Yale Medicine Autumn 2003: Letters

It’s high time to fix the malpractice mess

Your article “Showdown” in the summer issue of Yale Medicine brings out the sorry state of affairs in the medicolegal climate. When I began the practice of ob/gyn after World War II, my malpractice insurance was $25 a year.

Albert W. Diddle, M.D. ’36
Knoxville, Tenn.

The lucid comments about the malpractice situation and its aggravations were apt and helpful in understanding the dilemma. However they failed to mention one of the major causes of premium increases, which is the failure of state medical examiners boards to take steps to reduce the number of compensable medical errors.

For some years the Public Citizen Health Research Group (PCHRG) has closely followed malpractice suits decided in favor of the plaintiff. During the period 1990-2000, 5 percent of the doctors were responsible for the payouts in 54 percent of the suits. In other words, over half the cases of successful litigation were the fault of only 5 percent of the practitioners.

Overall, of the 35,000 doctors who had two or more payouts during that period, only 8 percent of them were disciplined by their state medical examiners board. The PCHRG publishes these figures periodically, and they emphasize that doctors who are repeatedly found to be at fault are responsible for the increasing costs of insurance for the rest of the profession. The conclusion is obvious: state boards should recognize that it is their duty to discipline the repetitive offenders and with more than a tap on the wrist.

Frederick W. Goodrich Jr., M.D., HS ’49
Medford, Ore.

In reporting on the current medical malpractice crisis, author Eli Kintisch characterizes it as a battle between doctors and lawyers. The cliché is catchy, but it is also misleading. Thousands of attorneys in this country, myself included, devote their professional careers to defending health care providers and hospitals in medical malpractice cases and advocating for tort reform measures that limit physician liability. This is not a case of doctor versus lawyer; it is both broader and more refined than that. At best, the generalization oversimplifies the nuances of the debate. At worst, it serves to perpetuate the misguided animosity that, sadly, polarizes the professions and leaves patients stranded somewhere in the middle.

Ken Baum, M.D. ’01, J.D. ’01
New Haven

More letters on this topic.

Knowing when not to retire

As a “mature physician” of 65, I found that I disagree with a significant proportion of Dr. Kaufmann’s essay [“Knowing When It’s Time to Quit,” Summer 2003]. I am at the stage of my medical career where I am working because of my joy in the practice of medicine and the feeling that I have something additional to offer to my patients. This is true of many physicians in their prime, who have continued to expand their base of medical knowledge and perhaps are now more willing to listen. It would be a shame for the medical community and for patients to lose such a valuable resource.

When I lose the desire to continue to learn, lose the joy of going to my office and talking with my patients, then I will move to another phase of my life, retirement.

Mark W. Lischner, M.D. ’65
Roseville, Calif.

To my former fellow, Herbert Kaufmann: I read your recent essay and was delighted at your eloquence if pained at your conclusion that doctors should retire. I am grateful as I approach 80 that you left unspecified the age for desuetude. You condoned your own retirement by saying that aging doctors grow out of touch with junior colleagues who prefer their own peer group anyway, that older practitioners no longer understand the science in medical journals and that—in your words—they grow irrelevant as far as their colleagues are concerned.

I failed you as a teacher if you imagine that most of the people who come to see me require that I trace the twists and turns of amino acids. It may be fun to read the latest science, but little of that is required to care for patients in the office or clinic. There are nowhere near enough physicians, and we who are spared can make a contribution by working part time in an office or clinic to let someone else bear the heavier burdens of the hospital. We need elderly doctors in our intensive care units, not taking care of patients and not, one hopes, lying in a bed, but as knowledgeable patient advocates wandering around the unit asking questions about what is being done and why, and to what purpose. The intensive care unit might even be a place for elderly doctors to talk to the families of the patients being taken care of by younger experts.

There is much good also to be said for the viewpoint of the old, who have had experience and now have the leisure for contemplation. It takes staying power, iron pants and stamina—and a willingness, no an eagerness, to accept a changed role. People may think that you are irrelevant, but as long as you are convinced that you are not, you have something to say to them.

Howard M. Spiro, M.D.
Professor emeritus of medicine
New Haven

This letter is excerpted from a longer essay by Howard Spiro that appears in full below.

Dear Herbert: I am responding to your essay and Howard Spiro's response. You eloquently describe how, as we get older, our relationship with our medical community changes—a discomfort and reality all physicians must experience. At some point in time, I agree, it would be wise to retire. At what point in time this happens will depend on the individual.

