MEDICAL MALPRACTICE - AMERICA’S HIDDEN DISASTER

The 1000 pound gorilla in every medical office, procedure and treatment room, hospital bed and operating theater in the United States of America is the looming fear of being sued for medical malpractice. According to a Harvard Study virtually every American doctor is likely to be sued at least once in their careers and those in “risky” disciplines several times. As a result medical malpractice has defined the practice of medicine in this country, exponentially driven up costs, driven doctors out of practice, and furthermore has resulted in creating an artificial shortage of health care services.The operation of the flawed system of regulating medical negligence is totally dictated to by a few thousand malpractice lawyers who decide which cases they will take up and therefore what is and what is not potentially malpractice and who or who not should be compensated as a result of alleged doctor malfeasance. The net result is that the standard of care in medicine in the USA is defined by the malpractice lawyers.

There have been calls from public safety groups, all physician bodies, the Association of American Retired Persons, the Chamber of Commerce and schools of public health to at least run pilot projects of special health courts to address malpractice that have been ignored by the politicians. Michelle Mellow, a Harvard Public Health and Law Professor maintained that it would be hard to design a more inefficient compensation system or one which skewed incentives more away from public candor and good practices. The public are in favor of reform as a 2009 poll showed just prior to the enactment of Obamacare. Over 80%  of those polled believed that as any part of Health Care Reform Plan Congress needed to change the medical malpractice system. The opportunity to include it in the Affordable Health Care Act, (Obamacare) was ignored in spite attempts by wide ranging sections of society.

COST AND IMPACT OF MALPRACTICE ON MEDICAL PRACTICE

Several authorities including the American Medical Association have estimated the cost to the economy, directly and indirectly, at $200 billion annually. However, this does not take into account the insidious impact that malpractice has on medical practice and the price tag of health care. The training of health care workers takes place in a practice and hospital environment. Future doctors learn from those in the field whose fear is litigation and how they cope with that variable. The lists of investigations they must perform and what procedures they must and must not do, whether they feel comfortable or not to perform them as they are considered litigation risks for their discipline, are all part and parcel of the content of their education. The malpractice reality is so ingrained in American doctors that a costly defensive approach is unconscious and considered part of “standard of care”. Now Jay H. Ell knows precisely what he is opining about as he has practiced and or taught medicine in several countries. 

So what is it about medical malpractice that helps make American medicine different and far more expensive than in other countries? The principle behind the regulation and sanctions for medical negligence has to be one that everyone agrees with. In addition surely those who have suffered loss as a result deserved to be compensated. Now no - one would disagree with any of this so the question is what is the problem? How do other countries deal with the same problem and why does America deal it almost solely in the arena of ordinary civil courts?

ADJUDICATION OF “MEDICAL NEGLIGENCE” 

So the objective of every country is to set up an infrastructure to adjudicate medical negligence and even ethical behavior, (The American Tort System doesn’t attempt to go into the ethical arena), that is fair to the patients, health care providers, does not artificially drive up costs, create health care coverage problems nor impact on the standard of care provided and rather has the effect of improving health care to all patients in general and the aggrieved patient, in particular.

It is fair to point out that in no country has a system been perfected. However, there is a crucial difference between the system used in America and the rest of countries that they are culturally akin to. 

 British System based on Roman - Dutch Law

The British model is almost universally used in the countries America that would culturally ally itself with. They use as an entirely different model to mediate what is central in American medical practice law,  the “Standard of Care”. The British system creates entities to mediate in professional areas of special expertise such as medicine . By so doing the law recognizes that there is a unique body of knowledge and skills in the discipline of medicine and therefore the standards of care and ethical behavior would best be determined by a body of experts from that discipline. There is also both legal and lay representation on what are called “quasi judicial” bodies. 

These have the right to impose penalties when a doctor is found guilty which range from a warning to having their license to practice suspended. A large number of situations brought to their attention are do not go to a trial as an attempt is made to resolve issues informally. Doctors are asked for an explanation of the circumstances and their answers are often accepted. These courts recognize too that sometimes differing treatments can all be within the standard of care. While the “experts” they call upon are recognizable to the profession, there is a problem in what type of recognized expert to appoint - is the emphasis on a practicing physician or an academic?

