Is Your Doctor Afraid of You?
HOW often patients have expressed fear or anxiety about going to the doctor’s office! It now appears, however, that the situation may be reversed.
Recently a Senate Subcommittee on Executive Reorganization finished a two-year study on the medical malpractice problem in the United States. According to the Medical Tribune of December 1, 1969, the report noted: “The rising number of malpractice suits is forcing physicians to practice what they call ‘defensive medicine,’ viewing each patient as a potential malpractice claimant.”
Fear of a lawsuit is causing overly cautious physicians to order excessive diagnostic procedures, or they avoid a needed test because it entails risk. Thus, patient care and costs often are affected.
The American Medical News stated that “higher judgments and settlements are increasing the cost of physicians’ insurance premiums, which are being passed on to patients, health insurance companies and federal medical programs in the form of higher fees.” Thus, according to the Senate subcommittee, a federal role seems imminent.
Increasing Number of Claims
The first reported medical malpractice claim in the United States was made in 1794. So malpractice suits are not new, but they certainly are rapidly increasing in number. Between 1930 and 1940 malpractice claims reportedly increased a thousand percent! The rise has continued to skyrocket.
In its May 10, 1958, issue the Journal of the American Medical Association said that a claim had been made against one out of seven of its living members at some time during his career. It was reported at about the same time that in New York and Washington, D.C., one out of every five doctors had been sued for malpractice, and that in California the number was one in every four.
Does it appear that this trend will change? No; for last year it was reported that at least one doctor in five in the United States could expect a claim to be filed against him sometime before the end of his career. And it was said that it might out to be one in four.
Of course, many of these are nuisance suits, brought on flimsy grounds in hope of a quick settlement. It is estimated that only one out of every 100 malpractice suits reaches an appellate court. Since there were 266 malpractice cases decided by appellate courts in the United States from January 1, 1946, through June 1956, this indicates there may have been some 26,000 suits filed during the same period.
Judgments Against Medical Profession
Judgments against the medical profession have often been very expensive because they involve two of the patient’s most precious possessions—his health and his life. In one case a spinal anesthetic given to a woman caused respiratory difficulties, and cardiac arrest (heart standstill), resulting in irreversible brain damage. A judgment was brought for $317,000 in a New York court.
In New Jersey a jury awarded the parents of a five-year-old child $250,000 because of improper care given at the time of the child’s birth. It was held that negligence resulted in the little girl’s loss of sensory powers, and her inability to sit up and feed herself.
In another case a doctor’s wife was given a general anesthetic, even though she had eaten a full meal and a midnight snack within six hours of the onset of labor. When she vomited and then choked on the vomit, doctors failed to inject a muscle relaxant or perform a tracheotomy, which would have permitted her to get oxygen. Thus she suffered irreversible brain damage. The jury verdict was for $416,000.
Blood transfusions have figured in a number of malpractice suits. In a New York case a nurse and intern gave a patient a blood transfusion that had been ordered for someone else. Even when the patient told them the blood was not meant for her, they gave it anyway. The hospital was held liable.
In a similar case the plaintiff sued an anesthetist, a surgeon and a hospital for pain, suffering and death of a surgery patient to whom blood intended for another person was administered. A jury verdict was rendered against all three defendants jointly for $130,000.
Transfusion of incompatible blood has also been involved in several judgments. One for $150,000 was awarded to a naval officer for the death of his wife. In another case, the plaintiff and her husband were awarded $50,000. She had suffered a hemolytic transfusion reaction from incompatible blood.
The record award thus far was made by a Florida appeals court—for $1,500,000! The suit was brought on behalf of a thirty-five-year-old mother of three minor children who allegedly suffered severe iatrogenic (doctor-induced) brain damage. The action was based on the accusation that drugs were administered in excessive strength and amounts “contrary to proper and accepted medical practice.”
But this is not the only million-dollar-plus award that the courts have made. There have been at least four of them during a two-year period.
One might think that the patient or his family receives the major part of these huge awards. But this is not so. One insurance company told the Senate subcommittee that only 30 percent of the settlement funds actually goes to the patient. On the other hand, 15 percent goes to the patient’s attorney, and 55 percent is taken by defense attorney fees and defense investigation costs.
Another company said that 38 percent of each claim goes to the patient, 35 percent goes to the patient’s attorney and 27 percent is taken by defense attorney fees and investigation costs. Thus the report found that the major part of the expenses of malpractice actions goes to the attorneys and their assistants.
The Effects of the Judgments
The effects of the many judgments against the medical profession have been diverse. On one hand, they have apparently served a good purpose. As Dr. Cyril Wecht, president of the American College of Legal Medicine, observed: “There is no question in my mind that some of the severe malpractice verdicts have led to beneficial changes in medical techniques or facilities.”
