The Malpractice Mess

A surgeon places an unnecessarily tight cast on a young boy's broken leg and ignores his complaints of discomfort. The leg develops gangrene and has to be amputated. The boy's parents sue the doctor. Another surgeon accidentally punctures a 40-year-old man's esophagus. An infection develops, and the patient hovers on the brink of death. The patient sues the surgeon.

Once a relative rarity, malpractice suits are now common throughout the U.S. In California alone, such cases increased 4% from 1966 to 1969. According to the American Medical Association, one-fourth of all U.S. physicians will be sued for malpractice before the end of their careers. Those most likely to be affected are neurosurgeons, orthopedic surgeons, plastic surgeons, anesthesiologists, obstetricians and general surgeons. Those least likely: small-town ophthalmologists.

Enormous Cost. To some degree, the increase in malpractice suits is a byproduct of medical progress. "The success of modern medicine has led many people to expect the perfect result all the time," says A.M.A. General Counsel Bernard Hirsh. "When they don't get the perfect result, they consider it negligence." Others blame the increase on a health care system that takes the patient out of the hands of a family doctor and places him in those of a specialized stranger. They point out that while people rarely sue physicians they know and trust, they often sue specialists.

Lawyers now reject nine out of ten malpractice cases on the grounds that they are unjustifiable. Most of those they take are settled out of court. Of those that go to trial, physicians win at least two out of three.

Even so, the cost of such suits is enormous, and sympathetic juries keep raising the ante. A New York State court recently awarded $750,000 to a man who lost the use of both legs as the result of a spinal operation. In Miami, Mrs. Ellen Roll won $1,500,000 in damages for a postoperative drug dose that left her permanently disabled. In addition, out-of-court settlements of more than $100,000 are fairly common. When Baja Marimba Band Guitarist Ervan Coleman died in Los Angeles following a supposedly routine ear operation, for example, his widow sued the anesthesiologists. They settled for $887,500.

In the 1940s, recalls San Francisco's Melvin Belli, "you'd walk into court suing a doctor, and the judge would laugh at you." Now many courts have made such suits easier. In several states, lawyers are allowed to cite medical textbooks as expert testimony in some malpractice cases. Under the doctrine of res ipsa loquitur (the thing speaks for itself), a plaintiff proves a major portion of his case when he shows that his injuries would not normally have occurred without negligence. In turn, the defendant is forced to produce evidence that he was not negligent. Doctors' changing attitudes have also helped aggrieved patients. Though many physicians still fear ostracism or cancellation of their own malpractice insurance if they testify against their colleagues, growing numbers are willing to criticize medical error.

Economic Impact. As a result, no U.S. insurance company has made a profit on malpractice coverage since 1958. Many have ceased writing liability policies for physicians. Those still in business have sharply raised their rates. The insurance group that formerly covered 11,000 Southern California physicians doubled its average premiums last year; thus a general surgeon who had been paying $1,508 for insurance was obliged to pay $3,140 for the same coverage. Last year surgeons in Utah were paying an average of $3,910, more than 13 times the $294 they paid in 1968.

In the end, the cost of malpractice insurance is borne by patients. This is one reason for the 21% rise in doctors' fees since 1967, to say nothing of extra tests and X rays ordered by doctors who fear malpractice suits. Worse, many doctors have begun to practice defensive medicine. Some refrain from prescribing drugs or recommending surgery that might run the slightest risk; others avoid cases in which they cannot virtually guarantee success. The result, says Dr. Richard Gibbs, chairman of the Massachusetts Medical Society's committee on professional liability, is in "the worst possible interest of the people of the country."

Senator Abraham Ribicoff, whose Subcommittee on Executive Reorganization studied the malpractice mess last October, said it was becoming a "national crisis." But few agree on what action should be taken. Most physicians support legislation limiting their liability; many urge the A.M.A. or the Government to underwrite a reinsurance pool for physicians who cannot obtain malpractice insurance from other carriers. Some suggest that the patient carry surgical-accident insurance similar to that now available to airline passengers. Almost all attack the contingent-fee system under which lawyers receive a portion, usually one-third, of any award made to the patient.

Sensible System. Lawyers take a different position. Many argue that malpractice suits enable society to help bear the cost of human tragedy, and they support Los Angeles Attorney David Harney's contention that the medical community has a "proneness toward patient neglect and disregard." They also defend the contingent-fee system on the grounds that it enables even the poorest patient to bring his case to court.

But both sides agree that many court cases could be avoided by a sensible system of pretrial arbitration like that adopted in Pima County, Ariz., in 1957 and since copied in various forms in about 20 other states. In Arizona, a panel of doctors and lawyers screens malpractice claims to determine whether or not the patient really has a case. If they think he has, they recommend that it be settled out of court. Neither doctors nor patients are bound by the panel's decisions. But most go along, and for good reason. In 13 years, no plaintiff turned down by the panel has succeeded in court. Only one doctor refused to settle. When he lost the trial that he had insisted on, the court awarded his patient $47,000.

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