The crucial factor in this system is that the Civil courts accept that it is the medical profession that is best able to adjudicate what is in fact the standard of care. The ordinary courts will not reverse a decision of the medical quasi judicial body because they disagree with it unless the decision is so outrageous that no reasonable person could have come to it. 

The legal system also allows for plaintiffs to sue for damages in the ordinary courts. However, the bar as to who is a medical expert is far higher than in the USA. Also the court’s yardstick to evaluate the doctor’s behavior is that he or she  followed a “reasonable” standard for that discipline and had the appropriate training to effect the care under dispute. It stands to reason that there will be more than one reasonable standard of care in many situations. Malpractice civil cases are uncommon in these countries.

American Malpractice Law

Malpractice law in America is no different from any other civil litigation. Put another way there are no mechanism put into place to ensure that some of those adjudicating the medical management, namely the jury, have any knowledge or training in medicine. Also the Plaintiff has to prove negligence as opposed to the doctor proving that he or she provided a reasonable standard of care. As in all legal cases the system is adversarial and leaves little room to conclude that the Plaintiff’s “expert” and the defendant both could have had reasonable approaches. Implicit in the American system is that if the Defendant is proved negligent the outcome of the medical management would have been different and this is in fact the basis of their case. (This is not an argument in a quasi judicial system except in obvious cases where the wrong leg may have been cut off)!

The medical “experts” can virtually be anyone and not necessarily recognized as leaders in the profession as in the quasi judicial system. Some are professional witnesses testifying in malpractice case after case. In fact it is a highly lucrative endeavor paying far more than medical practice. The standard going rate for reading documentation is about $500 an hour and court testimony and depositions are double that. 

Medical litigation is extremely costly and not affordable to the vast majority of people so consequently it is undertaken on a contingency basis. by “trial” lawyers who receive about 35 percent of the award. In fact it is estimated of the final amount awarded by the jury 54 percent of the money goes to the winning legal team and administrative expenses. 

To understand more about the dysfunction of the system a discussion on the trial lawyers and the impact they have on malpractice litigation in this country is warranted.

THE MALPRACTICE TRIAL LAWYERS SET STANDARDS OF MEDICINE

The whole multibillion operation is operated at the behest of a few thousand trial lawyers who donate heavily to the Democratic Party. As the way things work around here the Dems will not tolerate any health care reform that will get rid of the current insidious malpractice of malpractice litigation.

As malpractice litigation is so expensive these trial lawyers are basically the gatekeepers as to what suits get taken up or not. Put another way a few thousand lawyers decide which cases go to trial and therefore are the arbiters of the standard of care of medicine in America making a dysfunctional system even more dysfunctional. Obviously as the lawyers are not in this for charity or society they are going to choose those incidents that have the potential for the highest payouts. 

The sad perception of doctors is that these lawyers are not much interested in the standard of care but rather situations than can result in the largest pay off. In order to achieve this objective the belief is that they are on the look out not for the most egregious episodes of malpractice but rather they seek events that can elicit the million dollar pay outs. In order to effect this they need a bad outcome such as a death that can conjure up millions, ideally a male young enough to have  a number of working years ahead and whose passing inevitably engenders a large financial loss and emotional pain. Even better is a baby who had a whole life ahead and whose loss is incalculable. 

The lawyers do not publish theIr modus operandi but they obviously have to canvas “business”. Besides their banal television adverts some have contacts in hospital that tip them off as to  potential “clients”. A death in the Emergency Room, a complication following an operation or any mishap that the omnipotent medical profession has effected all have to be illustrations of malpractice or why would they have happened?

