<p>to chime in on malpractice and state caps, such as California has…</p>
<p>Neighbor a few doors down, 23 year old male, strong, slim, fit, young father, working two fast food jobs to support his family. Came down with unexplained high fever, ignored by community ER (as “whining”), sent home; temp spiked at 104, died. Ambulance, fire truck etc. I was speaking to my next door neighbor who started to describe what happened and once he relayed the other symptoms, within 30 seconds, I, an untrained cc parent, knew immediately what ailed the the young man - ruptured appendix. (I had had one ten years prior.) </p>
<p>Not sure what the community hospital ER was looking for/at, but IMO they should have been held accountable financially, for not even looking…but California caps damages at $250k (I believe).</p>
<p>No, it isn’t. My life experience has taught me that commercials, salesman, and especially lawyers are not necessarily telling the truth. Despite that, I have been disappointed with purchases, lost money on supposedly “guaranteed” investments, etc. When I was young and stupid, I might have gotten upset, angry, or made threats. These days, as long as the damages are only monetary, I would view it as a “cost of education”, and move on.</p>
<p>That’s a lot different than “blaming myself” or others.</p>
Since it involves a hypothetical child of mine coming down with a catastrophic medical outcome, it’s a hypothetical anecdote. And, bluntly, a fairly hostile one for you to suggest so repeatedly.</p>
I don’t pretend to be an expert on the relevant civil procedure, but it seems to me that there are two ways to go about it. You either file for a declaratory injunction or use the discovery associated with a negligence suit.</p>
<p>
First off, you’re trying to box my previous comments into an extreme which I never took. I said before – and insist now – that a study in which doctors used medical records to detect malpractice would be almost entirely accurate assuming the records themselves were accurate.</p>
<p>There are three reasons why this would be incomplete from a patient’s perspective. First, the records themselves might be inaccurate as I’ve previously explained. Second, the records themselves are not 100% perfect, as I’ve previously explained. Third, the records often do not represent the personal aspect that would be needed from plaintiffs – that is, they might not be easily understood by lawyers and certainly not by patients.</p>
<p>I insist upon the near completeness assuming factual accuracy in an academic setting for other physicians’ detection of malpractice. I separately contend that those medical records often do not provide plaintiffs with what they consider adequate resolution and understanding of what occurred especially considering that these records are often not available to patients in the first place.</p>
<p>
Again, it’s pretty simple. If the physicians’ actions as indicated in the chart comply with standards of care, the physician did not behave negligently. Of course this is not foolproof.* But the empirical literature is in consensus (or it was a couple of years ago; I am about to look up cartera’s study to see exactly what it says).</p>
<p>It is also easy to conceptualize that juries would behave this way. And it explains a great deal of our observations about the system. So yes, this is the explanation that I believe to be true.</p>
<p>(*I have discovered that one of this thread’s favorite arguments is “So you concede that this is not foolproof?”, as if this constitutes some way of scoring points.)</p>
<p>I’m reading cartera’s article now. It is indeed in direct contradiction to Localio and Brennan’s work.</p>
<p>
[quote]
37% lacked evidence of error, although some were close calls.<a href=“Compare%20to%20Localio%20and%20Brennan’s%2083%.”>/quote</a></p>
<p>I’ll have to parse the exact methodologies to understand this discrepancy, but three possibilities immediately spring to mind:</p>
<p>(1) Things have changed since 1984. In particular, HIPAA laws providing better access to medical records may help plaintiff’s attorneys screen cases better; plus, perhaps there are more laws on the books (such as California’s nonpecuniary damages cap; I don’t know when that was passed). Finally – perhaps medical malpractice actually has increased. This is actually not crazy. As medical science progresses and we learn more and more about what does and doesn’t harm patients, clinical guidelines have presumably become more and more strict.</p>
<p>(2) The structure of the studies were very different. Localio analyzed 30,000 medical records and tried to find which of those had medical malpractice, and then looked for filings. Studdert and Mello (from what I understand, both excellent academics) approached malpractice cases first and tried to decide which of those were meritorious. It’s easy to understand that the cognitive approaches of the two academics would be very different.</p>
<p>As you can see, Localio and Brennan appear to have been much more careful about blinding.</p>
<p>(3) Of course, perhaps Studdert is simply holding physicians to a higher standard than Localio did.</p>
<p>My guess is a combination of (2) and (3) and maybe a fourth factor that I haven’t yet thought of. I suspect that (1) isn’t responsible for much. But there’s no way to know until I parse the methodologies more closely. For example, I don’t know exactly which standards Localio (or for that matter Studdert) used to determine malpractice.</p>
<p>Don’t be ridiculous. It doesn’t have to be your child. It could be the child of your fourth cousin, twice removed. You don’t have to actually bring a lawsuit, you are just going to call a med/mal attorney up on the phone, describe the scenario, and see how interested he is in the case.</p>
<p>
</p>
<p>So you agree it’s probably not necessary to file an actual malpractice claim to get access to the records?</p>
<p>
</p>
<p>I’m not sure I understand your point. It sounds like you are agreeing with me that the records don’t always tell the full story.</p>
<p>
</p>
<p>When you say it’s “not foolproof,” you make it sound like the records alone give the correct answer almost all of the time. Is that what you are saying?</p>
<p>Lol, I’m just going by what you said before. Here’s our exchange:</p>
<p>Me: If you don’t mind my asking, how old are you? And how many times in your life have you purchased some good or service only to find that it was unsatisfactory or otherwise did not perform as promised? </p>
<p>You: I have been dissatisfied with many things I have purchased. In every case, I blamed myself for not researching or doing enough due diligence before I bought (that’s called “taking responsibility”). I wouldn’t even consider suing in those situations.</p>
