Tort reform necessary to solve defensive medicine

June 25, 2016

Solving defensive medicine, antibiotic use and recertification are the hot topics of this month's Your Voice.

We were all taught in medical school that the way to treat and control disease is to identify the cause.  No control is possible unless identification occurs.

This also applies to the social sciences.  In order to control defensive medicine, we must first identify the root cause.  

Contrary to the innuendos in the article, “Defensive medicine vs. value-based care (Medical Economics, March 25, 2015),” the root cause is not doctors: i.e. bad records, bad EMR, physician sloth or stupidity.  The root cause is that defensive medicine is driven by lawyers who file endless meritless and frivolous lawsuits.

Why do they do this? Because there is little financial risk in doing so.  Especially if many suits can be settled pretrial.  The American Rule in turn drives this practice of champerty and barratry—each party is responsible for its own attorney’s fees. The rule protects the plaintiff lawyer from financial penalty.   

On the other hand, the rest of the industrialized planet uses the English Rule—the losing party pays the prevailing party’s attorneys’ fees. This English rule forces plaintiff lawyers to reconsider who and what they sue.

Richard Anderson is correct—the solution is not medical reform but tort reform. This will not be accomplished by caps on damages, safe harbors, no blame compensation laws etc.  Defensive medicine will only be contained by tort reform—replacement of the American Rule by a loser pays system.  

Any other tort reform is a Band-Aid. Plaintiff lawyers should at least be subject to similar financial risk as other professionals.  It is no accident that the U.S., with 5% of the planet’s population, employs 75% of the planets lawyers.  

It’s called jackpot justice and not only drives defensive medicine, it causes unnecessary duplicate and defensive practice by virtually all-personal and business activity in the country.  

We are all held hostage to the American Rule. Because of the English rule, doctors in my native Canada pay 60% less for malpractice insurance.

 

Calvin S. Ennis, MD

Pascagoula, Mississippi

 

Be honest with patients about antibiotics

In reference to the article, “When you ignore a patient’s cry for antibiotics” (Physicians Practice/Medical Economics, April 10, 2016),” I agree with everything Dr. Frank said except this: Instead of telling the patient that they don’t NEED antibiotics, I tell them that antibiotics won’t HELP.  

Patients think they need anything that could possibly help, but if I can convince them that antibiotics won’t, they are more willing to let it go.  Of course I offer symptomatic relief to be sure they know do want them to get better.

 

Janis Eiler, MD

Cincinnati, Ohio

 

 

Certification should be as untouchable as a PhD

One of the biggest lessons that I got after reading “Maintenance of certification: inside the physician revolt (Medical Economics, March 25, 2016)” is how even within the ‘house of medicine,’ physicians have to remain vigilant. 

Besides insurance companies and malpractice lawyers, there are many forces such as the ABSM each with their own special ambitions and desires to extend their influence over doctors.

For medicine enters into just about every segment of our lives. And in our capitalistic culture, there are always those industries with the capability and strength to look for new area of profit—pharmaceutical companies and makers of medical instruments immediately come to mind.

The ABMS would do well to do away with their punitive approach and provide self-assessment tests with answer booklets for doctors in their various specialties.

Initial certification should be as untouchable as a Bachelor of Arts or PhD degree.

 

Edward Volpintesta, MD

Bethel, Connecticut

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