A new patient presents a new challenge to a good doctor. Each person has a unique physiology, an individual outlook, a different combination of problems.
Yet today the challenge is all too often blunted by another concern.
"With every patient who walk in the door, you begin to ask yourself, 'Is this the one who will sue?' " says. Dr. Marvin Schneider, president of the Montgomery County Medical Society.
"This poisons the air in which you practice medicine. It's not good for the doctor, and it's not good for the patient."
Medical malpractice, defined as the "failure to render proper services through reprehensible ignorance or negligence," without doubt hurts and kills many patients. Some malpractice is caused by incompetent doctors, some by competent ones who, like all human beings, sometimes make grievous mistakes.
In the last few decades, there has been a several-fold increase in malpractice suits, with precipitous increases in doctors' malpractice insurance premiums. Yet medicine has been acquiring a multitude of new methods and tools, with better results for the average patient.
Many doctors are quitting or curtailing their practices, often driving their patients into more expensive hands. Doctors are doing more tests and practicing more costly medicine just to cover themselves in case of a lawsuit. And they are raising their fees to try to pay their increased insurance premiums.
The monetary costs, in short, affect both doctors and patients. Yet there is also increasing evidence that the growing number of malpractice suits, the product of our society's failure to find a way to compensate malpractice victims fairly and swiftly, is causing a rift that may be even more serious; an increasing erosion of trust between thousands of competent doctors and their patients.
"Most doctors really enjoy dealing with patients," says Schneider, a Wheaton internist and specialists in digestive disorders. "But this is beginning to change. Medicine, unlike law, should not be an adversary situation. It's very difficult to practice when you begin to look on every patient as a potential litigant."
"Because medicine is an interpersonal experience, whatever affects the caretaker affects the one who is being cared for," Dr. Sara Charles, a University of Illinois psychiatarist, maintains. "The real victims of the malpractice crisis are the American people -- or patients -- who have no idea of how they have suffered already . . . "
Dr. Fe R. Adolfo is a Silver Spring obstetrician and gynecologist. But come April 1 she will be only a gynecologist, though one of her patients, Debbie Sauter, whose baby she delivered, testifies that: "She's friendly; she never rushes you; she's really an excellent doctor."
"I have no choice but to leave obstetrics," Adolfo explains. "Last year my liability insurance cost $14,000. That company is now pulling out, and to be covered with another company, I'd now have to pay $49,000.
"I can't pay it. I had to borrow to get the cash to pay my premium last year. People think we doctors are all rich, but I have to pay out $10,000 a month overhead just to keep my office open. I can raise my fees, but that doesn't mean I'll collect more from insurors.
"I don't have any solution, so I had to notify my patients that I'm giving up obstetrics."
Her patietns' reaction?
"I'm planning on being pregnant again," says Debbie Sauter. "I want another female doctor. Dr. Adolfo couldn't even recommend one except in group practice, and that's not what I want.
"It's just ridiculous. The good doctors are being hurt. She has been practicing so long, an she says she never had one problem. Now who do I go to to delivery my baby? It's pot luck. That's why I think I'm so angry. It's a mixture of anger and fear."
Sound exaggerated? Not to Ed Chambers. His wife, Sharon, had a miscarriage last December, and "Dr. Adolfo came to the hospital at 1 a.m. on a Sunday and didn't leave until dn't leave until 4 a.m.
"Now we want to try again. When Dr. Adolfo told my wife she wouldn't be able to deliver her baby, she came to my office crying. I think it's criminal what's going on."
The same litany is repeated by other patients.
Adolfo, however, has lots of company. Last year 12 percent of all Maryland OB-GYN doctors quit obstetrics, and this year the number may become 25 percent, their official society estimates. The District of Columbia Medical Society says 25 percent of obstetricians with District offices no longer deliver babies in the District -- though they may also practice at suburban hospitals -- since many paid $56,000 in premiums last year, and face another 40 percent increase.
The pattern is nationwide. According to the California medical society, 32 percent of all California obstetricians at the least restrict their number of deliveries; 46 percent turn away high-risk patients.
