Doctors, Lawyers, Greed and Malpractice Suits
To say that the greed of trial lawyers serves a social conscience inert everywhere else, as Murray Kempton did in his column (Editorial Pages, July 22), has to rate as one of the most ludicrous statements the usually astute Kempton has ever made.
Pity us all if the only social conscience extant in this country today is contained in the force of greed of our trial lawyers.
Nobody ever claimed that each and every physician is a paragon of virtue, or even infallible, or even faultless. But medicine as a profession does have a social conscience and always has and still maintains that all victims of medical malpractice deserve just compensation.
Victims of malpractice are being duly compensated. In each of the last few years, several hundred patients have received awards in excess of $1 million. And in the vast majority of those cases, if not in every one of them, Kempton’s keepers of the social conscience, the negligence attorneys, wound up with more of the judgment than their clients, the victims of the malpractice. So much for social conscience, trial lawyer version.
Medicine opposes the excessive judgments and the non-meritorious malpractice lawsuits--and about 70% of all suits filed fit into the latter category. Those suits, even if they lose--and about 80% of them do--are a dire and disturbing emotional and financial headache for all practitioners involved. They also substantially increase the cost of medical care. And in the case of obstetrics, the frequency of lawsuits, the severity of judgments, and the cost of malpractice insurance have reduced the availability of care. More and more obstetricians are no longer delivering babies. For some of them, medical malpractice insurance premiums have gone up to $100,000 a year.
Physicians are vigorously practicing defensive medicine, ordering the gamut of diagnostic tests and prescribing treatments that they might not consider absolutely essential, purely to protect themselves from being sued. The rationale for this costly practice is clear: physicians are rarely sued for ordering a test or prescribing a treatment, but are frequently sued when legal hindsight shows that something wasn’t done that could have been.
The AMA estimates that the practice of defensive medicine in 1984 added from $15 billion to $40 billion to the cost of medical care.
The case of malpractice that Kempton cited was indeed tragic and grievous. It was also atypical. But it did point up a serious problem--getting a “bad” physician off a hospital’s medical staff. It is very difficult to rescind staff appointments when the quality of a physician’s performance is not up to standard. Hospitals and physicians on credential committees constantly face the threat of extensive lawsuits should their judgments in any way not agree with that of the legal profession and the judiciary.
Kempton’s assertion that “the war against the lawyers is at bottom a camouflaged aggression against the jury system” is just so much more poppycock.
Jurors who award huge judgments do so out of sympathy for the plaintiff not out of shock because of the “defendant’s mendacity and callousness.” Whatever the reason for the plaintiff’s predicament, and very often physician incompetence and negligence have nothing to do with it, members of the jury feel sorry for the individual and rule accordingly. I also suspect that a bit of the “there but for the grace of God go I” sentiment is involved. That identification with the plaintiff, I submit, prompts a vote for a generous settlement because the jurors would like the same sort of treatment should they ever sue.
Medicine is prepared to pay for its mistakes and is doing everything in its power to reduce their number. Medicine is as eager as anyone to get rid of the “bad” doctors.
In California the responsibility for disciplining physicians is in the state agency called the Board of Medical Quality Assurance. (BMQA). That board is totally funded by income derived from medicine--the application fees, license fees, and license renewal fees paid by all health-care providers. One of BMQA’s problem insofar as disciplining physicians is concerned is its lack of money to hire additional investigators. Earlier this year, the Council of the California Medical Assn. voluntarily voted to increase the fees its 30,000 members pay to BMQA. Why? To increase BMQA’s ability to investigate and discipline physicians and other providers of health care.
JACK E. McCLEARY MD
President
Los Angeles County
Medical Assn.
