TorteDeForm

Justinian Lane

No wonder there’s so much medical malpractice

Doctors aren’t sleeping.

WASHINGTON - Doctors-in-training are still too exhausted, says a new U.S. report that calls on hospitals to let them have a nap.

Regulations that capped the working hours of bleary-eyed young doctors came just five years ago, limiting them to about 80 hours a week.

Tuesday, a panel of the prestigious Institute of Medicine recommended easing the workload a bit more: Anyone working the maximum 30-hour shift should get an uninterrupted five-hour break for sleep after 16 hours.

Source: New doctors still too tired for safety - Health care- msnbc.com

I’ve worked 27 hours straight and 44 hours straight.   After the 20th hour or so of each shift, I was completely worthless.  Much past the 30th hour, I was dangerous.  Consider that truck drivers aren’t allowed to drive for more than 14 consecutive hours.  Driving doesn’t require the same level of concentration and sharpness that practicing medicine does… maybe giving doctors a five hour sleep break would save some lives, eh?

Justinian Lane: Author Bio | Other Posts
Posted at 11:16 PM, Dec 02, 2008 in Medical Malpractice
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Comments

Let's accept the invalid rate of malpractice of 1-2% of medical decisions in the biased, left wing, anti-clinician New England Journal of Medicine article. Let's assume some major fraction is due to sleep deprivation.

That still beats the 80% rate of weak and frivolous cases filed by the plaintiff bar.

Posted by: Supremacy Claus | December 3, 2008 7:26 AM

In residency, we routinely worked over 120 hours a week. This does not include the additional time and every minute you had putting your nose in every textbook and journal article you could get your hand on. Whether we like it or not, we are seeing that the restricted working hours are resulting in decreased performance of many that are graduating our residency programs. I think that in addition to decreasing working hours, we have to consider lenthening residencies and fellowships. At present general surgery is 5 years after medical school, neurosurg 7, ob/gyn 4 and so on.

Another thing that must be considered is that after residency, there are no work hour limitations. If you are a general surgeon in a rural area, you are done when the work is done. EMTALA and COBRA laws have made that clear. You cant just tell the ER that you have worked your hours and that you are done.

Posted by: throckmorton | December 3, 2008 10:06 AM

Throck, in your opinion how much of this is due to a "rite of passage" way of thinking? i.e. "I had to work 100 hours a week when I was a resident, so you will too!"

With your rural doc example: What are the consequences of just clocking out because you're too tired and genuinely fear committing malpractice? And if you know, is there a standard of care with regard to sleep?

Posted by: Justinian Lane | December 3, 2008 10:29 AM

At least in surgery, the day if full of routine cases and clinic. The night tends to be when the emergencies hit and this is where there is critical teaching. The old saying is that if you are on call every other night, you miss 50% of the cases. Teaching in residency is by rounding where you see all the patients as a group. By itself it is not efficient, but its goal is for all to gain the experience from every case. I really do not think that it is a "rite of passage". We now have manditory work hours for our residents. The problem is that trauma comes in when it comes in.

I relate it to this. If a law student could only go to class or study for a total of 40 hours a week, would they be as good as one who studied 100?

The consequences for the rural doc are this. If he can not take care of the emergency, then who will? Does he tell the ER that the bleeding to death blunt trauma will have to go to the next hospiptal and die enroute because he has met his time limit? This is the real concern we as physicians have. If your grandma has a head bleed and the only neurosurgeon for 3 hours is "off shift", would you rather they come in or hope that she makes it in the ambulance. Sorry, I know your baby is having decels and you need a c-section but I am off shift! Somehow, I dont think that this will fly in court.

Then we have EMTALA laws that say if the hospital offers a service it must have a call schedule and treat patients who come in regardless. There is also COBRA that states the hospital can not transfer a patient if it offers those services.

Residency is now a kinder and gentler place. I am very afraid those that the training is suffering.

Posted by: throckmorton | December 3, 2008 11:15 AM

This is a fascinating conversation. There has to be a middle ground between restricting work hours to a level so low that it drastically compromises a resident's learning experience, and forcing him/her to work like a zombie until his/her brain is mush, thus severely threatening a patient's health.

