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How bad is the malpractice situation?
Q: I just read about the frivolous malpractice suit that you were involved in. I'd like to be an ER doctor, but I am discouraged by the malpractice situation. Is it as bad as you say it is? Tom
A: No, it is even worse. Malpractice premiums have skyrocketed. In the past week, I've heard three docs mention their premiums: $70,000, $165,000, and $250,000. Imagine writing a check for a quarter of a million dollars. If you had to do that to keep working, you'd no doubt wonder "Why the heck am I working?" At my peak, I made about $173,000 per year in the ER, at a time when the yearly premium was about $30,000. Income hasn't increased since then, but expenses have. If my premium was $165,000 or $250,000, I wouldn't bother working. If it was "only" $70,000, I'd work but look for another way to make a living. That is exactly why some docs are now selling real estate or Amway after spending most of their lives learning to be doctors.
This situation is especially critical for young doctors, because many of them are deeply in debt from student loans. When I began working, I owed $35,000, which I paid off within a couple years. Some of my friends who recently graduated from medical school owe over $200,000. It is difficult to pay off those loans at the same time they're buying a home, furnishing it, starting a family, buying a decent car or two, and paying an arm and a leg for malpractice insurance.
Here is something that everyone thinking of a medical career must consider. Because of the time it takes for education and training (usually 11 to 15 years), doctors have fewer years to make money. That 11 to 15 years is a significant proportion of one's working lifetime, yet people often neglect to consider this when they hear that a physician makes "x" amount of money per year. Another factor that is often overlooked is the enormous number of total hours that physicians devote to education, training, and working. A 40-hour work week is a pipe dream for doctors; even if they spend only 40 hours per week giving patient care, they actually work far more because of mandatory education, meetings, paperwork, and miscellaneous responsibilities. It is very illuminating to tally up all those hours. When that is done, physician incomes that once seemed lofty now seem highly unimpressive. I spent years working 110 hours per week and going into debt so I could become a doctor. Had I spent those years working in a paying job, I could have made far more than I have by now. The reason why most people don't make as much money as doctors is because they don't work 110 hours per week. If they did, they'd make a lot of money, too.
Here is yet another factor that just about everyone overlooks when they consider physician income. Let's say that a doctor makes the same amount in his lifetime as someone who starts working at age 18 and makes $3,000,000. Who will pay more in taxes? The doctor will, because his earning years are compressed into a much smaller period of time, thus pushing more of his earnings into a higher tax bracket. Existing tax laws make no allowance for the fact that physicians necessarily work shorter careers because of their protracted period of education and training. As a result, doctors pay more in taxes than others who make the same over longer careers. This, too, should be considered when you judge physician income.
On television this morning, I heard Senator John Edwards discuss the current malpractice situation. He had what might seem to be a good idea: before a suit could be filed, require that a physician certify that a medical error was committed. This seems like common sense, right? It seems to be something that would stem the tide of frivolous suits while preserving the right of patients to sue for true malpractice, right? However much it may seem to be a good idea, it is poppycock, and Edwards knows it. Edwards is a wealthy attorney who made many millions of dollars from suing people. He isn't stupid. He knows how the legal system works. He knows about the "you scratch my back, and I'll scratch yours" deals that attorneys make all the time. I'm sure he knows that some states (such as Michigan) already require that a physician attest that a medical error was committed before a suit can be filed. I'm sure he knows that this apparent solution just isn't working. The problem is that these certifying physicians work for—can you guess?—the plaintiff's attorney! These docs are handsomely paid to tell the attorney what he wants to hear; if they don't, the attorney will just find someone else. A decade ago, I knew some physicians who made $450 per hour working for attorneys. If an ER doc is paid that much (which is considerably more than he could earn in the ER), there is a strong incentive to find dirt when the attorney wants to find dirt. Compliant docs receive two rewards: more cases in the future, and more money working on the current case. If the plaintiff's physician does not certify that a medical error was committed, his payday is over. The only way to make this certification process so that it isn't a farce is to have certification performed by an independent panel of physicians who have no economic motive to find dirt.
Q: But wouldn't physicians just stick together and say that no cases had merit?
A: I doubt it. I've seen docs berate their errant colleagues from the same hospital. It is safe to say that if they're willing to rebuke people they see every day, they wouldn't hesitate to find fault with the care delivered by someone they'd never met. Furthermore, I think that physicians are desperate to find an equitable solution to the malpractice problem. I don't think we would be shortsighted and blow our chance, so I think docs would bend over backwards to be fair. I am livid about the unjust way that attorneys have warped the malpractice system, but even I would have no qualms about fingering a doc who screwed up. Although this may seem difficult to believe from the way I write, I am not a confrontational person. However, when I saw docs make an error, I'd point it out to them. In one case that sticks out in my mind, the doc I confronted was not only wrong, he was hardheaded and insisted he was right. To make a long story short, I knew he was wrong, so I took over care of that patient and saved him from what would certainly have been a malpractice suit. If circumstances were such that I did not have the power to take over care of that patient, there would have been a medical error. Would I certify it? In a heartbeat. I think that very few physicians are willing to condone errors. We are committed to delivering excellent quality medical care, not doing our best to get away with everything we can. That's what attorneys do—and that is one reason why they are so universally loathed.
Q: Getting back to the case you were involved in. That's just one case. Is it an isolated example?
A: No. I can tell you about other cases in which it was ludicrous to sue the ER doc. In two cases that I know of, the ER doctor appropriately admitted patients to the hospital but those patients were not seen by a doctor for three days after admission. Not surprisingly, there was a bad outcome. In one case, the doctor responsible for the post-admission care of the patient went on a drinking binge and failed to see his patients. I suppose if the ER doc had a crystal ball and knew that the other doc was a drunk about to self-destruct, he would have admitted the patient to another doctor. But, realistically, how could the ER doc know that? In the other case, the ER doc accepted a transfer of a trauma patient from another hospital. The patient had a broken back, so he was not surprisingly transferred on a backboard. The ER doctor examined the patient when he arrived to ascertain that no other injuries were present, and none were. He immediately transferred care to an orthopedic surgeon who assumed responsibility for the patient and admitted him. This went off without a hitch because the orthopedist was waiting for the patient in the ER before he arrived. Just one problem: the ortho doc neglected to see the patient for three days after admission, and he neglected to take him off the backboard. As a result, the patient developed a bed sore. The ER doc could have taken the patient off the backboard had he known that the orthopedist would neglect to do it, and fail to see the patient for three days, but, dang it, the ER doc didn't have a crystal ball that day, either. It isn't practical, or even kosher, for an ER doctor to write orders in advance in case the admitting doctors don't write the correct orders, and don't show up for three days. It's insane to put that responsibility on ER docs, but that is just what happened when the ER doc was sued because other docs did not see their patients for three days. Was it the fault of the ER doctor that those others were negligent? No, but the ER docs were sued anyway. When attorneys sue, they use a shotgun, not a rifle. In other words, rather than hitting a selected target, they blast every doc in the vicinity. It's the legal equivalent of "Kill 'em all, and let God sort 'em out."
Q: Yes, but in your case, you were eventually dismissed from the suit.
