Boston Personal Injury Lawyer Blog

There are some signs that the medical profession's code of silence is retreating, but a recent Journal of the American Medical Association survey of 2,000 doctors reveals that only 64 percent of doctors agreed that they had an ethical obligation to report colleagues who were "significantly impaired or otherwise incompetent to practice."

Seventeen percent of doctors replied that they knew of a doctor so incompetent or impaired that the doctor should not be practicing.

A new study published in the Annals of Internal Medicine suggests that when hospitals and doctors admit their mistakes and offer immediate upfront compensation to their patients, they succeed in driving down their medical malpractice liability costs.

The University of Michigan Health System (UMHS) program studied by the researchers is truly remarkable. If UMHS discovers its doctors have committed malpractice, it discloses that fact to the patient, even if the patient is unaware that he has been injured by malpractice.

Why this program works and, if indeed it has been efficacious, is anyone's guess. Ted Frank gives it his tentative endorsement but cautions that the numbers could be skewed by the absence of one or two large medical malpractice cases. Katherine Hobson notes that the implementation of the program coincides with an overall decline in the number of medical malpractice claims in Michigan and a decrease in the size of those claims.

I can see a few reasons why this program might work. For one thing, delaying compensation in cases of obvious malpractice does nothing but foster animosity toward the hospital and doctors. Injured people's resolve starts to harden when they can't pay their bills because they're out of work and months have gone by without them seeing any money. Secondly, if you get people to sign a full release of their claims before the day-to-day reality of living with their injury has really sunk in, they might be willing to accept a smaller amount of money. Lastly, if patients are entering into these agreements without the benefit of legal counsel or discovery that uncovers all the facts, they might be selling themselves short.

Of course none of these rationales for the program's success can explain the most remarkable part of the study: that the number of medical errors apparently declined. Maybe knowing that their mistakes will be discovered by the patient, regardless of whether the patient perceives the mistake, makes doctors act more carefully?

The Wall Street Journal's Health blog reports today on a new study, carried out by the nonpartisan Society of Actuaries, that estimates the medical costs of medical errors at $19.5 billion annually in the United States.

This blog has long noted how common medical errors are. More than half of pediatricians admit to making at least one treatment error a month. In an intensive care unit, individual doctors and nurses perform, on average, 178 actions per day and commit, on average, two errors. According to the Archives of Internal Medicine, only twenty percent of the time are the correct protocols followed flawlessly in administering patients' medicines. IV line infections - easily preventable if the proper protocols are followed - affect 80,000 patients annually in the US and kill approximately 5,000.

Of course not every medical error is an instance of medical malpractice. In order to constitute medical malpractice, the breach of the standard of care must cause an injury. If a medical error is caught before it results in injury, it does not rise to the level medical malpractice.

Of course, catching and fixing these medical errors does have costs for our health case system. The new study from the Society of Actuaries pins the direct medical costs of those medical errors at approximately $19.5 billion annually. These are simply the treatment costs of undoing medical errors.

Meanwhile, insurance companies pay out $4 billion a year in medical malpractice claims.

Tort reformers complain that medical malpractice lawsuits drive up the cost of our healthcare by forcing doctors to practice "defensive medicine" - ordering unnecessary tests and procedures simply to protect themselves from liability.

But the costs of defensive medicine ignore an important offset: how much does defensive medicine save us by catching diseases that would otherwise go undetected and untreated? And how much does the threat of medical malpractice litigation save us by causing doctors to remain vigilant in their treatment?

Lastly, would that $19.5 billion dollar a year figure in medical error costs be much higher without medical malpractice lawyers?

It's a problem we've blogged about many times before - patients receiving mega-doses of radiation from CT scans and other medical imaging.

There are several dimensions to this problem. One, these potentially lethal machines are being operated by under-trained and under-educated technicians who don't understand all of their dangers. Two (and perhaps most importantly), the manufacturers of these machines, including General Electric and other companies, have defectively designed them, failing to implement any kind of failsafe mechanisms that would prevent technicians from administering radiation doses that would kill an elephant.

Thankfully, The New York Times' Walt Bogdanich has not let up on this story and last weekend, published another follow-up piece. The piece details just how badly designed some of these CT machines are. As one victim of radiation overdose told Bogdanich, when a truck backs up, "it goes 'beep, beep, beep.' If you fill up the washing machine too much, it won't work. [But on a CT scan] there is no red light that says your irradiating too much."

Let's hope these defective machines get re-designed and soon.

