Deep in a comment thread on a blog that I shouldn’t be wasting time reading, trial lawyer Lee Tilson writes as an argument against reform “Our imperative should be to reduce medical errors.”
But there’s a very easy way to reduce medical errors: abolish the practice of medicine, and doctors won’t commit medical errors any more.
That clearly isn’t an improvement over the status quo, and this illustrates the flaw in Tilson’s argument: he’s asking the legal system to solve the wrong problem. Better for a legal system with rules that effectively tolerate some more Type I errors if by doing so eliminates even more of the Type II errors from doctors deterred from practicing at all. Society should be happy with a tradeoff of more doctors for somewhat more medical errors if the net result is better medical care for all. At what level of malpractice liability will medical care be optimized? The data indicates the needle has moved too far in favor of liability: reducing liability (say, through caps) improves health-care outcomes such as infant mortality. The deterrent effect of outsized liability on practice more than outweighs the deterrent effect of liability on malpractice. (As I’ve noted at Point of Law, even serious academics make this mistake.)
There are ways to achieve reform without Type I/Type II tradeoffs. Improving the accuracy of the justice system would hypothetically reduce both Type I and Type II errors; this is the principle behind the Common Good health courts proposal. That the trial bar fights so hard against even so much as establishing such courts on an pilot basis shows how much they really care about “medical errors” as opposed to their own pockets.
19 Comments
Having worked in a hospital and seeing first hand how moronic nurses and over-confident doctors routinely harm and mutilate patients I am surprised that there are not more lawsuits but then again most of the harm is done to children who cant sue. The best way to stay healthy is to avoid US health care completely.
“That the trial bar fights so hard against even so much as establishing such courts on an pilot basis shows how much they really care about “medical errors” as opposed to their own pockets.”
Or maybe it shows how much trial lawyers believe in the Constitution and the importance of the jury.
Question: If we were to establish health courts, why not establish manufacturer courts, where professional engineers decide product liability cases? Or accident courts, where professional drivers decide auto accident cases? And of course, why not have legal malpractice courts, too?
I’m curious as to why medical providers deserve a different brand of justice than anyone else.
Why not have professional engineers decide product liability cases? We already effectively have legal malpractice (and business malpractice) cases decided by judges in the vast majority of instances. If lawyers were required to be held to the same standard as doctors, the majority of lawyers would be guilty of malpractice. The real question is why other professionals don’t get the same benefit of the doubt that attorneys do.
We have professionals, rather than lay juries, that decide social security disability and worker’s compensation and black lung fund and immigration cases. The jury system is not universal, even in America, and it (like the Constitution) is a means to an end, rather than an end in and of itself.
Those are great suggestions, Justinian. I think the jury system would benefit greatly from jurors that understand what they are ruling on.
Ok, I see some consistency here – good. I have two follow-up questions.
1: In what tort cases would you leave a jury? Any which don’t turn on complex scientific (or legal, etc.) issues?
2: What about in the criminal world? Should, for example, an Enron/Worldcom/etc. executive be judged by a forensic accountant instead of a jury?
Wow, Justinian. Welcome to the reform movement!
Lee Tilson posted two duplicative comments that each seemed to threaten litigation if he didn’t like the way the comments appeared in the comments section. Rather than try to figure out if I was agreeing to be sued if I posted either or both of his comments, or waste time trying to negotiate what precisely he meant, I’m just not posting either.
If Tilson wishes to submit a comment that doesn’t either spam or threaten, or wishes to post something on his own blog, he’s free to do so.
Tilson responds on his blog.
Ted:
Can we agree that medical errors that cause injuries are a bad thing, i.e. that we should do what we reasonably can to prevent injuries caused by medical errors?
Lee
[TF: I say as much in my post.]
“Our imperative” should be for good medicine for as many people as possible for the amount of resources we choos to spend (small or great).
Reducing medical errors is indeed a part of that, but only ONE part.
Silly example: what is there was a doctor who could treat 10,000 patients per day, but he was guaranted to make 1 medical mistake each day?
If you could only afford to hire one doctor, THAT is who you would need to hire to do the most good. It would also most certainly increase the number of medical errors.
Reducing medical errors comes (in most cases) at a cost. If the cost is high enough, it would be better to spend those resources elsewhere.
We all agree that errors are bad and that we would like for their to be none… but not all of them are worth preventing.
Deoxy writes:
“Reducing medical errors comes (in most cases) at a cost.”
Surprisingly, the facts do not support this conclusion. Poor medical care generates more costs than the malpractice system.
Bruce Japsen of the Chicago Tribune indicates that studies show low quailty healthcare contribute to a significant percentage of healthcare costs, perhaps as much as 30% of the $2 trillion we spend on healthcare.
http://the.honoluluadvertiser.com/article/2006/Nov/16/bz/FP611160333.html
Poor care costs more than good care.
As Deming demonstrated decades ago, businesses save significant amounts of money with quality processes.
Good medical care saves money, significant sums of money. Good medical care could save as much as 30% of our healthcare expenses.
This conclusion may seem counterintuitive to those unfamiliar with Deming’s work or recent studies.
