Saturday, November 19, 2005

And Some of My Best Friends Are Lawyers

Seems like I've been reading an awful lot of comments on other blogs lately in which the prevailing sentiment is that doctors are stupid and evil. Whenever someone has a story about some medical treatment that went wrong, usually in fertility treatment or childbirth, there are a bunch of comments insisting that the blogger should call a lawyer.

These comments leaves me feeling frustrated and a bit depressed. For the obvious reason, of course, but also because I think they illustrate a basic problem in healthcare in this country. There's this notion that if all doctors do their jobs right, everyone will be cured/get pregnant/give birth easily without drugs/have a healthy happy baby who sleeps through the night and never spits up.

There are few great doctors and a few bad doctors, and lots and lots of average doctors. But there is no doctor who will do the right thing all the time. And even when doctors do everything right, things will turn out wrong sometimes.

If things don't turn out perfectly, people often want to sue. But lawyers will not take most of these cases. Lawyers will only take the cases that will result in large monetary verdicts. These cases are the ones where someone is either killed or permanently physically damaged. The younger and cuter the patient is, the bigger the verdict.

So what does this system create? First, an environment in which doctors are afraid to admit when they have done something wrong, and therefore do not have any opportunity to teach others how to avoid mistakes. Second, a healthcare system that puts huge resources toward trying to avoid the outcomes that result in the largest awards -- efforts that are focussed on the minority of patients -- and little to no resources toward basic improvements that will benefit the majority of patients.

Take childbirth, for instance. An injured or dead newborn, whether the result of bad medical care or just bad luck, can result in an enormous jury award. The typical argument in these cases is that if the mother had received more aggressive medical care, the outcome could have been avoided. The obvious result of this is that OBs are under intense pressure to be aggressive all the time. Meaning, they quickly pressure women into induction, forceps, c-sections. They know they will not be successfully sued for bullying, but they could be sued for being gentle.

A lot of women turn to midwives because they know or sense this. Which can work ok, but midwives are also under pressure: they must quickly turn care over to the OBs if things start going south. And a doctor who suddenly has to pick up a tough case from a midwife, a doctor who doesn't know the patient or the whole story, is going to be even more aggressive than usual.

In the meantime, all of the things that can make childbirth in a hospital frightening, isolating, and frustrating are not addressed, because there's no money in it. There's no lawyer who will sue a hospital for arbitrary rules about visitors, for surly and overworked nurses, for failing to do everything possible to ensure breastfeeding success. And there's no insurance company that will reimburse hospitals for any of those things either.

I'm not defending bad doctors or crappy hospitals. I've been through my fair share of them myself, and it's awful. I do believe that sometimes suing is very appropriate. But I wish that everyone who is angry about the ways things are in healthcare right now -- and we should be angry -- would start thinking about what will actually make things better, and the answer is not to call a lawyer.


Anonymous said...

Hear, hear. Well said.
I personally love my RE, my OB, and Polly's pediatrician, as well as most of the nurses we have come into contact with.
The problem with many of these lawsuits is exactly what you say so well: they do nothing to fix the larger problem and, indeed, only make it worse. Sure there are cases when compensation is necessary for one's livelihoods, but in other cases...
I am worried about the effect on doctors in my state, infamous for its malpractice lawsuits. We need them to stay, yet they are leaving in droves because they can no longer afford their MP insurance.

Anonymous said...

Oooooh my head hurts. This is an interesting time for me to be reading this, since I am currently in the hospital with a very sick baby whose illness appears to have been the result of a monumental screw-up on our pediatrician's part (a screw-up that had our other two children very sick as babies and toddlers, too, although we only know that now in retrospect). I don't know what we're going to do. The last thing I want to do is become one of those people who contributes to the crappiness of our healthcare system through raising malpractice premiums, scaring doctors, etc. At the same time, though, I think of how my children have suffered so horribly and needlessly and I want to go find the man and kill him slowly, and since I can't do that, the thought of hurting him as much as possible through legal channels has its appeal. I just don't know.

DoctorMama said...

I wish you weren't having such a terrible time with your baby. There are certainly some crappy doctors, and doctors who make bad mistakes (though not a neat overlap between the two), and suing is appropriate sometimes. Unfortunately in your case I expect you probably can't hurt him through legal channels, unless you can prove irreparable harm -- which I hope there hasn't been? But you definitely can and should make sure that the mistake is brought to light, via complaints to the state medical board, the hospital, the hmo, etc. This will help.

Anonymous said...

Thanks for a very timely post. As a lawyer, I agree wholeheartedly with your sentiments. Doctors, just like the rest of us, are trained to do a job. Sometimes the unusual illness presents itself, but the doctor isn't negligent for not making the immediate diagnosis.

When you hear hoofbeats, you assume horses, not zebras? Is that not one of the adages followed by doctors? If you hear I am nauseated, you rightly assume the likely culprit is gastroenteritis, not menengitis (I am being simplistic, I know).

And yes, I have counselled many potential clients against lawsuits against physicians. Our society has a tendency to assume that medical treatment should have a perfect outcome, or the doctor is responsible. Adverse outcomes are a fact of life. They don't equal negligence.

I often wonder how physicans can work under this sort of pressure where patients expect nothing less than perfection.

Orange said...

I agree with what Diane said. I once saw a sleazy lawyer's ad posted in the bus. Something along the lines of (I paraphrase very loosely) "Death? Paralysis? Bad outcome? It must be somebody's fault." As if no injuries or diseases or medical situations will ever have bad outcomes unless the doctor screws up. Patently ridiculous.

DoctorMama said...

Well put, Diane. Sometimes I think people expect that medical care these days is like on Star Trek.
To be fair, it doesn't help that doctors often resist even telling patients that something went wrong. Frustrating cycle.
People actually write on their legs with Sharpies ("It's the other one!" ... not a bad idea, actually.