Great political minds think alike

[Valkenar]

Rumor has it that I've been known to be wrong and/or not express myself well.

That's fine. But you seemed to be defending the position. If you're conceding it now I promise I won't hold a grudge.

The point is that a free and competitive market has the capacity to respond to a demanding consumer on any number of dimensions. This is VERY different than a universal health care system where a single, relatively unresponsive entity gives you something and tries to convince you that you'll like it.

It certainly has that capacity. But honestly being told by a relatively unresponsive entity that I'll like their crappy product is pretty much how I feel about Microsoft's dominance/monopoly of the desktop. And the cash I personally might spend elsewhere is even more unimportant to Microsoft than the vote I might cast for a different senator is to Scott Brown.

Whether you're voting with a pen or voting with cash it's all the same.

Let's stop there. The literature hasn't shown much benefit for yearly medical checkups

Okay, forget the checkups then.

I don't think you'll find much of a market for this, Justin. And besides... those are fixed and known costs.

Nuh-uh. The need for antibiotics is just as unfixed and uknown as the cost x-rays, cast and such for a broken leg.

And antibiotics are way overused anyhow. For God's sake, they're even giving them to chickens in densely populated poultry houses.

True, and that's partly why I eat organic whenever I can. But if I'm a garbage guy and cut my hand on some jerk's dangerous, filth drenched trash bag, it will be reassuring to know that I'll be able to afford antiobitics if I need them.

So sure, antiobiotics are overused, but that's a different subject. They're still genuinely lifesaving in plenty of cases. If you (or Ian?) can suggest a better example medication that has the property of being something that a lot of people need for some random ailment that comes up, go ahead.

I agree, Justin. However... if you don't believe that we can prevent problems, then why are there punitive damages? I mean really!!! Think very carefully what you are implying.

I said you can't prevent *all* the problems. What I'm implying is that punitive damages have a positive deterrent effect that is additive with other measures that reduce error. I also think there's a bit of a fairness issue. Having the doctor lose his license doesn't do the injured person any good. Having him fork over a chunk of change at least partially makes up for permanently damaging a person's quality of life. That's the reason they give money in the first place. The punitive aspect is for making sure the person notices they're being fined.

Or maybe I just think a person's quality of life is worth a lot more than some paltry loss of employment and medical costs. I mean think about it. What would someone have to pay you to make it worth being paralyzed? Would you take a billion dollars for that? I wouldn't. To me, that says the value of being able to walk is over a billion dollars. Money is a crappy proxy for happiness, but it's all we've got. It's not like we can just declare that the personal doing the paralyzing is now the personal slave of the paralyzed.

That said, if it's just a fluke and basically unpreventable there shouldn't be any liability. Doctors have to be able to make reasonable mistakes. A surgeon doing a delicate operation on your spine might paralyze you, that's just how it goes sometimes. But if the doctor guy is drunk, or just being grossly negligent? Yeah, then there should a whole lot of money forked over . Note that this same concept applies everywhere else, in my mind, not just medical.

[mhosea]

What would someone have to pay you to make it worth being paralyzed? Would you take a billion dollars for that? I wouldn't. To me, that says the value of being able to walk is over a billion dollars.

Not to make light of a serious discussion, but when I was young and impressionable, a clownish, middle-aged coworker once asked me (and it wasn't anywhere near the most outrageous thing he ever asked) if somebody offered me a million dollars to do it, would I drink a 12ounce glass of snot. That would be about $2M today. The question alone scarred my psyche. Later, to my amusement and dismay, they made a television show out of such monstrosities, hosted by our friend Joe Rogan (and with drastically lower, not to mention uncertain, payoffs).

[Bill Glasheen]

What I'm implying is that punitive damages have a positive deterrent effect that is additive with other measures that reduce error.

It does more harm than good. One of the major reasons we have over-utilization - one of the three causes of poor quality per The Institute of Medicine's landmark publication - is the because of the defensive medicine that litigation causes. Primum non nocere. If it does more harm than good, then let's get these bozos out of the doctor-patient relationship.

Worse still, trolling for malpractice suits stifles the kind of information sharing needed to identify and respond to process quality problems.

