Medical Malpractice

[milkbar]

Luke 6:29-30 NAB

To the person who strikes you on one cheek, offer the other one as well, and from the person who takes your cloak, do not withhold even your tunic.

Give to everyone who asks of you, and from the one who takes what is yours do not demand it back.

What does this mean in the context of medical malpractice? If a doctor’s undeniable error costs you thousands of dollars in bills, may a Catholic file a medical malpractice suit in the amount of those bills? My former church taught me that lawsuits are not permissible but I can’t recall what their reasoning was. I read this passage today, however, and it struck me as I have been praying about whether to pursue a lawsuit. It’s not at all large amount of money as such lawsuits go–I don’t want to profit from this. But it’s still far, far more than I have right at the moment and would not be on my plate had this doctor diagnosed something properly while I had insurance. (To clarify, it was a matter I brought to his attention at an office visit; he told me it was one thing, but it turned out to be something else eventually requiring an emergency room visit and admittance to the hospital for observation followed by surgery. Take my word for it that this is what I say; I don’t want to divulge too many details.)

Thanks for any insight.

 

[Rascalking]

I am of the opinion that this bible verse is more misunderstood than virtually any other phrase in the bible. (the judge now lest ye be judged is a close second).

This is NOT legal or medical advice, so don’t take it as such!

If someone wrongs you, you have every right to take an appropriate reaction. If that means a lawsuit is necessary, than so be it.

Look at this way-if someone is kicking your 3 year old daughter in the head, are you going to stop them, or tell her to, “turn the other cheek”? If someone charges you knife, are you going to let them kill you?

(This doesn’t mean that if someone cuts you off in traffic you have the right to blow their car up with a rocket launcher…keep in mind, I said appropriate… )

 

[OraLabora]

I am married to a doctor. Doctors are not infallible nor impeccable.

In Canada at least, a misdiagnosis is not grounds for a lawsuit. Only negligence is grounds for a lawsuit. Some try with a misdiagnosis but if it is proven that the doctor was diligent in ordering the right tests, but simply misinterpreted the results, the lawsuit will go nowhere.

This is an example of who could successfully sue and who could not:

A patient comes in, the last patient of the day, complaining of a severe headache.

Doctor A is alarmed by this, does a full examination of the patient with a full medical history, and sends the patient for a series of diagnostic tests. The test results are inconclusive, and the doctor diagnoses a migraine. He calls the patient at home in the evening, to convey the results and diagnosis and tells the patient to take a couple of aspirins, and get some rest, and should his condition worsen, to call an ambulance to be taken to the emergency department. The patient then has a debilitating stroke later that night that leaves him paralyzed. He sues the doctor for malpractice.

Doctor B sees the patient, says “it’s probably just a bad migraine, go home, take a couple of aspirin, get some rest, and come back tomorrow if you don’t feel better”. The patient goes home and has a massive stroke and is left paralyzed. He sues his doctor for malpractice.

The patient of doctor A will lose his case. The doctor was not negligent. He did a full examination of the patient, ordered the appropriate tests, they were inconclusive, and on his best medical judgement, diagnosed migraine which unfortunately turned out to be wrong.

The patient of doctor B will win his case. The doctor was negligent, and couldn’t be bothered to order any tests to try to find the cause of the problem.

The point is be careful if you sue, that your doctor was not simply in error, but did everything “by the book”. Malpractice lawyers on the doctor’s side are excellent. You could be setting yourself up for long, expensive heartache that gets you nowhere.

If you think about it, it makes sense. No human being would dare take on a profession that requires one to be 100% error-free. It is simply not possible to be 100% error-free.

As long as the doctor did his best according to the best practices of the day, simply being wrong is not grounds to sue unless it is a truly glaring error that no properly trained doctor would ever make. A lawyer for a malpractice insurance company will make minced meat out of you.

I don’t know about the morality of lawsuits. In some jurisdictions you must sue to recover money from an insurance company.

