Letters to the Editor

Patient issue

March 26, 2007

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To the editor:

The Deceptive Doctor Act, House Bill 2530, was passed by the Kansas House of Representatives last week. Rather than being held to the same standard as a plumber, electrician or tow-truck driver, under the Deceptive Doctor Act a doctor who intentionally deceives a patient about medical care and treatment cannot be held responsible under the Kansas Consumer Protection Act.

Attorney General Paul Morrison opposes this bill because it would prevent his office from investigating health care treatment deceptions committed by anyone in the health care industry.

In light of this, I am shocked to learn that all our Lawrence representatives voted for this bill.

Supporters of HB 2530 say it is a "limited exception" and point out that deceptive billing, business practices, or advertising by health care providers would still be regulated by the Consumer Protection Act. That is good, but that does not change the fact that physicians can still lie about their procedures, performance, and services and be protected from having to take responsibility for their deception.

This is a rare issue. The vast majority of physicians and health care providers will never need to worry about this law. They don't lie to their patients. But for those who do, for those who intentionally deceive their patients, should they not be held to the same standard as the rest of us?

The Kansas Senate should stop the Deceptive Doctor Act from becoming law.

Todd Hiatt, Lawrence

Comments

Jamesaust 8 years, 2 months ago

"physicians can still lie about their procedures, performance, and services and be protected from having to take responsibility for their deception."

This is a false statement.

Physicians are liable for malpractice.

"Rather than being held to the same standard as a plumber, electrician or tow-truck driver...."

Actually, physicians are held to a higher standard - the standard of care considered reasonable by their profession.

And it is that standard, which turns upon medical judgments of prudent/ethical behavior by one's peers, that would be replaced with the expectation of the patient - err... "consumer"... which would vary from person to person.

Do you want your physican focused on whether he/she has documented their disclosure to you of any conceivable, 'rear view mirror' possibility as part of your care, or focused on the medical basis for your treatment? You won't get both.

HB 2530 RETURNS matters to the state they have been since the beginning of time until this January, when the Kansas Supreme Court discovered what no one else had ever conceived of - that the KCPA required that medical patients be treated as "consumers" bargaining for lawncare services or shopping in a pet food store. The Legislature is merely revising the statute to make (even more) clear that's not their intention and that medical NEGLIGENCE, not whether the doctor can prove that they handed you a booklet of legalese.

Baille 8 years, 2 months ago

It would be more accurate to state that physicians would not be held liable under the Kansas Consumer Protection Act. That part of the law - which protects KS citizens from dishonest professionsal - would not apply to dishonest docs. And keep in mind, James, this bill does not just affect doctors - it applies to all health care providers. Another poster in another place summed it up nicely:

"This bill will include pharmacists (like the one in KC who was watering down cancer drugs and the one in Johnson Co. who was selling generic drugs repackaged as brand name drugs); hearing aid dispensers (like the one in Philadelphia that was selling used hearing aids to seniors and representing them as new); nursing homes; assisted living facility; home medical equipment dealers; and on and on. Doctors are but a small fraction of the $12 billion industry (Kansas annual) asking for a an exemption."

And doctors are not held to a "higher standard" under med mal law. They are held to the same standard is any profession - reasonable care as defined by others in their profession. This is the same standard as an accountant, an attorney, or even a"...plumber, electrician or tow-truck driver." Don't make me copy and paste the PIKS. :)

Further, the holding in Amrani is much narrower than what you seem to imply.

"And it is that standard, which turns upon medical judgments of prudent/ethical behavior by one's peers, that would be replaced with the expectation of the patient - err... "consumer"... which would vary from person to person." That is an informed consent question. In Amrani, the trier-of-fact found that the doctor simply lied:

"Specifically, Williamson alleged that Dr. Amrani represented that the surgery he was recommending had a high likelihood of successfully relieving her pain when, in fact, that surgery had been unsuccessful in the majority of cases where Dr. Amrani had utilized the same procedure. Williamson alleged that Dr. Amrani had willfully misrepresented or concealed material facts in that he knew or should have known that the surgery he was recommending had produced "bad results" for a majority of his patients."

That would then fall under the Kansas Consumer Protection Act.

Medical negligence applies in cases of informed consent disputes and disputes over actual medical negligence. But when a doctor lies about the services they provide, they should be held accountable under the KS CPA.

Baille 8 years, 2 months ago

So I did it anyway, James. :)

Negligence defined:

Negligence is the lack of ordinary care. It is the failure of a person to do something that an ordinary person would do, or the act of a person in doing something that an ordinary person would not do, measured by all the circumstances then existing.

