The Other Side of Risk


Last time I posted, the topic was risk tolerance. I tried to make the point that some, perhaps much, of the cost of healthcare is related to how comfortable providers (physicians, nurse practitioners, etc) are with risk. If I am very uncomfortable with risk, then I can certainly spend a great deal of money over turning every rock in search of a diagnosis on behalf of my patient. But, there is another aspect of risk, the externally imposed specter of malpractice lawsuits. Now, I freely admit to some bias in this regard. In a twenty-plus year career as an emergency physician, I have been sued three times. In only one of those cases did I actually see or treat the patient. In one case, I wasn’t even in town when the patient was seen in the emergency department and yet, I somehow was named in the suit and my employer wound up spending some money to get me dropped. Having been on the receiving end of this system, it is hard for me to maintain objectivity, but I will try to do so.

There isn’t any doubt in my mind that our healthcare system inadvertently harms some patients. There is plenty of evidence to that effect, so let’s take that as a given. I also firmly believe that people who are harmed by the system, are entitled to fair compensation. If a patient has the wrong leg amputated, his or her life is certainly negatively impacted. We can’t put the leg back on and so we offer money as a surrogate for the leg. The question then becomes, how best to value the patient’s injury and provide compensation. When it comes to meeting these goals, I am going to argue that the current tort system does a poor job.

The tort system is flawed for several reasons. First, there is a large body of literature demonstrating that many patients who suffer actual harm never sue and are, therefore, never compensated for their injuries. This same literature also shows that many patients who do file lawsuits were not harmed, yet some of them are compensated by the system. In fact, the current tort system is really something of a reverse popularity contest. Nice but incompetent providers sometimes get off scot free while crotchety but competent providers get sued. Sure, we would all like a friendly, warm, and caring doctor but when someone needs their aorta fixed or their coronary arteries bypassed, or their hip replaced; I have never had them request the nicest surgeon in the hospital; they want the most skilled surgeon.

Second, malpractice suits tend to be filed on the basis of unmet expectations and untoward events. We must be very careful when we speak of “medical errors” because that term can easily be applied to any outcome that is worse than we expected. In fact, some “medical mistakes” are known complications of a procedure or illness. If twenty-percent of people who get a left gooberectomy wind up with a green right leg despite our best efforts then, for every 100 gooberectomies we perform, roughly twenty people are going to have green right legs. Certainly, we are obliged to describe this risk to the patient prior to the operation but if they get said complication, they shouldn’t sue the doctor. Unfortunately, this situation is compounded by the “Lake Wobegone effect”. You know, Garrison Keillor’s mythical town where “all of the children are above average.” Humans tend to positively overestimate all sorts of things; so when the nice young surgeon comes into your room and says “Well, Mr. Smith, twenty percent of people who get a gooberectomy wake up from surgery with a green right leg”. We think “Wow, I sure feel sorry for those people” and never assume that we might be one of “those people.” When we find that our leg is, in fact, green we are angry. This wasn’t supposed to happen to us! That *@#$ doctor must have screwed up!

Third, because the current system is, in essence, an assignment of blame that starts with an accusation that the physician failed to exercise proper care, was negligent, or one or more of a host of misdeeds, people are often tempted to hide problems. None of us wants to be subjected to the humiliation of public name calling. When problems are hidden, they are harder to solve. On the other hand, when problems are openly discussed and evaluated we can better identify trends, faulty systems, and, yes, real incompetence. This situation is compounded by the adversarial nature of the process. People retreat to their corners and become entrenched in their positions. There is no real search for the truth. Instead, there is a search for evidence and experts who will support our position and help us “beat” the other side. When winning becomes more important than the truth we destroy any hope that some good might come from a bad event.

Fourth, the current process places intermediaries between the parties. These intermediaries, usually attorneys, are supposed to represent each party’s interests but they have interests of their own, as well. The plaintiff’s attorney is entitled to a portion of any judgment or settlement and the defense attorneys are being paid by the hour. Again, this kind of incentive inhibits a real search for truth and, instead, insures that each person will fight for his or her position.

So if the current system is flawed, can we find a better one?

Perhaps and that is a topic for another post.

September 18, 2009 at 2:04 pm | Filed in: Risk

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Dr. Brent King

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