It is better to be without a diploma because then a practitioner can say, “I make no pretentions, I offer no certificate of ability, and only gave my neighbor in his sufferings, such aid as I could.”
The publication of Herman Melville’s metaphoric masterpiece, Moby Dick, symbolized the view of many physicians, then and now, that medical malpractice litigation is the white whale: evil, ubiquitous and seemingly immortal. As to the symbolism of the sharks that harass the whale boats, “seemingly rising from out the dark waters … maliciously snap[ping] at the oars following them in the same prescient way that vultures hover,” there should be no doubt as to whom they personify.4
Several factors may explain our unremitting malpractice conundrum. According to James Mohr, PhD, distinguished professor of history and social studies at the University of Oregon in Eugene, there are three medical and three legal factors that sustain litigation.3 The former include innovative pressures on American medicine, the spread of uniform standards of care and the advent of medical liability insurance. Deep pockets are required to cover sizable financial losses, but huge fiscal resources may encourage plaintiffs to file even larger claims. The practice of using contingency fees to pay attorneys and the use of citizen juries rather than specialized tribunals to adjudicate the trials have further aggravated the problem. Finally, there is the distinctive nature of tort pleadings in the U.S. What are torts? They may be broadly defined as private civil wrongs that violate understood duties or social responsibilities. Torts differ from contracts because the parties to a contract have theoretically agreed in advance on acceptable and unacceptable outcomes. In the 19th century, when the opportunity existed, American physicians resisted switching medical malpractice from tort law to contract law. They bristled at the thought that their craft could be considered similar to the work of boilermakers and roofers. Instead, doctors remain mired in a woefully inefficient malpractice system.
In a recent study that analyzed data from nearly 41,000 physicians covered by a single insurer, researchers found that the average physician spends 50.7 months, or almost 11% of an assumed 40-year career, with an unresolved, open malpractice claim.5 Although damages are a factor in how doctors perceive medical malpractice, even more distressing for the physician and the patient may be the amount of time these claims take to be adjudicated.
So here we are today. Despite the proliferation of lawsuits and the widespread practice of defensive medicine, patients don’t feel any safer, because errors, such as the one committed by Dr. R., are still common. Is there a better way? States including California and Texas have enacted limited tort reform and have capped malpractice claims for pain and suffering. But the data are mixed about whether these actions have reduced the volume of defensive medicine activities in those states. Michigan has spearheaded an approach that encourages healthcare workers to report medical errors, apologize for them and offer patients financial compensation. Countries such as Sweden and New Zealand have adopted “no-fault” malpractice models that ease the burden for filing claims of medical wrongdoing, but limit their compensation to the actual expenses incurred by patients for lost wages and their loss of function. Obviously, a no-fault malpractice scheme would destroy the plaintiff’s bar, and so it’s hard to imagine that such a powerful and politically well-connected group would ever allow this format to be tested in the U.S. However, with the passage of the Affordable Care Act, there will be even greater pressures on all parties to rein in escalating medical costs.