Friday, January 13, 2017

"Malpractice" from the viewpoint of a plaintiffs' attorney

Lawrence Schlachter is a neurosurgeon who after 23 years in practice, was forced to stop operating because of a hand injury. He went to law school, became a plaintiffs’ attorney, and wrote a book called “Malpractice.” Although it is intended for patients, physicians might want to read it to learn something about how a plaintiffs’ lawyer thinks.

I’m not surprised that Schlachter cites the heavily extrapolation-based Journal of Patient Safety study claiming 400,000 medical error-related deaths per year and the thoroughly debunked Makary study claiming 251,000 deaths per year due to medical error. He does a little extrapolating of his own and comes up with 562,000 patients per year.

I agree with Schlachter about many issues. He says the best way to avoid becoming a victim of negligence is to take good care of yourself. If you need to be hospitalized, aggressively be your own advocate or have a relative or friend do it. You cannot assume that mistakes will not happen.

In several chapters, he says doctors should always be thinking of what could be the worst possible diagnosis a patient might have. Physicians should also be open to suggestions from other members of the team and should not be afraid to admit when they’re wrong.

He and I feel that doctors should look at their patients' x-rays and not rely on reports only.

A complication of surgery is not necessarily due to malpractice—a concept I have blogged about.

I once believed that much of the malpractice problem was due to frivolous suits, but have come to realize, as Schlachter explains, it can cost as much as $100,000 for a plaintiffs’ attorney to pursue a case. That money is only recovered if he wins.

We also agree on the definition of the term “standard of care” which is a moving target that can only be defined by a jury after hearing the opinions of plaintiff and defense experts. On the topic of experts, Schlachter acknowledges that experts for both sides are sometimes overzealous advocates for their sides.

He raises an interestring point. Medical societies and organizations have sanctioned many physicians for improperly testifying for plaintiffs but to his knowledge, they’ve never sanctioned anyone for doing the same for the defense.

Schlachter writes, “On average, every doctor will be sued once during his career. Yet we know the majority of doctors are never sued.” Do we really know that? According to a 2011 New England Journal of Medicine paper by investigators from Harvard, nearly every physician will face a lawsuit if she practices long enough, The figure below explains:
The paper analyzed the data by specialty. "There was significant variation across specialties in the probability of facing a claim, ranging annually from 19.1% in neurosurgery, 18.9% in thoracic–cardiovascular surgery, and 15.3% in general surgery to 5.2% in family medicine, 3.1% in pediatrics, and 2.6% in psychiatry."

He devotes an entire chapter to the tale of reckless Texas neurosurgeon Christopher Duntsch about whom I have blogged. The book is laced with horror story anecdotes of many other neurosurgical cases that did not turn out well.

If you want to get a feel for what the book is like, read the piece he published today on the Stat News website.

Disclosure: I was given a prepublication copy of the book to review.


Anonymous said...

Great post. I also put the guy out to harmed patient lists.

From what I gather of the decent patients that have been harmed, most want the issue fixed, not to be retaliated against, and not to have to pay for the fix. I think the attitude towards the patient and/or family might help. One of the reasons for the attitude on patients' part is the rotten way they've gotten treated afterwards. I have seen only a few studies, but a contrite heart and those who have reached out, with the help of decent admin (a la Paul Levy), have gotten better results and spent less dollars on the issues.

I know not all are like that, but I think it would help the reputations of health care professionals to face up and deal with it. Think about it: you would be telegraphing that your whole profession is like this. This is why people record secretly: they know they can't trust healthcare people. They can't trust the admin.

One last comment: there are a lot of those harmed who would probably like to be consulted as a group to weigh on what could be done to make the situations better. Now obviously you can't take everything they say, but if you truly want to get rid of error, get the straight poop from the horses mouth. There are a good number of us who learn a lot, don't always pick the Andrew Wakefields' of medicine to listen too. If we're willing to help, take the fruit and leave the rind.