Throckmorton provides some helpful insight into what a good approach would be--extend the length of fellowships, extend the learning process, continue to challenge young doctors while recognizing what steps can be taken to improve the learning process and the quality of patients' experiences.

This seems a sensible alternative to burning young doctors out at the expense of patient health, all in the name of training.

Posted by: Kia | December 3, 2008 3:27 PM

1) Under Commie Care in England, surgeons, pampered in their residencies, go home at 5 PM, come hell or high water. The waiting time for emergency surgery, where the patient is bleeding, and the blood replacement bag has to be squeezed and repeatedly changed by the nurse? 6 days. The idea of the US schedule is that patient care comes before doctor comfort.

2) One has to contrast values rendered. The medical resident likely enhances health, and returns 10,000% on cost by patients' returning to work better. He is lucky to get $50K salary from the lawyer controlled health provider reimbursement system of Medicaid or Medicare. The first year law associate gets $150K, and destroys $1 million in value by lawyer gotcha, paper shuffling in rent, and deterrence of productive economic activity.

Posted by: Supremacy Claus | December 4, 2008 9:06 AM

I had the wonderful opportunity to visit surgeons in Scotland. I was supprised that on a Friday afternoon the ORs were shut down and all the surgeons were either home or at the local pub. In fact, in Scotland, when it is lunch time during the week, they leave the patient under anesthesia and go to lunch and comeback after to finish the operation.

Their surgical case loads were also very different. Here a general surgeon may have a morning of 3 to 4 hernia's some breast biopsys with an afternoon of mastectomies and lap choles. There, they may have one to two cases. There are no elective cases. You see, they are paid on a salary and by the government. They have strickly enforced work hours. Too bad if you need something done. The good thing is that you can try to go to a private hospital or another country.

I think the difference between physicans and surgeons are interesting. Physicans work too many hours but are paid by the case. You work until the case is done or the work is done. Attorneys on the otherhand charge by the hour. Physicans would rather get it all done and go home. You go home when the job is done. Attorneys want to stretch thing out as long as they can, this increases the billable hours. I suggest that we swith this. Lets pay physicians by the hour and lets have the government and insurance companies determine how much an attorneey should be paid for each type of case. We can then set the attorneys fee schedule on an alogrithm that is determined by Congress that includes a constant reduction over time.

Posted by: throckmorton | December 6, 2008 8:44 AM

Tiny correction: trucks can be "on duty" (including getting gas, loading/unloading, etc) for 14 continuous hours, after which they must go "off duty" entirely for 10 hours. They can only actually *drive* a total of 11 cumulative hours, after which they need 10 hours off.

Posted by: Max Kennerly | December 6, 2008 5:54 PM

Kia and Justinian are young and healthy.

I pray that they visit England, and break a bone. Enter Commie Care after waiting several days in the worst pain, unimaginable for them now. You see the wait for the care of the guy with the ice pick in his head, that is six days. For a fracture, well, you better read up on field self-surgery if you do not want to wait weeks. Report back. A good fracture in Commie Care is better than hours of pointless arguing with Commie Care biased, left wing ideologues.

Once in, they are likely to get Commie Care from a Terror Doc, Third World Care. The Terror Doc will be so incompetent that he will not even be able to blow himself up properly. Instead he will burn himself all over. He will go to a Commie Care Burn Unit. It is there he will finally die at the hand of incompetent Terror Docs. Except, he will have undergone unimaginable agonies, not just from incompetence, but from diluted, generic, weak pain killers.

Posted by: Supremacy Claus | December 6, 2008 10:19 PM

Max: Do you support ending the unique, self-dealt, unjust, privity obstacle to a legal malpractice claim by the adverse third party damaged by the carelessness of the plaintiff lawyer, whose medmal claims are weak 75% of the time?

If you do not, shut your hypocritical, vile, land pirate mouth.

Posted by: Supremacy Claus | December 7, 2008 1:09 AM

Supremacy Clause: How is the privity requirement "unique" to legal malpractice? It's "unique" to medical malpractice just the same, just as it's "unique" to any type of malpractice. Why let third parties into the professional relationship?

