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Show 8S Sdnday, February 2, 1986 The Salt Lake Tribune, Doctors claim lawyers contingency fees are to blame for increase in malpractice insurance rates , lawsuits If It's difficult to EDITOR'S NOTE meosure lust how widespread mediIs In the United cal molproctlce States, there are ample figures to show that the number of lawsuits Is spiraling upward. Has the lawsuit become the pot of gold of the American dream? by Sid Moody I; Associated Press Writer Last of three articles. IN BETWEEN DRIVES AND putts, a golfer in New Jersey tells a playing partner, a doctor, about a physical complaint. That doctor suggests he see another doctor. The golfer does, finds the results unsatisfactory and sues the second doctor for malpractice. And for good measure, he sues his former playing partner, too. Golf is a game already beset with enough sand traps without auJing another hazard. But its only par for suing the hand that heals. The American Medical Association says 3 percent of its members were sued for malpractice in 1978. In 1983, 16 percent were. Premiums for malpractice insurance flew past $2 billion this year. Neurosurgeons on Long Island pay more than $100,000 a year for insurance. This year insurance companies will pay more than $2 billion in lawsuit claims. The Home of the Brave has become the Home of the Plaintiff. Why all this suing? Is there really that much bad medicine in the United States? No one denies it exists. A physician in Kentucky was found to be diagnosing patients on the basis of the moons of Saturn. A hospital in New York was fined $4,000 for allowing a blind surgeon to operate. He had said he knew his way around the human body by heart. A doctor in Illinois who had been sued 13 times for malpractice was ordered by a jury to pay $9 million to a woman after plastic surgery on her nose left her mute and a quadraplegic. California doctors lost a $5 million suit, later reduced to one-fift- I I DRAINS CLEARED I I $27 Small Drain $37 Large Drains I I I 3 or Larger WITH THIS AD Lownt Prices 7 24 DAYS HOURS SAG GC0TE3 DRAIN AND SEWER SERVICE 943-409- 4 I I I Ml Wort Guaranteed 12 veniremen tried and true are sometimes depicted as deciding with their hearts and failing jury, who to realize that the costs of their judgments inflate the cost of health care. A jury will award a much higher award in a malpractice case than for a similar injury in an automobile accident, says Jim Snyder, a spokesman for the St. Paul Fire and Marine Insurance Companies, despite the name the nations largest commfcial malpractice carrier. This seems to two-thir- 9 laei $255,000 by a judge, after they took out a patient's good kidney instead of the one with the cancer. But generalized statistics on malpractice are hard to come by. A study at Bostons Peter Brent Brigham Hospital in 1981 said that of 5,612 surgical cases that year 36 had adverse outcomes due to error. Nine years ago a survey by the old Department of Health, Education and Welfare reported that 3.6 percent of patients in hospitals suffered some form of injury and 14.5 percent of them were due to negligence. A confidential study by the University of Minnesota reof portedly found that malpractice claims against obstetricians and gynecologists appear to involve negligence or substandard practice. On the other hand, doctors and hospitals win 80 percent of the lawsuits that get to a jury. THERE ARE FIGURES on the number of physicians who have been disciplined, but they are an inexact indicator. In 1983, of New Yorks 42,063 doctors, 21 received disciplinary action. Nationwide that same year, 563 physicians had their licenses revoked, according to Public Citizen, a Ralph Nader affiliate. The next year 255 did, according to a survey by the New York Times this out of almost 400,000 doctors in the country. Enforcement of medical standards by state boards exists, but has trouble crossing state lines. The Federation of State Medical Boards, which is meant to be a clearing house for information on doctor performance, has a staff of only 13. The Veterans Administrah of tion, which employs the nations physicians, finds that when it cracks down on a doctor, the physician is apt to go somewhere else and open a private practice. Doctors in trouble in one state move to another. Their past records have a more difficult time keeping up. In the past, policers of the medical profession have run into the gauze curtain behind which doctors have, if not protected their own, punished the transgressor without calling in outside agencies. One reason for this reticence is understandable. When a New Jersey hospital said it was going to suspend one doctors privileges, he threatened to sue the whole staff for libel. ASSESSING MALPRACTICE nationwide is almost impossible, too, because of the great variety of medical standards. One would scarcely expect the same degree of expertise in heart surgery in ru-- I ral Nevada that one would in the world famous clinics of Houston. Whatever, says Dr. James Todd, a vice president of the AMA and himself a surger., There is too much incompetence and negli- gence in the medical profession. We dont define it like the neys. They call it gross and harm-- I ful. No doctor is going to harm his patient intentionally. But he may not always have the information. I I ! 