Earlier this month four free medical clinics in the Washington area were forced to consider closing because they faced losing their malpractice insurance. At the same time, Massachusetts obstetricians announced they would no longer take new obstetrical patients because of wildly escalating insurance rates. In the District of Columbia, obstetricians who paid $56,000 in malpractice insurance last year are faced with another 40 percent increase. According to a recent Medical Society of D.C. survey, their response has been predictable: Twenty-five percent no longer deliver babies in the District; 60 percent said they might close their D.C. offices if rates increased. This development comes at a time when infant mortality in Washington is rising.
All across the country, physicians fearing litigation, are refusing to perform high-risk procedures -- even when these procedures are both necessary and efficacious. Advances in medical technology and attempts to contain health care costs are being threatened by an unreasonable tort system.
It is, of course, the consumer who suffers because of restricted availablity of services and increased costs for medical care. Since 1982 malpractice insurance costs have nearly doubled at George Washington University Hospital while room rates have risen 40 percent. There are also indirect costs for extra laboratory tests and diagnostic procedures. Physicians who fear future negligence charges because they opted against "simple laboratory tests" (when, in their opinion, these tests were not justififed) are now subjecting patients to an inordinate array of procedures. Although a precise cost estimate is difficult to calculate, the AMA estimates $15-$30 billion a year is spent on unnecessary tests.
Perhaps the greatest cost of all is to the traditional doctor-patient relationship. Patients no longer trust physicians and so seek second, third and even fourth opinions. Patients frequently assume that a poor result or a complication arising in the course of treatment is due to medical error. In my own practice, a new patient recently had a reaction to an allergy injection. The injection had been administered in a most professional manner by a well-trained and highly competent staff member. The patient later contended that my assistant had made a mistake and that she had been advised to sue me. I persuaded her to come in again and gave her the next injection myself, carefully triple-checking eveything. She again reacted. The problem was with her sensitivity to the medication, not its administration. Yet she assumed that we were in error and that the result was actionable.
Physicians in turn are suspicious. They think that patients (especially overtly hostile ones) are potential plaintiffs. There have been news stories about entrepreneurs setting up computer net works for physicians to find out if their patients have previously sued other physicians. Trial attorneys are now providing similar information about doctors for their patients.
Who is to blame for this sad state of affairs?
All the players share responsibility. The public, partly in response to publicity about medical miracles, has come to expect that all diagnostic and therapeutic attempts will have perfect outcomes. There is a lottery, mentality as well. Newspapers trumpet verdicts with ever more fabulous awards: "Become an instant winner -- sue someone."
Attorneys, encouraged by the contingency fee system, pursue frivolous claims, hoping to force a settlement in which they get a third of the award. If they win a really large case involving millions of dollars, they stand to earn millions themselves.
The American Trail Lawyers Association has found medical liability a particularly attractive and lucrative area. A visit to their last annual convention showed the majority of exhibits devoted to teaching lawyers how to get the doctor.
The insurance industry and its regulators have a share of responsibility for the current crisis. The mandating of huge loss reserves by state insurance commissions drives up costs. Currently, investment income earned by insurance companies is dropping. This causes companies to pull out of the high-risk liability market. Critics charge that insurance companies impose excessive premium increases because of greed. More than 30 nonprofit physician- owned companies were formed during the crisis of malpractice insurance availability in the 1970s. Not surprisingly, their premiums have risen at the same rate as those of for- profit companies, because of a comparable claims experience.
Finally, there is the responsibily of the physician and other health care providers. The depersonalization of medicine means that it is easier for physicians to lose touch with their patients. This especially holds for the super- specialist who is more likely to do the high-risk procedure and is precisely the one most likely to be sued. Providers must all communicate more effectively and conpletely with patients. Patients' uncertainties, fears and discontents must be more fully addressed by their physicians.
Physicians, long reluctant to criticize each other, have an ethical responsibility to protect the public from unscrupulous and incompetent practitioners. Grievance mechanisms against practitioners already exist within medical societies. Their availability must be more widely publicized. Licensing agencies must be given the resources to investigate adequately claims and mete out punishments.
Malpractice, when it occurs, must be properly compensated, and those physicians found guilty of repetitive negligence must be appropriately disciplined. Studies have shown that bad physicians are not necessarily the ones who get sued. Nevertheless, more rigorous discipline within the profession would have, as a byproduct, increased confidence that physicians were acting in the public's best interest.
Solutions to the current crisis in medical liability must be found to ensure continued access to first-class medical care at affordable rates. This can only be done by all interested parties -- consumers, attorneys, insurers and providers -- joining in a spirit of cooperation to find answers to this problem.