A spectacular failure of a state medical board
scienceblogs.com
scienceblogs.com
Here's my story:
We saw two doctors in Texas, both were convinced that my wife had advanced bowel cancer. The second doctor confirming the diagnosis was the Worst Day in my life.
We had no idea the doctors had colluded behind our backs, negating the exercise of getting a 'second unbiased opinion'. We had gone to a separate chain of hospitals and got the first diagnosis regurgitated to us.
She went in for a laparoscopic bowel resection surgery and woke up with:
* A nasty scar from pelvis to belly button
* Temporary ileostomy bag (her worst nightmare, requiring another surgery to remove, more nasty scarring)
* Hysterectomy (Sterilized, no kids yet)
* News that the previous diagnosis of cancer was incorrect.
* New diagnosis: Endometriosis (Can be treated without surgery in most cases)
The doctor was practically in tears when he broke the news to me.
The doctor was paid $60,000. The anesthesiologist and hospital split the rest, and our insurance paid in excess of $150,000 for the first surgery that wasn't medically necessary. The ileostomy reversal was performed in another state and cost another $40,000. Insurance is still paying for emergency room visits a few times a year.
We eventually consulted with several lawyers, and none would take the case, even the scummiest bastard I've ever met who would probably take candy from a baby if given a chance to do so. They all came to the same conclusion:
"There is no question that you have been severely and permanently wronged. Due to complications, you will need regular emergency medical attention for the rest of your life. If we took this case to court, we would win it every time. Unfortunately, it is not worth it to us due to the $250,000 limit. There is zero chance they will settle, there is no incentive for them to do so. A trial will be long, drawn out, and eventually, you could owe us more than the jury awards."
Thanks, Republicans.
They're as plutocratic as the democrats if not more so, and they're even more shameless about it.
I was dissecting the problems but it was turning into a wall of text. I'll sum it up easily enough in a smaller wall of text:
Since the 1930s:
- All bad things that have happened are because of the evil Republicans going out of their way to screw the little guy. After all, Republicans never do good and only make mistakes.
- All good things that have happened are because of the courageous and saintly Democrats cleaning up the messes of the Republicans. After all, Democrats always do good and never make mistakes.
- If a Republican President spends an incredible amount of money to win a war, it was bad. If a Democrat President spends an incredible amount of money to win a war, it was good. Never mind the fact that Congress spends the money, not the President who only presents a wish-list.
- If something bad happens: Republican is President means mention it, Democrat is President means ignore it. Republicans control Congress means mention it, Democrats control Congress means ignore it. If something good happens: swap first set of rules.
- If something bad happens: Republican President and Democrat Congress, blame President. Democrat President and Republican Congress, blame Congress. Republican President and Republican Congress, blame Republicans. Democrat President and Democrat Congress, blame Republicans. If something good happens: swap first set of rules.
For the problems we see in today's world created by government, I blame the Republicans and Democrats involved. For the good things created by government, I credit the Republicans and Democrats involved. Only a fool goes with the us-vs-them mentality.
The problem is that so-called tort-referom laws protect the bad and truly incompetent actors just as much as they protect the good-but-unlucky ones. In the case we're discussing here, all the economic risk has been transferred to the patient.
$250,000 is peanuts in medical expense terms, about the starting annual salary of a specialist and certainly much less than the annual salary of most surgeons or oncologists. So the doctor has perhaps 6 months salary at stake (leaving aside malpractice insurance for simplicity), whereas the patient may be facing an economic burden running into the tens of millions. A burden which you and I as taxpayers will eventually be sharing, when by rights it should have fallen on the malpractitioners, their employers, and their insurers.
For those who say that the insurance costs will just get passed on to the public in the form of higher medical costs, this is not actually the case due to price elasticity. In meantime, I can only advise avoiding malpractice states in general and Texas in particular. Txas likes to boast that licensing of new doctors has gone up by 25% since the law was enacted in 2003, but Texas is still ranked 46th nationally in terms of doctor:patient ratio, with only 176 doctors per 100k people instead of the national mean of 219. [1] so it's harder to see a doctor, they can charge more, and you have no comeback if they fuck up.