Medical Negligence:

In performing professional services for a patient, a [physician] has a duty to use that degree of learning and skill ordinarily possessed and used by members of that profession and of that school of medicine in the community in which the [physician] practices, or in similar communities, and under like circumstances. In the application of this skill and learning the [physician] should also use ordinary care and diligence. A violation of this duty is negligence.

Same standard by my reading. Once one defines the scope and nature of the duty, both doctors and everyone else need to use "ordinary care."

Jamesaust 8 years, 2 months ago

Baille - you make several interesting points. However, I believe we part company on the standards applied. While you seem to believe that its all one and the same, I believe the law makes careful distinctions.

  1. The very point that a special definition of medical negligence would be necessary implies a need to distinguish the standard. Medical negligence includes ordinary negligence but in definining the scope and nature of the duty it does not merely "flesh out" the details but sets greater ones. This is because physicians have greater specific duties to their patients than the ordinary duty in a seller/buyer relationship.

  2. Negligence among the "learned professions" is different based upon the ability of the patient's ability to evaluate and make choices. Under "ordinary consumer" decisions, such persons are charged with an "ordinary" range of knowledge in bargaining for products or services.

  3. As such, the test, as set out in the different defintions, varies. "Ordinary" negligence turns on the expectations of a reasonable person as a "consumer. A jury would evaluate testimony for itself based upon the jurors own judgment of what is reasonable. In contrast, the law does not presume that those who rely upon professionals (narrowly defined) are capable of fully evaluating the choices advised to them. Negligence there thus turns on, not the consumer's expectations, but rather the standards set by the profession. A jury would rely upon expert testimony of what that standard is (which is why such trials retain and pay experts to so testify).

kneejerkreaction 8 years, 2 months ago

We just love to be annoyed by Docs (and Lawyers).

Annoying Doc Characteristic #1 - you ALWAYS wait on the Doc while he works the over-booked rooms next to you.

Annoying Doc Characteristic #2 - for as much moolah as they make, they are generally terrible tippers.

ADC #3 - Most Docs aren't good at diagnosing anything they haven't seen before.

But, when we need them, AND they can fix what's wrong with us, we SHORE do love'em.

Jamesaust 8 years, 2 months ago

What's more, at least with regard to the local medical cases you cite (I know nothing about the out-of-state ones and they aren't relevant here anyway), the persons charged faced different, federal charges. If KCPA was used - and I do not believe it was - it would have been an "add on" rather than the core violation. They would also be liable under state law outside of KCPA - both criminal and civil. That extensive regulation of "health care professions" should have been sufficient for the Court to conclude that the Legislature did not write in an exception for them within KCPA because of the mass of other statutes that distinguish this relationship from an ordinary buyer/seller one. The implication in this letter - that doctors are not held to account - is false.

The plaintiff in the Amrani case was just looking for "deep pockets" after treatment did not improve their circumstances. This creative KCPA interpretation was apparently adopted precisely because the treatment did NOT deviate from a reasonable standard of care but rather alleges that if the patient had been advised just one fact (the past failure rate of the treatment) then they would have refused treatment. (The Court did not find that the physican had in fact lied at all, or that disclose of such a fact would be reasonable, and thus expected.)

KCPA is a "cookie cutter" law based upon a model draft. Kansas, like 3 other states, has adopted it. As happens with so many other such "cookie cutter" model laws, Kansas adopted it ("rubber stamp") will little thought or reflection - after all, the whole statute comes pre-written. The fact is, the Court couldn't find any other case in these other states where other courts came to the same conclusion. That is, that the statute as adopted is so broadly worded and contains no express exception for physicians that it then must cover them. That's a fair interpretation of the text (if you put "blinders" on and ignore all the other statutes governing physicians) but its bad public policy. HB 2530 corrects what the Legislature should have corrected the first time (which 2 of the 3 other states using this model law did so exclude).

KKayhawk 8 years, 2 months ago

It is interesting to note that the fear engendered by Williamson v. Amrani most logically arises from the fear of not being protected by insurance. In a medical malpractice case, insurance pays the bill if the doctor loses. In KCPA action for any professional, it can turn quite personal if insurance excludes deception. The pupose of the KCPA is terribly undermined by excluding a major population; by letting the entire "health care industry" live by a lower standard than others. If there is no sanction for deception (which is far different that malpractice) for this population, then why for the rest of us? Would you feel the same if your mother in a nursing home was the victim of deceptive acts and was harmed?

