The Real Malpractice Crisis

When he isn't out trying to destroy Social Security or conquer the world for the God of Leviticus, the Leader of the Free World has found time to try to solve a crisis nearly as grave as the crisis facing Social Security, the Medical Malpractice Crisis. It seems that premiums for certain specialties have gone up recently and this is annoying all those obstetricians who aren't able to practice their love, as Mr. Bush so memorably put it, on the women of their communities. As usual, the solution proposed by the Resident is completely unrelated to the problem. He wants to put a low limit on punitive damages in medical malpractice suits.

Blogging works best when it's short and pithy, but life is complicated sometimes. To make a very long story short, the volume of malpractice suits and the size of jury awards has not increased in recent years. Premiums have gone up because insurance companies lost money on their investments. The real problem with medical malpractice is that it does not effectively further important public goals: improving the quality and safety of medical care, and assuring that people who are harmed by medical intervention or failure to intervene appropriately are compensated and taken care of. Far from an epidemic of "frivolous" lawsuits, we have a system that gives no recourse at all to most injured people. Frivolous lawsuits don't make it to a jury at all, that's what judges are for.

The problem is that malpractice law only compensates people for injuries caused by negligence or malice on the part of physicians. Medical errors kill tens of thousands of people every year and seriously injure untold numbers, probably in the seven figures. But that doesn't mean all thsoe doctors were negligent or incompetent. Medicine is complicated and inherently risky. There are risks associated with every sort of intervention, which can only be weighed against the potential benefits, which involves value judgments as much as it does math. Sometimes you're on the losing end of the risk equation, but it isn't anybody's fault. And sometimes doctors make mistakes, because they are human. A doctor who makes a mistake in a situation of complexity and uncertainty, who is not impaired, who is paying attention, and who is trying to do what's right for a patient, is not negligent, and in principle at least cannot be successfully sued, although in these situations obviously we encounter situations of moral and legal ambiguity that in our system, we ask a jury to resolve. What's wrong with that?

The main thing that's wrong is that there are millions of people who have been disabled or disfigured, lost years of work or education, lost loved ones, had their entire lives deflected into caring for a permanently disabled child or spouse, who get exactly nothing -- zero, zip, nada, bupkis -- because the medical error or the acknowledged risk that caused the injury was not negligent and did not constitute malpractice. That doesn't mean it wasn't preventable, however, or that people could not have done better. Meanwhile, the threat of a malpractice suit causes doctors and institutions to behave furtively and defensively when mistakes and injuries occur, instead of dealing with the facts openly and making an effort to learn from tragedies and improve systems to make tragedies less likely.

A good friend of mine entered the hospital through the ER some years ago, with symptoms of acute appendicitis. He was diagnosed with exactly that based on a clinical examination. (Actually, he had to endure a parade of residents and medical students sticking their fingers up his ass before the Chief Resident was prepared to give him the news.) They told him he would have his appendix out. 8 hours after entering surgery, he awoke dehydrated and in agony, minus half of his colon. The surgeons had seen a mass on his colon which they assumed was cancer and performed surgery for colon cancer. The mass was a diverticulum, which could have been excised in a relatively minor procedure. He spent almost two weeks in the hospital, lost a semester of graduate school and most of six months worth of income, had post-surgical complications including a month-long bout with pneumonia, and ultimately was left with symptoms of irritable bowel syndrome which will be life long. And oh yeah-- the hospital sent him a bill for $25,000 in excess of what his insurance would pay. Several different lawyers told him not to bother even thinking about suing. Many people with far worse injuries are in the same situation.

The malpractice crisis isn't about greedy lawyers. When people win large malpractice awards, it's because their doctors were negligent or incompetent and the people were severely injured. Fortunately, that doesn't happen very often. Unfortunately, injuries caused by medical intervention happen a lot. The crisis is about a system that is not designed to produce either justice, or public welfare, or better medical practice. But that is much too complicated for our politicians and corporate media to even discuss.