1. http://abclocal.go.com/ktrk/story?section=news/state&id=9226...
Agreed
Risk from unfair lawsuits and misfires of civil law are something we all have to accept.
Not agreed. First of all, you give no reason why "it just has to be this way". Is there no compromise, no middle-ground? Second of all, it's awfully easy for the patient to decide the doctor should bear all the risk, eh?
A civil lawsuit system with proof requirements for damages but full exposure to at least all actual damages is the middle ground (or at least one of them.)
Patient bears all or disproportionate risk (as is the case with damage caps or not having a liability system at all) is an extreme, as would be doctor bears disproportionate risk (which would be the case with something less than the usual civil standard of proof, or a presumption of guilt that had to be rebutted). You can't really get "doctor bears all risk", because no matter how easy it is to punish the doctor, or how extreme the punishments are, the patient is still going to bear the risk of non-compensable injury or death from medical malpractice.
> Second of all, it's awfully easy for the patient to decide the doctor should bear all the risk, eh?
That's not even a possible option (much less a fair description of anything on the table), so while it might be easy for someone to decide it in the abstract, its not really relevant to the issue at hand.
It's trickier than that. Will the prosecution pay the defense's attorney fees if the doctor wins? Because otherwise you incentivize frivolous suits meant to force the defense to settle because winning is more expensive than settling.
Sometimes, but winning isn't enough.
> Because otherwise you incentivize frivolous suits meant to force the defense to settle because winning is more expensive than settling.
This assumes that "unsuccessful" is equivalent to "frivolous". The fact that this is not true (whether it comes to either initiating a suit or defending it) is why those who lose, on either side, don't automatically pay the other sides attorney's fees, while it is possible for them to be awarded such fees.
Note that a strict loser-pays system disincentivizes meritorious suits that are difficult to prove, or any cases near the boundaries of whatever the formal rules are, since there it drives up the expected cost of such suits.
And, if its not an obviously-biased-to-favor-the-defense system that only has strict loser-pays for the plaintiff, it also disincentives certain meritorious defenses in favor of settling, for the same reason that it disincentives certain meritorious are tough-to-categorize suits.
Again, the system we have is already the middle ground (or, at least, one of the available middle grounds) between undesirable extremes.
You're going to have to explain this more, because I do not believe I was assuming that.
dragonwriter said it better than me. I know just enough about law to know that it's a carefully studied problem and there are several established doctrines used in tort law. A lot of people seem to think law is made by idiots.
Have there been huge settlements? Sure. But those settlements are usually punitive and serve as a deterrent to bad behavior for hospitals that can make hundreds of millions in profit a year. A $500K slap on the wrist would carry the same weight as a $150 traffic ticket to a member of the middle class...annoying but forgettable. Now $10m? $20m? Suddenly everyone from the Chairman on down takes an interest in preventing whatever went wrong.
Except those costs that hospitals incur are often passed down to other people to pay. Hospitals are not always the money-printing machine you seem to think they are. Well, some are I suppose. Of course, those increased fees by the hospital is often covered by medical insurance, which now has to increase premiums across the board to cover the increases.
Insurance carriers have a lot of pull to decide how much they are willing to pay. They don't just blindly accept whatever numbers a hospital gives them. Those settlements come straight from the bottom line and are not simple to recoup.
There's occasional highly-publicized cases (usually, one every few years or so, across all of tort law not just medical malpractice) where what superficially appears to the general public to be disproportionate awards are involved, that usually meet one or both of the following descriptions:
1) The actual facts on which the award is based are substantially different than the popular story that is circulated to use it to point to the disproportionality of the system, and/or
2) The award never has to be paid because it is suspended pending appeal and revised or reversed on appeal.
That's about as close as it gets.
In principle, we want everyone to be protected from frivolous lawsuits. The $250k limit for all practical purposes protects doctors from nearly everyone's lawsuit, frivolous or not. The absence of normal market forces in medical practice makes it even more important to have competent and strong oversight. We get none of that in Texas. Hey, at least malpractice insurance is cheap! (I wonder if it really is.)
