Does the tort-based medical malpractice system improve patient care?

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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