Showdown

With Washington tackling medical malpractice, it’s doctor vs. lawyer in the court of public opinion.

By Eli Kintisch

When Ross M. Tonkens, M.D. ’74, arrived in Las Vegas in 1990, the gold rush was on. Casinos were expanding, the work force swelled and doctors streamed into Nevada to serve a burgeoning local community. For five years Tonkens thrived in an independent internal medicine and cardiology practice. “All a physician needed to succeed there was to be competent, caring and available,” says Tonkens. Then, as he tells it, the lawyers arrived.

What followed was a nightmare. By last summer 58 orthopaedic specialists and vascular surgeons had walked off their jobs to protest soaring malpractice insurance rates—temporarily closing the trauma center at the University Medical Center in Las Vegas in the process. But even before that job action, Tonkens had faced a half-dozen lawsuits in the same number of years. One woman, with diabetes, sued him after her kidney failed. The suit charged Tonkens, at the time serving on his monthly rotation as admitting doctor in the emergency room, with “allowing” the patient to leave the hospital—even though Tonkens had advised against it, warning her that she could very likely lose a kidney if she did so. Indeed, the patient had even signed documents acknowledging her understanding of this warning.

The other lawsuits were similarly flimsy, and Tonkens had himself dismissed as a party or saw the cases thrown out. “Nevertheless, each suit cost me dearly in time lost from patient care,” says Tonkens. “Every one of these was a ‘pay me and I’ll go away’ extortion suit, with the plaintiff’s attorney assuming I would rather settle than spend the time and money to defend myself.” The pinnacle of Tonkens’ legal skirmishes came when he found himself sued over his refusal to prescribe oral feeding and exercise to a comatose woman. The woman’s son, who had filed the suit and had no heirs, later died, but the man’s attorney refused to drop the case, claiming a “fiduciary duty” in the interest of his client’s estate.

Among the first of the doctors who had come to Las Vegas at the beginning of the 1990s, Tonkens blames lawyers for his eventual retreat from Nevada. “In 2001, I was also in the vanguard, this time as one of the first physicians to flee the state because of legalized extortion by the onslaught of personal injury attorneys flooding into the malpractice arena,” says Tonkens, who is now director of medical and scientific services at Quintiles Transnational Corp., a North Carolina-based pharmaceutical consulting firm.

Two views of the world
Tonkens’ antipathy for attorneys reflects a growing tension in medicine, and one that has put doctors and lawyers at odds like never before. Already hurt by falling reimbursements from managed care and stung by the accompanying challenges to their professional autonomy, physicians now find themselves under assault on another front. Sky-rocketing malpractice premiums are forcing doctors across the country to leave their practices; drop higher-risk specialties like neurology, obstetrics and orthopaedics; or move to states with more forgiving tort laws. Backed by President Bush and Senate Majority Leader Bill Frist, M.D., a Republican from Tennessee who is the first physician to lead the Senate, they blame lawyers for their woes and have pushed for reform in Washington and dozens of state capitals. At the top of the list when Bush made his State of the Union address last winter was a proposal for a $250,000 cap on noneconomic damages in malpractice cases. That proposal passed the House of Representatives in March, but in July a Democratic filibuster squelched the bill in the Senate. Although national legislation is unlikely before the next election, Frist vowed that the issue “will be back.” Several state legislatures may follow the lead of Texas, which passed a malpractice cap in June.

Trial lawyers insist that a cap would take away a malpractice victim’s chance for recompense and that the soaring premiums are the fault of the insurance companies. The lawyers see themselves as protectors of patients—as well as scapegoats in the current debate—and show no signs of accepting a cap on damages. Mary E. Alexander, president of the Association of Trial Lawyers of America, sees a long struggle ahead. “We are at war,” she told the group at its convention in February, referring not to the conflict with Iraq then looming but rather the political struggle ahead over tort reform. “President Bush has laid the gauntlet down.”

