The Malpractice Cast Net
Having been the intended victim of a few upset family members who have wrongly accused me of malpractice, I have a small bit of insight into the types of cases that are occasionally brought against physicians. In order to ease the pain of the natural but unexpected death of a loved one, and often to ease their own feelings of guilt, claims of malpractice are tossed out like a cast net by angry grieving relatives in the hope that a nice trout might be snared from amongst the bait. Of course before the net is pulled in, the circling sharks invariably take a huge chunk of the catch. There's usually enough left over to feed the family though. Admittedly, most of these attempts come up empty, never making it to trial or inducing a settlement offer, but they are still annoying. Even painful.
It all starts with a patient's unexpected death. Young healthy people aren't supposed to die, so obviously it must have been someone's fault. Did the patient seek the advice of a physician recently? Or maybe not so recently? The eager attorney will devour the bait without requiring the accusers to pay anything up front. It's her pleasure. The blood is in the water, and she is anticipating a big meal. Even if she doesn't get the big catch, she'll settle for some scraps to keep her fed. People die every day, and they usually seek medical attention at some point, so there is always plenty of bait. Heck, people sometimes go to the doctor just for a checkup. If a serious condition develops later, maybe it should have been picked up on the initial visit, right?
Is there any symptom or sign mentioned in the medical record that could be remotely connected to the cause of death? Never mind that certain symptoms are so vague and common that they aren't initially diagnostic of anything in particular, or that the initial signs of disease may be subtle. If the patient saw a physician even once, and the particular complaint (perhaps among many) wasn't fully addressed, then the fact that the patient died sometime thereafter is a red flag that negligence might have occurred. Chum for the sharks, you might say.
Perhaps more tests should have been done. Obviously the patient died, so the workup and treatment plan must have been inadequate, right? Negligent, even. Malpractice. Did the patient follow up again prior to his death? No? It must have been the physician's fault for not encouraging more aggressive followup. Maybe a certified letter should have been sent. Maybe the physician should have called the patient at home every day to inquire on the status of the condition, since the patient shouldn't be expected to take any responsibility for his own health.
The reaction to Flea's settlement among many in the blogosphere is disturbing. While none of us know the specific facts of the case nor the physician himself, I will say one thing: based on what I DO know, I would eagerly accept Dr. Flea as my own children's Pediatrician. Physicians like him are a rare breed these days. He takes his own call. He is available to his patients 24 hours a day. He makes house calls, for chrissakes. He obviously cares about his patients a great deal, and he seems to have superior medical knowledge and medical judgment. If anyone can't recognize these things, than they deserve the HMO assembly line care that is becoming all too common these days and that eventually all of us will likely have to settle for. The old-school docs are becoming extinct.
Why do I give him the benefit of the doubt? Because I too have been personally accused of negligence, and I have settled cases in which I gave appropriate care in order to eliminate the possibility of a megaverdict. Because I was a fan of his blog, and in his posts he shared his practice style with all of us. I am confident that he is not the sort of physician that would ignore his patient for five weeks if they needed him. Any of us can miss a diagnosis in the early stages of disease, and obviously many medical conditions become more apparent over time. So despite his mistakes regarding the trial blogging, I doubt he is responsible for the death of that patient.
I hope he will share the details of the case with us someday, but until I am convinced otherwise, I will stand behind him. If he decides to move to Texas, I've got a couple of patients already lined up for him, and I will gladly refer many more.
Labels: medical, rants, trials and tribulations
posted by scalpel at 12:16 PM
25 Comments:
I really agree with you about The Flea. Thankfully, I had excellent pediatricians, like him, for my children when they were growing up.
What a POWERFUL post!
I have first hand experience knowing how the media and opposing side of a case can blow everything out of proportion and WRONGFULLY so.
I also know from firsthand experience that unless people are in that inner circle where the true facts are known - they are thinking erroneously to think they can adequately and fairly judge anything about the case.
I wish flea well too and hope he resurfaces in some way. :)
Well said.
Thanks to lawyers (sorry Medblog Addict) and insurance companies that settle even though the evidence does not point to guilt, americans will keep on suing.
a few years ago my son was in a MVC in another state on his way home. Barely a week after the accident he was getting calls at home by ambulance chasing lawyers who had obtained his address and phone number by some means. Fortunately i raised a fine young man, No one was hurt in the accident, his car was destroyed and it was the other drivers fault but the roads were icy and it could have happened to anyone. The other drivers insurance took care of reimbursing for the lost car and that was that. A lot of other people would have sued the driver, the county for not clearing the roads properly etc. etc. etc.