A: Are you suggesting that what happened to me was justice? I gave that patient superb, flawless care. And what did it cost me? Thousands of dollars, years of anguish and lost time, and a permanent black mark on my record. Doctors are livid about such mistreatment, and I predict that sooner or later, one will be mad enough to put an attorney in his grave.
Q: That seems difficult to believe.
A: Don't you watch the news? In recent years, I've heard of work-related murders perpetrated for more trivial reasons. Does the phrase "going postal" mean anything to you?
Q: OK, I get your point. But doctors are professionals, with more to lose.
A: Look at it this way. If you murder someone, you lose everything whether you're a postal worker, a factory worker, or a doctor, but I agree that doctors have somewhat more to lose. Judging by statistics, there is some evidence that doctors are either less inclined or less willing to commit murder, because very few of them turn out to be murderers. However, I'd like to launch my career as a pundit by predicting the inevitability of a doc turning an attorney into hamburger, and explaining why that will be increasingly likely in the years to come. Not coincidentally, it ties in with the subject that you and I were discussing: namely, how the malpractice crisis is making medicine more noxious—and not just from an economic standpoint, either. Doctors want to have harmonious relationships with their patients. This is made more difficult by the fact that while doctors know most people aren't inclined to sue without good reason, they know there are enough sue-happy people out there to make them realize that doing the right things will not automatically insulate them from allegations of malpractice. It happened to me, and it's happened to others. Furthermore, many lawsuits are filed when there is indeed a medical error, but the problem is that even innocent doctors are named in the lawsuit. Once that happens, they always lose. Even if they are dismissed from the case, they're stuck with the malpractice insurance deductible and miscellaneous other costs. In many cases, the doc's insurance company will settle out of court even if they know the case is frivolous, simply because they know it is cheaper to settle than to go to trial, which can be very expensive*. As a result, many innocent doctors have malpractice settlements on their record for cases in which there was no medical error. Malpractice insurance companies know that juries all too often decide on the basis on emotions, not facts. Hence, if there has been a bad outcome, it doesn't matter if the doc had anything to do with that, or if the bad outcome was God's way of saying, "Your time is up." Because they're afraid of juries, they usually settle out of court. Do the insurance companies care if this unfairly besmirches the doc's record? Heck no. The system isn't about fairness or justice, it's about money and sympathy. It's a warped system that attorneys love, and endlessly profit from.
*According to an article in The Charlotte Observer, in 2002 the median cost of defending a case in which the jury found the defendant not guilty was $66,767. This should give you some idea of what insurance companies are willing to settle for to make a case "go away." The average jury award is now $3.5 million.
There are many reasons why medicine is a less attractive career than it once was. Besides the declining pay and the malpractice crisis, docs are besieged by bureaucrats, insurance companies, and hospital administrators. Being a doc these days is much more hectic than it once was. Collectively, these drawbacks make it increasingly likely that a doc will "go postal" on an attorney, because the one thing that once made docs less likely to commit murder—the fact that they have somewhat more to lose—is now evaporating. Furthermore, the fact that doctors invest so much time into becoming doctors will, I believe, amplify their resentment toward people they think are responsible for shattering their dreams. This would be less of a problem if people went into medicine with more realistic expectations of what they're getting themselves into. However, youthful idealism often blinds people to these realities. By the time they do sink in, it's often too late. The failure to acknowledge this problem is partly the fault of doctors, but they should not shoulder the entire blame because many current physicians entered medicine at a time when these problems were less serious. How could they know that things would turn out so bad?
Q: I still want to go into medicine, because I think things will get better.
A: You may be correct about that, because it can't get much worse without disincentifying medicine to the point where the public can't help but notice it, and suffer some consequences. We've seen doctors close their offices, and emergency rooms close their doors. For the past four years, we've seen a decrease in medical school applications despite an ever-increasing population. I predicted that six years ago. At the time I made my prediction, it may have seemed preposterous. Now it seems utterly obvious why students choose other careers. Unfortunately for patients, the average medical student isn't as bright or as dedicated as he once was. The efflux of applicants is disproportionately from the ranks of the brightest students. There is a limited supply of them, so who is around to fill their shoes—or try to? The less-gifted students, of which there is an essentially limitless supply. Just as I predicted years ago, medical schools must now choose between not filling their incoming classes, or accepting students who would not have stood a snowball's chance in hell of being accepted a few decades ago when the competition was more intense. It'd be unthinkable for medical schools to not fill their incoming classes, so what do they do? They fill their seats. The question is: with what?
Aside from the decrease in aptitude, there is another alarming trend: less dedication and single-minded devotion to medicine. I've seen medical students and other professional school students frittering away their time in ways that would have been unthinkable to me, such as surfing the Internet—and not always for medical information. A friend of mine who specializes in Internal Medicine is sharply critical of how some of her colleagues have what she thinks is a pathetic level of devotion. She is especially critical of some women she's worked with. She complained to me that they were more interested in reading Family Circle magazine than reading medical journals. In the ER, I haven't witnessed any discernible difference in aptitude or performance between male and female physicians, but that may be because an emergency medicine residency is so difficult to obtain that the less dedicated and less intelligent people are automatically weeded out.
I agree with your last statement about things getting better, but I think that things will get worse before that happens. While the general public is increasingly cognizant that medicine is a troubled profession, most people are not yet aware of how these problems affect them. I don't claim that the local morgue will fill up just because patients see a doctor with an IQ of 120 instead of a doc with an IQ of 150, but there will inevitably be challenging cases that could be solved by a brighter doc, but not by a less gifted one. This seems obvious, but how many people stop to consider if their doctor got into medical school only because he was not displaced by a brighter person who chose another career?
Q: I heard on the radio today (January 16, 2003) that President Bush will propose caps on malpractice awards. Won't this significantly help the malpractice insurance crisis?
A: It may help rein in some of the truly outlandish awards, but do little or nothing to curb many frivolous suits. Bush proposed limiting non-economic damages to $250,000. Economic damages, such as medical expenses and lost income, would remain unlimited. Punitive damages would be limited to $250,000 or twice economic damages, whichever is greater. Bottom line? This pot of gold is still big enough to tempt lawyers.
Even if Bush's plan passes, it does virtually nothing to limit the frivolous suits that are often settled out of court by insurance companies just to make the cases "go away" to avoid the possibility of large awards by sympathetic juries. The cumulative cost of these suits is enormous. Neglecting their financial cost, such cases are still very damaging because they are, in particular, the ones that alienate doctors from their patients. If docs knew they would only be sued when they truly erred and the resultant settlements were reasonable, there would be no reason for this to cause a rift between doctors and patients. However, physicians are outraged by frivolous suits. Why? It is human nature to be incensed by false charges; they gnaw at our sense of justice and fairness.
Here is an excerpt from Bush's speech, with my emphasis added:
But the problem I want to talk today is the problem with our health care system. I hope you're as proud of our health care system as I am. I mean, we're great at what we do. (Applause.) We've got great doctors in America. (Applause.) Incredibly skilled, well-trained, compassionate people who care deeply for their patients. We've got great nurses in America. (Applause.) People who love their patients. We've got fine hospitals, fine researchers. We're on the leading edge of technological change in this country. We make new discoveries all the time. We develop new cures and, therefore, we develop new hopes for people who are sick. We're good at what we do. And I'm proud of the health care system of America. (Applause.)
