January 05, 2005
Bad doctors cause lawsuits...who knew?

News flash: A big part of the medical malpractice litigation problem is caused by a few bad doctors. So says a study commissioned by the Bush Administration, ironically to support their contention that damage award caps need to be implemented.


"There's a need to protect the public from substandard performance by physicians," said Josephine Gittler, a law professor at the University of Iowa supervising part of the study. "If you had more aggressive policing of incompetent physicians and more effective disciplining of doctors who engage in substandard practice, that could decrease the type of negligence that leads to malpractice suits."

Randall Bovbjerg, a researcher at the Urban Institute, said, "If you take the worst performers out of practice, that will have an impact" on malpractice litigation. "Most doctors have few or no claims filed against them. But within any specialty, a few doctors have a high proportion of the claims."


Boy. Who'd have ever thought of that?

And who's the leader in taking action against these insurance premium inflating malfeasors? Why, that decadent socialist haven of Taxachusetts.


Massachusetts has adopted an approach that experts say may provide a model for other states. Without waiting for a complaint to be filed, the Massachusetts Board of Registration in Medicine conducts a clinical review of any doctor who has made three or more malpractice payments to patients, as a result of jury verdicts or settlements. Nancy Achin Audesse, executive director of the board, said: "Three is a magic number. Doctors who have to make three or more payments are also more likely to be named in consumer complaints and to be subject to discipline by hospitals and the medical board."

In Massachusetts during the last 10 years, Audesse said, "one-fourth of 1 percent of all the doctors 98 of the 37,369 doctors accounted for more than 13 percent of all the malpractice payments, $134 million of the $1 billion in total payments."


Yeah, but it's more fun to go after the plaintiffs' attorneys. Who cares if the underlying problem gets addressed or not?

Posted by Charles Kuffner on January 05, 2005 to Legal matters | TrackBack
Comments

Charles, I came to realize sometime last year (I think I even blogged on it) that the target wasn't necessarily the lawyers themselves, but the oodles of money they contribute, mostly to Democratic campaigns. Take attorney money out of the equation and that makes the Republican takeover of state and federal government all that much easier.

Posted by: MB on January 5, 2005 11:46 AM

Moreover, do you know who has the primary responsibility for dealing with the tiny percentage of bad docs who cause an overwhelmingly disproportionate number of the actual med mal?

That's right, the State Boards of Medical Examiners, which are a freaking joke. They simply refuse to suspend licenses of bad docs, letting them off with reprimands, warnings, short-term suspensions, time after time, so that the bad docs go back and commit malpractice again and again.

In reality, that's one of the chief functions of the tort system, particularly as it applies to med mal: it acts to remedy these bad doctors when the medical institutions themselves -- the state boards of med examimers -- refuse to do it.

You want to decrease med mal cases? Demand the state boards of med examiners get more funding and, most importantly, a spine. That's one of the things I find so ironic about "tort reform:" the very doctors screaming so vociferously about med mal are the ones who (a) bear a responsibility for those suits by their consistent refusal to DEMAND the board of med examiners police their own (i.e., it's very low on their list of priorities); and, as a corollary (b) possess the quickest, and arguably most meaningful method of reducing those suits: get the bad docs out by stiffening the board of med examiners.

One interesting note on this: lawyers are villified in public perception. Partly as a response to this perception, the state bar (at least in Texas) is pretty damn serious about policing their own. The commission on discipline is NOT a joke; they're very aggressive and very active, and getting called before them is serious bidness, from what I've heard.

In contrast, doctors are generally held in very high regard by the public. Does this inversely correlate with a more active and aggressive board of medical examiners? Probably, to some extent.

Posted by: TP on January 5, 2005 12:29 PM

Yep. I've practiced law in Wisconsin. A former boss was investigated for a relatively minor complaint that was taken very seriously. I was interviewed as a withness. The investigator was very thorough and professional. The hearing was serious and the punishment appropriate.

Posted by: JDS on January 5, 2005 2:51 PM

Unfortunately, more and more of the better doctors are going away from practicing medicine and doing more research. My brother in law is a doctor in Philadelphia, however, he does not practice medicine more than 20 hours a week anymore (mind you, when he is on duty, he is the head of the emergency room at Temple University Hospital, which makes Bellevue (where he went to medical school at NYU) look like a country club.) The rest of the week, he is doing medical research.

Posted by: William Hughes on January 5, 2005 3:00 PM

Florida just passed a 3 strikes and the Dr. is out initiative. My expectation is that Dr's will settle rather than risk going to trial.

