From the Chairman

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Dr. Anderson Edits Comprehensive New Medical Malpractice Resource

Introduction to Medical Malpractice: A Physician’s Sourcebook

by Richard E. Anderson, MD, FACP, Chairman and Chief Executive Officer

It is a difficult time to be a physician in the United States. In an era when life expectancy is increasing, when major progress has been recognized in the prevention and treatment of coronary artery and cerebrovascular disease, when a new generation of biologic therapies is beginning to reward decades of effort in the battle against cancer, when AIDS has become treatable and preventive vaccines are entering clinical trials, when CAT scanning and MRIs have revolutionized our windows into the human body, when surgeons can utilize noninvasive operative technique and robotic surgery is a reality, when science is now unveiling the genomic abnormalities in a host of human diseases, how can this be?

Though our therapeutic armamentarium has never been greater, the pressures on the practice of medicine seem to have increased even more. Physicians talk about “the coming medical apocalypse,”¹ask whether we are “helpless,”²or whether “...being a doctor is still fun”?³Scholarly research is undertaken to measure the degree of physician discontent and dissatisfaction with the practice of medicine.^3–8

Part of the problem lies in the tangle of conflicting messages physicians regularly hear. Though societal measures of health are improving, the incidence of medical error is said to be unacceptably high.^{9, 10}Malpractice litigation is said to target “bad” physicians and to be a necessary adjunct to regulatory and professional discipline,¹¹yet nearly one in six doctors reports a malpractice claim annually and one-third to one-half of high-risk specialists face a claim every year. Are they all bad doctors? Plaintiff attorneys say they carefully screen malpractice claims before filing, yet 70–80% of these claims are still found to be without merit.¹²

In this book, we will look in detail at contemporary medical malpractice litigation. We will review its history, examine medical malpractice insurance, which has become a virtual necessity to protect physicians and indemnify injured patients, discuss specialty-specific issues, and finally, explore alternatives to the current system.

Medical Practice in the New Millennium

Before focusing on these important concerns, let us look into the context of medical practice at the onset of the new millennium. Washburn¹identifies five trends that he argues have brought us to the brink of a “medical meltdown”:

1. Excessive business and legal complexity in the provision of medical care
2. Decreased medical spending without reduced demand for medical services
3. The increasing role of for-profit corporations in changing the traditional emphasis on patient care into concern for shareholder equity
4. A growing population of uninsured patients adding to the financial stresses on physicians and health care institutions
5. Provider demoralization

Keeping pace with ever expanding medical knowledge is a daunting task, but physicians must practice “under significantly expanded legal obligations, face stricter standards of professional accountability for medical negligence, and no longer enjoy exemption from the laws of competition.”¹³Doctors now face criminal penalties for, among other things, inadequate documentation, elder care deemed unacceptable, or erroneous emergency room triage.¹

Concern over the rising cost of health care has led to the era of “managed care.” It is difficult to find any constituency that is fully satisfied with this development. Physicians are alternately depressed and enraged at the erosion of their authority in offering professional judgments on behalf of their patients. Doctors across the United States applauded the American Medical Association effort to impose the same malpractice jeopardy on managed care organizations that they themselves faced. This “the enemy of my enemy is my friend” philosophy ultimately foundered with the realization that more litigation was a poor prescription for America’s health care system. Physicians came to understand that these lawsuits would not exempt them from their own legal battles, but would instead add another cause of action to the malpractice allegations they already faced.

Government made life more difficult for America’s doctors with laws that have reduced Medicare spending by hundreds of billions of dollars without taking action to reduce demand for services. The federal government pays for approximately 45% of all health care in the United States.¹⁴Therefore, these actions have significant direct impact, and, in addition, reset the bar for the rest of the health care marketplace.

The rise of for-profit corporate medicine offered promise of a number of important advantages:

1. Funds for infrastructure investment, including the information technology in which health care lags far behind other industries
2. The potential to offer more consistent outcomes and systematic quality assurance
3. Scale to allow development of appropriate institutional and provider specialization
4. Institutional personnel who could free physicians from activities not directly related to patient care
5. The rationalization of a fragmented industry that would produce enhanced quality at lower cost

Instead, most cost savings have come from simply reducing payments to providers. Quality has proven difficult to define and even harder to measure. Profit imperatives have led to greater selectivity in choosing which patients to service, rather than commitment to better processes for improved outcomes. Physicians have found it difficult to align their incentives with those of their employers, and employers have found it equally difficult to manage doctors.

Patients, nominally the designated beneficiaries of these changes, seem the unhappiest of all. They have lost the unquestioned assurance that the physician is their advocate. Shifts in the marketplace may force them to find new doctors without warning or cause. Medical costs are again rising rapidly, and patients are being asked to pay an increasing share of their own medical bills.¹⁵Only 44% of Americans express “a great deal of confidence” in medicine.¹⁶(It is of interest, though not reassuring, that only 12% have a similar degree of confidence in those who run law firms, and 15% in Congress.)