If you're concerned about "frivolous" claims, there's a specific claim for that, called wrongful use of civil proceedings. Lawyers are liable to suits instituted "without probable cause."

I don't know what you mean by "[plaintiff's] medical claims are weak 75% of the time." A physician was negligent or they weren't. If, in my expert's opinion, there was malpractice, what would you have me do? I already reject every potential case that I don't think I can prove in court, even where my expert says there was negligence.

Posted by: Max Kennerly | December 7, 2008 8:30 AM

For the past 100 years, no one else but the lawyer has had this absolute immunity.

There are dozens if not hundreds of duties to adverse third parties in the Rules of Conduct, Evidence, Civil Procedure, and Criminal Procedure, and in case law. The legal malpractice claims should actually be per se.

Yet, pro-litigation, biased judges have closed the court to innocent defendants damaged by careless plaintiff lawyers, in violation of US and state constitution, including that of PA. If torts are supposed to substitute for violence, then this privity obstacle is dangerous to the lawyer.

The overwhelming majority of claims fail at every stage of litigation, pre-discovery, post-discovery, first pleading, trial, and appeal. Compare. The average failure rate is 75%. Let's accept the 2% rate of medical malpractice in medical decisions. Imagine a 75% failure rate in any other service or product. Lawyers would be yelling for criminal prosecutions, not just lawsuits.

The persistent 75% failure rate of the medmal lawyer makes it a mass intentional tort of the plaintiff bar, with knowledge for decades, giving it foreseeability in the realm close to that of planetary orbits. The failure of the Supreme Court of PA to enforce its Rule of Conduct forbidding the filing of frivolous lawsuits should make the Supreme Court liable as well. The Hans decision forbidding claims of in state citizen against the state should be challenged, then make PA pay. To deter.

The reverse is also a problem. The overwhelming majority of medical errors get no investigation, no compensation, nor measures to prevent their recurrence. Only about 2 or 3% of injured patients get a day in court.

As to the remedies you suggest, they are false fronts. Malice is required. That means one needs written, or recorded evidence of the plaintiff lawyer saying, "I know the case is weak. I am filing it to harass the doctor." Nothing short of such a recorded admission will allow the remedies you propose.

I happen to oppose tort reform. The certificate of merit rule may not be constitutional. Worse, it is an absolute shield for the lawyer against the slightest chance of accountability in the misuse of civil procedure you suggested. It precludes a complaint to the Disciplinary Counsel for violating the rule against filing frivolous claims.

The nearly 100% immunity of the lawyer is self-dealt by biased lawyers on the bench. It is lawless, unconstitutional, unfair, and bad for the lawyer profession. Let the system work to help the lawyer improve from its high failure rate. Why don't you have enough confidence in the court and in our jury system?

Posted by: Supremacy Claus | December 7, 2008 10:16 AM

Max: Sorry. Not 75%, but over 80%. It was 73% in the judicial hellhole of Philadelphia.

http://www.aopc.org/NR/rdonlyres/F579FDF8-AF4F-49D0-8F0C-182BE870EFCB/0/JuryVerdicts2007.pdf

The statistics are similar at every stage of the litigation. The above applies to the strongest cases that go to trial.

Imagine such a failure rate in air travel, medicine, plumbing, soda bottle function. I think the immunity from torts is keeping the quality of lawyering poor in medmal.

Posted by: Supremacy Claus | December 7, 2008 10:29 AM

I don't understand your argument or what you propose we do differently. Who do you think should be allowed to sue plaintiff's lawyers? Like I said, there's already a claim for wrongful use of civil proceedings, and there's no "malice" requirement. The requirement is "without probable cause," a perfectly reasonable rule.

First, why do you think the "strongest cases" go to trial? Wouldn't they be more likely to settle? And why do you think that a defense verdict means that either the plaintiff's lawyer was negligent or that the case was frivolous? Isn't it possible that, say, the experts disagreed on the standard of care and the jury accepted the defense position? Such would show neither negligence nor frivolity.

