nos-trum. pronunciation: \nos'-trum\. noun. Etymology: Latin, neuter of noster our, ours.
1. a medicine of secret composition recommended by its preparer but usually without scientific proof of its effectiveness.
2. a usually questionable remedy or scheme.
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Saturday, March 27, 2010

Why Doctors Practice Defensive Medicine

Almost half of all doctors get sued for malpractice.  Which do you consider more likely:  half of the doctors are bad doctors or there are a significant number of good doctors who get sued?

[To be fair, it may be that good doctors can make a bad decision, or that a "bad result" is sometimes considered  "bad medical care."]

Just from watching the process of medical litigation (and participating in peer-review) over the past few decades, my view is that about one-half to two-thirds of allegations of medical negligence are frivolous.

Doctors are motivated to defend against frivolous lawsuits, but why should they fear them if they did no harm?

I hear this from people sometimes:  "right or wrong, you make a good living, you can afford it" and "you would stand up for yourself if you didn't do anything wrong."  This makes some of my colleagues cynical.  They think patients like them only when they're sick and need help; at all other times, they resent needing doctors, and particularly dislike doctors when they have to pay the bill.

But back to what I hear people say.  I'm not sure that anywhere in the job description does it say doctors should expect cross-examination as a consequence of caring for patients.  If you've ever watched a trial, it's pretty typical for the plaintiffs lawyer to accuse you of every vile thing they can think of, in order to influence the jury.  It's pretty unpleasant.

Juries are swayed by lawyers implying that a test was not done, needed or not.

By the fact that there IS a test that sometimes is done in some cases, many people see it as negligent that it wasn't done in this case.  This makes it very hard to defend not doing a test:  if a treatment had a bad result, and you didn't do some test, then it may be that the test would have avoided the bad result.  It's not a logical train of thought, but humans have a hard time not buying into it--particularly when faced with someone who has undergone suffering or loss.

If doctors do all the defensive medicine they can, does it keep them out of the courtroom?

The evidence is mixed on this.  Even the worst ambulance-chaser will think twice before suing:  he/she may be unlikely to win for a patient if they can't find a test that wasn't done.  So, yes, it works--somewhat.

BUT, studies show that there is a single most common cause for malpractice lawsuits:  poor communication.

For the record, a couple of patients were really ticked off at me when I was tired and snotty, back in my early days.  So I learned the lesson of Communication early.  And, for the record, I have never been sued in 35 years.

Next posting on this:  The relationship between medical lawsuits and medical negligence.


Jess said...

Do you think medical malpractice occurs often enough that removing the right to sue would be a bad idea? Or at least make it harder somehow? There has to be some way of de-litigating health care so doctors can get on with their job and those lawyers with 1800-numbers can go and get real jobs. Sigh. I get quite bothered by this.

Doc D said...

In Texas we have tort reform. Since enactment in 2003 frivolous lawsuits have fallen by a third. But the real gain was in new physicians, lowered costs, economic growth. Premium reductions were used to build a free clinic in Corpus Christi, for instance. Politically, however, the Trial Lawyers Assn is heavily invested in the Obama administration and the big O is not going to go against them.

It's important to know that reform in TX, just limited "punitive" damages ($750K). "Economic" damages can still be millions. Lawyers just don't want to limit how much they can get--studies show they get most of the award, not the patients.

But, to answer your question, I think patients need a recourse to compensation for harm that is negligent...but it would work better with arbitration panels.

Finally, there's a reason one-fourth of the world's lawyers are in the US.

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