It's been a year since my trial, and five years since the elderly man came into the ED in shock. The trial came much later, of course, after years of depositions, most of which I insisted on attending. The trial itself is best described as life-changing: six days of humiliation and accusations, all the while being told that it was nothing personal.
It felt very personal when they questioned my honesty, morals, and intelligence. It felt personal when they didn't miss a chance to accuse me of recklessness, stupidity, arrogance, and laziness. It felt very personal when they asked for an award far more than my policy limits, and I, as the sole defendant, had to imagine the possibility of losing my house, retirement savings, and kids' college fund. Through a stroke of luck, the jury returned a decision for the defense. No one will convince me that on another day, a different group of 12 people could not have found me guilty, and awarded my future to the plaintiff.
Dr. George Hossfeld, Assistant Professor Emergency Medicine, University of Illinois-Chicago
One of my recurring topics is the gap of understanding between physicians and those attempting to reform medical care. No greater disconnect exists than between doctors and outsiders than their attitude toward medical malpractice. As illustrated in the above quote and as mentioned previous blogs, this visceral issue may be the most important factor undermining social contract between physicians and society. Congress does not understand the non-economic, "black swan" impact of medical malpractice on the physician, which may doom all attempts to cut medical costs.
For doctors, malpractice is personal, but for Congress it is all about business, often their own. Trial attorneys are one of the largest political contributors and are substantial backers of Obama and Biden. Senator John Edwards made his fortune suing doctors. Malpractice attorneys point to the statistic that only 2% of medical costs are directly related to malpractice, and many patients are severely injured or killed by medical incompetence. This is a complex issue, with good arguments on both sides, however it is clear that most money spent on malpractice litigation goes to lawyers not patients, and the legal profession's motivation is not the health of the American people.
The most important impact our malpractice system may have is on doctor behavior. Being involved in such a lawsuit, or even hearing about one, changes behavior forever. Avoiding the pain or litigation never leaves consciousness, and often becomes the overriding consideration for how doctors perform their duties. This worry about malpractice will prevent the transition for "exception based" medicine to the "evidence based" medicine touted by Dr. Berwick and other Obamacare advocates.
As long as the specter of malpractice looms doctors will continue to do expensive tests for low probability diseases. The tiny risk of malpractice litigation overwhelms all learning, evidence and reason. "I was sued once" spoken by a colleague becomes the final arbiter of medical decision making. One missed case of coronary disease in a young patient justifies thousands of negative blood tests, no matter what the "evidence".
Estimates are that 20-30% of medical costs are related to malpractice avoidance. These numbers may understate the problem, as malpractice concern permeates the entire medical enterprise. The "reformers" point to these statistics as a potential source for huge savings by avoiding these unnecessary studies. However, without simultaneous dramatic change in the malpractice process, doctors will not change their behavior. The reforms required will require more than monetary limits. The entire process needs to be changed. More later.
http://journals.lww.com/em-news/pages/articleviewer.aspx?year=2009&issue=01000&article=00003&type=fulltext
http://www.insurance-reform.org/issues/MedMalSystemCostsFactSheet2009F.html
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