Change in life is inevitable and we all respond differently. Your response, seemingly, was to retire; Howard's was to adapt to it by accepting a “changed role”; and mine was to create a new career. I also retired three years ago, and although I loved the medical community that I left behind, I decided to enter a new field and way of life. I have been auditing courses at the Yale School of Forestry and Environmental Studies and am volunteering as a stewardship coordinator for a land trust. Like Howard, I have a new niche, friends and colleagues, and I am enjoying my new life immensely.

I would like to believe retirement is a beautiful phase of life when a physician becomes free from the restrictions of a lifelong medical career. The time that decision is made and the life that is subsequently chosen will depend on one’s attitude, desires, ambition and health, not age. the three of us have made our choices.

Vincent A. DeLuca Jr., M.D.
Clinical professor of medicine (retired)
Branford, Conn.

Herbert Kaufmann’s article was interesting and useful. I retired at 70 to run a vineyard and winery. My experience is described in a chapter in a book called Doctors Afield, published by Yale University Press in 1999.

In my time at the School of Medicine, there were a number of optional courses. Are those still offered? If so, I would suggest an elective on retirement. Young people entering medicine often have a narrow view of the world. Retirement is certainly not what they are thinking about. When I retired from psychiatry and psychoanalysis, I was struck by how many of my colleagues hung on way past the time when they should have quit. They had nothing else to do. Some planning earlier in life would have served them well.

George W. Naumburg Jr., M.D. ’45
North Salem, N.Y.

Thanks for the news from Cedar Street

Again I am awed by this spectacular publication you have crafted with its singular breadth and depth, sensitivity and historical continuity. Yale Medicine is one of many publications I receive but the only one I devour from cover to cover. Congratulations and thanks for an outstanding contribution to generations of Yale physicians.

Glenn L. Kelly, M.D. ’62, HS ’66
Englewood, Colo.

Don’t make the same mistake that California did

In addition to my medical training at Yale, I have a law degree from Stanford. (OK, I know it’s second place to Yale’s traditional dominance, but how many New Haven winters can one tolerate?)

As such, I have had the opportunity to view the range of perspectives with respect to medical negligence issues, including those of clinical practitioners, litigators, patients/clients and insurance companies (to which I have consulted regarding risk management).

My state of California has a frankly ludicrous limitation of $250,000 for “non-economic damages.” This level was set in 1975, and has not been changed in the intervening 28 years. I assume I need not delve into the litany of comparative cost/price multiples that have been experienced in all other areas of the economy during this time frame.

As you know, this means that a patient injured by treatment that is judged to be negligent can recover only the cost of medical care and lost wages, plus no more than $250,000 for the related pain and suffering that he/she may experience for the remainder of his or her life.

Beyond this, of course, at least some amount of any award goes to attorney’s fees. This amount is actually quite minimal, considering the costs and risks involved, coming to 40 percent of the first $50,000 received, one third of the next $500,000, 25 percent of the next $500,000, and 15 percent of any amount above $600,000.

Factored into this, of course, are the actual costs of handling a case, including experts, who are paid out of pocket by the attorney even in cases that are not ultimately pursued, or subsequently are unsuccessful; various forms of demonstrative evidence, always expensive; and considerable office and miscellaneous expenses. (This does not even include the costs of the attorneys’ time to evaluate the great majority of cases that are eventually not accepted and to engage in the long and arduous task of quality representation for cases that are ultimately pursued.)

Of course, it often occurs that even clearly meritorious cases are lost, for a variety of technical reasons. This results in enormous unreimbursed expenses for the attorney.

As a result, there are few attorneys in California who will even agree to handle medical negligence cases. Many of those will accept only matters in which massive economic damages can be demonstrated, such as with “bad baby cases,” which in my opinion are very often not justifiable at all (resting only on an adverse outcome that it would have been quite difficult to avoid), and brain injuries in relatively young individuals.

I cannot tell you how many technically meritorious cases I and my fellow attorneys have been obliged to turn away, because the litigation risks are too high and/or the prospective damages, though significant, are not great enough to justify pursuing in this hostile and inequitable environment. Even though most competent attorneys would not consider assuming the risk of taking a marginal case to trial, the great majority of cases that do reach that stage are “defensed,” despite clear liability and obvious proximate damages.