But we've got some problems. And one of my jobs is to talk plainly about the problems, and encourage people to find solutions to the problems and then get them to act. We've got a problem because too many of our citizens go without health care. That's why I proposed refundable tax credits to empower people to be able to have the capacity to get into the marketplace to purchase health care.
We've got a lot of people who go to emergency rooms for primary care, which strains our emergency rooms. It makes it hard on the community hospitals. That's why I'm for community health centers, realistic, smart ways to make sure people can get primary health care who don't have it.
Our seniors need to have a reformed Medicare plan which includes prescription drugs. (Applause.) We've got a system that's stuck in the past. Medicare is stuck. Medicine has become modern, and Medicare hadn't. And it seems like to me a good place for Congress to start is to take a look at their own health care system. They've got choice in the system. Congressmen and senators and their staffs can pick and choose the plan that meets them best. It seems to me a good principle for our seniors, to trust our seniors to make the right decisions for them. (Applause.)
And medical care is expensive. Out of $100 spent in this country, $11 goes to pay for health care. The costs are rising at the fastest rate in nearly a decade. I mean, that's a problem. Most costs in our economy are pretty well under control; inflation is low. But that's not the case in health care. And we need to do something about it, before people get hurt.
Health care costs rise for a lot of reasons. Research is costly. Technologies cost money, and they're expensive. And some of the costs are necessary. But there are some costs that are unnecessary as far as I'm concerned. And the problem of those unnecessary costs don't start in the waiting room, or the operating room, they're in the courtroom. (Applause.) We're a litigious society; everybody is suing, it seems like. There are too many lawsuits in America, and there are too many lawsuits filed against doctors and hospitals without merit. (Applause.)
And one thing the American people must understand is, even though the lawsuits are junk lawsuits and they have no basis, they're still expensive. They're expensive to fight. It costs money to fight off a junk lawsuit. And oftentimes, in order to avoid litigation, and oftentimes, to cut their costs, docs and, therefore, the companies that insure them just settle. See, so even though there's no merit, in order just to get rid of the thing, they just say, okay, let's just pay you. We'll get you out of the way. Instead of maybe suffering the consequences of a lousy jury and a lousy verdict, just pay them off. That is expensive to the system when it happens time and time and time again, like it's happening in America today. (Applause.)
And what's happening is these rates for insurance are going out of sight. And doctors need insurance to practice. Today I met with a lot of great health-givers and healers, decent people, compassionate Americans who love their patients. These are docs -- I met with some patients, as well -- talking about the effects of this litigious society we have. And I heard stories about people not being able to pay their premiums. See, that means that health care is no longer accessible to too many of our citizens. When a doc can't pay the premiums and, therefore, can't practice, somebody is going without health care. It's strains the system.
So what happens is, doctors say, well, gosh, I can't afford it here in Pennsylvania, I'm moving. I'll just take my heart and my skills to another community where I can afford it. But when that happens, somebody hurts. Somebody doesn't have the care. Some mom fixing to have a baby wonders out loud -- when she wonders out loud whether or not the doc is going to be there to deliver the baby, it's a -- we heard a story, by the way, about that -- it's a sad situation. There's a lot of uncertainty in our society. Lawsuits run up the costs for you, the patient. But they also create a sense of uncertainty in America for people who need the stability of good care.
I had a chance to, when I talked to the docs, to talk about people who literally had tears in their eyes when they described their situation. Debra DeAngelo and her husband are leaving Scranton to go to Hershey. They wanted to stay here in Scranton, they were raised in Scranton. I met one of Debra's patients who really needs her to be in Scranton. They chose so because they can get their insurance there and they can't here.
This insurance issue is creating a problem in our communities all across America. People are having to move. People who don't want to move have to move in order to stay in business to be able to do their job.
Jack Brooks is a respected pathologist at the University of Pennsylvania Hospital. He was there today. He went to Buffalo. He moved back to his state, but he was turned down by three insurers when he came back to Pennsylvania. The fourth insurer's quote was just too high, he couldn't afford it. Jack Brooks has never had a claim filed against him. He's one of your leading docs here in the state of Pennsylvania. He's one of your best assets. He's never been to the courthouse. And yet, because the system is broken, he couldn't afford to be in Pennsylvania. Fortunately, he got some insurance through a hospital; he couldn't do it on his own. You've got a problem here in this state. (Applause.)
Greg Przybylski was here. He's a brain doctor. He has been moving from Pennsylvania to Illinois to New Jersey because the costs were too high. He can't stay in business. He can't do what he was trained to do and loves to do, which is to treat patients. He talked about when he was living in Chicago, he talked about a patient of his who had incredible complications. The guy couldn't find help in Pennsylvania, so the man drove all the way out to Chicago to be treated by Greg. That says a lot about Greg. It says a lot about his patients. And unfortunately it says something bad about the health care system, when liability costs are such that you can't get the kind of care that you need in Pennsylvania.
You're not alone, though. It's not just your state that's got a problem. We heard from an OB/GYN in the state of Florida about how she couldn't get insured. And in Nevada, pregnant women sometimes have to leave the state to find a doctor. One woman called more than 50 local doctors and couldn't find one to serve her. So she's going to go to Utah to have her baby.
I was down in Mississippi recently to talk about this issue. There's a doc and his wife who's also a doctor, who came from up north down to Mississippi in the Delta region of that state. And the Delta region has got a lot of people who hurt, a lot of people who are needy, a lot of people who need health care. And they went, not to build a giant portfolio of wealth; they went because they got great hearts. They heard a calling. They heard he would have attributed it to the Almighty. Having watched him, I would have attributed it to the Almighty, too. He has got a fantastic heart to him. I could see that he was inspired. He told me he's leaving the Delta because the trial lawyers ran him out. He couldn't practice medicine without getting sued.
Something's wrong with the system. And a broken system like that, first and foremost, hurts the patients and the people of America. (Applause.)
Twenty percent of hospitals nationwide have had to cut down on certain services -- on delivering babies, or neurosurgery, or cardiovascular surgery, or orthopedic surgery. That's a fact. So the problem is not only for Pennsylvania, it's a problem for our country.
And there's another cost driver. And if you're worried about getting sued all the time, then there is the natural tendency to practice what they call defensive medicine. In other words, you order tests that someone may not need, to protect yourself in a court of law. And that's costly, and that's one of the main reasons why costs are going up. These lawsuits have got a lot of effects on our country, and we've just got to understand that.
This is an incredibly important issue for states. I obviously hope the state of Pennsylvania is able to address it. That can happen in the statehouse. When I got to Washington, I said, that's an important issue for the states. And then it didn't take me long to realize, this is an important issue for the federal government, too, and I'll tell you why. (Applause.) The direct cost of malpractice insurance and the indirect cost from defensive medicine raise the federal government's health care cost by at least $28 billion a year. Malpractice, defensive practice of medicine affects Medicare, Medicaid, veterans' health, government employee costs. It affects the federal government. Therefore, it is a federal issue. (Applause.)
It is a national problem that needs a national solution. (Applause.) And here it is -- first, let me just say this as clearly as I can -- we want our judicial system to work. People who have got a claim, a legitimate claim, must have a hearing in our courts. Somebody who has suffered at the hand of a lousy doc must be protected. And they deserve a court that is uncluttered by frivolous and junk lawsuits. If they prove damages, they should be able to recover the cost of their care and recovery and lost wages and economic losses for the rest of their life. That's fair. That is reasonable. And that is necessary for us to have confidence in the medical system and in the judicial system. (Applause.)