Second, that 73% defense verdict rate is the strongest deterrent against frivolous lawsuits -- even the most simple medical malpractice case costs $30,000 in expert fees and litigation expenses to bring to trial. Complicated cases can easily break $100,000, with many cases breaking $250,000. Add to that the hundreds of hours in litigation and trial time wasted on the case, and you'll see that a defense verdict at trial represents a total loss to a plaintiff's lawyer usually exceeding $50,000, frequently exceeding $200,000, and sometimes exceeding $500,000.

That's why I, personally, take strong cases, just like most plaintiff's lawyers.

Third, well, I just plain don't get what you're advocating. I don't understand this "immunity" argument -- if a lawyer was negligent in representing a client, the client can sue. If a lawyer brought a frivolous suit for which there was no probable cause, the defendant can sue. Where's the special immunity? What more do you want?

Posted by: Max Kennerly | December 7, 2008 12:01 PM

Max: Here is the definition of probable cause in this context.

"§ 8352. Existence of probable cause.
A person who takes part in the procurement, initiation or continuation of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either:
(1) reasonably believes that under those facts the claim may be valid under the existing or developing law;
(2) believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full
disclosure of all relevant facts within his knowledge and information; or
(3) believes as an attorney of record, in good faith that his procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party."

The standard is subjective, "believes." In the absence of a recorded admission of malice, how do you rebut the "belief" of the attorney that probable cause existed. This is an impossible hurdle, making the law a phony remedy, and a violation of the procedural due process right to a fair hearing of the civil defendant. As I mentioned, the certificate of merit, available for a few hundred dollars, is now a second absolute shield.

The repeated failure rates of the cases should deter the filing of weak cases. The fact that it has not for a decade means, weak cases remain lucrative to the plaintiff bar. You can file 10 weak cases, settle one, and break even.

Tell us your track record in medmal. By your economic argument, most of your cases should win.

Do you agree the filing of a weak case is legal malpractice (this is not a frivolous case devoid of justification by fact and law)? If it is malpractice, like using a treatment not superior to placebo, but toxic in medicine, then the defendant should get a certificate of merit from a plaintiff lawyering expert and get made whole by the legal malpractice insurance of the plaintiff lawyer.

This would improve the quality of plaintiff lawyering because the insurance company paying out multiple times, will inform the plaintiff lawyer, time to find another specialty. You are not competent at this one. We are not covering you anymore.

It is also the weak cases, the unfair cases, that anger doctors. Most docs are decent people. They make a mistake, they do not want to put the patient through the wringer, and will settle. If a doctor settles without insurance company coercion, everyone is a winner, including the doctor sparing himself two years of torment, by spending someone else's money. The payment will actually make the doctor feel a bit better, because I guarantee nothing is more traumatic in health care culture than being mistaken and hurting someone needlessly. The lawsuit is nothing compared to the consequences to reputation, referrals, and total verbal abuse by everyone around. And no one ever forgets nufin' in that small community.

Posted by: Supremacy Claus | December 7, 2008 1:41 PM

Max: Go to an extreme case. Imagine an objective deviation from lawyer standards, a clearly wrongful use of a civil procedure.

Plaintiff lawyer sues doc for conduct that is legally immunity, such as breach of confidentiality, when reporting is legally mandated and immunized.

The lawyer failed to research the law. Sued an immune doc. Failure to research the law is malpractice.

Can you sue the plaintiff lawyer? You can, but it will fail. No malice. Just zealous representation of the client.

There is no wrongful use case that can ever do more than just upset the lawyer about being sued. None will ever succeed. Lawyers get just as upset as everyone else about being sued, and learn very fast. But I oppose the filing of frivolous or weak cases against lawyers. I believe, torts is the remedy, and will upgrade the quality of lawyering.

Also, you believe in the rule of law. You do not want an immunity that no one else has.

Posted by: Supremacy Claus | December 7, 2008 1:54 PM

Do you agree the filing of a weak case is legal malpractice (this is not a frivolous case devoid of justification by fact and law)?

