Full Table of Contents
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Abbreviated
Table of Contents
Home Page
Patient Safety
Silence vs
Safety
Silenced
White wall
of Silence
Silencing
Conflict Of
Interest
Psychology of
Providers
Subjectivity
Blacklisting
Nurse survey
Loyalty
Mobbing and
bullying
Trust Us
Defensive
documenting
Report Rate
Risk
managemnt
SOAP
Management
Hospitals
Crime in
medicine
Sexual Abuse
Liability
Limitations
Free Speech
for Patients
Exploitation
OSMB Medical
Boards
Mammography
solutions
Medical errors
Medical Complaints
One number
Links
Injured patients who want to help and be heard, click here.
Thomas Jefferson said that given the choice between government without newspapers and newspapers without government, he would choose newspapers.
In medicine we have government without newspapers. Patients cannot find out what they need to know to make informed choices. No one in medicine records or reports the information patients need to know the most. So patients will have to do it.
Liability Limitations
in Medicine
The connection between belief and self interest is unappreciated in medicine
This is yet another example of the gap between reality and belief in medicine. And they persuade patients and the government to go along with their self serving delusions. Some hundreds of thousands of patients die each year unnecessarily, millions more are injured unnecessarily, and this is going to be changed by making medicine less accountable for it?
Have you read about the problems that consumers in China have with industries that cannot be held accountable for injuring their customers? In China companies almost never face financial penalties because their legal system is run by a Communist Party that routinely favors producers over consumers. So to one of their largest milk producers it was worth the risk (the risk was only to the consumers) to add a toxic chemical to watered-down milk to keep costs down. It made over 50,000 children sick. Some died.
In the USA the Constitution prevents routinely favoring one party over another. The fourteenth amendment guarantees equal protection before the law. But in healthcare they believe they deserve more than everyone else. Healthcare workers get special protection. They get liability limitations. They automatically are favored over patients before the law.
For instance, how about this for a disparity test? A physician rapes you and the most you can sue him for is $250,000. But if you talk about the fact that he raped you, there is no limit on the amount for which he can sue you - for speech. In addition to that, his hospital has lawyers on staff to represent him. But you cannot get one because $250,000 is too little to be worth the time of a medical malpractice lawyer.
Liability limitations create a disparity between the ability of providers and patients to seek redress in court in more ways than one.
Medicine routinely manages to persuade itself that its self interest is good for patients, and it has managed to persuade the government that patients will be better off when healthcare is less accountable for the damage it causes. Pages could be written about how medicine assumes that whatever is good for itself automatically will be good for patients. I doubt in my lifetime progress will be made on that delusion.
Liability Limitations for Patients would be better
According to Dr. Sidney Wolfe, director of the Health Research Group at Public Citizen, 54% of malpractice payouts are paid by 5% of doctors. That means that 5% of physicians are causing more than half of the problems. Giving them liability limitations only further enables them to continue injuring patients. If liability limitations were given to patients, patients could warn each other about who those 5% are and could avoid getting injured in the first place. Is the ultimate goal the well being of patients or isn't it? No one in medicine ever will warn patients about problem operators. People in medicine's view of the world is that the problem is that injured patients sue. So medicine wants something done about that rather than something done to protect the patients.
Making the world safe for doctors
Have you seen the book Slow Moving Vehicles by Mary Roach? Most crashes happen on dry roads on sunny days to sober drivers. That is where people feel safe, so they screw up. Same thing for large sport utility vehicles. People feel safe in them, so they crash them more often than cars in which they don't feel as safe. Same thing for intersections. A study that followed what happened when 24 intersections, that originally either had stop lights or stop signs, were converted to roundabouts. Roundabouts require alertness to avoid disaster. People don't feel as safe in roundabouts as they do at stoplights. Roundabouts require adjusting speed and carefully merging with other cars. When the more comforting stop lights and stop signs were removed and roundabouts installed there was a 90 percent drop in accidents. The basic truth outlined in the book is that feeling safe kills.
But somehow, in medicine, the greatest source of preventable injury and death in the United States, making the people steering that business feel safe and be less accountable is supposed to result in fewer accidents and less injury and death. That isn't the way it works in other industries and in other countries, but somehow in healthcare in the USA making healthcare workers less accountable, making them feel safer, is going to result in fewer accidents and less negligence. It doesn't work that way for those same people in other areas of their lives, like when they are driving to and from work, but once they get to work, the principles all change?
Liability limitations turn a class of patients into targets
Do you know how careful people in healthcare become when the patient is a lawyer? Medical professionals behave differently according to the perceived risk. They are not supposed to, but they are humans and they do.