• At Concurring Opinions, Dave Hoffman discussed a working paper co-authored with Christina Boyd entitled, "Litigating toward Settlement," that examines the factors that make a case more likely to reach a settlement. Among the conclusions reached: the more motions filed, the more likely settlement becomes (this is sort of counterintuitive because you might think the opposite is true - the more hard-fought a case, the more likely it is to be resolved by jury verdict); a plaintiff's success on a motion speeds settlement more than a defendant's victory; and cases presided over by women judges are nearly twenty-five percent more likely to settle than cases with male judges.

• An article published in the journal Health Affairs argues that foreign-educated doctors (now nearly a quarter of US doctors) perform equally well as their US-trained counterparts. The New York Times has the story. The article suggests that while, in the past, foreign-born doctors lagged behind their US-trained counterparts, by the 1990s, they began besting US-born doctors on many standardized tests in internal medicine.

  Now I am aware of research suggesting that doctors from elite medical schools perform better than their peers who attend inferior schools. But this new research about the quality of foreign-educated doctors shouldn't surprise any regular readers of this blog. Competent doctors don't need to be hyper-educated savants whose heads are crammed with medical knowledge; they simply need to be modest and conscientious followers of medical protocols to avoid committing most medical errors.

  I'm convinced that the number one thing we could do to lower the cost of health care in the United States is to increase the number of doctors by "lowering" academic standards (e.g., making it easier for foreign-educated doctors to practice medicine) and instituting more rigorous medical error protocols.

Over the past week or so, National Review's Avik Roy has kicked off a bit of a blogospheric firestorm with his posts on a journal article published in the latest edition of the Annals of Surgery entitled "Primary Payer Status Affects Mortality for Major Surgical Operations." The article analyzes the surgical outcomes of 839, 658 patients who had surgeries between 2003 and 2007, in terms of what type of health insurance, if any, the patients had. The study's authors conclude that patients with Medicaid or who were uninsured fared more poorly in their outcomes than patients with private insurance.

Some blog posts have erroneously suggested that the article concludes that patients with Medicaid actually had worse outcomes than the uninsured, but that is not the case. Medicaid patients fared worse than the uninsured in one limited category - in-hospital mortality (deaths occurring during the hospital stay). Overall, patients with private insurance had a the lowest mortality rate. Their mortality rates were nearly half of those with Medicaid and the uninsured. (The overall mortality rates of the uninsured were 0.5% higher than those with Medicaid).

There are many reasons that we would expect Medicaid patients or the uninsured to fare worse than patients with private insurance. Patients on Medicaid or without any insurance are likely to be poorer than patients with private insurance and being poor means you're more likely to suffer from a wide range of health problems from hypertension to diabetes. So the poorer health of Medicaid patients and the uninsured prior to their surgeries is one explanation that we have to take account of.

But so too are differences in the surgical talent performing the surgeries and the rates at which doctors are compensated in performing private insurance, Medicaid and uninsured surgeries. Medicare reimburses doctors at only a fraction of the rate of private insurance and Medicaid reimburses doctors only three-quarters of Medicare's already discounted rates. Because of these low rates of reimbursement, a growing number of the most sought-after doctors are turning away patients with Medicaid.

In March, I blogged about this $1.5 million jury verdict against saw manufacturer Ryobi for failing to equip its table saws with some form of flesh detection technology, such as that offered in SawStop-brand saws. This video illustrates the SawStop technology that's been wowing contractors and other tradesmen over the last decade or so:

For more about SawStop, and the power saw industry's refusal to license the patented technology for its own power saws, check out the stories here, here, and here.

To date, SawStop technology is credited with hundreds of "finger saves" - instances where the technology saved table saw operators from losing fingers.

PS - If you're wondering how SawStop works, it relies on electrical conductivity. It's the same principle that you see at work in those old "touch lamps" that would turn off and on whenever your hand came in contact with their base.

It's probably this blog's favorite topic: the way - or at least one important way - of reducing medical malpractice is for doctors to implement the same kind of systems we see in aviation.

Dr. Gawande has written a book on the subject - The Checklist Manifesto: How To Get Things Right. The central thesis of Dr. Gawande's book is that the way to prevent medical errors is not to create more intense or longer training for doctors - it's to make sure that protocols get followed by adhering to standardized checklists, the same solution for reducing error that the aviation industry hit upon in the 1930s when their aircraft started becoming more complex. Dr. Gawande's checklists, which have been deployed in a WHO pilot study, appear to be wonderfully successful.

This blog has suggested that one reason checklists have proven so effective in reducing the incidence of medical malpractice is that they put everyone on a level playing field - nurses and doctors, high rank and low - and allow anyone who catches a mistake being made to speak up about it.

