by Michael Kirsch, MD
Physicians and plaintiff attorneys have philosophically divergent views on our tort system. I know the attorneys’ views on this issue well. There are lawyers in my family who have prosecuted physicians for alleged medical malpractice. Sometimes, there hasn’t been enough antacids in our house to douse my flaming heartburn after some of our discussions.
Obviously, one reason that lawyers support the current system is because it enriches them. However, there are purists among them who truly believe that the tort system, despite some flaws, is the best means available to pursue justice and to compensate injured people. They point out that the medical profession has been lax to monitor itself and to sanction incompetent physicians. Too many medical mistakes, they claim, are ‘buried’. Without aggressive legal advocacy, what recourse would negligently injured individuals have against the powerful and well financed medical profession? In addition, they argue that the system is a powerful deterrent, which improves medical quality.
While I concede there is a “white coat wall of silence,” the argument that our tort system improves medical quality is absurd. Indeed, there is no fair-minded individual who can possibly support it on its merits. It is not designed to narrowly target negligence. It is patently abusive and unfair to conscientious, competent and caring doctors across the country. The system ensnares scores of innocent doctors in order to capture a few rogue practitioners. It’s a hatchet job, when a scalpel should be the right tool.
As a statement of fact, the vast majority of true medical negligence never enters the tort system. These patients are never compensated and the medical perpetrators are never discovered. Additionally, most medical malpractice cases that plaintiff attorneys review are rejected because the lawyer does not feel that negligence has occurred or can be proved, or that the damages are insufficient to merit a legal proceeding. So, the current system only compensates a small fraction of negligently harmed patients. Can we defend a system that only provides relief to only a minority of those who deserve a legal remedy? Would we applaud our government if it provided food stamps to only 10% of those eligible, or would we demand a higher performance level or a new system?
In addition to its failure to reach most potential plaintiffs, the current system also punishes too many innocent doctors. Few other professions can truly empathize with our predicament. Most folks on the job do not fear that they can be successfully prosecuted for doing their job well. Do store clerks, cab drivers, teachers, entertainers, union workers, journalists, zookeepers or candle stick makers punch their time clocks in the morning and worry that they might be sued if an adverse event occurred that was not their fault? Doctors do.
Lawyers state that innocent physicians are ultimately dismissed proving that the system works well. A just outcome, however does not mean that the system is just. Recently, the U.S. government released several Guantanamo prisoners, who were cleared of being enemy combatants, to the island of Palau. Do these new islanders, who were captured in 2001 and endured years of misery, feel that our system is fair and true to American ideals just because they were ultimately exonerated?
I do not suggest that being wrongly sued is similar to being wrongly incarcerated, but there is a parallel theme. The innocent physician who is ultimately dismissed from the case or prevails in court does not feel like a winner. He emerges from his ‘victory’ as a battered and angry practitioner who returns to his practice with renewed cyncism and wariness. His relationships with his patients inevitably suffer and he practices more defensive medicine for legal protection. The current tort system fails in its mission to improve medical quality. Paradoxically, it diminishes quality by generating excessive and medically unnecessary care from worried doctors, which costs money and risks complications.
Lawyers don’t understand why we physicians take litigation on such a deeply personal level. If they lose a case, they shrug it off and move on to the next client. To them it’s just business. Not so, for physicians. When we are unfairly attacked, and our reputations are publically sullied, it becomes a wrenching personal ordeal.
How would lawyers feel if they feared a lawsuit after every case they lost? Would it be fair if innocent attorneys had to spend years and money defending against an outcome that was not their fault? Perhaps, then, they might understand better why we physicians are so hostile to the present system. Of course, if this sweet ironic turnaround occurred, there would be dividends. Attorneys and physicians would then finally be alligned. We could commiserate with each other. We could plot joint strategy for tort reform. We could be allies. And, we could share antacids.
Michael Kirsch is a gastroenterologist who blogs at MD Whistleblower.
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Matt,
Informed consent is obtained. A procedure is performed without “your negligence”. There is a bad outcome, which is a known risk of the condition and procedure that was consented to. What do you propose should happen at this point?
Paul, it would seem nothing should happen. Your next statement is “why am I sued then”? The answer is two reasons:
1. Your interpretation of the events may not be correct. You assume they are, but sometimes people are mistaken.
2. You, or the provider, may not share with the person what happened, or it may be unclear and the provider may not be willing to share what happened. No provider is going to give a statement under oath without suit being filed first and them being compelled to give testimony. Thus, while your interpretation may be correct, filing suit is the only way to get those involved to explain themselves. Obviously, if you’re the attorney, you don’t want this because you’ve spent a lot of money to determine there was no claim.