Dr. Amrani, who is the subject of the Supreme Court decision, is a butcher. Even his colleagues talk badly about him, which is very uncommon in the medical field. He has been sued multiple times and unfortunately won the majority of his cases. That translates into his victim patients losing their health and often their emotional stability. He is deceptive as well as a poor doctor. His victims are numerous--from a 16 year old boy who had treatable scoliosis until the good doc destroyed his back to the 80 something woman who was water skiing just a few years before he performed inappropriate surgery and paralyzed her. He still has a license to practice medicine. He is still being sued. He is exactly the type of service provider the KCPA contemplated...the Supreme Court simply clarified the law as it should be. Every professional should provide appropriate service and be honest in his or her practice. Every professional who does not provide appropriate service with integrity should be subject to sanctions. Is there so much deception going on in the health care field that these folks are afraid of daily publicity? If so, all the more reason for them to be part of the KCPA just like everyone else.

KKayhawk 8 years, 2 months ago

The plaintiff in Amrani (in fact in all the Amrani cases) was not looking for deep pockets. The plaintiff was trying to pay medical bills, make up for lost wages, and have some type of recompense for being severely injured. In addition, why should Dr. Amrani (or any other professional) be rewarded for bad behavior by being and "exception?"

Baille 8 years, 2 months ago

I am just quoting the PIK, James. But it seems to me that experts are needed in med mal cases to define what the standard is and to testify as to whether it was breached - but then only if a lay person could not reach the same conclusion without the aid of an expert. While this is almost always true in terms of a med mal case, it is also true in other kinds of cases that require expert testimony. There are a few rare cases where a med mal case can proceed without an expert, but I think that is more theoretical than practical. At some point, this whole discussion becomes more academic than is useful: is it the duty that is different or the standard?

I think more to the point is our discussion of the Amrani issue. You ascribe a certain motive to the injured party, KK says Amrani is a butcher. I am not sure either point takes us to where we need to be. The TRIER-OF-FACT found that Dr. Amrani lied about his procedure following a trial. Taking that as true, then why should Dr. Amrani not be responsible for paying for the cost of the procedure that he lied about, paying for the costs of any future procedures that may be able to fix the damage that he caused, and pay the injured party for their pain and suffering? Absent allowing the injured party to rip open Amrani's back and send him through some Code of Hammurabi/Old Testament ordeal, I don't see any other way to acheive a semblance of justice so that the tortfeasor does his best to make the injured party whole.

I take as true your assertion that this is not a case where a doctor did the procedure negligently. This is a case where the doctor did the procedure he said he was going to do and did it within the standard apparently. Otherwise, this would be a med mal case. This is not even a case where a doctor picked and chose what risks and benefits to discuss with the patient. That would be an informed consent issue and likewise would fall under the med mal category.

Instead this is a case where a doctor lied to a patient and told that patient the procedure would do something that it could not do. "Dr. Amrani represented that the surgery he was recommending had a high likelihood of successfully relieving her pain when, in fact, that surgery had been unsuccessful in the majority of cases where Dr. Amrani had utilized the same procedure. " That is deception and rightly falls under the KS Consumer Protection Act.

The holding is narrow: if a doctor intentionally deceives a patient about a procedure, they can be held responsible under the Kansas Consumer Protection Act. If not, the traditional rules of med mal apply. (Which by the way substantially favor the insurance industry in Kansas - but that is a topic for another day. :))

To me, that is good public policy. The Kansas Consumer Protection Act should apply equally to all professions and trades. Kansas citizens are protected no matter whether they are deceived by a stock broker, a snake-oil salesman, a tow-truck driver, or their surgeon.

Jamesaust 8 years, 2 months ago

"You ascribe a certain motive to the injured party, KK says Amrani is a butcher. I am not sure either point takes us to where we need to be."

Actually, that's precisely the point. You may need to read between the lines, but there's no malpractice case because there's no malpractice. Thus, the need for the creative application of KCPA.

We have here a wealthy defendant and a suffering plaintiff. One need know nothing more than the fact that juries find it "fair" to deliver compensation to plaintiffs under such circumstances regardless of evidence. Hence, the legislative limitation for such actions in most states. That such 'he said/she said' cases are virtually impossible to prove in the negative and lend themselves to this sort of 'Robin Hood' justice is exactly why states restrict such cases.

"The TRIER-OF-FACT found that Dr. Amrani lied about his procedure following a trial."

Actually, this case made its way to the Kansas Supreme Court because the case was DISMISSED on a motion by the physician that the court rule in his favor as a matter of law - that is, there is no recovery possible regardless of any facts because there can't be a KCPA action. This last point is what's reversed and sent back for trial (assuming the statute isn't changed first). I may be wrong but I don't believe that on remand to the trial court that a subsequent trial has occurred (its only been 2 and some months).

