Doctors Versus Lawyers
Friday, December 18th, 2009
A doctor writes that a malpractice case recently was filed against him, and he thinks the suit is unjust. “I reviewed my medical records and felt comfortable with the care I had provided,” he says. However, he wonders if he can document that he did what was best for the patient. He wonders if what he did conforms to “community standards” of medicine, which he says are determined by lawyers instead of doctors. And he sincerely believes that having to be on guard against nuisance lawsuits wastes time and money and compromises medical care.
Let’s give this doctor the benefit of the doubt and assume he did provide good care. He doesn’t discuss the case, but we have to assume the patient, or the patient’s survivors, were not happy with the outcome of care and sincerely believe the physician must have done something wrong. Maybe their beliefs are unfounded, but they believe what they believe. And they go to a lawyer and tell him their side of the story.
Malpractice law varies from state to state. However, just because a doctor made a mistake doesn’t make him guilty of malpractice. Usually there has to be genuine misconduct, meaning the doctor did something outside the common and reasonable standard of medical care. But physicians complain the standards are not exactly written in stone anywhere. What seems reasonable in a hospital can be made to look unreasonable in a courtroom.
Lawyers also are working in the dark. The patient’s medical records may be ambiguous and not tell the whole story. The lawyer may have to subpoena other records, or take depositions, before he knows for certain if the case has merit. In other words, sometimes legal procedures have to be used to find out what really happened. Physicians counter that such investigations cost everyone time and money.
The “tort reform” solution is to cap damages and place a larger burden on plaintiff for filing suit. But this solution puts all the burden of “reform” on the backs of patients who really were injured. Is that fair? Are there other ways to take some of the stress and expense out of the med-mal system?
Some suggest that doctors should get together and adopt transparent standard guidelines for treatment so that everyone knows what the standards are. If a patient suspects malpractice, the physician would only have to provide documentation that he followed these doctor-determined guidelines to put an end to the inquiry. Some situations will not fit standard models, of course, but taking such a step would reduce some of physicians’ anxieties about being sued, I would think.
A 2006 Harvard University study of malpractice found that 37 percent of malpractice plaintiffs failed to prove that a doctor was at fault. Most of those plaintiffs received no compensation, meaning their lawyers probably weren’t paid, either. It might be that both doctors and lawyers would appreciate some clarity on the issue of what is standard practice and what isn’t. However, capping jury awards doesn’t accomplish that.
Tort reform is a critical issue for people suffering from mesothelioma and other asbestos-related diseases. It is a near certainty that such people were exposed to asbestos on the job or by handing an unsafe product, meaning that someone else’s negligence caused the disease. Most tort reform proposals would make it more difficult for asbestos victims to sue for damages and would also limit the awards they might receive. Is this fair?
The doctor I spoke of in the first paragraph writes, “How does anyone credibly defend a system that targets innocent physicians routinely, vaporizes tens of billions of dollars on defensive medicine and misses the vast majority of patients who have been the victims of true negligence?” To which I would ask, how does capping jury awards make the system fairer? Isn’t there another way?