And sometimes, if everyone is agreed that harm was done, there may be a dispute as to the value of the damages.
Matt,
Calling yourself a respectable Libertarian, do you support that physicians and patients be allowed to voluntarily agree ahead of time on their own binding limits and terms of dispute resolution?
Physicians who favor patients who agree to reasonable caps might lose out on patient volume because those patients who insist on high caps would then choose to see some other doctor instead. It sounds like a very fair system.
This would best apply to situations where there is on urgent duress, so it would not apply to Emergency medicine cases.
Absolutely. The only rub though is that because of the payment method physicians have bought into, I don’t know that just those two parties can make that agreement since it would infringe on the subrogation rights of the third party payor. Physicians tend to forget that a successful malpractice case often results in a substantial part of the award going to an insurer or medicare/aid for sums already expended due to the harm caused by the tortfeasor. That’s a contractual or statutory right depending on the payor.
Matt,
We shall have to agree to disagree on the subject of tort in medicine.
Dr. Kirsch,
That was a wonderful article. Your last paragraph, in my opinion articulates the primary problem and its best practical solution.
As a practical suggestion, what about a Washington D.C task force(like the one investigating alleged Medicare fraud), with protections for the ‘whistleblowers’, to investigate healthcare fraud of a different sort: non-meritorious, predatory lawsuits? There seems to be no method for recourse against attorneys who take free shots at greenmail settlements. If some centralized agency could gather confidential information from (medical professional)victims, perhaps there would arise a method to isolate and eradicate the few bad-apple attorneys who are gaming the med-mal system.
Susan, it was a good article.
The biggest problem in terms of any kind of real tort reform, is that the medical establishment does not want to admit that there is a big underlying problem . . . i.e., physician oversight & discipline is largely an unstandardized joke – and depends on what state and what hospital one works in. Moreover, the AMA and JCAHO and DHHS and the Medical Societies/Medical Boards have been ignoring and/or white-washing the problems that medical whistle-blowers face (most specifically, the “white wall” of silence) for decades.
The careers and lives of good people have been destroyed and they did not care.
I am all for a Washington task force. But I’m even more for some of these cases (like mine) – which have legitimate unresolved criminal elements – to be agressively pursued by the US and State Attorney Generals. If they were, it might make some of the businessmen and lawyers really running the show to take notice and change their behavior.
On what planet is it okay for me to have been fired for saving a baby’s life? Or reporting what happend to peer review? On what planet is okay for me to have been sued for telling the government I served the truth?
This planet.
The public and the politicians all say they want physicians to put ethics/patients first. Well, I did. And I’ve done nothing but pay for it ever since. People who have not been there and who have not done that want me to shut up and go away. And if I don’t, I’m some kind of bitter wack-job/troll.
Well, I’m not going to just go away. And I guess I’ll just have to be a bitter, wack-job/troll.
Matt, I respect and agree with your point about the third party payer complicating the situation. That’s part of the problem. But it would be morally valid in a cash-pay situation.
In any cash-pay medical transaction and in other everyday nonmedical transactions, there should be an enforceable opt-out clause where two parties can agree to VOLUNTARILY waive their rights to sue. This would really create a lot of new opportunities for good mutual cooperation. And in practice, this is what we had decades ago in the friendly world before the climate change of litigation and government regulation permeated our lives.
So many lost opportunities for cooperation are lost due to fear of being sued. So much energy is wasted on “defensive transactioning”, analogous to defensive medicine.
Hypothetically, if I hire a photographer for my wedding, I would be very upset if he messed up or didn’t show up, so I would want to retain my right to sue. However, if there’s another photographer who has a good reputation and is trusted by my friends but who has decided not to “waste money” on business liability insurance and will knock $500 off the price in exchange for my waiving any right to sue, I may or may not do so, depending on how much I want to gamble. That should be my choice. Having some sort of fullly enforceable but voluntary “give up the right to sue” clause would create a lot of potentially great choices.
The re-emergence of free medical clinics would be just one obvious example, going back to the good old days when doctors would allocate a half day each month to pro bono work.
Dr. Mary Johnson,
The careers and lives of good people are destroyed, and nobody cares.
Nobody cares.
