It’s Not Just Healthcare That’s Bankrupt–It’s Our Legal System, Too

– It’s Not Just Healthcare That’s Bankrupt–It’s Our Legal System, Too (Of Two Minds, Aug 11, 2014):

Yes, there is malpractice, but our current system is insane.

What can you say about a “healthcare” system in which 99% of all physicians will face a malpractice claim in their careers? According to Malpractice Risk According to Physician Specialty (The New England Journal of Medicine), “It was estimated that by the age of 65 years, 75% of physicians in low-risk specialties had faced a malpractice claim, as compared with 99% of physicians in high-risk specialties.”

Longtime correspondent Ishabaka (M.D.) provides some context:

“A little legal education is necessary to understand malpractice:For a malpractice suit to be successful, there are five necessary things:

1. A duty to treat – there has to be an established doctor – patient relationship. A typical example would be someone who corners me at a party and asks me what I think is causing their abdominal pain. I give them my card, ask them to make an appointment for a check-up, they never do, and the pain turns out to be fatal cancer – in that case I had no duty to treat.

2. Failure to practice the standard of care – note – this does not mean the BEST care in the world – it means the average, or median standard of care.

3. A physician in the same specialty willing to testify that the doctor practiced below the standard of care – all States require this.

4. Causation – the substandard care has to have caused the patient’s problem – again, this requires expert physician testimony.

5. Damages – if the substandard care causes no damage, there is no basis for a suit.

Now, I ask you – how can 99% of obstetrician gynecologists, neurosurgeons, emergency physicians, neonatologists (pediatricians who take care of premature babies in the neonatal intensive care unit), and other high-risk specialists practice worse medicine than average? It’s mathematically impossible.
By the way, in the back of law journals are ads for medical expert companies that promise they will get a doctor to testify to anything the lawyer wants.

Yes, there is malpractice, but our current system is insane.”

I am not an attorney or a doctor, but it seems self-evident that our legal system enables “fishing expeditions” in search of a settlement by keeping the cost of “fishing” very low, the rewards high and no penalties for abuse of the law, by which I mean issuing unsubstantiated or fraudulent accusations in the hopes of triggering a nuisance settlement, i.e. it’s cheaper and less stressful for the accused to pay the accuser a substantial sum to make him go away.

This practice is not unique to medicine. Anecdotally, I have heard from insiders in the insurance industry that there are people who make a good living claiming they were injured in department stores and retail outlets. The claims are bogus, but the grifters know our legal system encourages paying bribes to accusers to avoid the outrageous expense of a court trial.

Give me $10,000 and I’ll go away. Do this ten times a year and it’s a tidy income.

How can we defend a system where people are rewarded for spewing claims of damages in the hope that a few may stick or the falsely accused will pony up cash to avoid the horrendous expenses of defending oneself against baseless accusations in court?

Ishabaka (M.D.) has practiced medicine in both Canada and the U.S., and he reports that Canada’s system for monitoring and dealing with malpractice is more effective at actually limiting incompetence in the system, and it does so without accusing essentially every physician of malpractice in an absurd “line up everyone for target practice” abuse of the legal system.

I do not have the expertise to validate this, and no doubt there are countless complexities to consider, but I find it difficult to believe that “ours is the best possible system,” a blanket excuse issued in defense of both sickcare and our equally broken legal system.

I can anticipate that some within the legal profession will say that the low cost of making claims and accusations is worth the corrosive cost and stress of dealing with bogus claims and baseless accusations because it enables the poor and powerless to seek redress.

I find this argument mostly meritless based on two points:

1. How can anyone defend a system as fair, just and cost-effective when 99% of all physicians dealing with serious cases end up being accused of malpractice? It would take about 30 seconds to come up with a lower-cost, more just and effective system than what passes for “justice” in America.

2. The vast majority of poor people don’t end up having their day in court because that day in court is as absurdly expensive as sickcare. “Justice” in America goes more or less to the highest bidder, outside of propaganda-type Hollywood films.Legal services are extremely expensive and mostly paid in cash, so only the wealthy can afford legal representation or advice.

We would be remiss not to mention the other factor in malpractice, which is unrealistic expectations of medical science and practitioners. Yes, there are some incompetent doctors who should no longer be allowed to practice medicine. But there are many other factors to consider, for example, those doctors who take on the most hopeless, difficult cases are the ones whose “track record” will appear less than stellar.

Yes, there are legitimate cases of malpractice, and legitimate claims that end up being argued in court. But any system that accuses 99% of its practitioners of gross incompetence is deeply flawed, rife with injustice and bloated by needless waste and stress.

It’s not just our healthcare system that is bankrupt–so is our legal system.