So You Want to Be A Lawyer.

[lskinner]

<p>

In the second stage, [those] medical records … were referred to two physicians who evaluated, independently, the cause of a patient’s injury and whether there had been negligence in that case.

</p>

<p>Well that’s better than going by the complaint, but it seems to me that a lot of medical malpractice will not necessarily be disclosed just by looking at the patient’s medical records.</p>

<p>It occurs to me it’s analagous to measuring workplace discrimination or wage and hour violations just by looking at personnel records, time sheets, and payroll records. You will find some violations this way but you are likely to miss others.</p>

<p>

Troyen Brennan, a Harvard professor of law and public health, points out that research has consistently failed to find evidence that litigation reduces medical error rates.

</p>

<p>This also seems like it would be difficult to measure, since medical malpractice is actionable in all 50 states. That said, I wouldn’t be surprised to learn that tort litigation is not a very effective deterrent for medical malpractice compared to other approaches.</p>

[bluedevilmike]

<p>Well, the analogy’s very imprecise. Medical records are much more complete than workplace timesheets, and the grounds for action in medical negligence are much narrower than, say, all of Title VII.</p>

<p>In my view, the major complaint about the article would be twofold. First, the fact that they’re being evaluated by docs is the best alternative, but I’d be curious to see what a batch of experienced plaintiff’s lawyers, a batch of MPH’s, and a batch of laypeople would do.</p>

<p>More importantly, the data is from 1984.</p>

[BigG]

<p>How often is malpractice the result of simple fatigue?</p>

[lskinner]

<p>

Well, the analogy’s very imprecise. Medical records are much more complete than workplace timesheets,

</p>

<p>It depends on the timesheets. Some employers keep very good records of hours worked; some keep sloppy records. </p>

<p>

and the grounds for action in medical negligence are much narrower than, say, all of Title VII.

</p>

<p>I’m not sure how you would compare the two. Anyway, the conducted prohibited by Title VII is not necessarily the same thing as workplace discrimination – it’s both broader and narrower. Regardless, my point holds even if you pick out a narrow category of discrimination claims.</p>

<p>

I’d be curious to see what a batch of experienced plaintiff’s lawyers

</p>

<p>I’m pretty confident that most of the plaintiff’s lawyers would say that at a minimum they need to talk to the patient to evaluate the case.</p>

[bluebayou]

<p>

Without the threat of lawsuits far more people would dishonor their contractual obligations, people would start resolving disputes with AK-47s…

</p>

<p>Did you make this statement, yes or no?</p>

<p>Is it true, yes or no?</p>

<p>If true, do you have any evidence to support it, yes or no?</p>

<p>

Now please either (1) QUOTE me where I claimed that loser pays laws would result in breakdown of rule of law; or (2) admit that I made no such claim and apologize.

</p>

<p>A little oversensitive, counselor? Critical reading skills declining? </p>

<p>I just asked a question. I never made such a claim.</p>

[bluedevilmike]

<p>

Some employers keep very good records of hours worked; some keep sloppy records.

</p>

<p>Right, but my point is that workplace discrimination involves a lot more than hours worked. Things like “hostile climate” and promotions that weren’t given and hiring and firing decisions don’t have a single place where they’re all supposed to be tracked.</p>

<p>By contrast, medical records ought to be a complete record of any actions taken and any injury – obviously, provided that medical records are adequately kept. That’s not a complete list of what you’d need for malpractice (since you’d also need to know what the physician ought to have observed, which there’s no way to record except via inference) – but it’s a lot closer than timesheets are to workplace discrimination.</p>

[bluedevilmike]

<p>

How often is malpractice the result of simple fatigue?

Nobody really knows. Workplace hour restrictions don’t seem to be reducing the number of medical errors – but that could be because:
–80 hours a week still results in fatigued residents
–Hour restrictions just mean that attendings are more exhausted than before
–The regulations are not enforced (I believe a JAMA article estimated that 5% of residencies were in compliance) enough
–There’s some other factor which increases errors (“handoff mistakes,” in investment banking parlance) to compensate for more alert physicians
–Medical errors aren’t the result of fatigue</p>

[lskinner]

<p>

Did you make this statement, yes or no?

