No one in the medical malpractice community has ever discussed this. Ever. Send me even the suggestion of such a theory. I’ll even allow you to cite a crackpot. Anyone.

You really ARE new here.

There not only IS a chance of these becoming strict liability (at least de facto, if not by law or regulation), I’d give it very good odds that such a thing is actually attempted by lawsuit within the year (if it hasn’t already been), that it will be successful at least once in the next 3 years, and that there will be legislation proposed to that effect within the next 5 years.

I greatly hope to be wrong (and I don’t think the legislation will actually pass), but I don’t expect to be.

Go look up the blockquote HTML function. I’d spell it out for you in this comment, but it would get interpreted as HTML instead! Sorry.

Second, good defenses almost invariably do work as do bad defenses. In my state, malpractice plaintiffs prevail 8% of the time.

Good defenses and bad defenses can both work and fail, that is true. The “100% defense” is thus: not getting sued. Ordering a test to cover something results in not getting sued over that thing. There you go: doctors ARE using their best defense. Getting sued in the first place is a form of punishment for most doctors.

Also, your second statistic (8%) is highly misleading, as it does not include settlements. If I’m guilty of something and getting sued for it, it makes sense for me to settle. If I am suing someone for something that is not their fault, I can settle for next to nothing (what they will likely offer), or I can “roll the dice” in court… And there are many cases in between. The point is that the majority of meritorious cases aren’t included in your “8%” stat, so it’s not a useful number.

There are several OTHER reasons why not number is useless, all documented at this site.

The question I’m posing is what is the real risk of just sticking to the standard of care. My answer: vanquishing low risk. You may have a different answer.

You bet I do – you must be a newcomer on this site.

The CMS’s listing of other events as “never events” is BS. Patients will always be infected by nosocomial infecetions, sometimes by negligence and sometimes because things happen despite the best technique and precautions. See http://video.google.com/videoplay?docid=8157858629486963303 for a spoof on medmal negligence. Most hospitals can benefit from better infection control and reduction of hospital-borne pathogens (especially the resistant type).

The items on CMS’s list that are not truly “never events” should be handled by shifting the burden of proof on the hospitals so that they have to prove, for example, that an infection was not given to the patient through their negligence with a minimum burden of such proof. (e.g. the patient is immunocompromised). In the case of a UTI, CMS should have to pay unless the UTI is allowed to fester to the point that the patient ends up with a kidney infection or sepsis.

Business as usual is not an option; too many patients are needlessly injured. On the other hand, CMS swung the pendulum too far with its no-pay policy for listed “never events.” CMS is correct that there are too many medical errors that are costing the taxpayers billions. Unfortunaltely legitimate complications are swept into the same pile as pure negligence. Medicare’s current policy is not well thought out. Someone needs to look at the implications of any policy before it is implemented.

BTW, what does Medicare paying or not paying for mistakes have to do with “overlawyered?”