The malpractice muddle

...This was confirmed by fetal monitoring one hour after admission...

...It proposes a number of serious reforms, though for federal health programs only, and is given little chance of serious consideration, much less passage...

...A Caesarean section was done, but the child had suffered brain injury with severe mental and motor retardation...

...In 1978, the Institute of Medicine, the medical section of the National Academy of Sciences, published a study of six alternative systems: 9 traditional litigation -- the present system...

...9 increasing fees by 10 percent and more over the last two years to cover the higher malpractice premiums (in New York State, 50 percent of obstetricians and gynecologists have increased their fees by 20 percent or more over the last two years...

...It is an attempt to prove what both society and physicians seem to be invested in forgetting: physicians are members of the same fallen, finite human species as the rest of us, and as such, can do great harm, as can we all...

...The first purpose is essentially retrospective -- providing redress for individuals and families who have been seriously and negligently injured...

...the amount of the compensation would be pre-established according to the type of injury...

...The same survey showed obstetricians and gynecologists are: 9 becoming more selective about their patients...

...It would include the limitation of malpractice awards to the actual economic burden incurred by injured parties...

...An American College of Obstetrics/Gynecology survey shows 55 percent of its membership are abstaining from high risk deliveries because of fear of malpractice suits, and 18 percent are abandoning all obstetrical practice...

...The patient plaintiff had been admitted in active labor, with a chart noting previous fetal heart irregularities...

...Physicians are appalled, of course, when a single award in Florida for an obstetric case was $12,500,000...

...New York, N.Y...

...9 elective no-fault -- use of the same principles currently operating with auto insurance to provide coverage which patients could voluntarily choose, with the further option of court suit...

...It is rather an occasion for circling the professional wagons...

...In a borderline case, the possible damages of not doing a Caesarean outweigh the risks of doing one...

...Though some states (notably California, whose Supreme Court in March 1985 upheld a $250,000 cap on "pain and suffering") have limited noneconomic loss awards, none has done so as radically as the Gephardt-Moore proposal...

...Pain and suffering" money will not restore the child's well-being, nor give the parents the joy of raising a normal, healthy child...

...The 40 percent rise in the number of physicians practicing from 1960 to 1978 may account in part for the 24 percent rise in frequency of claims in the same time period, and something similar may be happening currently, But the rise in the incidence of suit from 3.3 per DENA SELDEN teaches ethics of health care organizations at Columbia University School of Public Health...

...Taking note of these cases is not an attempt to prove that physicians are fatally flawed, wildly negligent, uninformed, and uncaring members of society...

...9 increasingly having other staff present at examinations...

...9 providing written or taped information to patients more frequently...

...Charles Gibbs of the American College of Obstetrics/ Gynecology Commission of Professional Liability says that many obstetricians are giving up their practices, particularly those with high-risk patients...

...When it comes to improving physician practice, more direct methods -- education and professional peer assessment -- are much more likely to succeed than the massive deterrence of malpractice penalties...

...This catch-as-catch-can system compares to the inequitable results of pre-Mosaic law codes, rather than a more equitable loss-for-loss approach...

...Other solutions have been proposed...

...The New York Times editorially criticized this interim bill as insufficient, particularly for not limiting awards for "pain and suffering...

...In New Jersey, for example, 60 percent of obstetricians have been sued more than once...

...It affects physician-patient relationships, pitting one against the other as potential adversaries...

...In New York, nearly 50 percent have been sued three or more times...

...9 pre-trial screening panels -- using peer and/or lay review boards to try to halt frivolous suits, suits in which one party is likely to concede, and so on, so as to reduce the burden on the courts and facilitate speedy trials...

...For once an overall treatment protocol is established, any deviation in favor of a new method may be perceived as potential grounds for lawsuit...

...There is speculation that some of this is the result of improved anesthetic techniques, new antibiotics, technological development in electronic fetal monitoring, the age of the population presently giving birth, and the old adage, once a Caesarean, always a Caesarean...

...If defensive medicine is only half as widely practiced as current estimates would have it, if only 20 percent of our diagnostic tests are unnecessary, or if only $21 billion is being uselessly spent, those still represent huge losses, particularly at a time of retrenchment in health care expenditures...

...If the cause was negligence, and punitive measures are in order, or if other patients need to be protected, then the physician's license to practice should be limited or removed...

