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A whole new version of "Three Strikes" ...

by Bill Osler / November 24, 2004 9:53 PM PST

This time, it's physicians instead of felons. A new Florida law will take away the license of physicians with 3 malpractice verdicts:
Yahoo! News - Florida OKs Three-Strikes Malpractice Law

The newly approved amendment to the Florida Constitution would automatically revoke the medical license of any doctor hit with three malpractice judgments. The law is backed by doctors' foremost antagonists ? lawyers ? and the ramifications could be huge.

It appears to me that the way malpractice cases are handled in most states results in a more-or-less random result depending more on emotion than on medical facts. In fact, even the decision to sue is usually driven more by patient anger about physician attitudes and communication than it is by any real or imagined errors. Now they want to add this kind of nonsense to the mix.

IMO, the only winners here are the trial lawyers who will be able to push marginal cases in an effort to force out of court settlements. Physicians and patients will inevitably be losers.

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Re: A whole new version of "Three Strikes" ...
by Dave Konkel [Moderator] / November 24, 2004 10:18 PM PST

Hi, Dr. Bill.

I don't know the exact stats, but a very small percentage of doctors are responsible for the majority of malpractice awards, according to several reports. So while I think three is too low a number (I suspect every doctor makes at least that many mistakes over a lifetime), the principle strikes me as a good one. I also think that patients' right to choose their doctors carefully trumps the doctors' right to privacy -- IOW, physicians' disciplinary and malpractice records should be readily available for public inspection, ideally by free web search.

Happy Thanksgiving! -- Dave K, Speakeasy Moderator
click here to email semods4@yahoo.com

The opinions expressed above are my own,
and do not necessarily reflect those of CNET!

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Re: A whole new version of "Three Strikes" ...
by Bill Osler / November 24, 2004 10:33 PM PST

Every doctor I know makes MANY more than 3 mistakes over a lifetime. Most mistakes do not result in major adverse events, and most adverse events (whether due to negligence or just bad luck) do not result in malpractice awards. Also, not all mistakes qualify as malpractice. That's part of the chilling aspect of this kind of legislation. Most physicians believe (rightly or wrongly) that almost any mistake or severe adverse event potentially can be turned into a viable malpractice claim in the hands of a skilled plaintiff attorney, regardless of the merit of the claim. When we consider the fact that we do make mistakes and our patients do have adverse events the situation becomes positively frightening. Thankfully, most patients are more forgiving than their attorneys are. If the law makes marginal claims more attractive to attorneys and clients by increasing the incentive to settle then the potential fallout is enormous.

Regarding access to disciplinary information, the details probably vary by state, but the information is public. In NC it is possible to look up physicians and check on their history of disciplinary actions via a free web site. There is also a national practitioner data bank regarding malpractice awards and (IIRC) settlements involving more than about $10,000. I do not know how accessible that information is or whether there is a fee to access it. I've never tried to access it.

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Re: A whole new version of
by Roger NC / November 25, 2004 12:29 AM PST

First a disclaimer, I'm not on very firm ground regarding medical practice or legal practice real knowledge, so this is all just personal impressions and opinions.

My impressions are that there are two opposing problems. One is the willingness of the legal system, espcially the lawyers earning huge money from it, to label anything less than optimum, near perfect, results as malpractice and sue. The other is (at least in the past from news read and heard) the lact of will of the medical boards to rid the profession of a rare truly bad apple.

Such a law would quickly make medical care impossible to get when needed. And the lack of doctors to sue and threaten to sue would remove many lawyers income. So as Steve mention, looks like the lawyers are trying to shoot their own golden goose.

As far as availability of records, I'm not sure what the national availability is. I know there have been "exposes" on tv news and magazines before about bad doctors that move from state to state after censure because (at least my impression in the past) the information wasn't shared between states. Now that may only mean you had to contact the other state to find out, but the state officials didn't do such. I know there have been cases in the news of doctors involved in bad cases that turned out the doctors had been banned practice in one state and moved to another to set up business. And in a case or two, over and over.

Our (as a society) attitude that if something doesn't suit us perfectly that there must be someone to blame and sue is also a huge part of the problem.

Right now my impression is many malpractice suits are settled rather than incur the cost (and possibly publicity) that would be involved in a court trail. Even ones the doctor and his insurance could probably win.

So if they passed such a law, that would probably mean the end of settlements out of court unless it was a truly obvious and odious case against the doctor.

