Tortilla Reform of Medical Malpractice

By Jesse Hu

Let me pose a hypothetical. Say you’re a mailman. You drive around in your mail buggy, and every day the mail makes it to the right place. One day, a letter slips into the wrong stack, and makes its way to the wrong person. Happens all the time right? No sweat. Well, for the sake of this hypothetical, you’re bathed in sweat, because now you’re fired. Oh, and your profession reputation is dragged through mud in a long, drawn  out lawsuit that costs you something like $50,000 when you’re already saddled with $100,000 worth of debt. Why does a mailman have that much debt? Well, this isn’t a perfect analogy. But, if you read between the lines of an analogy, this is a very true reality that doctors have to face.

Doctors are faced with enormous pressure: one simple misstep, and a patient dies, or suffers immensely. The horror stories of cut bile ducts, misplaced sponges, and wrong amputations are based in truth. These mistakes are absolutely devastating, and ought to be compensated, but really just present the surface of an enormous issue that costs the U.S. Health Care System something in the park of $55.6 billion, with a whopping $45.6 billion in defensive medicine for the year 2008 (Mello, Chandra, Gawande, & Studdert, 2010). That’s something like a Mark Zuckerberg or 11 Donald Trumps worth of collective ass-covering (Forbes). Of course this all ends up coming out in patient fees, and contributing a sizeable chunk to the rising cost of healthcare in the United States.

They’re humans too, and usually, their only goal is to help patients.

But back to the doctors. If mistake are made, doctors should absolutely be held accountable, but within reason, which public perception seems to have ignored. After all, doctors are held to a higher standard. They hold high esteem in society, represent some of the smartest minds in science, and hold the proper training to cup a stranger’s balls without the words “assault” tossed at them. No wonder so many of us a Pre-Med Mag are gunning for Med School. They’ve also accumulated a mass amount of debt, survived vicious education for 8 years, and sworn off pesky sleep, friends, sex, and sanity during residency. They’re humans too, and usually, their only goal is to help patients. But between the madness of balancing family, life, work, patients, education and sleep, they’re bound to make mistakes. Does this mean their mistake should go unchecked? Nope. But checking for mistakes is not what the current system does.

And the general consensus has always been enact Tort Reform to address this issue of astronomical costs.

The U.S. Medical Malpractice System, amusingly enough, has been very clearly linked to nothing. Nada. Zip. Zilch. I could pull out a thesaurus, but I’m not that much of an ass. Instead, I’ll pull out a journal article, which notes that quality of care is neither the primary nor only reason cited by patients, and that often times the determining factor for a lawsuit is not the quality of care received (Ambady et al., 2002). So the system that is supposed to ensure quality care is received, fails miserably to do so, and at incredibly high costs to providers: The average medical liability indemnity payment to a claimant in 2010 was $331,947, and malpractice insurance costs some specialties such as OB/GYNs an average of $206,913 in NY for the year 2012 (Mills, 2011). And the general consensus has always been enact Tort Reform to address this issue of astronomical costs. But honestly, Tort reform just makes me think of tortillas, which makes me hungry. Too bad Tort Reform can’t wrap up this issue of rising medical malpractice costs.

In short, these doctors took the time to get to know the patients and treat them as people, which honestly isn’t nearly as hard as brain surgery.

Cheese and quesadillas aside, such terrible puns are actually precisely the solution. If instances of litigation do not hinge on quality of care, then what is the primary factor that contributes to whether or not a patient sues? Remember how I said earlier that doctors are only human? Well, patients are too. Patients don’t objectively rate how their care compared to national standard, but they do notice how doctors treat them as people. A 1997 study found that doctors who had no prior claims used humor, laughed more often, made a more conscious effort to orient patients about the flow of a visit, educated patients and spent more time asking and considering the opinions of a patient (Levinson W, Roter DL, Mullooly JP, Dull VT, & Frankel RM, 1997). In short, these doctors took the time to get to know the patients and treat them as people, which honestly isn’t nearly as hard as brain surgery. Study after study has confirmed that these tiny factors, the same that you use to judge a person you’ve just met, are the factors that matter most. One study found that doctors that had established “warm-rapport’” with patients were less likely to be sued (Edward Hsia, 1994). Another study found that patients who sued most often listed truthfulness and empathy as the two primary complaints, and less than 15% were satisfied with the explanation given by doctors (Vincent, Young, & Phillips, 1994). Finally, a study found that something as small as the tone of voice used by a surgeon could affect chances of litigation (Ambady et al., 2002).

But sometimes, along the way, the bright-eyed-bushy-tailed student with dreams of saving babies falls prey to routine, or exhaustion or sheer numbness, and the empathy may fade.

In brief, these are the characteristics that patients found lacking in doctors ultimately sued: communication, empathy and a human connection. This failure to connect is financially, physically and emotionally catastrophic for a doctor if it results in litigation. But connecting with patients isn’t that hard. To make a broad sweeping generalization, every doctor must have considered on some level that helping others was a motivation, or at least benefit, to working in medicine. Many of my peers and myself included have set off on the path to become doctors because we want to help people in an immediate and personal level. But sometimes, along the way, the bright-eyed-bushy-tailed student with dreams of saving babies falls prey to routine, or exhaustion or sheer numbness, and the empathy may fade. At the end of the day, it helps to remember that despite the exhaustion, the financial burden, the social and familial hardships, the bureaucracy and the fear of litigation, doctors are people that treat people. Yes, being nice may help with litigation, but it should be an end and not a means. Otherwise, we run the risk of turning healthcare into a cold, impersonal entity, not unlike a reverse meat grinder. As for me, I certainly hope that one day I’ll be a good doctor; that I’ll be competent but also empathetic enough to care for my patients as people. Oh, and not being sued would be nice. Hopefully my Tortilla jokes will take care of that.

References

Ambady, N., LaPlante, D., Nguyen, T., Rosenthal, R., Chaumeton, N., & Levinson, W. (2002). Surgeons’ tone of voice: A clue to malpractice history. Surgery, 132(1), 5–9. http://doi.org/10.1067/msy.2002.124733

Forbes 400. (n.d.). Retrieved July 2, 2015, from http://www.forbes.com/forbes-400/list/3/#tab:overall

Levinson W, Roter DL, Mullooly JP, Dull VT, & Frankel RM. (1997). Physician-patient communication: The relationship with malpractice claims among primary care physicians and surgeons. JAMA, 277(7), 553–559. http://doi.org/10.1001/jama.1997.03540310051034

Mello, M. M., Chandra, A., Gawande, A. A., & Studdert, D. M. (2010). National Costs Of The Medical Liability System. Health Affairs (Project Hope), 29(9), 1569–1577. http://doi.org/10.1377/hlthaff.2009.0807

Mills, R. (2011, December 21). New AMA Studies Show Cost Burden of the Medical Liability System. Retrieved July 2, 2015, from http://www.ama-assn.org/ama/pub/news/news/2011-12-21-policy-research-perspective-studies.page

Vincent, C., Young, M., & Phillips, A. (1994). Why do people sue doctors? A study of patients and relatives taking legal action. Lancet (London, England), 343(8913), 1609–1613.