 

[Catholic1954]

If you have been injured by a doctor, you have every right to seek compensation and he has the responsibility to restore you back to your orginal state as much as possible; there is nothing uncharitable in that.

 

[Newbie2]

If you have been injured by a doctor, you have every right to seek compensation and he has the responsibility to restore you back to your orginal state as much as possible; there is nothing uncharitable in that.

I’d be careful about how we state that…I agree with you, to a point, I think:

Let’s say Doctor X makes an honest mistake, not rooted in carelessness, lack of training, etc, in other words, he or she does their best but the treatment does not go as expected and you get worse. Does that fall under “injured by a doctor”, or are you referring to when a Doctor screws up?

 

[bbentrup]

To sue or not to sue - that is the question. The answer is largely one based on justice. If you were unjustly treated, you have the right and the doctor has the responsibility to correct that injustice. In some ways, you could even be helping him by suing him, as it might teach him to be less negligent or more informed (if such were the case here) or more careful in general regarding his practice as a whole. Suing the doctor may help him to become a better person. A lawsuit simply has no definitive moral bearing on the matter. You can love and forgive the person who has wronged you, while at the same time accept that society needs to punish (financially or corporally) to teach others.

There are some other potential factors to consider. Would you be suing out of vindictiveness? If so, perhaps refrain from doing so, even if it would also be just, to help teach yourself a lesson in humility. Another case occurred where St. Paul admonished a community of Christians against suing brother Christians in public courts because of the scandal it would create. I’m sure the saint would have wanted justice to be applied privately with Christian forgiveness for any wrongs committed as well. If you think the doctor has learned a lesson, and you have suffered no major wrong, then Christian forebearance may be the best remedy - you have a right, but choose not to exercise it since it won’t improve the world any.

Just remember that as Christians we’re committed to building up God’s kingdom and decide how a lawsuit would play out within that context. God grant you wisdom in that tough decision!

 

[mary_bobo]

Luke 6:29-30 NAB

To the person who strikes you on one cheek, offer the other one as well, and from the person who takes your cloak, do not withhold even your tunic.

Give to everyone who asks of you, and from the one who takes what is yours do not demand it back.

What does this mean in the context of medical malpractice? If a doctor’s undeniable error costs you thousands of dollars in bills, may a Catholic file a medical malpractice suit in the amount of those bills? My former church taught me that lawsuits are not permissible but I can’t recall what their reasoning was. I read this passage today, however, and it struck me as I have been praying about whether to pursue a lawsuit. It’s not at all large amount of money as such lawsuits go–I don’t want to profit from this. But it’s still far, far more than I have right at the moment and would not be on my plate had this doctor diagnosed something properly while I had insurance. (To clarify, it was a matter I brought to his attention at an office visit; he told me it was one thing, but it turned out to be something else eventually requiring an emergency room visit and admittance to the hospital for observation followed by surgery. Take my word for it that this is what I say; I don’t want to divulge too many details.)

Thanks for any insight.

With all due respect, how do you know it is an “undeniable” error? I am not questioning your veracity, but medicine is often not a black/white science. On whose authority are you so sure the doctor made a mistake?

 

[camerong]

I’m about to finish law school, and I recently wrote a seminar paper (like a mini-thesis) on moral healing between injured patients and medical providers. You raise an interesting question. I actually approached it from the opposite angle–aren’t doctors morally obligated to “make their patients whole” as best possible after they negligently injure them?

Several issues are raised here. First, forgiveness and being compensated (“made whole” as we say in the legal field) are two separate things. Morally, we are required to forgive those who wrong us as many times as necessary, just as Christ forgives us. That may be what the Bible passage you mention really entails.

Second, doctors are only legally (and morally, I would argue) responsible for their mistakes when they are negligent. What this means is that they did something unreasonably dangerous, or, put another way, breached the standard of care among similar professionals. Doctors are not legally or morally obligated to compensate victims when they were not negligent but when something went wrong–i.e., a scalpel slipped during a very difficult procedure where 9 out of 10 doctor would have made the same “mistake.” So, a good way to look at this issue is this: it is not so much that you are suing and causing harm, in that you are enforcing the doctor’s obligation to you.