</p>

<p>Yes.</p>

<p>

Is it true, yes or no?

</p>

<p>Yes.</p>

<p>

If true, do you have any evidence to support it, yes or no?

</p>

<p>Yes. </p>

<p>

A little oversensitive, counselor? Critical reading skills declining?

</p>

<p>I prefer not to engage with people who misrepresent my position – if you feel that makes me oversensitive, then so be it. And my reading skills are fine as far as I can tell. </p>

<p>Here’s what you asked:</p>

<p>

Does Britain – which is known for a loser’s pays law – have a lot of gun-totin’ rascals?

</p>

<p>Clearly you were pretending that I had taken the position that “loser pays” results in breakdown of rule of law. Of course I have taken no such position.</p>

<p>Similarly, you yourself accused me of setting up and attacking a strawman. When questioned on this point, you were unable to back up your claim and in fact ignored my questions.</p>

<p>I don’t engage with people who argue by misrepresenting my position. Either by doing so explicitly or by pretending I said something different from what I actually said. You can call it oversensitive if you like, but the fact is I don’t enjoy it. Unsurprisingly, you did not own up to what you did.</p>

<p>Bye.</p>

[lskinner]

<p>

Right, but my point is that workplace discrimination involves a lot more than hours worked.

</p>

<p>I was referring to hours worked in the context of wage and hour claims, not discrimination claims. </p>

<p>Do you agree that if an employer maintains adequate payroll records, time records, and promotion records, it’s possible to evaluate a wage and hour claim just by looking at the records?</p>

<p>

By contrast, medical records ought to be a complete record of any actions taken and any injury – obviously, provided that medical records are adequately kept.

</p>

<p>I’m skeptical of this, but in any event your qualification is a significant one. Look at it this way: According to your own study, a large majority of medical malpractice claims are brought even though the medical records disclose in those cases no negligence. As a practical matter, that means a large number of sophisticated experienced medical malpractice attorneys staked a lot of time and money on the likelihood that they would be able to demonstrate malpractice.</p>

<p>As far as I can tell, there are two ways to explain this:</p>

<p>One, in a lot of cases there is potential malpractice which is not disclosed by the medical records; or </p>

<p>Two, lawyers are bringing lots of frivolous cases in hopes of extracting nuisance settlements from insurance companies.</p>

<p>The second possibility is just wrong and as I mentioned up thread, it’s very easy to test it: The next time you or a family member has a bad medical outcome (but little reason to believe there was medical malpractice), call up 5 or 10 medical malpractice attorneys; explain the situation and see if they will take the case. Explain that the case may be weak but obviously the insurance carrier will offer a quick nuisance settlement to save itself the trouble of litigating the case. I’m pretty confident that you won’t find any takers.</p>

[bluedevilmike]

<p>

It occurs to me it’s analagous to measuring workplace discrimination or wage and hour violations just by looking at personnel records, time sheets, and payroll records.

</p>

<p>I don’t pretend to have any knowledge of “wage and hour violations,” so I suppose I have to take your premise as given. Nonetheless, it seems to me that a lot of workplace discrimination wouldn’t show up even on well-kept personnel records, time sheets, and payroll records. That’s much less the case in medical records, where at a minimum the injury and any actions taken should show up. (Again, I concede that actions which should have been taken might not be there, and that poorly-kept medical records are a problem in and of themselves.)</p>

<hr>

<p>As for your “One or Two,” there’s always possibility:</p>

<p>Three: the claims are filed partly to obtain access to medical records in the first place,
Four: since a lot of “erroneous” suits will actually win, this isn’t lawyers wasting their time – they’re just gambling,
Five: the clients are not telling the whole truth to the attorney, and
Six: plaintiff’s attorneys systematically have a broader view of what malpractice is than physicians.</p>

