Caps on malpractice

[Ed62]

Without getting political, how do you feel about setting caps in the amount a health care worker can be sued for, regarding malpractice? The way I see it is there should be no cap. But the juries should be instructed by the judge that unfair and unreasonable amounts should be avoided when awarding a litigator compensation. The juries should be reminded of the consequences of awarding something other than a fair settlement. I think there should be no limit because if a doctor performs surgery while under the influence of drugs or alcohol, and maims someone for life, that someone should get very high compensation, even though money could never rectify the situation.

I also think it's very likely that some doctors continue to work when not qualified, or have a problem such as alcoholism, while the other docs look the other way.

If malpractice insurance premiums get high enough, maybe the doctors will be more willing to get rid of the bad apples themselves, in order to maintain lower premiums.

Ed

[LCHIEN]

Without getting political, how do you feel about setting caps in the amount a health care worker can be sued for, regarding malpractice? ...

If malpractice insurance premiums get high enough, maybe the doctors will be more willing to get rid of the bad apples themselves, in order to maintain lower premiums.

Ed

Or, they'll pass it on to us.

Punitive damages have a purpose.
The victim's distress is probably priceless, but...
Should they get hundreds of millions?
Maybe the punitive damages should be distributed elsewhere...but who gets to decide?

Oh, to be Solomon.

[MilDoc]

So, you have faith in the American jury system? I don't. As a doc, give me a true "jury of my peers" and I might. Juries award absolutely outrageous sums in any lawsuit, not just malpractice, no matter what the judges' instructions.

As to your second point, I agree. We try to "weed 'em out," but not always successful. I served on an impaired Physician's Committee and we had no problem lifting a license if the doc didn't comply with rehab.

Third point: malpractice premiums are already way too high, in some cases in the $200,000 per year range. OB's are giving up delivering babies, neurosurgeons are refusing to take call to emergencies, etc. Lawyers sue for ridiculous reasons with no consequence to them or their clients (unlike in other countries), further raising costs as all suits have to be "defended" even if thrown out, or settled (sometimes just to avoid the cost of trial. happens in all fields). Maybe if MP fees get to high and more docs say "to h**l with it," there will be true reform.

But I doubt it. Lawyers rule the Congress.

[Ed62]

The victim's distress is probably priceless, but...
Should they get hundreds of millions?

No, but neither should they be penalized by a cap. My personal opinion.

FWIW, I had a stroke in 1995. It began with a few "mini-strokes", and I was taken to the hospital. They did a (can't think of the word) cath, where they ran a tube from my groin up through my body to try to find a problem. They got through my left side, but couldn't get through on my right side, but kept trying for a very long time. I finally told them to quit. I was released the next day, then 3 days later, I had a stroke. Nobody told me why I had a stroke. It was unknown why. Fast forward about 6 years....I had reason to see a neurologist, and she wanted to see my medical records because of medications. She took them home to study. About 2 weeks later, I went to see her again. She told me it was her opinion that my stroke was caused by the doctor being too agressive for such a long period of time (it was in the records). I almost fell over when she told me I had good grounds for a lawsuit, and she wouldn't blame me if I followed up on that. I told her I wouldn't sue because it was my opinion that the doctor was trying to help me, and there was no reason for me to think there was malpractice. Without a doubt, I could have gotten a pretty sizeable settlement, since I had her support. In a relatively short time I fully recovered, after being partially paralyzed.

So I don't believe in frivilous lawsuits, but I do believe in fair compensation.

Ed

[Ed62]

I understand what you're saying, Paul. My wife is a registered nurse, as you might remember. Her cousin is a physician, and he married a girl who practiced OB. She got stung badly by a lawsuit, and she gave up her practice.

So there's good reason to argue both sides. If the world were what it should be, we wouldn't have this because the bad ones would be weeded out, and the juries wouldn't be so liberal at times in their decisions. Don't know if there's a good solution. It's just not a simple thing.

Ed

[jerrye]

IMHO:

What ever happened to having to prove malice or intentional harm?

