Tort reform: See the elephants in the room?

    I was sued once…..20 years ago.  It was my first year of private practice.  I was awakened at midnight by a referring ER physician  with a dyspneic contractured and debilitated rheumatoid patient.  With no available ICU bed,    I rounded for about thirty minutes at 1 am, found a bed, called the ER doctor and accepted her in transfer. She quickly improved as her dyspnea was  pulmonary in origin and she was readied for discharge.  The family never visited.  They dropped her off and only returned to pick her up a week later after repeated requests by phone.    

   Almost a year later, while seated in a dental chair, I took a phone call from her family doctor warning me apologetically that  I was being sued because she had bruising on her arms (IV stick sites) and multiple fractures (steroid dependant severe osteoporosis, non acute).  Ridiculously, the family accused the hospital of allowing someone to “beat her” while on my service.  The plaintiff’s lawyer took the case just at the ninth hour as the statute of limitations was about to run out. Not following my lawyer’s advice, I contacted the family and lashed out at their ingratitude for my efforts.  I added a declaration that I would be countering their greed with a countersuit for defamation of character and my own pain and suffering (tactics I learned from watching Perry Mason and Hawaii 5-0 as a child). I then obtained her past medical record to find that her family had been referred to adult protective services for neglect and abuse. The suit was immediately dropped.  Though 20 years have passed, I still cannot fathom the greed that could motivate someone to stoop so far. Even more disturbing, I could not believe that someone so educated (their legal council), would stoop even farther.

   Thus my yearning for tort reform began in the infancy of my private practice life.  My motivation is fueled by such ridiculous decisions as the recent 90 million dollar reward for a missed brain aneurysm in an unemployed but tragic middle aged gentleman,  and who can forget  the gazillion dollar reward found against the McDonald’s chain for the hot coffee incident?  Annually, billions of dollars are spent as a direct consequence of the actions of an industry built mostly upon greed. Billions more are spent ordering stupid and sometimes dangerous tests to combat the current legal climate.

   I am encouraged lately that some  physicians are starting to fight back.  A neurosurgeon  Dr. John Guarneschelli in Louisville,  Ky. won a decision against a patient and a lawyer for  a frivolous suit.  I believe the lawyer was forced to pay around 50,000$ for that move. I hope they made him mail it in at a rate of $1.00 per week for the rest of his life. 

   With regard to the oval office’s opinion on tort reform,  it is mandatory that Obama’s camp consider the many “elephants” in the room, one of which is the very  Republican stance  on supporting malpractice caps and marry that with  Obama’s self described penchant for championing “patient rights”.  What the president does not seem to understand is that with medical malpractice through the roof, the burden of the cost of frivolous suits, the mass exodus of physicians from states like Florida due to the hostile patient climate ,  pregnant women in Mississippi with no options for OB care etc. etc. …the right to adequate medical care  he aims to champion are eroding by the hour.   

  The answers? They are multifold.  (1).  Insist that patient responsibility be examined in every single suit.  Was it a 2ppd smoking habit that led them to the ER? Were they drunk driving at  100 mph  when they hit the tree resulting in prolonged intubation? Were they compliant?   (2)  We must adopt the “losers must pay” stance,  which will relegate “frivolity” to extinction  (3) mandatory arbitration must be implemented which keeps lawyers working, continuing their cash flow and  distracting them from their usual prey (4) mandatory caps on all claims –no one, and I mean no one deserves a 90 million dollar settlement. (5) Physicians accused of criminal negligence,  malice or fraud should be tried in the criminal justice system and face jail time if found guilty .   

    Maybe someone will sneak those elephants into the oval office.  Maybe someone from the leadership in the AHA or the ACC should carry those elephants on their shoulders right up to the Whitehouse door, or else, we will wind up in the pitiful state of the folks of lore in the parable whose ending is so aptly described:

   “So oft in theologic wars, the disputants I ween, rale on in utter ignorance of what each other mean, and prate about an elephant not one of them has seen”.

    Politicians, open up your eyes.  There are elephants all around you. 

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