The malpractice mess

September 2004

---Philip A. Brunell, MD

This week while rummaging through my file, I came across a letter, which was several years old, indicating that I had been “dismissed with prejudice” (which I am told means that I am not in any way culpable) in a malpractice case brought against a colleague. I am also told in the letter “you should maintain this dismissal for your file,” which I obviously had done. I was one of a couple dozen physicians initially charged by an attorney in the case, who finally decided which one of us he actually wanted to sue.

Now, I and the others who were not sufficiently involved to be charged are required to have this letter available and to note this on any application for licensure or hospital privileges. The lawyer goes happily on his way doing his thing. My “involvement” was a note written about a response to a question that a resident had asked me, which she had documented in the patient’s chart. I was not the consultant or the patient’s primary physician.

There was only one other time in my career when I might have been sued but was not. A colleague told me at a meeting that one of his patients wanted to know how to find me, as she wanted to sue me for what I had told her in a phone conversation she initiated when I was Red Book chairman. All people in a similar position are well aware that one should not give advice about a specific patient but should respond by citing the general recommendations and suggesting that a physician responsible for the patient should be consulted. The matter was dropped. Parenthetically, I found my first malpractice premium bill from 1960 for $120.

Lawsuit fears

This all occurred during a week when our local newspaper was full of proposals to cap “pain and suffering awards” in Maryland, as malpractice premiums have skyrocketed in the past two years as a result of an unbelievable payout of claims. Premiums that increased an average of 28% last year are expected to rise another 41%. One insurance company’s payout for claims last year was $93 million, an increase of 66%. One obstetrician, who is the wife of the secretary of health of our state, has decided to leave her practice. The editorial in The Washington Post from which this information was taken indicated that her insurance premiums had risen to more than $100,000 a year.

The solution proposed by the governor is to cap “pain and suffering” awards at $500,000, prompted by the fact that physicians, particularly obstetricians, are leaving the state or leaving practice. It is noted that almost none of the recent graduates from our state’s medical schools have chosen obstetric residencies. The trial lawyers, some of whom are members of the legislature, and their lobby and some patient groups have vehemently opposed a cap and blame the increase on incompetent physicians and greedy insurance companies.

Lawyers’ groups have claimed that malpractice premiums contribute negligibly to soaring health care costs, and this probably is correct. However, the fear of lawsuits has undoubtedly increased the cost of medical care. Physicians order laboratory tests, obtain consultations and alter patient care to protect themselves against lawsuits. Professional societies have attempted to develop practice guidelines. These are based on “evidence-based medicine,” but the studies on which these guidelines are based include therapies that are chosen to avoid malpractice suits. I have watched the duration of treatment of osteomyelitis double during the past decade, after studies done years ago to show that this is unnecessary. No one mentions the cost to train additional physicians to replace those who prematurely curtail their practice because they cannot afford malpractice premiums. Patient groups opposing the cap neglect the fact that these costs are passed on to them directly or indirectly. Somebody must pay.

Court-appointed physicians

One of the ways expenses might be held in check is the prevention of frivolous lawsuits in the hope of getting a quick settlement. A patient who had been hospitalized because she had threatened suicide sued a psychiatrist I know. The suit had initially demanded millions for involuntary hospitalization. After it was apparent that there would be no concession on the part of the defendant, a settlement of $25,000 was proposed. His insurance company was anxious to settle to “get rid” of the suit and spare any court expense. To its and the physician’s credit, they agreed to let the case go to trial, where the jury threw it out after 45 minutes of deliberation. Settling nonsense suits may be expedient, but it just encourages additional suits of this type.

The Vaccine Injury Compensation Act provides a model for a plan that should be considered to alleviate the problem. Some states and some foreign countries have adopted similar schemes. This involves a preliminary hearing to determine the justification for going forward with a lawsuit. The case records could be redacted to remove the identity of the patient, hospital and physician, and then reviewed by court-appointed physicians. Their recommendation would be presented to the court. The conclusions would be used to decide the merits of the case and whether it should go forward. If a judgment were made that the suit is frivolous, it would not stop one from proceeding with the suit in civil court, just as the Vaccine Injury Compensation Act does not prevent one from such action. Those who are told their case is frivolous I hope would decide not to pursue litigation. In either case, the preliminary judgment would be available as evidence in the actual case. This seems preferable to having each side bring in its own “expert” and having the fate of the defendant determined by the showmanship of the litigator appealing to a sympathetic jury. It may be unreasonable to ask an unsophisticated jury to differentiate a bad outcome that occurred from poor medical practice from one that was unpreventable.

Many nonphysicians ask whether one could find objective physicians willing to “be critical of their own.” I ask whether the current system of “expert witnesses” is preferable? The “expert witnesses” represent the plaintiff or the defendant. I submit we would be more likely to get more objective medical opinion from court-appointed experts. Although most expert witnesses I know are honest, I am impressed by two stories. One is Balaam’s response to Balak when he is asked to curse the people of Israel: “Though Balak were to give me his house full of silver and gold, I could not of my own accord do anything good or bad contrary to the Lord’s command, what the Lord says, that I must say” (Numbers 24:13). There is another story of President Lincoln (Honest Abe) being approached by someone who wanted a favor. As the monetary inducement was increased, the president just continued to stare at the person, becoming increasingly angry. Finally, he ushered him to the door. While exiting, he told Lincoln how impressed with his honesty he was. Lincoln, without uttering the f-word, retorted that his anger was increasing because he was getting closer and closer to his price. Unfortunately, there may be more Lincolns than Balaams around.

High-risk doctors — and lawyers

This sort of a system might address another problem cited by patient groups and lawyers attributed to the rising cost of malpractice. That being that currently, we physicians do not discipline ourselves and allow a relatively small number of incompetent physicians to drive up the cost of medical care by committing malpractice. This may confuse “high-risk physicians” with “high-risk procedures or specialties.” It is well recognized that some specialties, eg. obstetrics, are named in an inordinate number of lawsuits. In some cases, these may be due to poor outcome, not due to poor medical practice. Parents are devastated when they have had an imperfect baby. It is understandable that they want retribution. Under the proposed system, a physician who is judged by court-appointed experts to have engaged in medical practice judged to be deficient more often than peers doing similar types of practice would be reviewed and remedial action taken. Similarly, attorneys who have had an excessive number of suits judged to be frivolous also would be cited and their performance reviewed.

The proposal is a framework for developing a system and by no means a final product. It simply is an attempt to “put the ball in play.” It would not be without expense, and estimates of costs would have to be made. These costs obviously would have to be weighed against all those incurred under the current system. Capping awards for pain and suffering has not stopped the increase in malpractice premiums, but it may have decelerated the rise. Unfortunately, this proposal is not likely to be embraced by the legal community, and probably by few of the patient advocacy groups. And it probably will be opposed by many physicians. Given the diversity of the potential opponents, screening for frivolous lawsuits is probably worth pursuing.