We are, as a nation and perhaps a planet, at a cross-road in medicine.

Since the beginning of the 17th century, and until about 1960, physicians were deeply respected avatars of knowledge, social engineering, and the exercise of political power. Their influence extended into most areas of society: health, criminology, demographics, and military. Everything from the design of water/wastewater systems to the upbringing of the new working generation was influenced by medical experts, whose values on the sanctity of life, the centrality of hygiene, the abnegation of aging and the fending of death impregnated society with a vision of success and propriety critical to the development of our capitalism. Rightly so.

Yet, starting in the 1960’s, a few critically important forces began to undermine physicians’ central role in the planning and development of society. First, the failure to effectively mitigate post-war socio-medical issues created enormous frustration through Vietnam-era veterans, and governmental medico-structures were unable to deliver acceptable solutions to post-traumatic stress disorders, “mutilés de la guerre” generally, and Agent Orange. Next, the great abortion debate arising in the 1970’s pitted most physicians against a powerful enemy: the Catholic Church and an invigorated primary Christian movement, which – counting Protestants – account for about 84% of the U.S. population. Third, the birth of the AIDS-HIV epidemic in the 1980’s, and our medico-pharmacological inability to control or resolve it for over a decade shook the world’s faith in the conjoined medical-pharmaceutical industry. Finally, the 1999 Institute of Medicine report – “To Err Is Human” – was the icing on the decaying cake of medical respect.

Two intersecting issues have accelerated the decline of physician respect. First, what I would call “the sickening” of the American (U.S.) population. Second, the inability of more and more expensive technologies to actually help physicians in their quest for differential diagnoses.

The first issue has two key portions. Portion “A” is – simply – dietary and drug-type issues. With 35% of the U.S. population actually obese, and 74% actually fat, expanding fat problems make operations, hospital stays, and health costs a never-ending skyrocket. As one surgeon told me, “The fat on the outside reflects fat on the inside. Every organ, every vesicle, every internal structure is encased in fat. You can barely figure out what to operate on.” Portion “B” is worse: 20% of our population are alcoholics, drug addicts, or prescription drug abusers. 20% or more use tobacco. We consume 6.5 oz. of sugar daily, mostly in soft drinks, and watch about 4.5 hours of TV daily (even children ages 2 to 10). Our view of life, of health, of enjoyment, is conditioned by advertising and purchasing ability. It is no wonder that we are debt-ridden, and unable to work effectively. We are fat, ill-educated, addicted and lazy. It’s a bad prognosis.

The second issue is equally disturbing. Despite the tremendous increases in sophisticated imaging technology, there is no significant decline in bad outcomes. The cost of this technology is huge, and is a reflection of “defensive” medicine. More cake icing: Patients do not want to return for additional physician reviews, and so the rate of hospital re-admissions is over 20% – for the same or related problem. The need for doctors to “get paid” by listing one of a group of several “differential diagnoses” commits the physician – via a process called “analytic anchoring” – to a potentially wrong, if not life-threatening, mis-diagnosis.

Enter children. It has never been safer for a patient to be delivered of a child, and never in history more dangerous for a doctor. Save for a very few exquisitely-managed hospital “L&D” (labor and delivery) departments, neonatal injuries account for 75% of the cost of obstetrical malpractice insurance. Regardless of the extent of the injury, any neonatal injury will likely result in a lawsuit. With 49% of our pregnancies both unplanned and unwanted, it is a relatively predictable outcome: birth problem for mother or child = lawsuit. A lawsuit is a way to assure that the unwanted child has some available funding for life’s future.

Hence, our view that children are the nation’s new lottery ticket.

While it is true that physicians “win” jury-trial lawsuits 80-85% of the time, the vast majority of lawsuits are settled long before trial, and frequently at a significant fraction of the physician’s policy-limits (typically $1,000,000 for obstetricians, for example). Both insurance companies and physicians fear trials, because the hundreds of hours and hundreds of thousands of dollars spent on trial preparation are unaccounted for, and largely wasted.

Most victories are pyrrhic, for patient, physician, insurer, and court systems. Further, the tax-payer shoulders a hefty portion. There is no victory in the courtroom. Laws in almost all states are so organized that an insurance company which – in good faith – defends a physician (most want to be defended, most think they acted properly) will suffer potential millions of dollars of excess “bad faith” losses. The losses cripple insurers and drive settlements, increase malpractice premiums, regardless of physician correctness.