OTOH, there are now very few reasons not to travel to another country for major health care, like surgery. Something bad may still happen, but you aren't likely to pay as much for it, and you might even be treated more fairly if it does.
It is my understanding that the 250K cap is on punitive damages only (at least in most states). I'm sorry that your wife was wronged and 250K does sound low to me, but the cap is there in general to prevent a runaway jury from awarding outlandish sums ($10-100 million) to punish a single person, because ultimately society in general pays that $10-100 million in the form of more expensive goods and services.
Cases of extremely high damages affects other doctors who didn't make such mistakes, which in turn affects their own patients. Runaway punitive damages affect society more than you may think, but you have to consider areas outside the medical field as well.
Tort reform is necessary in lots of ways but I would agree the $250,000 cap is a problem. If the cap is on punitive damages only then I would imagine a lawsuit would have taken the future medical expenses into account when deciding the payout. But since there's no potential huge punitive damages payout then apparently no lawyer is interested in taking on the case.
Seems to me that a great deal of the system falling apart failed this couple, not just some BS tort reform law.
Do you really think it is good for society if doctors can screw up with no penalty.
If a pilot made mistakes this stupid they would be unemployed or dead.
Other cost: More strain on her community's local medical resources Less kids growing up in what could be a positive household
Was there nothing to be done about the two doctors colluding behind your back? Because that doesn't sound like medical malpractice to me, that sounds like fraud.
AFTER EDIT: As suggested by another comment in this thread, if you'd like to learn all the gory details of this quack surgeon's career, see the original Texas Observer reporting on him,
http://www.texasobserver.org/anatomy-tragedy/
which ought to rank higher in a Google search on his name than it does.
Point to any recent cases where that's been used to actually prevent an election. Every state has stupid laws on the books, seldom enforced.
As for the school and medical boards, while there are some mistakes that get made, coverage like this makes it more likely, not less, that things will get fixed.
"cultural problem in the whole state" is painting in really, really broad strokes, and inaccurate ones at that.
And yet Texas is one of a dozen states out of 50 that still have a law banning atheists from office; sure it's not enforced, but it sends a message: atheists aren't welcome here.
As for the school and medical boards, while there are some mistakes that get made, coverage like this makes it more likely, not less, that things will get fixed.
"cultural problem in the whole state" is painting in really, really broad strokes, and inaccurate ones at that.
So you get some school boards that mess up every once in a while in every state; medical boards too. You don't see it happening, though, again and again, as in Texas. Oh, and I completely forgot about things like the death penalty and shutting down of Planned Parenthood and abortion clinics. Need I go on?
I'm sure there are plenty of nice people who live in Texas; I'm just not too keen on joining them until they sort some things out.
It's things like this that give atheists such a bad name: willfully taking offense at something that is clearly just vestigial legislation.
Much as I enjoy seeing our legislature inaction, I prefer they don't waste precious cycles on updating such clearly antiquated codes until they become an issue, for real, in practice.
As for the others, you probably just haven't heard of them yet. Terrifying, no?
He didn't say the reason why is because your life would be radically shortened by a non-invasive surgery so you wouldn't have time to be sad. Maybe that was implied?
I'm generally a pessimistic person but I dislike these overly negative generalizations at states and/or groups of people. I personally have lived in four different states and liked them all. I think I could enjoy living in any state.
Well, except for California, forget that noise.
That sounds like a system where the regulation didn't work.
One of the reasons I'm much less gung-ho about regulation as the answer to everything is that I acknowledge that case exists, and must be considered carefully rather than unconsciously assumed away. Regrettably, this complicates things compared to a world in which we could just assume the problem away, but we don't live in that world.
Those who could have stopped it had their ability to do so regulated away: The board’s mandate, spelled out in the Medical Practice Act, recognizes a doctor’s license as a hard-won, valuable credential. Doctors’ rights are to be protected at every step of the process. The board can’t revoke a license without overwhelming evidence, and investigations can take months, with months or years of costly hearings dragging on afterward. (Quote is trimmed a bit; a justification follows, but is a prime example of how regulation failed to consider an edge case and then made damned sure everybody else was obligated to fail to consider it as well.)
