As many of my colleagues are aware, I became a licensed attorney many years ago but never practiced law. As a physician member of the class, I was conspicuously different from my younger classmates both in age and orientation. But as part of the process it was impossible not to be impressed with the extent to which medical malpractice ("medmal") was integrated into the agenda from day one in Torts class. It would also become evident how fledgling law students over time would be disabused of the notion that adjudicated outcomes are necessarily the best resolution of the contest between right and wrong. ("Hard cases make bad law" was a refrain we would hear again and again.) During the years as a law student I also became familiar with a system whereby "expert" witnesses became certified via signed affidavit and, since they have a monetary stake in the outcome, adhere closely to agendas and theories laid out by the plaintiff attorneys who hire them...and re-hire them if satisfied with their performance.
From the position of an insider, the medmal business looms large as an enormous industry. A defendant doctor is typically unaware that the defense attorney assigned to him by his insurance company really works for the insurance company, despite his or her ostensible role as legal representative. The medmal industry supports tens of thousands of attorneys on both sides of the bench: the throngs of defense lawyers who depend on the insurance companies to pay their salaries, and the plaintiff attorneys whose livelihoods depend on the contents of physicians' insurance policies. One must not be misled by sanctimonious rhetoric about justice for the downtrodden, as the plaintiff attorneys may care little about innocent clinicians caught in the web. As a matter of course, long lists of paid witnesses are stacked against the defendant with an agenda contrived by crafty plaintiff lawyers who know what works. After grueling hours of deposition, all too often an expressionless defense lawyer may approach the weary defendant to deny the likelihood of a separate trial or even a separate verdict and, even though the physician conformed with the standard of care, strongly urge that he/she expediently settle within the limits of the policy. All too often the list of nominal defendants reaches double digits including nurses and ancillary physicians who also adhered to the standard of care but are constrained (in the eyes of collaborating insurers) to build a composite settlement among all concerned. This is not to say there aren't instances in which the defense attorney will advise trying the case, leaving it to the doctor to decide just how to accomodate an eight week ordeal while conducting a medical practice and attending trial every day as advised.
Recall that the standard of care is defined as that level of care administered by a reasonably prudent practitioner in the same or similar circumstances. And to establish medmal, separate elements must be pled and proven, relying on individual expert witness testimony: (1 ) the applicable standard of care; (2) departure or deviation from that standard of care; (3) damages which resulted, in terms of physical or monetary consequences; and (4) causal connection showing that damages were proximately or directly caused by deviation from the standard of care. All this is presented to a jury of the physician's "peers" consisting of twelve people who are basically selected for their ignorance of a subject, as disquieting as that may sound.
Suffice it to say that any system that bypasses lawyers and expert witnesses early in the process is destined to be more efficient and less expensive. This brings us to the system of ADR, or alternative dispute resolution, a process in place in Indiana and elsewhere. In fact, if a federal health board is to materialize, as the current administration has planned, then tort reform must be part of the package, since cost-cutting may expose clinicians and hospitals to heightened liability as it did with HMOs. In Indiana, an independent medical tribunal initially reviews a case to determine the applicable standard of care, then determines if a deviation occurred, and if so, whether or not damages proximately resulted. In so doing, no lawyers are involved in this critical first stage, thereby also eliminating paid expert witnesses. If the case passes muster and thereby meets the test for liability, the next step is mandatory ADR by a medical arbitrator. Then if plaintiff wishes to subsequently litigate, all evidence introduced during arbitration is fully admissible at trial. There is no evidence that Indiana plaintiffs feel they are deprived of a remedy and, to their benefit, stand to receive an award within weeks rather than the usual five years as in Illinois and elsewhere. Neither is there evidence that Indiana medicine is of inferior quality.
ATLA (The American Trial Lawyers' Association) fondly contends that only two percent of all medical costs are the result of our tort system, including derivative costs such as so-called defensive medicine. I'm unwilling to accept anything that ethereal that defies measurement or substantiation. In other words, who knows from which orifice they pulled it. Anyone in practice knows better. And states in which tort reform has been enacted and kept for longer than five years, such as Texas, have found that practitioners have returned in droves to enjoy the lower insurance premiums which translate into lower costs for everyone.
Having alluded to Texas, it was our leader Mr. Obama who pointed to McAllen, TX as a supposed example of medical costs run rampant. McAllen was highlighted in a New Yorker article by Gawande, noting that Medicare costs were $15K per enrollee, or twice the national average for Medicare recipients. Gawande alleged provider excesses which he failed to prove, and ignored the fact that a million US expatriates reside across the border in Mexico, thousands of whom make the relatively short trip to McAllen for care. These patients carry Medicare cards from their home states so, while their bills are charged to Medicare, it appears that Medicare costs are excessive in McAllen. Add the expatriates to the population, and the cost per person is not excessive. Ignore it, and it appears to be the most expensive medical market in the country. Commentators including Huffington have read Gawande and missed the point egregiously. And most remarkable are those who opine that tort reform isn't needed since double the amount of care is conducted in McAllen, yet medmal hasn't increased. The point is that tort reform works, specifically the tort reform statute in effect in Texas, and McAllen proves it. The Texas statute places $250K caps on noneconomic damages such as pain and suffering, and all but eliminates controversial punitive damages by requiring unanimity among jurors, resulting in a reduction of up to 50% in litigation by plaintiff lawyers who have found medmal somewhat less enticing in terms of its glitter. The conclusion that is inescapable is that effective tort reform statutes have kept medicolegal costs down, despite an unusual Medicare system overload by expatriates as in the case of McAllen.
In his recent address on the subject of Health Care Reform, Mr. Obama failed to acknowledge that a significant majority of US physicians favor a single payer system with universal care as in Canada, which is an efficient model that relies on a government-sponsored insurance plan. (Canadians retain the option to purchase private insurance if they wish.) But to his discredit, Mr. Obama did not hesitate to publicly announce his opposition to capped awards despite earlier campaign promises to support genuine tort reform. States like Texas have already established the value of tort reform statutes which include caps, and there is no evidence that Texas medicine has suffered in quality, or that Texans as a whole are deprived of a remedy. To the contrary, theirs is a system to be emulated. The influence of ATLA notwithstanding, it would be refreshing to find democratic officials unafraid to espouse support for genuine tort reform at a national level, as part of a comprehensive approach to health care reform. A nation looks to a broken system and exhorts us to do more. Through the sharing of ideas and collaborative effort, we must resolve to do no less.
Howard Singer MD FAAP JD
physician and attorney