Playing Dominoes with Malpractice Premiums, Part II


 
 

Howard Rodenberg, MD, MPH, Dip(FM) | | Friday, December 7, 2007


In the first part of this essay, I noted the practical implications for EMS and trauma care of a failure to resolve the nation's malpractice crisis. Like most issues in medicine, a host of deeper, more visceral feelings affect this dispute, and it would belittle the debate if those issues remained hidden.

Let's start with the basics. There's a perception among both policymakers and the general public that doctors do pretty well for themselves. (I won't dispute that one; we do get paid a lot of money to do what we do.) The simplified form of the argument goes something like this: Given their high incomes and comfortable lifestyles, why shouldn't all doctors be required to provide care to anyone who needs it? And why should they be able to withhold their services based on a theoretical risk of being sued for malpractice? After all, if they were good doctors in the first place, they wouldn't worry about a suit.

I absolutely believe that the vast majority of doctors understand, accept and welcome their obligation to help those in need regardless of financial status. It's the rare physician who did not get into medicine to serve others. Indeed, this ethos is manifested in the entire concept of the call schedule and the fact that most hospitals mandate that staff physicians participate in that scheme. I still recall the words of a bombastic cardiologist who railed against a fellow physician for declining a consult because the patient couldn't pay. "Ten percent of all we do in medicine ought to be for free," he pronounced. "Nobody in medicine's going to starve." (It might be of interest to note that it's estimated the average ED physician in Florida literally gives away more than $200,000 in care every year for which he or she is never reimbursed. And yes, that's a lot more than I make, but I still eat.)

However, the fact that we have an obligation to care for the poor does not mean we are required to mortgage our careers to meet this need (even physicians employed in public health get paid). I've learned that neurosurgeons in our area "break even" on only one of every 20 trauma cases they see. You can't run a business that way, no matter how altruistic you may be. Contributing to society does not pay your rent, your office staff, your student loans and your malpractice premiums, and it doesn't take care of your family. And to be honest, I have no problem with neurosurgeons and other specialists making a good living. I have this theory that your compensation should be based on how much you get "beat up" in training, and both general surgeons and neurosurgeons top that list. Besides, when I have my head injury, I want my neurosurgeon to be happy, well fed and well rested before he goes poking his fingers in my brain.

(If you don't like the physician example, think about airline pilots. Many of them get "beat up" for years in the military; others give flying lessons to pilot wannabees in single-engine kites for eons before getting the chance to work for an airline. They fly on call for minimum wage for a few years, and then move up to the left seat in a puddle-jumper. Assuming they survive this initiation, only then do they get to fly a "real" jet. For my money, they deserve whatever they can get once they reach 35,000 feet in a very large, very fast metal tube. Especially if I'm in the tube.)

The risk of being sued for providing trauma care is more than theoretical. Trauma care is inherently high risk. Patients arrive in critical condition, and they're often under the influence of drugs or alcohol, preventing optimal evaluation. Those who survive their injuries are often left with permanent pain or disability, and a perfect cure, while universally expected, is often impossible.

But wait, there's more: Our society has endorsed a psychological construct where no problem is self-inflicted, and all ills are somebody's fault. Many patients are poorly compliant with care, and it is an unfortunate fact that trauma is welded to the legal profession (just watch late night television to see the commercials after the 1-900 numbers, of course).

Now let's look at the other side of the debate: Just as physician incomes fuel deep resentment among certain members of the public, the business of serving an adversarial, litigious population produces a complementary set of feelings among doctors. The sense of risk goes far beyond trauma victims, although it really doesn't involve patients with true emergencies. No physician I know has any problem caring for them. Granted, there may be some grumbling at 3 a.m. on the part of the specialist called in from home, but patient care gets done.