“To be named is to lose.” Naming is easy: 48,000 lawyers enter law-school annually; 18,000 doctors. But producing a personal injury lawyer takes three years. Developing a doctor takes no less than seven.

There is no happy solution in sight. If Americans could commit to healthier eating, just a little exercise, and fewer tobacco, drug and alcohol panaceas for their depression and despair (clinically, 5% or more of us are depressed; probably 20% are largely, simply, unhappy), they would enter the hospital less frequently and, once there, experience easier surgery and exit with a stronger and better prognosis for rapid healing.

In short, we have destroyed the key relationship between doctors and patients: the faith and trust that engenders the placebo effect. Most physicians (if we can still believe them) will tell you that the placebo effect accounts for 50% or more or all healing. Call it faith, if you will, and surely Christ did, and was recordably an impressive healer, if the record is correct.

Faith in the healer requires returning to a world in which physicians are trusted, believed, and respected. We have our doubts about this possible eventuality.

If it happens, expect that the costs of medicine will halve. And the value of your child’s lottery ticket status will decline as well.

Sic transit gloria mundi.

Eugene Rosov, Pres.
Pediatricians Ins. RRG of America, Inc.

But not by the person they hurt…

Classic! The spawn of Satan finally admits he serves but one master – not the truth, but rather the meal ticket! Way to go Matt. You are a fine upstanding member of society with much to add to the whole…

How much expense? You have a habit of making blanket statements with little factual support. And what do you mean “determining injuries”? Do you mean damages?

“De minimis injuries should not be compensated. This concept goes hand in hand with the “loser pays” doctrine. ”

Those two concepts don’t go hand in hand in the least. And, given the cost involved in pursuing a med mal action, minimal injuries typically don’t result in filing. That will change with most of your “solutions”.

“A roster of several experts should be provided to litigants and to the court, and a panel of several experts should be chosen.”

Why do we need experts to decide the noneconomic value of a lost arm? Seems like more expense when we already have a neutral arbiter in place.

“Only in criminal matters does the state determine punishment.”

This is incorrect, per usual. The jury or judge does the sentencing in criminal matters. How can one make so many recommendations for change in a system they know so little about?

If this is true, how come there isn’t LESS defensive medicine in states where doctors have the civil liability protections they seek?

It seems if your statement, one you repeat often, were true, it would be easily provable by looking at a state like California, which has had your protections for three decades. The fact that you cannot point to any actual proof that there is less defensive medicine in these states (in fact a recent look at Texas showed exactly the opposite) makes it seems that your statement is a recitation of a faith-based belief, rather than one based on objective truth. Which is fine, of course.

2. Parties injured in and by the medical system should be compensated for their losses.
Wrong. There has to be negligence involved. See #1 above. Same problem applies.

3. Parties who are not injured should not be compensated.
Goes without saying.

4. Compensation should be available to folks of any means and severity of loss.
Agreed within reason. At some point we’ll have to say that your hurt feelings or your surgical site that didn’t heal perfectly are not compensable. De minimis injuries should not be compensated. This concept goes hand in hand with the “loser pays” doctrine. Litigants would have to make a value judgment whether it is worth pursuing compensation (and a potential financial loss) for small injuries.

5. An impartial actuary, an employee of the courts, should determine losses.
Power corrupts. Absolute power corrupts absolutely. No one person should make this decision. A roster of several experts should be provided to litigants and to the court, and a panel of several experts should be chosen. I like the idea of expert “hot tubbing.”

6. Punishment is the purview of the State, not the injured party.
“Punishment” in civil matters is meted out by juries. Only in criminal matters does the state determine punishment. I’m not opposed to a worker’s compensation type of model for providing relief to negligently injured patients, but then we’d have to do away with the National Practitioner Data Bank.

Can we agree on a few things?

Maintaining respect for the court system is of paramount importance and is to govern all that follows:

1. Determination of injury should be stable across the jurisdictions through which the person might present.
2. Parties injured in and by the medical system should be compensated for their losses.
3. Parties who are not injured should not be compensated.
4. Compensation should be available to folks of any means and severity of loss.
5. An impartial actuary, an employee of the courts, should determine losses.
6. Punishment is the purview of the State, not the injured party.