Yet, for the sake of affordable and accessible health care in America, we must have a limit on what they call non-economic damages. (Applause.) And I propose a cap of $250,000. (Applause.) Otherwise, if not, excessive jury awards, like those in Pennsylvania, and those I was just -- one was just described to me -- today a guy held up a full-page ad in your newspaper paid for by the excessive jury award. (Laughter and applause.) Excessive jury awards will continue to drive up insurance costs, will put good doctors out of business or run them out of your community, and will hurt communities like Scranton, Pennsylvania. That's a fact. (Applause.) And that's why we need a cap on non-economic damages, and that's why we need a cap on punitive damages, as well. (Applause.)
As I mentioned to you -- and it's important for our citizens to understand -- it is the fear of unlimited non-economic damages and punitive damages that cause docs and the insurance carriers to unnecessarily settle these cases. See, you can pretty well blackmail a doctor into settlement if you continue to throw lawsuit after lawsuit, and the system looks like a giant lottery. (Applause.) Thank you.
There needs to be other reforms, as well. A lot of times, these lawyers will sue everybody in sight in order to try to get something. In cases where more than one person is responsible for a patient's injuries, we need to assign blame fairly. We need joint and several liability reform in our medical liability system. (Applause.)
We need to make sure that doctors can take care of their patients without fear that their advice will be used against them some day. It's hard to believe a system (applause). You hear a lot about the doctor-patient relationship -- it's an incredibly important relationship, in order to make sure we have a health care system that functions well. And yet imagine a system where docs can't share information amongst each other, much less talk to your patient, for fear that what they say will be used them -- in court one day.
The system is not balanced, if that's the case. The system is not fair. The system doesn't need to have a relationship with the doc and the patient for fear of what is said will be used by a lawyer to sue them. That's why we need these reforms, for the good of the country.
We got the bill passed out of the House, thanks to Jim and the members of the delegation here. And I want to thank you for your leadership and your vote. (Applause.) And the Senate didn't act on it, so we've got to start over. And I'm ready to start over. (Applause.) And the time is getting worse. That's what people have got to understand up there in Washington or over there in Washington down there in Washington, whatever. (Laughter.) Thought I was in Crawford for a minute. (Laughter and applause.)
And this is I repeat, this is a national problem and we just cannot allow a bunch of needless partisanship to prevent a good, solid solution from going forward. (Applause.) And let me say one other thing. This problem won't be solved by just throwing money at the problem. This problem will be solved by getting at the source of the problem, which are the frivolous lawsuits. (Applause.)
If you're looking for solutions in Pennsylvania, look at states which have done a good job of helping the patient out. California is one example. More than 25 years ago, they passed a law that caps damages from malpractice suits. And the law has worked.
Let me tell you a startling statistic. Reports from Philadelphia say that juries there have awarded more in malpractice damages than the entire state of California did over the last three years. That says two things. California's law is what people in your statehouse ought to look at, and you've got a problem in Pennsylvania. (Applause.) There was a good news story in Mississippi. I went down there and -- it wasn't because of me, it was because the doctors and the citizens understand the cost of a trial system gone array and they got themselves a law. And they got a medical liability law. They put caps, real caps. Guess what happened? In some counties, the malpractice claims rose dramatically before the law came into effect. (Laughter.) Now, what does that tell you about the system? It tells you the system is less about justice and more about something that looks like the lottery, is what it looks like to me. (Applause.) And with the plaintiffs bar getting as much as 40 percent of any verdict, sometimes there's only one winner in the lottery. (Applause.)
We need reform. You need reform in Pennsylvania, and we need reform all across America, and we need a law coming out of the United States Congress. (Applause.) It's a law that recognizes the centerpiece of good health care is to worry about your patient, the American people. It's a law that will recognize that an affordable and accessible health care system can best be had if we limit the caps -- put caps on non-economic and punitive damages. That's what I understands. (Applause.)
Congress needs to act on this law. Congress needs to listen to the people and not make excuses as to why they can't get something done. I believe we'll get something out of the House. I believe we'll get us a good law out of the House. And then the Senate must not fail its responsibilities to the American people again. (Applause.)
And you can help. Every state's got them a couple of senators. (Laughter.) And they need to hear from you. I consider your two senators allies, but they need to hear from you. Every state, people who are concerned in every state about whether or not they're going to have affordable health care, or health care at all, need to contact the people that represent them. See, democracy can work. Democracy makes a difference. When the people speak, the folks in Washington, D.C. listen. (Applause.) And I'm here to ask you to join in this important cause, for the sake of people you care about -- your loved ones and your neighbors and the people in your communities.
No, we've got a lot of problems facing America. We've got the responsibility to make the world more peaceful. We have the responsibility to make sure our homeland is secure. We've got the responsibility to make sure every child is educated. We have a responsibility to make sure our health care systems work. We've got a lot of problems. But I'm going to tell you something about this country. In my mind, there is no doubt that we won't solve these problems, because this is the greatest nation, full of the finest people, on the face of the Earth.
Thank you for coming. May God bless. Thank you all.
End of the excerpt from President Bush's speech.
Excerpts from the 2003 State of the Union Address by President George W. Bush
Instead of bureaucrats and trial lawyers and HMOs, we must put doctors and nurses and patients back in charge of American medicine. (Applause.)
To improve our health care system, we must address one of the prime causes of higher cost, the constant threat that physicians and hospitals will be unfairly sued. (Applause.) Because of excessive litigation, everybody pays more for health care, and many parts of America are losing fine doctors. No one has ever been healed by a frivolous lawsuit. I urge the Congress to pass medical liability reform. (Applause.)
As Bush discussed lawsuits, the camera panned to Senator John Edwards, who looked positively uncomfortable as he slouched in his chair, looking as if he wanted to disappear while others were vigorously applauding the President's words. No wonder. Edwards, and others of his ilk, are part of the problem.
I heard that Senator Edwards' web site once mentioned his trial lawyer past, but this was deleted once he announced that he was a candidate for the Presidency. From this, and from Edwards' behavior during Bush's speech, I conclude that Edwards is ashamed of his prior career.
What do I think of the impending physician
Q: Hello, Dr. Pezzi, and thank you for a most intriguing website.
I work in an emergency room in New
Jersey. I am still perusing your site and thinking about the many
issues you discuss therein. I do, however, have two questions now:
I am not convinced that a temporary strike will achieve its intended effect,
but it is clear that something must be done to make medicine a tolerable
profession once more. As I discussed on my web site, when physician income
is reduced because of skyrocketing malpractice insurance premiums and decreased
reimbursements, it does more than erode the morale of current physicians; it
also discourages students from choosing medicine as a career. For the past
four years, medical school applications have fallen. The bottom line is
that qualified applicants chose easier and more lucrative careers, forcing
medical schools to accept people they otherwise would reject. Obviously,
this will harm future patients. Hence, this issue isn't just about
protecting doctors; it is also about protecting patients. Patients are
also hurt because they bear much of the ultimate cost of malpractice insurance
and the sequelae of defensive medicine that is necessitated by overly litigious
attorneys. This robs patients of money that they could put to better use
elsewhere, and it forces some people to forgo medical insurance. If
uninsured people have assets, they risk losing everything if they seek medical
care. Fearing this financial encumbrance, some people delay or avoid
medical care, which can exacerbate their problems and sometimes kill them.