...These were the companies established in the wake of the 1975 tumult, to provide coverage and to protect physicians against the existing firms' administrative costs, profit margins, etc...

...Or certain types of services may simply become unavailable in some localities...

...The Institute evaluated these systems by various criteria, from cost to deterrence of injury...

...Consider the question of rising rates of birth by Caesarean section...

...If the cause turns out to be, as best we can tell in our present state of knowledge, an unavoidable risk of modern medicine, then there is only the knowledge, many millennia old, that life is tragic and humankind flawed...

...Careful investigation of alternatives, such as arbitration, social insurance, and medical adversity insurance, should be undertaken before the whole system collapses, and before -- in what has now become the typical American approach to health care -- we jerrybuild another reform on sand, not rock, and watch it sink in the next storm...

...A 1984 study from the Harvard School of Public Health predicts that in 1986 the costs of defensive medicine will total $42 billion from "unnecessary invasion diagnostic procedures, excessive medical testing, and unneeded days of hospitalization...

...The negative side of defensive medicine is difficult to attribute to any cause other than fear of suit...

...Better physicians are apt to be created through different types of medical school programs or different admissions standards, by monitoring and acting on consistently poor physician performance through state medical societies and state licensing agencies, or by rapidly removing impaired physicians from patient contact and getting them into treatment...

...Instead of a distinctly reciprocal amount of compensation for a given injury, it adds on an award for the vague category "pain and suffering...

...With much hesitation it came down in favor of arbitration...

...Such a redistribution, however, is by definition unplanned, and may simply result in a glut of physicians in new areas, and a dearth in others...

...estimated that physician-caused injuries may constitute 7.5 percent of general medical and gynecological cases -- but also that remarkably few of these negligence cases result in suits...

...the depersonalization in obstetrician/patient relationships resulting when the doctor for pre-natal care may not be the delivering doctor...

...But the real ethical difficulties can only be recognized when a problem like borderline Caesareans is seen in terms of a frequently cited case, Trotman vs...

...T HERE MAY be no perfectly satisfactory alternative to our current malpractice system, but at least part of a solution is at hand...

...Hence, the proposed premium rises, which in New York State would average around 55 percent pet carrier according to the most recent calculations, and which would be retroactive to last year or perhaps more...

...C AUGHT BETWEEN active professional constituencies, (physicians and lawyers, as well as health consumer groups and specialized lobbies such as the American Association of Retired People), government officials have been reluctant to make any bold moves...

...In the nine states with a $250,000 cap on awards, average premiums range from 7 percent to 42 percent of the New York State average...

...Its major features are a mrlange of limitations on lawyers' contingency fees (alleged by physicians to be the stick that whips the legal profession into a frenzy of malpractice litigation...

...the cost of unnecessary procedures becomes part of the national health bill...

...How do you compensate for a permanent inability to walk...

...This is essentially a prospective purpose, namely to deter physicians, through the threat of punishment, from negCommonweal' s Trial Subscription Offer 11 issues for $9 Send coupon or a facsimile OFFER FOR NEW SUBSCRIBERS ONLY COMMONWEAL, 232 Madison Ave...

...Around the same time Clark C. Havighurst argued persuasively in the Duke Law Journal for medical adversity insurance...

...But the needs and rights of these specific, identifiable, gravely injured individuals must be seen in relation to the needs and rights of the community -- that is, of a larger number of unidentifiable individuals who may suffer the less grave but more widespread burden of higher costs, unnecessary procedures, or inaccessible care...

...In an appendix to that report, H.E.W...

...These allowed more than equal compensation -- the death penalty, say, for the wrongful destruction of an eyg...

...The 1973 H.E.W...

...Further, that the child was still appearing in a reverse of the normal head-first position, that is, feet first with one foot caught behind his head, when the mother's membrane spontaneously ruptured five hours later...

...Physicians are more and more seeking salaried posts in a variety of institutions: the profit-making hospital chains, health maintenance organizations (HMOs), medical schools, and teaching hospitals...

...How do you determine the damages for the permanent loss of sight...

...Other ways include direct government subsidies to the parents, tax deductions or credits, expanded and improved systems of free child care and education...

...Malpractice settlements are one, although not necessarily the best, way of doing that...

...The cost of malpractice premiums is passed on to the public...

...has been introduced in Congress for the second time...

