The uninsured..........

[ERCougar]

Originally Posted by YOhio

Is it too obvious a point to make that for every malpractice verdict, a doctor must agree with the Plaintiff? In MM cases a Plaintiff must provide an expert witness, an MD with the same professional credentials as the Defendant, or it won't get past Summary Judgment. While frivolous cases may be brought, there's always a Doctor willing to stake his reputation on the claim. So, physicians, heal thyself.

Agreed...and these "expert witnesses" are already being targeted by specialty societies. But really, what can you do? Much of medicine is not black-or-white, and the hired gun can pass it off as honest opinion. Can't sanction him for that. Picture a guy who practices for thirty years, then retires into giving expert testimony (much more lucrative than practice). The more dependable his testimony, the more substantial and dependable his income becomes. He has thirty years of practice to use as credentials. It's a great gig.

Recent example of a guy who gave testimony on the use of thrombolytics (a "stroke buster" drug--of course every high school dropout knows the intricacies of the benefits and risks of these drugs, or at least can have it explained to him by an attorney, who obviously also understands the nuances of these drugs. Never mind that physicians with years of experience still can't come to an agreement as to how these drugs should be administered. Just leave it to the plaintiff attorney to clear things up. But I digress...). The guy gave an estimate of the number of patients he had treated with thrombolytics. Well, after the trial, someone looked closely at his testimony and crunched the numbers. Based on where he had practiced and using the most favorable assumptions, he would have had to have been in practice at least 120 years for his numbers to be correct. Now, this guy's obviously lying, but he can pass it off as a bad guess if the possibility of perjury is discussed. Additionally, it would be nearly impossible to crunch these numbers during the trial. At least now he's been exposed, but this is probably the exception.

[Cali Coug]

Originally Posted by ERCougar

First paragraph: The doctor's JOB is to evaluate the woman and decide if she needs a CT. The majority don't, a few do. If we can't even get to her because we're messing around with some stupid cover-your-ass-and-try-to-get-the-probability-of-a-miss-down-to-zero head CT on a kid that's fine, that's a problem. Is this really that difficult to understand?

Second paragraph: Getting another machine MAY lower malpractice liability but it raises medical costs for the hospital, which are recouped through, you guessed it, health insurance. CT scanners are extraordinarily expensive. But you're right, this is one method hospitals use to handle the problem. It's also why our number of CT scanners per capita outnumbers European countries by 5:1. It's also a reason why our health care costs are so damn expensive. But thank you for illustrating my point as to how malpractice liability increases healthcare costs.

I seriously can't believe you're arguing this. This needs to be posted on a medical blog. Docs will get a kick out of this...

Are you reading prior to responding? Yes, it would raise health care costs to purchase more scanners. But you seem to indicate that more scanners resolves the logjam issue, which would, presumably, then lower malpractice claims against doctors, thereby lowering malpractice insurance costs (right?). What's the problem? You don't want to perform the tests, you don't want to buy the machines, you want to send people home quicker, then you want to complain when you are sued because one of them had a brain hemmorhage that could have been caught and wasn't. We may not have a perfect balance right now, but eliminating lawsuits certainly won't provide a better balance.

As for specialty courts, I can say I haven't heard of such a thing as a "specialty jury" before (I don't litigate much). But you appear to be conflating specialty court with specialty jury. A specialty court is a court designated to hear only certain kinds of cases. It doesn't mean that juries empaneled in those courts are experts (someone can correct me if they have seen something different in another state- I haven't ever come across it).

As I already mentioned, the patent courts are set up by the Constitution. Patent cases rarely go to trial. When they do, they are heard by your average jury.

[Cali Coug]

Originally Posted by ERCougar

Agreed...and these "expert witnesses" are already being targeted by specialty societies. But really, what can you do? Much of medicine is not black-or-white, and the hired gun can pass it off as honest opinion. Can't sanction him for that. Picture a guy who practices for thirty years, then retires into giving expert testimony (much more lucrative than practice). The more dependable his testimony, the more substantial and dependable his income becomes. He has thirty years of practice to use as credentials. It's a great gig.