Trial lawyers should get real jobs where they actually produce something.

- Bill

[Van Canna]

I worked for GAB Robins of North America as a Regional Casualty - General_ Claims Adjuster. My specialty was to investigate and evaluate catastrophic liability claims across a wide field of occurrences that also included Physicians Malpractice, along with hospital liabilities.

One thing that helps to keep in mind in these discussions is the fact that the law generally delegates the setting of detailed professional standards to members of various professions. And, in litigation, this ‘standard’ is sought and argued as part of the overall exposure picture.

Generally _ the courts expect that medicine, as a learned, science-based discipline, will have articulated standards for practice.

In certain professions, the standard of care is determined by the standard that would be exercised by the reasonably prudent professional in that line of work. Such as a doctor, lawyer, accountant etc.

[Van Canna]

A test (known as the 'Bolam Test') is used to determine whether a doctor is liable for medical malpractice.

See here….http://en.wikipedia.org/wiki/Bolam_Test

Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals (e.g. doctors): the "Bolam test".


Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, Bolam test states that "If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent"

It is important to remember that the "Bolam test" is just one stage in the fourfold test to determine negligence.

First, it must be established that there is a duty of care (between a doctor and patient this can be taken for granted).

Second, it must be shown that the duty of care has been breached. This is where the Bolam test is relevant, because falling below the standard of a responsible body of medical men means that person will be considered negligent.

But in addition, third it must be shown that there was a causal link between the breach of duty and harm. And fourth, it must be shown that the harm was not too remote.

[Van Canna]

The law distinguishes between liability flowing from acts and omissions, and liability flowing from misstatements.

The Bolam principle addresses the first element and may be formulated as a rule that a doctor, nurse or other health professional is not negligent if he or she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though some other practitioners adopt a different practice.


In addition, Hedley Byrne & Co. Ltd. v Heller & Partners Ltd. [1964] AC 465 created the rule of "reasonable reliance" by the claimant on the professional judgment of the defendant.

"Where a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, and a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise”

[Van Canna]

Because of the nature of the relationship between a medical practitioner and a patient, it is reasonable for the patient to rely on the advice given by the practitioner.

Thus, Bolam applies to all the acts and omissions constituting diagnosis and consequential treatment, and Hedley Byrne applies to all advisory activities involving the communication of diagnosis and prognosis, giving of advice on both therapeutic and non-therapeutic options for treatment, and disclosure of relevant information to obtain informed consent.

[Van Canna]

Justin wrote

Doctors have to be able to make reasonable mistakes.

A reasonable mistake can cause terrible consequences to a patient, including huge future expenses for additional medical care and maintenance care, which can run into the millions of dollars depending upon the age and life expectancy of the plaintiff.

Under a Med-Mal policy…the insurer must obtain the physician’s permission before settling a claim with the plaintiff.

We had some of these problems…and it is understandable.

But consider this

The lawsuit didn't last too long. The handwriting was on the wall. The doctor attempted to come up with explanations for the problem; but none made sense.

Finally, during his deposition, I asked him what could explain the fact that the damaged bone was present both before and after his surgery; but that a previously healthy bone was missing following his surgery.

And although he admitted these facts; he admitted no explanation for how that could have occurred. The only thing he was sure of was that he didn't do it. It sounded like a 9-year old boy trying to explain who broke the vase; while standing among the broken glass with a hammer in his hand.

Fortunately -- finally -- his attorney and insurer were able to convince the doctor to authorize a settlement (undoubtedly explaining to him that he would look pretty foolish on the record in front of a jury).

I could tell some stories about 'mistakes' some of the docs I interviewed were found to be responsible of.

[Van Canna]

Doctor's make mistakes. So do lawyers. So do plumbers, electricians, builders, teachers, drivers, policemen ... you name it. Let's face it. EVERYONE makes mistakes. It doesn't make them bad people. In fact, it makes them human!

When people make mistakes, it's always better to just admit them and move on. When people make legal mistakes, the answer is really the same (although, perhaps, after consultation with an attorney).

With the overwhelming evidence against this doctor, he should have admitted the mistake, and allowed his insurance company to handle it on his behalf.