...l fill il II l 100 physicians prior to 1978 to 8.9 per 100 now demolishes that as anything close to a full ansv~er...

...Compensation for injuries not listed could be adjudicated, but it is assumed that the list of "relatively avoidable" medical injuries would be fairly comprehensive...

...Injuries would be automatically compensated...

...The shift from one geographical a~ea to others is paralleled by the shift from one form of medical organization to others...

...future periodic instead of lump-sum payments for awards over $1,000...

...Here the jury "awarded $3,318,000 to the plantiff whose new-born male infant suffers from mild cerebral palsy as a result of traumatic vaginal delivery...

...The expense incurred to raise "a badly damaged child must be provided parents who choose not to make such a child a ward of the state...

...So many factors apparently determine who does or does not undertake litigation and what the eventual outcome is that, for purposes of redressing injury, the malpractice system seems more like a lottery than a reliable source of patient protection...

...The current crisis differs from that of 1975...

...These are figures from the Medical Society of New York: A Comparison of Three Surveys in Which New Yorktrained Resident Physicians Were Asked Whether They Would Stay in New York or Relocate Out-of-State 1980 1983 1985 Will Practice Medicine in New York 87 % 69% 46% Will Relocate Out-of-State 13% 27% 42% Undecided 4 % 12 % Such findings support the impression that physicians, especially those just leaving residencies, are increasingly willing to pack their bags and move to states like Indiana where high malpractice premiums and frequent suits do not occur, in part because of tough state laws controlling the nature and amounts of suit...

...A key issue is, in fact, the extent to which the increased threat of suit is influencing physicians' behavior...

...It is possible to argue that this represents, at long last, a way of redistributing the physician surplus to better serve medically needy areas...

...22-681, December, 1982...

...Malpractice is only one of many causes for this shift...

...But none of this is really compensation for the injury itself -- a notion that is actually fairly repulsive...

...The attending physician arrived two hours after the second call...

...The questions are meant to be rhetorical, to oppose limits on awards...

...In many ways, defensive medicine is worse medicine...

...Reform is all the more obviously needed when one looks at a second major purpose the malpractice system is supposed to be serving...

...Relocating or abandoning a medical practice is obviously a drastic -- but evidently increasingly thinkable -- response to the malpractice threat...

...In 1973 the Department of Health, Education, and Welfare attempted a definitive study of the malpractice issue and concluded that the extent to which defensive medicine was practiced was not then known...

...The attending physician did not arrive...

...9175/77, June 22, 1983...

...and referring patients to other physicians more frequently...

...This second rationale behind malpractice suits, in other words, is to force physicians into becoming better physicians while dealing with those who practice bad medicine...

...Consider the case of Unana vs...

...For the last two years, virtually every professional medical journal and the bulletins of nearly every state medical society have been replete with articles reflecting the belief that physicians are beleaguered by a hostile society and battered by fee-crazed lawyers, and consequently are adopting defensive postures to deal with the potential of suit...

...Diagnostic x-ray pelvimetry, which in a case like this would be standard medical practice, was not performed...

...Affecting even more patients and physicians -- and indeed everyone paying taxes or insurance premiums -- is the resort to "defensive medicine," i.e., measures physicians use to protect themselves against suits...

...Juries can award no amount, a minimal amount, or a huge amount for the same medical injury, depending on an individual jury's make-up and predilections...

...17 January 1986:13...

...Malpractice litigation, by contrast, can scarcely be an incentive for closer professional scrutiny...

...Why ~ the astounding amount of litigation in obstetrics...

...The award was of such magnitude that it has led to a precipitous rise in premium rates and significantly inflated the cost of care for the community as a whole...

...The crisis now focuses on the extraordinary rise in the cost of premiums being considered by State insurance departments for largely physician-owned medical liability insurance companies (the professionally preferred term for malpractice...

...Its most controversial seetions would limit awards to economic loss (medical bills, rehabilitation fees, loss of work income, attorneys' Costs), and eliminate awards for "pain and suffering," punitive damages, and other general damages...

...Are they ordering unnecessary tests and procedures, refusing to handle certain types of cases or perform other procedures, leaving areas where malpractice insurance rates and incidence of suit are high, or even stopping practice entirely...

...S OME PATIENTS and some physicians may be dramatically affected by the pressure to relocate or abandon medical practice, or to take up salaried positions...

