With John Edwards elevation to VP candidate, here is a trend you will begin to hear more about:
About a year ago, 49-year-old trial lawyer Clay Mitchell’s physician retired, leaving him to look for a new internist.
With a reference from his father, a prominent gynecologist, Mitchell chose Dr. Ivan Castro of Winter Park Internal Medicine for his annual check-up.
Mitchell arrived for his appointment, filled out the paperwork, including his profession and employer’s name, and was escorted into a room. But after Mitchell changed into a paper medical gown, an office staff member informed him that because he was a trial lawyer, Castro would not attend to him.
“It was humiliating,” he says.
Castro, who was a named Top Doctor in 2003 by Orlando Magazine, still stands by his decision to not treat Mitchell.
His reason: Trial lawyers can no longer bite the hand that cares for them. And, Castro says, he is not alone. “Many of us do this for a very good reason.”
This is not a rare example:
A South Carolina surgeon dropped a patient when he found out her husband was a trial lawyer.
In New Hampshire, a neurosurgeon told the head of the state
Slartibartfast
CP insurance? Good grief. Everyone already HAS CP insurance; it’s called early intervention. No amount of money can undo that bit of brain damage; it’s for life.
Lex
Well, if we’re going to be hearing more about this, then we need to be reading more about this.
Rick
Good for the doctors. Better them, than so many counties going without obstetricians, as we’ve heard.
Cordially…
Rick
Lex,
That looks like a front for the trial bar. Which has been having its way. Let’s hope the wheel turns.
Cordially…
Andrew J. Lazarus
Yeah, well, the poor doctor they shoved into the hearings in West Virginia to complain about mean old premiums was a drug-addled incompetent. (Guess he looked better on John’s TV!) The doctor Bush embraced in Ohio in the cause of tort reform ignored months of complaints of horrible pain from a C-Section patient in whom he had left a sponge by mistake (permanent organ damage).
Doctors and insurance companies like to minimize risk and maximize profits like the rest of us. Faced with the choices
I’m afraid we are looking at door number three. Tort “reform” is less damaging to collegiality and a more surefire way to guarantee profits. Investing a little money in a scare campaign is nothing compared to the eventual payoff.
bendover
Being a practicing CPA I happen to have a lot of physicians as clients. I have often expressed to them that the only way for there to be true tort reform, they as a group have to be proactive in protecting their “turf”. You want to change the way the malpractice game is played then set up your own law firm. The business model would be primarily suing other attorneys for malpractice. By definition, 50% of litigants that go to court lose. Don’t like the fact that you lost, sue. Feel your representation wasn’t perfect, sue. You won your case but the judgement didn’t reach the national average, sue.
Phil
I read about this several weeks ago. A doctor at the annual AMA convention tried to get a resolution passed encouraging all doctors not to treat trial lawyers anymore. Wisely, they rejected it.
I’m curious as to how this will be spun, eventually, by the “health care is a right” crowd. If it’s a right. these doctors have no basis for refusing anyone treatment.
poormedicalstudent
well, good thing health care isn’t a right, and physicians are perfectly within their rights to deny non-emergency care to whomever they wish.
Karen
I am also a CPA with several clients in the medical field. I have spent years wading through case files to determine liability for these practices and it’s not a pretty picture. The vast majority of the time these claims involved the patient’s refusal to take responsibility for their own actions. I had one client go bankrupt due to a multi-million dollar judgment after a patient checked himself out of the hospital against medical advice and subsequently died from his condition. More often than not these cases are settled by the insurance company to save themselves from litigation expenses and sympathetic juries.
