Doctors are talented, but so are lawyers

March 4, 2005

Editor's note: The following letters were sent in response to the diagnosticimaging.com Hot Button question: Do you believe there needs to be a national solution to the medical malpractice crisis? If so, should it be in the form of California-style limits on payments for pain and suffering, or should there be another approach?

Editor's note: The following letters were sent in response to the diagnosticimaging.com Hot Button question: Do you believe there needs to be a national solution to the medical malpractice crisis? If so, should it be in the form of California-style limits on payments for pain and suffering, or should there be another approach?

I feel that our physicians are the best qualified and motivated on the planet. The current money-based system not only demeans them but blunts their ability to treat me. "Pain and suffering" awards are not bad, but the concept has been perverted by the superior work of attorneys. The simple fact is that in addition to the best doctors, we have the most talented lawyers-and they are winning!

If the idea is to winnow out medical miscreants, we are cutting too deep. We don't reward the saving of lives, but we impose draconian penalties on insurance companies-not the doctors. If I get mugged on the street, the judge doesn't charge the thug's insurance company; he throws the bum in jail! Maybe the answer is to transfer the actions from civil to criminal court.

I am worried that the limitation of pain and suffering would hurt the very few who really deserve compensation while unfairly rewarding the majority of litigants who make a business of suing doctors.

-Tom Mariner, Vice President, Quantum Medical Imaging, Ronkonkoma, NY

Award limits thwart legitimate claims

As a business consultant to the medical profession, I am well aware of the impact that soaring malpractice premiums have on the practice of medicine. In Maryland, for example, I can't imagine how ob/gyn services will continue in the face of $160,000/year premiums. I believe, however, that a middle ground is needed between states like Maryland and California. My belief stems from personal experience in California. My daughter was born with a birth injury that was clearly the fault of the obstetrician. I knew it, the nurse knew it, and four malpractice attorneys who reviewed the medical record stated that we had a case.

None of the attorneys was willing to take the case, however, given the $250,000 limit (a figure that was established in the 1970s, by the way), and the fact that the award (if we won the case) would be paid out over 80 years, the expected lifetime of the injured. In other words, the best we could hope for was an annual check of $3125. At an 8% interest factor, that equates to a present value of $39,000. No attorney would take that case, given the minimal fees that could be earned.

I know that I am not alone in experiencing the far too one-sided nature of California's malpractice limits. So, although it's clear that something has to be done, the rights of the patients must be kept in mind, and attorneys' "greed" should not be regarded as a given.

In my opinion, a national approach is needed to level the playing field and generate some consistency in medical practice expense and physician compensation patterns around the country.

-Dave Robeson, San Francisco, CA, and Annapolis, MD

Solution must come at the national level

Florida just passed three measures. One limits attorney fees, another takes away the license of a doctor with three malpractice judgments, and a third opens records of "adverse" medical incidents to the public. I am curious as to exactly how they will "limit" attorney fees and whether high risk specialties such as neurosurgery, ob/gyn, and others will leave this state and leave it a "medical wasteland."

Lawyers and insurance companies are killing us. The solution has to be at the federal level, as President Bush is currently attempting. Of course the lawyer lobby claims there is no problem or that the problem is with the insurance companies and bad doctors.

Michael Capek, M.D., Mid-Columbia Medical Center, The Dalles, OR

Multiple strategies can control malpractice

A reasonable and necessary first step to a long-term solution to the malpractice problem is MICRA (Medical Injury Compensation Reform Act)-type legislation, which has had 30 years of "proof" of its effectiveness. It is not true that insurance reform in California ever helped the problem at all. Insurance reform never denied any rate increases until 2003, and even then it only slightly decreased one request. This bogus info is put forth by trial lawyers to scapegoat the insurance industry and obfuscate the issue.

However, a real and lasting reform will come in the form of "medical courts" where the jury is removed from the majority of cases, as advocated by Philip Howard of Common Good, a bipartisan organization looking to return common sense to our legal system. Please go to www.cgood.org for more details.

I am a diagnostic radiologist in private practice since 1987. I do believe there needs to be a national solution to the medmal crisis, and it should be based on the California model that has been shown to hold down malpractice rates. But this is only a stopgap measure until a more permanent solution is found. A permanent solution needs to take the form of a medical court, where capricious juries are largely out of the system, in order to provide consistency of judgments and rulings so that doctors and patients can have faith in the system. Our present system fails to identify and compensate most victims of medical errors, and yet the majority of lawsuits against physicians show that they did nothing wrong.

The costs of the present "shame and blame" system are enormous, both administratively and medically. An unfortunate result of our present system is the cost of "defensive medicine," with doctors ordering ever more tests and studies in an effort to achieve the elusive perfection in diagnosis and treatment, by some estimates up to $100 billion a year.

Thomas D. Kaminski, M.D., Warren, OH

Independent panel could screen out nuisance cases

The litigation lottery is alive in well in the US. We all know that some lawsuits or threats of suits are just looking for the payoff. The "sympathy card" is also played heavily by plaintiff attorneys and often results in a settlement when no malpractice has occurred. But there are some legitimate malpractice cases where the plaintiff deserves compensation. We need a method to weed out the nuisance cases without limiting the compensation for patients who were harmed.

I would propose an independent panel of physicians, lawyers, nurses, lay representatives, and hospital representatives to review all cases. This panel would need to be vested with the authority to decide whether a case has merit or not and not just be set up as a fishing expedition for the plaintiff attorneys. A case found to have merit could be sent to arbitration or allowed to go on to litigation. A case found to be without merit would be dismissed or might be appealed to a second panel, whose decision would be final. The panel representatives must be unbiased and have no financial gain from any decision made by the panel.

-Judy E. Borland, M.D., Emergency Department Medical Director, St. Joseph's Mercy Health Center, Hot Springs, AR