In every major metropolitan area within the United States, you will find the names of leading medical malpractice attorneys, on TV and billboards, alerting you to their availability. I sometimes wonder if TV and radio stations would face imminent bankruptcy if the advertising revenue from plaintiffs’ attorneys and politicians was restricted on the airwaves? As a licensed attorney for many decades, I can remember when these massive advertising campaigns by lawyers were considered illegal by the respective state bar associations. However, as time has moved forward, we have achieved this excessive commercialization of medical malpractice.
In a recent Medscape Survey report by Marcia Frellick ( Almost Two Thirds of Physicians Have Been Named in a Malpractice Suit: Survey – Medscape – Nov 21, 2019), the author references a benchmark study by the American Medical Association in 2016 that indicates the extent of this malpractice epidemic. In specialties of surgery, urology, obstetrics, and otolaryngology, the statistics reveal that over 84% of the doctors have been named in lawsuits (Medscape).
Medicine is referred to as a Healing Art. This concept recognizes that physicians are human beings trained to advance the health needs of their patients. However, we as a society, through our litigatory process, demand perfection, not just excellence. We ask of physicians more than a reasonable standard of care. Because of this, most cases are settled. Neither the defendant doctor nor their insurance carrier is willing to take the risk of a jury verdict driven by emotion.
When a physician does surgery or prescribes a course of medical treatment, the burden of care then shifts to the patient and their family to continue the path to recovery. Hospitals have reduced the length of stays for many in-patient procedures and have accelerated post-procedure discharges. As a result, many patients go home with enough equipment that suggests that they should still be in an ICU. This accelerated discharge process has resulted from the payment protocols for various procedures. The physician is, in my opinion, left with the hope that the patient being discharged can fully understand the discharge plan and will follow it. There are numerous studies indicating that many patients don’t even fill the prescriptions needed to continue along the recovery path. As a result, the outcome of the patient’s experience is less than expected. This can then be coupled with the patient becoming homebound while seeing repetitive ads lauding the experience and success of the malpractice plaintiff attorneys.
he American Medical Association study points out some very interesting data. Female physicians are less likely to be sued than male physicians. Does this mean that female physicians are superior to male physicians? Doctors that have excellent “bedside manner”, whether male or female, are much less likely to be sued by their patients. In the past, medical schools chose their students mostly on the basis of their IQ (Intelligence Quotient) and not their EQ (Emotional Quotient). Admissions were based on MEDCAT scores and the GPA that students carried in their undergraduate studies. Today a number of medical schools are beginning to value a person’s EQ as an important factor in their ability to provide compassionate medical care. I have seen this in action, having served on the Board of Managers at to the Oakland University William Beaumont School of Medicine. The founding Dean, Robert Folberg M.D., developed entry criteria and curriculum designed to select and educate physicians which incorporates skills associated with their IQ and EQ.
There are circumstances when physicians deserve to face the consequences of their actions in delivering care. However, the frequency of those occasions is far lower than the number of medical malpractice lawsuits being filed. We live in a society where everybody, other than ourselves, is responsible for events that are contrary to our expectations. We are inundated with ads every day from multiple attorneys, each promising to fight the insurance carriers and ensure that the client receives significant recompense for any events of “malpractice”. These circumstances drive great doctors into early retirement. I have spent a great number of years in watching as residents in their specialties and subspecialties as they move into the economy. In many instances, they were in their mid-30s, and by their late 50s they were tired of the pressure of the grind and the threats of lawsuits.
The choice is ours as a society. Do we want these very experienced physicians to be at our bedside when we face critical medical issues or are we satisfied with the conveyor belt litigation process that is pervasive throughout the United States? This question is a societal question because it pervades many more aspects of our lives as we seek perfection over excellence that is beyond our human capacity. The solutions we seek are to hold others accountable rather than assume responsibility for our own lives. In medicine, this has become very costly for our society.