Last week, Slate.com profiled another doctor - James Bagian, director of the Veteran's Association National Center for Public Safety - who is urging his colleagues to use the aviation industry's approach to reducing error. Dr. Bagian, like Dr. Gawande, is a man of many parts: prior to becoming the VA's chief of patient safety, Bagian was a NASA astronaut, an Air Force-qualified free fall parachutist and a mountain rescue instructor.

Bagian notes that the health care industry devotes a much smaller percentage of its expenditures to reducing human error than so-called "high reliability" industries, such as aviation and the chemical industry, industries that deal with very high-risk enterprises but very seldom have serious incidents.

Bagian believes that the problem with medicine is a "cultural one" and he attributes it to medicine's being so old - healers go back to Hippocrates - rather than its being a youthful field like aviation or chemical engineering that is more informed by the trial-and-error values of the scientific revolution.

But - and here is where the tort reformers probably start to shriek in horror - maybe serious error is less common in aviation and in the chemical industry than in medicine because the legal system holds those industries to a very exacting liability standards. Airlines and other forms of mass transportation are referred in legal parlance as "common carriers." Common carriers are notable for one thing in tort law: they owe an extraordinarily high duty of care to their passengers. So, if a plane crashes, the airline is very likely to be found liable, even if the mistake was hard to avoid. Likewise, the chemical manufacturing industry is one that engages in what the law defines as "ultrahazardous activity," to which a system of "strict" (i.e., non-fault based) liability attaches. Therefore, if the chemical factory causes any harm, its owners will have to pay, regardless of how diligent they were at attempting to prevent the harm.

Medical malpractice law, by way of contrast, generally holds doctors to a less stringent standard of care than that owed by common carriers or participants in ultrahazardous activities. A patient in a medical malpractice case has to prove that her doctor was at fault in committing some sort of error - by falling below the level care generally provided by other (fallible) doctors in the field.

The logic that explains this all seems simple: force people to pay when they cause harm and you reduce the amount of harm caused. But when the legal regime insulates people from the costs of their actions, the amount of that behavior climbs. So when you insulate the airlines from false imprisonment lawsuits for hours spent locked on a plane, you get more passengers sitting on the tarmac.

I'm not proposing strict liability for doctors. But when you ponder why medicine spends so much less on efforts to reduce human error than other fields, the legal regime at work seems part of the explanation.

Before leaving for the weekend, here are some topics that I wish I had time to blog about the past week or two:

• Should Medicare and Medicaid reimburse doctors when they commit medical errors classified as "never events"? Is the categorization of "never events" fair?

• Would having your doctor warn you about the dangers of texting while driving reduce the number of accidents caused by texting?

• Massachusetts passes liquor liability law requiring bars to carry a minimum insurance policy of $500,000 for injuries caused by overserved patrons.

• Fireworks safety.

Be careful on the roads and with fireworks and have a happy and safe Fourth of July.

I've blogged a lot about the claim that medical malpractice lawsuits force doctors to practice "defensive medicine" - that is, to order unnecessary tests and procedures to protect themselves in malpractice lawsuits. I've also blogged about empirical evidence suggesting that doctors' performing "unnecessary" tests and procedures may be due to the financial incentives that they face: they get paid for the procedures they do, not the results they obtain.

At any rate, yesterday, in a link roundup post, the "tort reform" blog Overlawyered stated that "defensive medicine isn't a myth" and linked to a number of news articles in support of that claim. One of the articles, by Newsweek's Sharon Begley, quoted an Emergency Room doctor who says that he routinely admits "low-risk" chest pain patients, "because I know at some point in my career, one of them will go home and die from a heart attack. I will admit hundreds to avoid that one death (and possible [medical malpractice] lawsuit)."

Wow, if that's defensive medicine, please give me some of that when I show up in the Emergency Room. The ER doc believes that admitting the low-risk patients will, over the course of his career, save at least one life. But he doesn't think it's worth doing.

Why? If you told me that I would save one life over the course of my career, I'd consider myself, on net, to have done well. When I went to the grave, I would score myself a +1.

But this doc couldn't be bothered to save that extra life. I guess the toil and trouble of performing all these tests whose outcomes he knows in advance (except for that one case where his gut is wrong) is too much work to justify saving a single life.

The doctor's attitude is also contrary to the standards of professional ethics. Doctors, like lawyers, owe a duty to their patients. The patient should come first for the doctor, just like the client comes first for the lawyer.

The only way this doctor can say that the EKGs or whatever tests he administers to patients reporting chest pains are unjustified is by some sort of cost-benefit analysis (e.g., over the course of his career, the doctor will administer 10,000 EKGs at a price of $10,000 a pop and that $100,000,000 total cost is greater, in dollar values, than the benefits of the life saved thereby). But doctors aren't supposed to be bean counters; they're supposed to give their patients the best care regardless of the cost.