The debate also promises to be an issue in the 2004 presidential race. Vermont governor and physician Howard Dean, M.D., a 1971 Yale College graduate, has said the matter should be left to the states, and Senator John Edwards, J.D., a former trial lawyer who has represented patients, is opposed to the reforms. How seriously does the White House take the threat of the clean-cut young senator? Bush delivered a major speech on malpractice last summer in Edwards’ home state of North Carolina. Months later a White House official described a Washington speech by Bush on the issue as part of a “whack John Edwards day.”

Sparring over malpractice is emblematic of a natural friction between the two professions that manifests itself in competitiveness, disagreement and, at times, even humor (apparently in proportion to the social status enjoyed by both professions; there is a reason The New Yorker magazine publishes books of lawyer and doctor cartoons, but none about civil engineers).

“There is a built-in adversarial relationship here,” says Yale law professor Robert A. Burt, J.D. ’64. “Lawyers in the malpractice area are always sniffing around for mistakes. Doctors are adverse to any outsider pointing out errors. Just being sued can be devastating for their sense of themselves as professionals.”

The president of the Association of Yale Alumni in Medicine, Francis R. Coughlin Jr., M.D. ’52, J.D., agrees. “For doctors it’s not simply a business matter—it’s an attack on their integrity,” says Coughlin. As one who can view this debate from both sides, Coughlin sees the main problem as what legal economists call transaction costs. Litigation costs money—hourly fees for the defense lawyer, contingency fees for the plaintiff’s lawyer, settlements, expert-witness fees, court costs, the costs of acquiring records from hospitals and physicians—that is drained from the health care system. Supporting that system, he says, are three related pillars; cost, access and quality of care.

“The doctors want to provide access and they want to provide high-quality care, but money is going out of the system to fund transaction costs,” Coughlin says, noting that, unfortunately, this is nothing new. “We had a crisis in 1975, we had a crisis in ’85, we have a crisis in ’03 and now it’s worse than ever. Now is a chance for doctors to get a change or bow to Mr. Edwards, to whom trial lawyers are giving large sums of money to protect their own incomes. It’s important that we get some input before the next presidential election.”

At the core of the cultural divide between law and medicine are two often-conflicting world views—in particular, differing concepts of what certainty means in the con-text of medicine, says hematologist and ethicist Thomas P. Duffy, M.D. To Duffy, the expert-witness process, in which plaintiffs and defendants each call medical experts to testify on the medical procedure at issue, shows that attorneys see “truth” as that which can convince an uninformed jury. “That offends the whole authenticity of being a physician, which is predicated on telling the truth to your patients,” says Duffy, a professor of medicine and director of the Program for Humanities in Medicine. “Without truth there is no science.”

The last straw
Against this backdrop, the reaction of physicians to sharply rising insurance premiums has been almost visceral. In Ohio, West Virginia, New Jersey, Connecticut and elsewhere, physicians have protested on the steps of state capitals. The issue has stirred passions among Yale graduates in medicine and public health as well; more than two dozen alumni responded to an invitation from Yale Medicine to voice their opinions (See On the Topic of Lawyers, No Shortage of Opinions). Many took the time to explain at length how the crisis has affected their ability to care for patients, and where they think a solution may lie.

Tonkens, the former Las Vegas internist, was one of them; another was Edwina E. Simmons, M.D. ’84, who started her own obstetrics and gynecology practice in Ohio in 2001. At that time, her malpractice insurance company quoted a rate of $21,500 per year, going up to $60,000 after five years. But the rate reached $60,000 after just two years. With a massive increase expected for this year, she left her practice to join a corporate multispecialty group, which pays for her insurance. “The entrepreneurial spirit of doctors has been shattered,” she says. “No longer can someone finish residency and hang out their shingle.”

When Harold R. Mancusi-Ungaro Jr., M.D. ’73, HS ’76, moved from Texas to California last year, he left behind a medical community that was fully preoccupied with the law. “The daily conversation in the doctors’ lounge and the weekly column in the local paper concerned who was being sued and by whom,” he says. Mancusi-Ungaro now works for Kaiser Permanente in Santa Rosa, Calif., where he says he can focus on patients and practice “the best medicine I’ve been able to pursue since leaving medical school.” He attributes the climate to the malpractice reform California enacted in 1975, which capped pain-and-suffering damages at $250,000.