Hence, patients are paying a high price for this crisis. So why don't
things change? It is because trial lawyers funnel a lot of money to
politicians (primarily Democrats; I'm sorry if you are a Democrat and I offended
you with that statement, but it's a fact). Those politicians return the
favor by enacting legislation that makes it easy to sue — ostensibly to protect
medical consumers. Personally, I think people would be better off if
physicians were immune to civil prosecution. This may seem impossibly
un-American, having no right to retaliate, but there is already precedent for
it. If a judge or jury unfairly convicts a man and sends him to prison, do
they ever face the prospect of being personally sued? Never. If they
make a mistake in judgement, they get off scot-free . . . no need to even
apologize. If a compensatory payment is made, it doesn't come from them,
nor from an insurance policy that they paid for — it comes out of the taxpayers'
pockets. If a police officer accidentally kills someone, who pays?
The cop, or the taxpayer? It's the taxpayer, once more.
Malpractice attorneys are fond of saying that physicians need more
self-policing. In reality, lawyers are the ones who need more
self-policing. They have a notorious propensity to bilk their clients
through exaggeration of hours worked and in even more egregious ways. My
brother once worked for a company that sold books and software to attorneys.
In the course of his job, he witnessed attorneys boasting about these scams.
Much of the supposed justification for why physicians need more self-policing is
because of all the physician errors and malpractice. As I will point out
in more detail later on, most (about 80%, according to a Harvard study)
lawsuits are frivolous. Hence, it is preposterous to use these
trumped up cases as evidence that docs need their wrists slapped more often.
Another specious argument is that doctors make "x" number of medical errors per
year, therefore the lawyers are performing a public service by punishing
doctors. As Dr. Dean Edell has pointed out, about one in 200 patients
undergoing heart surgery dies, even when the surgeons are the best in the world.
The vast majority of bad outcomes are attributable to one fact: people
have a genetic predisposition for illness and death. It happens to
everyone. However, attorneys ignore this fact (because they cannot
profitably find fault with God or Mother Nature) and instead blame doctors.
For example, lawyers have wrung countless millions from obstetricians for
causing cerebral palsy, even though evidence suggests most of these cases are
due to genetic defects, miscellaneous developmental factors, and intrauterine
exposure to various toxins and infectious agents. Last weekend, 60
Minutes mentioned how a specialist in high-risk obstetrics retired from his
job when his malpractice premium rose to one million dollars per year. Who
will care for the patients he would have treated? Probably someone will
less specialization and experience. Thanks, lawyers. You're really
Do you believe that the threat of a biological attack is imminent enough
to merit vaccination? Or do the risks of the vaccine outweigh the possible
benefits? If you were working in the ER today, would you want it?
Thanks in advance for reading my concerns. (Name withheld by
These assumptions seem logical but may not be valid. Thus, we need a crystal ball to know the best answer. There are two reasons why I do not fear the smallpox vaccine. First, I had it, and developed no problems. Second, even judging by the most gloomy prognostications, the incidence of serious adverse reactions will be rare. From what I heard, the primary danger of this vaccine is to people with compromised immune systems who may, of course, succumb to some other manifestation of impaired immunity.
Dear Dr. Pezzi: Thank you for your prompt reply. Having just
returned from a 15-hour shift, I am not at my best now, but I am awake enough to
discuss the issues I raised a little further. Forgive me if my thoughts
become a little convoluted, though; you know what it's like in the ER.
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Before I comment further on the physician strike, I will present the following topic as a preface:
How the malpractice crisis hurts all people, not just doctors
Q: I read an article that discussed how patients (not just doctors) are hurt by the malpractice crisis. In most of your discussions of malpractice, you discuss it from the doctors' point of view. I think you'd have more luck persuading people if you showed them how they are being hurt. Christina
A: I discussed this in True Emergency Room Stories and on my web site. It's true that most of my discussions centered around the impact of malpractice on doctors. That's because I am a doctor, and many of my readers are thinking of medicine as a career. I think it's my job as an author to inform them of what they will face. For people who aren't physicians, it is difficult to appreciate just how much the constant threat of a lawsuit colors what ER doctors think, say, and do. Even when malpractice concerns are not in the forefront of an ER doctor's mind, they are an almost constant companion that runs like an undercurrent of thought every day of his career. If a doctor doesn't yet possess that perpetual concern, he likely will after his first lawsuit — especially if the lawsuit is frivolous. I once felt relatively immune to malpractice, comforted by the thought that doing the right thing would insulate me from a possible lawsuit. How naive I was! There are several reasons why doing a good job won't necessarily protect a doctor from allegations of malpractice:
First, the legal definition of malpractice (that a doctor did something that an average practitioner of his specialty would not do, and this error resulted in harm to the patient) is now essentially antiquated in some states. Instead of being compared to an average practitioner, a physician is often judged by what the best doctors could do in the best possible circumstances, sometimes even assuming that we have technological capabilities that do not yet exist, and assuming that money, time, and other patients are not a concern. This major shift in the operative definition of malpractice is illustrated by the quagmire that docs face in regard to diagnosing a pulmonary embolism (a blood clot in the lung). This is so notoriously difficult to diagnose that doctors fail to diagnose it anywhere from 50 to 70% of the time. An average doc is more likely to fail to diagnose it than he is to diagnose it, and even the world's best docs in topnotch medical centers often flub the diagnosis, too. Nevertheless, doctors are sued all the time for failing to diagnose pulmonary embolisms. However, they shouldn't be, because an average doctor will likely do the same thing! Why is it moral, ethical, or justifiable to punish a doctor when he is no worse than an average doc? The fault does not lie with the doctor, it lies with the fact that pulmonary embolisms are tricky to diagnose. Some day, physicians will have a Star Trek scanner that beeps like a banshee whenever it comes within ten feet of a patient with a pulmonary embolism. Until that day arrives, however, docs must contend with the fact that the signs and symptoms of a pulmonary embolism are nonspecific and can occur in a number of other conditions. Furthermore, the existing tests for this problem are imperfect, and their cost and possible risks limit their use. Patients with pulmonary embolism may present with shortness of breath, wheezing (and other abnormal pulmonary sounds), rapid heart beat, restlessness, anxiety, chest pain, lightheadedness, seizures, syncope (passing out), neurological deficits, cough, fever, heart murmurs, or hemoptysis (coughing up blood). If an ER doctor performed tests to check for a pulmonary embolism every time he saw a patient with one or more of those symptoms and signs, he would be fired because the ER would become incredibly backlogged and other patients would die or suffer as a result. He'd also spend a ton of money and make healthcare even less affordable than it is now. Society does not give ER doctors unlimited resources and unlimited time to ascertain that every diagnosis is unquestionably correct. Patients constantly stream into emergency rooms, so ER docs must move patients out as fast as they come in. To keep the revolving door moving, docs must often base their diagnoses on guesses, not incontrovertible facts. When we guess, it's an educated guess, but it is still a guess. Guessing involves probabilities: a probability that the doctor will be right, and a probability that the doctor will be wrong. Because medicine is an imperfect science about which we have much to learn in the next millennium (at which time we will likely know just about everything), and because doctors do not have unlimited resources (especially in the ER!), even the best doctors will be wrong. Not rarely, but frequently. Some things are easier to diagnose than others, obviously. If a doc sees a wart or a pimple, that's easy. But what about something such as tiredness? Primary care physicians see patients complaining of that all the time. There are hundreds of diagnostic possibilities, so doctors don't always uncover the true cause, even in something so common and apparently simple. The fact that modern medicine involves a lot of guessing is a boon to attorneys, who profit from this fact. The way it is supposed to work is that docs are not penalized if they're no worse than an average doc. In reality, any error — even for things that are usually misdiagnosed, like pulmonary embolism — can result in a lawsuit.
