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FEBRUARY 2003
     This month is short but in addition it seems to have just motored at a high speed and with reckless abandon, tempered by our daily count down to Bush's war with Iraq. As a result I almost forgot to write my monthly Webletter. Rather than report on the Preventive Medicine literature, I have decided to ascend the bully pulpit and give my take on "The Malpractice Crisis." My comments are based on my experience as a practicing physician for 48 years plus some statistics and facts gleaned from superficial on-line research. As most of you know the problem is multi-faceted and geographically diverse. The geographical differences even vary within the highest crisis states, which are: Florida, Georgia, Mississippi, Nevada, New Jersey, New York, Ohio, Oregon, Pennsylvania, and Texas. I tried to think of some common denominator that would separate these states from the other forty. I considered economic problems, illegal immigration, location, and population instability, but I came to no definite conclusion. As with other aspects of this essay, my comments regarding geographical variation are based on my knowledge of the problems within my resident state of Texas. In Texas, the major crisis area is in South Texas and in the Rio Grande Valley. In my opinion, economic conditions and illegal immigrants are reasons for intra state variation. In addition, and I may be criticized for this reason, I think South Texas has a higher proportion of inferior physicians.

     It is my opinion that the malpractice problem can be divided into the following causes:
  1. Unrealistic patient expectations
  2. Frivolous lawsuits and unscrupulous attorneys
  3. Some incompetent doctors
  4. Busy doctors who neglect to develop rapport with patients and their families
  5. Rising insurance premiums
  6. Insurance companies and physicians vacating previous locations
     Since World War II American Medicine has made meteoric advances in technology, surgical techniques, and pharmaceuticals. The American public has seen these, due to mass-media coverage, and they want and, in some cases, demand them. In the public's mind if American Medicine is so good then why are there wound infections, leaking anastomoses, missed diagnoses, physician's mistakes, drug errors, etc. Let's take wound infections as an example. Even under perfectly controlled circumstances, there is going to be a statistical incidence of wound infections after surgical procedures. If the intestine is worked on then the incidence is higher due to bacterial contamination from the contents even if antibiotics have been given before, during, and after the procedure. This is just a natural occurrence. It doesn't mean somebody made a mistake and therefore the patient and their family should sue everybody who dealt with the patient. Certainly breaches in cleanliness, sterilization, and technique can occur and; therefore, directly cause the infection, but this is unusual. If a definite cause can be found then, of course, the patient should be compensated for economic losses. Definite causes are difficult to track down but sloppy technique and hospital cleanliness will be reflected in the statistical incidences of wound infection by an individual physician and individual operating rooms. Hospitals address this potential problem through their infection committee, made up of physicians, nurses, and administrative officials; it's not just "swept under the rug." The Joint Commission of Hospital Accreditation double-checks these efforts through their periodic accreditation of the individual hospital.

     Despite the Trial Lawyer's Association's denial that unscrupulous lawyers and frivolous lawsuit are not a major cause for the Malpractice Problem, the fact is they exist and do contribute to insurance premium increases. I'm going to illustrate how this occurs by repeating a story told to me by a cardiovascular surgeon in the Rio Grande Valley. He said he performed open-heart surgery on a male patient and the procedure went well with no glitches. Postoperatively, the patient started having severe pain in his right eye. The surgeon could not find anything wrong so he asked for an opthalmological consult and the eye doctor made the diagnosis of acute glaucoma which was totally unrelated to the heart surgery-it just occurred and would have done so even out of the hospital. The glaucoma responded to appropriate treatment and the patient was dismissed from the hospital. The patient returned to the surgeon's office in a week for the first post-op visit. He told the doctor, "Doc you know a funny thing happened the day after I got home. Somebody called me on the phone and said 'I understand you had some severe eye pain after your heart surgery. You realize that should not occur so you can get some money by suing the doctor and the hospital.' I knew it was nobody's fault so I just hung up and never got his name." Now if the surgeon did not have good rapport with the patient, he might have listened to the shyster lawyer and sued the doctor and hospital. Despite the case having no merit, it would have cost the defendant's insurance companies considerable money to investigate and settle the case. Statistics from Pennsylvania indicate that insurance companies paid out $1.38 for every $1.00 collected in premiums. Shyster lawyers do not have to chase ambulances any more since in many areas of Texas they have "moles" in medical treatment facilities and the unscrupulous attorneys pay for information on various complications. Fortunately bad lawyers are in the minority but they do exist and the minority can be expensive.

     I know "bad doctors" practice in Texas and, I'm sure, other states but they are the extreme minority. It is difficult to remove a doctor's privileges to practice in hospitals or to remove him/her from the medical staff. They immediately engage an attorney and it takes, sometimes, years to accomplish the appropriate discipline. In the mean time involved physicians can be threatened with countersuits. They may or may not have insurance coverage to compensate them. In Texas the State Board of Medical Examiners is severely under-funded and consequently they are limited in their ability to "police" the State's Medical Profession, but this is the forum where discipline should occur as they have the legal ability to do so. The legislature should give more of the yearly license fee to the Board so they can step up their surveillance and disciplinary action.

     I know some long time practicing surgeons, now retired, who never have been sued. They had complications, just like all surgeons, but they had outstanding rapport with the patients and their families. They were able to explain, to the patient's satisfaction, how and why the mal-occurrence happened and what was going to be done to try and correct the problem. I think increased patient volume which surgeons and physicians have incurred in order to maintain income despite shrinking re-imbursement plus expanded outpatient care has resulted in diminished time for intimate and one on one doctor patient relationships. Unfortunately the involved physicians busy attitude comes across as arrogance or uncaring. Physicians and especially surgeons have to be available and respond to patient's concerns after they are rapidly dismissed from the hospital or outpatient treatment center. Some of the complaints are part of a normal post-operative course, but some signal significant and life-threatening complications. It is difficult to adequately evaluate them over the phone. The doctor must examine the patient and determine whether the symptoms indicate a significant problem. Patients and their families know when the doctor has been caring and has responded to potential problems. They see him/her make frequent hospital rounds on the extremely ill patient. They know when the physician has met the patient at the doctor's office or emergency room to evaluate post operative or post treatment symptoms. If an adverse event occurs despite the doctors undivided attention then the patient and family realizes that the physician did all that was humanly possible to care for the patient. This relationship establishes rapport and a suit is unlikely unless the patient and family are convinced otherwise by an unscrupulous attorney.

     Rising insurance premiums are a result of factors listed above. In addition, the recent recession severely impacted insurance companies and the only way they can recoup is with increased premiums. If the problem is too great then they have gone out of business or moved from crisis areas. The same is for physician relocation. If they cannot obtain or afford malpractice insurance then their only recourse is to retire, change careers, or relocate their practice. Their choice is age dependent.

     The above discussions represent some thoughts on the problem, which is complex and labyrinthine. I'm sure there are many more but my opinion is based on personal experience.

QUOTES OF THE MONTH
"There's no better way of exercising the imagination than the study of law. No poet ever interpreted nature as freely as a lawyer interprets truth."
     - Jean Giraudoux (1882-1944) French Dramatist
     Tiger at the Gates I

"Wrest once the law to your authority: To do a great right, do a little wrong."
     - William Shakespeare (1564-1616) English Dramatist
     The Merchant of Venice, IV:I
Take care until next time,
Richard J.Turner, III, M.D., F.A.C.S.
Editor

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