At times a truce
To portray doctors and lawyers as constant enemies would of course be misleading. While their lobbying proxies do battle in Washington and state capitals, most doctors and lawyers share a degree of empathy and admiration. And although Connecticut internist Sally R. Bergwerk, M.D., M.P.H. ’98, says she does not admire lawyers who reap unseemly profit from injured patients, she does respect those who will take on only cases with credible and substantial allegations of negligence. For example, she says, the Bridgeport, Conn., law firm of Koskoff, Koskoff and Bieder is a name to take seriously.

“If you get a call from Koskoff, you should start to sweat, because you know it’s not frivolous,” she says. Koskoff senior partner Michael P. Koskoff, whose staff includes several Yale law alumni, says that the firm only takes 3 percent of the patients who call looking to sue. California trial lawyer and malpractice specialist Joel W.H. Kleinberg, J.D. ’67, performs a similar screening process. “Many times the half hour I spend explaining what has happened and why an unfortunate outcome doesn’t mean ‘malpractice’ is all that’s needed to dissuade an unhappy patient from suing.”

But building on trusted relationships to tackle malpractice reform won’t be easy. The current debate simply divides the two groups too bitterly, as the sides can’t even agree on how to refer to the problem: attorneys call the ongoing efforts a push toward “medical malpractice reform,” and spokespeople for doctors call the issue “liability reform” as a way, it seems, to avoid the M-word.

“I think liability limits on noneconomic damages are part of the solution. They seem to have worked in states like California,” says Robert M. Segaul, M.D., HS ’72, who trained in urology at Yale. “There are severely damaged patients for whom this is not fair, but if the system is bankrupted and doesn’t operate for the majority of patients, then it needs to be implemented.” Lawyers, conversely, contend that some kind of limit on fees would only handcuff wronged patients. Led by Democrats on Capitol Hill, they accuse insurance companies of price gouging—and of using malpractice business to shore up revenues in the face of other losses in a down stock market.

“It’s the insurance business cycle that drives all this,” says Kleinberg. Holders of all types of insurance policies, say analysts, are affected when companies raise rates to cover deep investment losses. Trial lawyers want to pressure insurance firms by ending their long-standing exemption from antitrust laws. That, the lawyers say, would lead to more competition and lower rates.

The two sides also clash over the contingency system. Usually, malpractice attorneys aren’t paid unless they deliver a successful verdict or settlement. “The most-injured patients need the least work by lawyers, get the highest awards and reward lawyers with huge profits,” says Joe Bauer Jr., M.D., HS ’57, who was a surgical intern at Yale. “These unjustified profits are unrelated to the legal work required and to the validity of the ‘malpractice’ and rob patients of the bulk of their deserved compensation. Lesser injuries require the most work, with less profit, and these patients are not helped and are ignored by lawyers.” He would also welcome a change in the process of designating expert witnesses. “Expert-witness designation, for plaintiff and defendant, must be made the function of a medical specialty board, and not be decided by a trial judge, who is usually not capable of assessing the appropriate medical qualifications of an expert medical witness,” he says.

But attorneys defend the contingency fee system as a mechanism that prevents frivolous suits. In addition, contend lawyers, only the possible reward of a large settlement motivates attorneys to take a risk on a case they might lose. This doesn’t appease physicians like Bergwerk, who says that, “in Connecticut, of every dollar given as rewards in malpractice suits, only 42 cents goes to the patient.” That’s why on March 26, Bergwerk appeared with close to 2,000 other Connecticut doctors—the largest gathering of physicians in the state’s history—at Hartford’s statehouse to lobby for reform. Tim Norbeck, executive director of the Connecticut State Medical Society, says one of every three practicing physicians in the state attended the rally.

