of golf.
His abdominal aorta, the main blood conduit in his abdomen, was bulging, had an aneurysm that was visible on X ray because a rim of calcium that had formed on the inner wall of the large artery. When it reached a size where the risk of rupture and sudden death outweighed the hazard of an operation I sent him to a surgeon. The operation went well and 6 weeks post op he was again golfing; his only complaint was abdominal pain that was tolerable but strange. I ordered an x ray. Later that day the radiologist called. The surgeon had left a sponge in the abdomen. Surgical sponges are marked with radio opaque threads and are easy to spot on x-ray.
Replacing an aorta is bloody business. A portion of the large vessel has to be closed off at both ends before the replacement graft is sewn or stapled in. When it’s cut blood leaks into the abdomen and the surgical team suctions some from the cavity and blots the rest with cotton diaper like “sponges”. The outside of the intestines and organs are covered with a red film and it gets hard to tell a rag from normal tissue. When the sponges are thoroughly soaked, they are removed and stacked in a corner of the room. Before the operation starts the sponges are counted and before the abdomen is sewn shut they are counted again. If a sponge is missing the abdomen is scoured until the fabric is found. In this man’s case someone obviously counted wrong.
Large foreign materials left in the abdomen don’t always cause problems, but they can get infected and their presence is a clear sign that a mistake was made another operation is indicated. The Latin term res ipsa loquitur, the thing speaks for itself, indicates a situation where lawyers don’t need a witness to prove malpractice. The evidence of “wrong doing” is obvious and irrefutable.
I called the patient and told him about the x ray findings. When he met with the surgeon my colleague was contrite and offered to perform another operation.
First thing doctors are taught in malpractice lectures. If there’s a mistake admit it as soon as you know something went wrong. Accept the blame. Treat the injured party as you would like to be treated. Most mistakes don’t lead to a law suit. Legal action becomes more likely when the harm is great and prolonged or when the patient or family is upset with the care they received and/or the attitude of the medical staff.
My patient wasn’t angry or vengeful, and he didn’t want to risk a second operation. He filed a law suit and asked for $50,000. Our insurance people reviewed the file, admitted guilt, and offered $10,000. They may have been low balling him, but it didn’t work.
Months passed, neither side was giving in, and an expensive trial seemed imminent. Then one day my patient had a heart attack on the golf course and died. His family was not compensated.
During the last 50 years the price of medical care has grown and “medical liability costs (excluding malpractice insurance premiums) are thought to be the source of 2.4 percent of the money we spend.11 Medical providers have grown in their ability to improve the quantity and quality of the average person’s life, and physicians and patients are taking more risks.
Unfortunately at times doctors and nurses seem to have poor people skills. We doctors may be good students, technically proficient, and methodical. But too often we are running late. Our schedules are too tight; we seem to be impatient; and –in the age of computerization– we spend too much of the visit looking at a screen. .
Errors happen. The wrong medicine. The wrong dose. Bed sores. A preventable fall that leads to an injury. A sponge left in an abdomen. A cancer that should have been discovered early. Harm at the time of birth that has lifelong consequences.
The majority of physicians in a quoted survey said that when something goes wrong they provide “only a limited or no apology; limited or no explanation; and limited or no information about the cause.” The article’s author, a physician who specializes in malpractice, thinks that too often the problem is caused by a physician’s need to protect his or her ego and a system that allows doctors to blame shift.1
Prior to 1970 medical malpractice suits were rare. That year an estimated 12,000 claims were filed but a third were quickly dropped. Many who had a legitimate case did not sue; of those who did, four of five cases ended in favor of defendant. Many of the awards didn’t cover the victim’s litigation cost.13
As the 20th century wore on the legal rules of the road changed in one state after another. Lawyers were increasingly allowed to file claims based on errors that were so obvious that –res ipsa loquitur – the blunder “spoke for itself.” Claims could be based on the absence of adequate informed consent. Charitable and nonprofit hospitals had for decades had been shielded from litigation—in the belief that “paying money to the victims could damage the facility’s ability to treat patients.” In one state after another, they now became responsible for errors that were their fault. (Massachusetts limited their financial vulnerability to $20,000.7) Jury awards started fluctuating wildly. At one point injured parties in “California and Nebraska” on average received awards that were 20 times higher than they were in “low-activity states, such as Maine8..
The majority of the injured don’t sue. In one analysis “Approximately 70 percent of claims were closed with no payment. Defendants won the majority of cases that went to trial.” People who litigate tend to have more severe injuries and there has been an increase in the number of million dollar plus awards. (In New York in 1984 one percent (20,000) of the people who had been hospitalized suffered an in- hospital “negligent adverse event” and 7000 died, but only 3500 of the injured filed a law suit.11)
During the last half century there were three periods of time when malpractice insurance premiums rose dramatically and insurers left some states. When the lack of “coverage” for medical care was deemed “critical” some legislatures established patient-compensation funds and joint underwriting associations.” In 1975 California lawmakers limited medical malpractice non-economic damages—compensation for “pain and suffering to $250,000. No limit was place on the amount of money that could be awarded for costly medical care, lost income, or inability to earn a living because of the malpractice.10.’