Is my experience with these claims common? I, of course, can’t answer that but it drives me nuts whenever tort reform is brought up the extreme cases are brought to the fore. Nobody wants to see those injured by bad care not be compensated but somehow we must address the abuse of the system.
jb
I am also a physician who would decline to provide elective services to a trial lawyer. Not out of revenge, or retaliation, just prudence. Just as all physicians have to consider legal risk in deciding whether to provide certain services, I make the assunption that a person who earns a living suing people would be much more likely to file a lawsuit if he were unhappy with the outcome of my care. Note that this applies only to elective care, not urgent problems. Risk management is unfortunately part of every physician’s daily routine. Just as some OBGYN docs drop the OB part of their practice when insurance premiums get too high, and some radiologist stop reading mammograms, I have stopped serving anyone who I believe is litigation-prone. This includes anyone who has ever filed a malpractice lawsuit, and any atorney in that business.
Al Maviva
Thanks for the good words, JB.
As a trial lawyer whose private practice has been exclusively defense-side, I’ll remember that when physicians seek my assistance.
Oh wait a minute, what am I thinking… I want clients who are litigation prone. Silly me.
The fact is, it will take insurance companies getting shitty and litigating everything out, before this will change. As long as rate payers pay their insurance bills, as long as doctors seek insurance, and as long as the insurance co shareholders are happy, this system isn’t going to change.
In my mind, the self-policing argument is reinforced by personal experience. I have a close friend who rose from the surgery ranks, to be chief administrator of a large hospital. He tells me quite frankly that he doesn’t mind malpractice suits, because they are an easy way for him to identify, and seek disciplinary action again, bad doctors. But then he runs a southern hospital, with a policy of litigating out claims, so the meretricious claims tend to get weeded out by the hospital’s legal staff, and as a matter of fact, plaintiff’s attorneys in that state are leery of taking the hospital on.
It seems there are several sides to this story…
willyb
Isn’t the issue really about forum shopping in the context of class action lawsuits. Politics aside, the CP/cesarean issue seems like juries making extravagant awards based on dubious causation. This ends up costing everybody (especially with the left pushing for cradle to grave healthcare for everyone).
Andrew J. Lazarus
Is it forum shopping that so many companies incorporate in Delaware (with little more than a PO Box) because they prefer corporation law there?
In any event, federalization of torts is a funny remedy for small-government conservatives, isn’t it? Or perhaps they’re really big business hos?
willyb
Andrew J. Lazarus,
Do you think trying to protect themselves from risk is a trait held solely by “big business”? What should they do, bend over for every frivilous lawsuit that comes their way?
Do you deny that there are frivilous lawsuits? If you had a business and someone sued you for a frivilous matter, would you pay $10,000 to avoid incurring $25,000 in court costs to defend yourself so you could end up paying nothing to the claimant? This issue involves big business because big business has the deep pockets!
If socialists got their dream to come true, and you were the person in charge of determining what someone should get for their injuries, would you award millions of dollars to someone that SPILLED COFFE ON THEMSELVES? Would you award millions to people that smoke, when they would have to be near brain dead not to know that it was harming them? You know, reward them for committing slow suicide. Now the latest I see is a lawsuit aimed at McDonalds because they have not implemented a pledge to reduce “trans fats” in their french fries.
What ever happened to personal responsibility. The lawyers that take on many of these cases are not in it for the good feeling that comes from righting a wrong, they are in it for the money. And the big awards they get in some jurisdiction are hurting the American consumer. Why doesn’t that offend your sensibilities? And if it doesn’t, does that make you a trial lawyer ho?
willyb
Or maybe just their pimp?
Ralph Gizzip
Karma’s a bitch, isn’t it?
Gary Farber
Doesn’t the Hippocratic Oath have something to say about this?
And would a fair response be for lawyers to refuse to defend doctors who engage in this choice from malpractice suits (or, for that matter, work for them at all)? Is this a helpful response in the long run?
jb
Neither the Hippocratic oath nor any other recognized ethical or legal doctrine requires any physician to provide elective care to any person. The converse is also true: every patient is free to choose another physician if she is not happy for any reason (unless she has waived that right by signing a contract with an HMO, joined the military, or other legal agreement). Even in an Emergency Room, where the physician is legally required to treat all who come in, the patient is allowed to refuse any and all treatments or physician’s attention.
