Justinian Lane

Some gallows humor regarding medical malpractice

If you’re not on LinkedIn, you probably should be.  (Feel free to add me to your network.)  One of the great features of the site is the ability to ask questions and get answers from a variety of people.  TortDeform contributor Lee Tilson asked a question about what he could do to help prevent malpractice from occurring in the first place, and one of the responses contained this bit of gallows humor:

(A) The number of physicians in the U.S. is 700,000
(B) Accidental deaths caused by Physicians per year are 120,000
(C) Accidental deaths per physician is 0.171.
Statistics courtesy of U.S. Dept of Health Human Services.
Now think about this:
(A) The number of gun owners in the U.S. is 80,000,000.
(Yes, that's 80 million..)
(B) The number of accidental gun deaths per year, all age groups, is 1,500.
(C) The number of accidental deaths per gun owner is .000188
Statistics courtesy of the FBI
So, statistically, doctors are approximately 9,000 times more dangerous than gun owners.
Remember, "Guns don't kill people, doctors do."

I have no idea of these statistics are accurate, but I thought I’d share this.  And please don’t take this as doctor bashing – I believe that the vast majority of medical errors are made by well-qualified doctors who aren’t under the influence of any intoxicating substance.  As always, I welcome any suggestions on how to prevent medical errors in the first place, rather than talking about the financial problems caused after they occur.

Justinian Lane: Author Bio | Other Posts
Posted at 9:21 PM, Jan 20, 2009 in Medical Errors | Medical Malpractice
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If you really want to help prevent physician errors, the first thing is to understand what is actually an error. Bogus statistics do not help solve anything. If we want to determine what is right or wrong and therefore considered an error we must use evidence based research to define a "true standard of care". This of course flies in the face of trial attorneys because if there is a defined standard, there would be no need for a trial.

If you really want to say that 120,000 patients a year die due to errors, then lets define what are the errors and then test their validity. Lets also define the standards of medcine and decide what degree of sensitivity and specificity in diagnosis and treatment that we will as a nation accept.

Posted by: throckmorton | January 20, 2009 9:49 PM

Kia: Don't force me to put the Supremacy curse on you. I did on a left wing and it shut down soon thereafter, and its vile left wing America Hater is wracked with miscellaneous medical afflictions.

The statistics are lawyer gospel from biased New England Journal authors, half of whom had a JD after their names. They indoctrinated trainees for hours on end, to rate charts by clinicians far senior to them in every way, including raw IQ. It is left wing false propaganda. The overwhelming majority of those deaths are from natural causes in very old, sick people. It is bogus lawyer disinformation. The reliability of the ratings, even after hours of indoctrination, was abysmal, and totally negates the validity of that biased study. You had to read the Methods Section in tiny print.

That you republish such doctor bashing, untrue lawyer propaganda discredits you more than it does the doctor profession. It's anti-scientific garbage.

Posted by: Supremacy Claus | January 20, 2009 10:22 PM

If medical errors take place 1% of the time, the filing of weak malpractice claims takes place 90% of the time. The rate of legal malpractice is 90% of the time. Such wasteful incompetence persists because of the litigation privileges that the biased lawyers on the bench have dealt the profession.

The surest way to end medical errors, which concern me as a patient, is to end medmal. Replace it with Deming, where each gets investigated, and the unit stops until the multiple factors that led to it are remedied.

The cause of every single medical error is the lawyer.

Posted by: Supremacy Claus | January 20, 2009 10:37 PM

Here are some real statistics for you. Last year the US graduated 16,000 physicians and over 40,000 attorneys. Who do you think has a greater financial interest in "medical malpractice"?

Posted by: throckmorton | January 21, 2009 9:26 AM

SC: What?

Throckmorton: in the spirit of demanding accurate statistics, how many of those lawyers go on to work on medical malpractice cases? plaintiffs' side? Then let's talk.

Justinian makes a good point about this debate. Shouldn't the primary objective of the conversation be to figure out how to reduce deaths and injuries by reducing preventable medical errors? (By the way, the answer is yes).

Posted by: Kia | January 21, 2009 10:32 AM

If we really want to look at reducing medical errors, then we have to look at the medicine. Using evidence based research we can find what does and what does not work. Changing standards of care in the court room does not help the practice of medicine nor does it decrease error. I find it interesting that the results of court cases are not spread through the medical literature to change how things are done. If anything, they are spread by rumor. We cant even decide what is a real medical error.

In an aircraft accident, the scene and everything about the plane is disected. When answers are found they are diseminated through the aviation world. Yes, there are lawsuits but things are improved. Are the improvements the result of the lawsuits? No. The improvements are the result of the investigation that is done by the NTSB. We need to do the same with medicine.

The other thing that must be considered is that we have an ever expanding population of attorneys. Many of whom are now finding it difficult to find work. The medical community through their insurnace is essentially funding a large group of attorneys. We can not exclude that there is a huge financial incentive for attorneys to allege that any bad outcome is malpractice. This is their way of supporting their families. They want anything to be considered malpractice. If we accept certain standards, there will be many attorneys who will find it hard to make a living as the issue of malpractice would be clear and there would be minimal debate.

