Medical Malpractice

The topic of medical malpractice and its cost in both premiums and extra medical tests has recently been discussed in various places, including the Op-Ed pages of the NY Times, but usually by non-doctors. As a practicing family MD (internist) who has been sued 5 times, (once as ward attending, once as hospital medical consultant, and three times for office visits) and who has had all three cases dismissed with prejudice (i.e. no trial, and no payment), let me describe to you non-doctors and non-sued doctors what is wrong with the system.

First, being sued does not make a doctor a better doctor. We improve through experience and studying, and not making the same mistake twice. But the ever-present threat of malpractice makes us more careful, in that most doctors ask themselves before any medical action: how will this look to 12 jurymen who are not doctors? And if a scenario similar to that which we were sued for ever re-occurs, even if we were dismissed, we make sure the same procedure is never followed, because who wants to be sued? An example is the fact that although the Virgin Islands has a Good Samaritan law for emergency treatment by physicians, a physician was sued for doing dockside CPR on a patient who eventually died. His case of course was dismissed because of the law, but the existence of the law did NOT protect him from being sued. He told the newspapers he will never offer emergency medical assistance to a stranger again, because he doesn't want to be sued.

As an example, I had a female patient with Hodgkin's disease, who was cured. For years, her gynecologist and I both urged her to get a colonoscopy, because people with one cancer are at higher risk for a second. There were seven years documented in both our charts of her refusal to get a colonoscopy, and she even refused to check annual stools for blood. When she died from metastatic colon cancer, her husband sued both me and the gynecologist for failure to diagnose the cancer. Again, this took a lot of time away from us. Both our cases were dismissed with prejudice. But the result is that I "fire" (i.e. discharge from my practice) any patient who refuses to do an annual stool for blood or a colonoscopy every 5 years, because again, who wants to be sued even if you win the case?

So now in addition to asking myself "what can the patient have that can damage or kill him/her if I do not diagnose it?" I also ask myself "What test can I be sued for not doing?". You see, a doctor is never sued for doing a test, but only for not doing it. So if a patient or spouse or relative asks for any test, I always say yes, which I never used to do, but that is what the system wants me to do. And it does no good to follow the "disease guidelines", because if you have a patient with 5 diseases (high blood pressure, GI reflux, heart failure, osteoporosis, and asthma) then some of the guidelines will conflict with others. In addition, the guidelines are not uniform: the USPHS, AMA, American Urological Association, American Cancer Association, and American College of Physicians, have widely differing guidelines on using the PSA test for prostate cancer, and even if it should be used at all.

I think it would reduce costs tremendously if the malpractice cases were taken out of the tort-contingency fee system, and put instead into the no-fault system, as is auto insurance in the State of New Jersey, where doctor's and lawyer's fees are set by the workmen's compensation fee schedule.

We also cannot practice medicine and keep notes as the lawyers would have us do, in part because we cannot bill for telephone time and making notes. We could certainly sharply reduce malpractice suits by telling every patient to either come into the office or go to the ER, and never renew any medicine or give any advice over the phone, because we can be sued for telephone advice. I also once flabbergasted a lawyer at a deposition; when he said "If you haven't written it down, you haven't done it", I answered "And what makes you think that if I did write it down I did do it?". For instance we all warn patients on sleeping pills to be careful when driving, but none of us forbid it. I know one doctor who photocopies the PDR warnings of every drug he prescribes, and gives one copy to the patient and puts the other in the chart.

Some results of the threat of malpractice: in at least two counties near Miami Fla., no neurosurgeon will cover the ER for automobile accidents; virtually no OB's teach or do forceps delivery, e.g. for a transverse lie, but proceed immediately to a C-section, and in 2 counties in Northern West Virginia there are no pediatricians, because they all moved northward across the river to a state with lower malpractice premiums. I was taught to tap the chest ("thoracentesis). In about 1% of the cases, in the best hands, there is a partial collapse of the lung (pneumothorax). So now all internists have pulmonologists or chest surgeons do it, because they do it more frequently, and therefore can defend against the incidence of pneumothorax more easily (and of course the chest surgeon charges more).

So now the doctor's mantra is not to avoid error, but to avoid being sued. This is not synonomous with practicing the best medicine. I even know some doctors who refuse to treat any lawyers or their families at all, just as many landlords in NYC refuse to rent to lawyers.

Again, every doctor wants to take the best possible care of his patient, but if 1/2500 infants is born with a birth defect, and 5% of aortic aneurysm repair patients die, and if 1% of hip replacements get infected, the doctor seems to get sued for every bad result. Although in theory the plaintiff has to show the doctor did something wrong, in practice the doctor has to show that he did everything right, and if he/she did, why was there a bad result? In American jurisprudience, if anyone has a bad result in anything, it is someone's fault (unless, of course you lose a lawsuit, and then it is never the lawyer's fault).

One final note: In NY State, they started keeping a record of the death rate for open heart surgeons (and later, their hospitals). The immediate result, as you might expect, is that cardiac surgeons took on fewer riskier cases where the patient has an estimated less than 10% chance of survival, no matter how the family pleads, because he doesn't want his death rate to go up. Several years ago there was a piteous Op-Ed piece about this in the NY Times, by a columnist who said it took him 10 days to find a cardiac surgeon willing to risk operating on his mother, and the surgery was not done at a major hospital teaching center.

I guess I should close with a repeat of a previous story. About 10 years ago, a California woman refused a pap smear for several years in a row, and her refusal was well-documented in the chart. When she died from cervical cancer, the husband sued the gynecologist. He convinced the jury that if the doctor had warned the patient properly, then any prudent patient would have agreed to the pap smear and found the cervical cancer. The jury agreed (!), and found against the GYN who now, of course, fires from his practice any woman who refuses an annual pap test or mammogram.