The Likko med mal reform proposal

The only proper way to start this post is to direct readers to Burt’s generous and thoughtful essay on reforming medical malpractice.  This post is my reply to it, and I’ll conclude by summing up my reaction to his proposal for reform.  (Short answer for those disinclined to read the whole thing: I think it’s an idea with real merit.)  But even if I weren’t replying to it, I’d still recommend everyone read it because it’s very good.

For my part, I do not believe medicine should be too shielded from tort.  On the one hand, medical providers are uniquely vulnerable to adverse outcomes because they often take care of people in extremis, and because human physiology is complex and disease is often subtle.  I don’t think it holds up to scrutiny to compare physicians to restaurateurs, for example, because there is far less inherent risk in serving people food than in evaluating them for chest pain.  However, I must also acknowledge the other side of the coin.  Medical providers are also uniquely able to inflict harms, though negligence, incompetence or simple fallibility.  There must be a system that affords appropriate redress, and tort is certainly part of that system.

That said, I know all too well the downsides to the culture of fear that can permeate medical care, to which Will alluded in a comment to an earlier post.  My own views are informed by three different experiences.

The first was being deposed as a witness in a med mal case from when I was a resident.  I was not named as a defendant, but part of the case focused on care I had provided.  After I reviewed the chart, I had no concerns about having delivered poor care.  However, during the process of preparing for deposition and during the deposition itself I realized how a few careless phrases I had used in haste (I was coming off an overnight shift during the period of time in question) could have given the appearance of substandard care.  It was a somewhat stressful lesson in how large a role documentation can play in a med mal case.

The second was having a formal complaint filed against me with the board of licensure in the state where I used to practice.  (Nothing raises my heart rate quite like receiving a certified letter from the board of licensure.)  Upon reading the substance of the complaint, I could scarcely believe my eyes.  To describe the complaint as frivolous is an insult to frivolity.  On those occasions when I have shared details with friends, a common reaction has been incredulous laughter.  Indeed, the complaint was summarily dismissed at the board’s next meeting.  But the complaint will stay with me forever, because every time I apply for privileges at a new hospital or to participate with a different insurance provider, I have to disclose it and document its resolution.  It is onerous and tedious to do so, even for something as picayune and without merit as that complaint was, and I dread what further burden would ever be created by having to document a med mal case against me, even if it never went to trial.  Also, the episode clarified how important it is for patients or parents to have a good opinion you as a medical provider.  There is no way that complaint would have been filed if the mother who did so hadn’t already disliked me for having (inappropriately, in her opinion) failed to provide an antibiotic on an earlier occasion.

The final episode centered around a Very Bad Situation, into which I quite literally walked one morning.  It would be extremely imprudent of me to go into any detail, but suffice it to say the outcome was not at all what anyone involved would have wanted.  That said, it was the only outcome that had any possibility of occurring no matter what interventions were attempted, and I am 100% certain that my actions were professionally, ethically and morally correct.  However, there was still a very unfortunate outcome and very unhappy people at the end.  I was genuinely concerned that a lawsuit might follow, and in the end a complaint about me was made with the hospital where I worked at the time.  Thankfully, I was scrupulous about my documentation, and the hospital was able to see quite clearly that my conduct was right.  I did not fear losing a lawsuit, but I was quite reasonably afraid of a suit being filed.  I was just the wrong doctor at the wrong time, and I told the Better Half at the time that if I did indeed get sued, I would leave the clinical practice of medicine.

Now, since no suit was actually filed, I don’t know what I really would have done.  But the fact that I had to face the potential of further Very Bad Situations in that job was a major reason for my leaving it and finding the one I have now.  (There were many other reasons.)  Which is unfortunate, because I went from a relatively underserved area to one that has no shortage of doctors, and I do not think it horribly egotistical to say that I delivered a valuable service.  But I just didn’t want to keep facing the liability there.