<p>In my intuition, explanations (1), (2), and (5) are probably minority situations. I suspect that (3) represents the plurality of claims filed, (4) is the second-most common reason for “frivolous” suits, followed by (6).</p>

[lskinner]

<p>

Three: the claims are filed partly to obtain access to medical records in the first place,

</p>

<p>As far as I know, you can easily get your medical records without filing a lawsuit. You just sign a HIPAA release and write a check for photocopying.</p>

<p>

Four: since a lot of “erroneous” suits will actually win, this isn’t lawyers wasting their time – they’re just gambling,

</p>

<p>Assuming that’s the case then who’s to say the case lacked merit to begin with?</p>

<p>Imagine a doctor review’s the patient’s medical records and concludes that there was no malpractice. Later, a judge reviews the records as well as affidavits submitted by the parties and concludes that there is a triable issue of fact as to whether there was medical malpractice. Later still, a jury reviews the records, listens to the testimony of witnesses and decides to believe the patient. Why should we conclude that the judge and the jury both got things wrong? Especially given that judges love to chuck cases on summary judgment and juries love doctors.</p>

<p>

Five: the clients are not telling the whole truth to the attorney,

</p>

<p>That certainly happens a lot, but at the same time attorneys tend to be very skeptical of what their clients tell them. More importantly, the study you cite (apparently) did not even bother to interview or medically examine the patients. It’s hard to believe that plaintiffs’ attorneys would have dramatically less accurate assessments of cases given that they have more information to work with.</p>

<p>

Six: plaintiff’s attorneys systematically have a broader view of what malpractice is than physicians

</p>

<p>Plaintiff’s attorneys are concerned only with what the legal system considers to be malpractice. I do agree it’s possible that the legal system’s view is different from the view of the reviewers in your study.</p>

[bluedevilmike]

<p>(3) For one thing, the 1984 data predates HIPAA. For another, apparently it’s somewhat frequent for hospitals to refuse to comply with medical records requests. This is partly for suspicious motives and partly because hospitals really are often incompetent at that sort of thing.</p>

<p>Obviously this is the sort of problem for which a lawsuit is not the worst outcome in the world, particularly since it will likely get dropped once the record is revealed. Still, it is very frustrating that the lawsuit usually involves the physician and is one of the reasons why docs feel that malpractice suits are essentially random and inevitable.</p>

<hr>

<p>(4) Well, maybe I wasn’t sufficiently clear. Imagine that there’s a pool of lawsuits which everybody knows aren’t meritorious – that is, they don’t involve any negligence from the physician. A negative outcome happened despite the doc doing everything right.</p>

<p>However, the attorney knows that the plaintiffs are sympathetic enough that about 20% of juries will find for them anyway – with a payout large enough to cover legal expenses for the other 80% of cases.</p>

<p>Maybe you could argue that that 20% is meritorious; I suppose it’s a subjective standard anyway. But the point is that neither the physician nor the insurance company nor the plaintiff’s attorney in my story knows which ones they’re going to be. They all just have to gamble and find that particularly sympathetic story.</p>

<p>

[A] patient’s likelihood of winning a suit dependent primarily on how poor his or her outcome was, regardless of whether that outcome was caused by disease unavoidable risks of care.

</p>

<p>ATUL GAWANDE, COMPLICATIONS, 57 (2002). </p>

<hr>

<p>(6) I intended to hint at two possibilities and actually thought of revising my post.</p>

<p>(a) What if malpractice attorneys simply aren’t very good at predicting what juries will do? What if juries are just … unpredictable? With a few payouts justifying a high error rate?</p>

<p>(b) What if the legal procedures as a whole are systematically wrong? And notice that the studies push this in both directions: simultaneously too conservative and too permissive.</p>

<p>98% of patients who should sue for negligence do not. Some of these surely went to a skilled plaintiff’s lawyer who looked at the case, knew the would-be plaintiff was correct on the merits, but also knew that the plaintiff would lose anyway.</p>

<p>Meanwhile, 83% of physicians getting sued should not be. Some of these surely went to an equally skilled plaintiff’s lawyer who looked at the case, knew that the would-be defendant had done nothing incorrect, but also knew that the plaintiff would have a reasonably high expected winnings (probability of winning times expected payout).</p>

<p>Since the lawyer (1) represents the plaintiff’s interests, (2) knows that the plaintiff really needs the money, and (3) has an economic stake himself, it is easy to imagine that these cases constitute a large group of Localio and Brennan’s non-meritorious lawsuits.</p>

[bluebayou]

<p>deleting double post.</p>

[bluebayou]

<p>

Clearly you were pretending that I had taken the position that “loser pays” results in breakdown of rule of law.