If medical malpractice is leading to defensive medicine and defensive medicine is what saves my life, thank goodness for medical malpractice lawsuits.

A couple weeks ago, I blogged about how July is the month when most medication errors occur in hospitals, most likely because July is the month when new doctors begin their residencies.

This week comes news that the Accreditation Council for Graduate Medical Education is proposing new regulations mandating closer supervision of residents by more experienced doctors.

The proposed new regulations are important because they represent a departure from ACGME's prior efforts to reform residency programs. Most of ACGME's prior efforts to improve residences were directed at reducing the number of hours that medical residents work and establishing mandatory sleeping time for residents.

The focus on reducing residents' duty hours seemed to presuppose that residents who commit medical malpractice do so because of sleep deprivation or fatigue, rather than a lack of knowledge, training or supervision. But as one doctor who supports the proposed new ACGME regs says, "Patient safety in teaching hospitals is not just about duty hours." Indeed, often it's about helping the residents rather than throwing them into a sink-or-swim atmosphere.

Continue reading "Proposed New Regulations Would Require More Supervision Of Medical Residents" »

A new study, published in the July issue of the journal Pediatrics reveals that more than half of pediatricians responding to an anonymous survey admitted to making at least one misdiagnosis a month. Slightly less than half the doctors also admitted that they make at least one mistake a year that results in harm to their patient.

One of the most common mistakes committed by the pediatricians in the study was the misdiagnosis of viral infections as bacterial infections. This can lead to the child being prescribed a course of antibiotics that will do nothing to help improve his condition.

Another common error committed by the pediatricians in the study was the failure to recognize the side effects of medication and distinguish them from underlying illness.

I've previously blogged about research suggesting that doctors who are better listeners are less likely to commit medical malpractice. If this is true, it may help explain why pediatricians make so many misdiagnoses. It is difficult to be a good listener when your patient (because of her young age) lacks the verbal capabilities to describe what her symptoms are, when they began, etc.

It would be interesting to see this data broken out by age of patient and see whether misdiagnoses were more common among the pediatricians' younger patients than their teen and pre-teen patients.

Continue reading "Study Reveals More Than Half Of Pediatricians Make At Least One Diagnostic Error A Month" »

This week Overlawyered featured a blog post entitled "Malpractice Systems In Other Countries" that linked to an American Medical News article on the costs of medical malpractice litigation in the United States.

The Am Med News article suggests that the American medical malpractice system contains, "flaws that make the U.S. medical liability landscape more expensive and litigious than that of other nations."

There are a couple of noteworthy points about this article. First, you could rewrite that sentence (in fill-in-the-blank fashion) with virtually any field of American law and it would hold true. If the author substituted "patent infringement" for "medical malpractice" and wrote that experts say that "the U.S. patent infringement landscape is more expensive and litigious than that of other nations," it would undoubtedly be true. Americans are, by nature, very zealous defenders of their legal rights. Yet the "tort reformers" decry medical malpractice lawyers far more than you hear them complaining about patent trolls. And you never hear them complaining about the big businesses that are spending the big bucks to litigate their hairsplitting patent claims.

Furthermore, it should come as no surprise if we spend more than other countries on medical malpractice because we, as the world's wealthiest country, spend more than virtually everyone else across all areas of our lives, including health care. The global median income is $1,700. So of course the U.S. is going to be near the top of any survey of medical malpractice litigation. In addition to being world leaders in the amount of money that changes hands in medical malpractice lawsuits, we're also the country that spends the most on cosmetics and many other products (although the Europeans spend slightly more than us on ice cream. Should we begin fretting about whether we're spending too little on ice cream?).

In the health care sector, our spending outstrips even our high levels of spending on other goods and services. We spend roughly 15.2 percent of our Gross Domestic Product (the world's largest GDP) on health care. This is roughly one-third more than second-place Switzerland as a percentage of GDP (in terms of absolute dollar values, of course, the disparity is much larger). Our doctors are also, by a large measure, the world's highest paid.

Perhaps the "tort reformers" should look for targets elsewhere.

Massachusetts Lawyers Weekly reports in its June 14, 2010 issue that personal injury plaintiffs lost in the vast majority of cases tried in Massachusetts courts in 2009. Under Mass Lawyers Weekly's rather generous methodology, a "win" for a plaintiff was defined as a case in which the plaintiff received any money at all, even if it was only one dollar, and that dollar was less than what the defendants had previously offered to settle the case. Lawyers Weekly defined a "loss" as a case in which the jury awarded zilch to the plaintiff.

