Why Malpractice Reform Is Needed
to Protect Doctors and Medical Care

Victor Lerch, M.D

I’m being sued for malpractice, and not for the first time. I practice in the Emergency Room— the highest of high-risk environments. People come to us with all manner of illness and injury, often made worse through their own behaviors or due to lack of timely access to the medical care system. And the number of patients, especially during these difficult economic times, just keeps getting larger.

We do the best we can for as many people as possible. The results are sometimes less than perfect. None of us likes it that way, but resources are not unlimited.

I've been sued four times in 25 years, which might seem like a lot—and maybe it is. But let's do some math.

I see about 5,000 patients a year, so on average I've been sued about once for every 30,000 patients. My first case was voluntarily dismissed by the plaintiff. The next two were judged defensible but were settled without my consent by an insurer anxious to limit its potential losses. The last one is still pending.

Let's play devil's advocate and assume that in half of those cases I did something wrong—that there is some physician better and smarter than I who could have foreseen the unexpected, and that there was an intervention available that might have altered the results.

That would be one "mistake" per 60,000 patients, an error rate of .002 percent. Would I like to have those two cases back? Of course. Is it reasonable to expect in any human endeavor, particularly one as complex and unpredictable practicing medicine, that any of us could make less than one misjudgment in 60,000 tries? Doubtful. Yet this is what we expect of our physicians.

And so we haul our doctors up for public ridicule and threaten their livelihoods with a costly process that amounts to a high stakes roll of the dice. I'd be the first one to say that bad physicians need to be sanctioned. But is a civil suit in front of a lay jury the best way to determine this? Isn't this more properly the function of the knowledgeable professionals who sit on state licensing boards?

Bad outcomes do not necessarily come from bad doctors. People get sick and die no matter what doctors do. Compensating people for their losses and disciplining bad doctors are two different things, but currently we mix those functions up together in a way that obscures the optimal resolution of either.

All of this has huge costs. Physicians want to concentrate on what they can best do for their patients, but the constant threat of being sued injects an adversarial aspect into every single encounter. Estimates vary, but my sense is that a third to a half of all tests ordered are defensive—intended more to protect the physician from 20/20 hindsight than to actually get to a diagnosis.

Think of the better things we could do with that all that money. Guarantee coverage for all without a tax increase? Divert the excess back to fixing our schools and our roads? The possibilities are as enormous as the number of dollars wasted.

But there's an even bigger issue that nobody ever talks about—access to care. Doctors who feel targeted make themselves less available for after-hours care, donate less time for charity work and are much less willing to take on the really difficult cases. This translates directly into less choice for the patient.

We desperately need a no fault system (similar to car insurance) that compensates people fairly for their actual losses—married to a separate mechanism for reliably disciplining bad doctors.

Until we take the target off physicians' backs, we'll continue to waste huge sums we can't afford on tests and treatments that do us no good, crowding out the much more important problems we could be solving with that money. In addition, we will continue to erode our choices and our access to care.

North Carolina legislators are currently considering a bill that would cap non-economic damages at $500,000 and offer some modest additional protections to ER doctors. To my mind, the proposal does not go far enough. Predictably, plaintiffs' attorneys and those whose campaigns they contribute to are fighting any changes. But without malpractice reform there can be no cost containment, and without that, we have no hope of making the current system better for doctors or their patients.

Dr. Lerch practices emergency medicine in Raleigh, North Carolina.

This article was posted on March 21, 2011..

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