[equivocates]

Medical malpractice lawyer here:

Setting aside the sensational headline, this seems a reasonable result. According to the article, the hospitalist who did not see the patient decided to (a) opine that her symptoms were due to some other, incorrect cause; and (b) override the decision of the doctor who actually saw the patient. Why shouldn't this individual have accountability for the harm that he caused? He wants to make life or death decisions without so much as examining the patient and he doesn't want to be held responsible for those decisions. How is that fair?

[natalyarostova]

Spotting first order effects is relatively easy. It's not terribly hard to examine a system and point out some flaw or inefficiency. What's hard is coming up with a better solution that doesn't cost more in unintended consequences.

One unintended consequence of our malpractice law in the US is a tremendous amount of time and money spent by physicians purely to avoid lawsuits. Obviously medical malpractice is real, and should exist. But there are costs associated with ever increasing the scope and ability to medical practitioners to be sued.

[mandevil]

You can look at the Dartmouth Atlas of Health Care and see the costs of medical care, and medical malpractice reform just doesn't seem to have any effect on medical care costs.

https://www.dartmouthatlas.org/interactive-apps/medicare-rei... Price-adjusted total Medicare costs per enrollee, that belt of bright red along the Texas coast? Texas capped non-economic medical malpractice damages at 250,000, and still they have some of the highest Medicare spending in the country. Since this data is price adjusted this isn't so much a measure of how expensive a treatment is in the hospital, but of how many events a patient undergoes in a year. So Texas doctors continue to have very high utilization rates, even after malpractice reform. So it wasn't just "defensive medicine" that was driving that, but something else.

[Retric]

> purely to avoid lawsuits.

That time has real benefits. Medicine has a huge issue where people value their own lives vastly more than doctors do. Sure, 99+% of the time X is not the issue, but it’s rational to spend quite a bit to avoid fairly low odds of death.

For example, one of the US’s top killers is pulmonary embolism which presents as any number of other issues. Doctors not taking such symptoms seriously kills. “Pulmonary embolism is a common complication of hospitalization and contrib- utes to 5 to 10 percent of deaths in hospitalized patients.” “less than half of patients who die of pulmonary embolism were diagnosed with the problem prior to death“

[kgwgk]

> it’s rational to spend quite a bit to avoid fairly low odds of death

Then it’s not rational to be outraged when one finds out that healthcare costs are high.

[Retric]

Plenty of other things boost the US’s heathcare costs to get upset about. Texas capped malpractice liability and that seemed to have zero impact on heathcare costs.

[spacemanmatt]

There seems to be a presumption that "to avoid lawsuits" is a pure motivation. I don't think that it is.

Some of our laws actually come from just causes, such as protection patients from incompetence, malfeasance, etc. of their physicians, nurses, hospitalers, and insurance companies. A lawsuit is the necessary enforcement mechanism of such protections. Lawsuits can serve good purposes.

[bilbo0s]

Yeah, but I'd argue this really doesn't increase the scope. From my reading of the article, which is incomplete, we need a few more bits of info to make a call here, but I'm pretty sure these two organizations were operating in a grey area with respect to consults and referrals in this case. Personally, I think the policies they had, (maybe still have?), in place put certain care providers at enormous risk. But it really is on the doctors to make sure they are doing everything right. The greyness here, again, only my opinion, but I think the greyness led to confusion. But, yeah, confused or not, the doctors are on the hook for it.

[jdoliner]

Are there any similar prior cases where similar things have happened? Consults like this seem incredibly common, so it's hard to believe that this is the first one where the consult was wrong and it had consequences, maybe this is the first one where they thought to file a malpractice suit?

It seems like this suit may have a chilling effect where Doctors won't even be willing to get on the phone for consults, given that they're taking on extra liability by doing so. Do you think that's a risk here?

[bilbo0s]

Mmmm, I'm gonna play Devil's Advocate here and ask what would be necessarily wrong with a physician actually examining patients prior to making an admit decision? (Particularly given the fact that said physician really is acting more like he/she got a referral than a consult request.)