Your “fair response” is already already in place. There are lots of lawyers who refuse to defend doctors in malpractice suits. They are called malpractice plaintiff lawyers. The reason that they work only one side of malpractice caes is that the defense lawyers are paid by the hour, and therefore do not have the opportunity to earn million dollar jackpot awards. In my perfect world, these people would have to obtain their elective medical care from the hired gun “say anything for a buck” whore MDs who testify against the defendant physician in malpractice cases.
Now, I’m not saying that there is no such thing as true malpractice, and that there are never any justified lawsuits. The problem is that there is almost no correlation between true malpractce and patients getting compensated for their injuries. The vast majority of malpractice cases are brought because a patient is unhappy with the outcome of care, and the lawyer goes back in the chart and retrospectively finds a deviation from the standard of care, as defined by the previously mentioned whore MDs. If the patient is sufficiently sympathetic, and especially if the defendant doc does not present well to a jury, he can look forward to a big payday.
Note that 80% of medmal lawsuits do not result in payment. Each of these costs $25-50K to defend, raising everyone’s medical costs. 20% of allegedly injured patients get a payday, 80% go home without a dime, and the attorneys over the course of a decade or so can count on that 20% of cases to earn them millions of dollars. In the lawsuit lottery, the plaintiff lawyers play the role of the state, making suckers out of all but a few “winners.” There is no hope for real reform as long as the lawyers make the laws.
Terry
Here, here, “jb.” The potentially very disastrous situation we may face is the election to the second highest office in the Land of a complete and total patsy for these scumbags. The WaPo, and other media as well, have reported that in excess of 80% of all of Edwards primary campaign financing came from the trial attorney brigade.
Dean
What would be the impact on trial lawyers if the government decreed that, say, 80% of all punitive damages went to a government fund for those injured by malpractice?
And that the trial lawyers’ piece of the pie would be from the remaining 20%?
(Think of it as a high tax rate, taxing those rich lawyers.)
Terry
Today’s WSJ (7/13/04) has an interesting article that bears on this discussion. The article covers a report on California’s law that puts a $250,000 cap on jury awards for pain and suffering in medical-malpractice lawsuits. The findings note that the reduction in payouts was felt far more by the lawyers than by injured patients. Recoveries by the latter group dropped by some 15%, while the law resulted in a 60% decrease in fees for plaintiff attornies. “It turns out that a lot of what this law does is shift costs to the plaintiff attornies, making them pick up a part of the tab for these cases.” HOORAY!!
Kimmitt
“More often than not these cases are settled by the insurance company to save themselves from litigation expenses and sympathetic juries.
More often than not these cases are settled by the insurance company to save themselves from litigation expenses and sympathetic juries.”
You may wish to ask why juries are so sympathetic and approach things from that direction. My grandfather was killed by medical incompetence, and I’ve suffered various results, including bedsores and internal bleeding. Given the amount of medical incompetence I’ve endured in my relatively short lifetime, you’d better believe that I’d listen carefully and sympathetically to a plaintiff’s claim.
We don’t need tort reform in this country nearly so much as we need accurate and consistent identification and dismissal of incompetent doctors and other medical care providers. When I hear doctors complaining about their malpractice bills, it brings to mind the image of a Catholic bishop complaining about the cost of civil suits for molestation. The solution is the same; if you stop covering up for the foulness, you end up much better off very quickly.
jb
Kimmitt–
PLEASE stay out of my office and hospital. Anyone who cannot distinguish between child molestation, which is NEVER justifiable, and bedsores, which are a natural consequence of aging and certain debilitating diseases, should confine himself to Christian Science. Internal bleeding is a naturally occurring disease in the vast majority of cases. Sometimes it ocurs as a byproduct of surgery or medical intervention, such as Coumadin to prevent strokes. While unfortunate when it occurs, it is not entirely preventable, and is often the price you pay for the benefits of these interventions. You claim that your grandfather was “killed by medical incompetence.” Prove it, or at least provide some detail. At the turn of the 20th century, the average age of death in this country was 42 years. Anyone who today lives long enough to be a grandfather owes his existence and survival to modern medicine. If your beef is that your grandfather didn’t live forever, that again is a religious problem, not a medical one.