Third, lawsuits serve an important function in this society. Anyone who says it is wrong to sue, frankly, does not understand the legal system. And if everyone stopped suing in the US, we may have less legal costs, but we would suffer much higher costs in other areas. Lawsuits serve as incentives for people to act safer, for professionals to become better at their jobs, etc., so as to not cause injury and become liable. Lawsuits serve another important function–they place responsibility for PREVENTING an accident on the party most able to prevent it. For example, when someone runs a red light and hits me, I can sue them because they were best able to prevent the accident. When a doctor negligently hurts his or her patient, the patient is virtually powerless to prevent the harm, so we place the responsibility on the doctor. In this way, lawsuits are not retaliations, but really the only way to appropriately assign responsibility to prevent harm, and responsibility for that harm when it occurs.

Along the same lines, lawsuits can also place responsibility to the party best suited to absorb the loss. For example, a doctor with malpractice insurance can better pay the medical bills of a patient whom he harms.

This leads me to one last point. Malpractice premiums come from patients, ultimately, as they are built in to our medical costs. In essence, we are insuring ourselves from being harmed while being treated. If we are to forgo obtaining compensation when we are entitled to it, we are essentially declining what we have already paid for. Its like taking car insurance out, then when your car is stolen, saying “nah, its not the insurance company’s fault, so I won’t collect reimbursement.”

 

[Doc_Keele]

I don’t want to go too much into legal technicalities, but not only does there have to be negligence (not just a “mistake”), there has to be damage caused by that mistake. So if a misdiagnosis didn’t lead to any consequences apart from a delay in the correct diagnosis, there is no case for damages.

 

[camerong]

With all due respect, how do you know it is an “undeniable” error? I am not questioning your veracity, but medicine is often not a black/white science. On whose authority are you so sure the doctor made a mistake?

There are many, many cases where there is no question at all that the doctor made a mistake. Most cases, in fact. A more important question is whether this mistake rises to the level of negligence, but again, there are many cases where negligence is uncontested–in other words, even the doctor freely admits that he or she was negligent.

 

[Doc_Keele]

camerong - you make a glowing appraisal of the benefits of medical torts, but I wonder how many claims in the US are flimsy and simply ploys to get money from the insurance company?
it’s certainly the case in the UK that many claims have no valid basis.

Sorry: our posts crossed. So you think most medical negligence claims have a reasonable basis? I can only comment on the UK, but I doubt that the US isn’t worse for frivolous claims.

 

[camerong]

camerong - you make a glowing appraisal of the benefits of medical torts, but I wonder how many claims in the US are flimsy and simply ploys to get money from the insurance company?
it’s certainly the case in the UK that many claims have no valid basis.

That’s undoubtedly true. The OP only asked about whether lawsuits were moral or not–they are, because of the indispensable role they play.

There are certainly an unacceptably large number of frivolous malpractice claims–although I also suspect most people, including attorneys, overestimate the number. A medical panel put together by the Regan administration (a strongly conservative group) concluded that frivolous medical malpractice claims are relatively insignificant. It does not seem like the landscape of medical malpractice has changed much since then; in fact, most states have enacted malpractice reform in one way or another, including caps on damages. In my state, a person cannot recover more than 1.5 million dollars. That seems like a lot, but if a young person is paralyzed during spinal surgery, the future medical bills alone easily total far more than that, without even considering any compensation for the extreme, permanent disability.

