My latest blog – ‘Certain Lawsuit’ – received a great and challenging reply from a reader (goes by ‘one who knows’ round these parts). I enjoyed the comment so much I’ve responded to parts of it with some of my thoughts:

“There has to be a tort – in other words, the plaintiff has to have suffered some form of actual damage.”

This is the growing problem – the focus on an actual damage. Whenever anything goes wrong, there’s damages. From here, the question is whether it can be proved in court that a doctor is at fault.  And this is the slippery-slope that drive the process.  In the same way that a parent is always at least distantly responsible for anything that happens to their kid, so a doctor is responsible for their patient.  Doctors want it this way.  This is the responsiblity of medicine that doctors see as sacred.  This concept of nearly-global responsibility has become a functional revenue-source for lawyers.  You can always find fault in something a doctor did, even if the letter of the law is followed.

“And there has to be a credible allegation that the standard of care wasn’t followed.”

Your point here is well-made. To some degree I agree with you, and often we console ourselves with this fact. The problem is that “standard of care” is a shifty thing and, worse, you can always find something that didn’t go exactly according to guidelines.  Add to this the ‘responsibility’ conundrum mentioned above and you have serious liability before doctor and patient even meet. There’s so much more gray in medicine that people realize. Dig into any chart and you will see deviances from standard of care, especially because that standard is variable and constantly changing. What if the doc followed the latest recommendations of the Academy of Neurology, but in so doing s/he defied the standard of care in that particular medical community? What if the patient was just 2 minutes past the point when TPA is recommended? Forget it? No treatment? What if nobody can verify when the symptoms occurred and the family is begging that the patient gets treatment, so the doc does and the patient ends up with a bleed? There’s so many nuances, a lawyer that makes a living on tort cases can always find something that can be presented as “deviance from standard of care”.

“Legal preparation and discovery cost time and money; attorneys are not going to waste their resources on cases that are weak or marginal.”

Strong point. Probably the only limiting factor in the entire system. But you can always find a lawyer willing to waste YOUR resources, which some people are willing to spend because they know that the payoff will offset their up-front costs. They can even work it out so that the settlement amount gives them a 20% or better return on their up-front investment. Additionally, I readily admit that this is my own bias – and probably a bit alarmist at that – but I think hungry trial lawyers don’t really look at case merits but simply whether or not there is payout potential. Hospitals prefer to settle cases, so if the case was based in a hospital and a large payout can be justified…well then, son, let’s open up that medical chart and find some mistakes!

“I personally think all medical schools should provide a required course on medicine and the law.”

Absolutely cannot agree with you more…we don’t know a damn thing about the legalities of medicine. But this is sad. It’s acquiescence to put classes about it in medical schools. Doctors should be left to learn their own profession. This is hard enough. I honestly thought I was going to drown sometimes during medical school. The information was totally overwhelming…and that was only the medical science. And keeping up on the changes in medicine challenges even the brightest of us.  But successful doctors today are required to be mini-lawyers, and mini-businesspeople, too. Ask any doctor you know, and >90% of them will tell you they just want to be left alone to do medicine. Most don’t care about the law and many hate business too. They just want to help patients, and spend the majority of their time with them. But this idyllic. It’s juvenile. Today’s doctors need to be out to help themselves. At least, that’s what a good defense attorney would tell them. Patients are risk, and every encounter should be judged in terms of risk exposure. Most of us find this new side of medicine revolting.

“There’s an astounding lack of knowledge among physicians about how the court system works, and as a result you’re all running scared on the fuel of misinformation, exaggeration and urban myth.”

I hope you’re right. I hope all the talking doctors do about lawsuits is more talk than reality. To parse out the real from the mythical, I’m trying to get a lawyer – an actual defense or, better yet, prosecuting attorney – to give a series of presentations to our residency on this issue. Like coding, like business analysis, like charting, I hate it and have no innate intellectual curiosity about it. But I have to learn it, like it or not. This is American medicine in the 21st century.