Second, attorneys in some states are now so hungry for money that they will even accept cases without merit. Even if a doctor does a perfect job (and not just an average or adequate job), he can be sued. It happened to me! (Here's the case.) The fact that I was eventually dismissed from the case was no victory for me. It cost me a lot of time and money, and it's a perpetual black mark — albeit unjustified — on my record.
Third, attorneys often don't give a hoot whether or not a doc committed a medical error. If there's been a bad outcome, that's all they need. Attorneys know that juries often award millions of dollars out of sympathy, not because a doctor did something wrong. Furthermore, attorneys know that insurance companies know this, too, so insurers are usually frightened enough to settle out of court even before a case goes to trial. Life is filled with risk and it inevitably ends in death. Until people figure out a way to sue the hand of fate, they extract their revenge from convenient targets, such as doctors. True, most people are realistic enough to know that every death is not a sure sign of malpractice, but unfortunately our country is filled with many people who welcome the chance to sue, even on flimsy grounds.
Fourth, patients sometimes sue not because there's been a bad outcome or because the doctor did something wrong, but simply because they don't like the doc and they want to punish him for some reason. Attorneys usually reject these vindictive suits unless they're a friend, or otherwise beholden, to the plaintiff. It's human nature for powerful people to sometimes abuse their power.
Under the current system, defendants may be held liable for 100% of the damages even if they are only 1% at fault. This encourages attorneys to sue people with "deep pockets" and to be very creative in assigning blame.
Apart from the financial cost of lawsuits, there is an emotional price, too. I went into medicine with a genuine desire to help people and do not just an OK job for them, but a virtually perfect job. I grew up watching Marcus Welby, MD and dreamt of becoming similarly close to my patients. I did not think of patients as sources of revenue, but as people with wants and needs it was my job to fulfill. I sacrificed the best years of my life to become the best possible doctor that I could be, and I was willing to bend over backwards to help people in any way I could. I've done things that few other doctors do, such as make housecalls in the winter at night even for people who weren't my patients and did not pay me! Perhaps some docs would scream "why the heck are you calling me?" before slamming the phone down after receiving such a request, but I went. Not grudgingly, but filled with glee that I had the chance to help someone. Society, what more could you want in a doctor? Most people would be thrilled if they had a doc who wasn't in a constant rush to get on to the next patient, but having a doc who makes free house calls and will spend as much time with you as you need would be a dream come true. So, I was idealistic, and to some extent, I still am. However, I'm not blind to the fact that when it comes to punishing doctors, our society is trigger-happy. Facilitated by avaricious attorneys, many Americans are too willing to blame doctors for anything they can. Ultimately, this hurts not just doctors, but society as a whole. Many physicians feel emotionally estranged from their patients, viewing them as potential lawsuits. Other docs have closed their practices and moved to less litigious areas, or simply left the practice of medicine altogether. This harms patients by decreasing access to physicians. For years, this efflux of doctors has occurred in obstetrics (in January, 2003, Dr. Dean Edell reported on his radio show that 40% of obstetricians no longer practice obstetrics), and it is now happening in the field of trauma. If a woman cannot find someone to care for her during pregnancy, she could conceivably move to another area. The same cannot be said about docs who care for trauma patients. There, immediate availability makes the difference between life and death. In some areas, the exorbitant cost of malpractice insurance made doctors close up shop. Patients have died as a result. Perhaps you blame the doctors for leaving, but I think it makes more sense to blame the attorneys who make the practice of medicine so noxious and expensive. To limit their liability, some doctors no longer offer certain risky procedures. If you need a risky procedure, you now might have to travel out of state to find a doctor willing to do it. You can thank attorneys for that inconvenience and cost. By their actions, attorneys are hurting people. They're decreasing the availability of medical care, and making it increasingly expensive. They're driving a wedge between you and your doctor. They're dissuading some of the best and brightest students from choosing medicine as a career; thus, they're hurting not just you, but also your children and grandchildren.
Attorneys love to camouflage their greed by claiming to be the ones who protect patients from physician error. That's ridiculous. To begin with, there is no evidence that lawsuits make patients any safer or better off. Even in the days when allegations of malpractice were as rare as a dodo bird, doctors did not give half-assed care just because they weren't worried about a lawsuit. People who go into medicine are supremely dedicated and hard working, and anyone who isn't will never obtain a medical license. The years of training are intensive and grueling, which weeds out the ones with insufficient aptitude, drive, and devotion. If attorneys were truly performing a public service by suing doctors, after a blizzard of lawsuits in recent years, there would be a decrease in the incidence of malpractice suits. However, that is the antithesis of what we're seeing. Malpractice lawsuits are now more common than ever. Thus, A) either doctors are committing more malpractice than ever, or B) attorneys are constantly lowering their threshold for suing as their standards dip lower and lower and they sue for progressively more frivolous things. Regardless of whether A or B is true, it doesn't speak well of attorneys. If A is true, it indicates that attorneys are wrong when they say that suing doctors improves medical care. If B is true, it indicates that attorneys are unprincipled. As I point out elsewhere, it is clear that lawsuits do nothing to improve medical care. In fact, lawsuits make it more difficult to give topnotch care because the billions of dollars that go to attorneys could have instead gone to hire more doctors and nurses so we wouldn't have to rush inordinately.
The money now being spent on malpractice would be better spent preventing it and increasing the affordability of healthcare. Unfortunately, the diversion of money for malpractice expenses increases the likelihood of future errors, and hence engenders more malpractice suits. For example, I know of cases in which hospitals had a shortage of nurses because they were strapped for cash. In just one case, the settlement was for over a million dollars. A million dollars will pay for a lot of nursing hours — hours that can be spent taking care of people, making them more comfortable and better cared for, and less likely to be the victim of an error. However, when a cash-strapped hospital is sued, this makes them even less able to afford nurses. It's a snowball effect. Thus, subsequent patients will be penalized. You can't realistically say, "Oh, it's just an insurance company that'll pay that million dollars" because some hospitals are self-insured, and even when they are not, that million dollars is eventually paid by hospitals. Insurance companies aren't Good Samaritans (unlike some docs); when their costs rise, their premiums rise. Insurance companies don't pay, they just transfer money. Hospitals pay. Doctors pay. You pay. Oh, do you pay!
