Take The Pledge

Emergency Physicians Monthly Online has a good idea to cut down on frivolous medmal cases, and I think it’s a good one.

Their drive is called “Take the Pledge”, and here it is:

“I will not offer as an expert opinion any position that does not have the full and complete agreement of at least three other experienced practicing emergency physicians.”

I’ve said it before, and one of the best ways to decrease frivolous medmal suits is to police our own ranks of those who give medical testimony. Again, this isn’t about parroting the party line, it’s about realistic testimony for or against physicians.

If you’re a Physician and you agree, I’d urge you to

I did.


Comments

  1. Why 3 others? Why not four? Or two? Is it because that’s how many you consult before making a decision in practice about what the correct course of action? Do you pick up the phone, text message, what?

    Is there a time frame where they have to get back to you once you ask or you can presume they agree with you?

    Neat pledge, I’m just curious as to the details.

  2. Hmm, apparently this little pledge wasn’t so well thought out. Maybe you should just pledge never to testify against another physician ever. Easier to explain.

  3. Imagine his chagrin: nobody’s biting the troll bait.

  4. I didn’t realize how something works in practice was trolling. You’d think you’d want to explain the virtues, or at least how it works in practice, of your new pledge.

  5. Something like this is probably a good idea: it is an act of humility to be sure one’s “expert opinion” is recognized as such by one’s peers. An educated opinion isn’t necessarily expert…

    t

  6. 10th shift in 11 days says:

    Matt,

    Unlike law in which a case is scrutinized over the course of years, in emergency medicine important decisions bust be made minute to minute based upon incomplete information amonst competing priorities and interruptions. It is not practical to consult with 3 other doctors before deciding on a course of action except for trial attorneys presenting with back pain and abdominal pain. In those cases the medical student, intern, and resident must all agree upon the degree of rectal tone and prostate size on digital rectal exam

  7. David Ollier Weber says:

    Hey, Matt, hang in there. I love how anyone who disagrees with the prevailing wisdom on a blog is denigrated as a troll, even if his or her commentary from a different perspective might provoke thoughtful responses — were it not all too often met with idiotic scatology. And from presumably otherwise respected physicians. I’m shocked. My illusions are shattered.

  8. While we’re at it, let’s try to maintain the illusion that all those “expert” witnesses who spend all their time testifying in Med Mal cases aren’t just doing it for money. Let’s suppose they’re actually boarded/practicing and not semi-retired, and that the standard of care has actually been violated (if so, there should be NO problem getting a couple of other docs to agree). Lastly, let’s all pretend that none of them would EVER tailor their testimony to what a plantiff’s lawyer wants to hear.

    Yes, let us have a moment of silence for those precious, precious illusions.

  9. New Guy, you ever asked your insurer what they would do if you wanted to testify in a case that involved another of their insureds?

    You should stop pretending that there are plenty of physicians are willing to testify for a plaintiff even when malpractice is present. If a local med mal plaintiff’s lawyer called you and asked you to look at a potential case, would you do it? What would you charge to review the case, and then to testify?

    What’s that? You wouldn’t? Even if you thought malpractice was clear? Because your insurer might drop you? Because the defendant works in the same town? Gosh, I wonder how that victim of malpractice will find an expert.

  10. They must all be whores, unlike the saints that testify for the defense.

    But if you guys are so outraged about it, why don’t you “reputable” physicians let attorneys for plaintiffs know you’re available to review records? What are you doing, besides bitching, to remedy the situation by making sure “competent” experts like yourselves are the only ones who get on the stand? I don’t know a single lawyer who does med mal who wouldn’t love to have a local doctor testify in their cases.

    How many of you would testify against a doctor in the same city, if you truly believed malpractice had been committed? What if only 2 out of the three physicians you polled pursuant to your pledge agreed it was malpractice? Would you testify if the defendant had the same carrier?

    Talk’s cheap, bs pledges that you don’t even think about are easy. Step up and remedy the situation. Or maybe you’re really only concerned about the doctors’ well being, regardless of their actions.