Judges need to throw frivolous lawsuits out of court and heavily fine the attorney that brought the suit. Insurance companies need to be forced to litigate if that is what their client wants, not settle. Malpractice awards need to be limited.
Oh well, if I was in charge of the world, sigh.
Great post Scalpel.
The biggest tragedy about Flea's trial is that, like he feared, he wasn't judged based on his decisions but on his character, and he wasn't judged by a jury, but IN THE BOSTON GLOBE.
Last time I checked malpractice only occurs when:
1)There is a Physician-Patient Relationship established
2)There is duty of treatment owed to that patient
3)The physician fails to meet the standard of care
When did the lawyers miss that little memo and decide that frivolous lawsuits against physicians? I can't wait to pay malpractice insurance out the a$$ in 6 years to be legally assailed by slimy ambulance chasers...(not that some suits aren't without merit, but the vast majority are frivolous)!
Times like this I really see the need for tort reform. If lawyers were unable to take cases on spec, there'd be far fewer malpractice claims. You're right, Scalpel, to say that they're casting a wide net. I'm also starting to see the benefits of a loser pays system (though I'm not sold on it yet).
I am also reminded of reading the book Blink where it was discussed that it's the doctor's demeanor towards his patients that is the overwhelming determining factor in whether he'll be sued for malpractice. The same battery of tests can be everything humanly possible or dereliction of duty, all based on whether the patient feels as if he's been treated with respect.
God knows I tuned out my daughters' doctor in Hawaii after he told me, apropros of nothing, that I should wean my year-old daughter.
If the patient is dead, the physician's demeanor towards him or her is often irrelevant. The surviving family who decides to file a malpractice claim might not have been present to bask in the glow of the wonderful demeanor of the concerned physician. In other cases, doctor and patient just don't "connect" for whatever reason. Even the most compassionate physicians have a bad day or have to rush once in a while, and the interaction suffers.
I agree that demeanor can be an important factor, but it is often overstated. The accuracy of the diagnosis, the outcome of the case, and the extent of both the defensive workup and documentation are just as important imo. Not to mention the adequacy of the tort reform laws.
Since Texas passed the law limiting noneconomic damages in malpractice cases, the climate is much more hospitable.
Any mom who nurses after the incisors are developed is pretty dedicated. :o
You may be interested in the comments going on about Flea at Fat Doctor: http://fatdoctor.org/2007/06/01/lessons-learned/
I agree with Scalpel and Bostonian - can't judge a malpractice case by demeanor. But it happens all the time - even in the Fat Doctor comments (see Robin's post).
What's a doc to do? How do you counter: "But you didn't appear compassionate when you relayed news XX!" If that's malpractice (or results in settling out of court with large sums)... then we're all doomed.
The very best primary care physicians want to know when their patients end up in the ER, but they would also prefer if their patients call them first. And they do get "prickly" if the ER doc doesn't call them to give them an update on their condition and discuss the disposition with them. They want to be involved in their patients' care, directing it themselves. As it should be.
The best docs also don't just tell their patients what they want to hear, they typically don't buy into ridiculous nonsense like chelation therapy, vitamins, herbal remedies, and other various forms of snake oil. So they come off as being "prickly" to delusional ill-informed patients and families who really just want a "yes man" who will just sign prescriptions, validate their ridiculous delusions about medical care, and arrange unnecessary referrals.
The worst docs, in contrast, often aren't available to be contacted except during working hours, their partners who are on call for them are usually equally detached, and they both would rather you just go to the ER so they aren't bothered than actually deal with your concerns themselves. There is a lack of ownership, so to speak. They punch the clock. It's just a job to them, not a calling.
Flea was one of the former. Some patients can't handle tough love, authority figures in general, or blunt honesty.
"Why do I give him the benefit of the doubt? Because I too have been personally accused of negligence, and I have settled cases in which I gave appropriate care in order to eliminate the possibility of a megaverdict."
Bullshit. You settled because you were negligent, and even if you wouldn't admit it, your insurer certainly knew, and it's their money. You can't name one doctor who has been bankrupted by a "megaverdict". We all make mistakes from time to time - we run stoplights accidentally, fail to see someone in our mirror, etc. Be man enough to take responsibility for your acts.
Flea's never going to share the details of his case, because it was undoubtedly a confidential settlement. You would support him regardless.
"What's a doc to do? How do you counter: "But you didn't appear compassionate when you relayed news XX!" If that's malpractice (or results in settling out of court with large sums)... then we're all doomed. "
That's why you're not doomed. Failure to be compassionate will never be malpractice, and never has been.