Correct me if I'm wrong Paul, but as I understand it medicine is anything but an exact science. When I can sue a Dr. because a treatment they prescribe doesn't work as planned something is badly wrong. Yes, a mistake made by a Dr. can result in terrible things (as can an airline pilot, or a truck driver, or many other jobs) but if this litigous insanity continues where are Dr.'s going to be? Afraid to treat? And why is it that people sue Dr.'s but not the others I listed? Because EVERYONE thinks ALL Dr.s are rich. Nonsense. As to honest mistakes made in prescribing treatment, I'd much rather have a Dr. that makes mistakes in treatment than one that doesn't, because the one making mistakes is trying and in most cases the other one isn't trying because of fear!

My .02

[cgallery]

I agree with Ed. Seems to me that if the jury award is too high the insurance companies appeal. Somewhere during this process both sides have a chance to settle on an amount they are both willing to agree to.

Not perfect, but I don't see a reason to tip the scales so largely in favor of the medical establishment with arbitrary caps.

Footnote: We have some of the highest priced health care here in Wisconsin, where we also have some of the most economical malpractice insurance in the nation. Apparently (and I'm not an expert), a state pool takes over payment after a certain amount is hit (I think $1MM).

So our high costs aren't due to malpractice insurance, yet we still pay more than nearly anywhere else.

[LCHIEN]

IMHO:

What ever happened to having to prove malice or intentional harm?

Correct me if I'm wrong Paul, but as I understand it medicine is anything but an exact science. When I can sue a Dr. because a treatment they prescribe doesn't work as planned something is badly wrong. Yes, a mistake made by a Dr. can result in terrible things (as can an airline pilot, or a truck driver, or many other jobs) but if this litigous insanity continues where are Dr.'s going to be? Afraid to treat? And why is it that people sue Dr.'s but not the others I listed? Because EVERYONE thinks ALL Dr.s are rich. Nonsense. As to honest mistakes made in prescribing treatment, I'd much rather have a Dr. that makes mistakes in treatment than one that doesn't, because the one making mistakes is trying and in most cases the other one isn't trying because of fear!

My .02

There's honest mistakes and there's careless mistakes. Many mistakes can and should be avoided. Some there are no excuses for avoiding.

Did you know that there's a 50% chance that your doctor graduated in the bottom half of his class?

[agent511]

Oh, I could write for hours on this topic.
No, you don't have to prove malice or intentional harm - those are not part of the system.
The personal injury lawyer, in the plethora of weak, bad cases that I see, just has to hire a whore-expert who will say that everything that the doctor did was wrong. The doctor hires a legitimate expert to justify all that he did. The jury discounts much of what the plaintiff and defendent says, and weighs their decision on which expert they thought was more effective. The jury is not informed/educated enough to grasp the critical technical aspects. So they choose almost randomly, often on which expert or lawyer they liked better. The doctor, if he has not commited any malpractice, could easily bring in 20, 30, 50 doctors to back him up with community standards. But you are only allowed one expert each for each aspect of the case, so that hurts the legitimate doctor. It would be like a debate on whether Hitler was good or bad, and having one person debating each side. A eloquent debater could sway many people to his point of view, whereas there only is one point of view, and if you were ignorant of the issues, any outcome could occur.

WHen I carefully explain the aspects of a surgery to a patient, in layman's terms, then ask if they have any questions, then I hear some really ridiculous questions, I know that these are the same people that are on juries and do not understand the intricacies of a case.
In my city, people file for lawsuits like buying lottery tickets, only lottery tickets cost a buck, and filing a malpractice case is free (contingency fees). ANd there is no shortage of lawyers willing to take any case - their is a glut of lawyers, and they are being churned out in record numbers.
ANd punitive damages (mostly in defective product cases, rarely medical) ...the plaintiff is already being paid for economic damages - the punitive damages do not belong to them - they belong to society. and should be used to improve society, not to make some unfortunate person a multimillionaire on top of their losses.
And in so many cases, the lawyer gets 30-40% of everything just to write a few letters, since so many things are settled out of court.It is such a poor system of reallocating money from all of society that pays insurance premiums to the lawyers pockets.
The system is gamed against the doctors. Everything that we say or do has to be documented, and where the documentation is not perfect, the assumption is it did not happen. No one else in society is subject to the same kind of scrutiny under threat of litigation.
I have two children, and I advised them both on their career choices - and neither one is involved in medicine in any way. I don't want them going through life under the threat of litigation for every thing that they do.