  11. Matt,

    Good question. Would I testify against one of my own partners for what was clear malpractice? That thought made me sqeamish for a brief moment until I realized that I would likely NEVER have to do it. Why? because clear malpractice is pretty obvious and would likely lead to a settlement. Most physicians have a pretty innate sense as to whether they have radically deviated outside of acceptaple practice. On the other hand, plaintif lawyers have little understanding of when malpractice occurs. If you don’t think that is true then how do explain the fact that that jury trials side for the defense about 80% of the time? Bad outcome does not always equate with negligence.

    Everything else is very gray without benefit of NFL replay. NFL replay also could not show that I am taking care of 8-10 cases simultaneously.

    Example of a case today:

    46 y/o obese woman comes in by ambulance at 4 in the morning with SUDDEN onset of SOB, tachypneic, tachycardic with RBBB on EKG, very hypoxic, and with pleuritic chest pain, looking like she is ready to die. This case screams pulmonary embolus. If I don’t start aggressive anticoagulation before I confirm the diagnosis with CT and she codes and dies I could be faulted. So I start heparin presumptively. Guess what, when I get the CT scan it shows no pulmonary embolus and instead shows some kind of strange mediastinal inflammation and the nighthawk radiologist says there is some fluid around the aortic arch and “can’t completely exclude aortic dissection”! Holy shit! I just gave heparin, and if she did have a dissection could kill her. I reverse the heparin and it turns out she does not have a dissection or PE afterall, but this illustrates the pitfalls of practice. And NO, to answer your first sarcastic post on this thread, there is no time to consult with 2 or 3 other physicians before deciding what to do. I could have been faulted for NOT anticoagulating early if she indeed have had PE before confirming dx, and I could have been faulted if I heparanized her and killed her because it was a dissection. I could be sued any way, but if I had acted in any of these ways it is also very reasonable and defensible. Of course, some washed up slob whore “expert witness” could probably be found to say that I was the biggest freaking idiot in the world, but no reasonable practicing EM physician would. So the pledge is not so silly, I am sure there will still be whores who can be bought for unscrupulous testimony so don’t get too bent out of shape over it.

  12. “Why? because clear malpractice is pretty obvious and would likely lead to a settlement. Most physicians have a pretty innate sense as to whether they have radically deviated outside of acceptaple practice.”

    But if it doesn’t settle? Say the insurer knows its probable liability is X, but the damages are slightly in excess of X. And there’s an umbrella policy of even more that only kicks in when primary is exhausted. What does the primary carrier have to lose by going to trial regardless of liability? After all, as you correctly point out, 80% of trials end in a verdict for the defendant. And even on their estimate of the worst day, they just pay the full amount of damages anyway. In effect, a trial is a free shot for them.

    It is interesting that you assume those 80% of juries are correct, considering most physicians think juries are too stupid to understand the difference between “bad outcomes” and malpractice.

    It’s also funny that you don’t think plaintiff lawyers have any sense of malpractice. Or that they file recklessly. Because that makes little financial sense, if you assume that a trial costs at least $30K, and that’s their own money at risk. Did you ever consider that the case may involve multiple defendants, and if, for example, the physician and the hospital are sued, and the jury finds for the physician but against the hospital, that yes, negligence did occur. They just believe that it was solely the fault of the hospital’s employees? Your blanket statement that malpractice plaintiff lawyers don’t recognize malpractice is, in a word, silly.

    But back to the point of this thread, the availability of the expert witness. You gloss by that saying – oh well, most physicians know so it would likely settle. But that’s certainly not always the case, and you assume a reasonableness and lack of ego in physicians that may well not be present in the mass quantities you presume.

    Let’s look at it realistically from the plaintiff’s side. I, patient, think I have a malpractice case, probably with significant damages. Hospital and physician go silent, and I’m staring serious medical bills and uninsurability in the face. Insurer for the two won’t make me more than a paltry offer, barely enough to cover my past medical bills, much less my future.

    So I go to a local malpractice lawyer. He says, let me have an expert review it. He calls you. Your first response is what? I don’t do that kind of thing (you think it’s unseemly). Or maybe you just don’t have time, because you have to see X number of patients a day. But maybe, just maybe, you say, OK, I’ll review it for $5,000. But I won’t testify.

    So he pays you, out of his pocket, $5K. Let’s say you think there’s malpractice, and of all the names of physicians in the chart, the one you believe responsible is another doctor in your city, and you tell the lawyer so. He says, well, I need you to testify for me if you would.

