As consumers, we increasingly have ever more access to information about the enterprises that we may wish to do business with. In the beginning there was the Better Business Bureau, then Zagat Surveys, then BizRate, then online reviews from Amazon, Expedia, iTunes, etc.
In the medical field, patients had indicia such as board certifications and hospital privileges when choosing physicians. There are also services that collect data on malpractice lawsuits — you probably don’t want to retain a doctor (or a lawyer, for that matter) who has lost too many malpractice cases.
Fair enough. But what happens when the professionals turn the tables?
In the latest effort to enable doctors to shun patients who sue, an offshore company has launched an Internet site that lists the names of plaintiffs who have filed medical malpractice cases in Florida and their attorneys.
The site, LitiPages.com, encourages doctors to consider avoiding patients who are listed in the database, and it strongly encourages plaintiffs who have lost their cases at trial to turn around and sue their plaintiffs attorney.
Note: The urls “http://www.LitiPages.com” and “http://LitiPages.com” seem to be inactive. Go figure. I guess we now have to treat this post as a hypothetical. Walter blogged about a similar service long ago.
Let’s clearly delineate the two separate concerns here. I will leave to others (Walter?) the task of explaining why a lost lawsuit is not automatically, or even presumptively, a malpractice claim against your attorney.
I want to focus instead on the first part. Why exactly is it “unethical” to provide a database, for physicians, of sue-happy patients? If I, qua patient, have a right to know my physician’s malpractice record, then why shouldn’t he have a right to know mine? Because he’s a licensed professional and I’m not? I don’t think that’s enough of a distinction.
The act of filing a lawsuit is, generally, a matter of open public record. There is, with only a few exceptions, no “right to sue privately” or “right to sue anonymously” (cf., this chain). So if some enterprising individual or firm chooses to collect and organize court data to meet an unmet demand, then why shouldn’t he be allowed to do so? Why is it unethical — especially if the entrepreneur is not himself a licensed physician or attorney?
Consider the analogy of voting. Yes of course our ballots are secret. But the fact that we are registered to vote is (generally) not confidential. Our party affiliations are not. And if we sign an official petition (e.g., to authorize a ballot initiative calling for a same-sex marriage ban), why should that fact not be made available to the public?
It is a very rare event indeed where more information is a bad thing. Better information means better choices, which in turn means better outcomes — both inside and outside the courtroom.
Via Kevin, M.D. See also WSJ Blog, This Makes me Sick.
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In the general context of specialized litigation, of which malpractice lawsuits are a subset, I once asked whether it might be wise to switch to professional jurors. Any comments on that subject are most welcome.
11 Comments
Hmmm…As my lawyer friends like to say, “I think you’re missing the facts.”
I don’t think the ethical problem arises from providing information qua information, but the way in which the information is presented.
For example, the website that you refer to – litipages.com – put patients whose cases settled out of court in the “bad patient” category because there was no jury determination of fault. But that’s ridiculous. And that doesn’t even begin to approach the problem with assuming that because a jury gives a defendant verdict, the plaintiff’s case must have been frivolous or weak.
There’s nothing wrong with disseminating information per se, but this non-lawyer will argue that packaging information in a way that is misleading in order to intimidate potential plaintiffs is quite unethical.
The only practical question for the database is whether to include all suits filed, or only a subset, such as those with merit invalidated by a jury finding against the plaintiff. Since only roughly 10% of medical malpractice cases filed ever go on to jury finding that leaves many settled or dropped.
The presumption in the Physician National Practitioner databank is that all cases, jury finding and settlement without finding or admission or wrongdoing even are included in the database. Since toss-ups are included on the defendant side, it would only be reasonable to include the same toss-ups on the plaintiffs database as well. After all, if the legal system never rendered judgment for either party, then why should the reporting of the data presume to guess which party to assign blame. So the only cases not to report in the Patient Databank would be those in which a jury finding went against the defendant.
If I remember correctly, the author of Litipages.com made the same argument in re the National Practicioner Databank. But this is a faulty comparison.
The NPD is not a database that the public can search to avoid taking their business to a “bad doctor.” In fact, much of the information in the NPD – the identity of physicians in particular – is not available to the public.
The litipages.com database grants no such privilege to patients. And, of course it wouldn’t. It’s intended to serve a completely different purpose.
I’m particularly intrigued by this phrase of nevins’s:
“merit invalidated by a jury finding against the plaintiff”
What if we applied that same logic to criminal cases? Acquittals would represent false arrests and malicious prosecutions? That hardly seems like a reasonable way of thinking. But then again, I’m no lawyer.
I believe the ethical complaint is leveled against physicians who turn away patients needing their services based on the patients’ inclusion in the database, and without regard to whether their past lawsuits were justified.
Let me explain my thinking on the null jury finding.
In a civil case the burden of proof is preponderance, i.e. 50.1%. Thus with an ever so slight favor for the plaintiff goes the full spoils. Thus if the defendant is 50.1% in the right, he is free of blame. The scales of justice are not preloaded to tip one way or the other, and whichever way they do tip is the jury’s finding of fact.
In criminal trials the burden of proof has a substantial skew to the scales, with beyond a reasonable doubt as the requirement. Thus, though the prosecution might fail to meet the reasonable doubt standard, there could be easily a strong appearance of guilt, anywhere from the preponderance (more than likely guilty) all the way up to but not including reasonable doubt (pretty damn sure of the guilt, just not sure beyond all reasonable doubts).
Thus the finding of not guilty would not equate to innocent because of the unequal burden of proof in criminal trials.
Whatever the medical ethics, a plaintiff database should be started for all service and product providers. Plaintiff lawyers, and pro-plaintiff judges are listed.
A plaintiff is at the cash register. The credit card is good. Name is on a plaintiff database. The store declines the purchase, and has him escorted off the premises, banning him.
The same pre-checking is done by a heating service, called when the boiler is broken on a zero degree day. Then, refuse to come out.
If someone is making war on our economy, there is no duty to service the pitiless adversary.
[Kip replies: Or you could just make him sign a waiver.]
A waiver would be a contract of adhesion and unconscionable, especially on that zero degree day with the boiler cold. Duress voids a contract.
Waivers are against public policy. One cannot sign away the right to make a lawyer rich.
http://www.lmnc.org/pdfs/waivers.pdf
I’m sorry. It has to be back to the Stone Age for those attacking our American way of life.
The good guy lawyers have nothing to fear here.
“making war on our economy”
“pitiless adversary”
“those attacking our American way of life.”
Wow, forget to take your meds today?
If someone is making war on our economy, there is no duty to service the pitiless adversary.
This assumes all plaintiffs are making such war, which they are not. Some percentage of consumer lawsuits are justified and have merit, and you propose broadbrushing those plaintiffs, as well. If someone has filed an action with merit, the good guy service provider has nothing to fear from them.
Dr.: He’s in the database, so I refuse to treat him.
patient’s wife: He’s in the database because another doctor had six martinis before cutting him open, and removed a kidney instead of his appendix. If you’re sober, what are you afraid of?
Personal remarks are frustration in the traverse.
Every medical error is the fault of the lawyer. These cannot be addressed without the fear of litigation. So, the majority are covered up. Try dealing with the drunken surgeon without betting the hospital, when he sues.
The express goals of torts are in utter failure. The implicit goal of torts is a raging success, lawyer rent seeking. It is a bunko operation in its entirety. Its destructive effect on the economy is massive, knocking off a point off growth that would have been compounded into eternity.
So no lawsuit can ever be just or have merit. Toss out the entire system, because some people abuse it. Thank you for clarifying this position of yours.