Townsend Letter for Doctors and Patients: The medical malpractice crisis

America has the only medical-care system in the world in which patients get to play simultaneously, both Russian roulette and the lottery. On the one hand, many conventional medical treatments or diagnostic procedures carry an unacceptably high risk of injuring or killing those whom they are intended to help; on the other, being damaged by modern medicine often creates the opportunity to attain untold wealth by suing. The system in its present form is unsustainable, and cracks in its foundation are already beginning to form.

Obstetricians and general surgeons in the Miami area of Florida are now paying nearly a quarter of a million dollars per year in liability-insurance premiums, while internists in "high risk" areas of the country are paying up to $65,000 a year. Increases of 25% or more in liability-insurance premiums are common, and further increases of more than 10% are expected for 2004. The ability to pass these increasing costs onto patients and third-party payers has, in many areas of the country, reached its limit, and practicing medicine is no longer economically viable. According to recent reports, the problems physicians are having with obtaining or paying for liability insurance are at or near crisis proportions in 44 of 50 states. In Pennsylvania, for example, large numbers of doctors are either leaving the state, limiting the scope of their practice, or opting for early retirement. In addition, enormous amounts of money are being wasted on "defensive medicine," the practice of ordering tests or procedures to protect the doctor from potential lawsuits, rather than for the benefit of the patient. If the present trends continue, the already-overpriced healthcare system will collapse.

It is noteworthy that in areas of the Midwest with largely rural populations (such as Nebraska, South Dakota, and Minnesota), doctors' liability-insurance premiums are 94-96% lower than in the worst areas, such as Miami, FL. Whatever the reason for the lower-risk environment in those states, their systems should be studied and attempts should be made to emulate them.

Doctors can do their part by behaving in a way that reduces their risk of being sued. Patients are much more inclined to sue doctors they dislike than ones they are fond of. Studies have shown that risk factors for being sued include 1) not returning phone calls from patients, 2) being more than 20 minutes late for appointments, 3) charging excessive fees, and 4) failing to address patients' questions and concerns. Thus, treating patients with respect and compassion are not only important components of being a good doctor, they also guard against malpractice suits. Doctors should also use safer treatments (such as diet, nutritional supplements, herbs, exercise, stress reduction) first, and opt for more dangerous procedures only when they are really necessary.

Patients should recognize that life offers no guarantees, and that going for the jugular every time there is a bad outcome harms society.

Of course, the behaviors and attitudes of doctors and patients are not likely to change sufficiently in the short run, so other approaches will also be needed to deal with the liability crisis.

Perhaps the most important change would be for all states to place a cap on non-economic damages (e.g., "pain and suffering"). In states that do not limit awards for pain and suffering, multimillion-dollar judgments are common, and liability-insurance premiums are through the roof. Another important change would be to create an efficient system of arbitration, which would largely eliminate the 33-40% that attorneys and their $300-per-hour teams of expert witnesses skim off the top of malpractice awards before the injured party gets paid. Trial lawyers, for obvious reasons, vigorously oppose these ideas, citing concerns that patients would lose their right to receive effective representation and fair compensation. I suspect the lawyers are also concerned they would have less money to pay for those late-night TV ads that inform prospective clients of how badly they have been harmed.

For those who believe that binding arbitration and limits on pain-and-suffering awards would take away their rights, a special system could be set up. Those who wish to retain their right to "go for the gold" in the event of medical injury could enroll in a special program, which would be funded by a 10% surcharge on all of their medical care. These patients would pay an extra $7.50 for a $75 office visit, and an extra $300 for a $3,000 gallbladder operation, and the extra money would be deposited in a special suers-and-sufferers' fund. Then, if they wanted to sue, they could hire the most aggressive lawyer in town and appoint the most codependent jury they could find, and they would not be subjected to any limit on their award. Of course, if the awards began to exceed the reserves in the suers-and-sufferers' fund, then the surcharge on medical care might have to be increased to 20%.

People who agreed in advance to binding arbitration and to limits on pain-and-suffering awards would be saving the health-care system money and would, therefore, receive a small cash rebate for their generosity. In addition to getting a little money back, these people would probably have fewer bad things happen to them, because when we know the safety net has been loosened, we tend to become better informed and more cautious about taking unnecessary risks.

To be sure, the liability crisis, both in healthcare and in other aspects of our society, is more complicated than these simplistic solutions would indicate. There is something wrong, however, about a society in which the average person's best chance to get rich is to get injured.

Alan R. Gaby, MD