The first results of such a draconic law I see is malpractice insurance rates doubling or maybe better, many doctors quitting practice, and charges to patients increasing at even a higher percentage than the insurance. And since many patients insurance plans wouldn't keep up, health care would truly become as unreachable for the less than rich as some would claim it is now.

There may need to be something done, but this ain't it.


click here to email semods4@yahoo.com

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That raises multiple issues ...
by Bill Osler / November 25, 2004 1:45 AM PST

Regarding records availability: All settlements of a certain size and all malpractice verdicts (or maybe there is a $ cutoff there too) are reported to the national practitioner data bank. All medical board disciplinary decisions are reported to the data bank. I'm not sure what happens regarding investigations in progress that may or may not eventually be closed in the future. All state medical boards are supposed to check the national data base as part of license applications. I do not know how often they check once the license is granted.

There are some doctors who are clearly better than others. The catch is that most of the lesser doctors are not equally bad at all things. For that matter, even the best doctors are better at some things than others, even inside their chosen specialty. In most cases where I have seen medical errors I have to admit to a certain feeling of "there but for the grace of God ..." knowing full well that there are some mistakes that are easy to make. The problem with discipline arises in two ways: (1) We have a human reluctance to condemn somebody else for a mistake we might have made ourselves; and (2) In many cases, deciding what is a serious mistake and what is not is extremely subjective. I know that the NC board works hard to weed out dangerous physicians. I receive a newsletter from the board every few months that includes pages and pages of cases in which physicians have been disciplined in some form or fashion, from minor punishment up to permanent loss of license. Unfortunately, their task is extremely difficult.

I think you may have mis-understood the effect of Florida's constitutional amendment. It will significantly increase out of court settlements. As I read it, the penalty results from malpractice losses, not from settlements, so in most cases physicians will have a huge incentive to settle rather than to actually let a case go to trial. Even a strong case can be lost. Knowing this, the trial attorneys will take on cases that are iffy with a reasonable expectation that the physician would rather settle than run a small risk of losing in court. If my interpretation is correct, the malpractice losses will soar, insurance costs (already very high in Florida) will soar, physician fees will soar and many physicians will lose interest in practice in Florida. That will likely be bad for everybody involved, even the attorneys.

Unfortunately, since this was apparently enacted as a constitutional amendment, it will be hard to reverse.

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If it makes you feel better. . .
by Diane Harrison / November 25, 2004 1:50 AM PST

Each month I receive a large list of lawyers disciplined, censured, put on probation, or even disbarred for conduct unbecoming. We police our own also, but the problem is that the laws that are passed allow for lawyers to go after cases which might be considered frivilous, and then gain a nuisance value settlement due to the high costs of litigation. You can only legislate ethics so far, then it is up to the individual person to be ethical and decent on their own. Sometimes, therein lies the problem.

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Was it Plato who said ...
by Bill Osler / November 25, 2004 1:57 AM PST

I'm paraphrasing here, can't remember the quote right now: Honest men do not need laws to tell them how to behave honorably and dishonest men will find a way around the laws?

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Re: Was it Plato who said ...
by Diane Harrison / November 25, 2004 2:03 AM PST

Not sure about Plato, but the concept is sure true. When trying to teach young lawyers, it is important to point out to them that just because the law PERMITS us to do something, does not mean it is the right thing to do to carry through and actually do it. Getting caught up in the spirit of the battle and winning is often not a good thing - it obscures the search for truth and justice at times.

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You're right, I misread and misunderstood
by Roger NC / November 25, 2004 2:01 AM PST

Since only trial convictions and not settlements will count, it basically scares doctors from contesting charges.

So the lawyers will only negioate the settlement, not try the validity of the charge.

Of course, the article also mentions the doctors trying to limit attorney fees and accuses the lawyers of trumping them with this admendment. There is a bit of a portrayal as a battle between doctors and lawyers. Well, the patient loses either way.

If this is allowed to stand for long, I still suspect that the end results will be less and less doctors practicing in Florida. So eventually there will be less medical care, good or bad. And eventually the malpractice lawyers will be fighting for cases, as patients wait weeks to see a doctor if they can at all.

I would expect every doctor that didn't settle a case and lost to start looking to move to another state, or even moving out of the patient care business if possible. That is if the malpractice insurance costs don't drive them out even before a lawsuit occurs.