Recent example of a guy who gave testimony on the use of thrombolytics (a "stroke buster" drug--of course every high school dropout knows the intricacies of the benefits and risks of these drugs, or at least can have it explained to him by an attorney, who obviously also understands the nuances of these drugs. Never mind that physicians with years of experience still can't come to an agreement as to how these drugs should be administered. Just leave it to the plaintiff attorney to clear things up. But I digress...). The guy gave an estimate of the number of patients he had treated with thrombolytics. Well, after the trial, someone looked closely at his testimony and crunched the numbers. Based on where he had practiced and using the most favorable assumptions, he would have had to have been in practice at least 120 years for his numbers to be correct. Now, this guy's obviously lying, but he can pass it off as a bad guess if the possibility of perjury is discussed. Additionally, it would be nearly impossible to crunch these numbers during the trial. At least now he's been exposed, but this is probably the exception.

You keep going back to "passing it off as honest opinion." What makes you think it isn't their honest opinion? Are you suggesting most expert witnesses in medmal are committing perjury?

[UtahDan]

Originally Posted by ERCougar

I'm still waiting for the reason why an expert panel isn't appropriate to evaluate the medical decisions involved in a lawsuit.

No one's saying medical malpractice should be eliminated.

The 7th amendment is one really good reason.

[creekster]

Originally Posted by ERCougar

I'm still waiting for the reason why an expert panel isn't appropriate to evaluate the medical decisions involved in a lawsuit.

No one's saying medical malpractice should be eliminated.

Assuming you mean medical malpractice lawsuits, that is exactly what you are saying. When you urge the elimination of liability for instance of MM unless there is gross negligence, you are talking about eliminating the potential for recovery.

What, exactly does this expert panel do, in your physician's ;legal utopia? Are they a gatekeeper for access to court? are they a third party voice in court? what do they do?

Perhaps you are thinking of a worker's compensation type system, where the state mandates awards based upon schedules and removes the right to sue an employer for anything other than fraud or willful misconduct? Have you looked at a WC system in a place like California? Are you sure you want to mandate that type of process? Quite frankly, it is a mess. It is expensive, it fails to provide adequately to many injured workers and too well to others, and it leaves third parties subject to huge verdicts because the employers can walk away from the risk of a suit.

What system specifically are you advocating? I see you throwing up your hands at the unfairness of it all for the doctors, but I hear very little in terms of the solution. I am not convinced that any possible solution you have proposed is an improvement for anyone except the doctors who have screwed up.

[creekster]

Originally Posted by ERCougar

Agreed...and these "expert witnesses" are already being targeted by specialty societies. But really, what can you do? Much of medicine is not black-or-white, and the hired gun can pass it off as honest opinion. Can't sanction him for that. Picture a guy who practices for thirty years, then retires into giving expert testimony (much more lucrative than practice). The more dependable his testimony, the more substantial and dependable his income becomes. He has thirty years of practice to use as credentials. It's a great gig.

Recent example of a guy who gave testimony on the use of thrombolytics (a "stroke buster" drug--of course every high school dropout knows the intricacies of the benefits and risks of these drugs, or at least can have it explained to him by an attorney, who obviously also understands the nuances of these drugs. Never mind that physicians with years of experience still can't come to an agreement as to how these drugs should be administered. Just leave it to the plaintiff attorney to clear things up. But I digress...). The guy gave an estimate of the number of patients he had treated with thrombolytics. Well, after the trial, someone looked closely at his testimony and crunched the numbers. Based on where he had practiced and using the most favorable assumptions, he would have had to have been in practice at least 120 years for his numbers to be correct. Now, this guy's obviously lying, but he can pass it off as a bad guess if the possibility of perjury is discussed. Additionally, it would be nearly impossible to crunch these numbers during the trial. At least now he's been exposed, but this is probably the exception.