I find it amusing that an economic conservative such as myself is aligned with the “trial lawyers,” but, as I hope is the case for all of us, I do my best to thoroughly evaluate public policy completely and without predetermined bias. In this instance, I would clearly come down on the side of greater substantive and procedural fairness for attorneys and their clients, regardless of the nature of my training and experience.

Fundamentally, it is the insurance companies that are most responsible for the sometimes outlandish policy costs. You know the story well, as does the media, despite their tendency to reflexively assign fault to trial attorneys. When inflation was extremely high and investment income was soaring, the insurers took on any risk imaginable, in order to keep those premium dollars coming in that could be multiplied several times over with a reasonable investment strategy. During those years, insurance executives paid themselves unconscionable salaries. Now that they can’t count on investment income to any great extent, they attempt to maintain their lifestyles off the backs of doctors.

Additionally, I would like to see greatly diminished awards for the minority of “big cases” that seem to capture the sympathy of the public and of juries, and garner awards out of all proportion to liability and damages. Also, it is true that there are a small number of states in which it is health care providers and plaintiff’s attorneys that are somewhat unfairly advantaged.

But for the large majority of those injured by medical negligence, the system is clearly stacked against them. Rather than propagating California’s unconscionable arrangement across the country, measures should be taken in states such as California to level the playing field, among all participants.

As for me, the various aligned forces that I have described, in the realms of public policy, law, politics and economics, have induced me to shift my focus to a greater involvement in the life sciences. I find this to be unquestionably more enjoyable, and it optimizes the value of my basic science and clinical research experience, regulatory knowledge, and M.B.A. training. However, to the extent that in the aggregate such realignments further disadvantage patients, I remain deeply troubled and conflicted.

Mark Williams, M.D. ’79, J.D.
Menlo Park, Calif.

It’s never to late to work:
An open letter to Herbert Kaufmann

Dear Herbert,
I read your recent essay, delighted at your eloquence if pained at your conclusion that doctors should retire but grateful—at near 80—that you left unspecified the age for desuetude. Somewhat solipsistically, you condoned your own retirement by pointing out that aging doctors grow out of touch with junior colleagues who prefer their own peer group anyway, that older practitioners no longer understand the science in medical journals and that—in your words—they grow irrelevant as far as their colleagues are concerned. But you mostly slight the “loyal patients,” as you called them. They too have aged, and many would not have been unhappy to rely on an old doctor like you who looks at the world from their same perspective, a helpful coeval who can aid in their medical decisions and minister in a way to their very human problems.

You and I are longtime friends, you were once my student and so I hope you will let me repeat why I continue working, and why I believe you have chosen wrongly. A mid-1930s liberal, I was raised in that more generous era when obligations to the community arose from the sense that we Americans were all in the same boat, or as John Donne put it, “No man is an island, entire of itself.” On my retirement from Yale at 75, I was eager to work for the poor, or disadvantaged as the postmodern world has it, but the authorities in my clinical department were less than enthusiastic at the prospect of my hanging around after 44 years. Luckily enough, I joined the gastrointestinal group at 40 Temple St., a few blocks from where Marian and I live and a five-minute stroll to the medical school. Working there happily since 1999, I find two days a week for six hours just enough, for more would be tiring and might turn me more cantankerous than ever.

I see all sorts and conditions of patients, some adolescents and more adults, many my age or older. I feel great kinship with the elderly, and I shape my advice to them rather differently from the way I did at a callow 50. I am far less likely than before to urge optional surgery for many chronic conditions, ever since several friends over 70 recovered from operations far less alert and competent than they had been before. Such post-operative deficits are not always obvious, but the family will tell you that Grandpa has lost his sense of humor or that Grandma no longer has her usual verve and enthusiasm. When people ask me what I lost after my cardiac bypass, I reply—optimistically I hope—that I lost my impatience. But maybe it’s those beta-blockers I take.

Those who come to see us old doctors get time and attention. We can act as mediators between what the CAT scans and MRI show and what the patient feels. We know the truth of the aphorism that the eye is for accuracy but the ear is for truth. We have the time to listen, and I enjoy the talkativeness that once would have annoyed me in my rush to get everything done. We no longer fear death, nor are we greedy for more days on the earth, like many of our aged patients who, given the chance to comment, seem to agree.