I'm especially troubled by your selection quotation: "Dr. Amrani represented that the surgery he was recommending had a high likelihood of ...." The quote is: "...Williamson alleged that Dr. Amrani represented that the surgery he was recommending had a high likelihood of ..." There's all the difference in the world between the actual quote and your out of context selection, which seems to imply that a court found this to be a fact. Not so. I am quite certain that the plaintiff did so allege since there wouldn't be a case without the allegation. But allegations aren't facts.

I'm not quite sure where this fantasy world exists where physicians are operating on people's spines, going around promising that "the procedure would do something that it could not do." Frankly, we all know that didn't happen. Nor was that even alleged by the plaintiff. The allegation was that the doctor didn't disclose his success rate, that it would be reasonable to do so to the average "consumer," and that if that had been so disclosed that the "consumer" would not have gone ahead with the procedure. In other words: if, if, if.

Which policy is good public policy is for the Legislature to decide, which it is doing. I suspect that it will take lessons from states that follow 'Robin Hood' justice schemes and run in the opposite direction. After all, aren't there enough Kansas who can't afford medical treatment already?

KKayhawk 8 years, 2 months ago

And why can't people afford medical treatment? It's not because of legitimate law suits, nor fair compensation for injuries. It is a systemic problem, which independent researchers say has no connection what-so-ever to medical malpractice lawsuits. Lawsuits do not raise insurance rates, nor do they drive doctors away. Insurance companies raise rates in order to make money, plain and simple.

Baille 8 years, 2 months ago

I stand corrected, James. I was too far ahead in the posture of the case for my "appropriate remedies" argument.

However, that the items I described as facts are only allegations at this point does not change the validity of that argument. We can break it down in two parts. First, in an SJ motion all allegations of facts, when supported by evidence, and inferences from facts must be taken in a light most favorable to the non-moving party. In this case, the controversy over whether Dr. Amrani materially misrepresented the efficacy of his proposed surgery must be taken against Dr. Amrani. Taking these facts as true, then we have a case where a doctor intentionally deceived a patient. Why should this not fall under the KS CPA?

Second, I don't see how this is gold-digging or going for the deep pockets. Taking it as true that Dr. Amrani intentionally deceived his patient then why should he not be held responsible under the KS CPA for ALL the harm caused by his deception? No more than what is due, but no less either.

You said this is a case of he said/she said. That may be true although neither of us has seen the depositions or other discovery. You say this case will fail on its merits and therefore shouldn't allowed to be brought at all. I disagree. Why should the fact that key issues remian in contention preclude a consumer case from being tried? This is a legitimate dispute. Let them have the parties have their day in court.

I am not sure I am operating in a fantasy world, although I apprecite your brief departure from civility, but I think the original letter guy had it right. These cases would be rare. It requires intentional deception.

You say it is a creative application of the KS CPA. The Court said it was easily seen within the plain language of the statute: "Although we are not concerned here with the applicable statute of limitations, Haag reinforces the point that actions under the KCPA are statutorily created causes of action. Nothing prohibits the legislature from creating a statutory remedy even in situations where a common-law remedy may be available. The plain language of the KCPA provides such a statutory remedy since a physician provides a service to a consumer. "

The Supreme Court found that the law was such that this claim ws supported. Now our representatives want to change the law. That is certainly their right, but as a citizen I am of the opinion that is bad public policy.

As for litigation costs raising the price of health care by increasing the cost of insurance, not even the insurance companies claim that:

"We have not promised price reductions with tort reform."

Dennis Kelly, American Insurance Association spokesman, Chicago Tribune, January 3, 2005.

http://centerjd.org/air/pr/Quotes.pdf

Baille 8 years, 2 months ago

"I'm not quite sure where this fantasy world exists where physicians are operating on people's spines, going around promising that "the procedure would do something that it could not do." Frankly, we all know that didn't happen. Nor was that even alleged by the plaintiff. The allegation was that the doctor didn't disclose his success rate, that it would be reasonable to do so to the average "consumer," "

That wasn't the allegation, James. Rather the claim is as I characterized it. Dr. Amrani allegedly claimed the procedure he was offering would do something that it had never done before - or at least had not doine very often. This discrpeancy between what was said and what realityof teh situation was not based on Dr. Amrani's success rate with procedure but rather in teh actual outcomes of the procedure standing alone.

"According to Williamson, because this is not an informed consent case, there is no need for expert testimony to establish whether a physician has a duty to reveal his or her level of experience and success rate with a particular procedure. Rather, the relevant question is whether Dr. Amrani knew that the surgery he was recommending was not likely to produce the beneficial results he was promising."