> That sounds like a system where the regulation didn't work.
No, it's a system where all regulatory authority and ability has been willfully destroyed over the last decade.
http://www.texasobserver.org/anatomy-tragedy/
> But in the past 10 years, a series of conservative reforms have severely limited patients’ options for holding doctors and hospitals accountable for bad care. In 2003, the Republican-dominated Texas Legislature capped pain-and-suffering damages in medical malpractice lawsuits at $250,000. Even if a plaintiff wins the maximum award, after you pay your lawyer and your experts and go through, potentially, years of trial, not much is left.
> The Legislature has also made suing hospitals difficult. Texas law states that hospitals are liable for damages caused by doctors in their facilities only if the plaintiff can prove that the hospital acted with “malice”—that is, the hospital knew of extreme risk and ignored it—in credentialing a doctor. But the Legislature hindered plaintiffs’ cases even more by allowing hospitals to, in most cases, keep credentialing information confidential. In effect, plaintiffs have to prove a very tough case without access to the necessary hospital records. This is an almost impossible standard to meet, and it has left hospitals immune to the actions of whatever doctors they bring on. Hospitals can get all of the benefit of an expensive surgeon practicing in their facility and little of the exposure. This has freed hospitals from the fear of litigation, but it’s also removed the financial motivation for policing their own physicians.
> The medical malpractice cap and the near-immunity for hospitals snapped two threads from the regulatory web. What remained was the Texas Medical Board.
> But the Medical Board wasn’t designed to be an aggressive enforcer. It was mostly designed to monitor doctors’ licenses and make sure the state’s medical practitioners are keeping up with professional standards. The board’s mandate, spelled out in the Medical Practice Act, recognizes a doctor’s license as a hard-won, valuable credential. Doctors’ rights are to be protected at every step of the process. The board can’t revoke a license without overwhelming evidence, and investigations can take months, with months or years of costly hearings dragging on afterward. The protections make some sense. The Legislature doesn’t want the Medical Board taking a doctor’s license—and livelihood—unnecessarily or based on flimsy or frivolous claims. But the result is that unless a doctor is caught dealing drugs or sexually assaulting patients—or is convicted of a felony—it is difficult to get his or her license revoked.
> What all this means is that the Texas Legislature has committed the state to a policy of medical deregulation—a free-market system in which doctors can practice as they please with limited government interference. Only their consciences, and those of their fellow doctors, limit them.
Those who could have stopped it had their ability to do so regulated away:
It's the doctors & hospitals who are the regulated parties. The Medical Board are the regulators. Stripping them of their authority effectively leaves the medical practitioners unregulated.
You're arguing that one group of meddling bureaucrats were hobbled by another group of meddling bureaucrats. Think through it again.
Like the article said, if it was easier to people fire him when he was still a student for example, without fear of being sued, this would be averted.
Also the licensing system is broken (ie: license is mandatory by law, law says hospitals can trust the license, licensing organization is broken and give broken licenses... what to do? Good hospitals will expend money to research the guy, but the average hospitals will trust the law, that says that if the guy has a license, he has right to be licensed...)
> Like the article said, if it was easier to people fire him when he was still a student for example, without fear of being sued, this would be averted.
That makes no sense. How would more free market yield less suits exactly? What would the mechanism for righting wrongs be, smashing people's heads in without court interference?
While free market proponents tend to claim that lawsuits are the place to correct wrongs, the things they tend to favor abolishing are the laws that provide the basis for lawsuits against particular wrongs; fewer bases on which lawsuits can be sustained can reasonably be expected to lead to fewer lawsuits.
> What would the mechanism for righting wrongs become, smashing people's heads in?
For wide classes of things that are widely considered "wrong" now and for which self-styled "free market" proponents would abolish the legal remedies, yes, extra-legal remedies would be the only remedies available.
It might lead to fewer successful lawsuits, but I'm not sure why it would lead to fewer lawsuits.
