Med-mal: feeding the bears at Yellowstone

We settled two lawsuits this quarter. In neither had there been medical negligence. It’s pretty galling to settle cases like these, but it’s smart. The deck is stacked against us, and you have to make the good decisions, even when it is bitter. …

The problem is that the newspapers are replete with cases where there is a huge jury award in cases where there was no malpractice. This is what induces us, and lord knows how many other medical groups, to settle cases which were well-handled. When there is no correlation between whether negligence occurred and whether you win or lose, the only viable strategy is to pick your fights very very carefully.

(Shadowfax, Aug. 7 via KevinMD).


  • I think the analogy of not feeding the bears is too soft and euphemistic. A better analogy would be, never negotiate with terrorists.

  • With the judges and juries that are out there these days, you have NO choice. The system is insane and nobody has the courage to change it.

  • Mr Shadowfax seems to believe the problem lies with the jury. Perhaps he is right in assuming that a jury of laypeople will have limited understanding of complex issues and therefore tend to pass judgement based on their emotions, of which compassion with the unfortunate is one.

    If you do away with the jury system, the decision will rest solely with the lawyers, who are equally unprepared to understand complex issues, but who also are completely devoid of the said emotion. I don’t see the profit in exchanging a jury of lay people with a bench of judges.

    Surely, some other reform must be called for?

  • Mr. Isberg – You have created a false dilemma. We are not limited to the choice of attorneys or six people with drivers licenses; for example, persons who actually have medical knowledge could decide med mal cases.

    And why is emotion in the form of “compassion” desirable in proceedings that are supposed to involve objective fact finding?

  • One of the deepest concepts in Physics involves radioactivity. The rate of activity can be predicted with great accuracy, but there is no way of telling wheb a particular atom will radiate. Insurance has a similar principle, the law of large numbers. We know with some accuracy the number of automobile fatalities that will occur today, but we just won’t know who until tomorrow.

    How then do we approach the causation issue with respect to adverse medical outcomes? Was it just an instance of God enforcing some actuarial rate? Or did it result from deliberate action or incompetent action? My sense is that the trial process itself under weighs the meanness of God (the randomness of nature for non-deists.) I would replace our trials with an adverse outcome insurance mechanism funded directly in advance by by patients. Lottery payouts go to those who purchased winning tickets in advance of the drawing. We don’t ask people if they would have purchased a winning ticket given the opportunity.

  • Shadowfax nails the real problem – lack of consistency. Lack of predictability. Randomness of result.

    When it’s a crapshoot, with the underlying facts having little to no effect on the outcome, you should always settle large cases.

  • What is needed is to reduce the unpredictability.

    Treat punative damages as a criminal offense by requiring proof beyond a reasonable doubt, then add a 3 strike penalty so that after the 3rd punative damage award the doctor is barred from practicing. It’s always been claimed that only a small percentage of the doctors produce the majority of the claims, so lets get rid of them.

    Of course, you might have to go to Canada or Mexico to give birth or have surgery, but that is better than what we have now?

  • Sorry, the “sarcasm” label did not show up.