American College of Physicians: Internal Medicine — Doctors for Adults ®

Wednesday, August 24, 2011

Who pays for medical malpractice litigation?

The short answer: you do. Here's why.

Ask any doctor, at least anyone who has been out practicing clinical medicine for some time, how much the threat of a malpractice suit influences their behavior and odds are, they will tell you, "A lot!" While the degree may vary depending on your specialty, your years in practice, your patient clientele, your prior malpractice history, and the anecdotes you have heard from colleagues, you cannot be immune to the influence of malpractice law as it exists today in the U.S. I had intended to talk about how health care costs are influenced by malpractice, but it is impossible to take up that subject without touching on how my own practice has been affected. And how this directly affects the kind of care I offer my patients.

It has been observed that while most people have negative perceptions of lawyers, most will tell you that their lawyer is a great person. The same has been found true of peoples' attitudes towards doctors, plumbers, auto mechanics and other members of service professions. (Car salesmen, to their misfortune, don't even enjoy that consolation.) Thus it is for malpractice attorneys: Doctors despise plaintiffs' attorneys and look favorably on defense attorneys. Hardly a surprise. And as part of their job, many defense attorneys are engaged by malpractice insurance companies and hospitals not simply to defend malpractice cases after the fact, but to practice "preventive medicine" for malpractice suits. These take the form of lectures and workshops, sponsored by malpractice insurance companies or hospitals, educating us on how to avoid being sued. We listen carefully to the advice of people who make it their profession to defend us. They are the "good guys."

Let me say at the outset that all malpractice defense attorneys will agree and counsel that the best defense is not to commit malpractice in the first place. But they will tell you that the many of the unfavorable judgments they see are not the result of medical errors themselves, but rather errors in patient relations, documentation, office management and other factors that might have easily averted a suit. In fact, they tell us that there are frequently judgments against physicians where the weight of the evidence and overwhelmingly common sense would argue otherwise, due to discrepancies in the way the patient or their family recalls the events. And so we are instructed from time to time on how to do a better job attending to all these factors so as not to leave ourselves open to charges of failing to live up to what is called the "standard of practice."

The last lecture of this sort that I attended began with a recitation of what you might think were preposterous jury verdicts. In one case, a patient was told she needed a test because she might have cancer. She refused it. She went on to get a serious incurable cancer. She sued the doctor for failing to inform her fully of the need for the test. Her reason: "He never told me that cancer could kill me!" Then there was the patient who was told that his brain surgery for a life-threatening blood vessel problem carried a risk of stroke. He sued because, unfortunately, his surgery was complicated by a stroke. His complaint: "He never informed me that a stroke means a partial paralysis!"

Following a series of such cautionary tales, the defense attorney proceeded to instruct us on how we might best avoid such scenarios. An example: 99.9% of all headaches are not due to brain tumors. Numerous scholarly articles in the medical literature have shown how unproductive and wasteful it is to do CAT scans on everyone with a headache. But if the one person in a thousand decides to sue, the plaintiff's attorney will ask, "Doctor, did you know that there was a chance that the patient's headache was due to a brain tumor?" If you start to say, "Yes, I did, but the chances of that were ...," you will be cut off immediately with, "Thank you very much, doctor. So you knew that there was a risk he had a tumor and yet you didn't order a CAT scan, is that right?" So what are we supposed to tell our patients to ensure we don't get sued for failing to inform them of the risk?

The attorney told us that if we thought there was even an infinitesimal chance that a patient's complaint might be a symptom of a cancer, and they ask us, "Doctor, could this be due to a cancer?", we are obliged to tell them "Yes." no matter how remote the possibility and no matter what affect that answer might have on the patient's emotional state.

What might be the effect of our heeding this advice? I'll leave you to wonder until the next entry.

David M. Sack, MD, is a Fellow of the American College of Physicians. He attended Harvard and Johns Hopkins Medical School. He completed his residency at Lenox Hill Hospital in New York City and a gastroenterology fellowship at Beth Israel-Deaconess, which he completed in 1983. Since then he has practiced general gastroenterology at a small community hospital in Connecticut. This post originally appeared at his blog, Prescriptions, a series of musings on medicine, medical care, the health care system and medical ethics, in no particular order.

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Blogger MarkM said...