Its also strange that we speak so much of frivolous claims in terms of medical malpractice. Malpractice claims are the most difficult to prove of nearly any claims; no attorney in my area would take a medmal case unless the damages easily exceeded $50,000–its tough to fake such damages. In contrast, there are far more frivolous car accident or slip and fall cases, the damages of which are far easier to prove, and an attorney for which is far easier to find. Yet there is no cry about the “auto insurance claims crisis” or the like. I suspect the medical malpractice crisis is largely a reflection of the strikingly inflated cost of medical care–and thus the recoveries against malpractice carriers–regardless of the validity of the claim. Frivolous claims happen in all areas of law. Actually, the most frivolous legal actions really occur in family law.

But I sharply digress…

 

[Doc_Keele]

Well I think when you’re backing the morality of medical torts by saying what a vital role they play it’s only right to point out the problems they cause. Insurance premiums make it difficult to find obstetricians in some states.
Damage hard to fake? You think?

 

[camerong]

Well I think when you’re backing the morality of medical torts by saying what a vital role they play it’s only right to point out the problems they cause. Insurance premiums make it difficult to find obstetricians in some states.
Damage hard to fake? You think?

Car accidents are one of the leading causes of death in the US. Cars are moral, despite this, because they serve such a necessary role. That does not mean, of course, that we should not strive to reduce the deaths from auto accidents, just we should reduce the number of frivolous medical malpractice claims.

Yes, I think high damages are typically difficult to fake. Juries, at least in my state, don’t award tens of thousands of dollars to those who cannot produce demonstrable evidence of their injuries or the resulting pain or suffering. For example, in a case I’m currently working on, we are brining in electrical tests of muscle and connective tissue to show that the patient is experiencing pain, so that we won’t rely only upon the victim’s word. Now, that is not to say that some plaintiff’s doctors won’t exaggerate claims or give questionable medical opinions supporting a patient’s bogus assertion. But the defendant is always entitled to have his or her own doctor examine the plaintiff, and present that doctor’s opinion to the jury.

But, again, I very much doubt the cost of malpractice insurance–which is too high, I certainly agree–has much to do with frivolous claims. Real claims will typically cost far more than frivolous claims, because its much easier to obtain a million dollar verdict when someone died or can show an MRI showing the injury. But I’m not even sure its real claims which increase cost malpractice insurance. I have read studies showing that malpractice premiums corresponded not to the claims made, but to the stock market–in other words, the premiums go up when the carrier’s stock holdings are performing poorly, they go down when the stock holdings are performing well. Who knows. Its tough to say, but its difficult to conclude that frivolous claims are truly driving much of the malpractice insurance costs. And even if they are, this does not in any way diminish from the necessity of medical malpractice suits that I discussed above.

 

[mary_bobo]

There are many, many cases where there is no question at all that the doctor made a mistake. Most cases, in fact. A more important question is whether this mistake rises to the level of negligence, but again, there are many cases where negligence is uncontested–in other words, even the doctor freely admits that he or she was negligent.

Where did you get the stats to support that there are MANY?

 

[Doc_Keele]

Yes, I think high damages are typically difficult to fake

Difficult is not impossible - especially when the incentives are so great.

Juries, at least in my state, don’t award tens of thousands of dollars to those who cannot produce demonstrable evidence of their injuries or the resulting pain or suffering

Well studies in the US have shown payouts relate to the outcome for a patient rather than whether there has been any negligence - in other words motivated by sympathy.

For example, in a case I’m currently working on, we are brining in electrical tests of muscle and connective tissue to show that the patient is experiencing pain, so that we won’t rely only upon the victim’s word

You **cannot **show by medical tests how much pain someone is suffering.

But, again, I very much doubt the cost of malpractice insurance–which is too high, I certainly agree–has much to do with frivolous claims

I have seen a few frivolous claims, and because there’s so many of them the costs mount up.

Real claims will typically cost far more than frivolous claims, because its much easier to obtain a million dollar verdict when someone died or can show an MRI showing the injury

Breast implant litigation ring a bell? Look at all the parents who claimed millions for injuries supposedly caused by birth accidents before medical science demonstrated that the lesions occurred in utero.