...The legal code which Moses gave to the tribes of Israel -- e.g., "an eye for an eye and a tooth for a tooth" -- is sometimes presented as barbaric, hut it was, in truth, actually meant to both soften and democratize the previous Near-Eastern codes...

...9 performing less gynecological surgery and more diagnostic tests, passing those costs on to patients and/or thirdparty payers...

...The Association of Trial Lawyers of America asks, "What is fair compensation for the permanent loss of the use of a child's brain...

...O UR PRESENT system of malpractice litigation has at least two major purposes, and one can argue that neither of them is being served well...

...some, such as"written consent" and "more information to the patient," tend to improve patient care...

...The way the malpractice system operates also forces us to reflect on the exact nature of "redress...

...study mentioned above indicates that this is a real problem...

...Indiana has a $1,200 average premium, South Dakota a $1,500 average...

...the increase in the number of handicapped babies who survive infancy because of improved technology but then need long-term, very expensive care...

...9 social insurance -- similar to medical adversity insurance, but publicly financed...

...Many of these companies are now being found by the various state insurance departments to have inadequate reserves to meet the increasing severity and frequency of suits and awards...

...a mandatory offer of Commonweal: 12arbitration, which the patient would have the right to refuse...

...Loss of an aristocrat's eye might merit the death penalty...

...10016 Please send the next 6 months of Commonweal to: Name Address k. City, State, Zip [] I prefer a full subscription at $24...

...Nonetheless, the increasing resort to malpractice suits and the growing size of the settlements can be documented...

...The obstetrical resident notified the attending physician one hour after that...

...9 medical adversity insurance -- automatic compensation for injury, to be financed by physicians in some pooling method, with compensation determined by a pre-fixed schedule...

...and the new technologies themselves, which open up whole new areas of controversy...

...Patients will have to find care in "expensive, sometimes distant health centers, or from less qualified providers...

...It is not surprising that eliminating or restricting the" pain and suffering" category is one of the staples of recent proposals for malpractice reform...

...They also meted out penalties on a class basis...

...a Commonweal: 10slave's eye, merely a payment of money...

...But obstetricians' fear of malpractice suits is cited as an overriding reason...

...In these terms, our present malpractice compensation system is, if anything, pre-Mosaic...

...It is highlv 17 January 1986:9damaging to anything other than the most conservative patient care...

...The threat of malpractice lowers rather than raises the quality of physician performance...

...That meant that the interim measure's freeze on malpractice premiums was no longer in effect, and one insurance carrier has already applied for a 76 percent increase in rates...

...I billion to the cost of American medical care in 1983, and such practices are assumed by the profession to account for 30-40 percent of all diagnostic procedures...

...And it is the public, both as taxpayers and as medical patients, who largely end up beating the burden of that "punishment" meant to discipline physicians...

...There is little evidence, beyond that cited earlier regarding defensive medicine, that this has happened...

...Speculation has centered on at least four reasons: the current expectation of having a normal if not a perfect child, an expectation heightened as couples have fewer children and focus greater hopes on those they do have...

...Penalizing the full community financially, and affecting both its access to care and the quality Of its care, in order to deal with the tragedies of some individuals and the failings of others, is neither equitable nor just...

...The underlying question is: to what degree are these changes predicated on a fear of suit rather than on the trend in the last two decades toward greater public awareness of patient rights, health education, etc., and the simultaneous diminishing of physician autonomy...

...Cases like this make malpractice the inflammatory issue it is for both sides...

...The present system has very little ethical ground on which to stand, other than vengeance, a motive society might want to diminish rather than foster...

...Such harm falls first, and most immediately, on individuals who should be able to protect themselves against injury and negligence...

...But malpractice insurance and legal counsel are fringe benefits of these jobs and may be encouraging the change in the physician's role from individual entrepreneur to company employee...

...Physician Malpractice C ~ Experience in New York State 1976-19&3--All Companies # of Average # of Claims Cost Per Total Cost of Year CIalms Pald Paid Claim CLaims Paid 1976 3180 655 $ 35,970 $ 23,560,000 1977 3312 759 41,119 31,209,000 1978 3553 943 50,156 47,297,000 1979 3712 1063 60,441 64,249,000 1980 3913 1132 72,640 82,228,000 1981 4268 1071 85,570 91,645,000 1982 4359 1000 114,768 114,768,000 1983 5082 129.4 119,521 154,660,000 Increase: 59.8% 97.5% 232% 556% Certain specialties -- neurosurgery, orthopedics, and obstetrics -- have been particularly hard hit by the rise in suits...