It's not just the medical profession that is noxious enough to dissuade people from entering it. The nursing profession is beset by this problem, too. The current nursing shortage has many roots, one of which is that society is unwilling to pay nurses what they're worth. Consequently, many people who might otherwise have become nurses choose more lucrative professions in which they won't be worked like a dog. To compensate for the shortage, and to economize, hospitals hire LPN's (licensed practical nurses) and nursing assistants, who have less training than RN's (registered nurses). RN's can only be diluted so far before their patients suffer, and that point was reached long ago. Every time another million-dollar settlement exacerbates the money crunch, the nursing shortage gets that much worse. This makes attorneys ecstatic, but penalizes almost everyone else. Attorneys are elated because for them it's more than a big payday; it is something that makes such future paydays even more likely.
As a former victim of malpractice (even though I never sued), I can understand the desire to be compensated for a mistake. However, as I pointed out above, many malpractice settlements are essentially extortion wrought by greedy attorneys who aren't restrained by the truth. Second, even when settlements are justified, I maintain that those dollars would be better spent on things such as increasing the availability of nurses. Let's consider a truly tragic scenario: imagine that a nursing shortage leads to your mother dying ten years before her time. In compensation, you're given a few million dollars. Now I don't know what great social good you'll do with that fortune, but I do know that most recipients spend it on things like fancy houses, cars, vacations, clothes, boats, and other toys. Yes, I agree that it is an American ideal for victims to be compensated, but I think that money would be better spent on increasing the availability of nurses so that hundreds or thousands of future patients obtain better care. Or, why not compromise? Give you the money you're realistically due, and spend the rest on improving healthcare.
You might think it is a tricky proposition to put a price on a life. Yes, life is priceless, but we must adopt more realistic standards in malpractice suits — otherwise one suit could permanently bankrupt our economy. Now that we agree that life can't be treated as being priceless, what remains is to set a price on life. There is no consensus on how to do this. Judging by some recent settlements, some juries think that a life is worth a billion dollars. I'd love to agree, but there isn't enough money in this world to make such extravagant generosity feasible. I think that there is only one way to equitably valuate life: assess how much money an average person makes in his lifetime. What is that? About a million dollars. If a person's life is cut short by one year (about 1.3% of his life expectancy), should we still award the full sum? Of course not, although that is sometimes done by juries. The problem is that someone, somewhere is paying for all those huge settlements. This fact is disguised by its dilution. Let's say there is a settlement for ten million dollars. Because it takes a lifetime of work for an average man to make a million dollars, the fruits of ten lives will be devoured to pay that settlement. Obviously, when there is such a settlement, ten people aren't enslaved for a lifetime of work. The doc pays some via his malpractice deductible and higher insurance premiums, and society pays the rest (the majority, actually) via higher costs for goods and services that is diluted throughout the economy. That may make it seemingly invisible and difficult to appreciate, but the end result is the same whether ten people are enslaved for their entire working lives, or a hundred people are enslaved for 10% of their working lives. Some economists have tallied up this hidden burden, sometimes called a "tort tax," and the number is staggering. You know that vacation home you've always wanted? Had you not paid that tort tax, by the time you retire, you could have bought it. With cash. Unless you're a Robinson Crusoe, you will pay that tax. It's inescapable. Virtually everything you buy, whether it is a service or some product, costs more because we're so fond of suing people in the United States. This makes some people rich, such as attorneys and successful plaintiffs, but it makes the rest of us poorer.
Most people never benefit from the tort tax; they just pay it, and others get rich. With good reason, it's been likened to a lottery. In lotteries, there is no correlation between merit and winning. This is often true in malpractice suits, too. A recent Harvard study showed no correlation between physician negligence and medical liability award payments. I don't claim that doctors never make mistakes. I have. In a busy ER in which a doc has more patients than he can humanly care for, mistakes are inevitable. Mistakes are also inevitable when a doctor is young and still learning. Ironically, I was never sued for my mistakes, but when I was sued, it was incited by greed, not a medical error that caused harm. In a splendid Townhall.com article, columnist Mona Charen said "most malpractice suits in America are not about bad medicine, they are about bad outcomes." That is something I've said for years, but I think it helps to hear it from someone else who is, by the way, a lawyer and not a physician. The Harvard study also found that over 80% of malpractice lawsuits were without merit (i.e., frivolous). Thus, frivolous lawsuits are not an occasional imperfection in the legal system; they are its bread and butter. Columnist Peter Huber said that approximately 20% of the suits did not even involve an adverse event, but $29,000 was the average cost of settling these cases in which there was no bad outcome for the patient.
This perpetual diversion of money seems unstoppable, but I don't think it should be that way. Why can't every person decide for himself if he wishes to be part of this system? If you choose to be, you pay the tort tax. Perhaps you'll have a big payday some day, but odds are you'll pay a small fortune just to make someone else rich. Or, if you choose to opt out of the tort system, you don't pay the tort tax. You'd have to relinquish your right to sue (otherwise, who would pay for it?), but the odds are that you'd never win a settlement, anyway. By opting out of the tort system, you'd begin saving immediately. You could take your savings, invest them, and retire years earlier, or have a lot more money to spend. However, people aren't currently given this choice. Thanks to attorneys and their lackeys in government, you're born into this system and they'll tax you whether you like it or not. An average person is far more likely to be penalized by the tort tax than he or she is to make money from it. However, attorneys tacitly insist that you keep playing the tort lottery, because while it's likely to never benefit you, it's almost certain to benefit them. They don't give a hoot if 10% of your life's work goes to pay for this tax; they just want you to keep paying it so they can be millionaires or even billionaires. To mask this huge transfer of wealth from us to them, attorneys craft all sorts of ways to make it seem like they're the guys in the white hats. Hardly. When they're called leeches, it is with justification. They don't just suck from doctors and insurance companies, they suck from you. Doctors and insurance companies pass their costs on to you — that is how they obtain their money, after all. Hence, when attorneys make doctors and insurance companies pay, guess who really pays? You do.
If you stop and think about how this tort tax affects your life, you'll be angry. Perhaps you want cosmetic surgery, but can't afford it. Perhaps you'd just like to spend less time working and spend more time with your family. Perhaps you'd like to buy a newer, safer car. Perhaps you'd like to live in a better home. Perhaps you'd like to help your children pay for college. Perhaps you'd like to give some money to your parents so they don't have to struggle so much during retirement. Thanks to attorneys, you may not be able to afford those things because the money that would have gone to you — your money — was instead looted by them so they could live like kings.
The fact that you'll spend about a tenth of your life indirectly working for attorneys ought to infuriate you. While that 10% tax seems bad enough, in healthcare, the penalty is far higher. The lowest estimate I've seen is 10%, but I think that it's closer to 50%. If you add up all the direct and indirect (e.g., defensive medicine) costs, attorneys make healthcare far more expensive than it would otherwise be. This hurts people. I know of people who died because they could not afford insurance, and did not want to risk incurring a huge debt. So, they took a chance with their health, and lost by paying the ultimate price. If healthcare were more affordable, those people might be alive today.
Attorneys like to believe that their shenanigans play no part in anyone's death. They deceive themselves with the notion that they can suck money from the system, and this somehow helps people. Well, it does. It helps them.
Now available as a free e-book download
What really goes on in emergency rooms? If you're a fan
of the television show ER, you might think that you know. Not so,
asserts Kevin Pezzi, M.D., an ER doctor and author of True Emergency Room Stories. Pezzi says the show ER only
scratches the surface; the truth is far more interesting — and bizarre.