However, when seeing unfunded (and underfunded) patients who have no urgent need for care, a very intense "gut check" occurs. Not only are they perceived as often "abusing" the health-care system, but there is resentment because "our" tax dollars appear to promote and endorse this abuse. (Florida Medicaid cards are gold and platinum in color. Is that a coincidence?) Most importantly, physicians sense that many indigent patients sue at random, looking for the legal lottery ticket. They're seen as walking time bombs, and even I have to admit that in my purely subjective experience, that this is the group most likely to shout out for their lawyer in the ED, to file administrative complaints, or to threaten to sue. Given those circumstances, it can be hard to generate any enthusiasm for their care.

I truly can't think of any other profession that is required by both law and ethic to literally give away time and expertise, knowing not only that the recipient is getting service for free but that the provision of that service can jeopardize the physician's home, family and livelihood through ungrounded legal action. (I defend my reference to ungrounded action on the basis that our legal system favors settlement over litigation, and that no matter how "right" you are, it costs more to prove it in court than to take the "hit" against your name and get it over with. It's a sad state of affairs that getting sued, with all the turmoil it provokes, has become simply a cost of doing business in a "helping" profession.)

To be honest, I can't say whether this perception is fair or not. It may well be another myth that has grown into legend. But the perception is nonetheless there, and I notice that I'm on edge when I suggest that a patient who comes to the ED at 4 a.m. with a toothache that's been going on for three weeks might want to try to find a dentist. (Did I mention the allergy to everything except Demerol?) I'm waiting for the explosion to occur.

Opponents of "malpractice caps" claim that we need unlimited awards to fairly compensate patients for injuries suffered at the hands of poor providers. (I could sympathize with this if it were not for the fact that 71% of all damages collected go to attorney and court costs.) Blame for the problem has been placed on the House of Medicine, citing our inability to weed out bad eggs. In fairness, there's a bit of truth to this. Doctors, like other professionals, tend to protect their own. But let's keep the link between malpractice and competence in perspective. I've seen statistics that note every neurosurgeon in South Florida has been sued at least five times. It's hard to make the leap to the conclusion that every neurosurgeon below Interstate 4 is incompetent.

And does the fact that the average ED physician gets sued once every three years mean that all ED staff are inherently bad doctors? What about academic medicine, which employs some of the most skilled professionals in the world? They accept the most complex referrals, with the greatest risk of a bad outcome. Do lawsuits against these physicians signify incompetence? The informed observer can distinguish between a true lack of clinical capability and trying to provide care in an environment that promotes and rewards excessive litigation. Opponents of tort reform fail to display this level of insight.

The more astute critics of a cap on damages note that just as there may be a disconnect between being sued and clinical competence, there is a similar disjoint between malpractice caps and insurance rates. The theory is that even if non-economic damages are capped, without similar controls on malpractice insurance rates, premiums may stay the same or even continue to rise. I think there's a lot of validity in this point you can't fight a multifaceted war on only one front. But to insist on a total package of reform before adopting any measures at all is a stalling tactic at best, and disingenuous at the core.

What will it take to force reform of the malpractice climate? Unfortunately, I fear it will require the loss of an innocent life, of a high-profile individual or a picturesque child. It will take the death of someone prominent, a person close to a politician or a philanthropist, someone for whom the media can generate sympathy to which the public will respond. The demise of the average citizen fails to make the nightly news; and given the public perception of most trauma victims as "drunks and dirtballs," it's hard to build a case for trauma services.

As EMS providers, it is incumbent upon us to speak out regarding the mandate to preserve trauma care. (Read more on the direct link between EMS and trauma closures in Part I of this column.) As professionals, we can agree to disagree on the remedy. Reform of the medical malpractice system is but a piece of the solution. But there can be no dissent within our ranks about the need. The failure of EMS to present a united face to politicians and policy makers means that we will not only lose our trauma centers, but also the lives of those we love.


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Related Topics: Industry News, Leadership and Professionalism, Legal and Ethical, Operations and Protcols, Medical Emergencies, Trauma

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