It is not that "...the doctor didn't disclose [HIS] success rate..." (emphasis added) but that the doctor did not disclose the very low likelihood that the procedure itself would do what he said it would do. That fine distinction moves the case from one of informed consent to one of consumer protection.

In other words, if Dr. Lastname had failed to state "I perform Surgery X correctly only 25% of the time" that would be a case of informed consent. On the other hand, if Dr. Lastname tells a patient "Surgery X makes teh pain go away in 95% of patients" even though he knows it only does so in 15% of patients that is a case that would fall under the KS CPA. The Amrani case appears to be a CPA case and not an informed consent case.

Baille 8 years, 2 months ago

I tell you , James, the level of intricacy and interplay between the claims is fascinating.

"This case arose after Tracy Williamson sought treatment from Jacob Amrani, M.D., for a disabling back injury Williamson had sustained 14 years earlier. Dr. Amrani recommended that Williamson undergo lower back surgery for an L4-5 and L5-S1 fusion involving BAK cages (a surgical device) and an iliac crest bone graft. Dr. Amrani performed this surgery on Williamson in May 1999. When Dr. Amrani saw Williamson again in August 1999, she was still experiencing pain in her lower back and left leg. Dr. Amrani recommended a second surgery involving removal of the BAK cage at L4-5. Dr. Amrani performed the second surgery in October 1999.

"Williamson filed suit against Dr. Amrani. In an amended petition, Williamson alleged that Dr. Amrani engaged in deceptive acts and practices in violation of K.S.A. 50-626 and unconscionable acts and practices in violation of K.S.A. 50-627 by making representations to Williamson that the surgery he would perform would have benefits that, in fact, it did not have. Specifically, Williamson alleged that Dr. Amrani represented that the surgery he was recommending had a high likelihood of successfully relieving her pain when, in fact, that surgery had been unsuccessful in the majority of cases where Dr. Amrani had utilized the same procedure. Williamson alleged that Dr. Amrani had willfully misrepresented or concealed material facts in that he knew or should have known that the surgery he was recommending had produced "bad results" for a majority of his patients.""

In essence one has two claims arising from the identical circumstances: one under the KC CPA - unless amended - and one under the theory of informed consent. The informed consent claim could fail based upon the standard set by other doctors while the CPA claim could continue base upon a willful misrepresentation of pertinent facts.

Jamesaust 8 years, 2 months ago

Well, it has been an interesting discussion but I'm uncertain whether this forum supports or impedes easily arriving at a conclusion to the matter. Oh well, here goes.

"In this case, the controversy over whether Dr. Amrani materially misrepresented the efficacy of his proposed surgery must be taken against Dr. Amrani. Taking these facts as true, then we have a case where a doctor intentionally deceived a patient."

I don't agree. The efficacy of treatment is an either/or point - its either within an appropriate range of treatment options or its not. The treatment was obviously efficacious or else a straight-forward malpractice claim would have been brought. That such a course of treatment is capable of a desired result does not produce any guarantee that it will. Nor do physicians make such guarantees, not even on tv dramas or in the movies. I'm sorry if you feel reference to a "fantasy world" to be uncivil but that is an apt description of such a place where such promises are made to patients. Had there been sufficient evidence of such a claim the physician would have suffered discipline from the state medical board.

Instead, this plaintiff alleges ONLY that (a) the physician did not disclose the physician's 'success rate' for the procedure, (b) that such disclose is expected from the patient/consumer's reasonable view - not from the medical standards of care, and (c) but for this nondisclosure the course of treatment would not have been pursued. Here, I can't tell from the case whether nothing was disclosed or whether the disclosure, in the patient's subjective point-of-view, was inadequate. Also, it seems self-defeating to claim that disclosure is reasonable if the patient didn't ask for disclosure (again, the claim is not that the doctor lied but that the doctor did not say adequately or at all). Finally, God - and the plaintiff - are the only parties who know what judgment would have went on inside the plaintiff's head if some unspecified degree of disclosure occured. I believe the common folk call this "guessing."

The Court did indeed find that nothing in the KCPA pointed to an exclusion for physicians by not seeing the forest for the trees. Common law, case law, statutory law all in Kansas are replete with significant regulation of the physician/patient relationship. It is just as plausible that the Legislature felt it had already dealt with this relationship because it was unlike the relationship of a "supplier" and "consumer" in the ordinary, commercial sense.

