Cyrus Dugger

CJ&D: Spotlight on Justice: Medical Malpractice

Checkout this interesting graphic depiction of medical malpractice claims.

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Posted at 5:50 PM, Apr 02, 2007 in
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The graphic misleads. It misses:

1) The cost of defensive medicine. That alone would cover 20 million families with top of the line health insurance.

2) The cost of time of providers spent on defending the vast majority of claim which lack any merit.

3) The cost of the cover up of medical error to prevent baseless litigation, instead of thorough investigations and continual systems improvement.

4) The cost of deterring innovation in medication and methods of treatment. Those missing events cannot be measured, but may be the greatest cost of all. If you delay the development of a rapidly developping field, you miss out on a lot of improvement. This cost may equal the entire cost of health care or exceed it. Imagine the multiplicative benefit of an Alzheimer vaccine found 1 year earlier due to less threat by the lawyer profession, multiply by the yearly savings to the taxpayer, forever. How much is that lost opportunity worth?

Posted by: Supremacy Claus | April 2, 2007 7:00 PM

The graphic doesn't mislead anyone. It states plainly that it includes, in two figures, costs relating to claims and premiums, and in a third figure costs identified by the CBO. Supremacy Claus is right in suggesting that other costs may be worth thinking about, but the costs s/he identifies are much harder to measure and much more controversial. For example, #3, the cost of hiding errors, has never been quantified. No study has even shown that litigation discourages error reporting, as David Hyman and I point in an article in the Cornell Law Review and as Lucean Leape states in JAMA. To the contrary, litigation appears to have an information-forcing effect, as demonstrated by the creation of the informed consent requirement and the improvement of anesthesia safety. If Supremacy Clause knows of a study quantifying the cost of #3, I'd love to have the cite.

Posted by: Charles Silver | April 3, 2007 11:00 AM

I will not rebut left wing publications, including soft on the lawyer, criminal cult collaborationist, clinician bashing JAMA. They have the credibility of a Soviet claim to the invention of Coca Cola and lipstick. They peddle left wing biased garbage whenever addressing policy. I have never seen them correct. Example of Commie ideology at JAMA? They support a single payer system, an unmitigated catastrophe for everyone but the extremely healthy. The single payer system may actually promote health. Under its regime, don't ever get sick, or you're dead.

All internal investigation is subject to discovery, same in Canada. All email must be preserved and presented. Only the suicidal hospital would put anything in writing by insider experts, and set out the elements of torts to the plaintiff for free. At best, you get word of mouth correction that may not survive the leaving of experienced people. "Let's not do that again."

Progress in anesthesia is 100% due to rapid technological progress, manufactured by the equipment companies under siege by the lawyer. In medicine, almost nothing from 5 years ago takes place. In 5 years, what is done today will shock people as crude.

In the law, almost nothing takes place that wasn't from 500 years ago. It's a clash of cultures. The modern vs the Scholasticist Medieval supernatural garbage peddler. When we say supernatural, that violates the Establishment Clause of our secular nation. The lawyer does not care about his lawlessness, as long as the rent comes in. His good pals on the bench and in the legislature will protect him from any accountability.

If it is not about the money, immunize all internal investigation findings from any mention in court. If any party mentions the internal investigation, let an automatic mistrial be declared, and all costs to all parties for the retrial goes to the party violating the ban.

Charles, if its about safety, and not backdoor easy discovery, publically support the internal investigations exclusionary rule. Otherwise, don't insult our intelligence. This differs from the exclusion of subsequent remedies. Exclude the internal report of the investigation.

Posted by: Supremacy Claus | April 3, 2007 7:58 PM

Supremacy Claus' follow up comment pretty much refutes itself. I asked for a study quantifying a cost that SC says is significant; SC responds by attacking JAMA, which merely published a column by Lucean Leape--a leading proponent of patient safety--in which Leape observed that no study exists.

The rest of the comment smacks of ideology, which neither facts nor words have any power to penetrate. The history of anesthesia safety and the rise of the informed consent requirement are traced in many places. My Cornell Law Review article has the cites. Pressure from the legal system played a crucial role in bringing both about.

As for the law applying outdated standards in malpractice cases, with the support of the medical community the existing standard could easily be replaced with a more exacting one requiring the delivery of state of the art services. I doubt that support will ever be forthcoming.

Finally, I thought the issue in this thread was whether the CJ&D pie charts were misleading. I always marvel at the tendency of online exchanges to stray from the point.

Posted by: Charles Silver | April 4, 2007 6:22 PM

Charles: There is one way to conduct a useful investigation and to prevent its disclosure in discovery. It is to hire an outside counsel, pay the lawyer, and maintain lawyer-client privilege for any report. The cult criminal on the bench will defer to the payment of a fee to the lawyer, and protect the information from discovery. I don't know which is worse, to pay the cult criminal suing or or the one defending. The cult criminal on the bench says, you will pay one or the other, no matter what.

Posted by: Supremacy Claus | April 5, 2007 12:11 AM