Massachussetts seems to have refined this position. However, I fear, the Medical Boards will simply exxonerate their fellow doctors.

Posted by: molly bloom on January 5, 2005 5:39 PM

I'm a physician. Capping "pain and suffering" awards (and not capping awards for economic loss) would have limited effect on capping total malpractice payouts. Malpractice insurance makes up a fairly small percentage of the cost of health care in this country. There is probably much larger amount of cost incurred by conscientious physicians who over test because of our cultural fear of malpractice suits. So W's tort reform is going to do little at all for the consumer. It is nothing more than a politically motivated jab at Democratic contributors.

Posted by: J Bean on January 5, 2005 5:41 PM

I'm wondering why insurance companies with record profits are allowed to keep raising the malpractice rates. Isn't there suppose to be some function formula that keeps this in check? Or a fed/state agancy overseeing this kind of thing? I know my car insurance rates can't just arbitrarily be raised 100% if there isn't a corresponding rate of increased payouts by my insurer.

Posted by: angela on January 5, 2005 6:27 PM

There's a bad old joke:

Q: What do you call the guy who graduates at the bottom of his class in Medical School?

A: Doctor.

There is no doubt that the medical profession is not adequately policing itself. But the recent allegations that average malpractice judgements are increasing, could be looked at a different way. Perhaps the lower dollar "frivolous" lawsuits are already getting weeded out of the system, and only serious, high dollar lawsuits are proceeding to verdict. That sounds like a good thing, and basically is what Bush wants.

Posted by: Charles E on January 5, 2005 6:32 PM

J Bean - THANK YOU for bringing a physician's comments to this topic - MUCH NEEDED!

I've said over and over - tell me what you think - that the problem with malpractice suits is bad doctors, that it's just a few doctors that are causing all other doctors med mal premium pain, because these few doctors seem to generally have MULTIPLE claims against them. also, I read that med mal insurance is not tiered, such as, say car insurance - that is, a claim against a Dr will not affect that Dr's particular rates, the claim is pooled and affects EVERY Dr's rates. seems to me if they tiered the system it would keep from penalizing the good Dr's as well as provide a market force (if disciplinary forces are lacking) to push a multiply-negligent Dr out of business.


angela - you make an excellent point. I was reading somewhere recently in regard to W's visit that insurance regulation is actually connectable to malpractice problems - i.e., the less well-regulated any given state's insurance industry is, the more the malpractice verdicts will seem out-of-whack. case in point: Ohio has (as I recall) the least regulations on its insurers. hence the conditions leading to the "hell hole" label.

Posted by: Wendy on January 5, 2005 7:36 PM

This seems quite an odd position coming from the right-wing prophets of "law and order". They seem to be saying that "increased penalties deter crime for regular people, but not for the investor class". What's the reasoning behind increasing the penalties for street-drug dealers while decreasing the penalties for suppressing research that documents the deadly effects of a prescription drug?

The progressive response must be to propose alternatives that actually DO reduce frivolous lawsuits, while stressing the deterrent effect of monetary penalties (and the prospect of sharing a jail cell with a street-drug dealer) on corporate and white collar misconduct.

It's a simple question of law and order.

Posted by: roscoe on January 5, 2005 8:07 PM

Who knew? Lots of folks, though not the corporate media. Just as Wendy has posted, Public Citizen Health Letter has for years been pointing out that a few doctors have been responsible for the majority of malpractice claims. And as TP posted, the State Medical Boards cover up for them. At the very least, exposing the records of bad doctors is a cost free step toward resolving the problem. But don't expect the Boards to take the initiative.

Posted by: Fred on January 5, 2005 8:59 PM

Just to be a bit of a contrarian:

What are the odds that the 100 or so "bad docs" in Massachusetts (where I live) have distinctly litigious patients? It would have to be geographical or insurance-client based for that to occur, but I am wondering if there is another explanation for such an obvious to see problem with specific doctors..

Posted by: kevin. on January 5, 2005 9:55 PM

I served on the lawyer discipline board in Arizona for six years. A client of mine, a physician, also served on that board as a lay member for six years. My client also involved himself significantly, as part of his professional activities, in medical risk management and insurance issues. In his opinion, shared with me many times, the doctors can learn much from the lawyers about disciplining their own. Further, while limits on damages feel good and, in theory, might reduce the costs associated with malpractice and malpractice insurance, the real solutions involved getting bad doctors out of the practice and improving the health of the population. Bad doctors and patients in poor health cause many of the bad outcomes, and it's bad outcomes that lead to malpractice. Finally, if anyone thinks insurance companies are not going to take advantage of "tort reform"--by taking any savings and sharing it with their executives and their shareholders--they're living in lala land!!! When insurance companies can make record profits inthe midst of a crisis they're part of the problem, and a part of the problem our President will never acknowledge.

