Physicians, bring thyselves to heel

Marie Cocco

December 2, 2004

For all the talk about bad lawsuits - they're supposed to have caused a "malpractice crisis" that forces beloved Marcus Welbys out of practice and pushes up costs for everyone - there is cold silence about an obvious culprit. Bad doctors.

In the political mano-a-mano over malpractice, doctors see themselves as innocents besieged by rapacious lawyers. Lawyers see themselves as the last, best hope for families of patients harmed or killed by medical mistakes. There's no truce in sight.

But there is, at least, something to consider that takes us beyond anecdote-to-anecdote warfare. Florida voters just passed three ballot measures aimed at the malpractice issue and two of them take an altogether different path. They try to address persistent problems caused by a few bad doctors - and the hush-hush way the medical profession deals with its own errors.

Most significant is a constitutional amendment that would require license revocation of any Florida doctor who has three malpractice judgments or disciplinary actions taken against him. The other opens up to scrutiny by a patient or a potential patient information about "adverse medical incidents" at a hospital or by a medical professional.

Doctors opposed both. But they did manage to win on the third malpractice ballot issue: It limits, further than Florida already had, payments lawyers may receive when they win a case. Starving the lawyers soothes the doctors' lobby.

But even if we killed all the lawyers, there would still be medical mistakes and outright malpractice. For years, data on malpractice has tended to show that a small proportion of doctors is responsible for most cases. Though medical groups dispute information compiled by the National Practitioner Databank, the registry's last comprehensive report showed that a handful of doctors is responsible for more than half of malpractice payouts. State studies tend to bolster the argument. In New York - hardly a lawyer-free zone - more than 80 percent of doctors have made no malpractice payment of any kind, including insurance-engineered settlements, over the past decade, according to Arthur Levin of the Center for Medical Consumers.

Levin, who served on the committee of the Institute of Medicine that produced a report on medical errors in 1999, said two-thirds of malpractice suits that do go forward clear the doctor. "If you get to that stage of a verdict by a jury or a verdict by a judge and you're in the one-third of decisions that results in a judgment, then you're a pretty bad case," Levin says.

Proponents of the Florida amendment say only about a dozen doctors would face sanction under the three-strikes measure. It covers judgments, not settlements - which the doctors view as part of the problem. "What it does is encourage settlements," said Lisette Gonzalez Mariner, spokeswoman for the Florida Medical Association. Doctors will fear defending a case in court, since a judgment will now count as a strike.

The law's implementation has been halted by a state court, which is considering if the legislature must sort out such questions as whether the "three strikes" rule applies retroactively, to doctors who've already transgressed, or only in the future. There is, typically, nothing requiring a slowdown so much as a political initiative that springs from a ballot referendum. The three-strikes amendment is no exception.

It is, though, an exceptional opportunity to begin treating the malignant malpractice debate. Doctors blame lawyers and lawyers blame doctors who point fingers right back. But time after time, studies - including those done by respected medical journals - show most patients who are harmed by medical professionals do not sue at all. Time after time, health agencies publicize data that startle. A huge proportion of infections during surgery, for example, is avoidable with rudimentary precautions.

So long as our political energy is spent bullying lawyers and sanctifying doctors, we'll forget who we're supposed to be targeting - bad doctors - and who we're supposed to be helping. That is, the patients whose lives can be ruined by them.

Marie Cocco is a nationally syndicated columnist and member of Newsday's editorial board. Her e-mail address is cocco@newsday.com.