October 2017 Edition. Volume XVII

The practice of medicine abounds with examples of the treatment often being worse than the disease.  The present management of cancer by radiation and chemotherapy is one such example.  In the case of medical malpractice proposed tort reform appears to be heading in a direction of sheer folly.  More effective and less cruel treatments for cancer will require more time and research. A more rational management of the present medical malpractice crisis requires more common sense and more mature political actions.  The paradigm changes must come from government, the medical profession, and the legal profession working together for the public interest.

It is true that medical malpractice insurance premiums have risen to the point where they have become a serious impediment to the delivery of good health care.  Responsible insurance companies have withdrawn from writing any medical malpractice insurance.  Does this mean that this form of insurance can no longer be profitable?  The answer is: absolutely not.  Unfortunately, the direction of the legislative actions now being proposed  and enacted on a Federal and State level appear likely to encourage greater patient abuse in the future.

Human behavior just doesn’t change unless there are significant adverse consequences for unscrupulous behavior. Without consequences poor behavior is encouraged, and will continue.  George Orwell, in his 1945 satire on communism, Animal Farm, presented the dictum “all animals are equal…but some are more equal than others.”  The saga of the federal ERISA statute is a classic for Animal Farm, as are many of the present medical malpractice tort reform measures. The legal profession, with all of its abuses, stands as the last resort, for many, to achieve equal protection under the law.  For patients this protection is hard to come by and is being constantly eroded by those with money, power, and influence.  It took almost half a century of legal effort for the public to finally prevail over the tobacco industry.  A similar legal effort against industry and medical practitioners who cause adhesive arachnoiditis in patients is still in progress.  The legal resource expended in bringing abuse such as this to court can be remarkably high.  When justice does prevail (and often it does not) the price of righteousness has to be high to prevent continued transgression.  The problem is that monetary awards based on “feelings” rather than reality are killing the insurance industry.

In regard to Patient’s Bill of Rights legislation under consideration in Washington, D.C. there are the Frist-Breaux-Jeffords (S. 889) and the McCain-Edwards-Kennedy (S. 872) bills being considered.  Only S.872 contains any real liability for managed care denial of coverage based on benefit eligibility or medical necessity.  In S. 872 denial of coverage based on eligibility creates a remedy under federal law where patients may recover full compensatory damages and up to $5 million in punitive damages.  This may not be fully adequate to “fit the crime” in all circumstances but it is certainly a realistic start when one considers that the patient will only receive a percentage of the recovery. The other side of the coin has to do with the medical profession’s responsibility to maintain quality control.  Few medical organizations have, in the past, been willing to step up to this plate.  Although some professional societies have started to develop guidelines for medical-legal professional conduct it is rare to find a professional group who will impart consequences for poor behavior. In a high profile case the American Association of Neurological Surgeons suspended a member for 6 months and was sued for denial of due process.  The Seventh Circuit Court rejected the suit.  A more important approach has been taken by the American College of Spine Surgery through it’s medical-legal committee where cases are reviewed and a professional opinion provided in regards to the merits of the case.  One of the major reasons that medical professional organizations have been hesitant to enter the legal arena has been the remarkably high cost of litigation expenses.  Legislative relief, in this regard, would go a long way toward the better protection of patient interest.

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