    You think about this. You know there’s been malpractice. But you could run into this guy at continuing education seminars. You also know there are groups out there watching who testifies for the plaintiff and that it may well get back to your colleagues. To many, you’ll be a pariah.

    Then there’s the issue of time away from your practice. Even if you don’t have to testify live, you’ll have to give a videotaped deposition and prepare extensively for that. Do you even have time for that? Are you going to do it on your vacation? Something that will potentially put you on one of these lists and make you an outcast? For a patient that’s not even yours?

    Now tell me, given all that, just what are the odds you “good doctors”, as opposed to these “semi-retired” whores, are going to testify even in a case where you know there’s malpractice? Even if you wanted to, it is probably not even logistically possible.

  13. “It is interesting that you assume those 80% of juries are correct, considering most physicians think juries are too stupid to understand the difference between “bad outcomes” and malpractice.”

    You base this on what evidence? There is an element of truth to it. Juries probably get it right most of the time, but physicians have a legitimate fear that they will be swayed by a John Edwards emotional snow job.

    “It’s also funny that you don’t think plaintiff lawyers have any sense of malpractice.”

    Sure they have a sense, but not as good as a practicing physician. You chide us all the time for not knowing as much about law as you. I concede. But likewise an attorney won’t know as much about medicine. From a personal perspective, I currently have two active cases against me. There is no malpractice, I know they are going to lose. They are not performing a helpful service for the plaintif. They are’nt even attacking the case from the best angle that they could. Of course I won’t give them any hints.

    You give a very excellent summary of why I don’t seek out opportunities for expert witness testimony. I don’t want the hassle and interruption of my life. If you slipped something into my drink and I agreed to review a case and lo and behold I found very obvious evidence of malpractice I would not look at it as an easy opportunity to make 5 or 10k. I would wan’t the opportunity to hear the position from the physician in question before going to trial. The chart review replay may not tell the whole story. I realize this probably doesn’t happen in our current system. I am just saying what I would like to do ethically. If I still thought it was malpractice I would like to say to my colleague — “hey buddy, this looks pretty incriminating why don’t you try to negotiate a reasonable settlement so you and the plaintif can move on”

  14. Ps.

    “Now tell me, given all that, just what are the odds you “good doctors”, as opposed to these “semi-retired” whores, are going to testify even in a case where you know there’s malpractice? Even if you wanted to, it is probably not even logistically possible.”

    I give you credit for great insight. You are absolutely right, it is a very small chance. The current system is not ideal. I think we are actually agreeing on this. I think I would be much more willing to participate on a panel of “good” practicing doctors that reviews cases before they get fully embroiled in the legal practice to render an opinion to the plaintif and defense to encourage either a settlement or dismissal. That would save a lot of time and money and I think would be better from an emotional and monetary point of view for both sides.

  15. Almost certainly. I don’t do med mal, but I would expect that those who represent plaintiffs would welcome the opportunity to have such a panel to review cases. No one wants to spend a lot of money on a case that is no good.

    I would never pretend to know more medicine than you, or any physician, and my condemnations of the health care system have little to do with the quality of your services. But it does frustrate me to see physicians condemn those who in the legal system so vigorously, and even more, to propose “reforms” which do nothing to help physicians, patients, or the system itself, when they won’t even help to change it. You condemn these expert witnesses, but won’t offer your services. What if your good buddy won’t settle, where does a patient turn to if not the “whores”?

    “I would wan’t the opportunity to hear the position from the physician in question before going to trial. The chart review replay may not tell the whole story. I realize this probably doesn’t happen in our current system.”

    Actually it does. A lawyer who doesn’t let his own expert review the deposition of the other side is not doing a good job. Your own expert can give you far more insight into what kind of questions you need to ask than the lawyer could come up with on his own. Plus, your own expert needs to be prepared to explain why the other side is incorrect. In some cases, the expert even attends the deposition.

    “Juries probably get it right most of the time, but physicians have a legitimate fear that they will be swayed by a John Edwards emotional snow job.”

