Adversarial Medical Malpractice Suits Counterproductive to Healthcare Interests

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Why do Americans pay so much for healthcare? Ask a lawyer and a common answer is greedy practitioners. Ask a physician, and the scapegoat is the plaintiffs’ bar with usurious malpractice premiums and unscrupulous attorneys. Unfortunately, this antipathy does nothing to address the real issues: (1) medical mistakes and competence; (2) accurate portrayal of risks and benefits with informed consent; (3) patient harm and restitution for injury; (4) quality assurance processes, best practices and continuing medical education.

Regrettably, the issue of malpractice in the United States is stuck in an adversarial quagmire. On one side, attorneys believe that litigation is the key to better outcomes, as it does three things: first it punishes malfeasance, which is assumed to be the cause of all morbidity and mortality; second, it acts as a deterrent to further incompetent acts; finally, it provides retribution to the afflicted. From the provider’s point of view, bad outcomes do occur, without fault, and full disclosure and discussion is discouraged so predatory lawsuits can be avoided, or at least minimized-- obfuscation supplants transparency.

In the game of legal vs medical, the real losers are the patients. Death and complications, per se, should not be the drivers of financial disbursement between defendants and plaintiffs. Instead, the quality assurance process should provide education to prevent future misfortune. This requires the medical profession to emphasize disclosure and education, not denial. Adversarial processes should be supplanted by open forum discussion and expert judicial arbitration so families can understand as best as possible what happened and why, and be fairly compensated if appropriate. Moreover, this disclosure process should be initiated as proximate as possible to the event when the “facts” are most discoverable and a continuous line of communication established until resolution. This process should be governed by mutual respect, not animosity.

Although tort reform has been effected in many states, the rules of bringing suit and conducting the legal process have just been tweaked. The intrinsically flawed system has not been changed. I do not purport knowing, nor presenting, the ultimate solution for this critical problem and welcome input from all reasoned parties.

By Norman Silverman, MD, with Ryan McKennon, DO and Ren Carlton

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