The Unkindest Cut

Note: filistro is on vacation. This article was previously written.

Q: What’s even worse than being subjected to the pain and indignity of a vasectomy?

A: Enduring the pain and indignity of a vasectomy, having it fail, and getting your wife pregnant anyhow.

Q: What’s even worse than that?

A: Being the doctor who performed the botched vasectomy, and discovering the couple who got pregnant as a result are suing you for child care.

Scott and Donnita Bassinger of Eugene, Oregon are suing the doctor who performed Scott’s failed vasectomy in 2007. They are asking for $650,000 to cover the cost of their newborn son’s Caesarean delivery, all costs associated with his upbringing, and the expenses related to his eventual college education.

This will be a fascinating case to watch, especially at a time when the public’s attention is going to be newly focused on health care and the contentious issue of tort reform.

From Wikipedia’s article on medical malpractice:

According to the American Medical Association, defensive medicine increases health systems costs by between $84 and $151 billion each year…About 10 percent of the cost of medical services is linked to malpractice lawsuits and more intensive diagnostic testing due to defensive medicine, according to a January 2006 report prepared by PricewaterhouseCoopers LLP for the insurers’ group America’s Health Insurance Plans. The figures were taken from a March 2003 study by the U.S. Department of Health and Human Services that estimated the direct cost of medical malpractice was 2 percent of the nation’s health-care spending and said defensive medical practices accounted for 5 percent to 9 percent of the overall expense.

It is estimated as well that the prohibitive cost of malpractice insurance has driven as many as one in every 12 American obstetricians out of practice, resulting in nationwide shortages. Texas reformed its medical liability laws in 2003, and saw an unprecedented 58% increase in applications for medical licenses in that year alone. By 2007, Texas had witnessed a 7.2% increase in the number of practicing obstetricians, with comparable increases in other specialties as well.

But of course there is another side to the coin. Instances of genuine medical malpractice are increasing as well, and there are many instances where doctor and/or hospital negligence causes real harm.

From the aforementioned article:

A recent study by Healthgrades found that an average of 195,000 hospital deaths in each of the years 2000, 2001 and 2002 in the U.S. were due to potentially preventable medical errors. Researchers examined 37 million patient records and applied the mortality and economic impact models developed by Dr. Chunliu Zhan and Dr. Marlene R. Miller in a study published in the Journal of the American Medical Association in October 2003. The Zhan and Miller study supported the Institute of Medicine’s (IOM) 1999 report conclusion, which found that medical errors caused up to 98,000 deaths annually and should be considered a national epidemic…A 2006 follow-up to the 1999 Institute of Medicine study found that medication errors are among the most common medical mistakes, harming at least 1.5 million people every year. According to the study, 400,000 preventable drug-related injuries occur each year in hospitals, 800,000 in long-term care settings, and roughly 530,000 among Medicare recipients in outpatient clinics. The report stated that these are likely to be conservative estimates. In 2000 alone, the extra medical costs incurred by preventable drug related injuries approximated $887 million—and the study looked only at injuries sustained by Medicare recipients, a subset of clinic visitors. None of these figures take into account lost wages and productivity or other costs.

Settlement amounts vary widely and can include both compensation and (more rarely) punitive damages. However, most settlements are not the enormous, shockingly inflated sums that tend to get the lion’s share of public and media attention. Much of the real expense of malpractice claims goes to administrative costs.

More from the article:

Most (73%) settled malpractice claims involve medical error. A 2006 study published in the New England Journal of Medicine concluded that claims without evidence of error “are not uncommon, but most [72%] are denied compensation. The vast majority of expenditures [54%] go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant.” Physicians examined the records of 1452 closed malpractice claims. Ninety-seven percent were associated with injury; of them, 73% got compensation. Three percent of the claims were not associated with injuries; of them, 16% got compensation. 63% were associated with errors; of them, 73% got compensation (average $521,560). Thirty-seven percent were not associated with errors; of them, 28% got compensation (average $313,205). Claims not associated with errors accounted for 13 to 16% percent of the total costs. For every dollar spent on compensation, 54 cents went to administrative expenses (including lawyers, experts, and courts). Claims involving errors accounted for 78 percent of administrative costs.

