Doctors and Lawyers Duke it Out
Second, an attorney is retained by a group of homeowners to pursue a claim against a chemical company that has, intentionally or without any real concern, dumped toxic materials over the landscape. A large number of children have developed cancer and will surely die. The attorney does nothing with the file because of simple inadvertence or because he simply doesn’t know what to do, and, when he finally files suit, the statute of limitations has expired and all claims for damages are for naught.
Third, a builder adds a extra room to an existing home. Either to save money or simply because he was distracted, the roof to the addition is not securely installed. At the first storm, the roof flies off the extra room and all furniture in the room is severely damaged by water. Moreover, the roof lands in the yard next door, striking a child who suffers permainjury.
Finally, because he rushed into the operating room, relying on the preparation work performed by normally careful staff, or because he had been on duty at the hospital for twenty hours without a rest or break, a doctor amputates the wrong leg or fails to examine a patient carefully and misses skin cancer or, exhausted from days and evenings “on call”, makes another gross error that causes substantial injury.
In the first three examples, there is nearly universal acceptance that the pharmacist, attorney or builder should be compelled to indemnify the losses caused through negligence, carelessness, inadvertence or ignorance. In the case of a physician, however, the rules have been modified! Part of this is due to the reverence we pay physicians and part is the direct result of advertisements and lobbying by the insurance industry.
(A note of disclosure: My daughter and son-in-law are both physicians; in an earlier life, I was a practicing attorney in New York and Miami. I know all of the “lawyer” and “doctor” jokes: Why won’t a shark attack a lawyer? Professional courtesy. What’s the difference between God and a doctor? God doesn’t think He’s a doctor.)
The concept of financial compensation for injuries was a giant leap into civilized society. In the alternative there is the “Bop” theory. If I Bop you and cause harm, you have the right to Bop me, then my family retaliates and Bops you and your family and, before you know it, World War MMCV. The Bible demands that injuries be addressed, “Eye for eye, tooth for tooth.” This simply means that the recompense should be proportionate to the injuries sustained. Who is to determine the amount of recompense? The worst mechanism conceivable, except for any other: the trial jury.
Several hundreds of years ago, it was established that insurance could be procured to ensure that the negligent and incompetent would have resources with which to indemnify against loss to others. Thus, society would be protected and the injured could be made whole. The concept was never designed to protect the incompetent and grossly negligent professional from the consequences of his or her actions. And it is at this point that we address the malpractice crisis and the “war” between attorneys and doctors, a war that has been fermented by insurance companies. Both physicians and attorneys have become pawns in this war, each being forced into positions that neither can honestly justify.
Much of the hostility and fault lies with both professions. The incessant advertising by attorneys asserting that any poor result from a medical procedure is, ipso facto , malpractice and cause for suit is patently offensive. Medical results cannot be guaranteed; the practice of medicine is an “art” and, sometimes, bad things happen through no human fault. Years ago, it was deemed unethical for an attorney to advertise and, by eliminating that very beneficial rule, we have opened the door to radio and television hucksterism of the grossest kind. The respective Bar associations should reign in these shouting voices, although it is probably too late to recap the genie in the bottle..
Doctors must share the blame. According to recent medical society studies, to which most responsible attorneys will credit as accurate, the vast majority of valid malpractice claims are directed to six or seven percent of physicians. There should be more public disclosure of these error-prone or incompetent professionals and the efforts of the state of Florida are a good start. The vast majority of excellent health care professionals should be incensed over the few “bad apples”; instead they choose to ignore them and, indeed, cover for them. The “good” practitioners should be at the forefront of efforts to identify and discipline the chronically careless, incompetent or otherwise dangerous professionals.
So, too, the attitude of many health professionals show arrogance and must change. How many of us have waited an hour or more in a doctor’s office or examination room before the physician makes an appearance. By the time he or she appears, one is ready to find fault with anything that is done; a predisposition to malpractice litigation if ever there was one!
But, in my opinion, the true villains in this situation are the insurance carriers. We expect poor drivers to pay more in auto insurance premiums; we expect homes built on the shore in a flood zone to have a greater Homeowners’ insurance premium. But all physicians are billed unreasonable insurance premiums to, in effect, make up for the handful of claims caused by a handful of doctors.
It would seem that the bad physicians should have insurance premiums commensurate with the risk. If this drives out the poor and careless and negligent from his or her practice, so be it.
So we have malpractice rates going through the ceiling, doctors threatening to leave their practice, en masse , lawyers feeling unloved and abused, and insurance companies reaping their investment income and becoming wealthy enough to lobby politicians and lavish gifts to serve their parochial interests. The lobbting by insurance companies is recognized by both attorneys and physicians to be the root cause of the conflict between the professions.
Over the past years, “tort reform” has taken place in Florida and on the national level. This term is short-hand or code for placing barriers in the way of malpractice claims against one or many health care professionals. It has become far more difficult to sue a doctor; but two things have not taken place: First, malpractice insurance premiums for physicians have not measurably decreased; and, second, there has not been a noticeable improvement in behavior by the handful of error and negligent-prone physician.
Both professions share the blame and ieach must act in a proactive manner to correct the problems and not allow the insurance companies to manipulate them.
