New approach is needed for health care-related injuries

LETTER — Posted Oct. 3, 2011

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Regarding "Most doctors face lawsuits, but few lose them" (Article, Aug. 29): Concerning your article on The New England Journal of Medicine Aug. 18 study of medical liability claims, the following understandings need to be considered:

Virtually all doctors named in lawsuits end up losing. Even the 75% to 80% majority who are not found to be negligent face severe costs, which include: loss of market share, increased liability premiums, personal and family stress, out-of-pocket expenses and time, and additional repercussions from employers, patients and colleagues.

The only doctors named in malpractice actions who may break even are those very few who successfully initiate and win lawsuits against the parties and attorneys who bring frivolous suits against them. The rules, both official and unofficial, for bringing and winning a legal malpractice action are far more difficult than those governing a medical malpractice lawsuit.

The results of the NEJM study have been common knowledge for the past few decades. That about 78% of actions against physicians result in findings of no negligence points out an error rate in the range of 75% to 80% in the application of tort law to the medical arena regarding provision of health care services. Such an error rate would be unthinkable and unacceptable in any other area of health care delivery.

There are two root causes of the failure of tort law to achieve its two main goals of 1) appropriate and timely reimbursement for injuries sustained by individuals and families, and 2) overall decreased rates of substandard care provision.

First, tort law is based upon an adversarial ethic, while medicine is founded on a cooperative ethic. The adversarial approach calls for full and forceful advocacy of the strengths of one's position and hiding of one's weaknesses. The cooperative ethic calls for full disclosure of all dimensions of one's position in a search for the full truth.

The only situation in which tort law will come to a correct decision based on the full truth is where there are only two sides to an issue and where adversarial equipoise exists. This is rarely the case in medicine or in the courtroom.

Second, the tort law approach to a problem is based on linear analysis. Medicine approaches situations from a systems-thinking approach. The former severely restricts admission of relevant facts. The latter is more effective in taking into consideration a full spectrum of evidence, including the consideration of unintended consequences.

Secondary effects and externalities often weigh more heavily upon ultimate outcomes than do anticipated intended outcomes. Access to quality care for patients is diminished by linear analytical thinking.

What is called for is a new approach to health care-related injuries. Specialty health courts are the only reasonable viable alternative to our current conundrum. Such courts should be based on national procedural and substantive standards, headed by judges learned in medicine and law, served by true expert witnesses independent of the parties to the case, and include separation of the determination of negligence from the determination of liability and liability assignments in each case.

As a NEJM study co-author of a related piece at the end of your article, I think it is time to stop patching portholes in the Titanic. We need to disembark from that ship and board a more reliable means of transportation in order to provide reasonable restitution for harms sustained and to better serve the public interest in improved access to quality care.

Dan F. Kopen, MD, JD, Forty Fort, Pa.

Editor's note: The article cited appeared online only at amednews.com.

Note: This item originally appeared at http://www.ama-assn.org/amednews/2011/10/03/edlt1003.htm.

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