Many fees are of course being increased, and women's health care, it seems clear, will becoe more expensive and harder to get. The malpractice premium alone is currently calculated to consume from $125 to $600 of every obstetric fee. The Maryland state medical association says many low-income and low-fee Medicaid patients are being left without obstetric care, except in public hospitals. In the District, 59 percent of obstetricians responding to a local medical society survey said they will not accept Medicaid patients.
All doctors, not just obstetricians, are being affected, those in high risk specialists -- obstetrics, neurosurgery, orthopedic surgery, eye surgery, anesthesiology -- most of all. Maryland physicians in general expect malpractice premiums to go up by at least 200 percent more, on the average, by 1990. The basic insurance for a Florida obstetrician is alreadyl $117,000, or clost to $1,000 a patient.
True, some fields of medicine are overcrowded, and paring the number of practitioners and sending more high-risk patients to major medical centers may improve some kinds of care. At the same time, there are all the Dr. Adolfos across the nation, who do a careful and economical job with modest numbers of patients, yet now must curtail their practices because of sky-high insurance premiums.
The basic causes of the high premiums are three:
First, there is indeed true malpractice, and the results are often tragic. A bungling heart surgeon tears a crucial blood vessel and cannott stop the bleeing. A young man is operated on for cancer, and his doctors fail to tell him to return often enough for checkups. A recurrence is found too late, so he dies of a usually curable tumor.
Second, the number of malpractice suits has been escalating nationwide. The weight of the evidence seems to be that most are triggered by real malpractice, though, almost strangely, the numbers have been rising at the same time that mortiality from many diseases has been dropping. Aggrieved patients have become more aware of their right to be compensated. Growing numbers of malpracitice lawyers are eager to help.
The suits demonstrably involve competent as well as incompetent doctors. In fact, the Amercan Medical Associaton contends that "most malpractice claims do not involve negligence," since no more than two claims in 10 ever result in any payment, a 1973 federal study found 54 percent of malpractice claims "not legally meritorious" and doctors win more than half of all actual trials.
But that AMA claim is subject to doubt. The more pertinent fact may be that malpractice is not easy to prove. In 1984 Dr. James S. Todd -- then a New Jersey surgeon and AMA trustee, today chief deputy to the AMA's top paid official -- said, "The basis of the malpractice problem is malpractice. Ninety-five percent of our indemnity dollars go to pay claims that by medical peer review are found to be indefensible."
Still, Dr. James Sammons, AMA executive vice president, can also faily point out that: "Error ofjudgment by a surgeon dealing with complex medical symptoms, rapidly changing medical knowledge, highly advanced but imperfect technology and the unique response of every patient does not equate with 'gross incompetence' or 'killing and maiming.' If we expect physicians to act promptly and aggressively in the short times avaialbe, some mistakes by even the very best will inevitably occur."
Whatever the medical facts, the upshot is that three U.S. obstetricians in four have had a claim filed against them at some time, and one in four can expect one this year. In Maryland, a state with better than average statistics, 20 percent of all practicing doctors are currently involved in malpractice litigation.
Nationally, suits have increased five-fold since 1977. Ten years ago there were 75 malpractice suits in Maryland. Last year there were 600. Awards of a million dollars or more have become commonplace.
As a result, finally, fewer and fewer commerical insurors are writing malpractice policies, and those willing to provide malpractice insurance say they must charge the high premiums to cover their losses.
Critics of the insurance industry -- including trial lawyers -- maintain that the firms' losses are not real, and that they have continued to make profits on invested cash. There profits have fallen, however, as interest rates have dropped. Only 2 percent of all commercial insurors now offer malpractice insurance. Lloyds of London, the main reinsuror or back-up insuror for the insurors, has quit the American malpractice business because of the "huge" and "unpredictable" claims, and in 36 states doctors have been forced to start their own insurance companies, most of which are losing money.
Well, the average patient might say, can't the doctors afford it? Didn't they clear an average $108,400 in 1984 -- before taxes -- according to the AMA itself?
Yes, but that's an average. Some specialists in high demand doing lucrative new procedures wholesale -- leading heart surgeons, eye surgeons and orthopedists -- make hundreds of thousands. Many family doctors and non-surgical specialists make more modest income. I recently interviewed a Minnesota family doctor who made $20,000 last year. Doctors also have limited years of high earnings. They start practice later after long training; when they get older, their practices often dwindle. The AMA says premium costs for many specialists now approach a third of their gross incomes.