Also, we have learned that time and “nature”—the Creator if you will—heal many wounds, for we have practiced long enough to be aware how many problems get better on their own. We are wary of the urge to be “proactive,” so universal among our younger colleagues. “Prevention” flies on every banner, and even 80-year-olds cannot escape pills to lower cholesterol or tame the prostate. Cardiologists straighten every bend and twist in the coronary vessels, even when their patients have no pain, busy as the gastroenterologist plucking polyps from octogenarian colons.

You worried that to practice at the top of the profession requires keeping up-to-date on science, and you were disconsolate at your growing failure to find intellectual delight in modern science, but you did not seem to remember that the care of patients is just that, care and not always cure. I failed you as a teacher if you imagine that most of the people who come to see me require that I trace the twists and turns of amino acids. It may be fun to read the science of our medical journals, but little of that is required to care for patients in the office or clinic. Indeed, I doubt that in daily practice even the wisest clinicians use the organic chemistry or physics from college, or the molecular biology of medical school.

I wish that you had continued to see patients one way or another. For there is the matter of payback, our duty or obligation to continue working at least part-time, though not in the same earnest frenzy as before. There are nowhere near enough physicians, and we who are spared can make a contribution by working part-time in office or clinic to let someone else bear the heavier burdens of the hospital. We should enlist some of the 70-year-old physicians spending their days on the golf course back into practice some hours or days a week. They and their patients might be the better for it.

You may have ignored too much the personal side of medicine and medical care. Only now, after a lifetime of experience are you able to share the viewpoint of the elderly. You may have missed a wonderful chance to contribute, not as a brash technician but as a contemplative old physician. We need elderly doctors in our intensive care units, not taking care of patients and not, one hopes, lying in a bed, but as knowledgeable patient advocates wandering around the unit asking questions about what is being done and why, and to what purpose. The intensive care unit might even be a place for elderly doctors to talk to the families of the patients being taking care of by younger experts.

There is much good also to be said for the viewpoint of the old, who have had experience and now have the leisure for contemplation. To be sure, it is frustrating to recall clever schemes that failed in the past and all too often to face blank stares in the condescension of the young, ignored by being yes-yessed to death. Yet you still have much to offer, to yourself and to your patients, and to your colleagues. It takes staying power, iron pants, and stamina—and a willingness, no an eagerness, to accept a changed role. People may think that you are irrelevant, but as long as you are convinced that you are not, you have something to say to them.

There are so many other things that physicians over 70 can still do. My friends Kay and Robert Zufall opened a free clinic for Hispanics in Dover, N.J., 10 years or more ago in a volunteer enterprise that still gives other aging doctors the chance to work a few hours a day and to talk with old friends. Osler may have been joking, but he was dead wrong in any case. Surely you remember that Harvard Medical School did not admit women as students until mid-1940s under the mistaken expectation that they would abandon medicine for pregnancy. Look at all the women doctors around us now.

Given your health and intellectual agility, you had another 15 years or more ahead of you. You should not now so eagerly abandon what it took so long to learn, nor should any of us be abashed to continue working, or to confess that work defines us and that we enjoy being useful.

God bless.

Your friend and quondam teacher,

Howard Spiro

From the Editor:

The things that matter

As one can see from these pages, our mailbag has been bursting lately. Some of the letters affirm an idea expressed in Yale Medicine, while others offer a wholly different perspective. I hope this means we are covering topics of importance to readers and presenting a diversity of views on questions that are too complex to have simple answers. Just as the university thrives on the exchange of ideas, so does this magazine.

The topics in the Summer issue that drew the greatest response were physician retirement and the malpractice insurance debate. Alumnus Herbert Kaufmann’s article on why he decided to retire while still in his prime (“Knowing When It's Time to Quit”) was unsolicited but perfect for the Essay section. For our feature on the malpractice debate (“Showdown”), we did ask readers for their opinions and received a great number in reply. The letters are still coming.

Next we’re turning our focus to bioethics, a growth area in science and medicine if ever there was one—and an area of increasing strength at Yale. For our Spring issue, we’d like to hear from you about the ethical dilemmas you have faced in your professional life. We will pose the thorniest of these problems to a panel of bioethics experts from the Yale faculty. Please send your story to: Ethics, Yale Medicine, P.O. Box 7612, New Haven, CT 06519-0612 or by e-mail to ymm@yale.edu. We’ll publish a selection of dilemmas, along with responses from our resident experts, in Yale Medicine and on our website, info.med.yale.edu/ymm. And since it is next to impossible to find universal agreement on the things that really matter, expect to see more letters to the editor.

Michael Fitzsousa
michael.fitzsousa@yale.edu