It’s Time to Overhaul Malpractice Law

Randy Dotinga recently wrote an article about proposed changes in malpractice law suggested by the American Law Institute (ALI). Thirty-five years ago in our book Modern Medicine: What You’re Dying to Know we had a chapter on lawyers and how the cost of malpractice litigation drove up the cost of medicine. At that time, we thought in our focus groups that lawyers would be the ones to complain about our book. We found the lawyers didn't complain, but nurses did about our assessment of the new designation primary care nursing. Over the last several decades, it is my opinion that medical malpractice has evolved into a machine which excels at doing what it shouldn’t do and has failed miserably at doing what it should do.

First, all lawyers make a ton of profit on medical malpractice (medmal). The lawyers will tell patients their firm will get 40 percent of the settlement on a contingency case. If a jury awards a patient $2 million, the lawyers get $800,000. Just so you know, lawyers get paid for reading records and for making phone calls, a practice which would be called fraud if a physician did the same. The defense lawyers always get paid well regardless of whether their clients win or lose.

Malpractice suits don't actually benefit patients or patient care. This was my opinion 35 years ago and it has not changed. This courtroom theater adds immeasurable cost to healthcare and frankly, makes lawyers rich at the expense of physicians and patients. When you go to see a lawyer, you will be told there is a retainer of several thousand dollars just to get started.

Meanwhile, I had to see Medicaid patients for a two-dollar payment up front. If I didn’t get the two dollars during their appointment, I still had to see them and I wouldn't be able to collect the two dollars at all. Then I would have to fight with Medicaid for the next four or five months just to get paid $50 for the visit. Fewer and fewer physicians will take Medicaid patients. In fact, I have had a lawyer recommend against seeing Medicaid patients.

To make matters much worse, states have Medicaid fraud units. Any disgruntled employee can call Medicaid and complain about a physician. What the public doesn't know is that Medicare and Medicaid charges of fraud do not need to be true. Yes, let me repeat that again. The complaint against a physician by a Medicaid fraud unit does not have to be true. The government is so proud of stopping fraud and abuse, no one sees the details of the charges. It's actually the state fraud units that are fraudulently making up charges against physicians. They can recover imaginary charges and make imaginary fines up to three times the initial imaginary charge. The legislators are seduced by the imaginary phrase of ending “waste, fraud, and abuse.”

Dotinga's article spends a lot of time reviewing a 25-year old case against a medical resident.

“About a quarter century ago, Virginia resident, Daniel Marenstein MD spoke with a 53 year old patient about prostate cancer screening. The man didn’t receive a prostate-specific antigen (PSA) test… and was later diagnosed with an advanced form of the disease. He then filed a medical malpractice claim against the physician’s residency program…." The jury sent a message to the residency that they didn’t believe in evidence-based medicine. They also sent a message that they didn’t believe in the national guidelines, and they didn’t trust the shared decision-making model."

Evidence-based medicine is a perfect example of being told what to think. The term "evidence" assumes research studies are unbiased and 100 percent correct. In other words, these people supposedly get opinions based on some kind of evidence, but you really need to wonder whether these conclusions fit all patients. In reality, they do not. In the end, as a physician, my obligation is to the patient who is sitting in front of me, and not to the United States Preventive Services Taskforce. It is, therefore, my obligation to do what’s best for my patient, and if that means departing from the so-called evidence-based medicine sacred-cow of the United States Preventive Services Taskforce, then I will do that. In the end, I have a brain, and I intend to use it.

If I fail to diagnose prostate cancer because I followed the sacred cow guidelines, and the patient dies from preventable prostate cancer, telling the patient’s wife that I followed the Preventative Services protocol is of small consolation to her. Those evidence-based guidelines will not bring back her dead husband. So, in the end, I am left with using my brains, my conscience, and my medical expertise.

Let’s talk a little bit about PSA screening. Yes, not every elevated PSA diagnosis is a result of prostate cancer. That’s what we call a false positive screen. There’s also the prostate cancer that will not raise the PSA very much, and that’s a false negative. Again, every screen has its shortcomings. And yes, there are shortcomings with this test. We just need to understand what they are. I know that prostate biopsies are not benign, and I know exactly what they feel like. I am happy to hear there is a new trans-perineal biopsy which is less painful under local sedation with propaphol.

The Gleason score from a prostate biopsy is based upon the two most common malignant cell types. Each score has a maximum of five. Most prostate cancers are a six, so it would most commonly be a 3+3. A Gleason score of seven can be obtained by a 3+4, which is associated with a better outcome than the 4+3. Gleason scores of 8, 9 and 10 are considered high risk and aggressive.

I have a friend from grade school who has had his prostate cancer followed for about a decade and a half many years at the Mayo Clinic. About four years ago his urologist took a CT of his chest. Eight or nine nodules were discovered. The urologist made a plan that he was going to follow up in six months. That was four years ago and no follow up has been done. Recently, my friend was admitted to two hospitals with septic pneumonia where each time he stayed for five or six days.