I've settled two cases, in neither of which I was negligent, both of which had the potential for megaverdicts, and were settled for nuisance value on my part.
If the insurance company can settle for less than it would cost them to defend the case, then they will gladly do so. Simple economics.
Whether it would bankrupt me personally or not (and in one case, the issue of punitive damages were threatened, which would not have been covered by my insurer), a megaverdict looks a lot worse on one's NPDB record than a few thousand dollars obviously intended simply to call the dogs off.
I liked the Flea's blog. I am sorry it is down. If he settled the malpractice case when he wasn't liable because of the blog, that's too bad. I mean it. What it suggests is that he or his lawyers did not trust the jury to make a decision based on the law and the evidence. A good lawyer could easily explain the blog and have been candid about it -- assuming they hadn't spent weeks telling the jury that Flea had no blog.
None of us know whether Flea committed malpractice or not. We all know that it is possible for dedicated and competent professionals to have a bad moment and do something that would constitute negligence. We all also know frankly incompetent professionals whose incompetence does not stem from being unintelligent or inarticulate.
Everyone is drawing the inference that it was the blog that caused Flea to settle. Who raised that inference? The media -- a collection of multinational corporations that are just as interested in making a profit as Exxon-Mobil. The media is** not writing a story about this case and this blog, it is writing a Story About An Arrogant Doctor and The Blog That Brought Him Down. All actual facts that contradict that story will be edited out.
For instance, if Flea were actually gut-wrenchingly liable, and his lawyers were trying the case on the theory that it was a credibility matter, or to mitigate damages and not to actually contest liability, that blog may have blown that possibility sky-high. Not because of anything that came before, but because of the candid statements about the case. There's a reason that attorney work product is confidential. He did the equivalent of taking attorney work product and sticking it up on a billboard in front of the courthouse.
I also have to say that, to be in the midst of a malpractice case and to blog about it shows catastrophically bad judgment. To the extent that anything harmed his position, it would not have been the candid statements about parents who don't vaccinate, it would be referring to a professional woman as "Carissa Lunt" and asking whether she's a pillow biter. During. the pendency. of. the case.
I make no judgment about whether or not Flea is or is not a good pediatrician. But don't make any judgments about the fact of the blog or his blown cover and the impact of them on the outcome of the case. If he in fact were not liable, the fact that he uttered statements on a blog that would make a jury not like him does not change the fact that the plaintiff has to prove that an act or omission on the part of the Flea proximately caused the death of this child. You don't transform being an unlikeable, arrogant jerk (from the viewpoint of the jury reading only about Flea's take on the case) into liability for the death of a child, and a reasonably competent lawyer would be able to draw that distinction for the jury.
All of us who are professionals have made grievous mistakes -- at least in the phase when we were in training. Most of us are lucky in that we were able to correct those mistakes before any consequences ensued. Kind of like accidentally leaving the house with the stove on -- this time there was enough water in the pot, and this time, no draft blew the paper towel over to the flame. We turned off the stove and everything was okay. Perhaps this is why Flea's case resonates for professionals in this way. But you don't know from Flea's blog whether he saw the stove on when he came back in and was or was not too distracted to notice that he'd left it on.
It is terrible what happened. I will miss his blog. I hope he puts it back up. I would continue to find his blog useful. But I have no intention of trusting or not trusting someone that I know only via the internet, regardless of the malpractice suit or the blog or the filthy newspaper that makes money off of the death of a child and the publication of a blog.
_____
**Yes, I know..."media" is plural, like data. However, in this case I am writing about the media as a blob of Crisco. You don't say "Give me the Criscos" just because there are two blobs of Crisco soiling your kitchen counter.
You make some great points KC, but I would submit that most people choose their physicians by running down the list on their HMO page, or they look for whichever doc is conveniently located, or has a nice office, or one of their friends thinks is good, etc. None of which are very useful, for the most part.
I don't think it's a mistake to utilize a physician's internet posts or available online data to judge a physician, at least in certain aspects of the process. In fact, I have much more knowledge of Flea than I do about my current pediatrician.
"I've settled two cases, in neither of which I was negligent, both of which had the potential for megaverdicts, and were settled for nuisance value on my part."
It's not someone else's fault that you made that choice. If you didn't want to make it, you didn't have to. Just like those physicians that decline about having to deal with this or that insurer's reimbursement policy. Stop accepting their money if you don't like it.
Who are these insurers who are settling dog cases left and right?
