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This page contains a single entry from the blog posted on April 24, 2005 8:49 PM. The previous post in this blog was Peter vs. Ted. The next post in this blog is Before you hit "send".... Many more can be found on the main index page or by looking through the archives.

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Sunday, April 24, 2005

Dr. Death and Measure 35

We've been reading a lot these past couple of weeks about Dr. Jayant Patel, a.k.a. "Dr. Death," a surgeon who, according to press reports, took his deadly incompetence through the health care communities of New York, Oregon, and finally Australia before the powers that be got around to pulling his license.

Patel spent 12 years playing doctor with Kaiser patients in Portland before he packed up and moved to Australia. While he was in the Rose City, he apparently engaged in all sorts of shenanigans, including performing a colostomy backward. He allegedly was not above falsifying patients' charts, either.

So far, I haven't heard or read a word of logical connection being made between this case and Ballot Measure 35, the proposal that Oregonians narrowly voted down (.pdf) last fall. It would have capped awards for pain and suffering at the hands of quacks at $500,000. It was a bad idea, but the insurance industry, which runs medicine in this country, almost conned the electorate out here to fall for it.

As I said back then, the real problem with medical malpractice is not the lawyers. It's the medical profession, whose will and ability to police itself are every bit as lame as those of the bankrupt Catholic Church in its darkest era. When trusted professionals are maiming and killing through negligence or worse, the answer is not to move them to another state or country. The answer is to be sure that they never harm anyone else, anywhere, ever.

When the medical profession cleans up its act, maybe I'll start thinking about "tort reform." But not until then.

Comments (15)

"[T]he real problem with medical malpractice is not the lawyers. It's the medical profession, whose will and ability to police itself is every bit as lame as that of the bankrupt Catholic Church in its darkest era."

Truer words rarely spaketh. The thin blue line of cops is a thick red one in the medical industry. A tiny fraction of a percent of malpractice cases are ever turned into malpractice claims. I believe the profession's own journals have reported up to 100,000 deaths/year, not including equivalent medication error deaths. And this does not include injuries of various sorts.

No profession is more loathe to turn on (or in) almost any of its own. No union keeps a more constricting check on the supply lines of its professionals, either, as does the AMA on trained physicians.

I wonder if, as laypersons' medical knowledge becomes easier to obtain via, eg, the web, some of the multifold of mistakes will become easier to discover. It would be a good thing to blow the covers off some of these ... 'scuse the pun ... very unhealthy relationships.

It seems to me that this is a danger for any profession policed by its own members. (The medical profession is perhaps more in danger than most, because the body is a system that is not fully understood and the consequences of failure are very high.)

If I understand things correctly, lawyers also are policed by their own membership, too. The law is every bit as obscure to the layman as medicine is. Which brings to mind a set of serious questions: what is competent representation, and what does one do to report suspected poor representation? Is there a lawyerly equivalent of a malpractice claim?

(Background: I have a close friend who had some difficulty with a lawyer she retained for a custody dispute. After several months, the attorney withdrew from the case, saying that the client (my friend) had unreasonable expectations... yet the attorney in question *never* communicated what reasonable expectations should be. (I was there for all of their face-to-face discussions, so it's not just hearsay.) This attorney also was very unresponsive to the client's requests for information, delayed moving on some matters due to time spent being a spokesperson for a civic event, and produced a final bill that had very many more billable hours than earlier similar periods. Partially as a result of these things, the judge has clearly turned against my friend and she is therefore being advised to settle quickly, because her new counsel thinks that the damage to her case is irreprable.)

You can imagine how thrilled I was earlier today to realize that Dr. Death had performed surgery on me six years ago (I'd been only sporadically reading my newspaper, so it was left for a nice Sunday morning surprise while playing catch-up.)

I've now informed any and all that if I die in an untoward manner any time soon? Get an autopsy, and then get an attorney if necessary...

In the meantime? I don't think Kaiser's going to like the motto on my new t-shirt: I survived Dr. Death!

What is the rate at which attorneys are disbarred or lose their license for malpractice, versus that for physicians?

Beats me. If they kill people through negligence or incompetence, I hope it's 100%.

When I hear arguments in favor of tort reform based on frivolous law suits, I reflect knowingly on clients whose injuries are very real but whose claims are untenable, or must be settled for a fraction of value, because Physicians are unwilling to testify against their own.

In my experience, far more meritorious claims go unfiled than frivolous claims are pursued. Attorneys, on the other hand deal not only with malpractice liability but also a disciplinary system which publishes their transgressions, even if the process results in minor discipline such as a public reprimand. The public benefits from such profession-wide transparency.

Physicians have adopted a shoot the messenger mentality rather than a heal thyself ethos. There seems to be an institutional refusal to accept that physicians, like all humans, make mistakes. Some more often than others. This allows dangerous practitioners to escape scrutiny and exposes the treating public to grave - uninformed - risk.

Only doctors know which colleagues they would refuse to be treated by and they’re not about to share those misgivings with the public. Recognizing this unacceptable risk the only alternative to stem the costs of injury inflicted, is to limit the damages paid for not warning patients to beware.

Rather than limit meritorious claims, why not make the sanction for frivolous claims more significant. Just one of a myriad of better solutions than indiscriminate caps.

It all comes down to risk and reward. If you want us to protect your pocket book then let us know who to avoid. Is that askin too much!