Now you have a tell on the adversary; the individuals involved,the system, people at large…don’t care.Knowing about that apathy, or egocentric tendency, could you redirect your resources toward a better outcome?
Please don’t promote the marginalizing label of wack-job troll. I would guess that when your fight began you had faith in truth and justice.Now you know better. Your writings are powerful and ring of truth.But, is your commentary being read, or is it effectively dismissed because ‘the adversary’ has successfully labeled you a wack-job? I think it is impossible to survive in a conflict if constantly on the defensive.
You have a hard-won knowledge about how the legal system really works. You have the attention of many people, and a powerful message to convey. I hope your administration of that message finds the right route.
And I hope you find peace for yourself.
“We shall have to agree to disagree on the subject of tort in medicine.”
Paul, we didn’t really discuss that, but we may well agree on the impact. Our civil justice system affects everything we do, in both good and bad ways. As would any justice system in a free society.
“That should be my choice. Having some sort of fullly enforceable but voluntary “give up the right to sue” clause would create a lot of potentially great choices.”
In most situations involving business transactions between equally weighted parties I would agree with you it might create some potentially great choices. Although I just don’t think it would happen, because at the end of the day many people want the right to recover if damages are caused through no fault of their own.
“And in practice, this is what we had decades ago in the friendly world before the climate change of litigation and government regulation permeated our lives.”
And I would agree with this to an extent. If you look at what has really driven the litigation “explosion” it is businesses suing businesses, not personal injury filings. Last I looked those were down.
I also think physicians have some blame to shoulder in terms of government regulation of their industry. They allow themselves to be trapped by this third party payment model where the govt. is the payor. It’s not all their fault, but they do have some responsibility. And when you take the government money, you take the government regulations. It’s nice to have a solvent party to collect from, but there’s going to be a downside.
Susan, I appreciate you kind words. I really do. But I’ve been in this blogopshere since 2005 – the day after my Father died (without seeing justice for his daughter). I came here for help (at the behest of a local journalist promoting “citizen journalism”) – because the system just does not work. And I’ve been treated like dirt – placed on the defensive since day one by people who (locally, at least) had a vested interest in shutting me down/up.
I’m certainly NOT “promoting” the notion that I’m a “wack-job” or a “troll”. I’m simply repeating what people in this supposedly enlightened and “progressive” blogosphere have called me for telling the truth – and for not backing down/giving in (apparently to prove my mental health, that is what I should do).
My message IS (don’t you just love that word?) very powerful – not to mention that IT IS THE GOD’S HONEST TRUTH (why do you think I have not been sued again by the hospital/executives who did me wrong?).
Morevoer, I did what the public and (more importantly) ANY parent would have expected me to do (and probably would have sued me for not doing). What happened to me NEVER should have happend. So WHY haven’t the AMA and JCAHO and DHHS and the state Medical Societies & Boards done anything to (1) specifically address my situation and (2) generally plug the holes I feel through?
Why can’t the medical blogosphere be something besides a fricking ECHO chamber? I mean, what has the medical blogospehre really accomplished?
Yesterday, when Obama did his dance for the cameras and announced that the AMA was supporting his healthcare reform bill, I just wanted to cry. Like the AMA has EVER represented doctors like me!
On the heels of that, I got an e-mail yesterday that showed Congressmen & women playing Solitaire and checking baseball stats as one of their compatriots spoke on the House floor. These are people who might better spend their time actually reading the legislation they want to cram down our throats – and/or holding hearings to listen to people like me (as opposed to the traditional dog & pony show of healthcare “victims”). But hey, let’s mindlessly flip the cards on a computer. Those three-day work-weeks are a real bear.
It’s all a joke. Just a joke.
I have to wonder how many colleagues knew that the psychiatrist who killed/shot dozens of people at Fort Hood yesterday was a loose cannon – literally ready to blow (I’m still trying to wrap my head around the fact that this doctor was TREATING other sick minds – and was going to be deployed).
I wonder how many of his colleagues might have felt more comfortable coming forward with their concerns – saying or doing something proactive and preventative – if they knew they could rely on the law/governement to protect them from retribution?
In terms of the service obligation, my stint in the NHSC was, in many ways, not a whole lot different from a stateside assignment in the military. All any of those people had to do to see how government whistle-blowers are really treated/regarded is pop on over to Dr. J’s Housecalls.
But they don’t have to really. They already know.
I will not find peace until I get justice. But I very much appreciate the thought.
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