Posted by: Mark Rubin on January 5, 2005 10:25 PM

Charles - one other point that isn't made enough is that if med mal case settlements (& jury awards by extension) are rising, well, gosh, aren't healthcare costs rising as well? And aren't settlements and jury awards supposed to compensate patients for their out-of-pocket expenses to remedy cases of malpractice?

The media is rolling over on this one - Bush was in Illinois today and NPR of all outlets says, "Bush says that doctors in Illinois are going out of business because of increased insurance premiums." Democrats say the number of doctors in Illinois is rising.

For crying out loud - it's the job of the media to check those statements and tell us what the objective truth is - I don't care what Bush or Democrats say - if there are more doctors now than a few years ago - state that, and state it as verifiable fact.

Sometimes I wonder...

ps Notice how plaintiff's attorneys are grouped under this awful header "trial lawyer?" Don't you think the doctor's lawyer is a "trial lawyer?" Isn't a prosecutor a "trial lawyer?" And yes, I'm a lawyer.

Posted by: Edge on January 6, 2005 1:31 AM

Edge, "trial lawyer" is a euphemism that plaintiffs' lawyers have chosen for themselves. The main (and very powerful) association of plaintiffs' lawyers is called "The Asssociation of Trial Lawyers of America." In order to be a full member of ATLA, you must be a lawyer who primarily "represents the plaintiff in civil litigation or represents the defendant in criminal litigation." So according to the "Trial Lawyers of America" the doctor's lawyer is not a "trial lawyer," and neither is the prosecutor. And yes, I'm a lawyer too.

Posted by: jr on January 6, 2005 8:48 AM

Frivolous Lawsuits???!!! Junk lawsuits??? Well Golly, waddya say we string up those trial lawyers, like horse thieves. Like everything Bush, he's clueless... The economics on this are real simple... In order to prove a medmal case you need $$$$ for experts to testify, and $$ for litigation costs like depositions etc... the average COSTS (excluding atty fees) in a routine case are $30,000 to 50,000-- advanced by the law firm, since the clients don't have the dough. (BTW, Yes, doctors have figured out how to make money here too-- its a veritable cottage industry-- and since you by law can only prove a case with doctors as experts... the average charge on for a physician at trial or deposition is $1000 per hour!! Yes you got that right, and $10,000 a day for trial!!) Anyway, I digress-- the point is: if a law firm has to put at risk $30,000 to 50,000 in out-of-pocket costs just to get to court, and the lawyer ONLY gets paid if he WINS (contingent fee)... how many frivolous lawsuits you think there are. Answer: NOT TOO DAMN MANY!! Factor in that the doctors (contrary to popular belief) will rarely settle (since it goes against them in the National databank, maintained by their profession and the insurance industry) and they would take their chance in court whatever the odds since settlement is a losing proposition in any event vis-a-vis the databank... and presto you have a formula in which only an idiot takes a case that has little merit. Of course, no one seems to care about reality in Bushworld anyway... so let the lawyer lynchin' party resume... RIP

Posted by: Tom S on January 7, 2005 6:23 PM

I find it deceptive and disgusting that the hosptal I went to had to have known that this doctor has botched several women and continue to let him practice there. They knowing his past (and I not knowingO) let me got home and almost die from peritonitis after he cut my intestines in 3 spots..After suffering physically and mentally and being permanently scarred, losing my belly button, he has since gone on to cut another innocent person. I was within 24 hrs of dying since after 48 hours peritonitis is usually fatal and it was at 59 hours when I was taken into surgery..My son on his 8th birthday not knowing if his mother was going to live besides my other two children almost being left motherless..It's high time South Carolina enforces the law to release prior suits against drs to the public...And that hospital be held accountable for employing butchers instead of doctors......

Posted by: fl on August 14, 2005 10:43 AM

I my opinion it goes like this if your injured at work and try to go though BWC at least in Ohio,First the Gov,gets big money from the company you worked for, for there campain so you dont have a chance with any gov.office helping you!!Which the medical board is a gov. office so no help there if you have a bad doctor!Which is getting paid by your work company to exam you and say you are not injured!!Nice little circle of friends your work company has!!Where sent to two company appointed doctors which where paid by your work company,with there exam report got your med-doctor visits taken away!Have been to 25 other doctors all saying I was injured at work,but BWC used one statement from the company appointed doctors to get med-doctors visits taken away through BWC!Nice racket they have going!!!9 going on ten years we have been on this case.Had to file bankrupcy two time,I hate to say it but I just cant keep going I am losing everything!!!