Whether we think doctors make too much, about enough or too little, the liability problem is no longer one of medicine alone. Municipal governments, day care centers, taverns and small businesses of many kinds are suddenly being hit by huge liability insurance premiums, as lawsuts and jury awards escalate in these areas too.
Neil R. Pierce, a respected national columnist on municipal affairs, says: "Unless some solutions are found and fast, the multibillion dollar costs will raise prices and taxes so sharply that quality of life will be diminished for everyone save a few legal jackpot winners."
However much many doctors and doctor-patient relationships may undesrvedly suffer, the person who suffers the most is the victim of real malpractice, the one left dead or crippled because of an avoidable mishap.
The main unanswered questions today are: How can society compensate victims more rapidly and adequately at a manageable cost? How can true malpractice, the main cause of the problem, be reduced?
There is good evidence that the average injured party collects nothing. Many do not try to sue. Not more than two actual plaintiffs in 10, probably fewer, win. Many fail to find a lawyer who will take their case. Those who do win, after an average four years of uncertainly, collect less than 30 percent of the award. Attorneys' fee s take from a third to 50 percent. Expenses eat the rest.
The AMA and state medical societies, including those in the District, Virginia and Maryland, are seeking federal and state tort law reforms, generally including a $250,000 cap on awards for "pain and suffering" (though none on economic loss) and limits on attorneys' fees.
Trial lawyers -- for example, John Sellinger of Rockville, vice president of the Maryland Trial Lawyers Association -- argue that the doctors' reformms would "curtail the individual's right to compensation," including compensation for often very real pain and suffering.
Changes like those the doctors seek have indeed moderated jury awards and helped hold down malpractice premiums in a few states, notably Indiana and, in the first effective year, California. Several states, including Maryland, are trying arbitration, which seems to reduce the numbers of cases that would otherwise go to trial.
A growing number of law professors seem to be joining the movement for liability law change in many fields. The AMA quotes Derek Bok, president of Harvard University: "The blunt, inexcusable fact is that this nation, which prides itself on efficiency and justice, has developed a legal system that is the most expensive in the world, yet cannot manage to protect the rights of most of its citizens."
To Dr. Sidney Wolfe, however -- head of the Public Citizen Health Research Group and one of organized medicine's severe critics -- most medical tort reform proposals would "discipline injured patients or the families of dead patients and their lawyers," instead of disciplining doctors. of nearly 400,000 patient-care doctors, he points out, only 563 had their licenses revoked or suspended in 1983.
It is obvious that the threat of a malpractice suit has not eliminated bad medical practices. The AMA and many state medical societies are now seeking more funds for severely underfunded state boards of medical examiners and more freedom to discipline medicine's bad apples. In fact, all those involved in the malpractice problem -- doctors, lawyers, medicine's defenders and medicine's critics -- now agree that organized medicine and state regulators need to join in a far harder crackdown on medicine's incompetents and wrongdoers.
Such activity has been increasing. But, paradoxically, one of the main obstacles to medical society or hospital staff actions against incompetent or misbehaving doctors is that they may get sued for just trying.
In 1979 the Montgomery County Medical Society and four of its members were sued by a plastic surgeon who claimed -- correctly -- that the society's fee review committee was trying to get him to reduce his high charges. He charged restraint of trade. The society won the suit, but only after six years of litigation, at a cost of more than $550,000.
All but $50,000 was paid by the society litability carrier, but now the society no longer reviews fees but sends complaints to the busy state society in Baltimore. What's more the local group's highly active referral service -- which recommends a doctor, if you call -- is now in danger because of lack of insurance, should some patient be mistreated and sue the society.
The then Department of Health, Education and Welfare made a major study of the medical malpractice problem in the early '70s. Now it may be about to make another, at President Reagan's order.
To date, however, there has been little if any real federal leadership in attempting to solve what is clearly a national problem.
And the average patient, though clearly harmed, does not yet seem aware that this mess is both a doctors' and patients' problem.