Insurance policies have gotten pricey, and they contribute to the cost of medical care. Between 2008-2017 for example, the annual cost of insurance for obstetricians and gynecologists in Connecticut, Illinois, and Pennsylvania was in the $170,000 to $200,000 range. In California similar premiums had price tags of $50,000 to $60,000 a year.12
I was a salaried doctor in a large physician owned group (Kaiser). During my 40 years I was sued a few times, and it was emotionally painful. I’d prefer to not judge myself.
I don’t really know what happens to physicians who practice fee for service medicine. Some share small offices with one or several colleagues. When sued I assume they are forced to deal directly with representatives of an insurance company.
I never had to pay a malpractice premium. Kaiser, my employer, was big enough to be self insured. In the event of a multi-million dollar settlement—a severe injury that led to expensive lifelong care—an umbrella insurance policy kicked in.
I wasn’t forced to deal with a representative of an insurance business or company lawyers whose chief tactic was delay and endless expensive depositions.
Suits that alleged malpractice initially went to a fellow physician who was not always that sympathetic, but who usually was one of the groups brightest and best. Our malpractice doctor typically spent half of his or her time deal with legal allegations and the other half dealing with patients. After a lawsuit arrived on his or her desk, our colleague read the chart, evaluated the case, and reached a preliminary conclusion.
All doctors who participated in the care of the injured person were always named, and everyone who was being sued was informed. In serious cases the group hired one or several outside experts and asked them to assess the case. When necessary they got opinions from additional experts. Physicians who were paid for advising us could not become a witness or consultant for the plaintiff. If the outside experts thought we were negligent, our people tried to settle.
A large medical-legal department handled the paper work, the release of information and the technical matters associated with lawsuits. Skilled, knowledgeable company lawyers gave advice and guided physicians through depositions. When indicated, outside lawyers were hired to handle each case. .
In my later years working for Kaiser everyone insured by the plan signed an arbitration contract. Cases could not go to a jury. The Judges chosen were acceptable to the lawyers from each side. I’m told the approach does not affect overall malpractice costs, but it was easier on the psyche.
When a plaintiff is awarded compensation in excess of $30,000 the state of California gets involved. If the case was settled our group has to name the physician most responsible, and that name is posted on a state web site. If there was a trial and the money was awarded by a judge, the board of medical examiners gets to decide who to blame.
Doctors responsible for larger settlements often have to appear before a really tough California medical board. Most walk away with a reprimand, but about one in 10 medical licenses are revoked or suspended. .
Our tort system is based on blame and fault. To prevail a plaintiff has to prove that the defendant owed a duty of care, that the defendant breached the duty, and that the breach caused an injury.”
In California people must file suit within a year after they learn they were negligently harmed. (As mentioned previously) the state capped the amount that’s paid for pain and suffering at $250,000 per person. There is no dollar limit on actual injuries.
Plaintiffs’ attorneys usually work on a contingency-fee basis, and take a percentage of the award when they win and nothing when they lose.
Numerous surveys have concluded that in most cases of negligence the doctor was not sued, and when doctors are sued the harm was usually NOT the result of negligence.
In one recent study (12,000 to 17,000 insurance policies a year), 7.4% of the doctors were sued at least once annually. Most of the allegations were dropped or dismissed, but 1.6% of those suing were paid some money. The most targeted subspecialties were neurosurgeons, chest surgeons, and general surgeons. On average 15 to 19 percent of them were sued each year. That turns out to be an average of a suit every 5 to 6.5 years. The least targeted physicians were generalists, pediatricians and psychiatrists. Physicians in these specialties generally got legal notice every 20 to 40 years, or one to two times during their medical careers.2
The number of “paid medical malpractice claims” decreased significantly between 2001 and 2016. They went from 16,000 to 8500 a year, and the average payout “dropped about 23%”. During that 15 year period the number of suits where people are paid more than half a million dollars didn’t change much. They led to annual payouts of about $2.5 billion. Between 2012 and 2016 as many as 60 in a million people filed malpractice claims in our two most litigious states New York and New Jersey.3
Some doctors claim that the fear of malpractice leads to unnecessary testing and plays a major role in health care costs.