</p>

<p>As they might say in the legal world, ‘facts not in evidence…’. :D</p>

[lskinner]

<p><a href=“3”>quote</a> For one thing, the 1984 data predates HIPAA. For another, apparently it’s somewhat frequent for hospitals to refuse to comply with medical records requests. This is partly for suspicious motives and partly because hospitals really are often incompetent at that sort of thing.

[/quote]
</p>

<p>I’m kinda skeptical that there are (or were) a lot of malpractice lawsuits filed primarily to get medical records. Do you have a cite?</p>

<p><a href=“4”>quote</a> Well, maybe I wasn’t sufficiently clear. Imagine that there’s a pool of lawsuits which everybody knows aren’t meritorious – that is, they don’t involve any negligence from the physician. A negative outcome happened despite the doc doing everything right.</p>

<p>However, the attorney knows that the plaintiffs are sympathetic enough that about 20% of juries will find for them anyway – with a payout large enough to cover legal expenses for the other 80% of cases.

[/quote]
</p>

<p>This is very similar as the second scenario I described and you can see it’s wrong in exactly the same way. The next time a child or whatever in your family has a bad medical outcome, just start calling malpractice attorneys. Explain that there is very little evidence of malpractice but you figure there is a decent chance of winning just because of the sympathy factor. Tell the attorney that you think it’s worth the gamble and see what happens.</p>

<p>Oh, and by the way, a plaintiff’s case normally has to get by a motion for summary judgment. In other words, if the undisputed facts show that the defendant should win, the judge normally has authority to dismiss the case without a trial.</p>

<p>

98% of patients who should sue for negligence do not. Some of these surely went to a skilled plaintiff’s lawyer who looked at the case, knew the would-be plaintiff was correct on the merits, but also knew that the plaintiff would lose anyway.

</p>

<p>I would guess most of them did not bother because it’s not worth the trouble. For example, the 90 year old guy who dies of heart failure instead of dying a few weeks later from pneumonia. Or someone who is given the wrong medication, is sick for a day or two, and then gets better.</p>

<p>

Meanwhile, 83% of physicians getting sued should not be

</p>

<p>That’s just not true for reasons I discussed above. You are assuming (among other things) that all malpractice is disclosed just by looking at the medical records.</p>

[bluedevilmike]

<p>One of they teach medical students is that one of the primary drivers for filing a lawsuit is “to find out what happened.” Obviously this isn’t just about medical records; it also includes subpoenas, depositions, etc. I’ll see if I can dig up survey data; my Internet at this particular location is very slow.</p>

<p>You can see that that seems to be one of the reasons that this particular firm is advertising:
[Pittsburgh</a> Medical Malpractice, Car and Truck Accident Lawyers | Berger & Lagnese, LLC](<a href=“http://www.bergerlagnese.com/library/?catid=PA1016]Pittsburgh”>http://www.bergerlagnese.com/library/?catid=PA1016)</p>

<p>

Are you the victim of medical malpractice while you were at UPMC Mercy Hospital? Do you want to find out what really happened? Don’t keep wondering. Our attorneys and doctors will find out what happened.

</p>

<p>

Do you have a medical malpractice case against Brownsville General Hospital or Brownsville Tri-County Hospital? We will get your medical records, hire the top experts and find out what really happened.

