A few years ago, at a local legislative forum sponsored by the Indiana State Medical Association, there was a lively and interesting debate between one of our local legislators (who happened to also be a lawyer) and some docs who were attending.
It concerned the continual attack on the system of malpractice caps existing in Indiana that makes this state one of the more attractive places for doctors to practice. These caps limit the amount of damages any single patient suit can be awarded in a proven case of doctor negligence.
The legislator said, “I don’t see why doctors should be protected from lawsuits any differently that the rest of us. It’s the price of doing business.” The legislator pointed out the relatively small percentage of total health care costs represented by successful suits.
The doctors tried, mostly in vain, to try to explain the impact that lawsuits have on the practice of medicine. They described the repercussions of lawsuits, even the most frivolous, on their reputations, their families, and the way they practice defensively. These all weigh on doctors' minds more heavily than the potential costs of the settlements.
It is clear to me that lawyers look at malpractice suits very differently than doctors.
To lawyers, lawsuits are a matter of day-to-day business, the price of a civilized and organized society, where disputes are settled in an orderly manner. Not particularly a big deal. They win some; they lose some.
This is not the way doctors see it. Their profession depends upon absolute trust established in the doctor/patient relationship. Lawsuits threaten that trust, even if they are without merit. The accusation alone can be devastating.
Lawsuits against doctors, even ones which have no chance of succeeding, are like a Sword of Damocles hanging over the doctor’s head, often for years. It is this, not the cost of settlements in cases of negligence, that costs us all.
The climate of anxiety in doctors provoked by lawsuits leads to hard-to-quantify excess health care costs as the doctors fend off the threat of future suits by practicing unnecessary defensive medicine. Studies have shown that it matters little whether there are caps on malpractice suits like we have here in Indiana.
A 2008 report of physician self-reported practices, from a database collected by the Robert Woods Johnson Foundation, revealed that 68 percent of doctors in states with the highest malpractice risk said they had ordered tests and consultations simply to avoid the appearance of malpractice. Amazingly, and confirming my opinion about the universal anxiety provoked by just the threat of lawsuits, fully 64 percent of doctors in states with the lowest risk of malpractice suits reported doing the same thing.
I have a theory, unproven but based on years of observation, that many doctors lose their zeal to practice and retire early, especially those in high-risk specialties like obstetrics and neurosurgery, in part because of the toll lawsuits have on them.
So this means we all suffer from lawsuits, regardless of merit, not only in the costs of health care, but also in the shortage of doctors, which is projected to get much worse with the demands of the Affordable Care Act and the huge impending baby boom Medicare surge.