Nope. First, I don't know what you mean by "weak." I'm assuming you mean "a case that is unlikely to succeed but which could possibly succeed." Brown v. Board of Education was a "weak case." Every single case which resulted in a modification or extension of the law began as a "weak case."

Second, what you're proposing by eliminating "weak" cases is lowering the physician's standard of care from "negligence" to "gross negligence." I don't see how that would help society; it would just encourage and reward negligence.

Third, I still don't know what you're proposing -- permitting defendants to sue plaintiff's attorneys for malpractice when the plaintiff loses? How likely do you believe those cases are to succeed? If a reasonably-informed plaintiff thought the attorney's conduct was within the standard of care, what makes you think a jury will find otherwise? And would plaintiffs be permitted to sue defendant's attorneys when they lose?

Finally, you wrote: They make a mistake, they do not want to put the patient through the wringer, and will settle. That's the exception, not the rule. The doctor usually wants to avoid liability, which is understandable. They're not too concerned with the plaintiff's situation.

Posted by: Max Kennerly | December 7, 2008 2:24 PM

S.C.

What do you think of loser pays? Each plaintiff's attorney could pay into a self insurance fund or post a bond prior to filling a case. This should cut back on the bogus lawsuits and encourage good suits to go forward but prevent the "I am going to make this so costly to defend, that even though you did nothing wrong you will settle" cases.

I would love to see attorneys face malpractice suits for every possible "deviation from the Standard of care" when they lose a case. I would further like them to be financially responsible to both their clients and society by being personally accountable if they lose.

Posted by: throckmorton | December 7, 2008 3:11 PM

Dr. T: The docs of Florida did not like the experiment in loser pays. It forced more unfair settlements as the uncertainty increased. The docs had loser pays stopped in Florida. Try collecting from a lawyer with no assets who is desperate to play the lawsuit lottery. So loser pays would be mostly in one direction, to increase pressure on the doctor.

The American Rule is that each side pays for its legal costs. We should support that. Max compares his lawsuit lottery playing friends to a heroic long shot civil rights case. I hope he is assuaging his conscience with that offensive comparison.

Nor should a careful lawyer be made to pay the other side's costs. Loser pays is too broad, and would punish a lawyer who has done nothing wrong, just lost a controversial case that was not weak.

I believe in torts. I do not believe in torts reform. The injustice and the incompetence comes from the injust self-dealt immunity. Many laws and cases assert many lawyer duties to the other side. These are broken by biased judges who refuse to allow access to the court for the victims of lawyer carelessness.

I am willing to protect Max with tort reform measures. An expert in his specialty would have to assert a deviation from standards took place. I do not want Max subjected to any weak or frivolous legal malpractice case.

A law should force all lawyers renewing their licenses to carry legal malpractice insurance to protect the victims of their mistakes. That way the risk of carelessness is assessed to those who benefit from lawyering, the other lawyers.

This proposal is neutral. A plaintiff has the right to sue a defense lawyer for asserting a weak or frivolous defense. Again, find a defense lawyering expert to certify the merit of the case.

I gave a scenario where a lawyer sued a doctor with legal immunity. The lawyer has broken a law by his lawsuit. Max would have no accountability for the damage done by the lawyer's carelessness in not first researching the law. That lack of recourse gives moral and intellectual justification for violent self-help against the profession. So enabling a lawsuit is for the safety of the lawyer.

The other effect of tort liability and immunity is to shrink or grow the entire enterprise. Our lawyer profession is too big for our population and economy. Increasing liability will shrink the entire profession. Max will get a raise by decreasing the number of lawyers.

Here are naturalistic experiments that show liability shrinks the whole enterprise, immunity grows the enterprise.

http://supremacyclaus.blogspot.com/2007/09/immunity-and-liability-are-stealthy.html

Max will thank me later.

Posted by: Supremacy Claus | December 7, 2008 7:29 PM

Because the failure rate of medmal has been true for years, there is knowledge. The plaintiff bar and the judiciary should be subject to exemplary damages for their intentional misuse of the court. To deter.

Posted by: Supremacy Claus | December 9, 2008 12:33 PM