Work together. We're probably better friends to you than your admin. I have stuck up for doctors who've done right by me and tried to. Have they made mistakes? Yeah. I do see the attitude, the willingness to learn, and I'm going to encourage that.

Anonymous said...

Skep, did you see anything on internists and ob/gyns? Last I saw they were up there with general surgeons. That would make sense, but I thought it odd that it would be mentioned.

Of the lawsuits, did they say how many the lawyer refused before he took one on? Also, how many were won by the patient side vs. doctor/hospital side? What about when doctors or hospitals were dropped from the lawsuit? Any stats on that?

Thanks - interesting.

Anonymous said...

Will have to get this book, interesting!

Anonymous said...

Have you read the comment by Donna on the statnews link? I say that kind of sandbagging by hospitals and doctors is way too common and should be severely punished.

Skeptical Scalpel said...

Anon from 1/14, the full text of the paper I linked to in the post ( is free and discusses most of the questions you brought up.

Anon from 1/16, I had not read Donna's comments. Thank you for pointing them out to me. It's a sad story and too bad that she had so much trouble finding out what happened to her.

Until the culture surrounding medical error and litigation changes, physicians and hospitals will continue to stonewall. As I said in a post ( about the paper claiming 251,000 deaths due to medical error per year:

"Makary wants the CDC to start tracking medical errors. In a Forbes blog post about his paper, he said in an interview, “We need to insure legal protections so doctors can report accurately without repercussions."

"I laughed out loud at that. I don't think there is a doctor in the United States who would be stupid enough to write 'medical error' on a death certificate for any patient."

I wrote that post back in May 2016. I have not detected so much as a whisper about changing the culture.

frankbill said...

If one doesn't want to be sued for Malpractice they can work for the VA. Of course they will be paid less then no VA providers.

One can check there states Board of Medicine to see how many providers have complaints filed against them. this is the latest from NH July 1, 2014 through June 30, 2015 (Fiscal Year 2015)
A total of 446 consumer (patient) complaints, notice of malpractice suits, reservable claim reports from insurance companies and/or complaints from other sources were opened between July 1, 2014 and June 30, 2015.

A total of 436 consumer (patient) complaints, notice of malpractice suits, reservable claim reports from insurance companies and/or complaints from other sources were closed between July 1, 2014 and June 30, 2015. Of those total matters closed, 33 were unfounded pursuant to RSA 329:17, XIII, which deems a complaint is unfounded if it does not fall within the jurisdiction of the Board, does not relate to the actions of the licensee, or is determined by the Board to be frivolous; 156 were voted on by the Board for no further action; 57 confidential Letters of Concern were issued, pursuant to RSA 329:17, VII-a. These confidential Letters of Concern advise the licensee that while there is insufficient evidence to support disciplinary action, the Board believes the physician should modify or eliminate certain practices, and that continuation of the activities which led to the information being submitted to the Board may result in action against the licensee's license. 117 confidential Letters of Concern were issued, pursuant to RSA 329:17, VII-a and RSA 329:16-f, I. These confidential Letters of Concern advise the licensee that any change in business or home address shall be reported to the Board no later than 30 days from the date of the change. 37 confidential Letters of Concern were issued, pursuant to RSA 329:17, VII-a and RSA 329:16-f, II. These confidential Letters of Concern advise the licensee that they shall provide the Board with a copy of any notice of complaint, action for medical injury, or claim received from or disciplinary action taken in a jurisdiction outside of this state within 30 days of receipt of such notice or action. The Letters of Concern are not released to the public or any other licensing authority, except that the letters may be used as evidence in subsequent disciplinary proceedings by the Board. Also during this time frame, the Board imposed disciplinary action in 17 matters: nine Settlement Agreements for professional misconduct, one Voluntary Surrender of License, one denial of application for licensure, three Preliminary Agreements for Practice Restrictions, two suspension of licenses, and one order issued pursuant to a Disciplinary Hearing.

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