Improving the way malpractice is handled

My response to Pauline W. Chen MD’s Well Blog of Dec. 15 in the New York Times in which she described some of the ways physicians are negatively impacted by malpractice suits.

Clearly, physicians are negatively impacted when undergoing malpractice suits. Some experience depression and thoughts of suicide, others emotional depletion and burnout.

It is not surprising that surgeons who have weathered the strain of a suit ended up ordering unnecessary tests or refusing to take on patients with complicated problems. Neither is it surprising that some surgeons may be become so mentally traumatized by a lawsuit that they may be prone to further errors and more malpractice suits.

This sad state of affairs adds to the already confused and complicated doctor-patient relationship in a unique way. Why? Because many patient safety groups recommend that patients contemplating surgery should ask their physicians how many similar operations they have performed as a way of ascertaining their experience and expertise. In itself this is not a bad thing. And, even though surgeons are well-trained by the time they begin practice, it gives some patients more confidence going into surgery knowing that their doctor has performed a large number of the procedure that they are scheduled to have.

One cannot help but wonder that if the strain of a malpractice suit can make some surgeons more prone to error then maybe patients should also ask their surgeons if they are involved in any malpractice litigation.

The point is that better ways are needed to address malpractice suits. For many good surgeons are sued without merit and forced to undergo unnecessarily the strain of litigation. And if that strain makes them more liable to error, then patients and surgeons will both benefit from changing the malpractice system. The system now is too adversarial. It pits doctors against patients and plaintiff lawyers against defense lawyers. About one-half of the money in lawsuits goes to pay for court costs and the fees of both the plaintiff and the defense attorneys.

Health courts are one way of making the system more efficient and less costly. These are special courts presided over by judges with special malpractice training. The idea is to reach a quick settlement eliminate unnecessary haggling between both sides.

Another method would be to create pre-trial screening panels in which groups of doctors would review alleged malpractice cases and offer an opinion as to whether negligence had occurred. This would give the insurance companies and the doctors involved as well as the defense and the plaintiff attorneys a reference point from which to decide whether to defend or to settle a case.

As medicine advances, its procedures and medications have great potential to alleviate suffering and pain, but they can carry risk. It’s a fact that many of the malpractice cases that occur involve procedures that weren’t even possible years ago. Internal organs can be nicked doing needle biopsies or contrast studies, and medications have side-effects than can be harmful.

Thus finding ways to handle malpractice cases such as health courts or pre-trial screening panels that minimize the hostilities and wrangling that prolong the settlement of cases are worth the attention of our lawmakers.

Edward J. Volpintesta MD