These three experiences are what, for me, cause the low thrum of anxiety at the back of any challenging clinical encounter.  No matter how scrupulously I might document, I know that should a lawsuit be filed the opposing counsel will look to find any wording that may undermine the case that I did the best I could.  I mean absolutely no disrespect to Burt (whom I sincerely hold in the very highest regard) or those in his profession when I say that.  It is their job to do so in representing their clients.  But worrying about dotting every single “i” just so makes difficult encounters even more fraught, and I think also can lead to unnecessary tests or treatments in some circumstances to better create the impression of having done all one could do.

I like Burt’s idea about expediting the question of clinical wrongdoing, and allowing that aspect of the case to be scrutinized by a judge (preferably one with expertise in medicine and malpractice) prior to going to a jury.  I also know, however, that juries are typically sympathetic to doctors, and so I wonder if doctors who would like to do away with juries in med mal cases don’t seek a result that would actually counter their best interests.  I absolutely agree, as I said at the beginning, that tort is an appropriate part of keeping medical providers accountable and compensating those harmed by genuine malpractice.  But I also agree with Will’s comments that it does feel like that bad case is just an unlucky day away (as I came dangerously close to discovering myself), and I wonder what can be done to minimize that feeling and its ill effects.

Russell Saunders

Russell Saunders is the ridiculously flimsy pseudonym of a pediatrician in New England. He has a husband, three sons, daughter, cat and dog, though not in that order. He enjoys reading, running and cooking. He can be contacted at blindeddoc using his Gmail account. Twitter types can follow him @russellsaunder1.


  1. I mean absolutely disrespect to Burt

    I think you mean “absolutely no disrespect.” I usually don’t nitpick typos (I make so many myself), and I know Burt knows what you meant, but I thought you might this particular one called to your attention.

  2. I also know, however, that juries are typically sympathetic to doctors, and so I wonder if doctors who would like to do away with juries in med mal cases don’t seek a result that would actually counter their best interests.

    That is, if anything, an understatement. I don’t propose removing a jury trial, nor do I think any such proposal would pass muster under the Sixth Amendment. I propose an early-in-the-litigation procedure where the plaintiff claiming that Doctor “X” deviated from the standard of care must make at least a threshold, but meaningful, showing of the evidence backing that claim up.

    • I apologize for misreading. In any case, I think it would indeed be a salubrious change to have an early-in-the-litigation procedure to establish a substantial deviation from standard of care. Do you think such a procedure would be a realistic goal for policy change?

      • I do think that a reasonable amount of support for the idea in theory could be gathered, but I doubt that either the legislatures nor the judicial administrators of the various states would allocate sufficient resources to civil courts for such a mechanism to work in the manner envisioned. When money goes to the courts, it tends to go to courts handling criminal cases — and most states are cutting, not increasing, the resources allocated to their judicial systems.

  3. I had kind of thought that jury trials are better for the initial ruling, but riskier when it comes to damage amounts. I could be wrong on that.

  4. I’d prefer to see everyone in a malpractice court have an MD: judge, jury, counsel, everyone. That would clear out all this sentimental hooey from the proceedings.

      • I can see how it might raise reasonable concerns about the legitimacy of any such proceedings. However, I do honestly think most physicians would be appropriately critical of their colleagues’ mistakes. Nobody wants to see someone harming their patients, and I don’t think professional courtesy would blunt that to a significant degree.

        The concern I had, which just occurred to me this morning, is that an early-in-litigation procedure to establish actual medical mismanagement would be prejudicial to the jury. If it’s already established that the physician erred in a significant and harmful way, what remains for the jury to decide?

        • My vision for the early-stage hearing was something akin to the standard applicable to a summary judgment motion — the judge would only have to make a decision that a jury could reasonably find that a deviation from the standard of care took place, not that it actually did so, nor that the medical error caused the harm claimed by the plaintiff.

          The jury would still have to look at the evidence and decide if indeed there was a medical error made, and decide the separate question of whether that error caused harm.

          But there could be other ways to structure it.