We are seeing more and more claims that certain things are due to physician mistakes. In fact it seems that the natural inevitability of death is actually due to physician negligence. As we seen more an more people survive massive MIs, CVAs and cancers, has there been a decrease in the number of medical malpractice attorneys? No, infact the number is the same or more.

I personally as a surgeon would love it if we could find more cures for cancer. I dont mind losing that income from huge cancer operations. I hope that attorneys would love an end to medical errors.

Posted by: throckmorton | January 21, 2009 11:58 AM

Dr. T: As a patient, I want Deming, and the end to medmal. Injured patients get Medicaid. It can be done in hours, not years. All dollars go into care to make the victim whole.

Get rid of the lawyers and courts entirely. Docs are almost immune now. Make them fully immune. OK.

Doctors boo me when I tell them they will long for these days of the medmal lawyer, once Deming replaces them. Today, about 2% of victims want to sue. Of those, 95% are rejected by lawyers as smokers, fat, low class, rough in appearance. Lawyers do not know any medicine, and you are being second guessed by naive people. If you explain to the jury, they will support the doctor. Of the remaining few, about 90% are weak cases won by the doc.

Now contrast to this. A bunch of insiders come around and close the unit. They list the 12 mistakes that went into every serious incident. They list the remedy to each. They enact the remedy to each. Then they open the unit again, but this time, monitor it for two years, checking, checking, checking, and criticizing, criticizing every tiny mishap.

The lawyers have not made that case to docs yet.

Posted by: Supremacy Claus | January 21, 2009 6:08 PM


The problem is that right now we have both. We have medmal lawyers and naive people trying to find everything possible to sue for and stretch the diagnosis of malpractice as much as possible and we have insiders who want to list mistakes and enact changes. (This is JACHO and has been around for years.) The problem is that JACHO hasn't decreased the number of suits.

I do not want to get rid of medmal lawsuits. I do want to make sure that we establish true standards for both the medical profession and the legal profession and hold both accountable. To do this we need to get rid of the attorney self imposed immunity and allow them to be sued in the same way as other professions. If there is no punishement for the filing of bogus cases then they will flourish. If they are trully legimate cases, and lost then the attorney should face malpractice suits on the sheer basis that an expert could say that it was a winnable case and the attorney blew it, just as you can second guess any medical case. I love the attorney excuse that to collect damages for a case that is lost, you first have to prove that the case was winnable. They claim that the case was not winnable, and therefore no damage was caused. Yet, if the case was not winnable, why did they file it in the first place?

In John Days he gives the medmal statistics for his state. 7 of over 2000 cases were decided for the plaintiff. In only 1/6th of cases was there a settlement. In those settlements, we do not know how many were settled just on the pure economics that it costs more to defend to settle. How many of those filed cases could be loosely found to be malpractice on the part of the attorney?

Justinian states that we need to focus on preventing medical errors. I agree. The problem is that the focus is on preventing lawsuits, not preventing errors. The reason for this is simple. What is and is not an error is a matter of opinion and those opinions are financially motivated. To decrease errors, we have to look at the systems. The systems are now all about the documentation of the care and not the care itself. Documentation is good for the lawsuit but ties up the people who are taking care of the patients and those who are responsible for checking for and preventing errors. The circulating nurse in the or has 14 pages of documentation that they have to complete during each case. It actually is more on the EMR. They are the ones who ensure that the sponge count is correct, that the patient is positioned properly, bovie pads, foley, chest tubes are all correct. Since there time is now occupied by the paperwork, less attention is focused on the patient. Of course, if their is a problem, the physican is to be blamed. So you can't focus on doing the operation becuase you now have to make sure that everyone else who is too busy doing paperwork has actually done their real job.

So, to decrease errors in medicine, we need to focus on the system of delivering medicine and less on decreasing lawsuits. However, if we continue to file lawsuits and stretch the definition of medmal as far as we can, it will continue to be the focus of all attention. Right now, everyone does extrapaperwork instead of patient care to help get rid of the 5/6th of the cases that result in no payment.

Posted by: throckmorton | January 21, 2009 9:50 PM

What is mean by medical mal practice? Is it medical related?

Posted by: offering help to victims of medical malpractice | January 22, 2009 7:14 AM

Medical malpractice should be restricted to that within the knowledge of the jury, or that where only the plaintiff has expert support, and not the defendant.

If opposing experts testify in good faith, then a scientific controversy exists. The court is not competent to settle any scientific controversy and has no subject matter jurisdiction. When opposing experts testify in good faith, the case violates the procedural process right of the defendant to a fair hearing. Only additional validated data can settle a scientific controversy.

An example of malpractice within the knowledge of the jury is wrong site surgery.

In the case where there is only a plaintiff expert, one still has to go beyond Daubert or Frye to reality. The expert must produce twenty records of the same treatment for patients as severe as the plaintiff. If the testimony to the standard of care gets contradicted by anything in the record, a mistrial must be demanded. The plaintiff expert should face perjury charges if he asserted a false fact. All legal costs should be assessed to the plaintiff expert, with no indemnification permitted. To deter false testimony.

As stated, every medical error is the fault of the lawyer, and the assertion of established due process rights should provide an adequate remedy.

If a patient suffers from a medical error, they should get Medicaid. As Dr. T has proposed, the medical error gets a cluster of factors investigation and is prevented.

Posted by: Supremacy Claus | January 23, 2009 2:00 PM