Saturday Evening Post: Volunteering to be sued: you can be sued for "anything you do or anything you

Another incomparable desert sunrise is just beginning as I head west from Tucson to the Tohono O'odham reservation. I am fortunate that I can enjoy the beauty of this place, that I am healthy, and that I have been afforded opportunities that few in this world will ever have. Yet there is a hint of melancholy about it all.

When I retired from the Air Force five years ago, I promised myself that I would not work any more nights, and that I would not work more than half time. Medicine can be an all-consuming occupation, and I felt I needed time for something else. Time without a beeper on my belt. Time to sleep through the night without being awakened by the telephone. Time to give something back to the community.

But giving back to the community is not always as easy as it seems. In the patchwork we call our healthcare system, tens of millions of us have neither insurance nor the resources to pay for basic medical care. I knew that there was a need for physician volunteers to help care for the less fortunate among us. What I did not know was that where I could volunteer would not be determined by where I was needed most, but ultimately by where I could be provided some protection from being sued.

When I made the decision to go to medical school, I was not concerned about the threat of malpractice litigation. It was not until residency training that this abstract concept became real. I remember being told "good medicine is good law," and "you can be sued for anything you do or anything you don't do." I also remember wondering about the apparent contradiction between these two statements. I thought that good medicine should not have to concern itself with the law, at least not tort law. If you practice good medicine, I wondered, why should you be sued for "anything you do or anything you don't do"?

But in the very concrete world of an inner-city emergency department, I soon found out. When I took care of an assaultive, disruptive, intoxicated patient, I could be sued if I kept him (they were usually "hims") against his will for evaluation and treatment. I could also be sued if I did not evaluate him for any and every medical condition that could easily be masked by his intoxicated state and antisocial behavior, and I could be sued if I let him go and he hurt himself while still intoxicated. Worse yet, if he hurt someone else, I could be sued by both of them, their extended families, and (as near as I could tell) anyone else in this country who could read a billboard, watch a TV commercial, or look up "Attorneys" in the yellow pages.

Unlike some of my colleagues, I was lucky. I was not sued during my residency training, and I have still not been sued. But the statistics are not encouraging. For physicians, being sued is commonplace. In some high-risk specialties like obstetrics, being sued multiple times is the norm. In particularly litigious areas it is even worse. In some areas of south Florida, the annual malpractice premium for an obstetrician can exceed $200,000. The median malpractice jury award is now a million dollars and climbing.

What is more, studies of malpractice show there is no correlation between medical negligence and jury awards. The current tort system often provides lucrative awards to patients who received completely appropriate care, while it leaves the majority of negligently injured patients uncompensated. Further, even in those cases when an injured patient is appropriately compensated, up to half of the award may go to the lawyers.

Given these facts and the high costs of going to court and winning, it is little wonder that insurance companies are willing to settle out of court if they think it will save them money. Unfortunately, this becomes a permanent part of the doctor's record. Further, the process may take years to complete, it is emotionally exhausting, and it often causes physicians to limit their practices and avoid seeing those high-risk patients who need care the most.

I have been fortunate to avoid the loaded cylinder in this legal game of Russian roulette. But when I chose to volunteer, I wanted to be sure that I had malpractice coverage (yes, volunteers can be sued). What I found was that it was easier for me to volunteer in another country than in the United States. At the in-town clinics where I could provide volunteer services, I was told I had to provide my own malpractice insurance because they could not afford it. But on the reservation, the federal government provides the coverage I need.

So I make a 150-mile round trip in order to volunteer. Still, it is a beautiful drive. The Tohono O'odham have more than their share of medical problems that bring them to this isolated ER, and the hospital can always use additional staff. And like most volunteers, I am enriched by the experience.

Yes, I have every reason to feel fortunate. But the underlying melancholy will remain until we provide equal access to healthcare for all of our citizens, and until there is fundamental reform of a tort system that serves no one but lawyers--and even threatens those of us who volunteer.

Dr. Leonard volunteers his services in the emergency room at the Sells Indian Hospital ... the only place he could find where he isn't required to carry prohibitively expensive liability insurance.