<p>It seems you are evading my questions and weaseling. You admit that you have demanded satisfaction but you refuse to say what if anything you threatened to do along with those demands. You first seemed to claim that you always blamed yourself and never even threatened to sue anyone, now you seem to deny it and admit that you have made some kind of threats in your life. (What exactly did you threaten?)</p>
<p>Perhaps I didn’t word my prior response correctly, I think my second response is more accurate. I’m I allowed to amend it,LOL, or will you continue to pick every word apart?</p>
<p>In all of my business career, the only time I have threatened a lawsuit was for money owed. I never followed through with any of those suits. Instead, I changed the way my businesses was paid, so it no longer became an issue.</p>
<p>It’s one thing to acknowledge that you overstated your case. It’s another to change your position without acknowledging it. It’s not a matter of what you are “allowed” to do.</p>
<p>And yes, if you continue to say silly things, I will probably continue to pick them apart.</p>
<p>
</p>
<p>That’s good for you, but a modern economy requires credit to work. If someone has been extended credit, he will always be tempted to invent an excuse to dishonor his obligations. It’s just human nature. For smaller transactions, the threat of a ding on one’s credit rating is usually enough to keep people in line. Bigger transactions require the threat of a lawsuit. </p>
<p>What percentage of people would keep making payments on their mortgages if they could just stay in their house without having to worry about legal action by the bank?</p>
<p>What bank would ever extend a million dollar commercial line of credit if it didn’t have the right to sue in case its customer decided to default?</p>
<p>As I noted previously, without lawsuits (and the threat of lawsuits) the economy would come grinding to a halt.</p>
<p>When (1) those records are accurately kept, and (2) interpreted by other physicians, and (3) the “almost” is retained in the sentence, then – yes, that is what I will assert. I don’t think this is a particularly marvelous claim, and yet you continue to focus in on it.</p>
<p>
Of course it’s not necessary. The question is whether it’s a common reason for filing a malpractice suit. Since I’m not sure that filing and winning a suit for a declaratory injunction (after which you might want to file a negligence suit anyway) is any easier than using the discovery process in the opening stages of a negligence suit – and based on the evidence I’ve presented (which is weak but better than your nothing) – I will continue to assert that it is a common reason.</p>
<p>I’m surprised, by the way. In your desire to “score points” on an Internet bulletin board, you seem to have overlooked the fact that my post #266 is a concession that 83% is probably way too high an estimate. It looks to me like 37% is probably the better number – obviously a very large difference.</p>
<p>(Sometimes this is what happens when you’re examining the issues. Cartera posted a link and provided new information, and I changed my mind.)</p>
<p>Lol, that means “no.” Unless you are also asserting that the records are accurate almost all of the time. Are you asserting that?</p>
<p>
</p>
<p>It seems to me you have the burden of proof on this point. Besides, if lots of medical malpractice actions were being filed just to get access to the plaintiff’s medical records, wouldn’t this fact have been mentioned by one of your studies?</p>
<p>
</p>
<p>:shrug: It’s not my responsibility to pour over your posts like some ancient inscription and try to tease out meaning. If you are abandoning a claim you made earlier, please say so explicitly.</p>
<p>(1) Yes, I assert that medical records are kept almost entirely accurately almost all of the time, in a way that can be deciphered by other physicians in the field when those other physicians are given access to a complete set.</p>
<p>(2) That fact <em>is</em> mentioned by a lot of studies. And I believe I’ve satisfied the rest of the burden of proof: (a) it’s what they teach medical students, (b) it’s prominently advertised on malpractice plaintiff websites.</p>
<p>(3) Okay, fine. Hopefully you won’t have to pour [sic] over this too closely:</p>
<p>–I hereby claim that cartera’s 37% study is probably closer to the truth than the 83% one I offered earlier.</p>
<p>I only practiced as a malpractice defense lawyer for a few years, but I was shocked at how many cases involved altered or missing medical records. Had the plaintiff not interviewed and deposed nurses, doctors and patients, they would have missed big pieces of several cases. We had cases in which doctors and nurses altered records. Fortunately, there were others around who were honest and reported - but usually only under oath. Also, fortunately, most were not good at covering their tracks - different colored ink, different handwriting, etc. so the defense lawyers could try to resolve the case before anyone else found the problem. Obviously, as soon as we discovered fabrication, we were torn between settling or writing a letter of coverage denial. The client would then need to get personal counsel. In one case, in which I was not the attorney, but friend of the patient, the doctor completely fabricated a report in which he claimed he told a patient the results of her mammogram. Unfortunately for him, he used a form that had not been printed until 2 years after the woman died. The dilemma then became that, if the plaintiff’s lawyer used that information, the doctor’s insurance company would accuse him of fraud and failure to cooperate and there would be no insurance coverage, and thus, no recovery for the client. </p>
<p>I do know that we routinely settled cases for less than their value. Defense attorneys almost always have the upper hand in terms of finances and man power. We could delay things until the injured was dead if need be. Rarely did we get a verdict that was more than the case was valued initially. The numbers of plaintiffs’ attorneys who can withstand an all out assault by insurance company lawyers are few and far between. Once they get to that point, they are then demonized because of their wealth. Lose/Lose</p>
<p>Hm. That is a distinction I never thought of. I’ve observed and participated in the keeping of medical records at the time and know that in a wide variety of settings, they are originally recorded very accurately (although sloppy, disjointed, and disorganized).</p>
<p>I suppose I never thought about the rate of fradulent, after-the-fact changes.</p>
<p>What’s changed over the last 20 to 25 years?</p>
<p>
</p>
<p>I’ve never done medical malpractice but I’m not terribly surprised. Most people, when preparing records, spin things in their own favor. It’s just human nature.</p>