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On the topic of lawyers, no shortage of opinions

Yale Medicine Magazine, 2003 - Summer


Are attorneys to blame for doctors’ woes? Well, yes, but there are more fundamental issues in the malpractice debate.

As the public dialogue about malpractice insurance reached a crescendo in February and physicians across the United States staged demonstrations for limits on lawsuits, we invited alumni in medicine and public health to share their opinions about the roots of the problem and its possible solutions. Readers of Yale Medicine were generous with their ideas; echoed in many of the messages is a sense among alumni that the business of medicine has chipped away at the doctor-patient relationship. Many also feel that, as a society, we look to assign individual blame for poor outcomes instead of attending to systemic flaws that could be repaired to improve medicine and prevent errors from happening in the first place. Here is a sampling of the responses we received.

Malpractice mess reflects a need to regroup

There are numerous factors that contribute to the current problems in malpractice suits and insurance.

There is no unified, cogent voice for physicians. The American Medical Association, once the most powerful lobby in Congress, was not supportive of Medicare and lost the prior uniform support of doctors. Today, the AMA has little impact on legislation or thinking about medical issues. The organizations of the various medical disciplines are too splintered to have an effective voice, although the American College of Surgeons has made an effort.

The image of the physician has sunk to unimaginable depths, partly because of unfulfilled expectations, partly due to actual malpractice and partly due to the depersonalization of medical care in the HMO/prepaid/group environment.

The tort lawyers are clever, successful and energetic. Their financial successes help to empower their voice in judicial appointments and in legislative action.

The advances in medicine and surgery have increased not only the horizon of treatable and preventable disease but also the risks, potential bad outcomes and severity of disease that is attacked.

Since the federal government encouraged the expansion of medical schools a few decades back, increased competition among physicians may be distracting some of them from seeking ideal patient outcomes.

Censure, reprimand and punishment of physicians for malpractice are accomplished by the competitive and antagonistic tort system, without a parallel goal of preventing further error and without any real effort to improve medical care.

It may be too late for the physicians to regain control; the hospitals have largely separated themselves from allegiance to the physicians. The HMOs are likewise unhelpful and the medical schools have been passive. Perhaps an independent commission should investigate the problem and make suggestions for its solution, either through meaningful legislation or some new national system aimed at both appraising suspected instances of malpractice and correcting the flaws and circumstances that lead to poor medical outcomes.

Robert C. Wallach, M.D. ’60
New York, N.Y.

The big question: where to impose limits?

The hottest issue in this tempest is probably the perception of “open season on physicians” and on medical care in general. While many doctors may have been influenced in their ordering of diagnostic tests by the idea of defensive medicine, I believe the greatest damage that this produces is to the physician-patient relationship. An element of trust is gone. Is this a consequence or side effect of malpractice, or both? Why should it be socially permissible for lawyers to advertise “you may be entitled to a large cash award,” reinforcing the perception that the absence of perfection in medical care entitles them to lottery-type winnings? While I am delighted that lawmakers, who of course are generally lawyers, are making some strides in malpractice reform, the controversy continues over just where limits should be ethically imposed. We need expertise and responsible leadership on this issue.

Marie Tsivitis, M.P.H. ’86
Stony Brook, N.Y.

Michigan’s specialty solution

The malpractice crisis here in Michigan simmered down a few years ago. Our then-governor, John Engler (a very conservative Republican) and the state legislature passed a fairly rigorous tort reform bill that greatly limited the ability of plaintiffs’ attorneys to file suits. Among the other provisions were, first, that a prospective plaintiff had to submit a notice of “intent to sue” 18 months before the actual suit could be filed. The intent to sue had to have a signed statement from an “appropriate” physician stating that he/she agreed that the standard of care had been breached. An “appropriate” (that’s my word, not in the law) physician was one in the same specialty as the prospective defendant, and the plaintiff’s expert physicians had to be in the same specialty. A family practitioner, for example, can’t testify against a neurosurgeon (although before this law, this sort of thing frequently occurred). Malpractice suits still take place in Michigan, but their numbers are greatly reduced.

Robert N. Frank, M.D. ’66
Bloomfield Hills, Mich.

Access to appropriate care will be impeded

I work for a self-insured corporation, so the malpractice issue doesn’t directly affect me. Our corporation does have a secondary insurer, and rates have gone up, but this hasn’t yet translated into a change in my salary. The real change has come in the specialists to whom I refer patients. The vascular surgeon we use for complicated cases had trouble getting insurance this year because he does high-risk procedures. If he can’t afford his insurance next year, my patients will get amputations instead of limb salvage. Some of my patients have lost their ob/gyns.

Richard Ihnat, M.D. ’91
St. Louis, Mo.

Defensive medicine, the worst offense

The high cost of liability insurance is now in the limelight, but I believe there are two additional concerns which are actually of much greater importance. One is the enormous volume of “defensive medicine” and its detrimental effects on health care affordability. The other is the terrible loss of idealism among physicians and other health professionals, even if they themselves are never or seldom sued.

Hyman J. Milstein, M.D. ’75
Studio City, Calif.

“We were all losers”

I am a local health director in West Haven, Conn., and our small malpractice insurance story is the following. We have had a semiretired urologist running our STD clinic for years. A few years back his insurance rates got doubled, and even if we certified that he was only doing this small amount of clinical public service work, they would not cut him a break. He ended up retiring rather than getting paid enough to cover his insurance premium. We lost a wonderful, gentle and experienced doctor, and he lost a major connection to feeling useful and vital in his life, albeit for only a few clinical hours per week. We were all losers in this, even the insurance company, which now no longer gets his premiums and never had to pay out for him for the 15 years he worked with us!

Eric Triffin, M.P.H. ’86
Bethany, Conn.