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| The Malpractice Mess | | Date Created: Nov 09, 2005, 09:17 PM |
 The latest issue of The New Yorker (Nov 14, 2005) has a worthwhile article by Atul Gawande, the author of Complications: A Surgeon's Notes on an Imperfect Science. Gawande is sort of like Michael Crichton. He writes as well as he, presumably, doctors. However, Gawande is still practicing and is an assistant professor of surgery at Harvard.
The article is called "The Malpractice Mess -- Who pays the price when patients sue doctors". It's not available online as far as I can tell but a New Yorker Q&A can be found here. I don't know where he comes up with malpractice costs coming in at 1% of doctors' expenses though.
Gawande is a considered thinker and a good writer. He reminds me of older British doctors like Theodore Dalrymple and will probably become a philosopher/doctor if he keeps it up. As a fellow surgeon, I've got to cut Gawande some slack on the issue of our US tort legal system that includes the malpractice mess. He tries to strike a reasoned balance as a physician who has already run into the system (as an early medical student) and who has interviewed many doctors and lawyers. There's even an incongrous paragraph that starts out "The one defense of our malpractice system is that it has civilized the passions that arise when a doctor has done a devastating wrong...it gives people with the most heartbreaking injuries a means to fight."
On the other hand he does quote a doctor saying, "But, if you're damaged, you're damaged. If we screw up, I think we should eat it." Gawande says, "This is our situation in medicine, and litigation has proved to be a singularly unsatisfactory solution."
Overall though, Gawande strikes me as young, somewhat naive, and doesn't seem to understand the real problem with the malpractice system although he dances all around it. His solution is a system that was developed for people who have been injured by vaccines but without ruining the vaccine developers and manufacturers by avaricious plaintiff attorneys. This type of no-fault insurance is something I've discussed for years. It's like workmen's compensation is for injuries on the job.
Fortunately Gawande realizes that a no-fault system for all medical mishaps would degenerate like workman's comp has and would quickly become ridiculously expensive or harsh and arbitrary (not to mention a political football).
Gawande also acknowledges the problems with trying to reform the system by capping and federalizing it. He might be able to see the answer if he'd look at other countries (which he does in the Q&A but still doesn't get it). The answer is to take the financial incentive out of filing malpractice suits. If courts got to decide which cases from plaintiffs have merit and get advice from experts who are volunteers or low paid (like jurors) and avoid all jury trials and contingency fees, we would quickly see which cases are justified and at a reasonable compensation. Lawyers would still get paid for their work but only on a per hour basis. This is the way we handle criminal defense. It's not perfect but it's not easily abused like the power plaintiff attorneys currently have. A separate system should be used to pursue bad doctors. |
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