The recent “Occupy Movement” has highlighted the fact that though a group may be in the majority, it does not follow that its rights are necessarily respected. Specifically, the movement refers to the “99%,” those of us in the population outside the top 1% financially who are victims of a broken system. This post, however, is devoted to another 99%–one which is much less well known.
I am referring, of course, to the percentage of doctors who will be sued for malpractice.
According to a recent study published in the New England Journal of Medicine, 99% of physicians practicing in “high risk” specialties (such as Internal Medicine, General Surgery, OB/GYN, and yes, Cardiology) will face a malpractice suit before the age of 65. But that’s just high risk specialties. In “low risk” specialties (such as dermatology, ophtalmology, and psychiatry) that number drops to a paltry 75%.
These numbers serve to illustrate a point that practicing physicians know all too well–the malpractice system in this country is badly broken. After all, a good indication of a problem might be when a “low risk” specialty has only a 75% chance of being sued. A system in which between 75-99% of providers of any service will be sued is necessarily a system laden with skewed incentives, unrealistic expectations, and held hostage by outside forces.
Not all doctors of course, deserve the benefit of the doubt. There are bad doctors out there who put profits or personal gain ahead of patients, and deserve to be sued (sometimes repeatedly). But if we, as a society, have reached the point where we honestly believe that 75-99% of our healers fall into this category then we have truly lost any semblance of trust and civility.
If we choose to believe that the vast majority of our doctors are not incompetent and negligent, then it stands to reason that many, if not most, of these lawsuits are unnecessary, without merit, or frankly frivolous. While 75% of low risk specialists will be sued, only 19% will eventually pay claims (ie, lose or settle). Much of the remaining 56% of suits are likely, when examined, frivolous or at least without merit (not all, because as everyone knows, even people who are right can lose lawsuits).
These lawsuits, while perhaps not costing the physician in actual indemnity, carry with them a significant cost to the physician and the population. The practice of “defensive medicine” (tests ordered to prevent a lawsuit, or whose primary use is to defend ones’ self during a lawsuit) has become so commonplace that the term is now obsolete. The reason is that the legal standard for malpractice is based on the “standard of care” (what one’s peers would do in a similar situation). Defensive medicine has become the new standard of care, and thus any practice of logical, pragmatic (non-defensive) medicine is at risk for malpractice exposure.
This may explain why estimates of the costs of “defensive medicine” by lawmakers (who are coincidentally mostly lawyers) vary in the 1-2% range of health care expenditures, whereas an analysis of a survey of doctors who are actually practicing puts this number at 34%. Whereas the lawmakers may use “standard of care” as their baseline (the legal definition), doctors would tend to identify defensive medicine as testing which pragmatic, logical medicine obviates the need for. In my own personal observations, the latter number is clearly more accurate than the former. If doctors would truly be allowed to practice based on clinical accumen and physical examination, the use of CT scans, MRIs, and nuclear stress tests (all very high ticket items) would decrease by orders of magnitude… Importantly, with little discernible difference in outcomes.
The issue of “standard of care” (the legal standard for malpractice) has gotten so bad in fact that doctors have been placed in virtual no-win situations, making one wonder how even 1% ever escape being sued. For example, a doctor has been successfully sued for screening a patient for prostate cancer, and recommending treatment of the cancer which resulted in complications. The complaint? That most medical studies and societies have shown no benefit in screening for prostate cancer. A doctor has also been successfully sued for not screening a patient for prostate cancer, leading to a delay in diagnosis. The complaint? While screening has never actually shown a benefit, it is clearly the current “standard of care.”
How should this misuse of the American judicial system be righted? Much smarter minds than mine have tried and failed at this endeavor, though admittedly most of the failures were due to politics rather than policy. The answer, however, lies with incentives (as it does with all aspects of human behavior). Remove the incentives for unnecessary lawsuits and increase the penalties for frivolous lawsuits and the problems should correct itself.
While the rights of the plaintiff must be protected, the rights of the physicians cannot be ignored. Compensation for the legal fees or “closure of practice” losses (opportunity cost for weeks of sitting in court) of the prevailing physician would be a start, but would admittedly discourage those of limited means from seeking compensation for true loss. The most important move would be the transfer of all malpractice proceedings from jury trials to arbitration courts. Currently, malpractice trials are low on fact and objectivity (qualities we prize in our physicians?), and high on emotion and loss. Juries, usually medically unsophisticated, fall trap to the same smooth talking snake oil salesmen that convinced the plaintiff to sue in the first place, and for that reason often side with the plaintiff inappropriately (leading to a large number of physicians and insurers to settle out of court so as to “not risk it”). An arbitration court made up of three or more judges trained in medical malpractice (though, importantly, not medicine) would allow fair proceedings based on objective evidence and help even the playing field.
However it is achieved, a fundamental reworking of the malpractice system is mandated in order to control medical costs and allow for accessibility to medical care. This article in the New England Journal serves to highlight in the strongest and starkest terms the extent and severity of the problem, there can be no more ignoring or denying it.
We are the 99, and we demand a solution.