A Different Med Mal Reform

At Blinded Trials, co-blogger Will Truman offers this story:

…one of the reasons that my wife’s hospital is short-staffed on obstetrical services is that one of the doctors refuses to deliver any more babies after a prolonged lawsuit (that he won). Rightly or wrongly, there is the perception among doctors that being sued is not in accordance with how careful you are or how good you are, but rather a game of roulette. Wrong patient (or patient family) + bad outcome = lawsuit. And once you’ve been sued, you’ve already lost. The only question is how much you have lost (maybe a little, maybe a lot).

I believe this to have a detrimental effect on care that outstrips the positive effect of “I’d better be a good doctor or I will get sued.”

For all of my eagerness to defend the tort litigation system, I think that this episode, and Will’s trenchant evaluation of it, demands a thoughtful response. Dr. Truman’s colleague (whom I’ll call Dr. Colleague for the rest of the post) did nothing wrong in the delivery in question and was ultimately vindicated, yet still become embittered enough by a lawsuit that he withdrew from a vital practice area.  Now the world is less one OB-GYN, a practice group in high demand compared to supply. The problem is not that the legal system reached a bad result. The problem surely is that the transaction cost — both monetary and non-monetary — of reaching a good result was so high that Dr. Colleague decided that “The risk isn’t worth the reward.” I, of all people, can’t possibly accuse him of being unreasonable.

“Once you’ve been sued, you’ve already lost.” Will is right. That is a problem, one endemic to litigation. That makes this a problem resident in my profession, not Dr. Colleague’s.

It’s not at all difficult to see how Dr. Colleague would become embittered despite prevailing. I’ve been sued myself and I sue people and represent people who have been sued every day. Not a day passes in my professional life that I do not address, in some way or another, the impact of litigation on human beings.

Let’s assume for purposes of this paragraph that Dr. Colleague felt zero financial effect from being sued. Nevertheless he still was forced to pay a hefty non-monetary cost. Time away from the practice, stress, self-doubt and heartache, very unpleasant confrontations with patients or relatives understandably upset over the bad outcome, a wound to the ego (let’s leave aside the jokes about doctors’ egos, even a very modest person who gets challenged in that way would feel a reasonable and serious psychological blow), a requirement to self-report the accusation to governmental agencies and insurers, having to deal with those icky lawyer types, fear of an unsophisticated jury making an irrational decision based on sympathy rather than science, uncertainty in having to navigate through a legal system not exactly famous for its compassionate treatment of litigants. Being sued can be depressing. Being sued can make you lose sleep. Being sued can cause all sorts of bizarre thoughts to come into your brain, even if you’re a lawyer used to handling conflicts like this and know how the gears in the black box work — for a different sort of professional, it would be even more nerve-wracking.

Of course, the previous paragraph ignores the actual financial side of things, like the cost of insurance, the cost of lawyers, the risk of actual loss. Add money into that equation, and everything above gets magnified. Rare indeed is the person, lawyer or not, who can maneuver through this without significant emotional distress.

At the same time, I just can’t see how we can simply exempt medical malpractice from our tort system. There some doctors — let us pray or hope that they are vanishingly small in number — who really do make serious mistakes and cause serious harm to their patients. Those patients, or their families, should have some kind of a remedy available to them. Any serious consideration of the issue requires addressing this, and I haven’t read or heard of any tort reform proposal that fails to make that minimal concession.

The usual kinds of tort reform offered in response to concerns that address the financial side of things. That’s because most medical malpractice tort reform proposals are authored and sponsored by insurance companies. There are three ways that most malpractice reform proposals try to soften the blow for their intended beneficiaries:

• Make it more difficult to file a malpractice suit to begin with.
• Make proving the plaintiff’s case more difficult.
• Reduce the amount of money that a losing doctor has to pay.

Now, any of these sounds good if you’re an insurer. But I don’t think any of these really address the non-economic kinds of costs that a defendant — any defendant, not just a medical malpractice defendant — goes through. So what if we were to come up with something else, something aimed at the non-monetary price of litigation? All of those non-monetary costs are significant aggravated by the passage of time and uncertainty. So let me just try out this idea and see how it holds up to the crucible:

• Expedite that portion of the case in which questions about medical competency are at issue.

If Dr. Colleague had been able to demonstrate, at an early stage of the proceedings, that he had not deviated from the applicable standard of care, then he could have got out of the suit early and that would have minimized both the financial and, more to the point, the non-financial costs of being sued. Maybe he would have not been so embittered by the experience and still be delivering babies.

If the system were such that the court automatically held a hearing, let’s say three months after service of the lawsuit, at which time the plaintiff were to be required to make a preliminary evidentiary showing of liability and the defendant could offer a rebuttal and potentially end the case at an early phase, that could cut down on the psychic toll of being sued.

This would require the plaintiff to prepare. If I were a plaintiff’s lawyer, I’d spend a fair amount of time before filing the suit getting medical records, sending my client (if still alive) to my own doctor for evaluation, and getting my expert witnesses lined up. Come to think of it, when I was a plaintiff’s lawyer doing medical malpractice, that is what I did. At no time in any of my med-mal suits was I not ready to offer expert medical testimony justifying my client’s claim that the standard of care had been breached in a way that caused harm to my client (or, more often, to her decedent). One would hope that any reasonably competent medical malpractice lawyer would do the same.

The defendant might complain that three months is not enough time to prepare for such a hearing. That wouldn’t be quite right. When a patient’s lawyer requests a copy of all the medical records from you, that ought to be a pretty strong signal that a claim as to your competence might be coming. And it wouldn’t foreclose the possibility of a summary judgment later on in the case demonstrating the validity of the doctor’s position if need be. And the defendant and her lawyers could waive the hearing or stipulate with the plaintiff’s attorney for it to take place at a later phase.

My biggest concern with an expedited case evaluation procedure in this or any other kind of case is that the loser to such a proceeding will not have made a sufficient investment in the process to buy in to the result. If I do my investigation, offer my argument, and present my case, then even if I lose I can’t say that I didn’t get a shot at it. Whoever loses this proceeding could claim that they were not given appropriate process. I’m not quite sure what to think of that.

The more practical problems with such a concept are the same as come up in Daubert hearings — the judge, as the finder of fact, may very well not be in a particularly good position to evaluate the validity of what’s being presented, and there is little ability on the part of the bench to filter out genuine disputes of medicine from junk science. This doesn’t bug me a whole lot — judges already evaluate expert evidence about standards of care and appropriate medical practice on summary judgment motions in nearly every medical malpractice case already.

More important, though, is that any early screening procedure consumes a substantial amount of judicial resources. Early-stage motions to dismiss of any sort consume a lot of attorney time, and therefore a lot of client (or insurance) money. And they take careful and time-consuming attention from the bench when it is asked to evaluate them. Right now, courts everywhere are particularly short of resources, in terms of the number of bench officers and their legal support staff, as well as calendar time, to devote to their regular caseload. Adding extra procedures in particular cases would be an expense the courts would have difficulty bearing, if my experiences over the past year or so are any indication.

So I don’t know if this sort of thing is practical or desirable. But if at an early stage, a neutral person commanding respect could either say, “There’s something here,” or “there’s nothing here,” that could encourage settlement, it could eventually decrease a lot of other kinds of work down the road, and it could make users of the judicial system happier with the process. Of course, it could perversely accomplish the exact opposite, too, and we’ll never really know, because the system is overburdened as it is so adopting a front-loaded burden-shift for judicial disposition of cases seems like a very unlikely way judges would happily do for the purpose of making doctors feel better about the fact that being sued is unpleasant.