Deoxy, I don’t agree that all errors are bad. There was a study that showed 80% of mal-practice claims to be wrong. Most errors are concocted to get money. Litigation seems the worst possible way to improve medical care.
re: “I don’t agree that all errors are bad”
Do you agree that errors that cause the following are bad:
death
patient injury
increased healthcare costs
litigation
I understand that you do not like litigation. I am not asking that question.
I am just asking if errors that result in one of more of the four adverse outcomes are bad, and whether we ought to do what we reasonably can to prevent errors that result in one of those four outcomes.
Can we agree on that?
Lee
“Poor medical care generates more costs than the malpractice system.”
For the sake of argument, I will grant that assumption.
“Poor care costs more than good care.”
You are assuming that good care comes FREE by simply not making any mor errors.
My point was that getting rid of those errors, in and of itself, will take resources.
It is certainly possible that PROPERLY APPLIED resources could cause a net gain (more resources saved in prevented errors than spent in preventing them) – in fact, it is likely to be the case right now.
But that only goes so far – there comes a point where the resources dedicated to preventing the last %x of errors is greater than the cost of those errors.
I make no statement that we are there now; that’s not the point. The point is that error prevention is NOT FREE. We CAN NOT POSSIBLY save every bit of the resources currently wasted by medical errors, as it takes resources to PREVENT errors.
Net gain? Possible. Saving the full 30% (according to you)? IMPOSSIBLE. Until that trade-off is acknowledged and some numbers put to it, all the screams about the costs of medical errors are one-sided and significantly dishonest.
William Nusslein,
ALL REAL ERRORS ARE BAD. “Mal-practice claims” does not equal “real errors” (as you yourslf pointed out). “Most errors are concocted to get money” means that the mal-practice system is bad at finding real errors (as opposed to concocted ones), but REAL errors are ALL bad.
I agree completely with Lee that errors are bad. I am trying to get him to se that wasting resources is also bad, and in some cases would result in MORE bad than the errors themselves. That is, medical errors aren’t the ultimate pinnacle of bad things, trumping all other bad things that would could spend resources on.
Lee Tilson’s “30%” figure appears to come from this study:
In other words, they made it up.
More importantly, only a small fraction of that 30% figure reflects alleged medical malpractice, as opposed to “medical errors” such as patient failure to obtain appropriate preventative care–medical errors that, as I noted in the original post, are exacerbated by the current medical malpractice regime.
Ted writes: “In other words, they made it up.”
There are plenty of other groups with similar statistics. However, read through the 94 page report with 192 footnotes. It is a carefully reasoned report by the Midwest Business Group on Health. Here are there members:
http://www.mbgh.org/index.php?t=become/Members&
These are large business groups.
This is not a group of trial lawyers. I wonder if any of these groups are supporters of this website. No time to check now.
How about the recent figure from the Institute for Healthcare Improvement of 40 to 50 injurious errors per 100 hospitalizations?
Do read the report. One will see that the 30% figure is a made-up shock statistic that would never survive peer review or a Daubert inquiry; that “medical errors”, as defined by the report, has little to do with “medical malpractice,” which is what reformers are talking about; and that the few pages justifying the made-up statistic are a small part of a much larger report on how businesses can reduce health expenses.
As regular readers know, Overlawyered has not hesitated to criticize large business groups, or even other legal reformers, when those groups are incorrect.
Are there readily preventable medical errors? That’s very likely true; IHI proposes reasonable medical reforms, though it plainly exaggerates the impact of those reforms. The point is that the current medical malpractice liability system interferes with medical practice more than it deters medical malpractice.
Are wrong site surgeries preventable errors? Malpractice?
Are the million and a half medication errors that kill or injure patients each year preventable errors? Malpractice?
Have you read the IOM reports?
I agree that the report that Bruce Japsen cited did not lay out all the detailed reasoning for the conclusion. That hardly makes it a made up stastic.
Do you think the IHI’s estimate is a made up statistic?
Do you know anyone who has been injured by a preventable medical error?
There was an article published in the past few days by the Anesthesia Closed Claims project documenting significant percentages of meritous claims.
I contine to invite anyone to work with me to eliminate medical errors.
best
Lee
Lee, it’s an amusing coincidence that you ask these condescending questions, because I just got finished typing a comment in a different medical malpractice thread about how reform opponents misuse the IOM report to confuse “medical errors” with “medical malpractice,” and I’ve been writing about the implications of studies on the anesthesia closed claims data for years. At least one of your questions is explicitly answered above, which makes me think that your intention being here is to spam or troll, rather than to discuss the issues.
Yes, wrong-site surgery is almost always malpractice, and a bad thing. But your “30%” figure isn’t just talking about wrong-site surgery, it’s talking about young pregnant women who fail to see an obstetrician–a problem caused by the current malpractice regime, rather than solved by it. This is the third time I’ve pointed this out, and you continue to fail to acknowledge my argument, much less refute it.
Do I know anyone who was adversely affected by a preventable medical error? Yes: I was, in 2003. Arguably also in 2004.
Lee, I’ve done you the courtesy of reading what you have to say about malpractice. Before you start throwing talking points at me, at least read what I have to say. You don’t even seem to have read in full the comments where I respond to you.