US Health Care Reform, As Seen From the Trenches (Part 2 of a 6 Part Series)

11/24/2010 12:45 pm ET | Updated May 25, 2011

Medical-legal reform received only lip-service during the Federal health care legislative process in the spring of 2010. Excess malpractice insurance fees and the pervasive nature of defensive medical practices were drastically disregarded as fundamental contributors to high health care costs. When this issue was discussed during the health care "debate," a few groups came up with minimizing figures to substantiate the spurious argument that our legal system does not add significantly to health care costs in the United States. These figures were grossly inaccurate and conducted by interest groups on behalf of the American Trial Lawyers Association (ATLA). Why would our Federal legislative body entertain tort reform when over 95 percent of this group is composed of lawyers with a great fiscal loss at stake? Such dialogue would be insulting the very institution that protects and supports them.

The argument that tort reform would compromise patient safety is politically charged and invalid. Doing what is best for the patient is the essence of medical practice and the inherent principle of being a physician. In the rare cases where gross negligence occurs, the responsible parties need to be punished. These cases are usually egregious and the alleged are clearly culpable. In reality, the majority of medical lawsuits are unfounded. Our legal system in the United States encourages frivolous lawsuits because lawyers and plaintiffs have everything to gain and nothing to lose in a system that promotes and compensates legal action. This facet is in stark contrast with the mother of our "paper democratic" system, Great Britain. The British system (among others) discourages frivolous lawsuits because if plaintiffs lose a case, they are responsible for the legal fees and compensation to the defendant for time out of work. Such a legal framework creates thorough contemplation before cases are filed, as well as decreased court system traffic.

The legal system in the United States is a broader reflection of the general attitude in this country that there is always someone else to blame and that a current set of circumstances or personal conditions is rarely the result of personal action. The morbidly obese 26-year-old male who lacks the self control to push away from the all-you-can-eat buffet or the 44-year-old alcoholic in end stage liver failure secondary to hepatitis C from IV drug abuse and chronic alcoholic hepatic insult can always blame the food marketing industry or "the system" rather than lack of self control or personal accountability; the obstetrician is implicated as blameworthy in birth trauma resulting in shoulder injury (brachial plexus) with an oversized fetus going through an undersized birth canal in an obese-diabetic mother (gestational diabetes causes fetal macrosomia -- basically, oversized neonate).

The dollar quantity defensive medicine adds to the cost of health care in the United States is catastrophic, yet probably impossible to calculate due to its forcefully intimate relationship with medical practice. Because of the constant fear of being sued by overzealous attorneys, physicians across the country order a battery of tests so they are covered and protected. These tests are not necessarily ordered in the patient's best interest; instead excessive testing may serve the means of not getting sued. For instance, the 42-year-old female leaving the hospital after her gall bladder removal in same day surgery has a non-witnessed fall on the carpeted floor of the lobby exit area on her way out the door. Even though the patient says she is fine and wants to go home, she is placed in a c-collar, gets a head CT and cervical-spine series (exposing her to unnecessary radiation), cardiac echo, electrocardiogram, and carotid Doppler ultrasounds to rule out intracranial injury or heart and cardiovascular reasons for her simple mechanical fall. Though the work up is negative and the patient is okay, it is costly and carried out for hospital liability reasons through a fear of legal action. When this grand legal perversity is factored out and multiplied across every hospital and health care setting in the U.S. on a daily basis, one can see the cataclysmic dollar value accumulated with defensive medical practices.

Another unfortunate medical-legal example is the plight of the obstetrician-gynecologists. This specialty has been at the front line of the legal battlefield for decades. Malpractice insurance is so high for the ob-gyn that practices have gone bankrupt and the specialty has lost valuable physicians with decades of experience. Practice circumstances are unbearable due to the constant, palpable worry of being sued with every decision and every medical intervention (in an environment that demands precise, fast-pace decision-making on the behalf of mother and fetus). Additionally, ob-gyn physicians are burdened with an extended statute of limitations of 18 years, which creates the potential for legal shackling. A recent lawsuit involved a plaintiff blaming rejection from their top college choice on the obstetrician that delivered the college bound individual 17 or 18 years previously.

Physicians and health care systems are as concerned about protecting themselves from the legal system as they are in doing what is absolutely best for the patient in many cases (no patient wants to be subjected to unnecessary work-up and radiation as a defensive knee-jerk). Moreover, when our President speaks in rhetorical circles about physicians being rewarded for ordering less testing, even though he will not consider tort reform (as a former trial lawyer for the Chicago based firm Miner, Barnhill, and Galland), the logically minded individual begins to question how this system can be sustained. Physicians stand a grave fiscal loss if too many tests are ordered, yet they risk the professional castigation and personal turmoil of legal recourse if not enough tests are ordered. The conditions from the front line trenches of our medical system mandate tort reform to significantly decrease the cost of health care. The current medical-legal circumstances are an abomination and signify an unsustainable, high-cost system.