Published 12/1/2009

Medical liability and healthcare reform

Just a thought I had while reading the statement by Peter J. Mandell, MD, to the Senate Judiciary Panel regarding insurance/medical reform (“Dr. Mandell addresses House Committee,” AAOS Now, November 2009):

This and many other statements refer to the “insurance industry,” the “pharmaceutical industry,” the “hospital industry,” the “device industry,” and so on. Yet we, our politicians, and the public continue to refer, in somewhat more reverent terms, to the “legal profession,” implying that they are somehow above all the mere money.

At least insofar as it pertains to rampant medical liability, why don’t we propose to call it what it is: “the lawsuit industry?” Semantics matter to the reading and listening masses, so let’s put the lawsuit industry on the equal footing it deserves with the rest of the profit players in this debate.

Neil C. Vining, MD
Richmond Hill, Ga.

I think one point is missed in the tort reform discussion: Government-run health care offered at a discount must operate without medical liability.

My rationale for this begins with a system similar to how the military provides its care. Beneficiaries receive discounted or free health care and then cannot sue for economic damages. They can make complaints, and a board will review the conduct of physician practices. No one is more aggressive at criticizing their colleagues than physicians. It may not be as out in the open as much as the trial lawyers would like, but I think that is also a product of the predatory environment that we face.

I believe that we should take an adamant stance to not participate in any healthcare reform, government mandate, public option, or further discounted health services unless they are free of liability and have an adequate tax incentive to reduce the tax burden when charity services are provided either in whole or in part (such as through a fee reduction).

There is nothing unfair about this. How can you justify going to a physician who is reluctantly providing care at a discount or at a loss and then suing that doctor for millions of dollars?

I applaud the efforts of states to reduce the payouts lawyers receive, [who] only take cases of high profit, claiming that this is the only way that [the] poor have access to their legal services. One could not even conceive of a system that would fund health care in this manner and recruit physicians without an equitable approach to reimbursement and liability.

Add to this the fact that patients are “entitled” to present to the emergency department and be evaluated and that orthopaedic surgeons, among other specialty groups, are struggling to balance [unpaid] emergency care with their ethical and moral goals to serve their communities.

The current liability system is a reverse lottery for physicians; no one ever knows when the rug will be pulled out from under him or her for an untoward event or unexpected outcome. Patients in a state-funded health program who have an unexpected outcome should not be awarded pain and suffering, economic damages, or other claims when they have not paid into the system in the first place. If society wishes to reimburse or provide some form of compensation, then society will have to “buy the insurance” on a case-by-case basis. In this situation, the market will take care of the liabilities and the patients undergoing high risk procedures will have to buy more expensive coverage if they wish to have a payout if things go wrong.

In the case of physician neglect or what is determined by a jury or trial by peers (and I mean real peers in the medical profession and not lay people who cannot understand the actual practice of medicine), the physician needs to be sanctioned, [with] privileges suspended, curtailed, or otherwise modified until appropriate education or remedy is made, and those patients will need to receive the necessary care to optimize their conditions. However, you cannot pull this money out of the air from a profession that no longer balance bills or receives the charge for billed services.

Daniel J. D’Arco, MD
Pottsville, Pa.

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