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Doctors' Irrational Fear of Medical Malpractice Lawsuits
a patient on another thread asked the question why doctors don't want to share information with us patients, which really is one of my "hot button" issues. here's my response:
"I think it comes down to a combination of the doctor's ego and desire to monopolize control over information so that he/she is more powerful than you AND an irrational fear of our so-called litigious society. Let me tell you: I am a lawyer. I am not a trial lawyer, not a medical malpractice lawyer, but know a thing or two about the realities and practicalities of our legal system. And I constantly argue this point over and over with those in the health care system and am always amazed at how irrational the response is: yes, anyone can bring a lawsuit, but it takes a whole lot to bring a winning lawsuit: first, the doctor has to really screw up; second, the doctor not only has to really screw up, but screw up in such a way that other doctors in the same situation in the same community would look at what was done and agree, yeah, that doctor really screwed up in a way we wouldn't have under the same circumstances -- the so called ordinary standard of care in the community test. Third, the patient has to prove that the doctor's screw up caused harm to the patient. Fourth, the patient has to prove the extent of damages the harm caused to the patient. Then the patient has to find a lawyer willing to take the case. That lawyer has to have enough confidence that the patient can prove up all this stuff so that the lawyer will actually get paid. Then the lawyer has to be willing and able to go through the painstaking task of documenting all this and persuading a judge or a jury to rule in the patient's favor.
Do you know how hard it is to do all that? Very. But walk into any medical practice in the country and the doctors will act as if every case is a winner and every patient is going to destroy their lives. The result: we all get bad information/deceived, and treated as if each and every one of us is not only going to bring a lawsuit, but that we're going to win! This is not the appropriate way for the medical world to engage in their day to day practices. In fact, it's a joke. But it's what almost all of us get for a standard of medical care. People put way too much stock in the power of our legal system. It's actually really tough for a regular person who doesn't want to blow their life savings on a lawyer to get anything done. It's a dirty little secret amongst us lawyers: we're not as powerful as you all imagine. But then again, if you guys all knew that, lawyers wouldn't get paid the big bucks, so hardly any lawyer will let you in on that dirty little secret. Trust me, next time you get a nasty-gram from a big name lawyer/lawfirm, try this: do nothing. See what happens. I'm telling you, it's more likely than not that you will call the lawyer's bluff then and there and never hear of it again."
"I think it comes down to a combination of the doctor's ego and desire to monopolize control over information so that he/she is more powerful than you AND an irrational fear of our so-called litigious society. Let me tell you: I am a lawyer. I am not a trial lawyer, not a medical malpractice lawyer, but know a thing or two about the realities and practicalities of our legal system. And I constantly argue this point over and over with those in the health care system and am always amazed at how irrational the response is: yes, anyone can bring a lawsuit, but it takes a whole lot to bring a winning lawsuit: first, the doctor has to really screw up; second, the doctor not only has to really screw up, but screw up in such a way that other doctors in the same situation in the same community would look at what was done and agree, yeah, that doctor really screwed up in a way we wouldn't have under the same circumstances -- the so called ordinary standard of care in the community test. Third, the patient has to prove that the doctor's screw up caused harm to the patient. Fourth, the patient has to prove the extent of damages the harm caused to the patient. Then the patient has to find a lawyer willing to take the case. That lawyer has to have enough confidence that the patient can prove up all this stuff so that the lawyer will actually get paid. Then the lawyer has to be willing and able to go through the painstaking task of documenting all this and persuading a judge or a jury to rule in the patient's favor.
Do you know how hard it is to do all that? Very. But walk into any medical practice in the country and the doctors will act as if every case is a winner and every patient is going to destroy their lives. The result: we all get bad information/deceived, and treated as if each and every one of us is not only going to bring a lawsuit, but that we're going to win! This is not the appropriate way for the medical world to engage in their day to day practices. In fact, it's a joke. But it's what almost all of us get for a standard of medical care. People put way too much stock in the power of our legal system. It's actually really tough for a regular person who doesn't want to blow their life savings on a lawyer to get anything done. It's a dirty little secret amongst us lawyers: we're not as powerful as you all imagine. But then again, if you guys all knew that, lawyers wouldn't get paid the big bucks, so hardly any lawyer will let you in on that dirty little secret. Trust me, next time you get a nasty-gram from a big name lawyer/lawfirm, try this: do nothing. See what happens. I'm telling you, it's more likely than not that you will call the lawyer's bluff then and there and never hear of it again."
Views: 162
Replies to This Discussion
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Permalink Reply by BPLink on
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How hard it is for an innocent businessman (such as a good doctor) to stand up to a lawsuit?
1-Where there's smoke there's fire.
Well maybe not but a lot of would be patients might investigate a potential doctor and be scared away even though the doctor won all the lawsuits.
2. How much does it cost a doctor to pay for a lawyer to defend him against a lawsuit? How much work does the doctor have to do to help his defense, how much evidence does he have to find in order to exonerate him? How much aggravation, panic, fear, stress does the sued doctor go through?
