Friday, May 30, 2008

Fishing Expeditions and Malpractice 

By Donald R. May

Filed As:  Health Care

One of the most feared occurrences in the life of a medical doctor is the arrival of a legal case that has been filed against him or her. Being accused of malpractice is what nightmares are made of for those of us who have practiced medicine. Perhaps the only worse event in the life of a physician is the notification of the sudden and unexpected death or illness of a close family member, a friend, or a patient.

The accusatory legal document begins with several remarks defaming the skills, education, ability, integrity, and honesty of the physician being charged. Most of these comments are exaggerations designed to attract the interest of the court, to influence future jurors, and to intimidate and dispirit the physician being sued.

Any other physicians unfortunate enough to also be so accused are addressed with the same or similar intimidating and belittling remarks. The defamed physician has essentially no recourse against these written remarks, and the law has been thus far on the side of the accusers.

Suddenly the lives of the physician and the physician’s family become a living hell. Sleep is disrupted, family fun and outings are cancelled, the joy is stripped from family life, and the joy of caring for patients is greatly diminished. Some resort to drugs, alcohol, and even suicide. This often happens to those who are excellent physicians and who have done no wrong.

Over the past three decades, I have reviewed the evidence in many malpractice cases on behalf of the defense of accused surgeons. I have watched the agonizing effects on the physicians and their families. Even if the case is dismissed, the dismissal will usually occur several months, or even years later. Even if the case is dismissed, the scars remain for the rest of the lives of those affected.

I personally know very few physicians who have encouraged their children to choose medicine as a career. A mark of quality service often is noted in family members who persist in a vocation or career that has been in their family for several generations. This includes plumbers, electricians, chefs, lawyers, morticians, farmers, and all other fields of endeavor. This has changed in medicine to the detriment of all, since each of us is or will be a patient. Most of the best and brightest students no longer compete for admission to medical schools.

Many physicians and surgeons live in fear of malpractice claims against them. To protect themselves, some have backed away from care that has a higher level of malpractice claims. Neurological surgery and obstetrics services have greatly decreased in many poor and rural areas, as the surgeons often did not have adequate backup from colleagues. The perceived risk of delivering care in those areas was simply too great.

Trial lawyers have long claimed that bogus legal claims are relatively harmless. These claims are made to fish for possible fault and a chance to earn large fees. The cost to defend a bogus claim averaged about $70,000 in 2003. The cost has gone up since then.

We look forward to additional legal reform in Texas. Our economy is solid, physicians are coming to Texas in great numbers, and common sense and old-fashioned American ingenuity often prevails. I hope what has been done in Texas with tort reform will significantly influence the legislators of other states to do the same.

• posted by Donald R. May
• 10:32 am
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