Sheesh, there are problems, but this certainly doesn't sound like a solution.


click here to email semods4@yahoo.com

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Re: A whole new version of "Three Strikes" ...
by Diane Harrison / November 25, 2004 1:01 AM PST

I totally disagree, DK. I used to do medical malpractice cases (representing the doctors). As Dr. Bill says, most of the people who pursue these are fueled by emotions and other issues than strictly medical acts. If the doctor did not communicate with them, in their opinion, if the doctor had no "bedside manner" and was abrupt, or they simply did not like being told that their options were limited (often due to problems of their own making - drug abuse, alcoholism, overweight, etc.), these were the cases most likely to have complaints filed.

What this will end up doing is to make it so that doctors simply will refuse to take patients who are "risky," and those patients will end up dying or becoming very ill. Let me give you a real example of how bad this can be. One doctor specialized in emergency room operations using transfusions consisting of the "fake blood" that was the only thing that certain religious groups would consider, and even then, they did not want a transfusion usually.

You get a parent who has a 5 year old hit and severely injured in an automobile accident. The child has nearly bled out before he reaches the hospital, and the only way on earth his life can be saved is through an operation to repair internal organs that are lacerated and bleeding out. He's got approximately 45 minutes to live. But before the oepration can be done, the child asolutely, positively MUST have a transfusion, or he will die for certain on the operating table, and there will be NO chance of him surviving with or without the operation.

The parents fret and pace and debate religious issues of the transfusion. They call their local religious leader. They eat up the time as their child is bleeding to death. They are struggling to overcome very deeply held religious beliefs that go to the core of everything they believe and have always practiced. But they know that if they do not overcome these issues, and go for the transfusion, they are guaranteeing their child's death.

So in the last 5 or 10 minutes of the 45 minute window of opportunity, they reluctantly sign the paperwork for the procedures to be done to give the transfusion (of fake blood, not even the real blood) and operate on the child.

Although the medical crew is standing by, and they rush the child in the very second the signatures are complete, the child is too far gone at that point due to the delays, and he either dies, or he lives, but has some other substantial problem from the deprivation of blood. Maybe he has stroked and their is now brain damage. None of this would likely have occurred had the parents given immediate consent when they were first asked to. But now they end up suing the doctor, the hospital, and everyone involved.

Although this is an example, this is a real issue that came up repeatedly with certain doctors who were the only ones willing to risk their malpractice insurance, to take those last-second surgery candidates. The doctor in the case I'm talking about was an outstanding surgeon in all other respects, and did a consistently great job when he was not handicapped by a refusal of others to allow him the tools necessary to do his job. But in a goodly percentage of these absolute last-second approvals for transfusions and blood, the patients were too far gone by the time the decision was made, and they did not pull through, despite heroic measures by the doctor and hospital staff.

Would you have doctors refuse to take on patients who are risky, for fear they will lose their license? Whom does that benefit? Certainly not the patients whose lives he did save. And it was no fault of his that the decisions in the other cases were made so very late in the time alloted for survival.

Yet, emotions run high in the death of a child or famly member. And in these cases, there is the added issue of how the family feels regret over having broken religious prohibitions in their final effort to save the child. People are cruel and unthinking sometimes, and the advice often given in these cases, by laypersons, is that the child's life or death is in God's hands, and the parents//family should just let that be. Would you? Could you if it was your child? And what right does anyone have to criticize a parent who does their utmost to save the child? But that is exactly what happened, and that fueled a lot of the decisions to sue.

There are procedures already in place to remove a truly bad doctor. Records are available to check on the performace of doctors. This is seemingly the recipe for a disaster in the making, penalizing any doctor who takes on more than the best candidates for surgery. I don't know about you, but I don't want myself or my loved one to be on the table in emergency, and have all the doctors back away from a needed operation due to their own financial considerations.

If we apply the same rules here, would this extend to MASH units? Think of Vietnam or any area of heavy combat and injuries/casualties. Do we remove any doctor who loses three patients, or who has a complaint against them, or do we go with the choice of saving lives wherever and as best we can?

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(NT) (NT) Agree wholeheartedly.
by Ziks511 / November 24, 2004 10:22 PM PST
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Re: A whole new version of "Three Strikes" ...
by MKay / November 24, 2004 10:26 PM PST

I do believe this is a subjective call and should not be made by legistators

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The law backed by lawyers??
by Steven Haninger / November 24, 2004 11:39 PM PST

Confused here. At first it sounds as if they are willing to destroy their best customer base. A second glance sounds as if they prefer the "bird in the hand" as "the one in the bush" they have to work harder for. "Money for Nothing" as sung by Dire Straits??

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