A Lemon Law for Medical Consumers?

From Hannah Montana to drive-by shootings, there is plenty of interesting news in Cincinnati, Ohio today.  But to me, your friendly patient advocate, an even more fascinating topic was reported in Cincinnati’s news this week:  the possibility of a lemon law for medical consumers.

To me, it’s one of those “now why didn’t I think of that?” ideas!

A woman named Betsey Exline gets the credit here.  Last spring she went for a routine colonoscopy, which was botched, and she ended up with emergency surgery and a stay in the hospital for eight days. 

Nine doctors, the emergency surgeons and the hospital then billed her for the insult.  Can you say “unmitigated gall?”

Should she sue?  She could, although lawsuit cost estimates range into five figures and she’s not getting any younger.

Instead, this very wise woman took a very different approach.  Bless her heart, she’s not looking to make money from this error which she will suffer from for the rest of her life.  She just wants someone to pay her bills.  She just wants someone to recognize that it should not be her responsibility, or her insurance company’s responsibility, to pay for the errors caused by others.

Hello?  Duh!  That just makes so much sense!

So Betsey contacted her local Ohio state representative and is now pursuing the introduction of legislation that would, in effect, force those who caused the errors to pay for the errors — but not through the courts.  Instead the legislation will create a consumer protection process for medical errors. Those who caused the errors will be required to cover the costs that result from their errors.

And if it becomes law?  The doctors win because it will cut down on lawsuits.  The insurance companies win because it will cut down on lawsuits, too.  And the patients win — at least to the extent they won’t have to pay those unfair bills.

(And who will stand in the way?  Of course, those lawyers who handle medical error victim lawsuits.  but that’s another blog post for another day.)

Wish I was in Cincinnati, Betsey.  I’d find you — just to shake your hand.  You’re a fixer of the first order.

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8 Responses to “A Lemon Law for Medical Consumers?”


  1. 1 Marc J November 2, 2007 at 7:29 pm

    As a physician, let me outline why this is a horrible proposal. First, no physician likes a complication and for all intensive purposes will avoid such situations if at all necessary – although I would agree that there are physicians who will do things needlessly at times, this is by and far a minority of docs. Lemon laws would encourage physicians to do less for patients because ALL procedures have an unavoidable complication rate. A similar type of situation existed in California a few years ago whereupon the legislature voted to allow women to sue Anesthesiologists for the rare instance (~1-2%) of getting a puncture headache from an epidural for labor. They were allowed to sue to recoop the cost of the hospital stay as well as for pain and suffering. What ensued? Anesthesiologists simply stopped doing epidurals for labor – after all noone ever died from pain of childbirth. Everyone happy now? No….women were flocking from California to Oregon/Arizona etc… to have their babies and eventually this practice of suing for an unavoidable complication was repealed. I am an Anesthesiologist who has performed over 1500 epidurals – I have only had 5 instances of a puncture headache which is well below the documented rate…I would take this to mean that I do a good job with this procedure…should I then have to pay a patient if this should happen? (which it will – eventually). You can run as fast as you want, but you cannot beat the statistics. Would you like to have GI docs stop doing colonoscopies because some people will have an inadvertant bowel puncture with subsequent surgical repair. I suppose the colon cancer rates would go up, but hey, everyone’s happy right? And by the way, lawyers will continue to sue regardless of any legislation passed because guess what…lawyers are the ones making the laws. You love to advocate for patients, so try this…If the patient are worried about the potential complications, then they should not have the procedure. We don’t tie patients up and stick hoses and tubes in tham against their will. You continually advocate patient empowerment and then wail and complain when a patient has a problem. Trust me…noone (and I mean noone) hates a complication more than a physician. If you want to ruin the healthcare system, then by all means continue to push for laws and regulations that marginalize physicians. Eventually the best and brightest in this country will stop becoming doctors, because who wants to spend their life getting sued and unappreciated. Patients need to understand that there WILL ALWAYS BE COMPLICATIONS that exist. Noone wants to be that person that has it happen to them. But doctors don’t want to be the victims of the one patient who has those complications either. As i’ve said to you before…if you don’t want to worry about these problems, then feel free to stop utilizing our services – after all doctors dont solicite patients, patients come to us. Its the lawyers who come after patients (and then come after us)

  2. 2 Trisha Torrey November 3, 2007 at 7:28 am

    Marc, You are right. No one ever wants to make mistakes. And no one ever likes admitting they’ve made a mistake.

