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Missing the point on tort reform

Dr. Jeffrey Parks explains why so many people don’t get tort reform, and offers his own solution: arbitration.

Dr. Jeffery Parks is a board certified general surgeon working in Cleveland who writes regularly at Buckeye Surgeon.

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Daphne Eviator from the Washington Independent makes the argument that tort reform is unlikely to have any quantifiable effect on overall health-care costs. She cites law professor Tom Baker’s book, the Medical Malpractice Myth, and a 2004 Congressional Budget Office report as evidence that medical malpractice, at most, only accounts for 1.5 percent to 2 percent of total health-care spending (not including any rational computation of defensive medicine). The implication is clear— if tort reform isn’t going to help control skyrocketing costs, then why bother spending the political capital necessary to fix it?

First of all, the notion that because defensive medicine is notoriously difficult to account for by any objective computational method does not henceforth imply that the costs are irrelevant. It’s difficult to measure, no doubt. But a CYA mentality is so ingrained in the practice habits of most American doctors that half the time we don’t even realize we’re doing it. That 24 year old female after gallbladder surgery who complains of chest pain and has a history of anxiety. Reflexively, I find myself ordering a troponin and EKG, knowing full well that there is no actual MI to rule out. The internist who obtains an infectious disease consult on a demented lady with a UTI when he knows the ID doc will just order the same antibiotic he himself would have written for. It’s pervasive. No one wants to get caught having “not done enough”, lest the trial attorneys start circling. It isn’t enough to meet the standard of care anymore. We seek to exceed the standard of care in most cases, without knowing what in the hell that actually means.

But anyway. I’ll play devil’s advocate to myself for just a second. Let’s say I concede the supposition that the costs of defensive medicine are grossly overestimated. Maybe Tom Baker is exactly right. But my next question would be: who cares? Who cares whether or not defensive medicine is a costly burden on society.

First of all, why would anyone in their right mind think that malpractice expenditures would ever exceed more than 1 percent to 2 percent of total health care costs? We spend trillions of dollars on health care in this country. Even if billions are wasted on frivolous lawsuits and malpractice insurance, that total is always going to be a mere drop in Lake Erie compared to the sum total. If malpractice costs were 20 percent or 30 percent of the total cost, this country would have no doctors. It would be the laughing stock of the world. It will never happen. Mathematically it is an impossibility that medical malpractice would ever comprise a substantial percentage of our cost burden. So it’s a straw man argument.

Secondly, since when did the relevant cost of an unjust or inefficient system become the sole determinant of whether or not it ought to be reformed? Petty theft from your local Wallmart or Sears does not affect corporate America’s profit margins. So why do we have laws making it illegal to steal? Why not ignore all theft less than $10? Sometimes it’s more expensive to hire more security and improve a store’s surveillance technology than it is to just accept the minor theft as losses every month. So why make it a crime? Preserving order and justice in society via no tolerance anti-theft laws just doesn’t make sense from a purely fiscal perspective. But we do it anyway to preserve the rule of law.

The current contentious, highly litigious environment makes it very difficult to be a practicing physician in America. You can be sued at any time for any perceived slight. Outcomes, rather than actual negligence, are what drive patients into the arms of plaintiff’s attorneys. And outcomes are the gripping, poignant reminders of human and, by extension, physican, fallibility. No one is interested in hearing about how you ordered this and that and pursued diagnosis X all in good faith. What they care about is the picture of the smiling grandmotherly woman who is now dead following elective colon surgery. The video of the young child with cerebral palsy struggling to feed himself. It becomes a spectacular show trial with an emphasis on the subjective loss and emotional turmoil of the plaintiff.

Don’t get me wrong. Physicians make errors. There are negligent doctors in this country. And those who fail to meet the standards of care ought to be held accountable. But not like this. Not with this wild west, lotto-style system of hired gun “experts” and charismatic attorneys and juries comprised of laymen who couldn’t tell you the difference between an aneursym and a stalk of asparagus. It’s a nonsensical, jackpot-geared system that rarely provides true justice even in cases of physician neglect.

As physicians, we aren’t asking for much. All malpractice claims ought to be handled by a panel of appointed experts. These panelists ought to be professionals, former practicing physicians who are less likely to be swayed by a crying mother or a high profile plaintiff’s “expert” who hasn’t practiced medicine in 10 years. Moreover, there’s no reason not to cap punitive damages. Compensatory damages are already uncapped. So if you’re a professional baseball player whose doctor prescribed a medicine which made you go blind, your compensation will be for whatever your losses would be from not playing professional baseball. Punitive damages are what make medical malpractice attractive to plaintiff’s attorneys. Not all clients are million dollar baseball players. It isn’t lucrative enough to spend the amount of time required by a major malpractice trial to justify chasing every ambulance if attorneys don’t have that carrot of a million dollar verdict hanging at the end of the stick.

And that’s it. That’s my proposal. Make it more of an arbitration process where the details of the case in question are evaluated by expert panels and judgements are determined in an objective fashion. And then cap punitive damages. It’s very simple. I don’t claim that fixing malpractice will solve our cost problem. But it will make doctors sleep a lot easier. It will reduce the often times adversarial relationship that can develop between doctor and patient. It will eventually lead to a reduction in the absurd practice of defensive medicine whereby a doctor is forced to do something that he knows is unnecessary but the spectre of future medicolegal entanglements overrides his clinical judgements.

With the expansion of the safety net and the resultant millions of Americans who will need doctors, is it asking too much to cede to us this important request? We need more internists and general surgeons and primary care physicians. How are we going to lure them into our noble profession without some sort of tort reform? Why is it being shot down just because it may not have any effect on total healthcare expenditures? The fact that you will not find any reference at all in HR 3200 to tort reform is an act of aggression and base cyncism on behalf of President Obama and the architects of reform in Congress. They are essentially telling us that we are not important. Yeah yeah, we’ll freeze cuts in Medicare reimbursements, they say. You should be happy just with that.

The stress of a lawsuit, of having your capacity as a clinician questioned, is just a crushing, crushing blow to one’s self confidence. We enter this profession to help the sick, ostensibly. An accusation of intentional malfeasance strikes at the very heart of what it means to be a doctor. To venture down the dark paths of self doubt and retrospective scrutiny can be a perilous journey. Granted, there ought to be consequences when true negligence occurs, some way to give a patient some form of retribution. But too often we are demanding that American doctors venture down this path needlessly, without reason, without justification, without appropriate vetting. All a doctor ever has is her knowledge, her experience, and her clinical judgment. The process of enduring a malpractice trial, of doubting those foundational tenets of your professionalism is a harrowing experience, one that, even when you are vindicated by a verdict for the defense, is an experience that chisels away at your idealistic pretensions, leaves you somehow a lesser form of the sort of doctor you thought you were, almost spectral, exposed and vulnerable, and, tragically, more wary of those fellow humans who happen to be your patients….

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