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Need to Know: January 25, 2013: Do no harm and Danish medical courts

On the second of two inauguration specials examining the advocacy group “Common Good’s” proposals to end bureaucratic gridlock and get the United States moving forward, “Need to Know” anchor Jeff Greenfield explores how malpractice lawsuits contribute to rising healthcare costs. Correspondent William Brangham travels to Denmark, where medical disputes are settled by experts without ever going to court.

Read the full transcript.

Support for this program is made possible by: Perry and Donna Golkin Family Foundation, The William and Mary Greve Foundation, and O’Shaughnessy Family Partners LLC.

What’s on this week:

Do no harm

Every year, one in 14 doctors in America will be sued for malpractice. Most lawsuits will be dismissed, or resolved in favor of the doctor; but the cost of insuring against such suits can be huge.

The Danish option

A closer look at how medical malpractice is handled in Denmark, by taking litigation out of the equation completely. Supporters of the system say it makes it easier for doctors to practice medicine, and for injured patients to get compensated quickly.

Prescriptive policies for medical malpractice

Can the U.S. change its costly court-based way of dealing with medical mistakes?  Stuck between tort reform and patient’s rights — see what some states are trying.

Watch more full episodes of Need to Know.


  • Steven

    The challenge will be to answer the legitimate concerns of plaintiffs, lawyers, and doctors. Right now the real losers are the average patient. It might take the laboratory of a State to test new ideas. I don’t think the free market has the leverage or motivation to bring change. Indiana is presently proposing the Canadian approach (the loser pays all costs) across the board is all lawsuits which seems to reach too far. I think rewards must have real teeth in extreme cases or it must be easier to suspend or revoke a physician’s license.

  • S.B. Lokwood

    Re Jan. 25 show: Why was there no discussion about state medical societies lack of action to revoke licenses of incompetent physicians? This would surely bring down the “heavy burden” of malpractice insurance and litigation since the rotten apples would be culled from practicing. Or do we have the equivalent of the Blue Wall of Silence?

  • Concerned

    Doctors In the state of Missouri thought Tort Reform Law would lower the cost of their malpractice insurance. Tort Reform passed, however, the doctors malpractice insurance cost did not go down even though their claims went down. How can this be explained? I think this is part of your report “Do No Harm” and needs to be checked into. Thank you.

  • The EDNC

    A very good program and yet you missed the larger issue. Neither the US system nor the Danish system is set up to weed out the bad doctors, a major cause of medical malpractice lawsuits and rising costs. Sure the goal is to reduce costs by holding down malpractice insurance rates for physicians, but both systems allow these careless physicians to continue practicing regardless if mistakes were made. In Denmark, what’s to stop them from doing the same error over and over? There’s no punitive damages…. none! In Dr. Marty Makary’s great book, ‘Unaccountable’, he states that when large groups of doctors in the US are asked if they know a colleague that should not be practicing medicine, everyone of them holds up their hand… everyone of them! What does that tell you? If doctors truly wished to hold down the cost of medical malpractice insurance, they should report dangerous or careless physicians and run them out of the business. Another way would be to open up the National Practitioners Database, which is taxpayer funded, for review by the general public. Only then will bad doctors be driven out of business thus having a greater impact on holding down costs than the current system in either country.

  • Jan Kroes

    A very important factor that one cannot forget: rewards in courts across many European countries for medical malpractice have historically been small because the State welfare system will provide for those injured patient for the rest of their lives. The welfare system providing medical and social welfare/aid is the main reason why rewards in courts for everything from medical malpractice to lawsuits concerning product liability claims such as injuries or deaths related to defaults in cars or other products are so small in comparison to the USA. It’s not because Europeans are stingy, but because high payments are not required when the state’s welfare system will cover such injuries.
    Weeding out bad doctors is another issue. Another issue that needs to be addressed is whether or not the systems in the USA or Denmark (or even Canada or other European countries) discourage mistakes in the first place (for both medicine and product defaults). I state product defaults because, like American medicine, they are both driven by profit. Theoretically, if high payouts in an American court encourage manufacturers to produce good products or recall bad products, could not the same be said of American doctors?