It's unfortunate that he put up a silly -- non-existent -- fight.

As a practical matter, it cost him more.

He needed to spend substantial time away from his practice dealing with the litigation process -- and frankly, my client might have been willing to settle for less had the doctor not forced her to sue in the first place.

There's a lot to be learned from basic kindergarten rules --- like admit your mistakes and move on.

And after all, this is the very reason for a doctor to purchase Med-Mal insurance coverage.

[Bill Glasheen]

One of the very reasons to have free information flow and six sigma practices is to prevent the very "wrong bone" type scenario above. THESE kinds of mistakes are preventable. They don't happen in airplane engine manufacturing, which is why airline crashes are so rare and hence so newsworthy.

Arguments about punitive damages large enough to "hurt" the defendant are part of the problem with runaway health-care inflation today. EVERYONE wants a PROPORTIONAL degree of the action rather than what it takes to keep the patient out of the hospital. And then everyone b1tches about health-care inflation. Well Duh!!!!!! To err is human. To prevent humans from being human is what six sigma is all about. A good process protects people from their very nature.

For instance... Electronic pharmacy systems prevent prescribing errors for myriad reasons. No penmanship problems. No accidental wrong dose. No drug-drug interactions. No giving the right med to the wrong patient in the hospital. Plus... a doctor will know when the patient doesn't get his/her meds, and can call them up on the phone to scold them about a lack of management of their chronic condition. (Happened to a friend of mine just last week.) The amount of medical mistakes such a system prevents is staggeringly high.

The only problem? Missed revenue for the trial attorney. Suks, doesn't it?

- Bill

[Bill Glasheen]

This is for my friend Justin who bashed Microsoft in this thread.

- Bill

Philanthropists Bill Gates and Melinda Gates said Friday they would spend $10 billion to develop and deliver new vaccines over the next decade, highlighting growing concerns that the global recession and competing government priorities will stifle efforts to control diseases in developing countries.

The money, announced at the World Economic Forum in Davos, Switzerland, marks an increase from the roughly $800 million the Bill & Melinda Gates Foundation now spends annually on vaccine work.

"Hopefully we'll have some breakthroughs," Mr. Gates said in an interview this week, pointing to funding from his foundation aimed at finding a vaccine for malaria.

[Gene DeMambro]

All the trial attorneys I know Bill have been saying for years to anyone who will listen to adopt the technology and processes to prevent errors.

Gene

[Valkenar]

One of the very reasons to have free information flow and six sigma practices is to prevent the very "wrong bone" type scenario above. THESE kinds of mistakes are preventable. They don't happen in airplane engine manufacturing, which is why airline crashes are so rare and hence so newsworthy.

Certainly a lot of those mistakes are preventable. There are big gains to be had with process improvement. But not everything Van points out is going to be resolved by applying strategies that work great for airplane engines. The two environments are fundamentally very different in a number of important ways. That's not an excuse for blowing off the whole concept of process improvement, but it is a reason to plan for ongoing failures.

This is for my friend Justin who bashed Microsoft in this thread.

Well let's get things in perspective here. Microsoft, as a corporation has done illegal and unethical things. It is my opinion that those things have reduced the quality of the software people use. Is Microsoft a net minus for the world of software? I don't know. Maybe. Probably not though.

Bill Gates, as an individual who happens to possess great wealth, seems to be a very ethical, generous and respectable person.

Bill Gates, as the person who guided policy for Microsoft, is responsible for at least some portion of the harm Microsoft has done.

I'm not really interested in trying to calculate the personal ethical score of Bill Gates. My point is that Microsoft is an example of a company that does not deliver excellence. If Microsoft were a government agency, it would be an excellent example of what's wrong with government efforts in the private sector. Instead, it's a counter-example to a claim you've already more or less retracted.

[Van Canna]

http://en.wikipedia.org/wiki/Shakoor_v_Situ

[Bill Glasheen]

http://en.wikipedia.org/wiki/Shakoor_v_Situ

This speaks volumes about both the concept of "reasonable practice" as well as the different levels of accountability between National Health Service vs. herbalist health-care providers.

Fascinating, and... Wow!!!

- Bill