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Permalink Reply by Mike on
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I think it's easy for an innocent businessperson (such as a good doctor) to stand up to a frivolous lawsuit, which is what most of them are. about the costs of defense, hardly any of these "lawsuits" actually become lawsuits -- rather they're settled out of court by the doctor's malpractice insurance company when there's any merit to them. the cost = (the probability of the plaintiff prevailing) * (the amount of expected damages). you need level headed people assessing the true probabilities of a lawsuit's success in settlement discussions. bear in mind though that there's nothing wrong with a lawsuit that has a lot of merit costing a doctor's malpractice insurer a lot of money, because in that instance, the doctor has really screwed up in a way that other doctors in his practice would not have. those type of cases are few and far between. my point is that doctors treat it as if that's the norm.
BPLink said:How hard it is for an innocent businessman (such as a good doctor) to stand up to a lawsuit?
1-Where there's smoke there's fire. Well maybe not but a lot of would be patients might investigate a potential doctor and be scared away even though the doctor won all the lawsuits.
2. How much does it cost a doctor to pay for a lawyer to defend him against a lawsuit? How much work does the doctor have to do to help his defense, how much evidence does he have to find in order to exonerate him? How much aggravation, panic, fear, stress does the sued doctor go through?
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A given lawsuit may have little or no merit at base but on the other hand, once a certain type of "creative" exaggerator (someone who knows how to stretch the truth or in other words, a good liar who could even fool many lawyers) gets a hold of a claim, it may cost a lot of money, resources, tension, stress, anxiety for an innocent person to successfully refute the lies which are being unwittingly repeated by a lawyer (in the lawyer's own courtroom method) who is skilled at winning malpractice cases.
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there are going to be one-off cases of fraud and deceit everywhere in the world. my point is the odds are stacked against the person bringing the lawsuit, and that doctors treat it as if its the other way. that means that the true innocents -- patients like you and me -- suffer each and every time we go to the doctor because of the doctor's overblown/irrational fear of being sued.
BPLink said:A given lawsuit may have little or no merit at base but on the other hand, once a certain type of "creative" exaggerator (someone who knows how to stretch the truth or in other words, a good liar who could even fool many lawyers) gets a hold of a claim, it may cost a lot of money, resources, tension, stress, anxiety for an innocent person to successfully refute the lies which are being unwittingly repeated by a lawyer (in the lawyer's own courtroom method) who is skilled at winning malpractice cases.
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by the way, i'd fully support dramatic tort reform so that these lawsuits become even less profitable/enticing than they already are to bring
Mike said:there are going to be one-off cases of fraud and deceit everywhere in the world. my point is the odds are stacked against the person bringing the lawsuit, and that doctors treat it as if its the other way. that means that the true innocents -- patients like you and me -- suffer each and every time we go to the doctor because of the doctor's overblown/irrational fear of being sued.
BPLink said:A given lawsuit may have little or no merit at base but on the other hand, once a certain type of "creative" exaggerator (someone who knows how to stretch the truth or in other words, a good liar who could even fool many lawyers) gets a hold of a claim, it may cost a lot of money, resources, tension, stress, anxiety for an innocent person to successfully refute the lies which are being unwittingly repeated by a lawyer (in the lawyer's own courtroom method) who is skilled at winning malpractice cases.
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Permalink Reply by Dan Lyons on
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It appears I have stirred a bed of hot coals.
The simple reality – it is like walking in a minefield for everyone involved except for the profession who created it.
The physicians, even during medical school, attend business classes, which are taught by who, LAWYERS.
The majority of the medical practices have a business manager, who are again instructed by LAWYERS.
A majority of the practices have, on retainer, a LAWYER.
Every physician/practitioner has mal-practice insurance policy. That insurance carrier has a team of LAWYERS.
Every hospital, medical service affiliate, or for that matter any corporation has a LAWYER involved in their operation.
You enter a doctor’s office and you are greeted by the work of a LAWYER.
Every form, every question, and their every action are fashioned by a LAWYER.
Every paper you sign and every contract for services was written by a LAWYER to try and scare the patient from enacting their rights.
Every day, on TV, a LAWYER is advertising a “way to get money” from the “mal-practice” of a physician, hospital, or medical associated venture.
Good or bad, patients and victims, feel injured and resentful by the actions implemented as a result of the legal wrangling and the LAWYERS who have manipulated it for greed.
The individual’s only choice is to fight back with his or her own LAWYER.
At one point in time, being a barrister was an honorable vocation. Today, they are climbing overtop of each other trying to grab the money and as a result tainted the profession. (Did you hear a siren? Was that an ambulance?)
As for the payoff, it turns into a statistical analysis conducted by every party involved, the insurance carrier, the hospital, and the patient. All victims in the way the process works.
The winner is a LAWYER.
