Legal ethics and medical ethics are "as incompatible as oil and water"
LETTER — Posted Nov. 21, 2005
Regarding "Global look at tort struggles offers glimpse of reform" (Article, Oct. 10): Looking at other countries' experiences in dealing with medical liability is important.
It is interesting, but not surprising, that those countries that do not depend on adversarial litigation as their primary method of dealing with liability have lesser problems with insurance than those that do.
Clearly, in medicine, the adversarial process that drives the tort system is out of place in most instances. This is something that doctors are reluctant to declare publicly for fear of appearing self-righteous. Yet it is obvious, as experience has shown that legal ethics and medical ethics are diametrically opposed and cannot ever really find enough common ground to grind out a reasonable solution that pleases both sides.
Medicine's ethics are based on empathy and science and balancing the two to relieve suffering and prevent disease. On the other hand, legal ethics are grounded in argument and adversarialism. Win at all costs, even if the truth somehow gets twisted and deformed in the litigation process, is the trial lawyers' mantra.
Trying to reconcile these two opposing philosophies only broadens the schism that already divides the two professions. They are as incompatible as oil and water.
Looking to other countries' experiences makes good sense. Although one can argue that in countries where administrative procedures are used in place of the tort system, the people are less litigious and the health care system is government-sponsored, that is no reason to consider administrative compensation systems as poor choices for the United States.
The AMA would be wise to continue pursuing options other than caps on pain and suffering. Taking medical liability out of the courtroom altogether, away from the perverse incentives that feed it, like contingency fees tied to prospects of multimillion-dollar payouts, extortion-like procedures that force innocent doctors to settle and medical experts who are tempted to act as hired guns if the price is right, is an idea whose time has come.
Edward J. Volpintesta, MD, Bethel, Conn.
Note: This item originally appeared at http://www.ama-assn.org/amednews/2005/11/21/edlt1121.htm.