Even with the clients able to pay, the cost of lawsuits combined with a reduced probability of success will drive the expected value of lawsuits (and, thus, the incentive for them) down for the clients in the same way they do for lawyers (lawyers are just more likely to recognize the incentives in short order, the public knowledge will lag some but still eventually be established.)
Make no mistake, what we have in this day and age is nowhere near what one would call a free market. Regardless of political leanings or party, once a government is involved enough within the economy it is no longer a free market. It eventually becomes crony capitalism, if it doesn't shift to a non-capitalistic system, which is what you see in the U.S. today.
Why not? Political donations and lobbying are protected speech, are you suggesting that doctors shouldn't enjoy the exercise of their first amendment rights?
the free market would demand he be put out on the street to never practice medicine again
LOL no, on several counts. First, you can't have a truly free market in medical care because the knowledge gap between consumer and provider is so great. I'm a smart, educated person but I'm really not competent to assess the quality of a doctor in most cases, which is why peer review organizations like medical boards exist to begin with. Second, in a really free market you buy at the time of your choosing, taking into account all factors such as quality and price. A great deal of medical care is not elective, but the purchase decision is forced upon the consumer by circumstances such as illness or injury. Not only are the purchasers under intense time pressure to make a decision, they must often do so with less than normal competence. Thirdly, you assume that peers and hospitals are in full possession of the facts at all times, and that deception is impossible. Deception has a price like everything else, and if you assume that people are going to ignore the economic incentives to lie or feign ignorance then I have a really great deal that I'd like to offer to someone like yourself...a deal whose value most people would not be able to appreciate, if you know what I mean.
It eventually becomes crony capitalism
A no true Scotsman fallacy. Markets have to exist in the real world, not one populated by angels.
I don't see anything in your paragraph disputing my statement. You are describing things leading up to the mistakes of the doctor while I describe what happens afterwards.
Are you saying that crony capitalism doesn't exist? Because that's the only way I would agree with your No True Scotsman fallacy accusation. Seems to me you are attempting to make yourself appear clever with your condescending statement instead of actually addressing my point.
That is not the question I asked.
GP asserted:
> if it was easier to people fire him when he was still a student for example, without fear of being sued
I do not see how a free-er market would preclude lawsuits.
In a free market, a doctor would not be able to use political connections whether they be personal or part of a group to cover themselves. This not only includes the lawsuit angle but the ability to prevent laws that restrict his behavior and/or empower the patient, or vice-versa.
Under a free market the doctor wouldn't last very long if he was bad at his job, as he would be pushed out for someone more competent. Therefore, he makes one mistake and gets sued once. Maybe twice. Under a system that allows a bad doctor to remain for longer than should be allowed results in multiple injuries which results in multiple lawsuits.
In fact, the very article that this whole thread was started for describes that very doctor. After his first severely botched surgery, where all the doctors and hospital were sure he was incompetent, he should have been booted. Or at least placed in a position that had less responsibility, such as assisting in another surgery. But the system in place kept him working or were unable to deal with him resulting in more harm.
In an ideal free market (which is a Platonic form, not a real thing that can exist in the material world), a vendor who fails to provide value cannot operate because there is perfect knowledge of the utilities and costs of a decision among all market participants, and buyers won't buy from that vendor.
Features of real-world markets that make them approximate ideal free markets are things like frequent repeated purchases of the same class of commodity which provides its utility fairly quickly and unambiguously, such that while perfect knowledge doesn't exist in the initial condition, very good information about expected utilities can be developed by market participants which allows behavior over time to align closely with what would be expected in an ideal market.
These features that allow real markets to approximate ideal free markets are not found very strongly in medical care in general, and are particularly not present in major surgery.
People ask each other all the time about their personal experiences about doctors to attempt to avoid the bad ones, but that's as far as it seems to go in most cases.
No, that's not the reason that the features I identify don't exist in the purchase of major surgery. Its inherent in the kind of commodity it is.
Somebody's watching the medicine cabinet; they forgot about the knife drawer.