  • EMW

    The trial lawyer in this program, as with most malpractice lawyers, talks about the preventive value of malpractice litigation. He tells us that a physician who is sued for malpractice will closely examine why this happened and change his behavior in the future. What is the evidence for this? Babies continue to be born with cerebral palsy at the same rate and almost nothing has changed after all the years of medical malpractice litigation in this country. If lawyers are trying to improve how medicine is practiced in this country, they are clearly failing.

    The trial lawyer admits that the system often includes a “fishing expedition”. He implies that the lawyer is looking around for the person who is responsible for the bad outcome. Not true. The lawyer needs to spend money for expert witnesses and his investigation. Under the contingency fee system, If he does not come up with a deep pocket, he will lose money. Once financially invested, what percentage of lawyers do you think are more interested in justice than return on investment? I have been an expert witness in many malpractice cases for over 30 years. What they are looking for, in reality, is as many deep pockets as possible whether there is fault or not. One of them, in a moment of honesty, once told me “find me an injury and deep pockets and I will find you the causation”.

    It’s a crooked system. Doctors who know they are bad find ways to protect themselves. Good doctors realize how vulnerable they are and that mistakes and bad outcomes are inevitable. Trial lawyers tend to go by the standard of “worst case medicine”. The worst thing any headache could be from is a brain tumor. “Failure to diagnose” a brain tumor at the first office visit can result in a lawsuit for delay of treatment. That could cost you more money than you will make in a lifetime. What would you do? Cross your fingers or order an MRI?

  • BrandeisPhD

    For the record:

    On June 27, 2012, the New Hampshire Legislature made history and placed
    our state at the forefront of medical malpractice reform by passing Senate Bill
    406, the first “Early Offer” bill of its kind to become law in the
    country. This law will be effective on January 1, 2013. The law provides a
    statutory framework for an optional alternative method of settling medical
    malpractice cases. The basic premise behind the law is simple. In exchange for
    the ability to receive a speedy and certain settlement of a claim within 4-6
    months, a plaintiff forgoes the ability to receive compensation for some non-economic
    damages. The guiding principle of the law is that it is completely voluntary
    for all parties. Neither side can ever be forced to participate in the Early Offer
    process against its will.

    Please refer “Early Offer” under the new RSA 519-C.

  • Anonymous

    The program evidences the entire lack of knowledge about how the judicial system works in medical malpractice cases in this Country. I can speak about one state, Georgia. There are no “frivolous” medical malpractice lawsuits in Georgia. Before a malpractice suit may be filed in the state of Georgia, a medical doctor must review the medical records and provide an opinion that an act of malpractice was committed. It is done by means of an affidavit which is taken under oath and under penalties of perjury. There must be such an affidavit for each hospital or doctor who is sued. That prevents the so called “fishing expedition” which some may be complaining about. Not just any doctor is allowed to present such an affidavit to the court. Only certain doctors who are qualified in the area of expertise which is being complained of, who has been continually practicing in the specialty for a period of time or is a professor in an accredited medical school may present such affidavit. Most lawyers who specialize in medical malpractice suits reject 8 or 9 out of every 10 clients who come to them for representation. Malpractice lawsuits are very expensive. Few clients, if any, have the money to pay specialists to review these issues and pay for costs of discovery. Out of pocket costs for pursuing these lawsuits will normally reach $50,000 to $75,00 or more. The insurance companies engage the very best defense attorneys. One of the strategies is to make it as difficult as possible for the injured patient, regardless of the negligence or the extent of the harm. And, keep in mind that there are always threats, implied and sometimes made express, made by the insurance company directly against the injured patient’s attorney to prosecute the injured patient’s attorney under the rules of the court for allegedly filing “frivolous” lawsuits. Keep in mind that the negligent doctors are usually in denial – their license to practice can be in jeopardy – they DENY, DENY, DENY. They can, and sometimes do, “clean” up the records after that fact. They know about their negligent act at the money it happens. So there is plenty of time to “clean” the records to make it look good. It is much easier for them to hire their colleagues in the profession to support them. Few doctors are even willing to become involved in these lawsuits on behalf of an injured patient. There is a conspiracy of silence in the medical profession. There are many other burdensome rules which benefit the hospitals and doctors. I will not go into them. The bottom line is that the effect of all of the advantages which the justice system gives to hospitals and doctors results in 200,000 preventable deaths each year of which only 4% result in a lawsuit. The medical profession has not done much to clean up its profession. It has taken some very good trial lawyers to represent seriously injured patients to make the hospitals and doctors finally realize that they must improve their standards.