Posted by: Elizabeth E on February 3, 2006 11:09 PM

My lawsuit was in the courts for 14 years (not a mistype)
It was against the doctor for whom the surgery was named; Dr. Peter J. Jannetta..
He paralyzed half of my face after saying "I promise you your face cannot be injured."
In 2 depositions he said "major and common complication." and on the stand "unknown."
The record showed hugh circumstantial proof of 'ghost surgery' ) including that his son was across the street having emergency surgery at the same time I was in the OR.and medical diagram of surgical finding doesn't jibe with drawings from a previous operation.
He admits to doing 'ghost surgery' in his biography.
The defensive test results were ignored until after surgery. They showed the chances of paralysis would be high.
(This is only part of the issues.)
My lawyer, Michael Fishbein literally forced me to settle the case for a negligable amount. He had done no interrogatories or taken depositions. (He told me he had lost zesr for the work (which he now denies) shortly before the trial date, too late to do anything. It turned out this was during the same time he was primary lawyer for the Phen-fen diet drug case.
The forced settlement was on a Friday night. The following week Dr. Jannetta's name was brought forth as Governor Tom Ridge's nominee for secretary of health for the state of Pa.
Despite being told of what the Pa. Superior Court considered perjurious testimony * the nomination and confirmation went forward. (1995-1996)
There Allegheny medical society. the state medical board, the association of neurological surgeons and the New England Journal of medicine, among others, have refused to take any sanctions or action against him. The latter republishing Dr. Jannetta's seminal article on the "jJannetta Procedure' which includes me in the time frame but not in the study or known risks (i.e. he makes no reference to facial paralysis as risk.). Having been informed of this risk the NEJM said they did not have room to publish the corrected information.
This man has, last known to me, over 13 cases in the Courts.
The Trigeminal Neuralgia Association has him on their medical board.
They have refused to acknowledge my book on my experience with this disorder because it tells of Dr. Jannetta and my experience with him (which is a minimal part of the book.) preferring to protect him rather than the sufferers of this disorder, despite their charter being to inform the public about this fairly unknown disabling pain problem.
I apologize for the length but my experience is one in which, at every step of the way, the doctor has been protected while the patients are ignored.
He is a known recidivist doctor who has never suffered any repercussions from his malpractice.
Thank you
Carol Levy

(author; A Pained Life, a chronic pain journey http://www.xlibris.com/bookstore/book_excerpt.asp?bookid=18435
http://www2.xlibris.com/bookstore/bookdisplay.asp?bookid=18435)

* "We have little difficulty in concluding that Dr. Jannetta's testimony at deposition was different than, or inconsistent with, the testimony at trial." Levy v Jannetta, CCP Allegheny County, GD 81-7689; appeal -J. A370017/92 Levy v Jannetta et al, No. 00150 Pittsburgh, 1992. settled, 1995.

Posted by: Carol on May 11, 2006 10:32 AM

This law in MA. must be new. In 1999, after being hacked up by a plastic surgeon, I found that in the ten years prior to my surgery that there were only 33 lawsuits in which the plaintiff prevailed (against plastic surgeons only) and there were 450 plus plastic surgeons in MA at that time. Low and behold 3 judgements were awarded against the surgeon who destroyed my body. That is almost 10% held by 1 doctor out of 450+(in that area of practice). There were no disciplinary actions taken out against him then or now. I am still awaiting our day in court in 2006..it is not easy or timely to sue a bad doctor, one sugery turned into five, a tiny unnoticible scar turned into a humiliating series of hack marks that cannot be covered. I believe that his record should be made available to would-be patients since it could save them a lifetime of emotional suffering.

Posted by: JennC on August 31, 2006 3:10 AM

here is the best idea i could come up with get the word out on bad doctors it your duty as all the laws are in there favor.please visit us at www.teamkruses.com

Posted by: dennis kruse on September 18, 2006 10:36 AM

Ok,Democrats its your turn to do something on this matter,I voted for you Please Help use get this injustice changed!!Dont let a person how gets money from companys be incharge of what happens to the injured workers of Ohio!!

Posted by: Elizabeth E on November 10, 2006 6:51 PM