Honestly, I do not believe your example. When and where did this happen? I cannot believe in a MM case of any value that a defense or plaitniff;s attorney would not have figured this out and used ti to impeach this witness. I think this is likely an apocryphal tale that never happened like this.

Certainly you don't believe that in any case worth anything at all that this sort of information isn't revealed until trial? I assure you, all of this is looked at very carefully before, during and after a pre-trial deposition. Moreover, the fact that he lied about how many patients he tredated doesn't mean he lied or was even wrong about the substance of his opinion, right? SO perhaps justice was served in your apocryphal case.

plus, you do realize, I suppose, that each side has a hired gun? These guys that testify for a living become huge targets if they start lying, btw. In federal court in CA, for example, an expert witness is required to reveal names of cases in which he has given depo or trial testimnoy for some period of time (this can vary by jurisdiction) prior to the present case, which allows lawyers to dig out prior testimony to find out if the guy exaggerates, lies or takes inconcsitent or unlilkey positions (which is another reason your story is unlikely). These pro exerts, if anythign, tend to be quite careful in what they say and how far they will go. The process is just not as unblanaced as you believe.

[SoCalCoug]

Originally Posted by ERCougar

I'm still waiting for the reason why an expert panel isn't appropriate to evaluate the medical decisions involved in a lawsuit.

No one's saying medical malpractice should be eliminated.

You sound like you assume plaintiff's lawyers file malpractice lawsuits without an expert review.

I practice medical malpractice law in California. Step number 1, before we even take the case, is to have the records reviewed by an expert physician to give us a preliminary opinion on whether there was malpractice or not.

If we get a thumb's down, we tell the client there's no case. It's stupid for me to try to pursue a case without merit. I'd starve if that was a significant part of my practice.

We have pretty strict limits on medical malpractice recoveries in California. General damages (pain and suffering) are limited to $250,000. Plus, you can't recover for medical bills paid by collateral sources (i.e. health insurance).

Is it fair to assume, based on your arguments in favor of medical malpractice "reform" that malpractice premiums in California would be much lower than those in states without caps. Right?

You're speaking out of your ass as far as I'm concerned.

[UtahDan]

Originally Posted by SoCalCoug

We have pretty strict limits on medical malpractice recoveries in California. General damages (pain and suffering) are limited to $250,000. Plus, you can't recover for medical bills paid by collateral sources (i.e. health insurance).

Boy did you ever make me glad I don't practice there. Here we have the collateral source rule and the cap is $1,850,000.00 and goes up 50K every July first. We are strict contrib., however.

You do have to have an MD certify that standard of care was breached before you can file. The defendant can also force it before a review panel of MD's which then hold a hearing and render and opinion. That opinion is then filed with the clerk of court and is admissible as evidence at trial. The members of the panel can also be called to testified and are granted civil immunity for all their conduct in connection with the proceedings.

It is actually a pretty good system. It keeps weak cases from getting filed, gives everyone a preview of the evidence at the panel hearing, and still preserves a person's right to go to a jury. I bet when ER reads this even he will approve.

I don't want to rant too much, but the collateral source bar you guys have out there is about the most illogical thing I can think of. The idea that a tortfeasor ought to benefit from a contract I pay for is mind boggling.

[creekster]

Originally Posted by UtahDan

I don't want to rant too much, but the collateral source bar you guys have out there is about the most illogical thing I can think of. The idea that a tortfeasor ought to benefit from a contract I pay for is mind boggling.

Spoken like a plaintiff's counsel. WHy should a plaintiff recevie compensation for something he never paid?

We need to be careful here, or we will be fighting amongst ourselves in front of the doctors.

[il Padrino Ute]

Originally Posted by creekster

Spoken like a plaintiff's counsel. WHy should a plaintiff recevie compensation for something he never paid?

We need to be careful here, or we will be fighting amongst ourselves in front of the doctors.

Go ahead and fight. I'm not a doctor.