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Re: Malpractice vs. Mistake (very long)From: D. (anonymous@obgyn.net)Mon, 31 Jan 2000 12:05:13 -0600 (CST)
Contrary to popular belief, most doctors do not get overly bent out of shape when discussing medical malpractice issues. We realize that there are substandard doctors out there, and would like to see them either seek remedial education or simply quit practicing medicine. They give good doctors a bad name. What frustrates us, and causes many excellent doctors to leave the medical field, is that malpractice lawsuits are often arbitrary and have no relation to the quality of care. Very generally speaking, malpractice claims involve 3 major areas: The first is negligence, where the doctor was careless and made a mistake below the standard of care for other doctors practicing in his/her specialty and in her/his area of the country. The next is harm (the mistake caused an injury to the patient) and the third is causation (the mistake lead to the injury). The last one is the toughtest, because sometimes it's not clear. For example, severe bladder infections during pregnancy can lead to preterm labor. If a patient has a misdiagnosed bladder infection, and later develops preterm labor, was it really from the bladder infection, or was it from one of the dozens of other causes of preterm labor? Many times it's impossible to tell. That's where expert witnesses come in to play. Unfortunately, this area of med/mal is a money-maker for some unscrupulous doctors, since they may get multiple thousands of dollars for testifying on behalf of either the defense or the plaintiff. So, what is malpractice, and how does it differ from a bad outcome? This is what inflames doctors. If someone goes to the hair stylist with a picture and wants to look like Britney Spears, but is unhappy with the outcome of the haircut, she will not usually sue. However, if she wants a nosejob and is unhappy with the results, she might sue the doctor. If I deliver a baby and the mother dies from an amniotic fluid embolism, which has a 60-80% mortality rate, the odds of me being sued are astronomical. Yet, this is an unpreventable complication. (Put another way, if you don't want to risk dying from a blood clot, embolism, ectopic pregnancy, or postpartum hemorrhage, don't get pregnant). Usually the family is upset and wants to know "how can someone in America die giving birth?" The hospital course of these patients is extraordinarily complicated, and doctors often debate the best way to take care of these critically ill patients. That's great for malpractice lawyers, who can usually find and "expert" witness to create doubt in the juror's minds. Remember, there is no law that says a lawyer must refuse a bogus case. Their job is to win for their client. Sometimes these cases are won, sometimes they are lost, but in this specific instance, medical science very clearly states that this complication is not preventable, so a doctor would see this as an example of a major problem with malpractice law. Let's look at the other side of the coin. If a doctor does not check the lab results or gives the patients the wrong medication without checking for interactions, this may be carelessness (negligence). If the patient is harmed (loses a kidney) and the jury feels the wrong medication caused the problem, then it should be obvious malpractice. Most cases are not so obvious. What if a doctor is removing a large ovarian cyst and because it is stuck to the intestines and side of the body, puts a stitch next to the kidney tube (ureter)? This can kink the tube, leading to a backflow of urine and perhaps kidney damage. Was the doctor negligent? Probably not. He or she was in the middle of a very tough surgery. It's not his fault the patient had a giant cyst that was stuck to everything. Despite his best efforts (ie no carelessness) the kidney tube was kinked by scar tissue and the patient needed further surgery. This is the *main* problem with malpractice suits: the patient is unhappy because she had a "bad outcome" but other doctors look at the situation and say "wow, what a tough case. That doctor did a great job getting that giant ovary out. Lucky she got away with only a kinked ureter. She could have died from blood loss, etc." Juries, however, may see differently, and punish the doctor. I have a big issue with the economic problems with malpractice. How do we decide what an injury is worth? If I lose my arm from malpractice in Texas, why is that worth 2 million, but your arm is only worth 20,000 in Nevada (I made up the states)? Why not cap the damages. After all, is there really a value placed on your daughter if you lose her because of negligence? With our current system there is *no* motivation for a doctor to admit a mistake and have his/her insurance company write a check. The doctor will be added to the national data bank, meaning he or she may have a hard time getting hospital privileges. Lest you think this is a great idea, please note that 85% of ob/gyn doctors will be sued at least once in their career. 85% of ob/gyns are not bad doctors. On the contrary, our training is about the toughest there is. If 85% of us are sued, and most are sued multiple times, then it is very possible we will end up in the data bank. If the doctor really feels the suit was unwarranted, he or she might very well quit medicine in disgust. I once had a patient hire a lawyer and go fairly far in the legal process before abandoning the case. Her reason for suing? Her admitted crack cocaine use during pregnancy led to neonatal seizures. She wanted money to pay for long-term care of her baby. Her logic was that "doctors carry insurance for a reason." Due to the number of lawsuits against ob/gyn doctors, we carry the required malpractice insurance. It costs *every one* of the doctors in my group $85,000 per year. This is passed directly to you, as a consumer. Further, if you enter the ER with any complaint as a pregnant patient, you will probably get a $300 ultrasound, although these almost never diagnose a problem. This test, and countless others, are routinely ordered to prevent lawyers from suing later. This so-called "defensive medicine" costs the US billions a year, and harms patients by subjecting them to unnecessary testing and intervention. What can be done? Abandon the jury system for medical malpractice cases. Try them before a panel of 3 lawyers, who can scientifically review the expert witness testimony, review the facts, and render a fair and impartial verdict. Having 12 "peers" whose medical knowledge might consist of watching "ER" decide a complex medical case is truly ridiculous. Patients and doctors would be better served with a fair system. Wow. This was long (my fingers are tired). Have a great day.
-- David Ashley Hill, MD Associate Director Department of Obstetrics and Gynecology Florida Hospital Family Practice Residency http://home.mpinet.net/dahmd
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