Blog | Wednesday, August 24, 2011

Who pays for medical malpractice litigation?

The short answer: you do. Here's why.

Ask any doctor, at least anyone who has been out practicing clinical medicine for some time, how much the threat of a malpractice suit influences their behavior and odds are, they will tell you, "A lot!" While the degree may vary depending on your specialty, your years in practice, your patient clientele, your prior malpractice history, and the anecdotes you have heard from colleagues, you cannot be immune to the influence of malpractice law as it exists today in the U.S. I had intended to talk about how health care costs are influenced by malpractice, but it is impossible to take up that subject without touching on how my own practice has been affected. And how this directly affects the kind of care I offer my patients.

It has been observed that while most people have negative perceptions of lawyers, most will tell you that their lawyer is a great person. The same has been found true of peoples' attitudes towards doctors, plumbers, auto mechanics and other members of service professions. (Car salesmen, to their misfortune, don't even enjoy that consolation.) Thus it is for malpractice attorneys: Doctors despise plaintiffs' attorneys and look favorably on defense attorneys. Hardly a surprise. And as part of their job, many defense attorneys are engaged by malpractice insurance companies and hospitals not simply to defend malpractice cases after the fact, but to practice "preventive medicine" for malpractice suits. These take the form of lectures and workshops, sponsored by malpractice insurance companies or hospitals, educating us on how to avoid being sued. We listen carefully to the advice of people who make it their profession to defend us. They are the "good guys."

Let me say at the outset that all malpractice defense attorneys will agree and counsel that the best defense is not to commit malpractice in the first place. But they will tell you that the many of the unfavorable judgments they see are not the result of medical errors themselves, but rather errors in patient relations, documentation, office management and other factors that might have easily averted a suit. In fact, they tell us that there are frequently judgments against physicians where the weight of the evidence and overwhelmingly common sense would argue otherwise, due to discrepancies in the way the patient or their family recalls the events. And so we are instructed from time to time on how to do a better job attending to all these factors so as not to leave ourselves open to charges of failing to live up to what is called the "standard of practice."

The last lecture of this sort that I attended began with a recitation of what you might think were preposterous jury verdicts. In one case, a patient was told she needed a test because she might have cancer. She refused it. She went on to get a serious incurable cancer. She sued the doctor for failing to inform her fully of the need for the test. Her reason: "He never told me that cancer could kill me!" Then there was the patient who was told that his brain surgery for a life-threatening blood vessel problem carried a risk of stroke. He sued because, unfortunately, his surgery was complicated by a stroke. His complaint: "He never informed me that a stroke means a partial paralysis!"

Following a series of such cautionary tales, the defense attorney proceeded to instruct us on how we might best avoid such scenarios. An example: 99.9% of all headaches are not due to brain tumors. Numerous scholarly articles in the medical literature have shown how unproductive and wasteful it is to do CAT scans on everyone with a headache. But if the one person in a thousand decides to sue, the plaintiff's attorney will ask, "Doctor, did you know that there was a chance that the patient's headache was due to a brain tumor?" If you start to say, "Yes, I did, but the chances of that were ...," you will be cut off immediately with, "Thank you very much, doctor. So you knew that there was a risk he had a tumor and yet you didn't order a CAT scan, is that right?" So what are we supposed to tell our patients to ensure we don't get sued for failing to inform them of the risk?

The attorney told us that if we thought there was even an infinitesimal chance that a patient's complaint might be a symptom of a cancer, and they ask us, "Doctor, could this be due to a cancer?", we are obliged to tell them "Yes." no matter how remote the possibility and no matter what affect that answer might have on the patient's emotional state.

What might be the effect of our heeding this advice? I'll leave you to wonder until the next entry.

David M. Sack, MD, is a Fellow of the American College of Physicians. He attended Harvard and Johns Hopkins Medical School. He completed his residency at Lenox Hill Hospital in New York City and a gastroenterology fellowship at Beth Israel-Deaconess, which he completed in 1983. Since then he has practiced general gastroenterology at a small community hospital in Connecticut. This post originally appeared at his blog, Prescriptions, a series of musings on medicine, medical care, the health care system and medical ethics, in no particular order.