“Many countries- like Sweden, Finland, New Zealand, Quebec Canada, and Australia, have a no-fault system”. Compensation is based on proof of “causal” connection between treatment and injury. Their structure awards damages to patients without proof of provider’s fault or negligence, and it encourages physicians to collaborate in their search for the cause of the injuries. Although the application of no-fault system differs slightly in each country, the basic idea is to eliminate fault or blame and make the claim process simple so patients with meritorious cases can access the system easily.” It also makes it easier to identify and fix problems.4
It’s possible to get some sense of what would happen if American physicians could no longer be sued for medical malpractice. Doctors in the military aren’t immune from patient complaints or administrative action, but the government can’t be sued.
In the 1940s a serviceman died after a surgeon “left a towel in his abdomen”. The family sued. In 1950 the U.S. Supreme court, by creating a “doctrine” called the Feres rule, decided the government was not liable. The decision was later extended to include anyone receiving medical care from “the government.” The court rationalized the approach by discussing the special relationship that exists between service members and the U.S. and by pointing out that the laws of malpractice vary from state to state. That makes litigation complex. They noted that injured service members who were disabled were paid accordingly. Some judges apparently feared law suits might affect military discipline. The decision of the court has been challenged. Additional suits have been filed, but the court did not choose to re-hear the matter.
In a recent article a few lawyers felt “repeal (of Feres) may not serve the best interests of service members.” Most people who are harmed, they pointed out, don’t sue. Without the threat of legal action, mistakes could be openly discussed, problems could be identified and the system could be improved. We don’t know, they argued, that giving lawyers standing would make the care people received any better or safer. “There is little empirical evidence,” they wrote, that civilian malpractice litigation provides incentives to improve the safety of care.5”
Sometimes doctors can’t fix or help some sick people because we don’t know how. Metastatic cancer and dementia top the lack of knowledge list. But too often the knowledge exists but we don’t deliver. Gawande.15 (paraphrase)
Delays in retrieving a person’s records, time pressures, and illegible physician notes are common impediments. Robert Pearl, the former head of Kaiser thinks a computerized health record that pops up every time a physician is visited, one where a person’s medical information is presented to each treating doctor, should make a big difference.16
- Medical MalpracticeDavid M. Studdert, LL.B., et al. January 15, 2004 N Engl J Med 2004; 350:283-292 https://www.healthaffairs.org/doi/full/10.1377/hlthaff.W4.20
- https://www.statnews.com/2017/01/13/medical-errors-doctors/
- https://www.mdedge.com/clinicalneurologynews/article/48642/health-policy/most-doctors-face-malpractice-claim-age-65
- http://truecostofhealthcare.org/malpractice_statistics/
- http://siteresources.worldbank.org/INTRUSSIANFEDERATION/Resources/Malpractice_Systems_eng.pdf
- https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1608&context=aulr In Defense of Feres: An Unfairly Maligned Opinion.
- Twenty Years of Evidence on the Outcomes of Malpractice Claims Philip G. Peters, JD
- 7. https://www.clf-law.com/Medical-Malpractice-Newsroom/Charitable-Immunity-for-Nonprofit-Hospitals.shtml
8. https://www.nejm.org/doi/full/10.1056/NEJMhpr035470
9. Robinson GO. The medical malpractice crisis of the 1970’s: a retrospective. Law Contemp Probl 1986;49:5-35
11. Brennan TA, Leape LL, Laird NM, et al. Incidence of adverse events and negligence in hospitalized patients: results of the Harvard Medical Practice Study I. N Engl J Med 1991;324:370-376
12. file:///C:/Users/User/Documents/policy-research-perspective-liability-insurance-premiums.pdf Medical Professional Liability Insurance Premiums for $1M/$3M Policies, Selected Insurers,
United States. Department of Health, Education, and Welfare. Secretary’s Commission on Medical Malpractice-1973-Medical Malpractice Report. https://books.google.com/books?id=2PqUFmmYtVIC&pg=PA6&lpg=PA6&dq=in+1970+12,000+malpractice+claims+were+filed&source=bl&ots=_AeitZqpvz&sig=ACfU3U1lIEO0ET8N2IBLcMwBgPmdfJ_F7Q&hl=en&sa=X&ved=2ahUKEwil3M_std7nAhWSKH0KHVksC1QQ6AEwB3oECA8QAQ#v=onepage&q=in%201970%2012%2C000%20malpractice%20claims%20were%20filed&f=false
14. National Costs of the Medical Liability System Michelle M. Mello, et al. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3048809/#!po=0.892857
15. Atul Gawande: VoxSep 16, 2016, by Jeff Stein for the first time in human history ineptitude is a bigger problem than ignorance.
16. Mistreated by Robert Pearl M.D., Public Affairs press, 2017. https://www.hcinnovationgroup.com/policy-value-based-care/article/13028465/oneonone-with-dr-robert-pearl-the-permanente-medical-group-ceo-at-world-health-care-congress