Kip Sullivan responds to the quote of Rep. William Thomas and to Don McCanne's comments:

I agree with portions of Don's commentary, but I disagree with Don's characterization of the malpractice that occurs in this country as "a medical maloccurrence that is not the result of error in judgment but is merely an unfortunate, fortuitous outcome."

Malpractice is real, some of it is due to system failure, some of it is due to the failings of individuals, and both types of failings are less likely to happen if individuals and systems know they could lose money and reputations in a law suit.

I agree completely with you that the existing malpractice system is highly imperfect. Too many people who shouldn't sue do, too many who should sue do not, and the overhead costs of the system are very high. But we currently have no other system that can deter malpractice, whether by individuals, hospitals, HMOs or any other system.

Overwhelming evidence exists indicating that a substantial portion of adverse outcomes in medicine are the result of malpractice, which the law defines to be the provision of services, or the failure to provide services, that violates a widely recognized standard of care due to negligence of the doc or other provider. (For the sake of simplicity, I'm leaving out a few other elements of the definition of malpractice.) It's true that a substantial body of evidence indicates that many (but not all) of the acts of malpractice should be blamed on the systems in which health care professionals work. I include managed care insurers in my definitions of "systems," something the Institute of Medicine seems incapable of recognizing. According to the IOM, "quality is the problem, not managed care."

But not all plane crashes are due to system failures -- some are caused by errors of judgment by individual pilots -- and, similarly, not all medical malpractice can be blamed on the system.

Regardless of where blame should ultimately lie for a given adverse outcome -- on the individual, several individuals, or a system -- the threat of a lawsuit will have a deterrent effect on at least some types of negligence. We're already seeing proof of this axiom in the announcements by several HMOs that they are going to back away from utilization review (UR). The plans doing this are claiming they are dropping UR because it wasn't cost effective, but the timing of these announcements robs them of their credibility. UR has been around for three decades. That's plenty of time for the plans to figure out that UR wasn't cost effective. It is the threat of class action suits filed in recent years, and the possibility of many more if the right to sue HMOs is established by Congress, that has caused some HMOs to back off of UR.

Even after we get a universal health insurance system, malpractice will remain a problem. The public needs to discuss both issues -- malpractice and universal coverage. They are separate problems. I just wrote a piece for In These Times asking the question, Is the patient protection debate a waste of time? I don't think it is. I'll email it to you if you'd like to see it.

Kip's excellent article, "Patients Losing Patience," from In These Times, August 20, 2001, is available at:  CLICK HERE

Victor Sidel, M.D., responds to the quote of Rep. William Thomas and to Don McCanne's comments: Victor Sidel is a distinguished University Professor of Social Medicine at Albert Einstein College of Medicine of Yeshiva University

I believe you give Thomas too much credit. Of course, lawyers should not be making medical decisions.  But when managed care or other forms of medical care organization deny needed care to patients, under current conditions in the United States lawsuits are often the only channel for redress. Is that an effective, just, or equitable method for oversight of the U.S.medical care system? Of course not. Does it lead to "defensive medicine"? Of course it does. But until the United States arrives at what we both view as the needed high quality, publicly administered, universal health care system with an expedited appeals process, the tort system may be the only way to force the industry to provide needed care. Is it a diversion? Of course it is. But is it a necessary stopgap while the needed system change is attained? It may be. Tort law has certainly been misused in many instances, but defenders of the environment and of civil rights would be weaker without it.

Thomas opposes the patients' rights bill that includes strengthening tort law methods as one of its provisions because he seeks to prevent needed system change and he views opposition to that bill as a tactic for his purpose. The remainder of his opinion piece makes his tactic clear. He should not be praised for that tactic.

EINO  responds 

It is an important point that Don makes - there is health care money being diverted away towards extraneous costs when lawsuits are the major mechanism for ensuring that HMOs live up to their contracts and society's reasonable expectations.  In some future system (one with Universal Health Care), we would hope that with security that the system works in essence towards provision of health care, rather than trying to avoid all expenditures on patient care that it possibly can (as presently) there would be much less need to actually threaten suit.

Skip and Victor are also correct that presently it is certainly not possible to ensure that the industry will live up to their end without the threat of litigation.  Furthermore, we would argue that the threat must be substantial (no caps to the amount sought), for this is a very wealthy industry and small losses are easily accomodated. 

Finally, it is necessary to conceptually separate issues of specific regulatory mechanisms (which could make litigation virtually unnecessary in a future system) from the argument for universal health care.  These mechanisms could conceivably be put into place prior to UHC, or could be inadequately installed even with UHC.  There are issues of the system (such as this one of interference with patient care) which will have to be worked out beyond the fact of implementing UHC.  What is clear, is that as long as the industry controls how the system is developed it will be towards a system allowing maximal profits and avoiding expense on patient care whenever those expenses can be avoided without consequent costs to the bottom line. 

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