With you all the way on this one actually, Jack. Med-mal reform is mostly a canard.

Jack,
I guess my point is that you're awfully rough on the medical practice for its lack of a "will and ability to police itself."
Lawyers and doctors both have a lot of responsibility for people's livelihoods, though in different ways. A lawyer could destroy someone's life through bad practice just as a doctor could, though the mechanism might be different.
Yet, when we look to the policing function of the Oregon State Bar and the Board of Medical Examiners, we see that doctors are reprimanded and lose their licenses at a greater rate than do lawyers; this difference is especially noteworthy when you consider that there are fewer doctors than lawyers in the state. Is this because lawyers are more virtuous? Hardly, especially when you consider the shenanigans they engage in, from the cheating on exams that I've seen, to sleeping with teenagers.
In other words, the bad apples are most noticeable in both professions, but the history of the two associations (lawyers' and doctors') suggests that the lack of a policing function (if there is a lack) is more noticeable for lawyers.
While I think your critique as to medical malpractice reform is accurately aimed, I don't think the anecdotal support you give for it is sound.

I guess the above analysis is applicable to Sally's comment, as well. "No profession is more loathe to turn on (or in) almost any of its own" is unsupported by the facts.

These comments about doctors vs. lawyers committing malpractice may be interesting, but the lawyers didn't propose a ballot measure to cap your damages if you receive negligent service from "Atty Death."

Jack's point, if I may be so bold, was that Measure 35 was a bad idea. It would have traded Oregonians' right to their day in court for ... nothing, except more profit for insurance companies. Sorry, but the insurance industry just rebounded from a recent "soft market" to post the largest profits in the history of the planet. They really don't need any help at our expense.

And try asking people in Texas how their med mal cap is working. Insurance companies there didn't lower their premiums.

But asking whether attorneys or doctors commit more malpractice misses the point that Jack raised regarding M35. Any type of malpractice is bad. And the answer is not to take away anyone's remedy. Keep slugging away Jack!

I have a simple solution: Lawyers handle medical malpractice claims now, so in the case of legal malpractice, we can just turn it around and let physicians handle the claims. I suggest we have anesthesiologists represent lawyers. First one to numb their opponent's client wins. :-)

But seriously. Measure 35 was a bad fix to a real problem. It's not the first such stupid idea to make the ballot (*cough* double majority *cough*) and it won't be the last. No point getting all outraged about it. At least this one didn't pass.

As for the BoME's openness, or lack thereof, there are some sound reasons for the peer review process to happen behind some sort of screen. Unlike many other professions, medicine tries to be scientific and evidence-based, and science demands data. The argument that error reporting (and thus data collection) might fall precipitously if the reporting process was fully public is not without some merit.

That said, this particular doc apparently should get strung up by his thumbnails.

(Disclosure: I'm not a medical professional, but I am employed by some.)

Our brothers and sisters in Washington state are likely to face a similiar fight in Nov 05, so if you're in the metro area, and believe that we should do more to regulate the insurance industry, not take away peoples rights, then
Im sure that calls into Clark County would be much much appreciated.

I think Oregon has done a good job in both proving that this issue is winnable, but always that these fights will always be super close. To join washington's coalition of the willing though, call joel shapiro closer to the election @ 503.223.5587 ext. 105 & he can probably hook people up with call or walk list. Or forward your name to others who can.

Just because midterm elections aren't until next year doesnt mean you cant work to defeat the Bush agenda at the polls in 05!

Our brothers and sisters in Washington state are likely to face a similiar fight in Nov 05, so if you're in the metro area, and believe that we should do more to regulate the insurance industry, not take away peoples rights, then
Im sure that calls into Clark County would be much much appreciated.

I think Oregon has done a good job in both proving that this issue is winnable, but always that these fights will always be super close. To join washington's coalition of the willing though, call joel shapiro closer to the election @ 503.223.5587 ext. 105 & he can probably hook people up with call or walk list. Or forward your name to others who can.

Just because midterm elections aren't until next year doesnt mean you cant work to defeat the Bush agenda at the polls in 05!

Joel,
I agree that M35 and measures like it are a horrible idea. My point is that there are MUCH better arguments to make as to why that is so, aside from the one Jack made. Pointing out the lack of a relationship between caps and premiums is one way. Pointing out the relationship between premium increases and stock market returns on the insurance companies' investments is another.

"I agree that M35 and measures like it are a horrible idea. My point is that there are MUCH better arguments to make as to why that is so, aside from the one Jack made. Pointing out the lack of a relationship between caps and premiums is one way. Pointing out the relationship between premium increases and stock market returns on the insurance companies' investments is another."

I disagree. I will remember your contention that proportionally more lawyers are censured than doctors, and I will eventually find out if this is so. However, lawyers rarely kill people, while "iatrogenic error" is a significant cause of death. I have a lot of intimate experience with the medical community, and I find malpractice to be common if not pandemic, though usually short of the ultimate mark.

I think that people need to be much more aware of the human error component of medical practice, and further that the medical community needs to both acknowledge and adjust the practice to abate it.

What will keep these bad measures from being passed is in my opinion an awareness of the commonness and seriousness of malpractices and the rarity that they are ever compensated. In the shorter run this could make medicine much more contentious for both physicians and patients. In the longer run we might possibly get better medical attention.


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