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Threat Of Medical Malpractice Is The Only Force Opposing Healthcare Rationing

DrRich’s conviction that covert rationing is the engine that drives many (if not most) of the bizarre behaviors we see in the American healthcare system leads him to take positions on certain contentious issues that do not endear him to either his progressive or his conservative friends.

One of these issues is malpractice liability reform.

DrRich wrote about this some time ago (here and here), and as a result managed to alienate more than a few of his readers, especially the ones who are doctors. So if he were smart, DrRich would leave it alone. (After all, a lot of readers have long since forgotten precisely why they do not like DrRich, and merely harbor toward him a vague sense of unease and distrust. This, DrRich finds, he can live with.)

But a couple of things prompt DrRich to take up this topic once again.  For one thing, malpractice reform has finally become a matter of official concern. The President himself stooped to say so in one or another of his recent “definitive” speeches on healthcare (each successively billed as, at last, “the” healthcare speech, the one which would finally explain to us teeming masses what he actually means by healthcare reform). For another, DrRich notes that recent polls now seem to indicate that a majority of Americans believe that malpractice liability reform is needed.

It is no surprise to DrRich that doctors want malpractice reform. It is a little surprising to him that the public also seems to want it.

DrRich’s prior posts on this topic were aimed mainly at doctors, in an attempt to convince them that lobbying hard for malpractice reform at this juncture (a juncture in which the integrity of their profession is dangling by a mere thread) would be counterproductive. That argument worked so well that DrRich now  will attempt to explain to non-doctors (i.e., patients) why it is also not in their interests (at least, not yet) to support malpractice liability reform.

DrRich will begin by trying to clarify his admittedly unfortunate position on this topic. So: DrRich cheerfully and completely stipulates the following truths.

1) There is nothing good about the current malpractice liability environment; it is evil and harmful and it ought to be fixed.

2) Because of the toxic litigation environment, doctors tend to view their patients as potential adversaries, thus further eroding the doctor-patient relationship.

3) To protect themselves from and during future litigation, doctors are far more likely to order unnecessary tests and procedures, wasting vast amounts of healthcare dollars, and exposing their patients to unnecessary risks (radiation, surgery, etc.).

4) Reforming the malpractice liability system would perhaps be the quickest and most straightforward way to cut some of our out-of-control healthcare costs.

5) Malpractice attorneys, as a group, are remarkably malicious individuals who produce untold harms to society, who deserve far worse than mere tort reform, and in a just society would be appropriately shunned, castigated, and forcibly removed to live in caves and to be fed on gruel.

And yet, despite stipulating all these things to be true, DrRich believes that it is harmful for physicians to lobby powerfully for malpractice reform, and that if they were to be successful the result would be harmful to their patients. Given the above stipulations, which paint the current malpractice environment as an unmitigated evil, this conclusion will seem remarkably odd to many readers.

The explanation, of course, is covert rationing.

A chief mechanism of covert healthcare rationing is to coerce physicians to place the interests of the payers (the insurance companies and the government) ahead of the interests of their individual patients.  Because the insurance companies and the government have final say over the professional viability of most doctors, the coercion to ration healthcare at the bedside has been pervasive and powerful, and has been more successful than most idealists (people like DrRich) would like to believe possible. Bedside rationing has been declared by the U.S. Supreme Court to be the very purpose of HMOs, as legislated by Congress, and is therefore legal and appropriate. Worse, bedside rationing has been declared entirely ethical by respected medical professional organizations (which have asserted that doctors are supposed to give the “needs of society,” i.e., cost cutting, the same weight as the needs of their individual patients when making medical recommendations).

DrRich’s argument to doctors regarding malpractice litigation reform can be summarized as follows: Your profession has been founded on the sanctity of the classic doctor-patient relationship, under which you are obligated to always advocate for the best interests of the individual patient before you. This obligation defines your role as a professional since, without such a dedicated advocate, a patient (at the very time he is least able to fend for himself) is at the mercy of a hostile and complex healthcare system whose only real concern is reducing cost. If you give up your sacred role as patient advocate, you give up everything. You are fighting for the survival of your profession.