While the shortsighted doctor might think he/she pays, ultimately all money in the medical care system comes from the patient. If you want to talk paying in terms of behavior, granted the physician pays. Financially though only the patients are the bottom line. That is not to say that reform isn't needed, but it's not malpractice reform, it's practice reform. Good guidelines followed should guarantee no malpractice allowed. Better medicine and lesser costs.

August 24, 2011 at 11:39 AM  

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Members of the American College of Physicians contribute posts from their own sites to ACP Internistand ACP Hospitalist. Contributors include:

Albert Fuchs, MD
Albert Fuchs, MD, FACP, graduated from the University of California, Los Angeles School of Medicine, where he also did his internal medicine training. Certified by the American Board of Internal Medicine, Dr. Fuchs spent three years as a full-time faculty member at UCLA School of Medicine before opening his private practice in Beverly Hills in 2000.

And Thus, It Begins
Amanda Xi, ACP Medical Student Member, is a first-year medical student at the OUWB School of Medicine, charter class of 2015, in Rochester, Mich., from which she which chronicles her journey through medical training from day 1 of medical school.

Ira S. Nash, MD, FACP, is the senior vice president and executive director of the North Shore-LIJ Medical Group, and a professor of Cardiology and Population Health at Hofstra North Shore-LIJ School of Medicine. He is Board Certified in Internal Medicine and Cardiovascular Diseases and was in the private practice of cardiology before joining the full-time faculty of Massachusetts General Hospital.

Zackary Berger
Zackary Berger, MD, ACP Member, is a primary care doctor and general internist in the Division of General Internal Medicine at Johns Hopkins. His research interests include doctor-patient communication, bioethics, and systematic reviews.

Controversies in Hospital Infection Prevention
Run by three ACP Fellows, this blog ponders vexing issues in infection prevention and control, inside and outside the hospital. Daniel J Diekema, MD, FACP, practices infectious diseases, clinical microbiology, and hospital epidemiology in Iowa City, Iowa, splitting time between seeing patients with infectious diseases, diagnosing infections in the microbiology laboratory, and trying to prevent infections in the hospital. Michael B. Edmond, MD, FACP, is a hospital epidemiologist in Iowa City, IA, with a focus on understanding why infections occur in the hospital and ways to prevent these infections, and sees patients in the inpatient and outpatient settings. Eli N. Perencevich, MD, ACP Member, is an infectious disease physician and epidemiologist in Iowa City, Iowa, who studies methods to halt the spread of resistant bacteria in our hospitals (including novel ways to get everyone to wash their hands).

db's Medical Rants
Robert M. Centor, MD, FACP, contributes short essays contemplating medicine and the health care system.

Suneel Dhand, MD, ACP Member
Suneel Dhand, MD, ACP Member, is a practicing physician in Massachusetts. He has published numerous articles in clinical medicine, covering a wide range of specialty areas including; pulmonology, cardiology, endocrinology, hematology, and infectious disease. He has also authored chapters in the prestigious "5-Minute Clinical Consult" medical textbook. His other clinical interests include quality improvement, hospital safety, hospital utilization, and the use of technology in health care.

Juliet K. Mavromatis, MD, FACP, provides a conversation about health topics for patients and health professionals.

Dr. Mintz' Blog
Matthew Mintz, MD, FACP, has practiced internal medicine for more than a decade and is an Associate Professor of Medicine at an academic medical center on the East Coast. His time is split between teaching medical students and residents, and caring for patients.

Everything Health
Toni Brayer, MD, FACP, blogs about the rapid changes in science, medicine, health and healing in the 21st century.

Vineet Arora, MD, FACP, is Associate Program Director for the Internal Medicine Residency and Assistant Dean of Scholarship & Discovery at the Pritzker School of Medicine for the University of Chicago. Her education and research focus is on resident duty hours, patient handoffs, medical professionalism, and quality of hospital care. She is also an academic hospitalist.

Glass Hospital
John H. Schumann, MD, FACP, provides transparency on the workings of medical practice and the complexities of hospital care, illuminates the emotional and cognitive aspects of caregiving and decision-making from the perspective of an active primary care physician, and offers behind-the-scenes portraits of hospital sanctums and the people who inhabit them.

Gut Check
Ryan Madanick, MD, ACP Member, is a gastroenterologist at the University of North Carolina School of Medicine, and the Program Director for the GI & Hepatology Fellowship Program. He specializes in diseases of the esophagus, with a strong interest in the diagnosis and treatment of patients who have difficult-to-manage esophageal problems such as refractory GERD, heartburn, and chest pain.