The first hospital completely missed the metastatic lung cancers. At the second hospital they found the lung cancers and the deep vein thromboses (DVTs) that go along with extensive metastatic lung cancer. I have healthcare power of attorney for my friend. I was told I would be informed of the biopsies. At the second hospital, I talked to his caseworker twice and his doctor for about 15 seconds. I was informed that the biopsy results were not back. After a few days I called to find out the biopsy results and because I had missed my friend's birthday by one day, they wouldn’t give me the results. Remember, they were well aware they had my healthcare power of attorney for my friend.

The next day I called back to provide my friend's birthday and the last four digits of his Social Security number. The secretary had me on the phone for about 15 minutes asking me numerous questions and then told me she wasn’t a nurse and couldn’t give me the results, but at least she told me she had the results. The nurse I talked with the first time wouldn’t even tell me whether or not she had the biopsy report. This time, the secretary told me the doctor wasn’t in that day and wouldn’t tell me when he would be in or whether he would call back or whether anybody would call back. My friend wants to know what his diagnosis is and I’d love to discuss it with him. I was concerned that they would send him home without his understanding about his DVTs and indeed that was the case. He didn’t know he had had DVTs. He didn’t know what medicine he was supposed to be taking, but after about an hour of going through all of his medications, we determined that he was indeed taking Eliquis and of course he didn’t know why, but we did, I think, get that understood.

Unfortunately, this is the degree to which medical care has disintegrated in the last several decades. There’s absolutely no one there who cared whether I got this information or not. I am guessing that they are “just doing their jobs.”

Each time I relocated my practice, I found several men who had various stages of advanced prostate cancer. Several of them I got to know quite well. Many of them were as young as 65 years and died from their prostate cancer.

In five decades, I’ve seen a lot of “recommendations” that don’t make much sense. We need to know the difference between what to think and how to think. In the end, how to think is not only safer, but more useful. If we do what’s best for our patients, we are all winners.

Courtroom decisions, whether they are made by a judge or jury, can be a crapshoot. Part of the problem is what the jury hears and what they don’t hear. Lawyers and judges can decide to heavily weigh evidence tending to implicate someone in a crime, whether it’s true or not. Or exclude evidence which tends to support innocence. To me it appears the ALI wants to influence judges or juries to go down a predetermined road based on the latest dogma.

“The American Law Institute (ALI) argues that the legal system should focus more on evidence-based medicine and less on customary practice when determining whether doctors are responsible for adverse outcomes. The ALI also suggests changes in how informed consent is evaluated.”

So, the ALI disagrees with the decision that the jury made in the 25-year old decision against the residency program, a decision by the jury which indicated the jurors did not trust evidence-based medicine or national guidelines. The ALI is also attempting to bias all future juries using the latest evidence-based rhetoric. And this little issue of “customary practice” includes years of thoughtful judgment, and consideration for the welfare of our patients. Only people who know absolutely nothing about how an office exam works and how you establish relationships with patients, would recommend substituting the latest evidence-based medicine for actual thought. Evidence-based medicine should still make some sense and be placed into the appropriate context when it comes to the individuals we see.

Unfortunately, there are probably many who believe that the recommendations of the ALI reflect the realities of modern medicine. Amy S. Griggs, an attorney who represents patients in medical malpractice cases, said the ALI guidelines align with state law and practice:

“Judging against habit and custom is not adequate. One doctor’s habit and custom can fall below the standard of care if it fails to consider up-to-date studies, trends, and research,” she said. “Judging medical negligence against an evidence-based standard is much safer for patients and is fairer to all. A patient walking into a medical center should expect care from a reasonably prudent healthcare provider who is educated on the safest modern medical studies and treatment modalities.”

I’m not certain on which planet Amy Griggs, lives, but I can tell you that after 55 years of medical practice the words, "Judging against habit and custom is not adequate" shows how little she knows about physician expertise. She is under the illlusion that evidence-based medicine is much safer for patients than physician expertise.

Ascribing blame is a popular misconception about how to fix problems in medical care. We should take a page from the airline industry, which generally takes a year or two to understand what has happened in an airline catastrophe. The purpose of the airline investigation is to correct the problem rather than to assess blame. Blame serves two purposes. Hospitals and clinics benefit by blaming one doctor so they appear to care. The blame also absolves the clinic or hospital of any responsibility for real correction of what are primarily systems problems, not the fault of one person.

I wonder what would happen, how lawyers and judges would react, if physicians got together and told them how they should practice ethically. I expect that would fly like a lead balloon. But it certainly would be what’s good for the goose should also be good for the gander.

I have the perfect solution to the medical malpractice dilemma. Our legislators could pass laws restricting lawyers to making no more than $10,000 on a medmal case. Jury verdicts could be restricted to no more than $100,000. There is actually precedent for this kind of remedy. In North Dakkota, as I understand it, workers comp lawyers may only charge $500.

Lest there be any doubt remaining, medmal benefits neither the plaintiff nor future plaintiffs, nor does it serve to catalyze any real course correction of systematic errors associated with hospital and clinic environments, but medmal does serve to frighten doctors and anybody else in healthcare. It serves to add billions of dollars to the bloated healthcare budget and serves to make lawyers wealthy. Real improvement in healthcare would be carefully looking for, finding, and correcting systemic errors.

Every paragraph in this article about ALI recommendations focused on blame, which is not the solution to healthcare problems. Blame does not revive the dead, and worse yet, lawyers who blame do not prevent future injury and death, which should be our goal.