So how do these relatively few guys make enough money to shut out malpractice reform as effectively as the NRA are able to kybosh gun reform? Again they are not about to advertise their operations but Jay H. Ell has some anecdotal information that affords some insight.  Let us say that a trial lawyer has 20 files that are to be finalized in a year. Just two of these have to result in a million dollar pay out. That gives him $700,000. Over 90% of suits are said to be settled as either the doctor cannot take the pressure or the insurance company, that has the final say, weighs up their potential expenditure and then dishes out round about $200,000 which is reckoned as a “token” sum. Even if only five of the 20 cases result in $200,000 awards, the lawyer has garnered another $350,000 income giving him or her an annual income of over a million dollars.  These numbers are not considered excessive neither are they universal but do give one some idea as to why the trial lawyers as a group have the financial clout to effect what the NRA are doing - shutting legislation out. So let us look at the real figures of someone whose malpractice practice became public knowledge due to his prominence - John Edwards.

JOHN EDWARDS - A SUCCESSFUL MALPRACTICE LAWYER.

John Edwards, who subsequently became a Senator and a Presidential candidate was said to be just one of the malpractice lawyers who drove out all the neurosurgeons, obstetricians and psychiatrists in North Carolina. The situation became bad enough for the American Medical Association in 2004 to label the medical status in that state a “crisis”.  Edwards won 31 multi million malpractice awards. His two specialities were blaming obstetricians for cerebral palsy babies and psychiatrists for patient suicides. With regard to the former his science was absolutely faulty as it has been shown that the cause of that brain defect has nothing to do with the delivery of the child. His most celebrated case with an award for $23 million which he received from an obstetrician, gynecological clinic, anesthesiologist and hospital for a baby born with cerebral palsy. His style in baby cases was to speak to the jurors as the unborn baby trying to get out. (Yes, it was that obscene). Edwards credited some of his success due to running his gig past focus groups which cost $300 a sitting - “… a small investment compared to $5 million won in a case”, he confided. Edwards’s share in these medical malpractice cases was said to be in excess of $60 million.

Dr, VanderVeer one of Edward’s harshest critics has plenty of stories relating to the devastation that Edwards left in his wake including patients dying as a result of no neurosurgeon being available and doctors leaving because of increased malpractice insurance. He concluded that that the “little people” Mr. Edwards claimed to have helped had cost thousands of patients their health care.

One gets some insight into the vast sums of money obtained by so few and the inevitable impact on the political process by getting a glimpse into the world of this former Presidential hopeful. He has returned back to law after his political career was terminated by a succession of scandals and legal woes. One wonders where he would do the least harm, politics or law?

THE GROWING DEFICIT OF OBSTETRIC CARE SERVICES 

One example of the devastation of malpractice litigation is the impact that it has had on maternal fetal care where hospitals have closed down their delivery units and over half the counties in the USA have no obstetrician. In certain states the annual malpractice insurance for an obsterician is $200,000 a year. Obstetrics is a very high risk discipline and in most states doctors are liable up to 18 years after the birth of a child.

One in seven Obstetrician/Gynecologists are dropping obstetrics from their services. The Association of Obstetrics and Gynecology forecast a shortage of between 9000 and 14000 doctors in this area within the next few decades.

In the recent past family physicians have been a supplemental factor in the delivering of babies especially in rural areas and or where there are no obstetricians. However. principally, because of malpractice costs and fears, the number so doing has decreased dramatically and some have even forecast the death knell of this service by this discipline. In 2010 only 10% of Family Physicians were involved in Obstetric Care.Residency requirements in Family Practice have been altered to meet this reality and now there are two tracks - one to give the trainee an experience and the other to train them in the skills and knowledge needed to effect obstetric care. 

So it is not an exaggeration to see that malpractice is a key factor in the current medical crises by driving up costs, creating shortages in certain areas of medicine and driving out doctors from practicing.

JAY H ELL 

Jay H. Ell became a predictable statistic when he became a defendant in his first malpractice case last month. It resulted from an incident 8 years previously because this is how long these episodes drag on. Without going into too many details as the litigation hobbled along for three weeks in court, the substance of his alleged negligence was an ER patient, who had chronic anxiety, was diagnosed and treated as having a panic attack and a small pneumonia . He was then admitted to the hospital. The patient suddenly worsened and died. The post mortem was conducted by the most renowned and experienced pathologist in Illinois, Dr. Blum. He conclusively maintained that the patient succumbed from a sudden arrhythmic death due to cardiac ischemia. He had conducted 10,000 post mortems, 3,000 of which showed the same picture as this patient, because the commonest cause of an unexpected sudden death is a cardiac arrhythmia. He specifically could see no pathology to support a death by respiratory causes. He further stated that nothing could have been done about this death.

