We Are the 99.

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.

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7 Comments

  1. “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.”

    I’m just curious, what percentage of these do the plaintiffs end up winning?

    Reply
    • 22% of plaintiffs received indemnity payment… the amount that “won” versus settled out for monetary compensation is not laid out in the study.

      Reply
      • Ali Zakir

         /  November 11, 2011

        Huzaifa,
        The 99% is a projected…”The projected proportion of physicians facing a
        malpractice claim by the age of 65 years was high….Among physicians in low-risk specialties,36% were projected to face their first claim by the age of 45 years, as compared with 88% of physicians in high-risk specialties. By the age of 65 years, 75% of physicians in low-risk specialties and 99% of those in high-risk specialties were projected to face a claim. The projected career risk of making an indemnity payment was also large. Roughly 5% of physicians in low-risk specialties and 33% in high-risk specialties were projected to make their first indemnity payment by the age of 45 years; by the age of 65 years, the risks had increased to 19% and 71%, respectively.”

        Of the actual claims that were looked at in the study…” ….Across specialties, 7.4% of physicians annually had a claim, whereas 1.6% made an indemnity payment. There was significant variation across specialties in the probability of facing a claim, ranging annually from 19.1% in neurosurgery,18.9% in thoracic–cardiovascular surgery, and 15.3% in general surgery to 5.2% in family medicine, 3.1% in pediatrics, and 2.6% in psychiatry.

        Aamer,
        In regards to your thoughts about handling lawsuits thru arbitratation, I must say I too am a little skeptical. Being a federal employee, I am puportedly protected thru the Federal Tort Claims Act (FTCA). Processing of federal malpractice tort claims goes thru a pseudo-arbritration system using something called a “Medical Claims Review Panel”. Without getting into alot of details, myself and many of my colleagues consider this system to be flawed and would likely vote to have our own personal legal representation instead of some “panel” if we were sued.

  2. Anant Sahai

     /  November 10, 2011

    There is a much better overall solution: guaranteed lifetime free health care for all citizens of the United States of America — the way that it is done in the U.K., France, or even Canada. They have far lower rates of malpractice suits for the simple reason that when a simple mistake happens, the physicians can just treat the consequences without having to raise red flags with insurance companies or other parties interested in denying payment. Patients accept that simple mistakes happen in any human activity, and the physicians are humans. It is the adversarial payment relationship in the United States’ system that results in the invocation of the adversarial legal process.

    Arbitration is a fundamentally flawed system because people have agency in choosing arbitrators. This has been seen over and over again where companies direct business (and hence profits) to arbitrators that have a reputation of ruling in their interests. This erodes all trust in that system. If we fixed the problem of feeling uncertain of getting treatment, the juries would also be calmed down. They would just say “look man, bad stuff happens. They clearly tried their best and when things went bad, they followed up to try to fix it. Unless there is a clear pattern of abuse there, we’re going to have to chalk this up to bad luck.” But right now, they are afraid of leaving someone with a medical problem and no way of affording treatment because the average citizen is himself afraid of that. That is the “irrationality” that moves them.

    Reply
    • Your point is an excellent one… Neither problem exists in a vacuum without the other. So many medical decision (especially by less than scrupulous doctors) is influenced by payment decisions… either positively (do more tests because one gets paid), or negatively (do less tests because one is capitated). In our practice, we work VERY HARD to resist those temptations, and that was one of the main reasons I joined this practice. Arbitration for medical malpractice (as I and others have suggested it and as is in place in many states already) would be with professional, full time judge arbitrators devoted to medical malpractice, as opposed to the system that you may be referring to.

      Reply
  3. I thought the big Answer to this problem was tort reform? What is tort reform in theory, how does it solve the problem, and how has it (or how has it not) been implemented?

    Reply
  4. Well said. I’ve been in practice as a cardiologist for less than 5 years and have already been sued. The allegation against me and my 30 co-defendants (hospitals, doctors who did nothing but read an ekg or chest x-ray, pharmacies, etc.) was beyond ridiculous, and I was dismissed with prejudice, meaning that the case against me was thrown out. Nonetheless, every time I have to fill out an application for hospital privileges and the question “Have you been sued?” comes up, I have to give an explanation. It is beyond frustrating.

    Reply

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