And no, the costs are not passed on to the patients. 99% of visits (my estimate) are covered by insurance. ANd insurance reimbursements go up maybe 1 or 2 % per year, if at all. many years they go down. It is a heck of way to run a business, having no control over the reimbursements. You hear that the cost of medicine goes up 10 or 20% - that doesn't mean you doctor gets 20% more, that means that utilization of MRI's and scans and new tests have raised the cost to the insurance company.

Malpractice caps are not fair to the plaintiff who is legitimately injured, unfortunately. But they are the only thing that can even partly level the playing field.

A better system would be professional panels to weigh the evidence to approve a case to go forward, and professional arbitrators or jury panels that understand medicine to decide cases. I am willing to live by their decision without any cap.

We have no caps in PA, and the governor, a lawyer, would never sign a capped bill.

Don't get me started.

[Jeffrey Schronce]

There's honest mistakes and there's careless mistakes. Many mistakes can and should be avoided. Some there are no excuses for avoiding.
Did you know that there's a 50% chance that your doctor graduated in the bottom half of his class?

You are exactly right on here IMHO.

Those honest mistakes we'll call negligence. - These should be capped.

Those careless mistakes we'll call gross negligence. - These should not be capped or should be capped at a high limit.

Again, IMHO I think that we should force a higher level of retention to those MD's who repeatedly have grossly negligent events. Let's face it, a lot of the high risk MDs are working as salaried staff whos premiums are being buried in the group policy. Private practice folks tend to be a better risk group, though there are other skewing factors in non-private practice such as learning hospitals, interns, etc. But back to my point, I think it is time for those folks who create the damage to economically suffer through something other than elevated premiums paid by their employer. What do you think of this concept Paul?

[maxparot]

I don't see a need for a cap on the liability of healthcare workers. What I do see a need for is a cap for the amount of insurance coverage that is available to these workers. Also I see a need to limit the number of times an insurance policy can bail out a worker or organization. If a worker has a history of problems they shouldn't be in the profession.

[MilDoc]

"The jury is not informed/educated enough to grasp the critical technical aspects. So they choose almost randomly, often on which expert or lawyer they liked better.

And that's mainly why ther must be caps. In product liability cases, many attorneys choose to file in South Texas. Why? Because juries there are known to award outrageous amounts.

Other countries have much better legal systems. Everyone thinks ours is the best. Let me tell you, based on appearing in court over 1200 times as a witness, our system ain't nothing to be very proud of.

[Jeffrey Schronce]

I don't see a need for a cap on the liability of healthcare workers. What I do see a need for is a cap for the amount of insurance coverage that is available to these workers. Also I see a need to limit the number of times an insurance policy can bail out a worker or organization. If a worker has a history of problems they shouldn't be in the profession.

That would violate principles of social good, thus law makers will never allow this to happen. Most organizations cite minimums of coverage to even be afforded a license to practice. If an employee of a hospital kills a patient and the employee has $250,000 of liability insurance, then you can be assured of action against the hospital. Follow the money, deep pockets, blah, blah, blah.

[agent511]

If it makes Maxparot feel any better, when a doctor loses a malpractice case, his premiums get surcharged. If he has too many cases, he would have trouble getting insurance, period. It is just like driving.

We are not going to change many minds here


Those who know what it is like to be sued for doing your job will have one opinion.

Those who think something bad happened to them have another opinion.

Yes, the bad docs should be weeded out. But that could be done in a more equitable system without making mega-millionaires out of the ambulance chasers.

Ever see the ads on TV - if you ever took certain medications or had certain procedures- even if you don't think you have anything wrong - contact them to "preserve your rights".

[maxparot]

Yes, the bad docs should be weeded out. But that could be done in a more equitable system without making mega-millionaires out of the ambulance chasers.

Ever see the ads on TV - if you ever took certain medications or had certain procedures- even if you don't think you have anything wrong - contact them to "preserve your rights".

Well here is an idea:
Instead of caps how about eliminating the need for lawyers. Require all laws to be written in plain english. Take out all loopholes. Do we really need libraries full of law books. The law shouldn't be elitist. It should be something that society can understand and practice without graduate school.Lets have lawyers in the places they are needed overseeing justice not rewritting law.