I'm dok
Mike Aref, MD, PhD, FACP, is an academic hospitalist with an interest in basic and clinical science and education, with interests in noninvasive monitoring and diagnostic testing using novel bedside imaging modalities, diagnostic reasoning, medical informatics, new medical education modalities, pre-code/code management, palliative care, patient-physician communication, quality improvement, and quantitative biomedical imaging.

Informatics Professor
William Hersh, MD, FACP, Professor and Chair, Department of Medical Informatics & Clinical Epidemiology, Oregon Health & Science University, posts his thoughts on various topics related to biomedical and health informatics.

David Katz, MD
David L. Katz, MD, MPH, FACP, is an internationally renowned authority on nutrition, weight management, and the prevention of chronic disease, and an internationally recognized leader in integrative medicine and patient-centered care.

Just Oncology
Richard Just, MD, ACP Member, has 36 years in clinical practice of hematology and medical oncology. His blog is a joint publication with Gregg Masters, MPH.

Kevin Pho, MD, ACP Member, offers one of the Web's definitive sites for influential health commentary.

MD Whistleblower
Michael Kirsch, MD, FACP, addresses the joys and challenges of medical practice, including controversies in the doctor-patient relationship, medical ethics and measuring medical quality. When he's not writing, he's performing colonoscopies.

Medical Lessons
Elaine Schattner, MD, FACP, shares her ideas on education, ethics in medicine, health care news and culture. Her views on medicine are informed by her past experiences in caring for patients, as a researcher in cancer immunology, and as a patient who's had breast cancer.

Mired in MedEd
Alexander M. Djuricich, MD, FACP, is the Associate Dean for Continuing Medical Education (CME), and a Program Director in Medicine-Pediatrics at the Indiana University School of Medicine in Indianapolis, where he blogs about medical education.

More Musings
Rob Lamberts, MD, ACP Member, a med-peds and general practice internist, returns with "volume 2" of his personal musings about medicine, life, armadillos and Sasquatch at More Musings (of a Distractible Kind).

David M. Sack, MD, FACP, practices general gastroenterology at a small community hospital in Connecticut. His blog is a series of musings on medicine, medical care, the health care system and medical ethics, in no particular order.

Reflections of a Grady Doctor
Kimberly Manning, MD, FACP, reflects on the personal side of being a doctor in a community hospital in Atlanta.

The Blog of Paul Sufka
Paul Sufka, MD, ACP Member, is a board certified rheumatologist in St. Paul, Minn. He was a chief resident in internal medicine with the University of Minnesota and then completed his fellowship training in rheumatology in June 2011 at the University of Minnesota Department of Rheumatology. His interests include the use of technology in medicine.

Technology in (Medical) Education
Neil Mehta, MBBS, MS, FACP, is interested in use of technology in education, social media and networking, practice management and evidence-based medicine tools, personal information and knowledge management.

Peter A. Lipson, MD
Peter A. Lipson, MD, ACP Member, is a practicing internist and teaching physician in Southeast Michigan. The blog, which has been around in various forms since 2007, offers musings on the intersection of science, medicine, and culture.

Why is American Health Care So Expensive?
Janice Boughton, MD, FACP, practiced internal medicine for 20 years before adopting a career in hospital and primary care medicine as a locum tenens physician. She lives in Idaho when not traveling.

World's Best Site
Daniel Ginsberg, MD, FACP, is an internal medicine physician who has avidly applied computers to medicine since 1986, when he first wrote medically oriented computer programs. He is in practice in Tacoma, Washington.

Other blogs of note:

American Journal of Medicine
Also known as the Green Journal, the American Journal of Medicine publishes original clinical articles of interest to physicians in internal medicine and its subspecialities, both in academia and community-based practice.

Clinical Correlations
A collaborative medical blog started by Neil Shapiro, MD, ACP Member, associate program director at New York University Medical Center's internal medicine residency program. Faculty, residents and students contribute case studies, mystery quizzes, news, commentary and more.

Interact MD
Michael Benjamin, MD, ACP member, doesn't accept industry money so he can create an independent, clinician-reviewed space on the Internet for physicians to report and comment on the medical news of the day.

PLoS Blog
The Public Library of Science's open access materials include a blog.

White Coat Rants
One of the most popular anonymous blogs written by an emergency room physician.

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