...Four hours after admission, fetal distress was again monitored, and the resident again reported the information to the obstetrician by phone...

...But the negligence of the physician was so clearly manifest that it cried out for redress...

...Actually, they point in the opposite direction...

...The Harvard School of Public Health study mentioned above predicts 200,000 Caesarean sections a year which are not medically indicated, but done for fear of suit because vaginal birth might be claimed to have damaged an infant...

...and W. Henson Moore (R-La...

...The lack of hard data has a variety of causes: the expense of a major study, the uncertainty about whose interest it serves to fund such a study, and the difficulty in deciding what to measure, whether equity issues, improvement of physician performance, effect on community health and finances, or other possible factors...

...The award in the case was $1 million...

...9 arbitration -- again, peer and/or lay review boards working outside the court system to resolve the substantive issues in malpractice claims...

...Data from New York show not only a 59.8 percent increase in the number of malpractice claims in that state between 1976 and 1983, but a 232 percent increase in the average size of the settlements, and a 556 percent (!) increase in the total cost of claims paid...

...New York State passed a more modest bill last June as an interim measure while a fuller solution was under study...

...That may sometimes mean a greater evenness in quality but with some risk to likelihood of innovations...

...The bill would also offer compensation within six months and let settlements with a loss of over $5,000 be determined by a competent court...

...Ohio, a more urbanized industrial state, has an average of $4,000, compared with New York's average of $16,500...

...9 obtaining written consent more often...

...New York Hospital, New York Supreme Court, No...

...S TATISTICS LIKE these must be complemented by a close look at individual cases...

...It undermines attempts to contain health care costs...

...Limiting malpractice damages to actual economic costs would be both ethical and practically significant: New York State's largest malpractice insurer, Medical Liability Mutual Insurance Company, reports that the component of "pain and suffering" in all jury verdicts from January 1980 through June 1985 was no less than 55.1 percent of the total awards...

...What can be determined -- although still not without difficulty -- is the economic costs of the injury, and that can constitute the settlement...

...Torrance Memorial Hospital, Los Angeles Superior Court, No...

...The Medical Society of New Jersey journal notes that while in 1984 the rate of Caesarean section was one in five, in the Northeast it is one in three or two in five...

...The Gephardt-Moore bill, sponsored by Richard A. Gephardt (D-Mo...

...The hooker, of course, is the total expense of the proposal, given the large number of "routine" medical consequences arising in the course of treatment and hospitalization -- most of them not currently resulting in compensation...

...This alternative would remove the threat of outsized (find, in any case, unpredictable) awards...

...This is clearly a mixed bag of items...

...a commoner's eye might cost another eye...

...However, the case history states that the resident physician found the infant in a breech position and did not report it...

...Whatever the reasons for increased litigation, physicians are Commonweal: 8reacting strongly...

...In a special session last December, the New York legislature failed to pass any further legislation on the subject...

...In 1984, New York premiums rose to $53,676 for obstetricians and $63,311 for neurosurgeons...

...There is a welter of anecdotal evidence and soft data regarding malpractice...

...It looked for fairness both for injured patients and for providers...

...1/17/86 ligently harming patients in the future...

...and imposition of legal costs for frivolous suits...

...The last occurred a decade ago with an attendant fanfare of protests, demonstrations, strikes, and some legislation...

...Or when a jury awarded $83,037 to a 9 fourteen-year-old boy whose9 surgeon had removed too much of a chronic ingrown toenail and cauterized the root so it couldn't grow back...

...The American Medical Association estimates that defensive medicine added $15...

...pre-trial disclosure of expert witnesses...

...There can be no compensation for permanent loss of a child's brain, for blindness, crippling, etc., per se...

...The award is staggering, though one would want to know the definition of a "mild" palsy...

...The outcome for medical practice is likely to be a kind of standardization in care...

...Some factors are more complex: more frequent referrals, for example, are not simply to garner second opinions, many of which are merely protective, but are often an attempt to drop "high-risk" patients...

...At that time, the established insurance companies which provided malpractice insurance to physicians simply withdrew from the field, refusing to underwrite liability insurance at any premium price...