Whether its good policy, reasonable people can disagree. But I submit that a 'one size fits all' policy - equating spinal surgery with, say, lawn care or bakery sales - doesn't serve the needs of patients seeking medical care particularly well. Driving up costs, or just as likely, driving physicians out of the state, doesn't cure anyone, or anyting, except tort lawyers' need for shinier race cars or Tahitian vacations.

Baille 8 years, 2 months ago

"Nor do physicians make such guarantees, not even on tv dramas or in the movies."

I think that is why it was said these types of cases are or will be rare. A doctor willfully deceiving a patient is rare.

There are three types of possible claims in the Williamson case:

  1. Straight medical negligence. Does not seem to be present.

  2. Informed consent. May or may not be present. Need an expert because it involves a phsycian's judgement and a trial.

  3. KS CPA. May or may not be present. May need an expert for subject matter - but willful deception could stand alone without expert testimony.

Here the claim is that the doctor willfully deceived the patient by not telling him the operation had never (?) (rarely?) done what the doctor claimed it could do. It sounds to me like it is both a lie of commission as well as ommission at issue here. The question is whether it is good policy for 3. to go away just because there may be a claim under 2. I don't think it is.

The Court addressed, analyzed and dismissed the "comprehensive med mal" scheme argument. They disagreed with your second to last paragraph; however, I think the point by point analysis is better suited to a different forum. Our posts are dense past the point of reasonableness and we are just skimming over the generalities.

Finally, there is againthis suggestion that litigation is driving up health care costs and driving doctors away, but that is unsupportable - or at the least highly contested. There are systematic problems with health care - this is true. But litigation isn't a part of it.

And those lawyers driving the little fancy cars with the vacation homes in Tahiti? I bet you a dollar to ten they are insurance defense attorneys. I mean, you gotta ask yourself James, if there was so much money in plaintiff's work why do the defense firms own all the big skyscrapers downtown? :)

Jamesaust 8 years, 2 months ago

"I think that is why it was said these types of cases are or will be rare."

Agreed. But unfortunately rare cases can still cause the entire system to be turned on its head. Its "rare" for a person to be struck by lightening but people still scramble for cover when they see the flash.

As is often said, bad cases make for bad law.

Jamesaust 8 years, 2 months ago

I was also going to make a point about lawyers not weeping for the doctors (sort of a cats vs. dogs situation) but another reason why this should be a concern involves legal advice given to clients by lawyers. My God, I can't imagine how wide the floodgates would be if every disappointed litigant sued their attorney claiming that the degree of disclosure about their case didn't meet some reasonable average person standard and that their attorney now owed them a "successful" result. As it stands (or at least stood before January) plaintiffs have to sue for malpractice and show (a) there was malpractice and (b) they would have won - and civilly, (c) how much they would have won.

jafs 8 years, 2 months ago

Doctors should of course inform their patients of the probable outcome of any procedure they are recommending - it's common sense.

If they aren't doing it, they should be required to do it.

The obvious financial incentive which may influence doctors to do expensive procedures/surgeries is clear to me.

Allowing doctors (or lawyers, real estate agents, etc.) to set/enforce their own standards is clearly a mistake.

jafs 8 years, 2 months ago

On a personal note, I went to a dentist after not having seen one for a while.

He recommended a set of very expensive and invasive procedures - crowns, which destroy the foundations of your teeth, and a host of other things.

Feeling that this was perhaps unnecessary, I took his recommendations to another dentist, who confirmed my feeling. He said much of the list was not necessary, and crowns were too destructive.

I went to him, he replaced some fillings, and the total cost was a fraction of the other dentist. He also said something like "He must have a lot of school loans to pay off".

So much for trusting our health care professionals to have our best interests at heart.

Jamesaust 8 years, 2 months ago

"it is next to impossible to sue a doctor in that you must have very clear negligence and unusually high damages."

Since there's an entire industry devoted to suing doctors I find this not entirely accurate. What's more, why would you want to sue doctors absent clear negligence and actual damages?

It seems exceedingly strange to present yourself to the physician injured or sick and say "heal me, and if you don't live up to my expectations, I'll sue you."

For the little guy? Look, we've seen whole states in the last decade or so drive physicians out of the business or, more often, out a particular state based solely upon that state's unacceptable "looting" of hospitals, physicians, and other health care providers. How the Joe-Sixpack benefits from that I'm uncertain. But I am certain that all of the little guys will be paying for it.

For me, I want my physican focused on medicine while she treating me, not on the checklist of "do's/don'ts" that her partners, her insurance carrier, the partnership's attorney, and her personal attorney have told her to get done first. This matter isn't about the black-and-white of wrongdoing (where we already have problems with sympathetic juries producing awards where no negligence exists) but rather how much gray can be engineered into the system to produce the maximum amount of green.

