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So how is the medical malpractice situation in your country? How should we solve it?

Discussion in 'Off-Topic' started by Xanikk999, Nov 3, 2006.

  1. innonimatu

    innonimatu Deity

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    Malpractice in Portugal? Tough luck! It takes some very bad mistakes for a medic to be sued. And, frankly, I think that works our reasonably well. Medicine is not a pure science built around certainty, and no good comes out of suing people for the occasional or small mistakes. And to err is human and statistically will happen in some among the innumerous medical procedures.

    The latest notorious one was about a few pensioners going "blind" (5 in one of two eyes, mind you, not that the journalists reporting on the case mentioned that, only a sixth actually got blind) because of an exchange of products at the hospital where they were being treated for cataracts. One person mistakenly exchanged the product, another failed to double check.
    The victims were paid by the state (250000€) to make up for the inconvenience of the damage, more than the situation warranted imho. And now there's some silly criminal suit ongoing over the exchange, as if the two incompetents actually could have meant to harm someone. :rolleyes: damn the journalists and the which hunts they encourage.
     
  2. otago

    otago Deity

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    A nasty cynic might suggest that some lawyers in your country have no interest in tort reform because that may hurt the bottom line for some lawyers.
    Ours did scream when NZ dropped the right to sue for personal injury.

    If your client looses in court, who pays all the court costs ?
     
  3. El_Machinae

    El_Machinae Colour vision since 2018 Retired Moderator

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    "Costs" are often awarded to the winner of a lawsuit (but not always). And the calculation for "costs" is often a lot lower than your actual lawyer fees. Heck, they're sometimes lower than the actual court costs.

    Well, contingency lawyers would care solely about the profit of suing. If you're only noticing lawsuits where the plaintiffs are mad and "don't care about the $$$", it's then reasonable to assume that you're not seeing courtcases where the lawyers refuse to take the case because of profitability. I highly doubt that you're not seeing a proportion of cases involving contingency. Regardless, tort reform would obviously change the profitability calculations.

    Xanikk999 (and people in general), if a necro'd thread bothers you, and you're the OP, you can always request it be closed. Bumps are allowed if they're topical and contribute to the OP, and aren't spam or trolling.
     
  4. Cutlass

    Cutlass The Man Who Wasn't There.

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    When working on contingency, some lawyers can afford some lost cases because they make so much on the cases they win.
     
  5. JollyRoger

    JollyRoger Slippin' Jimmy Supporter

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    I am a lawyer and I think we need tort reform - as the system is right now, it is much too prohibitive to bring a case with merit forward with a reasonable shot of seeing justice done. To much regulation protecting the insurance companies.

    I have a general practice and there are only two types of cases that I will absolutely not consider taking - traffic tickets because it is more headache to me than the fee generated and medical malpractice because of the governemnt over-regulation of the litigation process. I'm a guy that is willing to take risks in almost all areas of practice, but the government has regulated me out of one. The field has been left to those that specifically chase ambulances for a living instead of those of us that reasonably screen cases for merit and litigate in a more rasonable manner than the typical ambulance chaser.
     
  6. Xanikk999

    Xanikk999 History junkie

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    I agree with this except in easily preventable mistakes that cause further injury to the sufferer.

    I'm not talking about botching the surgery by accidentally cutting a wrong vein or something but rather stuff like leaving surgical equipment inside the patient without bothering to use a checklist to ensure everything is accounted for. The latter example is pure negligence and could easily be avoided.

    In that case I think that doctor should be subject to being sued. Otherwise in most cases I believe medical malpractice claims have gone way too far.
     
  7. Mathilda

    Mathilda Queen

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    If that is indeed the case, wouldn't far more complain to the state board rather go through the courts if the state board is what gets the doctor lose his license?
    I wouldn't underestimate greed.
     
  8. Neonanocyborgasm

    Neonanocyborgasm Deity

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    That would be the same as the current jury system, which allows counsels to screen out doctors.

    That's a good point. It means that even fewer cases of actual malpractice are being sued because the doctor just didn't have enough money for it to be worth it.

    Most people don't know that they can complain to the state board, and in most states, there's no reliable process to accomplish this. Patients quite rightly assume their complaints will go nowhere. Moreover the patients have to assume all the responsibility of gathering evidence, and the doctor has no obligation to comply with requests to gather records. Complaining to the state board in most states is as good as useless, as there is no due process as there is in court, so naturally patients tend to gravitate to the courts. They don't realize it will accomplish so little but they have no recourse.

    Only occasionally have I heard of cases truly founded upon greed. I think this may be because it takes a lot of effort for a long time. Most thieves don't have the patience when there are so many other schemes that will net profit in far shorter a time with far more likely gains.
     
  9. ori

    ori Repair Guy Super Moderator

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    For what its worth, the situation in Germany is in abbridged form:

    A patient believing malpractice to have harmed him has essentially two venues to go to. Either through a criminal complaint, at which point the state attorney's office will decide after initial investigation whether to press charges, the good for the patient is that it doesn't come with a price tag even if the case gets dismissed at some stage and he can ask for damages to be paid during the proceedings, the bad is that the burden of proof is very high and usually such cases don't end up in court at all.
    The second venue is through the civil court system - here the patient needs to press the charges himself and consequently may be liable to pay court costs if he looses, but the burden of proof is less strict than in criminal cases.
    Either the criminal or the civil court can, if convinced of malpractice on the part of a physician, recommend charges against that physician in professional court.

    In addition to these, a non-exclusive arbitration mechanism exists where the board of physicians can attempt arbitration in such disputes - here the patients tend to prevail in ~40% of complaints and those that don't are still free to proceed to civil court.

    As for effect: the arbitration by the board of physicians as well as the civil court system generally can only award damages, however they can also find professional misconduct and recommend a trial in professional court. These courts generally consist of one professional judge drawn mostly from administrative courts and two lay judges (aka jurors) drawn from the physician population of the state in which the case is situated. These are the courts that can render professional injunctions ranging from reprimands to suspension or revokation of the medical license. The latter being pretty rare. However, the fear that a physician administered system needs to be biased against the patient is not supported by the fact that in these arbitration cases the rate of at least partial success for patients is relatively decent with 40%.

    One final note on the German system: we had a lot of problems in the 1990s and before with patients being unable to prevail because of missing or incomplete documentation, often once charges were pressed whole patient files went inexplicably missing. This lead to the current situation in which courts will require proof of malpractice and proof that this harmed the patient if the treatment was properly documented. If documentation is missing or incomplete, courts will require proof that no malpractice occured and that the claimed harm could therefore not be due to the claimed malpractice.
     
  10. Neonanocyborgasm

    Neonanocyborgasm Deity

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    "That's socialism!" ;)
     

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