I never said they were dog cases, they were both reasonable cases (well, one was anyway), I only said that I personally don't think I was negligent.
When the more negligent parties settle before trial and the jury isn't allowed to hear that they settled or how much money they settled for, it sometimes is more reasonable to settle yourself rather than risk holding the bag for a huge judgment.
Not to mention the lost income and increased time/stress commitment a trial would entail.
For a while, we only had less than a handful of medmal insurers in Texas to choose from; since the tort reform, things are getting a lot better.
"it sometimes is more reasonable to settle yourself rather than risk holding the bag for a huge judgment."
In most states, unless the jury divided it up among defendants by percentage of fault, you would get an offset from what the other defendants paid. And a lot of defense lawyers like one of the co-defendants to settle so they can cast stones at the empty chair at will without contradiction.
While you may want to attribute the number of new insurers to "reform", the problem with that theory is that non "reformed" states also have new insurers and have also received rate reductions. So I guess there goes that theory.
However, the bond market, which is a national market, as well as the stock market in general have improved significantly since the "crisis" years, and reinsurance is more widely available and at better rates than it was earlier this decade. Think that might have anything to do with it? Given that economic recovery has triggered the same national increase in insurers and lowered rates to end every other "crisis" in the last thirty years, perhaps that might be worth looking into!
In our state, Matt, the way I understand it (and it's been a while, thank God, so maybe I've forgotten or it's changed since then) the juries do assign a percentage of fault to each defendant. When a possible megaverdict hangs overhead, that's little consolation. And I'm well aware of the impact a healthy stock and bond market has on insurance rates, and I don't argue that fact. I actually voted against our current tort reform law for that very reason. But to claim that's all there is to it and discount other considerations is pretty silly.
Regardless, I'm not so interested in my insurance rates or the number of medmal carriers as I am in the number of suits filed, and there can be little doubt that our tort reform laws are responsible for a drastic decrease in the number of claims and suits. So I have grown to appreciate them, even though I voted against them.
"and there can be little doubt that our tort reform laws are responsible for a drastic decrease in the number of claims and suits. So I have grown to appreciate them, even though I voted against them."
Actually, I think there can be some doubt, at least right now. Because the year it was passed, many suits that would likely have been filed later in the discovery process, or perhaps even settled presuit, were filed to beat the deadline and thus cap the recovery, whether they were the kind that would be affected by caps or not.
So for '04 and '05 at least, the claim that they dropped significantly after "reform" is misleading. Now, as for '06, I don't know, as I haven't seen those numbers.
But then, assuming it did, you have to ask yourself, is making it more difficult for those without economic losses, like stay at home moms, for example, worth the tradeoff? It may be psychologically, but financially, if those people end up unable to pay their medical bills and discharge them in bankruptcy, or are uninsurable and have a chronic condition and the taxpayer picks up the tab, perhaps not.
I would not claim that investment returns are the only factor, but I do believe they are the largest ones. What really matters are payouts, and most private insurers are loath to release that info. They prefer to dwell on verdicts, even if those are overturned or are nowhere near the amount actually paid.
One thing I will caution you about, though, if that's the reason you're ok with it, is supporting health courts. It would seem to me that with those, which are really just backdoor damage caps, when you lower the barrier to filing a claim and people are not stopped by the screening process most attorneys go through, you're going to be looking at a lot of claims filed by individuals without lawyers that wouldn't otherwise be.
Also Scalpel, I believe Texas has a modified joint-several liability, where if you are more than 15% liable you can be responsible for the full amount. But I practiced there pre-"reform", and not in the med mal arena, so that may have changed.
I don't think uninsured stay at home moms pay much of their bills anyway. But I'm not sure it's worth the tradeoff. They certainly get a raw deal with the current law, which is another reason I voted against it. I'm not sure health courts are the answer either, but fortunately I don't have to decide.
I just want to practice medicine, and I will say it's a lot more fun to do so when I'm not getting sued every freaking year. So maybe it is worth it.
To me, anyway.
You know, folks, that there would be no frivolous med mal cases without the frivolous med mal experts to testify. To the extent that liability is determined by junk science (silicon breast implants and fibromyalgia, Thimerosal and autism, etc.), no matter how dirtball the lawyer, no matter how crazy the plaintiff, without the junky medical expert...there. can. be. no. lawsuit.
Somewhere in Flea's trial, there was at least one medical doctor willing to testify for the plaintiff.