Fixing the system
To some, framing the fight between doctors and lawyers as a crisis of lawsuits misses the supposed goal of the medical tort system: preventing the medical mistakes that plague American hospitals. “There is a lot of bad medicine out there in the real world,” says Mary Jane Minkin, M.D. ’75, HS ’79, a clinical professor of obstetrics and gynecology who has testified for years in malpractice cases on behalf of both doctors and plaintiffs. An oft-cited 2000 Institute of Medicine study estimated that as many as 98,000 patients die each year in American hospitals due to preventable medical errors. But deciding whom to blame is not the overriding issue. “Many suits do not involve malpractice—just maloccurrence,” says Minkin, “and many acts of malpractice do not end up in litigation. Our goal is the best medicine for all, with no malpractice, and no doctor sued for a bad outcome which was not his or her fault.”

Chris Cassirer, Sc.D., M.P.H. ’91, an associate professor of health care management at the University of Minnesota, has studied the problem for over a decade and agrees that improved prevention of injury should be the highest goal of any reform effort. Strong managers and open discussion of mistakes and ways to prevent them, he has found, are effective tools for minimizing errors. But, he adds, “there’s a great deal of concern that talking about a medical error after it occurs will lead to lawsuits instead of looking at the processes that led to the mistake and fixing what’s wrong.” Yet honesty may be the best policy for keeping patients from visiting an attorney in the first place. “People will tolerate a variety of mistakes and medical mishaps if you’re up front with them,” says Howard V. Zonana, M.D., HS ’63, professor of psychiatry and adjunct clinical professor of law at Yale.

Doctors and lawyers both say the seeds of the misunderstanding are deeply planted. That’s the conclusion Robert J. Levine, M.D., HS ’63, drew years ago while teaching an ethics class to first-year law and medical students at Yale. “We began with a discussion of justice. Everything went well for about 10 minutes until we got to the question of whether the system should be based on good procedures or good outcomes,” says Levine, professor of medicine and co-chair of the executive committee of the Yale Interdisciplinary Bioethics Project.

“A medical student said, ‘Of course the outcomes must be good or the system isn’t worthwhile.’ One of the law students disagreed immediately,” Levine recalls. “He said, ‘The procedures must be fair or the system is invalid. That’s why we let murderers go when the evidence is obtained illegally.’ For the lawyer, procedure is everything, but for a physician, if the patient doesn’t get better, what’s the point? Here they were in only their first year, and already they were that far apart.” YM

Eli Kintisch is a writer in Washington, D.C.

On the topic of lawyers, no shortage of opinions

Are attorneys to blame for doctors’ woes? Well, yes, but there are more fundamental issues in the malpractice debate.

As the public dialogue about malpractice insurance reached a crescendo in February and physicians across the United States staged demonstrations for limits on lawsuits, we invited alumni in medicine and public health to share their opinions about the roots of the problem and its possible solutions. Readers of Yale Medicine were generous with their ideas; echoed in many of the messages is a sense among alumni that the business of medicine has chipped away at the doctor-patient relationship. Many also feel that, as a society, we look to assign individual blame for poor outcomes instead of attending to systemic flaws that could be repaired to improve medicine and prevent errors from happening in the first place. Here is a sampling of the responses we received.

Malpractice mess reflects a need to regroup
There are numerous factors that contribute to the current problems in malpractice suits and insurance.

There is no unified, cogent voice for physicians. The American Medical Association, once the most powerful lobby in Congress, was not supportive of Medicare and lost the prior uniform support of doctors. Today, the AMA has little impact on legislation or thinking about medical issues. The organizations of the various medical disciplines are too splintered to have an effective voice, although the American College of Surgeons has made an effort.

The image of the physician has sunk to unimaginable depths, partly because of unfulfilled expectations, partly due to actual malpractice and partly due to the depersonalization of medical care in the HMO/prepaid/group environment.

The tort lawyers are clever, successful and energetic. Their financial successes help to empower their voice in judicial appointments and in legislative action.

The advances in medicine and surgery have increased not only the horizon of treatable and preventable disease but also the risks, potential bad outcomes and severity of disease that is attacked.

Since the federal government encouraged the expansion of medical schools a few decades back, increased competition among physicians may be distracting some of them from seeking ideal patient outcomes.

