Despite the harsh nature of Aaron’s remarks, I will try to maintain civility. I would ask all commentors to remember that the purpose of comments is to flesh out concepts. I urge everyone to refrain from ad hominem attacks and general insults.

I will quote again from Aaron’s comments:

Your argument on damages is beyond silly. You are arguing that it is fair to deprive malpractice victims of their ability to retain counsel, because their attorney receives a contingent fee? Here’s a solution – we’ll tack on an attorney fee to the award given to the victim, such that the victim gets the entire award. Oh… no good, you say? You don’t want the responsible party to pay the attorney fee? The only system that works for you is one where the attorney is underpaid or unpaid, or the victim can’t afford to litigate? [eye roll]

Attorneys should receive a reasonable fee. I object to that fee being tied to the size of the award. This objection does not just apply to malpractice cases. Some attorneys view awards as their lottery.

Remember that if I am sued, not only does the insurance company have a financial stake, but so do I. The sued physician must miss work on several days, and we can only make money when we see patients.

If I commit malpractice, then I should have responsibility for reasonable attorney fees. Our disagreement comes from defining reasonable.

“How do huge rewards affect the doctor patient relationship?”

Few patients have any interest in going back to a doctor who has committed malpractice upon them. So there’s little left of the doctor-patient relationship to be damaged by providing fair compensation to the victim.

As you probably know, one of the leading factors in whether or not a doctor is sued for malpractice, or if the patient writes it off as a forgivable human error, is the quality of the doctor-patient relationship and the doctor’s “bedside manner”.

I apologize for not making this point more transparent. My physician readers all understand this issue.

What malpractice does is make physicians more wary of patients! While I cannot put my hand on the exact studies (db asks for help from his readers) at this time, this phenomenon is well known. This phenomenon does not affect all physicians, but it does affect some. Just being accused of malpractice has a major impact on most physicians.

How many unnecessary tests do you order each year? The managed care and insurance companies which limit your fees let you prescribe whatever unnecessary tests you want, and reimburse for them? C’mon.

Many physicians do order unnecessary tests. This phenomenon occurs most often in emergency rooms, but also occurs in office practice.

When does this occur? I do not have hard data (again db asks for help from the readers), but I believe that I see many unnecessary head CTs, cardiac catheterizations, abdominal CTs and back MRIs. These occur because medicine involves uncertainty. Many physicians practice CYA medicine.

All physicians know how to order these tests so that insurance companies will pay. Insurance companies would like to limit unnecessary testing – but the task is daunting.

The best example here is unnecessary procedures – especially C-sections. John Edwards almost singlehandedly increased the C-section rate with his cerebral palsy suits.

As for “medical evidence” that shows one thing or another, the fact is that lawyers can’t even get into court without a medical opinion to back up their claims. (Are there any states left which don’t require pre-certification of cases by a qualified medical expert?) And doctors know how to defend themselves, and their insurance companies spare little to no expense in providing defense experts to present their side of the case. Unsubstantiated medical theories can’t get into court post-Daubert. So what you’re really complaining about is a divergence of opinion in the medical community – which isn’t the fault of lawyers.

Lawyers are very good at finding physicians who will agree with their contention. Many physician groups are fighting battles over the definition of “a qualified medical expert”. Physicians do disagree on scientific matters. The problem that I have is that even when the preponderance of opinion supports the sued physician, the lawyer need only retain one convincing expert to make his/her point.

Why should juries make decisions on medical theories? We should have an expert panel to adjudicate this disagreements – especially when the decisions have profound financial and emotional implications.

Finally you do pose a very important question:

Here’s a question for you – do you agree with the studies that indicate that only 12% of actual malpractice incidents result in litigation? What system do you propose which will fairly identify and compensate all victims of malpractice, while costing less that the present system?

We have both a sensitivity and a specificity problem in malpractice. Many malpractice cases represent bad outcomes, not bad medicine (poor specificity). Insurance companies often settle, because the cost of settling is much less than the cost of trial.

I have endorsed a better system for ensuring quality. We need expert panels (some physicians, some lay experts – the composition could be developed) to judge these cases. The panels could make awards appropriate to the injury, or deny the case.

We will always have difficulty increasing the sensitivity of malpractice claims. Most malpractice happens in degrees. Rarely do physicians do something so obviously bad as to make the decision an easy one.

What I see is suboptimal care? Physicians err when they overtreat, or treat the wrong disease. They misinterpret the data; they ignore drug side effects; they use the wrong dose of a drug.

Developing a system to catch all errors, and then determine which errors have led to harm (many errors have no major deleterious effect) is a challenge which we are unlikely to solve. Our current system hinders progress. I know that Aaron does not believe that; I know that all physicians that I know believe it.

I wait for the result of the many votes on malpractice issues. This will gives us an indication of how the average voter feels.