Words by Nelson Miller
Malpractice. No one likes accountability.
Actually, doctors work closely with lawyers on many things.
Lawyers help doctors form their practices as professional corporations. They help doctors lease their offices, govern their employees, contract with suppliers, comply with federal regulations, and protect their state licenses. Lawyers help doctors collect unpaid fees from their patients.
They write wills for doctors and close on homes for doctors. Lawyers structure the public or private finances for the hospitals on which doctors depend. Doctors would be lost without lawyers, just as lawyers would be, well, dead or diseased without doctors.
What some doctors and medical associations object to are not really lawyers but the law, particularly malpractice law. When a motor-vehicle driver is careless and causes serious injury, the driver has liability (and usually insurance) to pay for the injury.
The same liability holds true for homeowners, shop owners, manufacturers, and service providers-and doctors. Malpractice law is the same private law of care that applies to all of us. We simply call it malpractice (we also call it professional negligence) because doctors have special training against which we judge their conduct, rather than a general standard of reasonable care that we all follow.
The unique challenge that doctors face is that patients are often already sick when they see a doctor.
Even without the doctor doing anything wrong, a sick patient can have a very bad outcome. In fact, even if the doctor does everything exactly right by the book, patients can still have very bad outcomes. Disease and death can be difficult things even when natural rather than human-caused.
Some patients and their family members blame doctors, particularly when the doctor has not had the time, taken the time, or had or exercised the skill, to explain things to the patient and family in an appropriately sympathetic manner. Poor bedside manner is one reason why doctors face complaints.
Malpractice lawyers spend a lot of time explaining to injured patients just what happened, when the doctor refused or was unable to give an explanation.
An even bigger challenge that doctors face is that some treatments carry serious risks of injuring the patient even when the doctor or other treatment providers do everything right.
Surgical procedures, chemotherapy, radiation treatment, prescription drugs, and even physical therapy can all present risk Of injury in themselves, never mind the underlying disease they are meant to address. The medical field calls treatment-caused injury iatrogenic injury, which remains a real concern for the medical field. The key for doctors is to inform their patients of those risks before the patient decides to accept the treatment.
Malpractice lawyers spend a lot of time explaining to injured patients that the injury was due to an unavoidable risk of the treatment, not anything that the doctor did wrong.
Studies have shown that the incidence of malpractice may be higher than the public generally thinks. The Institute of Medicine reported an estimate of up to 98,000 U.S. hospital deaths due to mistakes every year. The Office of Inspector General for Health and Human Services reported an estimate of 180,000 U.S. hospital deaths of Medicare patients alone due to bad care.
A third report by a patient advocacy organization estimated 210,000 to 440,000 preventable U.S. hospital deaths every year, which would make it the third leading cause of death after heart disease and cancer.
Studies also show that a small percentage of doctors is responsible for a large percentage of the malpractice cases. As is probably true in every trade or profession, a few incompetent practitioners make for a large number of bad outcomes. States require doctors to report malpractice judgments and settlements for review by licensing officials.
Despite the higher incidence of malpractice, the number of malpractice lawsuits may be lower than the public thinks. Studies suggest that a small fraction of those whom doctor malpractice injures actually sue. Harvard School of Public Health researchers found that most malpractice cases involve serious physical medical injury, not nuisance suits, and that most of the time the juries and insurance companies are getting it right, defeating the meritless claims while paying the meritorious claims.
Statistics also show that doctors generally do better in malpractice trials than you or I would do as defendants in motor-vehicle-crash or other liability cases. People tend to like their doctor. Jurors respect doctors and their considerable training and expertise.
Suing a doctor and winning is not easy, in part because of the high respect in which we hold doctors and in part because of the substantial resources that doctors and hospitals have to defend themselves against lawsuits by their patients.
Doctors also already enjoy substantial legal advantages in some states that other defendants do not share.
Medical-malpractice laws in some states require that you tell a doctor that you intend to sue six months before you actually do so.
Procedural rules require lawyers to file another doctor’s affidavit confirming the malpractice, when they file the complaint.
Evidence rules limit the experts who may testify against a doctor to other practicing doctors, making it hard for some patients to find qualified expert witnesses.
So on the whole, doctors have less reason to complain than they may suspect. Oh, and lawyers face the same malpractice liability as doctors.
Next time your doctor complains, tell your doctor that if a lawyer screws up an important transaction for the doctor, then the doctor can sue.
Turnaround is fair play.
To read more from Nelson Miller, check out his book Top 100 Questions Friends & Family Ask a Lawyer on Amazon.
The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.