Whether tort reform is really a magic bullet that will help shoot down skyrocketing health care costs is something that can (and no doubt will) be argued endlessly. But nowhere will we see a better illustration of its complexities than in this question: Are Dr. Stephen Schepergerdes and Oregon Medical Group liable for the upbringing and college education of Scott and Donnita Bassinger’s infant son?


About filistro

Filistro is a Canadian writer and prairie dog who maintains burrows on both sides of the 49th parallel. Like all prairie dogs, she is keenly interested in politics and language. (Prairie dogs have been known to build organized towns the size of Maryland, and are the only furry mammal with a documented language.)
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22 Responses to The Unkindest Cut

  1. Mr. Universe says:

    Hey, leave it to my hometown to push the envelope.

    So my response might sound insensitive but let me just offer a caveat; my response is not my opinion. I’m playing Devil’s advocate.

    Couldn’t the doctor provide a money-back guarantee and offer to pay for an abortion? Seriously, I know that sounds cold and I can hear all the objections forthcoming, but once the vasectomy failed, the parents have a choice to carry it to term, right? If the motive is to not bear a child then it seems like a $500 abortion is a much more practical solution than $650,000 to raise the child. Plus, there are ancillary benefits to raising a child that one cannot put a value on. It may not be apparent at the moment but, trust me, it will become apparent later.

    Secondly, I’m going to presume that the father elected to have his tubes tied rather than cut with the option of having it undone in case he changed his mind about having children one day. In that case, it merely appears that the doctor’s negligence accelerated that plan and leaves the couple just looking for a free ride.

    Another angle: if the condom breaks, is Trojan liable for the expenses of raising the child?

    This part is my opinion: I’m sure there are some key elements missing in this particular case (for example: do we know for certain that the child was a product of a botched vasectomy or the result of a third party donor?) but for all intents and purposes, this appears to be a case of egregious tort abuse.

    And isn’t that what the courts are there for? To decide the responsibility and damages, both actual and punitive? Tort reform hints at disallowing anyone to lodge a complaint in the first place. This couple feels they have a legitimate grievance. Under the law, I think they have the right to pursue it. Whether the findings are correct is a completely different matter.

  2. GROG says:

    Being the doctor who performed the botched vasectomy…

    That will be for courts to decide. Just because his wife became pregnant does not mean the vasectomy wasn’t performed properly. Vasectomies fail in 1 of every 2000 instances and surely the couple knew that going in.

  3. Mr. Universe says:

    @GROG

    Agree

  4. shortchain says:

    I’m in agreement with you as well, GROG. (Now, don’t faint.)

    What’s missing from what we know (but which, presumably, is known to the principals in the case):
    a) What evidence really proves that the vasectomy failed? Not to get too crass here, but did they do a paternity test? And was it pretty conclusive? (I know of such a case which did not go anywhere because it turned out the vasectomy was successful…apparently a case of parthenogenesis or virgin birth…but the family in question opted for privacy, instead of heralding a new messiah. Go figure.)
    b) If the parents want to raise the child, why do they want all expenses paid by somebody else? I mean, sure, kids can be a pain, but there’s some joy as well. Are they to enjoy that without paying a penny for it?

    At any rate, I don’t envy the judge (or jury, if it goes to one).

  5. mclever says:

    In this particular case, I suspect the couple will NOT get the $650K. Vasectomies aren’t 100% guaranteed. Neither is a woman getting her tubes tied. The human body is a marvelous creation, and sometimes life just finds a way… Vasectomies and tubal ligations can spontaneously reverse themselves even if the doctor did everything 100% perfectly. Sometimes you’re on the wrong side of the 99% effective rate.

    However, as filistro points out, it’s not like medical mishaps don’t happen. I’ve seen estimates of 200K deaths per year due to medical mistakes at hospitals in the United States. Prescriptions get mixed up and the antibiotic goes to the wrong ICU patient who happens to be allergic to ‘cillin drugs. Maybe the floor nurse catches the signs of a bad reaction quick enough to save the patient…maybe not. When that happens, who–if anyone–should bear the cost of that mistake?

    For those who advocate tort reform, how do you address the very real problem of medical mishaps and recompense to those harmed? How can we reform procedures/quality at hospitals and clinics to reduce errors (because we’d all prefer there to be no mistakes in the first place)?

