Growing medical liability crisis drives new ethical policy

Chicago -- The AMA Council on Ethical and Judicial Affairs received an earful when it asked delegates to the Association's Annual Meeting to express their opinions on the ethical issues surrounding the medical liability crisis. CEJA members will use what they heard to draft an official AMA opinion on collective action that will go to delegates in December.

In introducing the topic at the CEJA open forum, council Chair Michael Goldrich, MD, said the medical liability crisis had altered physicians' ability to provide high-quality, evidence-based care as doctors have become risk adverse.

He said care is becoming increasingly unavailable, and some communities are being abandoned because physicians no longer can afford to work in them. In the meantime, legislators and trial lawyers seem unaware of the critical nature of the situation, he said.

"Until the last neurosurgeon leaves the state, the crisis isn't real," the New Jersey otolaryngologist said, adding that, despite this, doctors have an ethical obligation to place the patient's needs above their own.

In an interview, Dr. Goldrich called the CEJA open forum "an opening pipeline for us on issues."

In this case, however, instead of opening the issue to create something new, CEJA will amend an existing opinion that was issued in 1998.

That opinion on collective action notes that physician strikes reduce access to care, eliminate or delay necessary care, and interfere with continuity of care. As these consequences are contrary to accepted ethical behavior, physicians should refrain from using strikes as a bargaining tactic, the opinion states.

Collective activities that are aimed at ultimately improving patient care can be warranted, however, even if they create an inconvenience at the administration end of the health care system.

Dr. Goldrich said this opinion was directed at employed and unionized physicians, whereas the new version will have a broader scope.

"There's tremendous concern among the physician population to do the right thing ... and they are desperately looking for mechanisms to be heard -- mechanisms that are also ethical and pose no risk to patients," he explained. "Physicians are frustrated by the difficulty in finding a voice for tort reform which maintains care to patients as the primary focus."

Physicians from across the country and across many disciplines, however, had little difficulty voicing their opinions at the open forum.

Arkansas internist William Golden, MD, said the American College of Physicians does not believe it is ethical for doctors to engage in activities that result in denying care to patients.

If physicians attend a tort reform rally, he said, they should make sure someone can care for their patients in their absence.

Others noted that physicians are going out of business, which creates long-term or permanent obstacles in access to care, and this needs to be taken into account when making statements about the ethics of short-term lapses in access that can occur when doctors engage in political activities.

Oregon surgeon Michael Vessely, MD, said the nature of the opposition also must be taken into account.

"Trial lawyers are predators," he said. "To ask them to be reasonable is like us being water buffalo and asking the lions not to eat us."

AMA Trustee and New Jersey neurosurgeon Peter Carmel, MD, reminded delegates to think about how their actions affect the practices of other physicians. "Everyone who chooses not to provide access creates more stress on the safety net," Dr. Carmel said. "And the safety net in New Jersey is almost broken."

Delegates spoke of a need for culture change, judicial reform, holding attorneys accountable for frivolous lawsuits and the necessity to do something before "this country implodes with everyone suing everyone."

In addition to the ethical issues of the medical liability crisis, delegates also discussed how the crisis was putting a strain on specialists with on-call responsibilities and whether the AMA should maintain "HIV exceptionalism" policies or fold HIV-AIDS policies into other policies pertaining to the general treatment of infectious diseases.