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We Need Medical Malpractice Reform Now, Stupid

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Published: 29Aug2010
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I had a very interesting conversation with an emergency department (ER) physician recently at a social event. He was clearly frustrated with his current working situation and what he saw the future to be with the impending government takeover of medicine. He was employed by his local community hospital and had been practicing for about 16 years.

In the approximate order of his rant, here's what bothered him:

1. The hospital administrators where he now works put profits over people (his words). They advertise to the community and surrounding areas that their hospital "accepts all transfers from smaller hospitals." They do this even though they know that their hospital is not equipped to deal with some of the very medical conditions that it advertises for. This puts the health and life of those patients at great risk and taxes the time, energy and skills of the health care providers at their hospital, including him. They know, however, that once the patient arrives at the hospital, the billing can start. For certain injuries and illnesses the revenue can be enormous.

2. The administrators base the pay of the ER doctors in part on patient ratings of how happy they were when they left the emergency department. Problem is, hardly anyone is happy leaving an emergency department, especially when the average wait to be seen by a doctor exceed four hours, as it does at his hospital. The ER doctors don't train the staff because the staff are employed by the hospital. Thus their pay is based in part on patient "satisfaction" which is based in part on how the nurses and other staff treat the patient and the ER doctor has no control over this.

3. His pay is going down, not up and he is expected to work more hours for less pay. In fact, this doctor 'moonlights' at another hospital's emergency department to make ends meet.

4. His patients sometimes give vague or unhelpful histories (or even lie about them) and then expect him to come up with the diagnosis in the few minutes that he has with them (after all, that's what happens on TV shows.) This leads to bad outcomes and unhappy patients.

5. Many patients refuse to take any responsibility for their own health through diet, exercise and avoidance of risky behavior, (including, on more than one occasion, walking on or too close to train tracks) and then expect to walk out of the ER "a new person." More unhappy patients. Lower "ratings." Less pay.

6. He is forced to take time to deal with dental patient who show up at the emergency department. He's not a dentist. The local politicians patted themselves on the back the day they unveiled the new, mega, state of the art free dental clinic for the uninsured. Problem is, it takes a year to get in to the clinic with an appointment so the patients with the abscessed teeth from chronic non-care show up in the ER. The hospital administrators refuse to tell patients "we aren't dentists."

7. The ER is constantly understaffed because from 1 to 3 nurses call in sick every shift. The hospital administrators don't have the courage to fire them like President Reagan fired the air traffic controllers when they didn't show up. The ER doctors don't have any control over the nurses.

8. Some patients use the resources of the emergency department of this private hospital as though it was a free health clinic and no one will tell them they can't come through the doors. So the guy who's been their 250 times in three years gets a chart made up and blood work drawn and the attention of at least three health care providers each and every time he arrives. The uninsured illegal alien who can't get her dialysis done down the street at the dialysis clinic (because they tell her "no") just walks into the ER to get her "free" dialysis three times a week.

9. Patients come into the ER armed with the knowledge gleaned from TV shows and Internet web sites and then insist on directing care, demanding unnecessary tests and generally treating the ER doctor like crap.

I asked him the question that I like to ask anyone who is not happy with their lot in life: if you were in charge what would you do to change things?

His answer: what this country needs is medical malpractice reform!

What? What did any of the above have to do with the fact that we have laws in place to compensate harm done by negligent doctors (or hospitals who insist on advertising that they accept all comers and then under staff the ER to save money?)

He then went through a litany of horror stories of doctors getting sued that he had heard about. I had heard some of them and knew them to be urban legends (Google: "unable to perform oral sex - sue the doctor.") I asked him where he had heard the stories and he told me "at CME (continuing medical education) conferences."

I asked him whether he had ever gone to research the facts on his own about a particular case to see if it had really happened. No.

I asked him if he even knew what tort reform laws were already in place in his state. No. (But I knew he lived in a state that already had some of the most doctor protective laws in the country.)

Had he ever looked at the medical records of any malpractice horror stories he was telling me about to see what really happened from beginning to end or even if the story had any basis in truth? No.

Had he ever ordered medically unnecessary testing solely because of the threat of being sued if he did not? No (though he did admit to caving into a mother who insisted that her kid who bumped his head needed a CT scan when their was no other evidence of any potential serious injury. Mom was insured so administrators were happy).

Had he ever read a transcript of a medical malpractice trial, to see what the patient said and the doctor did and what the board certified expert witnesses said about the care that was rendered? No.

Had he ever sat in and watched a medical malpractice trial from beginning to end? No

Did he know any doctors that had been sued? No.

Had he himself ever been sued? No

Had he ever been asked to review any medical charts to help the patient or the doctor evaluate whether the care had been so substandard that it was malpractice? No

In short, here was a very smart guy who was simply repeating a mantra that the medical malpractice insurance companies and his various professional associations were drumming into his head. He was not applying the rigorous scientific and logical process that he is fully capable of doing. Solve his 9 issues and you go a long way to reducing malpractice claims. Reforming malpractice law to the detriment of the patient makes administrators feel like they've "done something" but doesn't do anything to make health care better.

Ben Glass is a medical malpractice attorney in Virginia. He is the author of numerous consumer books including "Why Most Malpractice Victims Never Recover a Dime" and "The Truth About Lawyer Advertising."

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