      • I do think it’s overblown. Ever been around a malpractice case and seen the shenanigans which go on? I watched my mother (anesthesiologist) involved in such a case. Plaintiff is wheeled into the courtroom, all sorts of interesting adjectives on the record.

        Court takes a break, the plaintiff is seen outside the courthouse, on his hind legs smoking a cigarette. Yeah, buddy.

  5. It seems to me that this is a case where part of the issue is where the burden of proof sits.

    We’re conflating three types of possible bad causes of bad outcomes: one, the doctor made a human error; two, the doctor did not meet the standard of care; and three, the doctor was maliciously negligent (human error + attributable cause to the doctor: surgery while drunk or some such).

    Now, doctors are going to make human errors. That just is. Provided it’s not a case of bumbling incompetence, this (IMO) is something that is supposed to be checked by the process. That’s what medical organizations are for – the doctor may be the team leader, but there’s lots of other team members there.

    So in the first two cases, I would think a preliminary hearing should resolve one question first: is this a case of potential malicious negligence (in which case the doctor is in it, up to his or her neck), or a case of standard of care (where the doctor is in it, if they weren’t following the standard of care, or the hospital is in it, if the standard of care is bad)… or a case of human error (in which case the doctor is in it or not, in a cases basis, and the hospital is in it).

    The tort then can become a question of the *care*, rather than the doctor. If the hospital or medical practice should bear the responsibility of the case, the doctor gets a pass. Maybe the doctor was working on a 18 hour shift, and made an error because they couldn’t see straight. Well, that’s not really *on* the doctor, that’s on the organization that puts them on an 18 hour shift, yes?

    This does lighten the autonomy load on the doctor both ways, though.

      • I’m not sure how much medical malpractice takes place in cases where the doc is in the doctor’s office and it’s an office visit, vs. you’re in the hospital and Things Go Wrong, but my impression is that the second is more likely than the first.

        Well, you’ve got nurses and technicians and EMTs and layers of doctors and Heads of Departments and all that. Usually the “standard of care” isn’t just a list of things the single doctor does, right?

        If a doctor signs off on a procedure and the technician mucks it up, that’s not the doctor’s fault. If the doctor signs off on a procedure that they shouldn’t sign off on and the *nurse* really ought to be able to catch it, then that’s a case of the doctor’s error (perhaps human error/fatigue/they were sick that day), but the process is what failed, ultimately.

        Granted, if there’s no check on the doctor, and they’re the ultimate authority, then that’s where it’s stuck on the doctor. But if there are any sorts of other eyes on the chart that ought to catch a mistake and they don’t catch it either, it’s the process’s fault, not the doctor’s.

        Generally speaking, in an audit process oversight sort of deal, you want punishments (if any) to fall on those that can make the changes. The hospital is the one that can make procedural changes that can prevent process-level problems from happening again, not the doctor. So you excuse the doc from the lawsuit and then it’s on the hospital to take responsibility (and then correct the problem).

      • I know beans about medical procedures in particular, and distribution of responsibilities thereof, but I’m looking at this as a “audit/oversight/process” problem. The general principles apply.

  6. Here is an example of collateral damage left behind tort reform and the doctor who dropped the ball is free to practice in NYC because the TMB is bought and paid for by Governor Rick Perry.

    Google: Cleveland Mark Mitchell, then click on youtube Cleveland Mark Mitchell December 121950 – April 26 2008.

    If you want to see the face of the doctor who dropped the ball, Google: WHY DID YOU DROP THE BALL DR ANDARDE?

    Thank you for your time,

    Cilla Mitchell

    A Texas nurse and vet

  7. Coming back to this post, several months later, with fresh eyes, I seems that you’re describing the documentation and disclosure of complaints, even non-meritorious and indeed frivolous ones, as being a significant part of the stress and fear associated with the process.

    Might it be helpful, then, to have a mechanism whereby truly frivolous complaints don’t end up in a doctor’s record? Either in the process of adjudication finding some complainants not worthy of being entered, or via a separate process of expunging those complaints? And could something like this be implemented with minimal risk of providing cover for doctors whose deserve complaints?

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