More than 45 million Americans do not have health insurance, but physicians must provide care to all under legally and ethically defined circumstances. For the remainder of the population, a panoply of public and private health plans, not to mention laws and guidelines, regulate the provision of health care.

The Increasing Impact of Law and Regulation on Medical Practice

The legal context of medical practice has changed significantly in recent years. The position of physicians within the U.S. legal system is “neither as lofty nor as protected as it was previously.”¹³There are new legal obligations, stricter liability laws, and increased competition. “Physicians are expected not to discriminate on the basis of race, national origin, or disability in the selection of patients or the provision of medical care; to participate in emergency care when part of corporate hospital enterprises; to conform their practices to a nationally based professional standard of care; to price their services competitively; and to not use illegal tactics to eliminate the competition.”¹³

The definition of standard of care has evolved from the practices of competent physicians in the community (the locality rule) to national standards as articulated in the medical literature and practiced anywhere in the country.

Contemporary concepts of informed consent are only 30 years old and are now based on fundamental principles of patient autonomy rather than physician judgment. Although health care as right or a privilege may still be debated, our laws have increasingly defined the terms of access and the parameters of care.

Increasingly, legal standards of care have replaced medical standards. In some cases this may be relatively explicit, such as indications for cesarean section based more on the probability of liability than medical judgment. Frequently, however, the replacement of medical judgment by courtroom standards is more subtle. Examples are as varied as the high rate of “false positive” readings on mammography and the high incidence of antibiotic prescription to prevent even the remotest possibility of Lyme disease.¹⁷

In either case, the outcome is similar, an increase in the practice of defensive medicine. This is unfortunate for two reasons. First, it adds to the cost of care and thereby reduces access.¹⁸Second, defensive medicine, by definition, is unnecessary. It undermines both the doctor-patient relationship and physician belief in the value of medical judgment.

The Profession of Medicine

It is therefore not surprising that physician “angst” is high. Washburn says it plainly enough: “Ask any clinician: it is getting harder and harder to enjoy practicing medicine.”¹More than one-third of doctors say they would probably not choose to enter medical school again.³Even though 84% of women physicians express satisfaction with their career, 31% say they might not choose to be a physician again.⁷This is especially notable because of the rising percentage of America’s doctors who are women. By 2010, the figure will be 30%.⁷

The primary cause for this dissatisfaction is not declining income, but decreased autonomy and the sense that medical practice is no longer the calling it once was.^{2, 3, 5, 7}There is a major groundswell of comment on the nature of physician-hood, and the meaning of “profession.”^19–22This admirable discourse illustrates the nature of the pressures impacting the practice of medicine. In the face of “perverse financial incentives, fierce market competition, and the erosion of patients’ trust,”¹⁹physicians are asked to re-emphasize their commitment to the profession of medicine. The three core elements of professionalism are defined as:¹⁹

1. Moral commitment to the ethic of medical service
2. Public profession of values
3. The negotiation of “social priorities that balance medical values with other social values”

This process will result in a new social contract between physicians and society. The authors of the proposed Charter on Medical Professionalism²³also see professionalism as the core of the social contract for medicine and are concerned that the pressures of contemporary medical practice are “tempting physicians to abandon their commitment to the primacy of patient welfare.” They identify three fundamental principles:

1. Principle of primacy of patient welfare
2. Principle of patient autonomy
3. Principle of social justice

The latter requires physician advocacy beyond the welfare of individual patients to “promote justice in the health care system.”²³

Ten professional responsibilities are also cited:

1. Commitment to professional competence
2. Commitment to honesty with patients, emphasizing both informed consent, and prompt reporting and analysis of medical error
3. Commitment to patient confidentiality
4. Commitment to maintaining appropriate relations with patients such as the avoidance of patient exploitation for sexual advantage, financial gain or other private purpose
5. Commitment to improving quality of care
6. Commitment to improving access to care
7. Commitment to just distribution of finite resources
8. Commitment to scientific knowledge
9. Commitment to maintain trust by managing conflicts of interest
10. Commitment to professional responsibilities emphasizing the individual and collective obligations to participate in processes to improve patient care²³

In today’s medical-legal world, there are no guarantees against unwarranted litigation, and no certain protection against continuing erosion of the doctor-patient relationship. Nonetheless, every constituency in our society agrees on the critical nature of medical services and all want more, not less, access. Ultimately, the practice of medicine is too important, and the men and women who undertake it too estimable, for the system not to balance itself.

This book is offered as a look at the problems, some solutions that are available today, and more that are possible in the future.

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