Malpractice cases are rarely filed against incompetent doctors. They are filed against competent doctors who did the best they could under the circumstances provided, and had a poor outcome. The malpractice system is a lottery in which most lose big, a few win big, and the lawyers are the state that keep the lion’s share of the revenue. The idea that there are a bunch of incompetent doctors out there who account for the majority of malpractice claims is one of the big lies of the trial lawyers’ lobby. It just ain’t so.
Kimmitt
Your point appears to be that one should not criticize any doctor under any circumstnaces whatsoever. I respectfully disagree, and thus we are done.
David Foster
We need tort reform, and slso we need fewer lawyers in government, not more. Why should a single profession be so dominant among our elected officials?
But also…doctors do need to clean up their act. There *is* a serious problem of arrogance among doctors, and it seems very likely that this sometimes leads to bad outcomes due to poor communications or failures in self-analysis and self-criticism.
pennywit
Pardon me for interjecting, but I have to ask:
How practical would it be for the best doctors in a given state to assemble their own small insurance company and only insure the very, very best doctors?
Additionally, are there public-policy considerations that prevent doctors from requiring that, before a patient accept care from a doctor, that he agree to submit claims to binding arbitration except in cases of intentional torts or gross negligence?
jb
Kimmitt– I challenge you to find anything, ANYTHING, that I have written that comes close to stating, implying, insinuating, or suggesting what you state what my “point appears to be.” I never even mentioned that doctors should not be criticized. If you read my posts, you will not need to wonder what my point “appears” to be.
Mr. Foster: you are correct that doctors sometimes (often) appear arrogant, and do not communicate well with patients and families. In any other field, that leads to loss of business, or loss of a job. In our field, it often leads to a potentially career-ending lawsuit, all because an unhappy patient or family member in a highly stressed situation does not understand what he is being told. This commonly occurs when the doctor did nothing wrong, but the outcome was poor and the explanation was not satisfactory. We get a little tired of this situation. I don’t know where you got this business about “failures in self analysis.” It sounds too touchy-feely for my tastes.
Pennywit: The concept you suggest is already in place. Most states have mutual insurance companies that doctors form to protect themselves, and they are limited to doctors with good training, good credentials, and good records. The problem is that there is no correlation between the above indicators of quality and decreased risk of being the target of lawsuits. The best doctors do the most challenging work with the highest risk patients, and they get sued just as often as any others. You could look it up. In high risk specialties (just about any surgical field), it’s very unusual to practice for a decade without being sued 2 or 3 times. Not unheard of, but unusual. Because the best doctors get sued as much as more typical doctors, the insurance premiums are no better for them. It is true that there are a few truly bad docs. They tend to get sued a little more often, and they have high-risk companied that charge them even more than the rest of us pay. Paradoxically, these bad guys sometimes survive by being better communicators, resulting in poorer outcomes but patients who are more satisfied, and thus less likely to sue.
Your arbitration idea is every doctor’s idea of professional heaven (except the ones who earn their living testifying against their colleagues; it’s very lucrative). It will never happen as long as there is a trial lawyer lobby (i.e., to the end of time). They make fortunes off the current system (John Edwards is not a rare specimen in their universe).
Jeff Licquia
Kimmitt:
“Your point appears to be that one should not criticize any doctor under any circumstnaces whatsoever.”
“No circumstances whatsoever” being a term of art for “20%”, the percentage of cases that are presumably not fraudulent according to jb’s post.