Censure, reprimand and punishment of physicians for malpractice are accomplished by the competitive and antagonistic tort system, without a parallel goal of preventing further error and without any real effort to improve medical care.

It may be too late for the physicians to regain control; the hospitals have largely separated themselves from allegiance to the physicians. The HMOs are likewise unhelpful and the medical schools have been passive. Perhaps an independent commission should investigate the problem and make suggestions for its solution, either through meaningful legislation or some new national system aimed at both appraising suspected instances of malpractice and correcting the flaws and circumstances that lead to poor medical outcomes.

Robert C. Wallach, M.D. ’60
New York, N.Y.

The big question: where to impose limits?
The hottest issue in this tempest is probably the perception of “open season on physicians” and on medical care in general. While many doctors may have been influenced in their ordering of diagnostic tests by the idea of defensive medicine, I believe the greatest damage that this produces is to the physician-patient relationship. An element of trust is gone. Is this a consequence or side effect of malpractice, or both? Why should it be socially permissible for lawyers to advertise “you may be entitled to a large cash award,” reinforcing the perception that the absence of perfection in medical care entitles them to lottery-type winnings? While I am delighted that lawmakers, who of course are generally lawyers, are making some strides in malpractice reform, the controversy continues over just where limits should be ethically imposed. We need expertise and responsible leadership on this issue.

Marie Tsivitis, M.P.H. ’86
Stony Brook, N.Y.

Michigan’s specialty solution
The malpractice crisis here in Michigan simmered down a few years ago. Our then-governor, John Engler (a very conservative Republican) and the state legislature passed a fairly rigorous tort reform bill that greatly limited the ability of plaintiffs’ attorneys to file suits. Among the other provisions were, first, that a prospective plaintiff had to submit a notice of “intent to sue” 18 months before the actual suit could be filed. The intent to sue had to have a signed statement from an “appropriate” physician stating that he/she agreed that the standard of care had been breached. An “appropriate” (that’s my word, not in the law) physician was one in the same specialty as the prospective defendant, and the plaintiff’s expert physicians had to be in the same specialty. A family practitioner, for example, can’t testify against a neurosurgeon (although before this law, this sort of thing frequently occurred). Malpractice suits still take place in Michigan, but their numbers are greatly reduced.

Robert N. Frank, M.D. ’66
Bloomfield Hills, Mich.

Access to appropriate care will be impeded
I work for a self-insured corporation, so the malpractice issue doesn’t directly affect me. Our corporation does have a secondary insurer, and rates have gone up, but this hasn’t yet translated into a change in my salary. The real change has come in the specialists to whom I refer patients. The vascular surgeon we use for complicated cases had trouble getting insurance this year because he does high-risk procedures. If he can’t afford his insurance next year, my patients will get amputations instead of limb salvage. Some of my patients have lost their ob/gyns.

Richard Ihnat, M.D. ’91
St. Louis, Mo.

Defensive medicine, the worst offense
The high cost of liability insurance is now in the limelight, but I believe there are two additional concerns which are actually of much greater importance. One is the enormous volume of “defensive medicine” and its detrimental effects on health care affordability. The other is the terrible loss of idealism among physicians and other health professionals, even if they themselves are never or seldom sued.

Hyman J. Milstein, M.D. ’75
Studio City, Calif.

“We were all losers”
I am a local health director in West Haven, Conn., and our small malpractice insurance story is the following. We have had a semiretired urologist running our STD clinic for years. A few years back his insurance rates got doubled, and even if we certified that he was only doing this small amount of clinical public service work, they would not cut him a break. He ended up retiring rather than getting paid enough to cover his insurance premium. We lost a wonderful, gentle and experienced doctor, and he lost a major connection to feeling useful and vital in his life, albeit for only a few clinical hours per week. We were all losers in this, even the insurance company, which now no longer gets his premiums and never had to pay out for him for the 15 years he worked with us!

Eric Triffin, M.P.H. ’86
Bethany, Conn.


			Originally published in Yale Medicine, Summer 2003. Copyright © 2003 Yale University School of Medicine. All rights reserved.