Sunday, June 3, 2007

Flea outed. Settles case

A medical liability case against a Massachusetts pediatrician with outstanding training and a great practice was settled before going to trial in mid May. The pediatrician happened to be an extremely successful and much read blogger known as "Flea". Flea had kept his identity private and referred to himself only as "pediatrician in solo practice in the Northeastern US".
Flea gave us excellent thoughts and insights into issues of pediatrics, medicine in general, office practice and into the preparations of a malpractice trial. Insights that thousands of physicians, patients and observers loved. He had very high ratings on Technorati.

Early in his trial his identity as blogger was outed by the plaintiff's attorney. Likely as consequence as that, he settled the next day.

Excuse me for being so naive, but, if I may ask: what on earth does a blog have to do with the case? What does it matter what Flea blogs about the jury, the case, the plans for defense, the plaintiff or the plaintiff's lawyer? What does a blog and the posts in a blog change concerning the question: Did Flea act according to professional standards in the treatment of this particular patient or not? And I believe that that this question, the most important of all, was not answered and will never be answered, because our justice system is not set up to focus on it.

I assume that Flea's attorney settled, because he was concerned that the subjective perception of the defendant by the members of the jury would matter so much that it was not worth continuing with the trial!
I believe this should NOT matter in court. Is that not the reason why we have 12 jurors? To keep things a bit more objective? Have we not learned anything from death sentences in the past that later were determined to be based more on an impression of the character of the defendant than on facts?

I repeat, in my opinion, Flea's blog does not change one bit about his treatment of that particular patient. Call me naive, but a good justice system should dispense justice according to the facts. Right? Not according to things such as "Oh, but he said this and that on such and such date and that makes him bla bla bla". Facts should decide, not gossip, not opinion, not personal impressions.

Sadly, this development confirms exactly what Flea had written in his blog: The jury decides overwhelmingly based on their subjective impression about the defendant! The jury's verdict is to 97% based on personal gut feeling and 3% based on facts! Flea was shockingly right!

Do we have a great justice system or what?

By the way, I personally do not think he presented himself in a bad way at all, at no point. I have a lot of respect for him for opening his heart and mind. But, the old saying it true - and this is not meant in an arrogant way - outsider just do not have the experience to understand what goes on in a physicians heart and mind and should not judge him by what he says privately, by his opinions, by his jokes.

This is just one more reason why the malpractice system needs to be replaced.

I have in past proposed a system similar to "Workman's Comp". You are injured on the job, you fill out a form, you get treated. No lawyers, no courtroom theatrics, no "pain and suffering". Compensation according to an expert opinion and a set table.

What works for the manufacturing industry should work for medicine quite well too.
You are injured during the course of medical treatment. You fill out a claim form, the issue is examined by experts, you are treated. Period. No lawyer drama, no lawyer fees. Reduce it to a bureaucratic act. Fill out form, get treated. Get better.
It should be "Patient's Comp" or in Ob it should be "Mother's Comp". Better, more affordable justice. With our present malpractice / professional liability system, 8% of injured patients reportedly receive compensation. How many receive compensation through workman's comp? Certainly more. Patient's Comp would be a huge improvement.

It would increase reporting of mistakes, since the guilt and shame are gone. It would increase fixing of system errors, since we all would contribute to making systems better. Money spent on liability would actually end up in patients hands instead of lawyer pockets.
Lawyers will not like that. I can see a few bitter comments already...But our patients would be better off.


Anonymous said...

Would you agree to a system that is like most worker's compensation systems, that being no liability must be proven, only an injury and the claimant is given the benefit of the doubt? Also, what are you going to do when the insurance companies rate doctors like they do in worker's comp and charge you higher premiums under a system that would promote claims? An administrative claim system would be a lot cheaper for the claimant. Right now most if not all attorneys shy away from medical malpractice cases due to the enormous expense (medical experts charging $10,000/day to testify, etc.) of such a case. Thus, most med mal claims are limited to those with economic damages of $100K+ The current system allows doctors to get away with thousands of minor errors and no consequence. No system seems to be perfect.

ObGynThoughts said...

Dear Anonymous:
thank you for the thoughtful comment and for pointing out the drawbacks of a compensation system that is more administrative in nature.
It would be interesting to see how it works out. The main thing I want to avoid or get away from are the astronomical "pain and suffering" claims that are not only subjective by nature but rise to the millions. The fact that I have to pay to equivalent of 1/3 of my income for liability protection while having a "clean" record speaks for itself. This is ridiculous and has to change.
So, answering your question, yes I think it would be better. "Patient's Comp" would provide or pay for healthcare expenses and for the "fixing of the error", meaning additional surgery, continuation of salary and benefits, physical therapy and so on. It would not pay "pain and suffering".
Yes, I would prefer the increased premiums for that rather than exorbitant liability premiums.
It is more of a customer care behaviour, more like "we will fix it for free" rather than paying "millions for a spilled coffee" process as seen in hot the coffee spilled on a leg at McDonalds...
I appreciate your thoughts and comments!

Kaethe said...

Sadly, this development confirms exactly what Flea had written in his blog

On the contrary. Because he decided to settle it, it tells us nothing about the jury or how they reach a decision. It suggests that as "Flea" Dr. Lindeman wrote statements which he would prefer not to acknowledge to the jury.

You fill out a claim form, the issue is examined by experts, you are treated.

I'm curious as to who the experts would be.

The main thing I want to avoid or get away from are the astronomical "pain and suffering" claims that are not only subjective by nature but rise to the millions.

But repeated studies have demonstrated just how little relationship there is between actually malpractice payouts and rates. The astronomical awards make headlines, but they're rarely upheld, and they don't explain rising rates when payouts hold steady or go down.

You dismiss the McDonald's case, as "hot coffee on a leg" when it was about a deliberate corporate policy resulting in third degree burns over 16% of the victim's body, and 700 other victims in a ten year period. That's probably not the comparison you're looking for in terms of "customer care".

enochdavis said...

parents should be aware of what can be included in a valid ,pediatric malpractice claim. These are complications from surgery, mistakes in the administration of anesthesia, misdiagnosis or failure to diagnose a disease, avoidable birth trauma, pediatric burn injury cases, negligence during the postoperative recovery, errors in nursing, infections, failure to diagnose infections, and errors in prescription. As with any other medical practitioner, it's also possible for a pediatrician to commit varied mistakes when providing care and treatment to your child. But those that cause the most common cases of pediatric malpractice are failure to diagnose or misdiagnosis of pneumonia, infection, meningitis, appendicitis and errors in prescription.