    Do you know of any system that is infallible? If juries are getting it right most of the time, why are we trying to limit them? As to John Edwards, how do you know his cases weren’t all cases of legit malpractice? You don’t, yet you feel entirely comfortable saying that the jury was emotionally snowed. How does that make you any different than those who criticize physicians without having an inkling of what they do?

  16. “You condemn these expert witnesses, but won’t offer your services. What if your good buddy won’t settle, where does a patient turn to if not the “whores”?”

    Doubt it would happen. If a well respected colleague or panel of reputable physicians determined that I really screwed up, I would throw up the white flag. If my good buddy can’t seem to see the light then a “whore” will do. I’m not saying that I would never do it. It is just not a line of work I want to seek out for all the reasons you outlined above.

    In regards to John Edwards, you are particularly good at sarcasm and exageration, but can’t recognize it when it comes your way. My disdain for John Edwards type cases is on no less inferior grounds that your seemingly blanket defense of it.

    “Do you know of any system that is infallible? If juries are getting it right most of the time, why are we trying to limit them?”

    Probably because it is the only way that we have found that we can fight back within the currenlty constructed legal system. There are very few physicians in state and national legislatures. We need help from those in the legal profession to change it to a better system. I don’t know what the answer is. Peer reviews of cases like I discussed above might be a better way. I suspect there is resistance to change from the powerful trial lawyer lobbying. I am honestly asking you, don’t you think they have some vested interest in keeping the system the way it is. My opinion is that the current system keeps far more of them employed than there really needs to be.

  17. “You condemn these expert witnesses, but won’t offer your services. What if your good buddy won’t settle, where does a patient turn to if not the “whores”?”

    Doubt it would happen. If a well respected colleague or panel of reputable physicians determined that I really screwed up, I would throw up the white flag. If my good buddy can’t seem to see the light then a “whore” will do. I’m not saying that I would never do it. It is just not a line of work I want to seek out for all the reasons you outlined above.

    In regards to John Edwards, you are particularly good at sarcasm and exageration, but can’t recognize it when it comes your way. My disdain for John Edwards type cases is on no less inferior grounds that your seemingly blanket defense of it.

    “Do you know of any system that is infallible? If juries are getting it right most of the time, why are we trying to limit them?”

    Probably because it is the only way that we have found that we can fight back within the currenlty constructed legal system. There are very few physicians in state and national legislatures. We need help from those in the legal profession to change it to a better system. I don’t know what the answer is. Peer reviews of cases like I discussed above might be a better way. I suspect there is resistance to change from the powerful trial lawyer lobbying. I am honestly asking you, don’t you think they have some vested interest in keeping the system the way it is. My opinion is that the current system keeps far more of them employed than there really needs to be.

  18. “My disdain for John Edwards type cases is on no less inferior grounds that your seemingly blanket defense of it.”

    I make no defense of the case. I simply defer to the people who actually heard the evidence and reviewed the medical records before coming to a conclusion. Novel concept, eh?

    “Probably because it is the only way that we have found that we can fight back within the currenlty constructed legal system.”

    Think about that. You punish the patients injured the worst because your insurance premiums are high. Does that make any sense at all?

    “There are very few physicians in state and national legislatures.”

    There are very few lawyers who represent plaintiffs in those as well. Certainly none of them are Senate Majority Leader. There are plenty of people with law degrees – but given that there are significantly more corporate and defense lawyers than plaintiff’s lawyers in general, and they are generally the ones in politics, plaintiff’s lawyers are not that strongly represented.

    That’s not to say ATLA’s lobbyists aren’t good. But really, physicians should have a stronger lobby. It’s a mystery to me that they don’t. The only time your lobbyists really go to bat is when it’s for insurance companies.

    Everyone has a vested interest in this, including plaintiff’s lawyers. And including victims of tortious conduct. I have clients that are never going to be able to move without back pain – do they have a lobby? No, the closest thing they have is ATLA. Now, don’t get me wrong, I’m not ascribing sainthood to ATLA – it’s there to protect incomes of lawyers as well. But keeping the courthouse door open to the weakest members of society is a product of that. Tort reformers have plenty of lobbies, from the AMA to the Chamber of Commerce. But did you ever think about the victims?

