Malpractice: Rx for a Crisis

Beverly Geltzer of Baldwin, N.Y., was not unduly upset when her son Jordan, 12, broke his arm during a gym class last week. But her coolness turned to anger when she took her son to a nearby hospital. There she learned that neither her own physician nor any other orthopedic surgeon was available to set the arm, and Jordan would have to be treated at Nassau County Medical Center, where he was to wait six uncomfortable hours before his injury could be handled in the busy emergency room. "It's unbelievable," said Mrs. Geltzer. "I feel like I'm in a foreign country."

Young Jordan was not the only patient who had to wait for treatment last week. Joining in a growing wave of protest over the rising cost of malpractice insurance, thousands of physicians in New York's nine most heavily populated counties decided to dramatize their demands by refusing to perform any but emergency services. Their action slowed admissions and operations in many hospitals to a near halt, inconvenienced thousands of patients who needed elective surgery and other nonemergency treatment, and further eroded the esteem in which Americans have traditionally held their physicians.

The New York doctors were not alone in their action. Doctors in Ohio, Florida and Alaska have already staged slowdowns. Physicians in several Texas cities, including Austin, San Antonio and Fort Worth, followed last week with partial strikes of their own. So did doctors in Bucks County, Pa.

High Costs. Their protests are proving expensive. A four-week walkout by California physicians, which ended last week after the state legislature pledged to work toward a permanent solution of the malpractice mess, cost San Francisco Bay Area hospitals an estimated $2.5 million in lost charges, hit 4,500 furloughed hospital workers for $12 million in lost pay. The New York action could be even more costly. Some of the hardest-hit hospitals have already begun laying off employees. Dr. John Connorton, president of the Greater New York Hospital Association, said that 25 voluntary hospitals, half of them in New York City, would go bankrupt if the slowdown lasted through this week.

His warning did nothing to settle the doctors' complaints. New York's major malpractice insurer, the Argonaut Insurance Co. of Menlo Park, Calif., which has raised its premiums by a total of 200% in the past year, is leaving the state entirely on July 1. Doctors feel that the state legislature, which has already enacted a bill offering a doctor-owned alternative (TIME, June 9), must do more to protect them against the rising risk of being wiped out by malpractice suits. To ensure that it does, a number of doctors said last week that they were willing to withhold their services indefinitely. A few, who claimed that they would lose $15,000 a month by striking, insisted that they were acting in the public interest. Others, acknowledging that people tend to protest mainly when they are being hurt in their wallets, admitted that their motives were more personal. Said one reluctant striker: "We're fighting for survival."

Malpractice complaints, once a relative rarity, have become commonplace. As recently as 1960, most physicians could expect to go through a lifetime of practice without seeing a summons. Now, reports a 44-state study, one out of every seven general surgeons is facing a malpractice complaint. The sums involved can be substantial. Most malpractice suits are settled out of court for less than $2,000, but awards of $1 million or more have become increasingly common. Last month a Florida court awarded Dentist Leonard Tolley, 58, and his wife Elsa a total of $1,685,000 after finding that surgery following an automobile accident had actually worsened the paralyzed patient's condition. In California, there had never been a million-dollar judgment until 1967; there have been 13 of them in the past 28 months.

The parties involved hold each other responsible for the crisis. Some doctors blame the increasing incidence of malpractice suits on patients' desire for a fast buck at the expense of physicians. Others lay the responsibility for the rise on ambulance-chasing lawyers, who have been forced out of automobile liability actions by the growing acceptance of no-fault insurance.

Complex Causes. Lawyers, on the other hand, tend to attribute the increase to the physicians' own incompetence. "The reason why there are medical malpractice suits is that there is medical malpractice," says Robert Cartwright, president of the Association of Trial Lawyers of America (A.T.L.A.). Both sides distrust the insurance companies, which claim enormous losses on malpractice insurance but have thus far declined to disclose any firm figures to back up their demands for ever higher premiums (a typical charge for a high-risk specialist nowadays: $20,000 a year or more).

In fact, the causes of the crisis are far more complex. For one thing, the public is much better informed than it used to be, and it no longer regards a doctor's views as law. But part of the public's knowledge consists of reports of miracle drugs and surgical spectaculars like heart transplants. People also enjoy the television programs that show Marcus Welby and his colleagues regularly triumphing over death and disease. Since they now expect more from doctors, they are less willing to accept bad results and far more willing to blame them on a physician's failure. "People do not understand that everything is not going to result in a perfect outcome every time," says the A.M.A.'s executive vice president Dr. James Sammons. "We've fallen into the trap of being incredulous when a perfect result doesn't occur."

The public has less hesitation about taking complaints to court. The past decade has brought a vast increase in lawsuits as minority groups, women and consumers have used the courts to win better schools, job opportunities and protection against fraud. It is only natural that patients who feel wronged by their doctors should also consider suing.

Their action is made easier by the fact that the traditional doctor-patient relationship has deteriorated badly. Patients rarely sue their family physicians, who often make up in compassion and concern for what they lack in technical skills. But few feel reluctant to sue an aloof and unfamiliar specialist who seems to take their respect for granted and often submits a sizable bill as well.