The plaintiff’s theory was based on the fact that the patients perceived “difficulty with breathing” was not due to a panic but rather the beginning of respiratory failure which was allegedly ignored by the defendant, Jay H. Ell, and in fact the respiratory failure was worsened by him by sedating the patient for his anxiety. This in spite of the fact that there was no evidence of respiratory failure during the stay and both he and the nurse testified to the fact that this death was sudden and unexpected as shown by the coroner.

Now of the 13 Jurors that sat 10 supported Jay H. Ell. These jurors related why the other three  had “held out”. One had unashamedly stated that it was time to show these corporations a thing or two while another argued that the medical profession needed to be sent a message. These two were accused of being biased by the others but to no avail. A third was “unhappy” at the documentation as he was an engineer and was used to precision.

Now the death of this patient conceivably met all the requirements for a big pay out and initially the Plaintiff was prepared to accept $4 million settlement. The deceased ostensibly had a number of working years ahead of him and the outcome was as bad as one can get. It was worth a shot. Now any one in medicine will tell you that one of the most important academic learning exercise is the clinical pathological conference when the clinical aspects of a case are presented and then finally the pathologist who conducted the post mortem weighs in with the ultimate answer as the naked dead truth is front of his or her eyes. Now from a purely medical perspective this tragic circumstance should not have seen the light of day and the expense, unproductive activity, three weeks of jurors’ and court time and emotional toll this experience engendered would have been prevented. Jay H. Ell  was on the face of it vindicated but it is not much fun to hear hired guns, who are obviously talking palpable rubbish, and who were not present, accuse you of systematically killing a patient.

A saving grace in this whole sordid mess was the band of dedicated lawyers who use their knowledge and understanding of medicine to defend the organizations and health care providers rather than cash in. Jay H. Ell was blessed to be represented by them.

NO CASE FOR LITIGATION

Jay H. Ell would just like to juxtapose his experience with a vignette presented to him by a friend contemporaneously with his ordeal. The latter had a lesion removed from his lung that had been found during a routine procedure. The operation produced some side effects that needed further management. He proceeded to another institution for treatment and they reviewed his slides and pathology and found that the initial thoracic surgeon had missed a carcinoma. In fact the surgeon argued that he hadn’t even attempted to access whether or not there was a malignancy. The patient needed a second operation where the cancer tissue was fully removed.

 He then went to see a several malpractice lawyers none of whom were interested although the second institution had volunteered that the management was disgraceful. One can see why there was no interest - the victim was alive and kicking. What harm had resulted from the negligence? He had lost a relatively short amount of work time, had had some additional pain and suffering and had additional medical costs, but it all added up to a string of beans. The complainant said he was not after money but this doctor needed to be stopped. There is no routine formal unbiased structure to effect this. You can complain to the State licensing board but understaffed as they are they just generally pursue those who are placed in the data bank.

FINALLY

 An incident stands out in Jay H. Ell’s memory when as a medical student he attended the quasi judicial trial of a dedicated senior anesthesiologist who had given the wrong pint of blood in an operation. Everyone agreed that should never have happened. The circumstances were hectic and the surgeon was screaming that the patient was bleeding to death. It just so happened that there was a patient in the hospital with the same name and they brought her blood instead. Both the nurse and the doctor checked the pint and obviously in the drama only checked the name. 

The pro forma testifying expert was a famed academic and Head of the Department of Anesthesiology at a distinguished hospital and Medical School. He maintained that the signs the patient had experienced were consistent with a transfusion reaction due to differing blood types. He continued that the reason he was so sure was that, unfortunately, there had been accidents to which he was witness. So in the case of the defendant anesthesiologist the occurrence was egregious negligence but for the leader in the field it was an unfortunate accident. The trashing of the doctor that these investigations inevitably entail left the defendant depressed and humiliated and to quote his son, a life long friend, he never recovered. 

There by the Grace of G-d go all of us……. .