At one time an essential part of medical surgical training was the "Morbidity and Mortality" (M&M) conference. This conference, usually held in a lecture hall shaped like a theatre contained all the surgeons, anesthesia and medical specialties. There, any surgeon who had a complication, bad outcome or mortality had to stand infront of all assembled and present the case, xrays, lab tests. Durng this presentation, the floor is open to any question, criticism or admonishment from the audience. The whole purpose of M&M was to make sure that everyone knew what complications could occur, what could go wrong and if a mistake was made, to make sure it never happened again. In this way, the experience of one were spread to all. Sometimes the conference showed that there was nothing else could be done, sometimes it showed that there might be another way to due the surgery. The brutality of these conferences can not be described. By hashing these things out, the conferences established the standard of care and moved medicine forward.

Now, lets look at what has happened in the world were any unfavorable outcome can be the basis for a suit. The old M&M conferences are gone. Attorneys lobbied to have the records discoverable. If two doctors disagree, that must mean we can sue! The only lessons that are spread around surgeons are those of who got sued for what. The standard of care is now the standard of how not to get sued. Not what is the best medicine.

If medical lawsuits were really about error it would be something, the problem is that they are not.

If you are in a car accident, what do you want, the care that is the best medically, or the care that is the best legally? In neurosurgery, the best care legally means to refuse the patient who has the closed head injury coming in to the trauma bay and instead focus on carpal tunnel of the patient who wants disabilty from typing. Now that is the best care "Legally".

In New York, lawyers cannot obtain any information about any M&M meeting that takes place. Those meetings are considered "confidential" and for "educational purposes" only and are not discoverable. There have been only limited exceptions to this rule- such as when a doctor who was involved in the care and treatment made his own notes of the discussions that took place during an M&M meeting, or even a meeting with the department chairman to discuss the facts of the case.

Returning to the NY Times article- disclosing to the patient the errors that occurred generally takes the sting out of the typical lack of communication that follows a significant medical mistake. It's too bad that more hospitals don't take this approach.

Oh, gerry, why must you be such a fact-hugger?

From a purely practical view, apologizing and offering to make good takes a lot of the ammunition out of a possible malpractice case. Faced with a reasonable offer and contrition, not many people will prefer to gamble on a jury and appeals going their way with a better offer several years down the road.

Gerry Oginiski

In Florida, all medical conferences are now open. In fact, all the conference in the past are also open. In your state, New York the attendance roster of the conference is open and has been used a list of potential defendants.

"Has been used" by whom, throckmorton? First you tell us something that turns out not to be true about M&M conferences, now you're hedging and insisting that an attendance roster would somehow be useful as a fishing expedition for defendants.

Throckmorton is right. Mythago and Oginski are wrong. New York permits discovery of statements made by any person in attendance at a peer review meeting who is a party to an action or proceeding of the subject matter of which was reviewed at such meeting. Cf. Emanuel v. Simon (W.D.N.Y. 2006) (applying Pennsylvania law, which does preclude discovery of such evidence). Note that this gives New York plaintiffs an incentive to use an M&M roster as a vehicle for shotgun defendant selection to maximize discovery, and Throckmorton is right about this, also.

Fascinating and all too typical how plaintiffs' lawyers are trying to bully a doctor away from the truth.

Gosh, and here I thought Oginski was a practicing New York attorney. I'll defer to his comments on Ted's expertise on the subject - though, as I keep telling you, Ted, you come off as much more persuasive when you keep your temper under control.

I'm interested in Ted and throckmorton's take on the actual subject of the article, but won't wait underwater to hear it.

Mythago:

Here is a reference to use about M&M conferences as well as the other peer reviews that are now open in our state. http://www.ama-assn.org/amednews/2008/04/07/gvsb0407.htm

I am sorry that you feel facts and reality are hedging but that is the difference between attorneys and doctors. For us, "it is what it is"; for attorneys, "it is what we can make it out to be".

throckmorton, you made a sweeping statement about M&M reports, and when called on it, shuffled your feet and allowed as you were talking about Florida. Did you have a moment of thinking you were a lawyer, or what?

Interestingly, the news article to which you referred says that the records were opened up not by lawyers, but by a ballot-passed amendment to the Florida Constitution. Sounds to me like your beef is with the people of Florida.

mythago:

Who do you think pushed to have all medical peer review cases open to the public and put it on the ballot? Who do you think financed the whole affair? I can assure you it was not the AMA.

I wish we did have the old M&M conferences where we talked about what really happened and how to change things for the better and to share the knowledge gained. You can pick the hospital and the state and I can assure you that the conferences are now changed. Patients are not identified, cases sanitized and the discussions muted. It is what it is. Sometimes I wonder what it would be like to be a lawyer. Especially at 2:00 going to the OR with a bad trauma patient. I could just say, I dont think the case is one that I can win, or at least there isn't money in it and just go home. Even better, I just wouldn't answer the phone. But that is why I am not a lawyer, I could not live with myself if I did that.