Liability limitation laws inadvertently cause healthcare workers to be less concerned about certain people and more concerned about others. Retired people, non-working mothers, and anyone without a large income to lose has less capacity to cause problems for healthcare workers when things go wrong. With liability limitation laws, loss of income can be one of the few things for which a suit can be brought when medical personnel ruin lives. If a large enough income hasn't been lost, that alone can make it impossible to get a lawyer, no matter how legitimate the case, because there is not enough money in it for the lawyer. People without large incomes inspire less concern in healthcare.
Their wallets versus our lives
If a surgeon happens to be having a bad day, or happens to harbor a prejudice against a particular kind of person, or is jealous, or angry, or libidinous, or experiencing any of the other passions or fatigues common for humans, liability limitations reduce normal inhibitions against becoming inattentive or acting out when the patients are from a certain class of people - people without large incomes to lose.
A bank president can expect more careful attention than a waitress. A bank president would be less likely to be ignored, or to become the victim of a exploitation or worse, and his wife less likely to get groped than someone perceived to have less ability to respond afterwards. Witness Dr. James Burt's choosing victims who would be relatively powerless to respond, even before the passing of the liability limitations laws existing today. Liability limitations create a group of people who have been disempowered from responding and thus have become targets for everything from inattention to violence.
4.1% of sentinel events in medicine are
assault, rape and homicide
Removing accountability probably does not halt escalating
costs in the short term anyway and could increase costs in the long term.
Patients who are safe are more likely to keep working and keep paying taxes and
not file law suits than patients who are not safe. Patient safety requires
sunshine and 
accountability. Sometimes accountability is synonymous with
liability.
Magna Carta & Constitution
In 1985 in Zauderer v. Office of Disciplinary Counsel, The U.S. Supreme Court determined that new policy choices must harmonize with the protection of universal access to the courts, a right carved out for people in the Magna Carta and reaffirmed in the Constitution of the United States. As stated above, liability limitations prevent many people from getting an attorney. In addition, the preservation of a fair and available civil justice system demands that policymakers look beyond the rhetoric and examine research that gives a clear-headed understanding of the landscape. For all the screaming about jury awards driving up insurance costs and therefore the price of healthcare, insurance costs comprise only about one half of one percent of healthcare costs.
According to the RAND Institute for Civil Justice, trends in jury
verdicts show that jury awards are not rising at staggering rates, but instead tend to increase in line with
the rate of inflation and the underlying costs being compensated (medical costs are increasing). The Institute for Civil Justice research has also shown that most criticism of excessive jury awards ignores the fact that the liability system already has mechanisms for reducing such awards.
Frivolous Lawsuits and Award Reductions
The system also weeds out lawsuits whether not they are frivolous. Patients have to convince attorneys that their cases are worth the time and expense. That weeds out almost all the legitimate cases as well as the frivolous ones because fees for attorneys are contingent on winning enough to pay for the cases that lose as well as the minority that win. If the case isn't a big-money, easy-win case, it will be rejected. The vast majority of legitimate cases are not big-money, easy-win cases.
For the cases that do find lawyers, defendants frequently ask for a summary judgment, which means that a judge scrutinizes the facts and applicable law and then can dismiss the case on that basis. If the judge decides that the case has merit, then the case might be settled out of court or might be presented to a jury. If a jury rules in favor of the plaintiff and awards compensation, the judge still can modify, reduce, or set aside the jury's verdict. After that the defendant still can appeal the case to higher courts where even more experienced judges can then modify, reduce, or set aside a jury's verdict. Really big judgments rarely survive this process. Putting limitations on how much can be awarded reduces the number of legitimate cases that anyone can afford to pursue and is felt by some to be legislating unequal protection in violation of constitutional rights. Some say that tort reform is not about weeding out frivolous lawsuits, but is about keeping the injured out of court.
Charitable immunity
Charitable organizations have some immunity from prosecution. The thinking is that if you volunteer to do something for free for someone, they should not be able to sue you if they do not like the way you did it. So doctors at the Eastern Virginia Medical School in Norfolk claimed that the organization they belong to is non-profit and so they should be immune from lawsuits. Another way to look at it is that well-paid physicians who mainly treat paying and insured patients claimed they should be immune to lawsuits because they make a small contribution to the poor. The court granted them their immunity. Now other doctors are trying it. Patients should worry.
NEMJ
According to yet another article about malpractice suits, this time in the New England Medical Journal, portraits of a malpractice system stricken with frivolous litigation are overblown. "Frivolous suits" are not the problem, but count on physicians and the AMA to continue to shout that they are while lobbing for legislation to be passed.