    Finally, the medical profession, and politicians, have demagogued this issue for the last forty years in the media and in political campaigns. The appeal has been to the fear of the electorate. It is now very difficult to find a juror who is not persuaded that the injured patient’s attorney is satan himself while the insurance company’s attorney is Jesus Christ. It is why the insurance companies win 70 – 80 % of the cases they try.

    The politicians, the demagogues, control our fate in these matters. They will not allow open, honest, principled dialogue about these issues. This program is evidence of it. SHAME for not drilling into all of the readily available facts. Do some real investigation and then get back to me.

  • Anonymous

    Everyone who has commented is totally correct and particularly WachetAuf. I had back surgery in 2000 that was to have been from 2-6 p.m. My surgeon also had surgery in the morning at another hospital John Muir in Walnut Creek. No one at the hospital told me about the horrendous errors or problems that occurred that made my surgery go past 10 p.m. I did not wake up until 36 hours later and was in so much pain the morphine drip did nothing. The nurses were so concerned they called Dr. Nottingham at 5 a.m. Sunday as to what should be given to me as pain medicine because I was histerically crying so much. The surgeon had to call my past pain doctor and he told my surgeon what to give me that stopped the pain. Problem was when I woke I could not move my left leg or feel it either for 5 days. I was not told that I was going to now have to wear a big turtle shell because of my L2-L3 & L3-4 removal and fusion. The contractor that came to the hospital 3 days after my surgery stated he had just been called to come to the hospital to make the “turtle shell”. I could not be released from the hospital until I could move my left leg. I was in the hospital for 7 days. It took 6 months for the feeling and use of my leg to disapate and it was replaced with a new pain of massive proportions in my front thigh that has never gone away and this is why I got social security disability. When I got a copy of my medical records nothing was in my records at the hospital or my surgeon about all the complications or problems. Doctors and hospitals do not put bad info in your records or I have even had it changed after I have seen my records. I have not had a single doctor that could write correctly what has actually been discussed at office visits and my medical records have massive errors that I am trying to even get amendments entered that doctors fight to prevent. I could not get a single attorney to take my case because my surgeon was too prominent in the community even though every doctor I saw afterwards told me the surgeon caused my new disability. Our local county medical clinic at Contra Costa Regional Medical Center that had been my primary care doctors since 2000 would not give me a copy of my records after I paid to receive them and only got a partial copy after I complained to my county supervisor about not receiving my medical records. This is now 2011 and since my back surgery have also been complaining of severe daytime sleepiness and cannot sleep longer than 90-120 minutes at a time at night with morning headaches. I repeatedly went back to my primary care doctor trying to find the cause and I diagnosed my own illness when I demanded a sleep test and discovered I had severe obstructive sleep apnea. My primary care doctor did absolutely nothing about the test results and did not refer me to any specialist to treat my illness. I had to leave that medical clinic and why I asked for a copy of my medical records. I learned that in 2005 another primary care doctor had diagnosed my obstructive sleep apnea but had never told me or ordered the sleep test. When I eventually was allowed the second time to look at my medical records but not get a copy a Huge orange sticker was on all three files stating “return to Legal”. I was so shocked at what I had seen that was not in my medical file. Not a single doctor could write why I was coming into see the doctor or write my symptoms correctly. Ever since I hand new doctors a form stating my office visits will be voice recorded and before they can submit any bill to Medicare I have to verify the correctness of what the doctor has written because all the doctors I have seen are totally incompetent in this country. I saw an Ear Nose & Throat doctor for a lengthy exam and consult of three sleep tests because I wasn’t improving with Bi-pap therapy and he told me my anatomy was such that only a tracheotomy surgery would help my severe obstructive sleep apnea. I sent him a confirm letter regarding what had been discussed and when I returned to him for the surgery the doctor could not remember what he had told me about his original consultation and wanted to do a different surgery than the one he told me was needed. I do not trust a single doctor because of all the bad doctors that I have seen and this is why I am dying from total lack of sleep and am bedridden. If any lawyer wants to contact me will gladly talk to them :email put lawyer in subject line. I live in the East Bay of San Francisco.

