Kevin MD reviews the medicine behind the Navarro stroke case (which we covered Oct 5/6), and finds a lot of 20/20 hindsight second-guessing. One commenter adds:
The scary thing to me and many ER physicans about cases like this is that outside of the diploplia I probably see 3-4 patients like this a week and usually send them home with or without a Head CT. When we read cases like this we thing “Thank God it wasn’t me” and realize these cases are bound to eventually happen to us too. I see 3-4 patients an hour I CANNOT decrease that to 0.5-1.0 patient an hour and get a specialty consult on every single patient.
Once again, a verdict that deters practice, rather than malpractice.
(Update, August 2007: case settles.)
5 Comments
Once again, a verdict that deters practice, rather than malpractice.
Once again, an over-the-top statement.
If the quotation you cite from the Kevin, M.D. blog is supposed to be evidence that the Navarro verdict deters practice I missed the connection. In fact, the writer of the comment definitely implies that he is not about to do anything differently. He doesn’t even issue the obligatory threat of quitting the ER. When we read cases like this we think “Thank God it wasn’t me” and realize these cases are bound to eventually happen to us too. Sounds like he is just going to keep on keeping on.
I find that strange but far from a deterrence of practice.
Suppose Mr. Navarro’s ER doctor had simply learned of what happened to his discharged patient the next day. Would everyone not hope a conscientious doctor would carefully review his protocol and seriously consider making some changes. Likewise, if he had just learned someone was looking into a possible medical malpractice case. It is astonishing to me that a punitive damage verdict of over $100 Million has zero impact on anything except to allow comments like yours. But, for some doctors, verdicts and bad results are treated as things that happen in a parallel universe. Neither one is any reason to take a look at what they are doing or failing to do.
At its heart the verdict says in the eyes of this jury the medical provider or providers were guilty of gross negligence or recklessness or willful misconduct. Might not some ER doctors or hospitals want to take a really close look at everything the jury saw and heard? As for the others who plan to keep on trucking with their fingers crossed, I would think we might be better off if they totally left their practice.
Under GTL’s reasoning, why stop with stripping the doctors of all their assets? Why not, under GTL’s rationale, publicly flay the doctors alive and then display their heads on a pike outside the courthouse? Surely that will cause doctors to reconsider their practices.
Or is there more than one consideration that we need to make? Perhaps there is a point where we’re worried about overdeterrence, where a doctor decides that the chance of being second-guessed and having his life ruined because of an unfortunate medical situation outweighs continuing practice? And if so, perhaps a $217 million verdict is over that line?
It’s far from clear to me that the doctors did something wrong (much less “willful”) except in hindsight: Navarro went through 2 CT scans (if he were in Canada, that never would have happened) that were negative. GTL is demanding more defensive medicine, more resources spent on patients that don’t have anything wrong with them (just in case), and if doctors don’t want to practice such wasteful medicine they should be driven out of the profession (because, after all, GTL and a lay jury swept up by a plaintiffs’ attorney’s appeal for a financial lynching knows better than the medical profession how to treat a case). The end result is worse medical care for everyone.
Some comments:
1) If it is true that an unlicensed PA (who failed his exam 4 times)was indeed practicing medicine without a license and the physicians aided and abetted him in his practice, then I see no problem with a large verdict (but not necessarily $217 M) against the physicians. This verdict will surely be cut by either the trial court or the appeals court.
[TF: Triage is not the “practice of medicine.” The facts show that licensed doctors saw the patient.]
2) If this happened in New York, CPLR 4504(d) would control. CPLR 4504(d) shifts the burden of proof in medical malpractice cases from the plaintiff to the defendant where the defendant does not have a license to practice medicine.
It says:
(d) Proof of negligence; unauthorized practice of medicine. In any action for damages for personal injuries or death against a person not authorized to practice medicine under article 131 of the education law for any act or acts constituting the practice of medicine, when such act
or acts were a competent producing proximate or contributing cause of
such injuries or death, the fact that such person practiced medicine
without being so authorized shall be deemed prima facie evidence of negligence.
3) The insurance company’s obligation is another story. There has to be a major deterrent to insurance companies that take the attitude that we accept all premiums but pay no claims.
If it is true that the insurer’s offer was $300.00, this was clearly a bad faith settlement tactic that placed the insured in jeopardy of having to pay a verdict in excess of the Policy. The insurance company is now responsible for any amounts that its insured may have to pay in excess of the Policy. I have no problem with the courts bankrupting an insurer that fails to adequately protect its insured under a policy of insurance or that fails to pay legitimate claims and forces litigation instead.
I have come across too many insurance companies that do not pay claims that they contracted to insure, and instead force their insureds to sue them for relief, or force the aggrieved party to sue their insured.
The system is screwed up because insurance companies apparently find it more profitable not to pay legitimate claims by placing litigation stumbling blocks, knowing that certain claims will be dropped, or that they can then settle for a lesser amount.
Remember, it takes two to tango. If either party to the litigation is unreasonable in its offer to settle the case goes on and a jury decides with its unpredictable consequences. Sometimes the insurer wins, and cheats the plaintiff out of compensation for a legitimate claim, and sometimes it loses and has to pay, and sometimes it loses BIG where it affects its bottom line. If the third alternative happened more often, insurers would not steer cases into the courts. There is another alternative involving failure to pay bogus claims, but that does not touch on this analysis.
[TF: If the insurance company believed in good faith that the underlying claim was meritless, a $300 nuisance settlement offer is reasonable. We don’t have enough facts to say one way or the other, other than to note that the insurer is invariably worse off under the status quo from making a bad faith settlement offer if damages and liability are clear, which makes one suspect that a rational insurer had a rational reason for making such an offer.]
4) By the way, I never saw this blog bitch about the insurance companies that promote litigation by screwing multitudes out of just compensation and forcing them to sue by offering either nothing or a pittance for insured injuries.
[TF: Read the blog more often. At the moment, the system is tilted against legitimate defense and fraud investigation.]
The defense probably failed to seek trial bifurcation and to exclude the plaintiff from the court, his appearance being highly prejudicial.
Ted Frank’s reply to GLT is right on.
There is one other issue. How can we presume that any action would have saved the man from the adverse effects of stoke? No mechanism is cited that would have saved the day.
The benefits from medicine are wonderful. Why are we punishing good people for not being gods. Any relief from stoke is still a miracle.