    But again, the number of lawyers who handle medical malpractice claims is ridiculously small, even among trial lawyers. They are difficult and expensive. What’s more, eliminating the number of lawyers who do medical malpractice doesn’t really help you unless the insurers allow it to. All it for sure does it make it harder for individuals to find representation. Good lawyers will still have jobs.

    And in the end, the patients keep getting left out of this. Whether they are treated with care or negligently, this keeps getting cast as a doctor-lawyer thing. It’s not. It’s not even a doctor-lawyer-patient thing. It’s a Medicaid/Medicare-insurer-doctor-lawyer-patient thing. And solutions that leave out any of those parties are merely temporary stopgaps which will ultimately have little effect.

  19. Think about that. You punish the patients injured the worst because your insurance premiums are high. Does that make any sense at all?

    Caps are generally for “pain and suffering, emotional distress” and generally unquantifiable type of things and not on economic damages, medical bills, etc..

    I agree with you, it is a very complex issue. Physicians don’t have a strong lobby because we are just not programmed that way. It has been likened to trying to herd cats. Naively, most just want to go to medical school and practice medicine. Interestingly, the younger generation of physicians — the ones most likely to be impacted for years to come — are less likely to be members of AMA or the state or local chapters, than the older generation. I would probably have no interest or nor would ever care to write on these blogs if I had not been subjected to the insanity of the legal process in the last few years. The current system is less than ideal.

    Illustration: Case that was just dismissed entirely – Smoker, diabetic who suffered a massive heart attack and stroke. I was named because I successfully intubated the patient going bad in the ICU. I Successfully did the procedure out of kindness for the admitting physician who asked me to. The lawsuit of course named two hospitals (he was a transfer) and every physician who had their name on the chart which was about twenty. Every single physician had their own insurers and own counsel as well as the the hospitals. What a broken system, what a freaking colossal waste of time and money.

    “I have clients that are never going to be able to move without back pain – do they have a lobby? No, the closest thing they have is ATLA”

    Interesting side note. Ninety percent of people will seek medical cae for back pain. It is one of the most common reasons for missed work and one of the most common reasons people see a doctor and basically supports the whole profession of chiropractic and other alternative practices. In other words it is very common and because you have back pain doesn’t necessarily mean that it is someones fault. In fact, a patient seeing an attorney for their back pain is the largest single predictor for their back pain NOT to get better.

  20. “Caps are generally for “pain and suffering, emotional distress” and generally unquantifiable type of things and not on economic damages, medical bills, etc..”

    Just because something is difficult to quantify doesn’t mean it doesn’t have value. There is certainly value in the fact that one has to eat through a tube in their stomach for the foreseeable future because of a botched surgery, isn’t there? Who do you think is more qualified to quantify that? 12 people who heard the facts of the case or politicians responding solely to lobbying pressure? And who has the better lobbyists? Insurers or malpractice victims (if you don’t think ATLA lobbies for them).

    “Every single physician had their own insurers and own counsel as well as the the hospitals. What a broken system, what a freaking colossal waste of time and money.”

    So are you suggesting we ditch insurance? Each of those people has potentially different interests, why shouldn’t they have their own counsel?

    You stated your involvement was minimal – perhaps you should lobby for laws in your state that allow you to submit an affidavit of non-involvement early in the case. If they proceed after this affidavit then you get your costs back? Some states have similar laws.

    “In other words it is very common and because you have back pain doesn’t necessarily mean that it is someones fault.”

    Who suggested that it was?

  21. “So are you suggesting we ditch insurance? Each of those people has potentially different interests, why shouldn’t they have their own counsel?”

    No, I am suggesting that because of a meritlous lawsuit 20 doctors had to waste their time and hire 20 lawyers because of a meritlous lawsuit. Crappy system. Job security for lawyers.

    “In other words it is very common and because you have back pain doesn’t necessarily mean that it is someones fault” Who suggested that it was?

    Then why would they be seeing you? Do you give massages or acupuncture?

  22. Because they were injured in, for example, a car wreck.

    So if it was a waste of time, what would you propose be done differently? Caps on damages doesn’t change the number of lawyers or physicians there.

