Meet you by the swings in fifteen

When I first heard about the proposal before the AMA requesting an endorsement for physicians’ refusal to treat medmal attorneys, I was really, really steamed. In what way does that make anything resembling ethical sense, I thought. After long consideration (okay, medium consideration), I’ve changed my mind. Read this, then see my comments:

CHICAGO - A doctor's proposal asking the American Medical Association to endorse refusing care to attorneys involved in medical malpractice cases drew an angry response from colleagues Sunday at the annual meeting of the nation's largest physicians group.

Many doctors stood up to denounce the resolution in passionate speeches -- even after its sponsor, Dr. J. Chris Hawk, asked that it be withdrawn.

Hawk, a South Carolina surgeon, said he made the proposal to draw attention to rising medical malpractice costs. The resolution asks that the AMA tell doctors that -- except in emergencies -- it is not unethical to refuse care to plaintiffs' attorneys and their spouses.

"It expresses the frustration I have with a broken system," said Hawk. He said doctors are leaving his state or retiring early because of insurance premiums -- making it harder for patients to receive care.

Neurologist Michael Williams said although he understood Hawk's frustration, the resolution never should have been introduced because it seeks to discriminate against a group of people.

The resolution left the AMA "a really big mess to clean up," Williams said.

For years, the AMA's top legislative lobbying priority has been the medical malpractice system, and some delegates said the resolution could hurt those efforts by giving trial lawyers ammunition.

AMA committees considered more than 250 reports and resolutions Sunday. The committees will make recommendations to the group's delegates, who will begin voting Monday afternoon on policies to adopt.

Last week, the daughter of a Mississippi legislator said she was denied treatment by a plastic surgeon because her father opposes limits in damage suits against doctors.

Dr. Michael Kanosky said he referred Kimberly Banks to other plastic surgeons to have her burn scars removed because he had lobbied on the other side of the issue and saw an ethical conflict.

********************************************************
We ask a lot of our physicians. We ask them to be certain about uncertain things, to fix our bodies and our minds without consequence or tradeoffs, to undergo extensive and grueling training while being ridiculously under compensated so we can be “sure” that they’re adequately prepared to handle us. We hold them to a high standard—as well we should--but often we do it without perspective or empathy.

And when things go south, we sue them.

We sue them and demand indulgently excessive remuneration. We ask for their licenses, for money to cover additional treatment or long-term care, and for money to ease our fragile minds. Medical malpractice insurance has become so prohibitive in some states that there are shortages in some specialties. Try having a baby in Florida—Ob/Gyn malpractice insurance runs around $210,000, and there are fewer and fewer docs who are willing to continue practicing there. Independent, private practices are the hit the hardest, since they don’t have the financial backing of a hospital to support their insurance payments. In many states, the premiums can’t be spread over the year like car insurance--it’s a cash deal, upfront.

Given that, and given our current litigious climate in which more and more registered voters view plaintiffs as lucky bastards who have found a way to make an end run to a lottery jackpot of sorts, can you really blame a physician who says s/he doesn’t feel like turning the other cheek and smiling through treatment of a patient who earns a (handsome) living seeking exorbitant damages for medmal suits?

Granted, it’s a slippery damn slope, and I’m not convinced this is the path towards any meaningful, long-term solution. Who is next? What about the plaintiffs in frivolous medmal suits? What about jurors who award astronomical punitive damages to plaintiffs? Surely, each group holds a hefty corner of the responsibility bag, so are they the next groups for whom treatment is refused?

I hope there’s resolution here at some point, but I think it’s going to require two things--only one of which seems even remotely realistic, so I suppose I can reasonably foresee a partial solution.

Thing 1) We need substantial tort reform legislation and we need it now. We need it to be comprehensive, but to keep its eye on the ball and not to include a mixed bag of other access red herrings that pull voters and legislators all asunder from the real issue at hand (Texas Prop 12, I'm looking at you). I think this is possible. Not necessarily probable, but possible.

Thing 2) We need a realignment of the expectations of the masses. There are six people in each civil courtroom who wield a significantly powerful sword or responsibility in medmal cases. The jurors, pulled from a random pool of registered voters, are (often) responsible for assigning dollar value to the actual and punitive damage awards. The numbers they hand down are upheld more often than overturned, and to ignore their role in this circus is intellectually lazy. The expectation that someone should be responsible when bad things happen doesn’t stay behind on the courthouse steps. Worse, we have come to lose any distinction between “responsible” and “monetarily so.” And we have adopted a truly inane value scale for what a medical mistake is “worth.” I deeply, deeply disagree with the notion that an error in physicians’ judgment, a miscalculated treatment plan, hell--even a grievously misguided set of intentions should be rectified with ghastly sums of money. Yet I am, apparently, in the minority on that one.

Once, during my more medically-oriented days, I treated a woman’s sprained ankle in an emergency room. During my time with her, it came out that she didn’t have insurance, but it didn’t matter because she could pay cash for her treatment. Why? Her husband had been badly injured in a chemical explosion the previous year, and their settlement had been in excess of five million dollars, not including the reimbursement for medical care or workman’s compensation. She breezily told me that, since the receipt of their settlement, they had bought cars for everyone in their family and were in the process of building a new house (it was, in fact, in looking at model homes that she had tripped and sprained her ankle--I wondered out loud if she was planning to sue the builder of the homes, and she was). Though I was very sorry for her husband’s state of permanent disability as a result of the accident, I’m still not convinced such an experience warrants the instant affluence their family obtained.

If a chemical burn is worth $5M and some change, why isn’t it worth $10M? $20M? Gee, we’re really sorry this bad thing happened to you, so we’ll make you really wealthy to compensate. It’s such fuzzy logic, and it demands a sort of absolute responsibility/blame for anything we don’t like…and that’s not how it works. Still, until that mentality undergoes a big revision, I think we’ll continue to have exorbitant jury awards in civil suits.

Long-term, the refusal to treat medmal attorneys may not be the most ethically sound solution, nor may it give way to the most sustainable pattern of resolution. Still, sometimes there’s something immediate and impressive to be gained from bypassing the traditional, administrative channels of resolution and meeting your opponent out by the swings.