You can do consults, but they have to be consults. I think what happened here is that these two organizations are playing fast and loose with the essential distinction between a consult and a referral. The decision to admit has to come from this physician, so really, it was not a consult. Because the original physician had little to no power. (I'm almost ready to argue that the original physician had essentially no power over the decision, but I'd need a bit more information to make that call.)

EDIT:

Friend just pointed out that some people may not understand the difference between a consult and a referral. Basically, in laymen's terms, a referral is a request that you assume care of the patient. Whereas a consult is a really just a request for, let's call it, "advice", for lack of a better term. Kind of like, "Hey man, can you give me a second opinion on this?" But the patient is still under your care. You still make the final calls on things. As opposed to, "Woah, dude... you're gonna have to handle this one, I'm no cardiologist, so I'm not even gonna try to do a cath, much less a PCI."

[merpnderp]

This wasn’t really a consult. This was the admitting doc at the hospital overriding a doc who wanted to admit.

He made a decision, contrary to the examining doc’s opinion, that was final and without some crazy new information, asinine.

[aladoc99]

Not a risk, a certainty. Until this ruling, not having a physician-patient relationship was an absolute safe harbor against professional liability. It was understood that the clinician seeing the patient had the ultimate responsibility. Now we can program Alexa to say "Send the patient to the ER" and save ourselves a great deal of time.

[olliej]

The ruling is that when you make a medical decision about a patient you have a physician/patient relationship. You no longer get to say “I was not present so that fact that I provided incorrect treatment instructions is irrelevant”.

If the doctors involved weren’t the ones responsible for allowing a patient to be transferred to the hospital maybe you could more reasonably claim you were giving advice.

But by denying the transfer to the hospital and misdiagnosing them, they were making (and effectively enforcing) those decisions.

[merpnderp]

If the doc had merely advised, instead of overriding the examine docs opinion, there wouldn’t even be a case because this woman would still be alive. Looks like doctors are free to consult, but are on the hook when they make an overriding decision.

[girvo]

> Now we can program Alexa to say...

I don't really understand your point here I'm afraid. The courts won't give a shit about the Alexa bit, no?

[aladoc99]

Sorry for being obtuse. The point is that it doesn't take a physician to tell EVERY clinician calling with a patient for possible admission to send them to the ER. If the hospitalist is going to be liable for advice given on patients never seen, he can only err on the side of maximum treatment, since he hasn't had the benefit of seeing the patient and can't necessarily rely on the referring clinician's assessment.

[SomeOldThrow]

How do other countries handle this? I know that the US is unusually litigation focused when it comes to remediating malpractice.

[olliej]

Largely because you need to cover follow on medical bills incurred by malpractice, coupled with a failure to adequately restrict the harm from malpractice (ndas on settlements for instance work to cover up patterns of malpractice)

[spacemanmatt]

And because individuals pay, instead of the government. So when individuals have a problem, they're left to prosecute (sue) a doctor on their own instead of having a whole single-payer system behind them.

[olliej]

yup, which also necessarily needs to cover both the medical care and the legal fees. And interest on loans needed for medical care, etc, etc

[repolfx]

Not a malpractice lawyer here, but surely the answers to your question are somewhat obvious? Many countries don't have the same culture of suing doctors as the USA.

Having read this I honestly was left wondering whether malpractice should exist as a concept at all. Clearly several people screwed up with bad consequences here. But it seems like this isn't something the courts can fix.

For one, isn't it true that many (most?) doctors in the USA have malpractice insurance? Any lawsuit win against them doesn't make much personal financial difference, just increases medical costs for everyone else as the payment to the 'victim' (not the actual direct victim in this case) is just socialised and dispersed. Moreover the fact that insurance is sold at all suggests that malpractice claims are seen as being in some sense random and unavoidable risk events, not something that can actually be avoided by just being sensible.

For another, presumably the underlying logic of malpractice suits is to punish the underlying error in order to incentivise ... something ... that would prevent a recurrence. Is there any plausible, actionable outcome here which would prevent this type of repeated human error in future? One that that isn't counterbalanced by costs that would yield worse outcomes in other cases? If so, why are we so sure the courts are best placed to locate and enforce this vs the medical profession itself, which I believe already aims to save as many lives as possible?

