How do award caps stop the practice of defensive medicine? It is an illogical argument. I'd still have to order the MRI for that headache because God forbid I miss that rare stroke. You get $250,000, your lawyer gets half of that; I get my name in the NPDB and a ruined career. $250K cap too small? The lawyers will simply run more TV commercials and make it up in volume. The latest "have you been injured?" ad is for Reglan.

Award caps simply decrease the loss to the insurance company. It in no way protects me from being wrongfully sued.

Your solutions?

Dok von Box

Being wrongfully sued is a bogus issue. Only a tiny fraction of people who are harmed by medical errors ever sue. Three to five times as many people die as a result of medical errors as ever receive any compensation for medical malpractice.

Plus, let me get this straght. You just admitted that you order tests that are medically unnecessary. In other words, you are not only acting unethically, you are also defrauding the insurance carrier or the government. How do you justify that?

I'm sorry, I didn't hear the part where Obama said he wouldn't listen when you had a legitimate concern. Your's sounds fairly legitimate to this layman. Why are you asking me this technical shit? Ask your Representative why he or she hasn't fixed this problem. Hell, ask the president. If it's a real problem, we want it fixed. If it's just your own personal gotcha point to nix reform, it aint gonna fly.

My wife has been a PA for about 30 years and, trust me, malpractice is a huge issue. Whether your actually sued or not is just the tip of the iceberg. Defensive medicine costs, loss of insurance coverage, harrasement, investigations, threats, resignations. She's seen them all and so has every doc and health care provider she's worked with.

"Plus, let me get this straght. You just admitted that you order tests that are medically unnecessary. In other words, you are not only acting unethically, you are also defrauding the insurance carrier or the government. How do you justify that?"

No, he's just ordering tests that will catch very unlikely conditions. Let's say 1 in 1,000 times they'll find something on that scan. If you do the scan, you're wasting a ton of money by forcing highly-paid radiologists to read a slew of "normal" images AND you're exposing all those patients to an extra dose of radiation (not 100% safe). If you don't do the scan, that 1 guy in 1,000 smacks you with a big lawsuit because you didn't order the study that might have found the problem.

That is not the way that medical negligence works. For negligence you have to show there was a duty, a breach of the duty, proximate cause, direct cause and damages.

for the duty part of a prima facie case the doctor has the duty to the patient to act using the standard of care of a reasonable doctor.

In the case you were describing if no reasonable doctor would do a scan to catch a condition that is 1 in 1,00, i.e. it is not standard practice for doctors to perform that particular scan in that particular case then there is no malpractice

A doctor will not be held responsible for any conceivable problem that might come up or missing any condition no matter how rare and unlikely. They commit malpractice when they do not perform to the standard of a reasonable doctor which would be not doing somethig that would be commonly and routinely done in a situation or doing something that would not be done in a normal situation.

The doctors and insurers make it sound like that they lose millions for making honest mistakes and missing some one a million disease or having some one in a million side effect. That is not the case. Med mal is impossible to practice because of a combination of jury cynicsm caused by unending lies and bullshit med mal caps on pain and suffering.

The caps are the worst and totally unfair

consider this, if a doctor makes a mistake that causes you to wear a colostomy bag for the rest of your life in some state there may be a cap on pain and suffering at say $250,000. would you wear a a colostomy bag for the rest of your life for $250,000. And if you hit the doctor accidentally with your car on the way home from the hospital and he is forced to wear a colostomy bag for the rest of his life because of the accident there are NO caps on the amount he can get from you for pain and suffering.

Asking doctors about this whole issue while considering lawyers to be self interested bastards is ridiculous. Doctors are asking to be protected in ways no one else is.

you know what would be a good idea, caps on lawyer malpractice awards. when a doctor goes to a lawyer to create a an llc to protect his assets for investments but the lawyer screws up and he gets the assets taken then the doctor should have a cap on damages he can be awarded in his malpractice suit.

What! I'm getting unnecessary radiation poisoning? I'll SUE!

No radiation in an MRI. Sorry to spoil the fun.

Being wrongfully sued may be "bogus", but it's never bogus in the mind of the doctor who is deciding what tests to order. Please try to put yourself in the doc's shoes, Jack. You may be 99.99% sure that the guy's headache is not a brain tumor, which really makes the MRI unnecessary, but you'll still order it if you're afraid of being sued on the very unlikely chance that you're wrong, or that the guy has a headache that is unrelated AND a brain tumor. This is not defrauding anyone, by the way, because you, the ordering doctor, make no money from the patient getting the test done (that money goes to the radiologist for reading the study, and to the imaging facility for doing the scan).

Some Tort reform plans also include "looser pays". Don't think O ruled that out.

What about the position of some doctors. It's a bogus complaint but they's rather settle out of court than go through a trial. It's on the record somewhere.

Pair0dox:

...by the way, because you, the ordering doctor, make no money from the patient getting the test done (that money goes to the radiologist for reading the study, and to the imaging facility for doing the scan).

That's not 100% true. Odds are, the doctor will want you back in his office to discuss the results of the test. In my neck of the woods, the days of a doctor calling you and saying "the test results are good" are long gone.

bbkbroiler:

Thanks for the legalese.

First, I said I could be "sued." It doesn't mean that the case has merit, though the patient and a hungry lawyer may think so. That means time, money, aggravation for me, and if the lotto does not go my way, my name goes to the NPDB.

Second, you left out "failure to diagnose", which, for the lay people, means the patient came to me with a problem and I did not diagnose or investigate the problem within "standard of care". "Standard of care" can sometimes be subjective, and it is your job as the plaintiff's atty to show how inadaquate my care was towards this patient. He may have stroked anyway, CT/MRI or not, but I'm still potentially liable and it is your job to show to the court how I "damaged" this patient.

Taking your specifics regarding what any "reasonable" doctor would do, a reasonable doctor nowadays would order the CT/MRI of the head to rule out something bad, even though the risk is low, because, well, that's what my peers would do, rightly or wrongly. I'm still screwed. They too would do it to....guess....protect themselves from liability. Worse, my "peer" reviewing this chart may not be my "peer" at all.

This is a very common scenario and you know it.

"A doctor will not be held responsible for any conceivable problem that might come up or missing any condition no matter how rare and unlikely."

You may be right. I may win the lawsuit, but you can still try to hold me responsible. Further, if the problem is beyond my expertice to recognize and I do not refer this patient up the line for consideration, this delay in diagnosis is, again, my fault.

This diversion regarding caps simply cuts off the tip of the iceberg.

Please understand that I in no way desire to practice like this.

Remember that any "tort reform" has to preserve the constitutional right to a jury trial. Caps on non-economic awards may pass muster, but only if they aren't so low as to effectively prevent meaningful recovery. A blanket prohibition on malpractice suits would be unconstitutional, IMHO.

bbkbbk - Thanks for explaining the legal requirements, but please realize that this is not how doctors see the issue when they're deciding what tests to order. Every one of us has heard horror stories about lawsuits that have happened to colleagues. These may be rare cases, but it's the perception of lawsuit risk that counts, so tests get ordered needlessly regardless of the real risk.