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The Biggest Problem with Medical Malpractice

By Byron Warnken, on February 22, 2014

Cameras Stickfigures imageWhat is the biggest problem with medical malpractice?

  • The plainitffs and their lawyers would have you believe the real problem is too much medical negligence and a lack of accountability from doctors.
  • The doctors, their insurance companies, and their lawyers would have you believe the real problem is frivolous lawsuits.  “If only we could get tort reform,” they say, “All would be right with the world!”

Each of these groups argues from their own self-interest.  Most of us do, don’t we?  It’s hard to ascertain the truth when so many  people are screaming their one-sided position.

(Personally, I stand on the side of there being far too much medical negligence and not near enough accountability in the medical industrial complex.  Furthermore, I think doctors know it and are disengenuous suggesting otherwise.  Finally, I think the insurance companies are really the disgusting ones – using litigation headlines to jack up malpractice insurance rates just to line their own pockets.)

But, if you can, let’s forget I said that, just for a moment, so you can listen to me tell you what the real problem is.

There’s no easy way to determine if there was malpractice.  You cannot listen to a given set of facts and determine yes/no to the malpractice question.  If you could, then the medical malpractice industry would be a lot more like the automobile accident industry.

The biggest problem in determining malpractice is that the hospitals don’t actually tell you it’s malpractice.  Therefore, if you’re a victim of medical negligence, you need to find that out for yourself.  Here is a sample conversation between a potential victim and their potential lawyer:

  • “About six months ago I had {insert your procedure/issue here}.  Then, x and y and z happened, and I don’t think that’s what’s supposed to happen.  Is that malpractice?”
  • “Well, it certainly could be.  I need to know more.  X often happens, y sometimes happens, and z seldom happens with that procedure.  Did the doctor say anything to you after the procedure?”
  • “No, the doctor was very vague.  He said I would need to do some follow-ups, but he didn’t really say why.  It was difficult for me to understand him.”
  • “There are numerous factors that make this more or less likely to be malpractice.  You might have a case.  I will need to get the medical records.  I will have them ordered.  It will take about four months to investigate the case.”

Then the lawyer orders and gets all of the medical records.  Then the lawyer talks it over with potential experts.  Then the lawyer decides if he wants to take the case.  Then the lawyer begins talking to the other side, who obviously isn’t doing anything to make the job easier.

Let’s pretend, in our hypothetical, there is just one open question remaining.  If the answer is A, then no malpractice.  If the answer is B, then obvious malpractice the hospital is likely to settle quickly.  Maybe the lawyer must talk to the doctor to get the answer to the question.  The lawyer is forced to file suit.  Months later, doctor finally gets to depose the doctor.  Doctor says the answer to the question is A.  Here’s the explanation.  Here’s the proof.  No malpractice.

The paragraphs above, for both parties together, just cost $100,000 in time and expenses.  $100,000 to get one silly question answered.  The doctor could have answered the question before the question was even asked.  Why didn’t he?

Because you either answer all questions proactively, or you answer none.  If you only proactively answer the questions that are favorable to you, you look guilty the rest of the time.  Therefore, ultimately, that means if you as the doctor know there’s malpractice, you have to say it.  But nobody would ever do that.

And we’re left with a situation where the patient doesn’t know if there’s malpractice.

“That’s life,” you say.  “That’s the game.  That’s the way it is.”

I get it.  That’s the way it is.  BUT IT’S THE PATIENT’S BODY.  And if it happens to you, it’s your body.  Shouldn’t I get to know exactly what happens to me and why?

Humanity aside, when I have to file a lawsuit just to figure out what happened to me, then I’ve added to the expense and ineffectiveness of the system.

A very successful medical malpractice defense attorney said to me not long ago, “It’s a broken system and it has to be fixed.  Just wait til my kids get out of college.”  Doesn’t that say it all.

It would be easily possible and far more cost effective for every single medical interaction to be recorded.  This would include everything from a quick consult to a six hour surgery.  It would be easy.  Find a way to protect confidentiality (put it under HIPPA).  If the patient declines, he can’t sue.  If he accepts, he can sue and the proof will be right there.  Who wouldn’t want this?

Oh, right, no one wants this.  Doctors least of all.

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