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Medical-Legal Counseling
This is a very challenging issue. Over the past 16 years, I
have served a medical expert on over 30 medical malpractice cases and I have
reviewed the charts of dozens of other potential lawsuits.
Patients and families must realize that not every bad outcome implies
negligence. Indeed, all operations and procedures have risk.
Your surgeon should outline these risks in what we refer to as "Informed
Consent." There are, of course, instances when informed
consent is not adequately provided and/or a complication occurs that is due
to the standard of care not being upheld. When this occurs, I do
believe that the patient has the right to be reimbursed for their injuries,
especially for loss of income due to being out of work. One
of the major debates with liability reform has to do with what is known as
"non-economic damages." Basically, this area is for "pain and
suffering." No doubt, patients should be entitled to a reasonable
amount of compensation for pain and suffering. The problem is that in
many lawsuits the non-economic damages can be in the range of tens of
millions of dollars even when the economic damages were relatively small.
There simply is not an endless amount of money available for liability
insurance. Most physicians are fighting for liability reforms that
will put caps on non-economic damages at no more than $500,000.00 per
lawsuit. That means, doctors' malpractice insurance will pay for 100%
of economic damages and up to $500,000.00 for pain and suffering. This
type of "tort reform" has been passed in several states--unfortunately,
Pennsylvania is not one of them! What is needed, of course, is a
federal medical liability reform bill to be passed. President Bush has
recommended this at every State of the Union Address, but so far, the
Congress has not been able to pass such legislation. Why?
Because the Trial Lawyers Political Action Committee is extremely powerful
and influential and both the state and federal levels. (see
my article on the subject). It may surprise you to
learn that in fact very few of medical malpractice lawsuits ever make it to
court. Most are dropped after months of review, work, and
depositions--only to find that no negligence actually occurred. And, when
these cases go to court, more often than not, the jury will find that while
a bad outcome may have occurred, the doctor did not act negligently. Just
the same, it takes hundreds of hours and thousands of dollars to defend all
of the medical malpractice lawsuits, frivolous or not. |
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Tort Reform
No two words upset a lawyer more than "Tort Reform" "Tort"
refers to "Civil Cases" and includes medical malpractice cases, injury
suits, and product liability, to name a few.
For medical malpractice, I believe three things should be done to
reverse the medical malpractice crisis in Pennsylvania and around the
country: 1. Establish County and State Arbitration Panels!
I believe that every citizen should have the right to raise a concern that
an injury or death has occurred due to negligence. However, why not
have each inquiry by a patient or family be addressed first by an unbiased
panel consisting of both doctors and lawyers? Every doctor
and lawyer in every county of the State will have to serve on the panel on a
regular basis in order to keep their licensure. If the panel believes
the case should be closed, then no lawsuit will occur. If the panel
feels that there was indeed possible negligence, then the suit will allow to
proceed. This would save millions of dollars and thousands of
hours pursuing and defending frivolous suits. This would also engage
all the lawyers and all the doctors in the medical legal process and
probably bring these two hated professions closer together. |
2. Cap
Settlements! In Philadelphia, one patient won ten
million dollars because she claimed that a CT scan of her head resulted
in her inability to read the future. More serious suits that
involved real injuries or even deaths resulted in settlements over 50,
80, and even over 100 million dollars. I know it's not
easy to determine what an injury or life is worth. I have read the
transcripts of some of the largest settlements and I can tell you that
the jury verdicts were at best debatable. Many of the physician's
downfalls were more in their inability to communicate clearly and
consistently to their patients and families, rather than true medical
negligence. Still, there has to be some limit to the
amount that is awarded in all cases, especially in the area of
non-economic damages (pain and suffering) as discussed above. It
is not the Power Ball Lottery! Juries should not be able to hand
out overzealous gifts in the hopes that someday a jury will go the same
for them! |
3. You lose,
you pay! In England, if you sue someone and you lose,
you must pay the cost of the trial. In the United States,
the lawyers work on a percentage (often as high as 33 to 50% of the
settlement) and want to insure that the greatest number of people have
the opportunity to sue someone. Lawyers will say that the
"You pay, you lose" principle is not fair to poor people. I
disagree. The medical profession cares for millions of poor people
throughout the country without health insurance
for free! Guess what? If the Plaintiff can't pay for the
cost of a trial that they lost, then the Law Firm who took on the losing
case should foot the bill! (What a concept!) This one
concept (You lose, you pay...), would immediately decrease the thousands
of frivolous medical malpractice cases that occur every year in our
country! |
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Medical Errors: When Doctors and Hospitals Make
Mistakes No doubt, doctors and hospitals do
make mistakes. In 1990, the
Institute of Medicine (IOM),
a congressionally chartered independent organization to improve healthcare,
defined health care quality as "the degree to which health services for
individuals and populations increase the likelihood of desired health
outcomes and are consistent with current professional knowledge."
