America’s HealthCare Crisis. Part III: To sue or not to sue, that is the question.

''The first thing we do, let's kill all the lawyers.'' (Shakespeare in Henry VI, part 2, Act IV, Scene II). Shakespeare's acknowledgment that the first thing any potential tyrant must do to eliminate freedom is to "kill all the lawyers" illustrates the central role lawyers have played in modern civilization, irrespective of weather that role is positive or negative.

On the positive side, the legal profession has codified laws and drafted constitutions of many countries, giving recourse to the weak and oppressed against the powerful and privileged.  The profession has played a critical role from civil rights (as exemplified in Rosa Parks Vs Alabama) to education (for example Clarence Darrow who defended Scopes for teaching evolution in Tennessee).  Even in healthcare lawyers have done the society a favor by siding with physicians against big tobacco.

On the negative side, the mercenary behavior of some lawyers has left the reputation of the field in tatters, with lawyers now occupying a status in society only a notch above bankers, stock market analysts and politicians (at least for the time being).  Few would claim that F. Lee Bailey or Johnny Cochran had anything more sublime than dollars in mind when they took up the cudgels on behalf of OJ Simpson.  Armed with the knowledge of laws that they often drafted, they can tie up businesses and individuals in a vicious legal entangles that lead to the destruction of businesses and persons.  It is therefore not surprising that a study described in Investors Business Daily concluded that lawyers constitute the only section of society that actually decreases the gross domestic product of a country.

Lawyers on the whole have done the most damage to the medical profession and ultimately to the supposed beneficiaries, the patients.  The litigation threat has affected trust between physician and patient.  Medical care should be driven by patient-physician respect, not by actions of lawyers.  How can this rapport be established if the physician wonders about every patient being a walking lawsuit?

Dragging a physician to court for every perceived mistake, however small or understandable, has led to defensive medicine wherein all kinds of tests are ordered to avoid the remotest possibility of overlooking something.  A physician should not have to conduct tests s/he does not think

necessary but has to simply because it could be used against her or him in court.A physician undertakes therapeutic interventions that s/he considers best for the patient.  However, every medication or procedure has side effects or interactions that can be unforeseen and serious.  A physician should explain the most likely and the rare but serious possible adverse outcomes.  But it is impossible to list every single reaction for every single intervention and the physician cannot be held accountable.

It cannot be denied that medical mistakes are made, some egregious, for which the victim or patient should be compensated.  However, there is no reason why that compensation should drive the average physician out of business by virtue of raising insurance premiums to ridiculous levels.

Tort reform has already been proposed to correct this anomalous situation, placing limits on payment for “pain and suffering”.  However, to redress the balance, here are some other remedies that could be applied

1. Lawyers should be liable for cases they lose by paying court cost and time spent by the defending physician.  This should decrease frivolous lawsuits.
2. Lawyers should not be paid a contingency of 30% - 50%, as is the case now.  That amount should be reduced to not more than 10% of final settlement as has been proposed in Florida.  Financial incentive should not be a driving force here, genuine concern for the litigant should.
3. Lawyers who file more than a pre-specified number/percentage of frivolous lawsuits should be barred, just as doctors who commit medical fraud are de-licensed.
4. Juries should be comprised of peers of physicians, nurses, and physical therapists, and physician’s assistants, under the supervision of judges.  Juries should not comprise of those not intimately familiar with medical profession since they do not have the required knowledge to judge the appropriateness of medical care.
5. Tort reform should also address a limit to malpractice claims, as is in Texas now.

Maybe when all the above changes are made, medical care will switch back to caring doctors and not sue-happy lawyers.