    I’ve seen suggestions that a medical review panel be created to review the merits of the malpractice claims before allowing the case to proceed to court, which should cut down on frivolous cases, so maybe that’s a start. I’ve seen proposed limits on punitive damages, but I worry that will disincentivize improvements in quality and care. The risks of making mistakes need to be real enough that doctors and nurses are prudent and accurate in their treatment of patients, but not so burdensome that they inhibit reasonable courses of care. So, how do we find that balance?

    The reality is that doctors (and other medical care providers) are human. Mistakes can and will get made. For most of us, if we make a minor oops on our jobs, the consequences are minor–or at least not life-threatening. Unfortunately for doctors, nurses, and pharmacists, they hold our very lives in their hands. With that power comes responsibility, and we as a society need to be able to hold them accountable.

    So, if we want to make sure doctors aren’t being negligent, and we don’t want to use the civil courts as the proving ground, then what’s the solution?

  6. mclever says:

    Oh, and I also agree with GROG. 🙂

  7. Mule Rider says:

    I pretty much agree with what’s been said so far, although I would add one suggestion. Maybe the doctor should be asked (forced?) to at least reimburse the couple (or their insurance company if that’s who paid for it) for the cost of the vasectomy as well as for their time and effort of coming to see him. If the procedure is a success 99.95% of the time, then he should have no trouble covering that expense.

  8. Mule Rider says:

    Oh, and how apropos will Bartbuster’s use of the pejorative “Blankshot” be against Bart when they inevitably argue in this thread?

  9. Brian says:

    I agree with MR’s comment about reimbursing the couple for the visit and procedure. And the Blankshot comment got me a few looks from co-workers as I chuckled, well done.

  10. Bartbuster says:

    Oh, and how apropos will Bartbuster’s use of the pejorative “Blankshot” be against Bart when they inevitably argue in this thread?

    It’s already apropos. There are no children in the Blankshot family, even though he has often warned about the cultural dangers of whites being out-bred by darker colored races. Apparently his little soldier isn’t willing to fight in that cultural war.

    By the way, I stole “Blankshot” from a poster on another blog.

  11. Armchair Warlord says:

    Someone’s fishing for money here. I feel sorry for a kid with parents like that.

    No procedure is 100% effective – as long as it can be established that the doctor in question was not negligent he shouldn’t be liable for a red cent. Even if he was in fact negligent the couple could have had an abortion if they were that dead-set against supporting their children, which would suggest a fairly low liability ceiling.

  12. Mr. Universe says:

    @Warlord

    Well it’s Eugene. Poverty is a way of life here.

  13. GROG says:

    Sorry for the delay but I just woke up from a stupor after reading that Mr. U, Mclever, and shortchain agree with me on something. 🙂

  14. Max aka Birdpilot says:

    GROG,

    Truly, I hope you didn’t hit your head when you fell.

    Personally, it was a good thing Beth was here and could splash a glass of cold bourbon in my mouth to help me!

  15. mclever says:

    GROG,

    I’ve always maintained that liberals and conservatives in this country generally agree on more than they disagree. Our (media) culture tends to play up the differences so much, that we forget how much we all see the world from a distinctly American point of view.

    Nice when we get those little chances to remind each other that we’re not so far apart after all, eh?

    🙂

  16. Mule Rider says:

    “I’ve always maintained that liberals and conservatives in this country generally agree on more than they disagree.”

    Agreed. I think it speaks to something I mentioned on here not too long ago in that many things aren’t an issue of right and left but of right and wrong.

  17. Monotreme says:

    I also agree with GROG.

  18. GROG says:

    True. We probably agree 99% of the time but it’s that 1% that we love to talk about.

  19. mclever says:

    “It’s that 1% that we love to talk about.”

    Absolutely! 🙂

  20. Monotreme says:

    Regarding Mule Rider’s observation, I think we mostly agree on the desired outcome but sometimes disagree on the way to get there.

  21. mclever says:

    I’ll second Monotreme’s point. We Americans mostly agree on our desired destination, but we’ve got different road maps to get there… Most of our political arguments are about means rather than objectives.

    Even in the Medical Malpractice argument, we all agree that we want to reduce physician error and keep costs low for everyone. The arguments are mostly about whether Tort Reform or Regulatory Reform or set pricing or whatever will do the most good. We each have different points that we’re willing to compromise for what we want.

  22. shortchain says:

    I’ll go for tort reform as soon as the medical community adopts the same principles as the auto-repair or other businesses: they get paid only for fixing the problem, not for changing the oil or rotating the tires when I need a new battery.

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