Using these definitions of a "win" and a "loss," Massachusetts Lawyers Weekly broke the data down by county and found the following percentages of plaintiff's wins in Massachusetts state courts in 2009:

• Suffolk County (Boston, Chelsea, Revere and Winthrop) - Plaintiffs won in twenty-five percent of the trials.

• Norfolk County - Plaintiffs won in fourteen percent of personal injury trials.

• Middlesex County - Plaintiffs won only twenty-seven percent of personal injury trials.

• Bristol County - Personal injury plaintiffs won only thirty-two percent of trials.

• Worcester County - Plaintiffs won twenty-three percent of trials.

• Essex County - Plaintiffs won thirty-six percent of jury verdicts.

• Cape Cod and Islands - Plaintiffs won eleven percent of jury trials.

• Hampden, Berkshire, Franklin, and Hampshire counties - the percentages of jury verdicts for plaintiffs in these counties ranged from twenty-nine to thirty-three percent.

The data are even worse for Massachusetts personal injury plaintiffs if you revise the definitions of a "win" and a "loss" to fit what most lawyers mean by those terms. Superior Court Judge Brady has kept a personal log of all the negligence trials he's presided over since being appointed to the bench in 1993. Judge Brady scores a case a "win" for the plaintiff only if the amount the jury awards the plaintiff is greater than the last settlement offer made by the defense. In the 151 negligence trials that Judge Brady has heard in his nearly twenty years on the bench, only 16 have resulted in wins for the plaintiff.

The odds of prevailing at trial may seem pretty dismal for Massachusetts personal injury plaintiffs but there are a few things that should be said about this data. First, there's an obvious selection bias at work in this study. About ninety-eight percent of cases are resolved by either pre-trial settlement or some form of pre-trial motion to dismiss.

The game theorists tell us that the two percent of cases that make it to trial are cases where at least one party is overestimating the strength of its hand. If you assume a rational defendant in a case, once the defendant is convinced of his legal liability and the dollar value of damages that a jury would force him to pay, the defendant will settle the case, simply to avoid the time and expense he would have to pay to defend the case through trial. The cases that don't settle tend to be troubled cases where there is vast disagreement about either the defendant's legal liability or the amount of damages. So the vast majority of personal injury plaintiffs in Massachusetts fare better than the trial data would suggest because the trial data represent the outlier cases that make it to trial.

Nevertheless, I don't think Massachusetts personal injury lawyers should be happy with those numbers. I think they reflect a certain level of complacency by some Massachusetts personal injury lawyers about how cases should be investigated and tried to a jury. I've previously blogged about how Massachusetts' largest medical malpractice verdict of 2009 - a $15 million case - was turned down by a number of Massachusetts medical malpractice law firms before being taken by a California attorney who was much more aggressive than most Massachusetts medical malpractice attorneys in terms of the number of depositions that he took and the theories that he pursued.

I sensed a lot of defeatism in the Massachusetts Lawyers Weekly article about trying cases in certain counties, especially Norfolk County. I've lived the better part of my life in Norfolk County and I have no compunction about trying a case to a Norfolk County jury. You simply need to know who your jurors are and frame the issue properly for them.

Continue reading "Study Shows That Massachusetts Personal Injury Plaintiffs Are Losing Vast Majority Of Trials: Is That A Problem, And What's The Solution?" »

According to a recent article published in the Journal Of General Internal Medicine, fatal medication errors spike by ten percent during the month of July, part of the so-called "July effect."

The journal article, which drew upon data from 1979-2006, finds a statistically significant increase in the number of fatal medication errors during the month of July. What is the culprit for the so-called July effect?

The study's authors suggest that it may be that July is the month when new doctors begin their residencies. Younger, more inexperienced residents may be more likely to commit medical errors.

The article attempts to rule out some alternative hypotheses. For example, one might think that the number of medication deaths would naturally spike during the summer because more people are consuming alcohol during the summer and alcohol has a number of adverse interactions with prescription drugs.

However, the study's authors discount this hypothesis because the July effect does not extend to the summer month of August. It holds true only in July - the month when new residents begin their training.

What can be done to reduce medication errors? I've previously blogged about a journal article showing how the implementation of checklists reduced medication errors by nurses. Following such medication checklists could also be beneficial for residents and doctors.

Teaching hospitals can also do a better job of supervising their residents during their first month on the job. And patients can be aware of the fact that the residents they encounter in July may be new to the job.

Continue reading "Massachusetts Teaching Hospitals May Commit More Medication Errors In July " »