Medical Malpractice

My college student son Ryan recently expressed some difficulty in finding sources addressing the history of medical malpractice, which brought to mind how important a factor lawsuits are in the cost of healthcare and the perception of the quality of the US healthcare system. My association with the local hospital as a long-time board member, quality committee chair, and a three-year stint as director of a few departments and internal functions provides me with some first-hand experience on med mal and its attendant problems, which I will share with you. For the record, I confess a slight bias for healthcare providers in this debate, but fully support compensating patients in cases of actual malpractice.

Here are some factors about medical malpractice that might be helpful to you:

People are sometimes injured by healthcare providers:
When people are injured or sick they go to the doctor or to a clinic or hospital in the hopes that medical professionals will be able to treat their injury or cure their illness. Most of the times these injuries and illnesses are treated successfully, but sometimes people have very serious conditions and cannot be treated successfully. It isn’t unusual for patients to be allergic to drugs or to have existing conditions that makes treating them more difficult. Sometimes patients are harmed in the process of being treated for whatever ails them.

Most doctors and healthcare personnel are competent and caring people who try to do their jobs well:
Medical professionals study for years to learn their trade, especially physicians, who attend years of medical school, internships, residencies and specialty training. Like people in other professions, they want to do their job well, to advance, and to earn a living; hurting people is something they want to avoid.

Some bad medical outcomes aren’t anyone’s fault:
Medicine is both art and science. Each of us is different in sometimes subtle ways, and sometimes in not-so-subtle ways. When we get sick or hurt, those differences play a role in how we are treated and in how we react to that treatment. Sometimes, despite the best efforts of everyone involved, a patient won’t recover fully, or sometimes they won’t recover at all. That doesn’t mean that they were the victim of medical malpractice; it means they had the deck stacked against them due to their general physical makeup in combination with their injury or disease. No one can guarantee any of us that we can be cured and be made whole following a serious injury or illness. Bad luck is a reality, a natural part of life that we have no control over.

Some people truly believe they are due monetary awards for their medical outcomes; sometimes they are:
There is a fairly significant portion of the U.S. population that believes that if the results of their medical treatment are less than optimum, somebody owes them money. After all, their quality of life has been affected and their ability to earn a living may have been affected, and perhaps as a result their cost of living may go up to pay for drugs or medical devices and care. It’s not their fault that they got sick or hurt, and somebody should have to make that up to them. In cases where a doctor or a hospital made a mistake, they are probably due some compensation. Otherwise, they aren’t.

Some lawyers will sue a bus if they think they can earn a fee:
Just as most medical professionals are competent and caring, most lawyers are honest, ethical and make an honest living. Some, however, will take any case that they think will generate a fee, and that means that there are cases in the court system that are frivolous, or are otherwise without true merit. More than a few of those are medical malpractice cases.

Juries frequently rule in favor of a plaintiff out of compassion for their situation because they feel the doctor/hospital/provider has plenty of money:
Whether juries are truly a panel of peers is a topic ripe for debate, however, under our system juries are (often/usually) chosen from among registered voters, and the likelihood that six or 12 people on a jury will be more likely to identify with a person who has had a bad health-related experience are much higher than that the panel will identify with a doctor or a hospital. Thus, the chances of the jury making a “there but for the grace of God go I” decision are fairly high. Consequently, even though no true negligence has been proven, juries often out of sympathy will award a plaintiff some amount of money because of the situation the plaintiff finds himself in, even if no one is to blame for that. This raises the cost of malpractice insurance and the cost of healthcare, but does nothing to right a wrong, since no wrong was committed.

Some doctors are not competent in their specialty, and finding instances of their previous medical practice problems when credentialing them is quite often impossible:
Having worked to verify physicians’ credentials I have learned the hard way that the best efforts are insufficient to learn about doctors’ past experience; it is often difficult and sometimes impossible to find out about the ones you need most to know about. Because of the possibility of legal action, hospitals are reluctant to report events of a doctor’s practice that you need to know, but which are not part of any official record. For example, a doctor who has done something wrong may never be formally disciplined for it, and therefore there is no record of what he did, and no hospital is going to report something like that to the data bank or to a hospital that is looking into the doctor’s credentials. So, the next hospital that the doc applies to for privileges will have no clue that the doc might have a problem.

The “standard of care” is a prime element in determining whether medical personnel acted appropriately in med mal cases:
The most common legal definition of standard of care is how similarly qualified practitioners would have managed the patient's care under the same or similar circumstances, but is not an absolute, which means that sometimes deviating from the standard of care does not indicate negligence or incompetence. Because each patient has the potential to present unique characteristics, it is a risky proposition to attempt to blindly impose a particular method of treatment for every case of the same disease or injury. Consequently, lawsuits are frequently filed for the sole reason that the standard of care was not followed, regardless of whether there were good and justifiable reasons for deviating from the standard of care. “Let’s sue, and the jury can sort it out” is a not uncommon approach; attorneys and plaintiffs are quite willing to roll the dice. Once a jury gets a case, there are potentially a number of factors that may lead to awarding the plaintiff monetary damages, even though (as mentioned earlier) no medical provider did anything wrong.

Expert witnesses have become a staple of med mal trials, giving testimony regarding the way the case was handled:In many med mal cases, it is not clear that a patient’s bad outcome was the result of poor care, and each side will have medical experts testifying about the course of treatment from their point of view, given the particular patient and circumstances. Some—some—medical experts will testify to anything an attorney chooses for them to testify to. This factor and the standard of care factor are sometimes more than a jury of average people can adequately sort out.

Insurance companies and defendant’s attorneys often recommend settling malpractice cases for reasons totally unrelated to whether the defendant did anything wrong:
Settlements are often made because the time, inconvenience and total cost of trying the case may dwarf the amount that a plaintiff will settle for; it’s an economic decision, not an admission of delivering poor care. In the case of a sympathetic plaintiff, the bad publicity (“the big, bad hospital” or “the high and mighty doctor”) and the possibility that a jury will be sympathetic to the plaintiff sometimes pushes defendants to settle, even though they may believe they did nothing wrong, and even in cases where they can show that they did nothing wrong.

In a perfect world, malpractice awards would be made only when a patient has been injured to a significant degree by the negligence, carelessness or incompetence of healthcare providers. In the real world there are quite a few other reasons why plaintiffs receive monetary awards, and all of them are a disservice to the rest of us, because they create a skewed picture of the healthcare industry through the increased amount of negative publicity, raise the cost of healthcare through increased insurance costs and “defensive medicine” practices, and force providers’ to focus too much attention on avoiding lawsuits, among other factors.

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