Our broken medical malpractice system from a moral perspective

Remember personal responsibility? There actually was an era of responsibility when folks admitted when they screwed up and didn’t blame others for their own mistakes. I know this may seem incredible to the younger generation who simply assume that when something goes wrong today, it must be someone else’s fault. In today’s culture, this is not scapegoating, but the pursuit of justice. Welcome to the era of big victim.

In the old days, if someone slipped on ice and sustained injuries, he went to a doctor. Today, we could expect a court case where a jury would hear testimony from an illumination expert testifying that the wattage and angle of the sidewalk lighting was clearly deficient. A saline expert would add that the salt that the proprietor applied to the sidewalk was not dispensed with a certified salt sprayer, thereby allowing dangerous ice crystals to survive. Perhaps, an ambulation expert would instruct the jury that the soles of the fallen man’s shoes contained a design defect that the company knew, or should have known, made slipping more likely when the ambient temperature was between 26 and 28 degrees Fahrenheit at specified humidity levels, particularly in northeast Ohio.

The notion that the guy fell simply because he slipped or was careless, is irrelevant, immaterial and argumentative.

Yeah, I know there is another side to the above vignette. But can any reasonable person deny that we are suffering litigation frenzy? Using the Goldilocks formula, do we have too much litigation, too little or is it just right? Any doubt on the outcome of a public referendum on this question?

No profession understands or endures the pain of wrongful litigation more than we physicians do. I’ve been in the medical malpractice arena in the past, and I’m sure I’ll be invited back again someday for another engagement. The assumption often is that an adverse medical outcome means a physician is culpable. Thus far, I have been dropped from every case as every allegation ever made against me was baseless.

This very week, I (and many others) were dismissed from a frivolous lawsuit that my malpractice carrier estimated cost $11,750 to defend me. You might think based on this amount that I went to trial, but I had only one meeting with my lawyer and the matter never even reached the discovery phase. Imagine the annual total cost of unnecessary litigation in this country. Any ideas out there for a better use of these gazillions of dollars?

Being dragged into the medical malpractice universe is a grueling, costly and unfair process that exacts a huge toll on innocent physicians. It demoralizes us. It affects our doctor-patient relationships as we know that even long term patients who like and trust us can be persuaded to sue us when we have done nothing wrong. Ever hear of defensive medicine? Do you think that when we recommend a CT scan and other tests that it is only for medical reasons? I wish it were the case, but it isn’t.

We have discussions in our medical practice on strengthening communications with patients. We do this for the right reasons, although we are aware that failure to notify a patient of a test result could create legal exposure for us if this leads to an unfortunate outcome. I understand and accept this. However, does the patient have a responsibility here also? Assume a gastroenterologist like me removes a polyp from a patient. The doctor meets with the patient and the family afterwards and requests that the patient return in two weeks to review the pathology. The recommendation is also given in writing. Despite this, the patient doesn’t schedule the appointment or simply misses it. The doctor, therefore, didn’t have the opportunity to advise that another colonoscopy would be needed in three years. If the patient develops colon cancer 10 years later, is this our fault or his?

Lawyers, stop hyperventilating for a moment. Yes, I know that physicians should have procedures in place to plug these leaks. We do. My question is not if we would be legally vulnerable. In today’s world, we would be. I’m asking from a moral perspective, would the development of colon cancer in this hypothetical example be the patient’s fault?

Blaming others for our own misfortunes is not seeking justice. Bad stuff happens. Acts of God occur. Perhaps, we should we start suing the Almighty for damages from floods, hurricanes and other natural disasters?

Michael Kirsch is a gastroenterologist who blogs at MD Whistleblower

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