In November 1999, the IOM released its first comprehensive
report on healthcare,
To
Err is Human: Building a Safer Health System. It was this
report that determined that between 44,000 and up to as many as 98,000
people die in hospitals each year as a result of medical errors that could
have been prevented.
The response to the IOM report was swift and supportive from
both public and private sector leaders. Congress acted immediately and
created the Agency for
Healthcare Research and Quality (AHRQ). Other groups such as
the
National Quality
Forum and the
Leapfrog
Group were also formed with the missions to improve healthcare
outcomes.
A number of safety initiatives have been instituted around
the nation. For example, at Lehigh Valley Hospital, we have
Computerized Physician Order Entry (CPOE). This means that at our
hospital, doctors no longer write orders on paper charts, but instead, use a
computerized ordering system for all medications. This has drastically
reduced, if not eliminated, medication errors at Lehigh Valley Hospital.
Another safety measure in our heart surgery program is
Collaborative Rounds. Every morning, a team consisting of the
surgeon, nurse, physician assistant, pharmacist, respiratory therapist,
physical therapist, occupational therapist, and even pastoral care, round
together on every open heart surgery patient. In addition, we invite
the patients' families to be present so that immediate and accurate
communication can occur. As a result of this collaborative approach,
quality care has been improved and consequently patients are able to go home
sooner.
On December 20, 2006, President Bush signed the
Tax Relief and Health Care Act authorizing the establishment of a
physician quality reporting system by the
Centers for Medicare and
Medicaid Services (CMMS), entitled the
Physician Quality
Reporting Initiative (PQRI).
This initiative by the government is the prelude to what has
become known as "Pay for Performance" for hospitals and physicians.
Simply put, those hospitals and physician practices who adhere to strict
quality measures will be rewarded over those who do not meet these important
quality standards.
I realize that physicians may find these new initiatives as
threatening. In my own field of cardiac surgery, we have been under
intense public scrutiny since 1992 when the
Pennsylvania Health Care Cost
Containment Council (PHC4) first published outcomes and costs for
coronary artery bypass graft surgery, both by individual surgeon and by
hospital. The initial impact on the field was immense. Due to
the belief that higher volume surgeons should have better outcomes,
hospitals established quotas for minimal numbers that surgeons needed to
achieve in order to be credentialed. That led to some surgeons losing
their jobs, and to this day, those of us who remain in Pennsylvania continue
to face the challenge of meeting quotas and receiving yearly report cards.
Just the same, multiple studies have shown that the public
reporting of cardiac surgical data in both Pennsylvania and New York has
resulted in overall lower mortality rates, shorter length of stay, and lower
costs, even though the patients are presenting with more risk factors during
the same time period.
The fact is that tracking surgical outcomes has motivated
surgeons to minimize variation in their surgical techniques as well as to
standardize peri-operative care, thus resulting in more consistent, better
outcomes.
Regardless of whether or not physicians consider the
emergence of Pay-For-Performance as a threat, we must understand that
the purchasers of health care--large businesses, the government, and
individuals--are demanding more accountability in medicine, and to that
extent, the U.S. healthcare system is at a crossroads.
I recognize that the issues that impact quality care and the
costs of that care are complex. Nevertheless, as practicing
physicians, the one thing we can do now, and always, is to scrutinize our
practice structure and develop the processes needed to achieve the
best possible outcomes for all of our patients!
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Please
contact
me if: 1. You are a patient who has a
medical-legal question. 2. You are a physician, nurse,
or healthcare worker who needs medical-legal advise or expert testimony.
3. You are a lawyer, insurance company, or hospital who needs a
medical expert to testify on your behalf.
My resume can be found on this web
site. My legal resume and consulting fees can be
forwarded to you after you contact me. With regards to my
reviewing cases, my promise is that I will "call it as I see it". If I
feel the case is frivolous, I will let you know. And, if I feel as a
physician you should settle the case, I will let you know that as well.
Finally, I can give a lot of advice on what to say, and what not to say
during a deposition or court appearance. I would be pleased to serve
as a consultant to prepare you for your case. Most doctors do not do
well at trial. I can most certainly help. |
