The Trial Lawyers

So let’s pick the easiest target first—the trial lawyer, often ranked one cut above the used car salesman. (There, I’ve alienated two professions with one tickle of the keyboard.) To be perfectly fair, no one would suggest that a patient or family shouldn’t be able to redress a just grievance against gross malpractice. NYPIRG, a public interest research group, cites sources stating that in 2004 malpractice cases accounted for only 4% of tort cases and that there are medical injuries numbering more than a million a year, while only about 85,000 lawsuits are filed. This implies that “injured patients rarely file law suits.” The U.S. Bureau of Justice Statistics states that the overall win rate for medical malpractice plaintiffs was 27%, about half that among plaintiffs in all tort trials. Despite this, the World Health Organization reports a per capita expenditure in 2004 of about $6,000 in the United States, much more than most other countries, but there are questions about whether we’re getting “bang for the buck.” All right, enough statistics.

Your humble observer notes (and all the colleagues I’ve ever discussed this with confirm) that almost all the lawsuits we’ve been personally involved in have been spurious claims. Hardly a doctor I know hasn’t had some brush with the legal system. I’ve been lucky: the two times I was named as defendent, I wasn’t the principal and was dropped by the plaintiff’s attorneys before it went to trial or settled. Of the medical cases I’ve seen over the years that had clear evidence of malpractice, none, as far as I know, have ever generated lawsuits, supporting the above statistics. Still, we’re a very litigious society and it only takes a few bad apples with “medical lottery fever” (and their accomplices, otherwise known as lawyers and permissive judges and juries), to spoil the bunch. Some states, like Texas and California (where I practice), have put caps on “pain and suffering,” and liability insurance premiums are reasonable. In others, the lack of constraints regularly leads to crises (a view of this from the vantage point of the thoracic surgeons can be found here) as malpractice premiums go through the roof, causing some physicians to flee the state. But a bigger issue is the effect of lawsuits on medical practice patterns—and that should concern everyone, because that’s where the money hemorrhage starts.

Physicians’ salaries only represent about 20% of overall health-care expenditures. But we doctors control how the rest is spent. And how it’s spent depends on many factors—among them training, confidence, practice guidelines and regional practice patterns, influence peddling (Big Pharma and device manufacturers), greed, and … fear of litigation. I’ll come back to the others another time.

I’ve heard estimates on the percentage of medical expenses in this country attributed to fear of litigation, but don’t know how accurate they are, or how you’d even go about gathering them (Hey, doc, did Mr. Smith really need that test or are you just covering your anal aperture?). The threshold for ordering yet another blood test or an expensive imaging study varies from situation to situation, and doctor to doctor—even region to region. Judgment, competence and, yes, previous litigation all play into the equation. As a cardiologist I’m less likely to get that echocardiogram (heart sonogram) for a benign-sounding heart murmur than a nurse practitioner or physician’s assistant (typically referred to as “mid-levels”), or even many M.D.s who are generalists. So how can any of us judge how our practice patterns have been distorted by fear of the courtroom.

We doctors are not the only part of the problem. We patients share the blame (ah, blame … how I love the sound of the word; rhymes with game, maim, inflame … and I get a double dollop; but I digress). Expectations on the part of patients, both regarding diagnostic entitlements and expected outcomes, have grown as exponentially as our testing armamentarium. (“Dr. S is such a good doctor. He orders fill in the blank here on me every six months!”)

Yes, the cost of health care is a boulder rolling downhill—and we’re pushing it with the trial lawyers cheering us on. And it’s about to get away from us.

 

NEXT: Big Government

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2 Responses to “The Trial Lawyers”

  1. Barb Robbins Says:

    Dave,
    My spellcheck says “defendant”, not “defendent.” (2nd paragraph.)
    Just thought I’d help.
    You can pay me to be your editor 🙂

  2. Alana Puro Says:

    Hi Dad! I’m catching up on these posts during my lunch break ;).

    I just wanted to say that when I was in India I found it astounding how often patients came in complaining of nonexistant symptoms. Whether it was due to hypochondriasis or a plea for attention, the doctors always had to treat the patient as if he or she was truly sick. They knew that if they didn’t give the patient a satisfactory answer then these “problems” would just manifest themselves in other ways, causing the patient to return complaining of some other dire ailment.

    It was interesting to read this post because it made me realize that both patients and doctors are to blame for unncecessary testing and treatments. By giving easy access to a multitude of medical information on the internet, we have created a society of hypochondriacs that self-diagnose themselves before even seeing a doctor. This leads to patient dissatisfaction when the doctor’s diagnosis fails to match up with his or her expectations. However it’s hard to draw the line between how much a patient should question his or her doctor’s judgement because there are many cases of malpractice that regularly occur. In the end, millions of dollars go down the drain for unnecessary (and quite expensive) tests and treatments. I have no idea how this process can even start to be regulated, but something does need to change!

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