FORUM
Malpractice laws fail to accomplish objectives
 Dr. Steven Wolfson 06/18/2003
 

"Doctors should not bury their mistakes." I learned this in medical school. Since then, I've served as an expert witness in malpractice suits, for both plaintiffs and defendants. My experience, over 35 years, has made me doubt that the legal system helps prevent malpractice or effectively compensates victims.

A report of the Joint Economic Committee of Congress, "Liability and Medical Malpractice: Issues and Evidence," arrived at the same conclusion in May. It stated that malpractice law "exists for two goals: to compensate the negligently injured, and to penalize and deter negligent acts. … Unfortunately (it) fails on both accounts."

I've watched as genuine malpractice was presented to a jury that found for the defendant because he was likeable or it didn't like the expert witness. I've seen a complication develop from surgery, a physician identify the problem and treat it, only to be sued for malpractice and found liable because the jury felt that someone had to be blamed for a bad outcome. I've watched victims of malpractice die while waiting for their case to come to trial. I've seen enough frivolous suits pursued to paralyze the courts, while people needing immediate help are told to wait.

Decades ago, it was a stigma for a physician to be named in a malpractice action. No more. The exposure to litigation is so widespread, so independent of the existence of negligence, that a suit now is felt simply to indicate that the doctor deals with sick people.

Litigation is traumatic. Patients, having survived their illness and returned to their lives, must be pulled back to relive it all. Physicians must hear their decisions debated in an arena where the language is different, the customs foreign, truth often inadmissible as evidence, and intent irrelevant.

Doctors should not bury their mistakes. But the liability system hinders those who would honor this motto. Fear of lawsuit prevents full exploration of errors. It takes real courage to acknowledge error in this environment, and considerable risk.

How might things be handled differently? Consider how it might work if the investigation of medical errors was handled not solely to find a guilty party, but to identify what went wrong. The first person to know when a mistake has injured a patient is usually the doctor or nurse involved in the error. He or she should be encouraged to report the problem promptly and openly.

This process of fact finding, if negligence were found, would lead to prompt remedial action, suspension and/or supervision of the doctor involved, or invocation of the court system if appropriate.

The next step should be to notify the patient that an error had occurred. Advocates for reform have proposed the "early option." Under this system, the patients could choose to accept immediate payment for all their medical and economic losses, provided that they agree not to go to court over this issue. These payments would be supported by insurance, and the insurers should welcome this since they would not have to pay plaintiff and defendant attorney fees and court costs.

This approach would redirect the funds paid as premiums for malpractice insurance to support of injured patients. Currently, though much is made of the impact of "huge" awards given to victims of malpractice, only about 40 percent of the premium dollar spent to purchase malpractice insurance is eventually paid to injured patients! Even the least efficient HMO allocates 70 percent of the money paid for medical insurance to patient care.

No doctor starts his day intending to commit malpractice. No lawyer starts her day trying to prevent funds from going to her client.

Doctors know that we need to work harder to prevent patient injury. And, once an injury has occurred, we want to find the problem, correct it, and see that patients receive the help they need for a full recovery. The malpractice attorneys I have worked with want this as much as we do.

But those of us in this system know that a process of court reform must happen first if we are to achieve earlier identification of errors, support for patients when they really need help, and a more efficient and humane procedure for all.
 
Dr. Steven Wolfson is a cardiologist in New Haven. Readers may write him in care of the Register, 40 Sargent Drive, New Haven 06511.