Medical Malpractice: An Alternate Take…Yikes

“I’m sorry I wrote such a long letter. I did not have the time to write a short one.”

–Abraham Lincoln

In a way, when I pondered writing on this subject, the above quote encapsulated my view.  Malpractice reform is charged, and like immigration modernization and gun control, both sides produce credible, but skewed perspectives on why their positions are correct.  The evidence base is vast, and to do the topic justice, the post would require more words than I have to commit.  Nevertheless, the difficult part, mainly, how to economize language while simultaneously making my point, enlighten the reader, and provide useful citations, served as a challenge.   I will try, but Lincoln is a tough act to follow.

A recent exchange on our public policy committee list serve was illustrative of how polarizing liability reform is—even amongst docs.   We parried on whether to endorse the HEALTH Act, the most recent house bill on tort reform.

At issue were caps on non-economic damages and whether this intervention was the most appropriate to mend our liability system.  The literature is far from definitive on this fix—at least depending on how one defines “fix.”

If you were to read this statement from the AMA, or this one from the AAJ*, and was dispassionate on the subject, you would conclude both sides are reading the same playbooks, but rendering two different conclusions.  Both would appear correct and rooted in evidence.

The Yin

...and The Yang

However…

We physicians feel pressured and operate at times under a cloud of suspicion.  Regardless of the relatively minor costs defensive medicine contributes to health care inflation, the Sword of Damocles hangs over us, and is a fitting analogy and is good as a descriptor for our current state of emotions as I can muster.

We use assurance behaviors (“CYA” medicine), lose sleep, and undergo mental strife due to the pressures of practice.  Not once, but twice, I was named in cases—as a remote participant with no involvement in the actions in question—but suffered the needless consequences until the depositions were concluded, and my  inevitable discontinuations were dispensed.  I know how it feels.  My counsel informed me numerous times, “Brad, remember, to you this is personal, to us it is business.”  Not comforting, but these experiences were eye opening and instructive.  Nonetheless, I always try to maintain balance in my views.  It is the pragmatist in me.

The trial attorneys see a health system gone amuck, with errors unchecked and negligence rife, with docs under the radar, hiding beneath the white coat of silence.  For physicians, the former statement needs no links or proof of concept.   You know it.  Docs, health providers of all stripes, and hospitals harm patients; corrective actions are slow in coming, and the best we can proffer is caps on non-economic damages.  How do John and Jane Q. Public see it?  Not ideally I suspect, and even as trusted as the guild of medicine might be, it is only AMA, GOP, et al. demagoguery and the continued beating of the liability drum that cloaks the public from the facts, IMHO, and is not the optimal strategy.

The attorneys’ take: the docs want their premiums minimized with the freedom to operate under business as usual terms.  Additionally, attorneys who legitimately see their role in the system as justice seekers for injured individuals work hard.  Taking a case, vetting it, and determining its merits are as difficult as a challenging patient is to us.  I exclude the ambulance chasing, unsavory types of course—but like medicine, the “sleaze factor” has potential to tarnish all and these individuals will always be out there.

Unfortunately, there exists a shame and blame culture with too much finger pointing on both sides.  Just watch some of this month’s House Judiciary Committee Hearing on Medical Liability to get a reading of the high temperatures, and you will quickly see how contentious the debate is for each faction (trust me, it is not boring viewing).

What is my point?

Realize that:

  • The problem is not just “greedy lawyers.”
  • We have to clean up our own house, or someone will do it for us.
  • It is too easy to dig in and blame the healthcare mess on someone else—forgetting that for-profit medicine, supplier induced demand, and the belief that it is “the other doc” with the resource problem—that are equally to blame and partially why we have our damaged system.

The solutions, whether they are health courts, disclose and compensate programs, EBM use and safe harbor protection, or arbitration agreements—all are flawed.  Yes, they are better than what we have currently, but do not let the rhetoric lull you into thinking solutions are at hand…but only if we invested in the right projects and refocused our health reform efforts.

Add to the mix that states oversee tort law, not the federal government, and you have a high hurdle.  Yup, the Constitution and Tenth Amendment may pose just a trifle of a challenge and a national solution is not in the offing currently.

I will leave it there, but keep in mind this is a work in progress and we, the house of medicine, must be the catalysts and help lead the way.  As stewards of the hospital–a dangerous place indeed–it is the intensivists, ER docs, and us that have to make it happen.

If you wish to read more on med mal reform, search anything Michelle Mello has written.  She is the acknowledged authority on the subject and is widely published.  An excellent 2011 review is here.

Oh yeah, I always find this commentary amusing, and use it often in presentations.  The irony wont be lost on anyone, trust me.  It is not just one of the authors, but both that will put a smirk on your face…and notice the year.

*AAJ = American Association for Justice, or the AMA equivalent for trial attorneys

Brad Flansbaum

Bradley Flansbaum, DO, MPH, MHM works for Geisinger Health System in Danville, PA in both the divisions of hospital medicine and population health. He began working as a hospitalist in 1996, at the inception of the hospital medicine movement. He is a founding member of the Society of Hospital Medicine and served as a board member and officer. He speaks nationally in promoting hospital medicine and has presented at many statewide meetings and conferences. He is also actively involved in house staff education.

Currently, he serves on the SHM Public Policy Committee and has an interest in payment policy, healthcare market competition, health disparities, cost-effectiveness analysis, and pain and palliative care. He is SHM’s delegate for the AMA House of Delegates.

Dr. Flansbaum received his undergraduate degree from Union College in Schenectady, NY and attended medical school at the New York College of Osteopathic Medicine. He completed his residency and chief residency in Internal Medicine at Long Island Jewish Medical Center in New York. He received his M.P.H. in Health Policy and Management at Columbia University.

He is a political junky, and loves to cook, stay fit, read non-fiction, listen to many genres of music, and is a resident of Danville, PA.

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