'In Britain they accept that life has risks says Dr. James Todd, executive vice president of the American Medical Association. Here we have the me generation. Where we want a risk-fre- e It may be 3 a m., and he makes a bad decision. Others may make a good decision but don't Document it against possible suit. Others may be beyond their training. An anesthetist goes out of the operating room for 30 seconds, and in those 30 seconds all hell breaks loose. The answer, says Naders Public Citizen, is better doctor discipline, not a limit on jury awards or lawyers fees, some of the tort reforms passed in a variety of states. It is time for the medical profession to give more than lip service to the weeding out of bad apples. Scott Baldwin, head of the Trial Lawyers Association of America, concurs. He cites as an example a Florida study that indicated less than 1 percent of the doctors there account for 24 percent of the malpractice claims paid. Patient negligence also plays a role, albeit an unquantifiable one, in the amount r ' malpractice. Take t ,ie v uman who expects a perfect baby, then goes out and drinks and takes Jrugs and later sues for birth defects, says Justic N. Tierney, president of Norcal Mutual Insurance Co., a doctor-owne- d carrier in San Francisco. It is difficult to assess a doctors competence when his patients dont heed his advice. The best hope for enforcing standards lies with the doctor-owne- d insurance companies, Todd thinks. These bedpan mutuals came into existence 10 years ago after private insurance companies by the dozens stopped writing malpractice policies in the onset of a lawsuit toot that has now become a binge. Doctor-owne- d companies now insure about half of the nations physicians. If you really want to get a handle on malpractice, says Todd, make the doctor companies a monopoly. Theyd screen out the bad ones. Theyd make doctors keep records so a guy couldnt shop around from one insurer to another. They'd police their pcrficyhold-er- s because the money for claims would be coming out of their own company. DOCTOR COMPETENCE ASIDE, another favorite whipping boy in the malpractice battle is the imply a punitive aspect against the medical profession for its mistakes. Our jurors have to understand that Marcus Welby is not our standard of medical care, understand that not everyone gets well from illness, John C. Shepherd, president of the American Bar Association, said earlier this year. Dissenters from this view include Mark Levy, attorney for a child who died after an overdose of saline solution at the National Institute of Health in Bethesda, Md. Doctors are human. They make mistakes. They should pay for them just like everybody else. Medicine today has become a business, and these jury awards are business consequences, says Mark Reinhardt, a malpractice lawyer in St. Paul, Minn. Reading a jurors mind is an inexact science. Consider that juries are apt to give twice as much to a malpractice victim who survives than to someone malpractice has killed. BUT A JUROR WAS PROBABLY speaking for more than himself when he told the magazine Medical Economics after a malpractice case: Whether we awarded $50 or $50 million, it wouldnt have brought the patient back. We werent trying to punish anyone, just to right a wrong as far as that was possible. Another part of the courtroom is also a factor in the bench the high cost of malpractice. Our legal system is one of law, precedent, of judge-mad- e says Mark Levy of the Insurance Information Institute in New York. Ten years ago a judges decision broadened the definition of informed consent. That case, vs. Spence, accepted the principle of the patients informed consent, what a reasonable patient would want to know, instead of what it had been, what a reasonable doctor would want to tell him, says Ken Heland of the American College of Obstetricians and Gynecologists in Washington, D.C. There was a direct expansion throughout the U.S. of informed consent suits. It is now the fourth most contested issue in malpractice cases. Changes in abortion law opened the door to wrongful life suits. The very technology of medi-Se- e Column 1 Cen-terbu- S-- 9, |