Not that there’s any exaggeration going on or anything…
Kimmitt
“At the turn of the 20th century, the average age of death in this country was 42 years. Anyone who today lives long enough to be a grandfather owes his existence and survival to modern medicine. If your beef is that your grandfather didn’t live forever, that again is a religious problem, not a medical one.”
The implication here is strong, and I have no interest in debating with people who have the audacity to tell me from a position of complete ignorance the origins of my or other members’ of my family’s medical difficulties. You may rest assured, sir, that I shall do everything within my power to avoid being treated by you or anyone over whom you have authority.
pennywit
Full disclosure: I’m a law student. At this point, I could end up doing anything from insurance defense work to criminal law.
Alright, now my reply:
I’ve never heard of the mutual insurance companies; I’m not overly familiar with medical-malpractice litigation, so I’m not necessarily speaking from a position of expertise.
Answer for me what’s presenting the imposition of mandatory arbitration: Is it some sort of law at the federal or state level? Is it a medical ethics rule?
–|PW|–
david foster
jb..my concern is not so much with doctors who *appear* arrogant, thereby alienating patients, but with those who actually *are* arrogant, to the level at which safety is imperiled. This has occurred in other fields; for instance, there have been airline accidents in which the copilot knew something was wrong, but was afraid to “challenge” the authority of the captain. This is why Cockpit Resource Management training programs have been instituted; they may sound touchy-feely, but seem to be necessary.
And the status differential between doctors and nurses (for example) is far greater than that between airline pilots and copilots.
jb
PW-a better answer would come from a fully trained health lawyer, but I do know that mandatory arbitration agreements generally do not hold up in court when they are signed under the duress of need for urgent treatment. Some large hospitals do request a priori arbitration agreements (Duke Hospital in NC is one). I don’t think that they are enforceable in court but I hope a lawyer will give us a better answer.
DF: There are many analogies that people have tried to force between the medical industry and aviation. When planes are maintained and repaired while they are flying, and when doctors can take poorly performing patients
pennywit
Obviously, duress conditions would erase arbitration, just like duress would nullify any contract.
I have done a little checking via Google; I have found that there seems to be a public-policy or statutory prohibition on mandatory arbitration clauses in many states.
–|PW|–
Aaron
The story scares me because I am a law clerk with an office that does medi-mal stuff. Stated thus, I’m sure a lot of doctors would refuse me care.
But let me elaborate. My firm does a lot of other things, and I do not do medi-mal. Also, we do defense work – we defend the doctors and hospitals. And yet it seems there are doctors out there willing to refuse care to me or my family, what, because of what my business card says? That’s politics over ethics, using strong-arm tactics rather than thinking.
Pennywit – in Nevada, all cases require binding arbitration unless the projected damages are more than a certain (not very high) number. In medi-mal cases, that means you’ll virtually never get an arbitration. I suppose the law could be changed, however. And I like your proposed exception for intentional torts and gross negligence. I hate the idea of damage caps (even though I’m in defense) because the frivolous suits can still bring in enough money to make them worthwhile, and the non-frivolous suits are denied the kind of recovery they should get. Hence, the limitation, not on damages, but on duty of care (i.e. through a gross negligence/intentional tort exception) makes very good sense.
Aaron
The story scares me because I am a law clerk with an office that does medi-mal stuff. Stated thus, I’m sure a lot of doctors would refuse me care.
But let me elaborate. My firm does a lot of other things, and I do not do medi-mal. Also, we do defense work – we defend the doctors and hospitals. And yet it seems there are doctors out there willing to refuse care to me or my family, what, because of what my business card says? That’s politics over ethics, using strong-arm tactics rather than thinking.
