The only proper way to start this post is to direct readers to Burt’s generous and thoughtful essay on reforming medical malpractice. This post is my reply to it, and I’ll conclude by summing up my reaction to his proposal for reform. (Short answer for those disinclined to read the whole thing: I think it’s an idea with real merit.) But even if I weren’t replying to it, I’d still recommend everyone read it because it’s very good.
For my part, I do not believe medicine should be too shielded from tort. On the one hand, medical providers are uniquely vulnerable to adverse outcomes because they often take care of people in extremis, and because human physiology is complex and disease is often subtle. I don’t think it holds up to scrutiny to compare physicians to restaurateurs, for example, because there is far less inherent risk in serving people food than in evaluating them for chest pain. However, I must also acknowledge the other side of the coin. Medical providers are also uniquely able to inflict harms, though negligence, incompetence or simple fallibility. There must be a system that affords appropriate redress, and tort is certainly part of that system.
That said, I know all too well the downsides to the culture of fear that can permeate medical care, to which Will alluded in a comment to an earlier post. My own views are informed by three different experiences.
The first was being deposed as a witness in a med mal case from when I was a resident. I was not named as a defendant, but part of the case focused on care I had provided. After I reviewed the chart, I had no concerns about having delivered poor care. However, during the process of preparing for deposition and during the deposition itself I realized how a few careless phrases I had used in haste (I was coming off an overnight shift during the period of time in question) could have given the appearance of substandard care. It was a somewhat stressful lesson in how large a role documentation can play in a med mal case.
The second was having a formal complaint filed against me with the board of licensure in the state where I used to practice. (Nothing raises my heart rate quite like receiving a certified letter from the board of licensure.) Upon reading the substance of the complaint, I could scarcely believe my eyes. To describe the complaint as frivolous is an insult to frivolity. On those occasions when I have shared details with friends, a common reaction has been incredulous laughter. Indeed, the complaint was summarily dismissed at the board’s next meeting. But the complaint will stay with me forever, because every time I apply for privileges at a new hospital or to participate with a different insurance provider, I have to disclose it and document its resolution. It is onerous and tedious to do so, even for something as picayune and without merit as that complaint was, and I dread what further burden would ever be created by having to document a med mal case against me, even if it never went to trial. Also, the episode clarified how important it is for patients or parents to have a good opinion you as a medical provider. There is no way that complaint would have been filed if the mother who did so hadn’t already disliked me for having (inappropriately, in her opinion) failed to provide an antibiotic on an earlier occasion.
The final episode centered around a Very Bad Situation, into which I quite literally walked one morning. It would be extremely imprudent of me to go into any detail, but suffice it to say the outcome was not at all what anyone involved would have wanted. That said, it was the only outcome that had any possibility of occurring no matter what interventions were attempted, and I am 100% certain that my actions were professionally, ethically and morally correct. However, there was still a very unfortunate outcome and very unhappy people at the end. I was genuinely concerned that a lawsuit might follow, and in the end a complaint about me was made with the hospital where I worked at the time. Thankfully, I was scrupulous about my documentation, and the hospital was able to see quite clearly that my conduct was right. I did not fear losing a lawsuit, but I was quite reasonably afraid of a suit being filed. I was just the wrong doctor at the wrong time, and I told the Better Half at the time that if I did indeed get sued, I would leave the clinical practice of medicine.
Now, since no suit was actually filed, I don’t know what I really would have done. But the fact that I had to face the potential of further Very Bad Situations in that job was a major reason for my leaving it and finding the one I have now. (There were many other reasons.) Which is unfortunate, because I went from a relatively underserved area to one that has no shortage of doctors, and I do not think it horribly egotistical to say that I delivered a valuable service. But I just didn’t want to keep facing the liability there.
These three experiences are what, for me, cause the low thrum of anxiety at the back of any challenging clinical encounter. No matter how scrupulously I might document, I know that should a lawsuit be filed the opposing counsel will look to find any wording that may undermine the case that I did the best I could. I mean absolutely no disrespect to Burt (whom I sincerely hold in the very highest regard) or those in his profession when I say that. It is their job to do so in representing their clients. But worrying about dotting every single “i” just so makes difficult encounters even more fraught, and I think also can lead to unnecessary tests or treatments in some circumstances to better create the impression of having done all one could do.
I like Burt’s idea about expediting the question of clinical wrongdoing, and allowing that aspect of the case to be scrutinized by a judge (preferably one with expertise in medicine and malpractice) prior to going to a jury. I also know, however, that juries are typically sympathetic to doctors, and so I wonder if doctors who would like to do away with juries in med mal cases don’t seek a result that would actually counter their best interests. I absolutely agree, as I said at the beginning, that tort is an appropriate part of keeping medical providers accountable and compensating those harmed by genuine malpractice. But I also agree with Will’s comments that it does feel like that bad case is just an unlucky day away (as I came dangerously close to discovering myself), and I wonder what can be done to minimize that feeling and its ill effects.