    There are hundreds of jobs/careers where the track record is just as impressive, if not more so, than in medicine. But if you are that one person for whom the epidural failed, you don’t care where you land inside those statistics. This is not a question of statistics at all.

    In almost every job/career I can possibly think of — with the exception of medicine — the mistake maker is held accountable. And it’s up to the mistake maker to make it right.

    And there’s the rub. By becoming a physician, should you be allowed to abdicate responsibility and not be held accountable for your actions? This isn’t about marginalization, this is about accountability.

    This woman made a proposal that takes the lawyers out of the equation — so it still seems like a very smart move to me.

  3. 3 elmo November 3, 2007 at 9:51 pm

    So Trish just where is YOUR ACCOUNTABILITY WHEN YOU GET IT WRONG (ie. confusing 6 weeks with one year on your blog with respect to the norma greer/carla mcclain article, then not correcting your error)? I guess accountabilty only matters when you are the one trying to hold SOMEONE ELSE ACCOUNTABLE.

  4. 4 Trisha Torrey November 4, 2007 at 6:11 am

    Marc,

    You are the first person to point out the error. In fact, after re-reading the original article, it has now been corrected:

    http://epablog.wordpress.com/2007/10/09/one-woman-6-missed-diagnoses-a-lesson-for-us-all/

    My accountability continues to remain intact, just as it always has. I made an error, and it has been corrected.

    Sorry you felt the need to cover your identity, Marc.

  5. 5 elmo November 4, 2007 at 1:37 pm

    LMAO LMAO

    Oh Trish you are wrong. Never heard of Mark I am just somebody else who sees gross inconstistancies in your website . Let’s look at another inconsistancy on your website shall we:

    From your blog:
    ” have the ability to profit from the drugs they prescribe for their patients. When they prescribe chemo, or any of the drugs given to patients as a result of chemo (such as drugs to boost their strength or to help with their recovery from the ravages of chemo), they do so knowing they will make more money than if they simply met with the patient. Unfortunately, it seems that for many of these oncologists, their goal is focused on milking the system for all it’s worth — not simply to profit — er, um, excuse me — to treat their patients.”

    1: The simple fact is medicare cut out the profit motive (ie unrestricted marking up chemo drugs by oncologists) IN 2005. Which I happen to agree with for ethical reasons.

    2: Medicare under the old system DID NOT PAY FOR CHEMO NURSING. Chemo nursing is among the most expensive nursing of all of medicine. That is part of the expenses of the old system (you didn’t appear to know that).

    3: The latest medicare rules give strict justification (and payment) for anemia related drugs.

    4: You give no justification for the “many oncologist’s” “milking” the system comment. In fact the only line you “borrowed” from the Berenson NYT article on the subject was how onologist’s “game” the system. Let’s actually go back to the article and see what it says with it’s own “limited” data.

    A: “Now, drug reimbursement is supposed to amount to only 6 percent more than the average price of the drug paid by all doctors. Because of the change, the overall amount that doctors billed Medicare for injectable drugs fell 6 percent from 2004 to 2005, to $10.3 billion”

    B: “In all, cancer doctors billed about $4.4 billion for chemotherapy and anemia medications in 2005, down from $5.6 billion in 2004, with Medicare covering 80 percent of the bills in each year. The difference mostly represented profit that doctors had made on the drugs.”

    Two very incongruent statements. One appears to led credence to your opinion of about oncologist prescription patterns one does not. This is in the setting of not knowing anything else about prescribing the drugs, numbers of people diagnosed cancer in a given disease in a given year, etc, etc. The real conclusion..Don’t make broad general conclusions over one year’s VERY GENERAL DATA.

