Here’s your summons, doctor. Wanna play tennis?

Posted on August 22, 2008. Filed under: Everything you wanted to know about doctors, Medico-legal issues |

In this recent post, I mentioned in concluding that I would give an opinion about a cause for the lack of aggregate marginal value of American medicine, as documented by economist Robin Hanson. I began reading Overcoming Bias a little while back, and, being a doctor, my curiosity was tweaked by a series of articles like this one about the lack of efficacy of American medicine. As I mentioned in a previous post, I found the arguments of math-ninja/economist Robin Hanson persuasive. He goes overboard, as you can judge for yourself, by suggesting that modern medicine is a conspiracy to defraud. Certainly there is an element of this, especially among medical thought leaders, discussed here. But the average, work-a-day doctor is at worst a victim of the “conspiracy”, rather than a willing participant in its inception. He/she hasn’t got time to read what economists have to say, doesn’t understand the significance of statistics, and is too arrogant to accept criticism on any level from non-doctors. I only became aware of the Rand Report recently, and that only because my retirement gives me time to read selectively.  

I’d now like to continue with a suggestion about another factor that is sending health care costs through the roof: the contingency legal fee system. Jacob S. Hacker, PhD, a political scientist at Yale has said: “Malpractice-insurance premiums and liability awards account for less than 2 percent of overall health-care spending, according to a 2004 study by the Congressional Budget Office. Defensive medicine, the practice of ordering extra tests or procedures to protect against lawsuits, might add another few percentage points, according to some estimates. Yet 60 percent of respondents (about the cause of increased health-care cost) blamed lawyers for high costs, and 69 percent specifically pointed to “frivolous lawsuits.” If you notice, the phrase beginning, “Defensive medicine …,” you will see that it is the one part of his comment on the topic for which he picks, apparently out of the air, an assignment of “another few percentage points,” without any evidence. Those “other few  points” are exactly what I am going to discuss, and they are far more significant than any non-physician could imagine.

The Marines say they are, “The few, the proud.” They create such men from the average bozo over a period of 12 weeks, in boot camp. During that time, the candidates are sleep-deprived, harassed, humiliated, reminded of their life-and-death responsibilities, and honed into a being with life-long allegiance to the fraternity of “semper fi”.

By the time one becomes a surgery resident, he has already been through four years of outstanding performance in mostly boring subjects that have nothing do with his ultimate career, and that prepare him only for his application to medical school (to which most applicants will be rejected). There follows another four years, now as an adult, in which one is treated like a child, as one learns anatomy, physiology, and becomes reflexly proficient in a complicated foreign language (medical terminology), until the words themselves produce concepts without translation. This phase is conducted with the underlying stressful knowledge that half will graduate in the lower half. The very day surgical residency begins, there begins a process in which the very-adult trainee is sleep-deprived, harassed, humiliated, reminded of his life-and-death responsibilities (not the potential ones, the actual everyday ones), and honed into a being with life-long allegiance to the fraternity of “doctors”. Such men/women are created over a period of 5 to 7 years, earning subsistence wages, and constantly taking responsiblity far beyond their confidence levels. They emerge in their early- to-mid 30’s, heavily in debt, and far behind the other bright college students both socially and financially. But they know that they are well-trained and capable, and they feel certain they will never be the perpetrator of malpractice.

That bubble bursts, on average, after 2 years in practice, when the first notice of malpractice litigation arrives. And they continue to arrive, on average, every 2 years.To an attorney, it’s just business, a matter of running it up the flagpole to see who salutes. Opposing attorneys play tennis with one another on the weekends. To the accused physician, it is an indictment of their personna, of their worth, of their ethics, and of their being. Most of the original documents in such a claim state, more-or-less, that the physician was negligent, ignorant, and malicious in his efforts to harm the patient. Yet, after investigation, and without any settlement, more than 90% of such claims are dropped with prejudice. In my state, such an effort costs the plaintiff nothing, his attorney $75 to file, and there are no penalties against either for frivolous litigation. There is no need for plaintiff investigational costs, because all the investigation is done by a 3-man expert panel, for which the “winner” pays. Assuming 90% of the doctors have done nothing to justify such a claim, their insurance companies must still shell out between $25-50,000 to answer the claim. Have you ever gotten a speeding ticket and observed the effect on your insurance rates?

Still, if this were all that happened, Dr. Hacker’s assessment would have merit. But it’s not all that happens. That boot-camp-induced thought process now kicks in. The physician swears that he will never be hung out to dry like that again. Instead of hearing hoofbeats and thinking “horses”, he hears them and thinks, “probably horses, but it could be zebras.” He tests for zebras at exorbitant expense, and usually never finds them. But in the process, he finds a “donkey”, and the donkey specialist gets involved and finds a “mule”, which requires a different specialist. It turns out that the mules and the donkeys are of no real long-term consequence, but we can’t just ignore them, because there is an attorney looking over our shoulders; the number one charge in medical malpractice litigation is “failure to diagnose and treat in a timely fashion.” So the patient undergoes mule-and-donkey treatment, and either gets no better or has a complication from the therapy. Hello, doctor, here’s your next summons. And so it goes. 

Dr. Robin Hanson says we should cut medicine in half.  He’s right. Imagine what it would be like if a person with a sore throat came in and had a negative physical exam. Wouldn’t it be great to say, “You probably have a horse. Over 99% of patients with this presentation have a horse as the underlying cause, and the horse will go away spontaneously, thanks to your immune system. About 0.01% of sore throats are caused by a unicorn, and those patients all die, no matter what we do. The remaining less than 1% have zebras, for which we can do expensive diagnostic tests and render expensive curative therapy if needed. There is almost no extra danger in watchful waiting for another X time frame. If the symptoms persist, we’ll break out the money. In the meantime, here is some medicine that will make you feel better, although having no effect on the actual underlying process.”

Guess what? That’s the way it was done in mid-20th century. Old (the term “old” is very flexible; to me it’s someone with at least ten more years of life than me; for others, it is me) doctors have told me that they remembered when the first insurance policies for medical malpractice were offered. They would go through entire careers without the mention of the term “malpractice”. One of them said, “The coverage amounts kept going higher and higher, and I told the insurance rep, ‘You boys are going to make the carrot big enough that eventually the attorneys will chase it.’” Now the carrot is huge, and almost all doctors think about it everyday. I doubt Dr. Hanson would accept this analysis, because there are no double-blind, randomly controlled studies about the way doctors feel. 

I guess he’ll just have to take my word for it (NOT!!!).

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One Response to “Here’s your summons, doctor. Wanna play tennis?”

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Eloquently put. Just to clarify some of the terminology, though, a suit can be commenced not by subpoena, but rather by summons. A subpoena, Latin, I believe, for “under penalty,” it is a command to come and testify or else …. Also, civil actions are not prosecutions (though some probably feel rather like persecutions), and so there is no cause of action arising for malicious prosecution out of civil litigation. There is, however, in many jurisdictions, a cause of action arising from alleged wrongful use of civil proceedings, or some statutory remedy along those lines. Finally, contrary to the assumptions stated, no small number of opposing attorneys actually loathe each other, if they know each other at all. It is a very competitive business, and legal malpractice suits are not uncommon.

Again, the presence of professional malpractice insurance seems to be a distorting incentive that generates much litigation that may be characterized as frivolous.


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    The director of the Sexual Medicine Center leaves penile implants behind, and launches a quest for knowledge about Artificial Intelligence, extended life, and the issues inside the health-care industry.

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