So bizarre, in fact, that the cases could shock even an experienced ER
physician. "I'm now a firm believer in the saying that truth is stranger
than fiction," he says. "I don't think that anyone could dream up such
Reaction to the physician's strike over the malpractice insurance crisis
An article in the Philadelphia Inquirer chronicled the reactions of some parents who were angry that their children could not be treated by their pediatricians, so they ended up in an overstuffed ER. On one hand, I sympathize with the plight of patients who are victimized by this crisis. On the other hand, patients are not without blame. While the lion's share of the blame goes to rapacious attorneys and their legislative lackeys, people should realize that they've contributed to the crisis by turning a blind eye to a situation that isn't just reprehensible, it is evil. As I pointed out in the above topic, most malpractice lawsuits are without merit. Judging by the Harvard study, this occurs over 80% of the time. Thus, this is not some minor blip in our justice system, it is pervasive and institutionalized plunder in which innocent doctors are routinely defrauded.
In theory, our justice system bends over backwards to ensure that people are not found guilty of crimes they did not commit. If you've ever been the victim of a false allegation, you know how damaging and infuriating it is. Now imagine that the charge was more than an aspersion, it was a demand for millions of dollars — potentially everything you earned in your life, and will earn in the future. Given the propensity of all humans to make mistakes, it is questionable whether we should so severely penalize anyone for an occasional error. In his career, a physician might treat 300,000 patients. If only one person were harmed, and 299,999 were not, he would have a track record that is better than that of any physician in history. Yet that one flub could potentially rob the doctor of everything: his house, his car, his savings, and miscellaneous possessions. If we are so trigger-happy about punishing physicians, why are we so willing to overlook other errors, even when those errors are more momentous? As I've mentioned before, judges and juries are immune to errors they make. They listen to evidence — sometimes complete, and sometimes not — and make judgments based on it. Doctors do the same thing. We rarely have all the facts, especially in an ER in which the clock is ticking. In contrast, judges and juries can take all the time they want to reach a decision. The science of medicine is far from complete, our healthcare system is far from ideal, and so are some patients who don't know their medications, allergies, or past history. Some patients cannot even accurately describe their current symptoms. Physicians do their best to work with such imperfection, and they make judgments that are usually correct, but sometimes not. Anyone who expects perfection from such an imperfect system is clearly asking too much, but whenever an error arises, we're inclined to seek retribution. Increasingly, this retribution isn't a slap on the wrist, but a multi-million dollar demand. To stave off the possibility of being forced to write such a check, physicians must now fork over exorbitant premiums for malpractice insurance, sometimes over $250,000 per year. Hence, physicians must either forgo insurance and risk a major loss that they alone must bear, or pay for insurance that guarantees them of losing a fortune. This financial devastation would be more palatable if it were engendered by inexcusable errors, but the Harvard study showed that it is being fueled by inexcusable greed and the failure of society to put an end to this draconian theft. Doctors have screamed for years about this injustice, but most people were too busy to listen. Until now. Goodbye Baywatch, Survivor, and MTV. Hello, overstuffed emergency rooms. The doctors are mad as hell, and they're not taking it anymore.
When judges and juries make incorrect judgments, they can ruin lives. They've sentenced innocent men and women to death, and made others rot away in jail cells. Sometimes these tragedies arise from misinterpreted evidence, and sometimes from poor intuition, prejudice, and misguided revenge. In many cases, these incorrect pronouncements inflict far more damage than errors allegedly made by doctors. However, judges and juries are immune to the consequences of their mistakes. Why is it fair that they should get off scot-free when doctors can be sued for millions, sometimes when they made no mistake at all? This disparity is evil. It is not a question of whether justice is being fairly dispersed (since it is clear that it is not); it is a question of whether doctors can get any justice at all.
The following excerpt from another page on my web site illustrates another injustice that society inflicts on ER doctors:
The government reduced physician payments to the
point that they're an absolute joke and, frankly, darned insulting. In the early
1990's I received a check for $7 from Medicaid to pay me for a patient I saw in
the ER. I asked my boss (who knew far more than I about billing) if this was a
mistake, and rhetorically asked what emergency service I could provide that was
only worth $7. He chuckled and said that such trifling payments were common. If
you think that $7 is bad, consider this: at that time, we paid $5.50 per
patient (it's now a lot more) for malpractice insurance. After deducting that,
there was $1.50 left. After deducting for our other expenses (billing company,
secretary, corporate overhead, etc.), nothing was left. In fact, I
probably paid for the privilege of seeing that patient, and potentially assuming
millions of dollars of liability. Furthermore, thanks to the government, I
didn't have the option of choosing to see or not see that patient; federal law
mandates that I see every patient who comes to the ER (if I tried to say no,
they'd slap me with a $50,000 fine). If that's going to be our social policy, it
is only equitable to spread the cost for this on society at large, instead of
burdening ER docs with paying for their care. The situation is even worse in
patients with no insurance, many of whom don't pay their bills. So instead of
receiving $7 from them, I get nothing but still pay the $7+ dollars of expenses.
As a compassionate person who was once poor, I wouldn't grumble about these
losses, but many of these ER visits are utterly frivolous and unnecessary (if
they weren't, I couldn't have written True Emergency Room Stories). The closest analogies I
can think of that illustrate how this situation is so ludicrous is if the
government mandated that restaurant owners were forced to feed anyone who walked
in their doors for free even if those people were not hungry, or landlords were
forced to provide shelter for people who already had a home. Stealing money from
restaurant owners and landlords in this manner is so abominable that it would
never be tolerated, but the government does the same thing to doctors and no one
bats an eye. Again, what is it about doctors that makes them a virtual piñata?
Why not target others who make more and do less, such as the robber barons on
Wall Street? Healthcare is less important than the need for food or shelter, so
if the government chooses groups who should work without compensation on the
basis of need, restaurant owners and landlords should be subject to this
confiscation before doctors.
Being forced to work without pay and the right to say no is slavery, pure and simple, whether it occurs in a cotton field or an emergency room. Thus, ER doctors are subject to slavery. This isn't a rhetorical excess, it is an incontrovertible fact. Yet Americans are so contemptuous of doctors, and ER doctors in particular, that they've effectively legislated away one of their most basic rights. Frankly, I am shocked that society sits idly by and permits this evil to continue. Under the guise of political correctness, society has deemed unacceptable minor and even trivial offenses to our sensibilities. How can society focus so much energy on mere phraseology when it allows a far greater abomination, slavery, to occur?
Doctors are too masochistic for their own good. For years, they put up with injustices that would cause others to immediately revolt. But now they've had enough. It is too early to tell how this battle will turn out. If most people are as myopic as the ones interviewed for the Philadelphia Inquirer article, we're in for a bloodbath. What should happen is that society belatedly acknowledges the injustices inflicted on doctors, and takes steps to make amends. However, if people self-centeredly cling to the notion that fairness is not a two-way street, doctors will be forced into taking progressively more drastic actions. Why do people think it is OK for baseball players to strike when many of them make more in one game than most doctors do in a year? Doctors aren't striking for money, they're striking for justice. Judging by the reactions of the people in the Philadelphia Inquirer article, people aren't giving much thought about justice for others. They just want their lives to go on as usual, even if they're trampling on the rights of doctors. No wonder the docs are peeved.
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