</p>

<p>Meanwhile, here’s a book which supports your position in general but supports my position in this particular argument:
[The</a> Medical Malpractice Myth by Tom Baker, an excerpt](<a href=“The Medical Malpractice Myth by Tom Baker, an excerpt”>The Medical Malpractice Myth by Tom Baker, an excerpt)

we know that “undeserving” people sometimes bring medical malpractice claims because they do not know that the claims lack merit and because they cannot find out what happened to them (or their loved ones) without making a claim.

</p>

<p>Reports of hospitals obstructing access to medical records are very common.</p>

<hr>

<p>

The next time a child or whatever in your family has a bad medical outcome, just start calling malpractice attorneys. Explain that there is very little evidence of malpractice but you figure there is a decent chance of winning just because of the sympathy factor. Tell the attorney that you think it’s worth the gamble and see what happens.

</p>

<p>First off, God forbid that I ever be involved in a situation this dire. But yes, if I had an particular kind of extremely bad medical outcome – say, a child born with a severe cerebral palsy with no evidence that the ob/gyn did anything wrong – I suspect that, actually, it wouldn’t be that hard finding a plaintiff’s attorney willing to file a claim.</p>

<p>This particular argument has been very effective for you (because you’re usually right on it). In this case, however, I’m going to push back at you. First, television advertisements, horror stories, and other anecdotal evidence indicate that you’re in the wrong on this one. Your argument here is not only anecdotal, but a hypothetical anecdote.</p>

<p>Second, the empirical literature argues that the magnitude of the harm, not the physician’s responsibility, determines likely outcomes in trial. In light of this, plaintiff’s attorneys would be behaving rationally if they behaved the way I describe.</p>

[cartera45]

<p>Here is the study cited by bluedevilmike that is both good news and bad for doctors in that a very small percentage of those injured sue, but a large percentage of those are rewarded more on the severity of the injury than on the negligence involved. </p>

<p>[NEJM</a> – Relation between Negligent Adverse Events and the Outcomes of Medical-Malpractice Litigation](<a href=“http://content.nejm.org/cgi/content/full/335/26/1963]NEJM”>http://content.nejm.org/cgi/content/full/335/26/1963)</p>

<p>Here is another article that discusses the myth of the frivolous malpractice suit, citing a more recent study. In it 72% of claims that did not involve error received no compensation. </p>

<p>[Study</a> Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits - May 10, 2006 -2006 Releases - Press Releases - Harvard School of Public Health](<a href=“http://www.hsph.harvard.edu/news/press-releases/2006-releases/press05102006.html]Study”>http://www.hsph.harvard.edu/news/press-releases/2006-releases/press05102006.html)</p>

[BigG]

<p>Does the jury ever consider what would have been the outcome with no treatment at all?</p>

[cartera45]

<p>BigG - are you saying that if the person would have died without treatment but died because of negligent treatment, should the jury consider that the person would have died anyway?</p>

[lskinner]

<p>

One of they teach medical students is that one of the primary drivers for filing a lawsuit is “to find out what happened.”

</p>

<p>As you say, that’s not the same thing as simply obtaining records. In any event, I think it’s safe to say that attorneys pursue medical malpractice claims not just to “find out what happened” but because they think they have a decent shot at making money.</p>

<p>

Obviously this isn’t just about medical records; it also includes subpoenas, depositions, etc.

</p>

<p>So you agree that just medical records don’t always tell the full story?</p>

<p>

Reports of hospitals obstructing access to medical records are very common.

</p>

<p>That may be true, but I doubt you need to file a full blown medical malpractice case to get access to your records. </p>

<p>

In this case, however, I’m going to push back at you. First, television advertisements, horror stories, and other anecdotal evidence indicate that you’re in the wrong on this one. Your argument here is not only anecdotal, but a hypothetical anecdote.

</p>

<p>It’s not so much a hypothetical anecdote as an actual experiment you can do. </p>

<p>

Second, the empirical literature argues that the magnitude of the harm, not the physician’s responsibility, determines likely outcomes in trial

</p>

<p>I have a feeling this study suffers from the same problems as the last one you cited. How exactly do you determine the degree of physician responsibility?</p>