Naturally you want to believe that the law is a force for good, but I feel you’re a touch naieve. In the UK, it’s been found that IIRC half the payouts for medical negligence go to the lawyers. It’s a gravy train for lawyers.

 

[camerong]

Difficult is not impossible - especially when the incentives are so great.
Well studies in the US have shown payouts relate to the outcome for a patient rather than whether there has been any negligence - in other words motivated by sympathy.
You **cannot **show by medical tests how much pain someone is suffering.
I have seen a few frivolous claims, and because there’s so many of them the costs mount up.

Breast implant litigation ring a bell? Look at all the parents who claimed millions for injuries supposedly caused by birth accidents before medical science demonstrated that the lesions occurred in utero.

Naturally you want to believe that the law is a force for good, but I feel you’re a touch naieve. In the UK, it’s been found that IIRC half the payouts for medical negligence go to the lawyers. It’s a gravy train for lawyers.

You’re free to disagree, but to call me (a bit) naieve? I’ve spent months researching these particular issues… how many papers have you written on the subject? Actually, I don’t care, because its completely irrelevant. Talk about my arguments, not me.

Yes, there are a wide array of medical tests that can show tissue damage, such damage which will necessarily cause physical pain. Further, there are ways to show that pain is actually being felt. I just sat in on legislative hearings where a pain specialist testified the various ways he can show that fetuses experience pain in the womb–not just injury to tissue, but actual pain even in the absence of injury. You are dead wrong on this issue, and I’d be happy to direct you to the legislative testimony to the effect.

What’s your point about half the payouts going to lawyers? I don’t see where you get that 50% goes to attorneys, but I don’t know what contingency the attorneys in your country charge, but here its typically 33%. I’ve no doubt 33% (or as much as 40%) of all medmal payouts go to attorneys, and often as little as 10-15% goes to victims (after expert witness expenses, etc). But this isn’t affected by frivolous claims, and it applies to nearly all kinds of lawsuits. Lawyers cost a lot, that’s the way life is.

I’d like to raise another point. Studies have shown that less than 1% of all medical incidents wind up in any action taken against the doctor. There is a mountain of evidence that far more valid claims go unasserted than are ever raised. I’ve personally seen this to be true in non-medical cases, and we have turned away a dozen clients in the last year with real damages but with some insurmountable difficulty, such as the typical case where the expert witness would cost as much as the recovery. So, while you continue on about these poor doctors and insurers being subject to all kinds of litigation, I say that they are likely not paying nearly as much as they ought. Negligence–not just mistakes, but actual negligence–kills, by many estimates, up to 100,000 people every year in the US alone (I can provide citations for that if you wish). That does not include the many more who experience life-long disability, or those with very significant and lasting pain and suffering. The amount paid every year in medmal, if it was divided by those numbers, would start to seem pretty small. The downside to medical litigation is not that malpractice carriers are paying so much, but that they’re paying so much to the wrong people. If true justice were done, they would likely pay far, far more. So any arguments about the overall cost of medical malpractice litigation seem pretty hard to swallow.

 

[Doc_Keele]

Well I’ve practised medicine so I’ve got an insight that you don’t have, camerong.
And I’ve done plenty of research into the topic, and I plan to do some original research into it once I’ve finished my current project.

I repeat, no medical tests show how much pain someone is suffering. Fact. You are the one who is dead wrong. Legislative testimony and medical fact are two separate things.
I could take an X-ray of an osteoarthritic joint, and no one can say how much pain that person is in from that joint. Fact.

And having practised I know that there are mistakes that aren’t picked up by the patient. I also know there are patients who sue because they don’t understand the natural course of the disease, or don’t like their doctor.

These negligence estimates are largely bogus, because they usually include iatrogenous injury rather than actual negligence.

 

[Doc_Keele]

source for those figures for NHS litigation:
timesonline.co.uk/tol/life_and_style/health/article6961087.ece

 

[Doc_Keele]

A question for camerong and others:
is it moral to sue a doctor simply because you can?