  23. Permit me to expand on this statement: “Because they were injured in, for example, a car wreck.”

    I don’t think physicians realize what happens after their patients leave their office. Sure, you’ve treated their pain, maybe even resolved it. But I have to help them get the rest of their life back in order. I deal with the collections companies that were harrassing them while they were off work and couldn’t pay their bills, I deal with (if there was an at-fault party)that party’s insurer in getting them money for another vehicle, getting recovery for lost wage, and getting them money for past and future medical bills.

    Many of you see a lawsuit award as a net deduction from society, when the truth is it’s merely allocation of financial hardship to the responsible party. The bulk of most tort awards goes towards medical bills – it is put right back into the system, or toward reimbursing insurers who paid medical bills. Lost wages, likewise, are put right back into society to replace money that would have been there but for the injury. The only thing that is truly a loss that you can’t say for certain (because you don’t know where it is going) is pain and suffering damages.

  24. “So if it was a waste of time, what would you propose be done differently? Caps on damages doesn’t change the number of lawyers or physicians there.”

    Some type of competent medical and legal review to determine if there is any grounds of merit before proceeding and determine who may be involved would be nice. Currently there is no review, bad outcome must mean negligence, file a meritlous claim, blanketly send a subpeona to every physcian whose name appears in the chart and waste the time of 20 physicians and their lawyers

  25. “Currently there is no review, bad outcome must mean negligence, file a meritlous claim, blanketly send a subpeona to every physcian whose name appears in the chart and waste the time of 20 physicians and their lawyers”

    Actually, as my earlier query to you indicated, there is a review. In fact, nearly every med mal lawyer I know has their case reviewed prior to filing, if there is time before the statute of limitations runs. And, with more states requiring a review and affidavit from a physician, some states even requiring that they be in the same field, there is undoubtedly a review.

    Your perception and the reality are not the same. Although, since you won’t make yourself available even to review if the case has merit in the first place, who are you to bitch?

  26. If these medmal lawyers are getting review then it is pretty shoddy and piss poor.

    You are correct, I probably will never whore myself to a plaintif lawyer in a trial. I don’t need the money, the inconvenience, the time away from family, or any of it for professional gratification. If I wanted to spend time in a courtroom I would have went to law school. However, I would probably review cases for FREE in a PRElawsuit setting as part of a review board to review the merits of a case. That would be educational and interesting and hopefully be a quicker more transparent process for the plaintif and defendant.

  27. “You are correct, I probably will never whore myself to a plaintif lawyer in a trial. I don’t need the money, the inconvenience, the time away from family, or any of it for professional gratification.”

    So you would rather be silent, even if you knew malpractice had been committed and the patient was suffering. Even if the only way this patient had a chance of paying their future medical bills, avoiding bankruptcy from their past medical bills, and achieving any kind of quality of life is if a good physician like yourself testifies for them.

    Not only that, you’ll curse and condemn any physician who would testify for her. If that guy is a whore, what does that make you? Is your silence in the face of the patient’s suffering so deserving of praise that you can condemn him?

  28. I would have no problem reviewing cases PRE trial and rendering an opinion that malpractice occurred.

    Choosing not to make a living in the courtroom is just that, a choice. A choice like deciding whether to go to law school or medical school, or whether become a psychiatrist or surgeon, or what charities to donate to or causes to be involved in. It is a choice not to seek out that type of employment, just like it is a choice for you not to defend an innocent physician. And then again who knows, I have never been asked so it has never been a personal burden. My life is full of charitable causes and burdens, going to court is currently not one of them.

    Other physicians might like to do that sort of thing. So be it. I never said I would condemn them IF they are giving truthful testimony. That is the whole point of this original pledge is pledging to give testimony that is within the boundaries of realism and not leaning towards the obvious BOUGHT position.

    You always reframe my statements so this conversation is over.

  29. “Other physicians might like to do that sort of thing. So be it. I never said I would condemn them IF they are giving truthful testimony.”

    You’re right, it’s my fault for missing the implication when you said. You meant to say you would never give false testimony, certainly not that anyone who would testify for a plaintiff was a whore:

    “You are correct, I probably will never whore myself to a plaintif lawyer in a trial.”

    The point of your “pledge” is to keep physicians from testifying for plaintiffs regardless of the merits of their case. Why do you need to take it, you wouldn’t do it anyway.