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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  • Patient Kit

    I agree that bad things happen in life that are nobody’s fault. Many people do seem to have trouble grasping that basic fact. At the same time, we have to preserve the right to sue for those who are truly wronged, especially those who are wronged badly. How to achieve that balance is the question.

    Can we pinpoint a specific time when people suddenly became lawsuit crazy in the US? I would love to know the history of how this suit-happy culture evolved, including but not limited to malpractice. If it once was not this way, when did it change?

    I think I’m going to have to blame lawyers for cultivating this culture that has people believing that, along with lotteries and casinos, suing somebody is their one true shot at making any real money in this world. It’s very wrong to sue someone who has done nothing wrong, but I think the pursuit of money, not justice, is at the heart of it. And lawyers get the lionshare of that money.

    It would take a lot to get me to ever consider suing anyone. And, believe me, some bad things have happened to me. As for what would be a better use for the gazillions of money spent on lawsuits in the US, the obvious answer to me is my elusive dream of good, affordable healthcare for all — even for ambulance-chasing lawyers.

    • JR

      Pst – medical malpractice claims have dropped, not increased. Malpractice insurance rates are dropping too.

      http://www.huffingtonpost.com/david-belk/medical-malpractice-costs_b_4171189.html

      • Patient Kit

        Well, that is good news! A very interesting article. Thank you for posting the link. So, primary docs pay much less than many specialists for malpractice insurance. Interesting. And many people pay more for their health insurance than docs pay for malpractice insurance. Also interesting. My docs are all in NY, so I’ll reserve most of my sympathy on this subject for them.

    • NewMexicoRam

      Well, something you and I can agree on. Maybe we do have some common ground.

      • Patient Kit

        I knew we would find some common ground if we kept talking to each other. I’m really not your enemy, even if we disagree a lot. And, as I said in another response to you, we are both clearly under a tremendous amount of personal stress and pressure. I keep that in mind always.

  • JR

    If doctors can argue that most doctors are loving, wonderful, caring people who went in to medicine only to help people, and they aren’t primarily motivated by money…

    and the few who do horrible things are just a few “bad apples” and not representative of doctors in general…

    Then I’ll argue that people who file lawsuits aren’t representative of patients in general, because most patients don’t sue people.

    (I found a statistic that only 1/8 people who are injured even file for medical malpractice, and 6% of doctors are responsible for 60% of malpractice claims… does that scream “entitled patient” or “bad apple doctor” to you?)

  • FriendlyJD

    I’m always unsure why doctors believe they should be exempt from suits, frivolous or otherwise, when other corporations, individuals, and high-risk industries are not. It’s the nature of the American justice system – bringing a case is easy, winning is not. It sounds like the suit against you was dismissed – you consider it a waste of legal fees, not because your lawyers weren’t successful, but because you believe the suit itself was a waste of time. Being sued for malpractice is a jarring experience for all professional defendants (lawyers, accountants, architects), not just doctors.

    The reason there’s not more of a bar to bringing a lawsuit is that prior to filing suit – there’s almost no way to gather crucial evidence. Without a lawsuit, you can’t depose people, require interrogatories, or get access to crucial documents. I work for a federal court – 80% of our cases are tossed out before the trial stage. That said, only 20% can be tossed out before at least some discovery proceeds.

    Doctors are actually more protected than the average defendant from wasteful suits because the bar for bringing a medical malpractice claim is higher than the general pleading standard – plaintiffs must state not only a plausible claim for relief, but also show an expert in the same field is willing to testify as to negligence.

  • JR

    He links to his data in the article – it’s pretty interesting. It really varies a lot by state.

    I think what we really need is better criminal prosecution of the “bad” doctors out there, and better whistle blowing protections for the other doctors, nurses, or students who are afraid to lose their careers if they speak out about those providers. If we get that 6% which cause 60% of the lawsuits out of the picture, then the malpractice costs for the other 94% should drop.

  • rbthe4th2

    AMEN! As someone who wont be suing the doctor who truly started all this, who will cause me to potentially die, not one time did that doctor ever admit they were at fault for missing several complications of surgery. I asked that they fix it, not try to destroy me. Sorry, but it works both ways.

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