Baille 8 years, 2 months ago

"Since there's an entire industry devoted to suing doctors I find this not entirely accurate. What's more, why would you want to sue doctors absent clear negligence and actual damages?"

That wasn't what he said. He said that in order to be successful one must have clear negligence and unusually high damages.

Why sue a doctor absent clear negligence? I don't know. What is clear to one person is not clear to another. Doesn't seem a bad idea to me and in fact that is how it plays out.

Unusuall high damages? Yep. In 95% of the case, the attorney has to front the case expenses. In a med mal case, these can run $40,000, $50,000, $60,000 and even higher dependningon the number of experts and defendants in the case. Someone comes in with no insurance and $30,000 in medical bills incurred because of medical negligence can't get the write-off that insured patients and Medicare recipients enjoy, and they are going to have a hard time finding an attorney willing to invest $50,000 in a case that would only produce $10,000 - $12,000 in fees.

The average joe with losses under $100,000 have been pushed out of our civil justice system. They can't get insurance so they get screwed with huge medical bills and they can't get an attorney to help them get compensation for their injuries.

Same logic holds true for these so-called "frivolous" lawsuits. No experienced med mal attorney will sink tens of thousands of dollars in marginal case. When they make it through, something went south during discovery or it was brought be an inexperienced or neophyte attorney.

I keep hearing a lot of talk about litigation driving lawyers and hospitals out of business. That is bunk. The number of doctors is increasing nationwide. The insurance industry is enjoying record profits - and they admit freely that gutting the civil justice system in regards to medical negligence does nothing to reduce premiums for doctors. Regional hospitals are doing well, too.

It would be great if the medical community would police its own and get rid of doctors who repeatedly commit malpractice. It does not. It would be great if there was a mechanism within the medical community where victims of medical negligence could use to get just and fair (no more - no less) compensation for their injuries. There is not. It would be great if no one needed a medical malpractice attorney, but unless you want to revert back to an eye-for-an-eye, a bad laminectomy for a bad laminectomy, then what we have is the best system in the world for helping the little guys face off against one of the most powerful professions and industries in America.

There is no problem in Kanasas with "sympathetic juries" producing unjsut rewards. Do a quick case review of medical malpractice cases filed in Kansas. It is brutal for a plaintiff. Gray favors the doctor. The law favors the doctor. Our juries favor the doctors.

Jamesaust 8 years, 2 months ago

"It would be great if the medical community would police its own and get rid of doctors who repeatedly commit malpractice. It does not."

And so you're working to "reform the system"? Via "jackpot" juries?

You know, we've already addressed the problem with tort plaintiff lawyer availability. It wasn't that long ago that taking a percentage of your client's recovery - rather than charging a fixed fee - would have gotten an attorney disbarred due to the unavoidable conflict of interest that results from blurring the line between the client's best interest and the attorney's financial interest. Believe it or not, it is often in the plaintiff's best interest - even if not the tort lawyer's - to settle up front for cash in hand.

Now, of course, we have a progressive system whereby lawsuits are pursued with an eye to maximum recovery via the securitization of a portfolio of lawsuits (a tort attorney need only win one whopper to pay all his expenses and still buy that $10m house) - all while the injured client goes without the cash he needs now to cover his bills and avoid foreclosure on his own $100k house.

Anyone who has ever read instructions warning things like "Do not operate toaster in water" or "Packaging not intended for consumption" is well aware of the absurdity of this system.

Here, I believe you've revealed your hand. I don't really see anything about the merit of this lawsuit but rather a simplistic 'David v. Goliath' approach. The case at hand has NO malpractice. What's more, the crack about insurance companies reveals the misplaced incentive of such cases as one of the very first things that discovery will produce is exactly how much insurance coverage exists (often query #1) - often followed by the physician's personal net worth.

"Do a quick case review of medical malpractice cases filed in Kansas. It is brutal for a plaintiff."

I agree. And that's precisely why Kansas does not - up unto now - have the crisis in medical availability that more "progressive" states do. That's your choice: a system focusing on merit or jackpot lawsuits and the disappearance of doctors who will do things like deliver babies. Here, we have a case with a defendent who didn't cause plaintiff's pre-existing injury and who provided a course of treatment within the standards of the profession, but yet must face an unaccountable jury with carte blanche control over the doctor's bank account. Hmmmm....sounds Kafkaesque to me.

Baille 8 years, 2 months ago

James, you want to protect the insurance industry from having to pay out legitimate claims. I don't.