Why can't it be a sanctionable ethical violation to testify to something that is frivolous? I mean, perhaps the standard might be difficult to meet -- I'd say flying around the country doing nothing but testifying instead of practicing in the chosen field would be a place to start. A geologist testifying that the earth is flat, a pediatrician testifying that chelation therapy can cure autism -- that might also be a place to start.
Surely you folks would be in a position to craft a standard -- even one difficult to meet -- for junk science testimony. If you gave junk science testimony, it would cause a dent in your license, and if you kept it up, you could lose your license.
I can imagine that some aspects of patient care would drive anyone crazy; however, a lot of parents perceive that their childrens' doctors have them coming and going: Either our kid isn't sick enough to see the pediatrician when we brought him or we waited too long and why didn't we bring him sooner. All first-time mothers are considered hysterical and their concerns rejected, even if the issue is that the baby's airway gets blocked (and if one incident happened to be captured on videotape -- make sure you say with half-closed eyes that there is no need to see the videotape, you're pretty sure that this was the child's fourth mucus plug in a month).
There are many good pediatricians out there -- we in our house feel basically lucky. But I happen to be lucky enough to be able to articulate specifically what's going on with my kid enough to get my kid seen. I don't think that I should have to point out to the child's doctor that toddler's been throwing up for three days, hasn't held down fluids for almost two, he's been crying in the doctor's examining room for five minutes with no tears, and is shivering in a warm room, and can't stand up: Maybe before you conclude that all's well, you might at least take his blood pressure. Oh, now your facial expression is a lot more concerned....
Um, I'm thinking that when a mother tells a pediatrician that the child has been vomiting and had diarrhea for three days and hasn't kept any liquids down for two, you wouldn't want to send that child home. Why should I have to persuade the doctor to have the child's blood pressure checked? And I'm sorry, but a child shivering in a warm room who hasn't had anything to drink in two days....
My kid's fine, thanks, after the three-day hospital stay.
If I'd dutifully taken my toddler home, where he'd died of dehydration caused by a stomach virus, the doctor wouldn't have been a horrible murderer; the doctor would have been the kind of doctor who simply writes off parental concerns and doesn't listen. But you can believe I would have sued.
Every field has a certain kind of conduct that gives rise to a lawsuit at the drop of a hat. With lawyers, it's a failure to keep the client apprised of the course of the litigation and a failure to return calls. With pediatricians, I'd say it's not listening and shutting out parental concerns as overblown.
I'm sure some parental concerns are overblown. However, as a defense mechanism, some pediatricians have decided that all parental concerns are.
To the extent that a child dies due to the negligence of a pediatrician, it's insane to shrug that off as a "mistake." If the child died for an unpreventable reason, or because the parents didn't follow the doctor's instruction, there can be no lawsuit without an expert to support the plaintiff's position.
Last time I checked malpractice only occurs when:
1)There is a Physician-Patient Relationship established
2)There is duty of treatment owed to that patient
3)The physician fails to meet the standard of care
There also has to be an injury of some sort resulting from these three things.
For example, we had a patient that had a HR in the upper 20s and low 30s the other day and a blood pressure of 216/114, but was asymptomatic, walking, talking, etc. I asked the doctor to give ?hydralazine/clonidine to lower the blood pressure. To be a turd, he said I should give lopressor/beta blocker. I mentioned that I wasn't interested in killing the patient today. If, for some reason, I didn't catch the joke and was an idiot and took the lopressor as a verbal order and gave it to lower the bld pressure, but the patient didn't suffer any ill consequence from the presumed increase in bradycardia (even if we had to give atropine to fix the problem), there could be no recovery.
"I'm sure some parental concerns are overblown."
I think it's safe to say that MOST parental concerns are overblown. Heck, even the concerns I have had about my own kids in which I finally gave up and took them into the pediatrician's office have been mostly overblown, and I treat other people's kids all the time.
The trick is not missing any of the complaints that aren't overblown. When you get bombarded with decoys all day long, you have to be extra alert for the real thing.
Three fourths of the kids who present with complaints of "not keeping anything down for two days" are eating cheetos and sucking down sippy cups in the waiting room.
"For example, we had a patient that had a HR in the upper 20s and low 30s the other day and a blood pressure of 216/114, but was asymptomatic, walking, talking, etc. I asked the doctor to give ?hydralazine/clonidine to lower the blood pressure. To be a turd, he said I should give lopressor/beta blocker" Clonidine can cause bradycardia and would almost be as inappropriate as a beta blocker in the above situation. Norvasc, an ACE-inhibitor, or a thiazide diuretic (though a diuretic would take longer) are reasonable treatment options.
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