It is in this context that fighting hard for malpractice reform is counterproductive. You owe it to your patients and to your professional survival to do everything humanly possible to re-earn the confidence of your patients, and to forge a new alliance with them. To instead make the issue of malpractice reform your primary concern, or even one of many primary concerns, is (again, at this juncture) a further capitulation to the profession-ending process. For, no matter how you cut it, to fight for malpractice reform at this point in time – even the more reasonable and defensible kinds of reform like the ones in Texas – is to protect yourself by further limiting the prerogatives of the patients you have just officially abandoned. Such an action at this critical time sends the wrong message to the patients whose confidence you ought to be doing everything in your power to regain. Lobbying loud and hard for legal protection against your now-offficially-abandoned patients will not help your profession’s long-term prognosis.

That’s the argument DrRich has made to his physician colleagues. It has not been well received.

So now DrRich turns his attention to the other party in this little morality play – the patients.

Please be aware that your doctors are being strongly coerced to abandon you in your hour of need. This fact (and not reduced pay or longer hours), DrRich submits, is what is creating so much distress among doctors today, and is making the practice of medicine so painful to so many. Doctors – the thoughtful ones anyway – are in an existential panic.

Your doctors are being torn into two directions. On one hand they have their traditional ethical obligations – the ones they were taught in medical school, at least if they went to medical school more than 10 years ago – to you, the patient. On the other hand they have their new-age ethical obligation to primarily serve the needs of society (i.e., to covertly ration healthcare), and only secondarily serve your individual needs.

Everything in the healthcare system today, save one, is arranged for doctors to serve that new-age obligation – the third party payment structure, the regulatory environment, the laws of the land, and modern medical ethics are all geared to support bedside rationing.

The only remaining exception is malpractice liability. When a doctor is sued, he is held in a court of law to the old standards: Did you, doctor, do everything in your power to serve the needs of this individual patient, despite the cost and inconvenience of doing so?

The implied threat that you, the patient, may at any time initiate a legal action that will apply that old ethical standard to your doctor may be, DrRich is very, very sad to report, one of the few remaining things that might induce your doctor to think twice about covertly rationing your healthcare. (The other, of course, is to educate yourself, so that if your doctor “forgets” to bring up a medical option that might apply to your condition, you will be prepared to “remind” him of it.)

The fact that doctors are supposed to tailor their behavior to the benefit of society (cost cutting) in every aspect of their practice, but when they are sued they are held to an entirely different standard, is, of course, extremely discomforting for doctors. Indeed, this unfortunate situation virtually induces schizophrenia among doctors, and renders the practice of medicine a physically and psychologically harmful endeavor. It is unhealthy for doctors and for their patients, and does all the bad things that DrRich stipulated at the beginning of this post.

But without the implied threat of a malpractice suit, or even with a diminished threat, the incredible force on the other side – the force pushing them to do the bidding of third party payers, for the “best interests” of society at large – would become insurmountable for most doctors.

Indeed, DrRich sees profound malpractice liability reform as nearly inevitable, since it so clearly serves the interests of all those powerful parties who want doctors to do most of the healthcare rationing dirty work, quietly and covertly, at the bedside. The only thing standing in the way of such reforms today, Howard Dean forthrightly tells us, is the political power of the trial attorneys. But medical malpractice lawyers are a relatively small part of those trial lawyers, and (as DrRich has stipulated) are a particularly disgusting subset. Even other lawyers look down on them. (Source: personal communication with several attorneys, much of it involuntary.) Sooner or later a way will be found to circumvent, or buy off, this verminous subset of lawyers, all for the greater good of covert rationing.

So. Having failed to convince his physician colleagues that pushing for malpractice litigation reform is a bad idea at this time, DrRich makes the same plea to patients.

Your importance within the healthcare system, despite all the lip service you attract, has already been systematically destroyed. You have been fully marginalized. When you engage the healthcare system you are not seen as a sick person who needs help; rather, you are seen as a potential engine of expenditures, and you need to be dealt with in a way that limits those expenditures to the fullest extent possible. And in this effort, your doctors now work for the limiters. You have very little leverage left. And as ugly as the idea is, the threat of instigating a malpractice action constitutes a good bit of that remaining leverage.

Before you agree to sacrifice any of that leverage whatsoever, you need to join with your doctors in forging a new compact, one in which they work for you and not for a third party payer or for “society,” and in which they again are able to use their professional capabilities to fully advocate for your best interests. Short of that, don’t give up an inch of ground in the issue of malpractice liability reform.

*This blog post was originally published at The Covert Rationing Blog*

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