The solution to the problem of this vicious cycle is very easy to see but very hard to achieve?
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Lawyers are notoriously risk-adverse, and in this case, they have everything to gain from scaring physicians into thinking that they're much more vulnerable then they are because who will they pay to protect them? A LAWYER! But all that aside, there is perception and there is reality. The reality is that doctors can be a lot more confident in their own skins than they are for all the reasons I have explained.
Dan Lyons said:It appears I have stirred a bed of hot coals.
The simple reality – it is like walking in a minefield for everyone involved except for the profession who created it.
The physicians, even during medical school, attend business classes, which are taught by who, LAWYERS.
The majority of the medical practices have a business manager, who are again instructed by LAWYERS.
A majority of the practices have, on retainer, a LAWYER.
Every physician/practitioner has mal-practice insurance policy. That insurance carrier has a team of LAWYERS.
Every hospital, medical service affiliate, or for that matter any corporation has a LAWYER involved in their operation.
You enter a doctor’s office and you are greeted by the work of a LAWYER.
Every form, every question, and their every action are fashioned by a LAWYER.
Every paper you sign and every contract for services was written by a LAWYER to try and scare the patient from enacting their rights.
Every day, on TV, a LAWYER is advertising a “way to get money” from the “mal-practice” of a physician, hospital, or medical associated venture.
Good or bad, patients and victims, feel injured and resentful by the actions implemented as a result of the legal wrangling and the LAWYERS who have manipulated it for greed.
The individual’s only choice is to fight back with his or her own LAWYER.
At one point in time, being a barrister was an honorable vocation. Today, they are climbing overtop of each other trying to grab the money and as a result tainted the profession. (Did you hear a siren? Was that an ambulance?)
As for the payoff, it turns into a statistical analysis conducted by every party involved, the insurance carrier, the hospital, and the patient. All victims in the way the process works.
The winner is a LAWYER.
The solution to the problem of this vicious cycle is very easy to see but very hard to achieve?
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Permalink Reply by Judy on
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Sorry guys, I don't have much respect for today's medical profession - BUT - it doesn't take much publicity or word of mouth bad advertising to put a doctor's career in jeopardy - hospitals are adverse to doctors w/questionable reputations, other doctors are adverse to referring to doctors w/questionable reputations. Things don't have to go as far as lawyers and law suits.
As far as lawyers and TV commercials: yeah, my first thought is a new form of ambulance chaser. They are the LAST law firm I'd go to. Same thing w/a doctor who advertises on TV. QUACK! He's the LAST doctor I would go to.
And - I question WHY a hospital has to advertise on TV and pages worth of advertising in a magazine! In our nearby town we have two hospitals. Both constantly adveritising on TV. WHY? The one that I prefer and am familiar w/has whole wings vacant and closed, an entire floor of a 5 year old building totally vacant, yet continues to build new campuses and outpatient facilities around the town. They don't have quite the problem w/staff wages the other hospital does - BUT - they seem to have the money to pay their top executives some pretty big bucks whilst they contract out anesthesiology services, radiology services ... it just seems to me that their priorities are all screwed up.
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Permalink Reply by RockRpsgt on
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Being a tech I probably should not open this can. What are the legalities to starting a site, or group where not so good dr. visits or situations are posted. Say for instancve I know that alot of people on this site never actually had a sleep consult with an actual sleep doc pre/prior to their sleep study. This is required by most insurance companies. Or how about ENT's that push surgery before trying anything else. Would it be possible to list the clinics with bad ethical practices(PAPPY MILLS) to let future patients know. Maybe even list any legal claims that have been brought against a dr. or clinic. In return you could also list the good ones. Just a suggestion. I doubt it could be done.
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Mentioning good doctors is always welcome in a site like this. But - listing the bad ones, uh uh. HOWEVER, I see nothing against stating you encountered a really bad sleep lab or doctor or even local DME supplier or supplier's RT in CITY, STATE. Anyone in that city and state could then just PM you and ask for further info at which time you could privately name the offender and detail your encounter w/them or him or her or whatever.
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Judy, why do you say that listing the bad experiences had with a particular doctor would be a "no no"? As a lawyer, i can only think of defamation laws (libel/slander) that would come into play here, and at least in the US, truth is an absolute defense to a defamation claim, as are expressions of opinion. so a statement like "my doctor cut off my ear instead of a mole" would be a terrible thing to say about a doctor, and land him in hot water in the realm of public opinion, but if it were true, it'd be perfectly legal to post publicly. same with "i think my doctor is a slimeball" because that's a statement of opinion, not fact.
Judy said:Mentioning good doctors is always welcome in a site like this. But - listing the bad ones, uh uh. HOWEVER, I see nothing against stating you encountered a really bad sleep lab or doctor or even local DME supplier or supplier's RT in CITY, STATE. Anyone in that city and state could then just PM you and ask for further info at which time you could privately name the offender and detail your encounter w/them or him or her or whatever.
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