Citing some examples, Dr. Wecht explained: “In the OR [operating room], negligence suits have produced more effective labeling on gas tanks and medications, and double or triple checks on the sponge and instrument counts. When I was an intern, the anesthesiologist, if present, was treated as a flunky; the all-powerful surgeon was in command. Now, a hospital is well advised to let the anesthesiologists run their part of the show. This is a blessed event. It is better for medicine and better for the patient.”
However, on the other hand, the judgments have also produced bad effects. They have caused many doctors to fear a lawsuit from their patients. And some feel that this adversely affects their ability to serve their patients properly.
Claims Dr. John B. Dillion, chief of the division of anesthesiology at the UCLA School of Medicine: “The ability of the physician to diagnose and treat is not only threatened, but to a degree may be controlled by the constant incubus of a lawsuit.” So he believes: “It is essential for the public good that the profession seek relief.”
Insurance Increases
An obvious bad effect of the many judgments against the medical profession has been a rapid increase in doctors’ insurance rates. Fifteen or twenty years ago, malpractice insurance was a negligible part of their professional budget. But this is no longer the case, as more patients sue and juries give higher awards.
In southern California, 11,000 doctors are receiving, on the average, a 100-percent increase in their malpractice premiums. The annual premium for more than 7,000 physicians in Los Angeles County reportedly is about $5,000. But for those who have been the target of past claims, the rates are much higher, up to $16,000 apiece annually! Already, according to the Senate subcommittee, 350 physicians in California have quit medical practice because of rising insurance rates.
But the problem is by no means limited to California. Across the country about 90,000 other physicians reportedly will have rate boosts of from 10 to 100 percent this year. About 5,000 osteopaths are reportedly in for 150-percent increases. And some doctors in New York have agreed to rates from three to five times normal in order to stay in practice.
Some doctors are finding it difficult to obtain insurance coverage—at any price. Certain insurance companies have entirely ceased handling malpractice premiums, leaving doctors in some areas stranded. Not only older doctors, but younger ones too are having trouble in obtaining coverage. In fact, Senator Abraham Ribicoff remarked: “The rising cost of malpractice insurance premiums will make it very difficult for young doctors to begin practicing or to continue in practice.”
Why So Many Malpractice Suits?
Why has this become such a monumental problem? Why has there been such an avalanche of malpractice claims in recent years?
There are a number of reasons. A fundamental one is that the American community today is prone to sue for wrongs done to its members. Selfishness and greed have increased. And people are inclined to look for material awards, wherever these might be found.
This is not to say that the medical profession is not frequently at fault. It is. Dr. Ralph Gampell, a physician and practicing attorney, told a California State Senate judiciary subcommittee that most malpractice suits are justified. However, he observed that they could be greatly reduced if “incompetent doctors were disciplined or removed from practice.”
So a contributing factor to the problem is the shortage of qualified physicians. Dr. Paul R. Hawley, who served as Director of the American College of Surgeons, said: “It is reliably estimated that one half of the surgical operations in the United States are performed by doctors who are untrained or inadequately trained to undertake surgery.”
But no doubt an even more important factor is the breakdown in the physician-patient relationship. Care by the family physician has generally diminished. Now much of the patient care is in the hands of specialists and surgeons whom the patient rarely sees. There is little opportunity, and too often little inclination, to build up a warm acquaintanceship.
Also, physicians frequently take a superior attitude toward their patients and this causes resentment. Observing this, Howard L. Oleck, Professor of Law, Cleveland State University, wrote in the Medical World News of December 5, 1969:
“I would suggest to my friends in the medical profession that there would be much less malpractice litigation if physicians generally would stop acting as though they are somehow the anointed ones of God and would admit that they are just human beings doing the best they can. It is the sanctimonious attitude of many physicians, fundamentally, that inspires most malpractice suits when bad results to the patient occur.”
Improving Doctor-Patient Relations
Most people still appreciate a friendly doctor who will take a few moments to discuss their problem and what might be expected with a certain medical treatment or operative procedure. They do not consider it belittling for a doctor to call in a consultant in a given case. In fact, they often point to this act as further evidence of the competence of their physician. The matter of fees might also be discussed, preferably in advance of treatment so that there will be a mutual understanding.
The public has a responsibility too. It should use discretion when listening to reports about new medicines or seemingly miraculous operative procedures. A case at hand is the heart-transplant procedure. But in all fairness to the medical profession, it should be noted that many informed physicians warned against optimism with regard to this operation.
It is the duty of the physician to exhaust all reasonable methods of securing a diagnosis and to perform to the best of his ability. If he manifests honesty, conscientiousness, friendliness and integrity he will almost invariably receive the high esteem of his patients. On the other hand, it is in the best interests of patients to assist the doctor in his endeavor to help them.
In the final analysis, integrity, honesty, fairness, moral uprightness, and love of fellowman are needed by all involved.