  • Anonymous

    Forgot to comment that my first sleep titration test was read incorrectly by the sleep specialist because my pressure continued to go up until it was at 17 at the end. This doctor orders a Bi-pap and violated Medicare rules which state a Bi-pap machine cannot be rented longer than 3 months if no improvement. I was continuously complaining no improvement and also that I did not think my machine was working either. She would not order another sleep test so I left and got a second opinion and this specialist tells me the first specialist had not read my test correctly because NO PRESSURE STOPPED MY SEVERE OBSTRUCTIVE SLEEP APNEA. The second test confirmed that no pressure prevents my apneas in REM but he wil not write in the report that I was seeing him for a second opinion because the first specialist was wrong. Doctors have this rule that states, “though shall not speak ill of another doctor”. He puts in my medical report that I am seeing him just because of the date of when I was first diagnosed. I wrote the second specialist about what the Ear Nose and Throat specialist stated and he tells me he will not speak to the other Ear Nose & Throat doctor as to my anatomy problems and why CPAP will have no effect. I voice recorded this conversation and have always sent written correspondence after all medical office visits because my medical records have been written incorrectly. This is why bad doctors still are in the medical profession hurting people or not giving them any medical care. I am now filing fraud complaints to Medicare for every doctor that has cost Medicare and my health is worse afterwards and 3 Respironic Bi-paps have failed within 24 months. I even wrote my Congressman that included all letters I have sent regarding bad medical care that is costing Medicare now over $20,000 and I am worse not better. The Medicare supplier that gave me the malfunctioning Bi-pap machines did not care that the machines were not working and they did not want to take the machines back because they were not working even though they had a two year warranty. Only after I contacted the manufacturer Respironics to complain about the Bi-pap not using any water in the humidifier was the supplier made to take the machine back. After the third machine did not work I just wrote a letter to the original doctor I was not going to accept another non-functioning machine and she had violated Medicare rules in continuing to state in my medical records that the machine was making my illness better. I was getting worse and I have written documentation in letters to the doctor. She is also an owner of the sleep center that did the original sleep test. I now have written Medicare fraud division. This is why Medicare is spending so much money for the elderly and disabled because the doctors and suppliers do not care if you get well or if you get any competent medical care. They all know that no one gets punished for bad behavior!

  • Anne

    Well done show especially the Danish solution…..albeit succeeding in a country much smaller than ours. Riveting ideas for the U.S. to pursue along with hopes to find a way to eliminate incompetent doctors to begin with. Bravo, Need to Know!

  • petey

    Texas capped malpractice at 250k and my premiums and deductibles have risen as if nothing had been done to stop the frivolous lawsuits, I would not vote again for lawsuit reform, ever

  • petey

    because like the legal profession there is very little integrity at all anymore

  • Conor Mccartney

    that isn’t what the general counsel of our hospital told us, they told us that our malpractice insurance has been doing fantastic compared to what people just across the river in illinois deal with.

  • curmudgeon

    In the program on the young woman who had kidney failure, I didn’t hear about any corrective action taken with the doctor who told her that it was all in her head. Identifying a problem, taking action to help the patient, and then compensating them for the failure is one thing, but there needs to be a structured program to make the necessary improvements to reduce a repetition of the problem.

    This particular case seemed to be a repeat of an oft stated complaint; male doctors not taking the symptoms describe by female patients seriously and dismissed with the comment that it is all in your head.