    Also from the article:

    “Mr. Straus said. “It created a perception problem for oncologists that they earn an enormous amount on drugs, but that’s not true anymore. Today, the majority of oncologists break even, and some lose money on drugs.”

    “Dr. Arthur Hooberman, a Chicago oncologist, said his group had sent seven patients to hospitals for treatments in the last few months. ”

    “Our feeling is if we break even on chemotherapy, we’ll give it,” Dr. Hooberman said. But, he added, “we’re not going to pay for people’s chemotherapy.” Dr. Hooberman said Medicare needed to start paying doctors more for other care to make up for their lost drug profits”

    I have seen both. since the medicare rule change, most oncologist’s make little if any money off of giving chemo (and I will say it again I AGREE WITH THAT RULING). But on the other hand they have not adequately replaced payument for chemo nursing. Hence the shift of some labor intensive chemo to hosptials. Hospitals can bill what oncologist’s cannot. I am not a proponent of this system. It is more expensive and possibly exposes immunosuppressed patient’s to hospital ilnesses. I am also not a proponenet of oncologist’s going out of business because medicare is unable or unwilling to get it right. .

    Another inconsistancy on your blog is stating that zevalin is a wonder drug that private practice oncologists are “hiding” becasue they aren’t making “money”. I work at an academic center I place people on zevalin. it is a good drug that has a role in TREATMENT REFRACTORY DISEASE, but it is no magic bullet. It certainly should not be used as initial therapy. I have yet to meet a private practice oncologist who refused to make a referral because it would effect his bottom-line.

  6. 6 elmo November 4, 2007 at 4:40 pm

    PS: Though you changed one year to six weeks nothing else was changed. Think about this, this person saw SIX DOCTORS IN THE COURSE OF SIX WEEKS. A biopsy was completed (though apparently initially read incorrectly). Just how does a doctor diagnose IBC in the setting of a negative biopsy? This is not an issue of just sitting on a diagnosis . Doctors were aggresively trying to find an answer. You just don’t see six doctors in six weeks unless doc to doc phone calls are made. The only issue I see here (besides the inital path) is giving the pt four courses of antibiotics without a clearly verfied bug. The next step would have been another biopsy which neither you (nor I) would have known the timing since we were not there, and anyways the pt appropriately sought out an opinion from another facility. IBC is not a slam dunk diagnosis, especailly to those who don’t see it often (like less common forms of lymphoma). Carla McClain’s article is poorly written and judgemental (very common for her). Again I suggest you read with a critical eye. It is easy to pontificate about “accountability” and I agree the US medical system can be dysfunctional and I welcome ANY checks/balances that increase patient safety. But remember this when you talk about other fields and accountability, we know much much more about trains, computers, automobiles, etc, etc, than we do about the human body.

  7. 7 Marc J November 4, 2007 at 10:10 pm

    Trisha,
    I was confused by your initial statement: Are you claiming there are hundreds of jobs that have a better track record than medicine? There are few careers that are held more accountable than medicine. Just imagine how many lawsuits are filed each year against physicians. Tort reform has become a topic of interest because people are starting to realize that medical malpractice lawsuits are starting to get out of hand. Physicians hold each other accountable thru state medical boards and licensure. Physicians with poor track records become uninsurable or have their licenses suspended. It is also interesting that you claim that woman’s proposal wouls take lawyers out of the equation. You clearly don’t know lawyers. They are (in my biased opinion) reckless, unethical parasites who profit off others’ misfortune, but who are a necessary evil…people like you will apparently never see that because you will likely never be subjected to their crosshairs. Remember what I said about 40% of all lawsuits being found as frivolous? Not to mention the amount their involvement adds to the cost of healthcare in the US. There is not a motion passed about medical care that would not be subjected to a lawyers wrath or manipulation nor be beneficial to lawyers in some way and to think otherwise is hugely naive. You forget what profession writes and passes all these laws. And please stop confusing me with ELMO… your favorite anesthesiologist…Marc


  1. 1 From the desk of…. (11/2/07) « Every Patient’s Advocate Trackback on November 3, 2007 at 8:28 am
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