If the insurance industry is so worried about the patient going without medical expenses and the home mortgage not getting paid, it is free to pay for those items before or during litigation and use the payments to reduce the award at the time of judgment. I would think such payments would be inadmissible to prove liability or the scope and nature of the damage caused.

We go around and around about this shortage of doctors, but that is not gospel. There are studies to support that there is a shortage of some specialties in some areas and reports that there are more physicians now than ever and that doctorin' is a growing, in-demand profession.

In any event, trends in the availability of doctors and the ever rising cost of insurance premiums can't be blamed on civil attorneys. Even the insurance industry admits that is not so. To the miniscule degree that civil judgments and settlements impact the cost of health care, it is the negligent doctors underlying those cases that bear the responsibility. Unless you are calling the vast majority of our juries who award judgments in medical negligence cases stupid...

Frankly, I agree that the system can be improved, but I am not sure what it would take to make it better. Taking away access from teh courts or letting doctors who commit acts of medical negligence off the hook won't make it better, but if you have some sort of scheme to improve things, I would like to hear about it.

But c',mon, let's not get all cutesy. The fact is that insurance companies don't want to pay, doctors don't want to admit liability, and civil attorneys need be paid a reasonable fee for what they do. If the client wants to cover the expenses of a trial and pay by the hour (insurance company lawyers) or by a fair flat rate those options are available. If the marketplace makes that payment model competitive it woudl thrive. It doesn't, so it isn't.

Further, you say the instant case does not have a malpractice component like that is some sort of got ya moment. It isn't. I agree. It seems there was no allegations of malpractice in this case, but that isn't the claim. The legal claim is not that the surgeon performed the surgery negligently, it is that the surgeon lied about what the surgery would do for the patient. That is precisely why this claim was properly brought under the Kansas Consumer Protection Act. That alleged act of willful deception makes this not a case of professional negligence - which every professional (doctor, lawyer, accountat and so on) must be wary of - but a case of deliberate deception, which almost no health care provider need ever worry about.

Jamesaust 8 years, 2 months ago

"it is that the surgeon lied about what the surgery would do for the patient."

No, its not. And we've gone over this enough that I'm surprised you're still saying that.

Nor is the case about deliberate deception. The allegation fell under 50-627 as a "misleading statement of fact," and "misleading" by omission at that. Frankly, I'm unaware of any failed medical treatment that could not plausibly be alleged to be the result of a "misleading statement of fact." After all, who volunteers for unsuccessful treatment?

What's more, "deliberate deception" is another way of saying "fraud." I notice that common law fraud was not the claim. Why? There are nine classic requirements to prove fraud. By my count, not one of them could be proven (at least, based on the facts presented by the Court).

The case is about a fact not revealed that the plaintiff claims to be critical to their consent - a fact that (a) the plaintiff didn't ask about, (b) wouldn't be relevant if the course of treatment was successful, (c) isn't relevant to the efficacy of the treatment, and (d) is critical only based on the plaintiff's after-the-fact allegation that they subjectively value that unspoken fact. And that's precisely why the entire medical community of Kansas is up in arms and demanding legislative action.

I'm not a doctor. I don't work for any medical facility. I have no financial interest in any insurer. I've never worked for any insurer. But I do not believe liability floats around in the air waiting to land randomly. Nor do I believe that 'more' liability is better, let alone that the KCPA or anything like it is well suited to the subject matter at hand.

What's shocking is that the entire KCPA matter turns on whether the practice of medicine in a consumer transaction. While, as the Court correctly pointed out, the KCPA does not define "consumer" so narrowly that medical services are excluded, the entire STATUTORY CODE of Kansas is replete with references to "consumer" and "consumer transactions" (and also extensive regulatory treatment of medicine) that DO narrowly define the term as to exclude medical services. And that's what I (and upon re-reading I notice the dissenting Justice) object to - a 'forest for the trees' interpretation. There's nothing in the KCPA that indicates that the Legislature intended a revolution in the concept of medicine by turning medical treatment into a consumer action akin to buying bubble gum. (And, again, not a single citation to a single case anywhere with this model statute coming to the same conclusion as the Court did here.)

jafs 8 years, 2 months ago

Telling a patient that a procedure is likely to help them when it isn't is lying.

Doctors shouldn't be able to lie to their patients.

Recommending a treatment option without telling the patient that is has been successful in only a small percentage of cases is omitting an important fact.

Doctors shouldn't be able to do that.

Patients already have to be far more educated and assertive about health care than they should, in my opinion.

"They didn't ask, so I didn't mention it" is not a reasonable defense.

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