Some suits are unquestionably the result of physician-patient misunderstanding or simple greed; a few stem from honest and perhaps unavoidable errors on the part of physicians. But many malpractice suits are brought when doctors fail, through carelessness, indifference or sheer incompetence, to discharge their responsibilities to their patients. In fact, some patients do suffer untold anguish and expense when physicians make wrong diagnoses, perform needless operations or prescribe the wrong treatments. In a Los Angeles hospital, a nine-year-old girl went into cardiac arrest while recovering unattended from a tonsillectomy. An anaesthesiologist summoned by the parents moved the child to another room for treatment rather than attempting to resuscitate her immediately. The delay in treatment left the girl paralyzed and mentally retarded. In Florida, a doctor read a woman's X rays backward, ignored her cancerous kidney and removed the healthy one.

Doctors routinely attempt to protect themselves by ordering up extra tests and X rays--a form of "defensive medicine" that some experts believe costs anywhere from $3 billion to $7 billion a year. In addition, doctors and hospitals usually pass the costs of malpractice insurance along to their patients in the form of higher charges. Experts predict that recent insurance-rate increases could add $2 or more to the cost of a visit to a physician, $4 a day to hospital bills.

Limited Fees. Worse, the rising costs of insurance could make it more difficult to obtain care at any price. The A.M.A.'s Sammons predicts that many older and part-time physicians will be forced into early retirement by high malpractice premiums. Some young physicians may forgo private practice entirely, entering the armed forces or choosing the laboratory rather than the clinic.

To avoid such problems, state legislatures have begun to act. Idaho, Indiana and Maryland have recently enacted laws creating state-supported insurance pools or funds to ensure that physicians will be able to find some sort of coverage. Idaho and Indiana have also limited lawyers' fees and set ceilings on malpractice awards. New York has created a state pool and passed an enabling act permitting doctors to establish their own insurance company as an alternative; its action assures doctors that their premiums for the coming year will be no more than 15% above the rates they paid last year.

The establishment of state insurance systems will undoubtedly help doctors, who might otherwise be unable to obtain insurance at any price, to stay in practice. Some of the other measures that have been adopted will also protect the physician, but not his patient. Setting a ceiling on malpractice awards helps the insurance companies, who will have to pay out less, but penalizes the patient who may require a lifetime of costly care as a result of a physician's error. Severely limiting contingency fees, under which lawyers commonly take one-third of any amount awarded to their clients, will certainly make lawyers less eager to take on malpractice cases. But this move, or the more drastic one of abolishing contingency fees altogether, might deny many poor patients the opportunity to take their claims to court.

There are other steps that would go a long way toward cleaning up the current malpractice mess. Among them:

REDEFINING MALPRACTICE. Doctors in New York have asked the state legislature to write a new legal definition of malpractice. The vagueness of most existing malpractice statutes has allowed juries in some states to find a doctor guilty of malpractice merely because he has failed to cure a patient. Malpractice laws should cover negligence and incompetence, not medical misfortune.

STATUTES OF LIMITATION. Laws in some states allow patients as much as 20 years to bring suits against doctors for malpractice. Injuries from malpractice are usually discovered within a few years, if they are discovered at all, and the law should reflect this.

ARBITRATION PANELS. Indiana and Tennessee have created panels of doctors and lawyers to screen malpractice claims and weed out nuisance suits. A doctor-lawyer panel in Tucson, Ariz., has reviewed more than 100 cases since its establishment a decade ago. Though its decisions are not binding, most doctors and patients go along, and with good reason. Few of the doctors or patients whom the panel urged to settle have ever won their cases in court. In-hospital ombudsmen can help too. The Halifax Medical Center of Daytona Beach, Fla., has established and funded an in-hospital committee to which the staff is encouraged to report all negligence and accidents. The committee investigates and tries to solve the problem right on the spot. Claims against the hospital--and the hospital's premiums for insurance--are among the lowest in the state.

ELIMINATING MALPRACTICE. Negligence and incompetence cannot be eliminated entirely from any profession. But the incidence of medical malpractice can be reduced radically if doctors will do a better job of policing themselves and their colleagues. Several states, including New York, now give doctors increased authority to punish colleagues found guilty of malpractice. Doctors in most states have thus far shown too little disposition to use such authority. Few physicians have been willing to testify against their colleagues in malpractice cases, let alone move against those who have been found guilty of abuses.

Nor are these the only changes that can be made. Doctors, who all too often think of their patients as medical consumers rather than people, should be less arrogant. They--as well as their patients--should remember that despite recent advances, medicine is still an uncertain science. Physicians can earn the right to practice it only if they learn from their experiences--and mistakes. Physicians must, said Dr. Judah Folkman of Harvard Medical School, in a recent Class Day address, "appreciate the debt we owe our patients for our education. It is a debt which we must repay."

To repay this debt, Folkman urges his fellow physicians to remember that good medicine begins--and ends--with compassion. His advice is appropriate for today's beleaguered medics. Studies have shown that the patient who is treated with compassion is likely to feel that whatever the result, his doctor has done his best. It is the patient who feels himself slighted--in either medical or human terms--who expresses his dissatisfaction by a lawsuit.

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