In the software industry there are no malpractice suits. I can't believe it would benefit anything if there were: imagine if people could directly take devops staff at major web services to court anytime there was an outage because they made a thinko in a config file? Would this magically eliminate outages because everyone is now being super careful? Certainly not. People are already well incentivised to avoid mistakes. You'd just get malpractice insurance in the software industry too, and those costs would be passed on to employers in one form or another, so all that'd occur is random payouts to random people who happened to sweet-talk the court into perceiving "malpractice" vs ordinary mistakes and a whole lot of time spent on lawyers. I can't believe it'd actually impact software reliability in any meaningful way, and if it somehow did it'd probably only be by eliminating business models that were striking a reasonable risk/stability balance already (e.g. Twitter and Facebook in the early days prioritised moving fast and breaking things over absolute stability despite millions of people using their services).

[moftz]

If you are a paying customer and you signed an SLA with a service provider, you absolutely could take them to court for not meeting their end of the uptime agreement. A business providing internet services to other businesses with SLAs would probably have some sort of insurance to cover that kind of situation.

The facility where the doctor works typically pays for the malpractice insurance. The facility is the one that also hires and fires doctors. Screw up too much and jack up the insurance premium, the facility might decide that you need your own coverage or they might just fire you. The hospital might try to increase prices to cover the increased premiums but that only works to an extent. Medical insurance companies make agreements with healthcare facilities as to what services and goods cost what. They aren't going to start to pay out more just because the doctors there are screw-ups.

I don't think I would feel comfortable in a country where I would have no legal recourse against a doctor that harmed me due to incompetence.

Would you host your app with a datacenter that says they will try their best not to have outages? Or would you rather use a datacenter that guarantees 99.671% uptime?

[CodeMage]

> For one, isn't it true that many (most?) doctors in the USA have malpractice insurance? Any lawsuit win against them doesn't make much personal financial difference, just increases medical costs for everyone else as the payment to the 'victim' (not the actual direct victim in this case) is just socialised and dispersed.

Let's say a doctor screws up and you end up having to do an extremely expensive procedure to fix that. Wouldn't winning a malpractice lawsuit allow you to cover those expenses? That's just one of the ways medical malpractice lawsuits make sense.

> For another, presumably the underlying logic of malpractice suits is to punish the underlying error in order to incentivise ... something ... that would prevent a recurrence. Is there any plausible, actionable outcome here which would prevent this type of repeated human error in future? One that that isn't counterbalanced by costs that would yield worse outcomes in other cases?

Honest question: what do you think is grounds for a medical malpractice lawsuit these days? As far as I've been able to figure out, it seems that there has to be some kind of relatively serious, provable negligence involved.

> If so, why are we so sure the courts are best placed to locate and enforce this vs the medical profession itself, which I believe already aims to save as many lives as possible?

I'm having a hard time addressing that idea, because your way of thinking is foreign to me. Look, we are talking about things that seriously screw up people's lives or even end them. To me, your idea of self-regulated medical profession sounds like proposing that, instead of suing the truck driver who ran over your kid, you should let his employer deal with him.

> In the software industry there are no malpractice suits.

Medicine and software industry are not the same thing.

> random people who happened to sweet-talk the court into perceiving "malpractice" vs ordinary mistakes

Well, there it is. You seem to believe that there is no such thing as malpractice, it's all just "ordinary mistakes" that just might end up killing people or screwing up their health permanently.

[mirimir]

> Any lawsuit win against them doesn't make much personal financial difference, ...

Just ~like vehicle insurance, the rate goes up with more paid claims.

[bryanrasmussen]

Malpractice is a form of tort law pertinent to 'professionals' https://en.wikipedia.org/wiki/Malpractice IIRC the acm would like to make programming a 'profession' along the lines of the professions open to malpractice suits and if that happened programmers could also be sued for malpractice.

[feistypharit]

Have you noticed very few doctors run private practices anymore? The excess litigation and cost of malpractice insurance is so high they can't afford it.

That's why they are all grouping, and usually even just under a hospital. It takes a huge group to be able to be able to get the leverage on insurance.