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Pain and Suffering for Doctors, and It's All Legal

Posted on: Saturday, 11 June 2005, 21:00 CDT

So you want to be a doctor? Make top grades during long, grueling training. Go into debt. Smile while being supervised, examined, certified and recertified. Carefully fulfill continuing medical education requirements and attend lawsuit prevention seminars. You are now making hundreds of tough decisions each day while trying hard to prevent being sued.

Be polite to the uniformed deputy appearing at your office serving you a lawsuit worded in accusatory legal rhetoric fit only for a criminal. For purposeful shock value the suit calls for millions of dollars, always larger than your malpractice insurance covers. The suit probably is based on one momentary event for which you must endure for the next several years a cloud of worried distraction, with the average case lasting over three years.

Besides fearing financial ruin for your family, you dread harm to your professional reputation. If there is publicity, your children may be ashamed of their parent, thinking he or she committed a crime.

The above is neither an exception nor hyperbole, but eventually happens to almost all doctors. In each year they bear a 1-in-7 chance of being sued, and certain highly qualified specialists are at greater risk because they are referred the sickest patients. With no change in today's legal climate, premed students could now be told to expect several lawsuits during their careers, and they will hurt.

With fear of liability inhibiting medical decisions, doctors are reluctant to use innovative procedures or make reasonable judgment calls. This fear is harmful to doctor-patient relations and fosters defensive medicine, which hikes the cost of health care. Many defensible cases are settled out of court in order to escape the prolonged stress.

Some lawyers explain simplistically that the problem is bad doctors. Why is it, then, that in some areas of the country lawsuits are rampant, malpractice insurance premiums are sky high and doctors are leaving?

Some plaintiffs' lawyers try to select uneducated jurors so that they will less likely sympathize with the doctor. They use emotional gamesmanship in our adversarial legal system not to determine the truth but to win the case - an idea particularly offensive to the scientific mind.

Doctors think it's unfair that they are expected to produce only good outcomes or risk being sued. Even the best players, trying their utmost in the Super Bowl, miss tackles. Astute investment advisers, trying hard, often lose money for their clients. Meteorologists, striving diligently, fail to predict storms. The best lawyers, struggling to win cases, often lose. In hindsight, mistakes could be found in handling any losing case.

Suing these professionals would not prevent future losses or mistakes. Doctors think it's unjust that the human endeavor requiring the most preparation and stringent qualifications (medical practice) is also that most targeted for lawsuits.

Why do doctors take it so hard? Most are perfectionists who have been trained to face facts. Therefore, with any mistake they don't use defense mechanisms such as rationalization or denial to alleviate stress.

Doctors also fall for what psychologists call the fundamental attribution error - overly attributing events to human behavior rather than to external, situational factors outside personal control, such as luck or destiny.

This posture is more prevalent in the U.S. culture, perhaps due to our Puritan roots (sin, blame and punishment) and also because of our litigious atmosphere, where money may be had. With any bad event, blame someone. Doctors are trained to be responsibly in control. Consequently they blame themselves for an adverse outcome instead of circumstantial factors such as very ill patients, inaccurate tests or the shortcomings of assistants.

For some doctors, lawsuit trouble is the unmentioned beast on their shoulders, causing them to retire early or to advise their children not to enter medical practice.

How can we help all this? In malpractice trial cases the great majority are won by the doctor because many suits are frivolous. Mandated mediation or arbitration should apply to all malpractice cases as it does now in some states. Medical panel review by impartial experts could fairly settle most cases in a matter of weeks, not years, at much less cost.

All doctors have friends and relatives who are lawyers. It is surely detrimental to our nation for these learned professions to be at odds. In other countries doctor-trial lawyer animosity is not prevalent. In England for many years special judges, not lay jurors, have decided malpractice cases.

In the Scandinavian countries a no-fault insurance system has removed the grim specter of lawsuits, bringing medical errors to light for future correction.

So, if you want to be a doctor, support medical liability tort reform. That would also enhance your image if you decide to be a lawyer.

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One in seven may be sued each year, says Webster Riggs Jr. Our adversarial legal system drives up costs for everybody. We need tort reform.

Webster Riggs Jr. is a pediatric radiologist, a clinical professor of radiology at the University of Tennessee and former president of local, state and regional radiological societies.

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Source: Commercial Appeal, The

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