Pennywit – in Nevada, all cases require binding arbitration unless the projected damages are more than a certain (not very high) number. In medi-mal cases, that means you’ll virtually never get an arbitration. I suppose the law could be changed, however. And I like your proposed exception for intentional torts and gross negligence. I hate the idea of damage caps (even though I’m in defense) because the frivolous suits can still bring in enough money to make them worthwhile, and the non-frivolous suits are denied the kind of recovery they should get. Hence, the limitation, not on damages, but on duty of care (i.e. through a gross negligence/intentional tort exception) makes very good sense.
Kimmitt
“If you are not on balance better off for your interactions with the medical profession, you may decide to avoid us.”
With standards like these, excellence is assured!
Again, please be certain that if I were to ever gain knowledge of your location of work, I would avoid it at all costs.
jb
Kimmitt– Your worst nightmare: Every doctor in private practice agrees with me. It doesn’t matter where I am. I am everywhere you seek medeical care.
jb
For the rest of you: please read this article. It is from the LA Times. Free registration is required, but I have posted the text below if you want to read it here.
http://www.latimes.com/features/printedition/magazine/la-tm-burma28jul11,1,4644232.story?coll=la-headlines-magazine
July 11, 2004
Medical Alert
California Drs. Richard Hahn and Lawrence Stock Prefer Working in the Jungles of Thailand. Their Disillusion With Medicine Back Home Signals a Medical System on the Brink.
Janet Wells, Janet Wells is a freelance writer based in the Bay Area.
For the first time in months, Richard Hahn is happy to be a doctor. In a ramshackle compound of cinderblock buildings near the western border of Thailand, the Southern California surgeon watches intently as his prot
pennywit
Aaron:
The standard that I set out is similar to Virginia’s test for what abrogates sovereign immunity for state officials. Check Colby v. Boyden, 400 S.E.2d 184 (Va. 1991). That case contains the rough formulation.
As a practical matter, a trial attorney would have to overcome a motion for dismissal in order to bring the suit to trial.
As a statutory matter, I’m not sure that forcing all cases under a certain amount into binding arbitration would work, as appears to conflict with the Seventh Amendment right to a jury trial for any controversy over $20 to be submitted to a jury trial if demanded.
However, a law that prohibits binding arbitration for matters involving intentional torts or gross negligence might be the way to go. It still gives the parties the power to bargain for alternative dispute resolution (which the judiciary strongly favors under the Federal Arbitration Act), while preserving the court system for more egregious cases of misconduct.
That said, I firmly believe that it’s time to revisit the “amount of controversy” element of the Seventh Amendment. I firmly believe that many disputes could be better solved through bench trials than through the jury process.
I’ve rambled enough, methinks ..
–|PW|–
P.S. How many problems do you think could be solved if courts eliminated peremptory challenges?
Kimmitt
“Every doctor in private practice agrees with me. It doesn’t matter where I am. I am everywhere you seek medeical care.”
Er, no. Many doctors hold themselves to a much higher standard than, “Is this patient marginally better off for seeing me than for not doing so?” I prefer those doctors immensely.
jb
Aaron
jb
For purposes of this discussion, elective means that you would not suffer pain or risk of damage to your health due to the abscence of my services. If you’re bleeding, in significant acute pain, have acutely high or low blood pressure, can’t breathe, you get care from me. If your pain is in your low back and has bothered you intermittently for 3 months, have a hernia that has been gradually enlarging over the past 6 months, need an annual physical or to establish a relationship with a physician, I will refer you to the phone book. In my market, acute minor care (e.g., sore throat) is very easy to access at walk-in care centers, so I would not feel any obligation to examine your sore throat; this would be different if I were the only doctor in town. I do not do “Surgery this isn’t strictly necessary,” as in cosmetic nose jobs or breast augmentation, but if I did, you would have to go eleewhere. If you have a suspicious mole on your back that has been there for years but recently started changing color and is therefore a candidate for removal, I would refer you to a colleague. I do recognize an obligation to relieve pain and suffering in my fellow man, I’m just not suicidal about it.