Morality in Malpractice
By Haddon W. Robinson
Christian Medical Society Journal, Winter 1977, Volume VIII, Number 1.
Malpractice appears at first as a pocketbook issue.
The malpractice cns1s has been with us for three years. In 1974 insurance premiums jumped by nearly 200 percent, and each year since then they have risen higher. The increases appear unstoppable and estimates are that rates will be four or five times greater in the immediate future. For physicians who have to pay the premiums and for patients who have to pay the doctor bills, malpractice appears first as a pocketbook issue. Staggering increases in premiums do not occur without cause, however, and for people in medicine, lawyers seem to be the culprits. Blame is placed on the legal profession for bringing cases to court that previously would have been ignored. Lawyers operate on a contingency fee system in which they receive a handsome proportion of a malpractice settlement. While the contingency fee is a feast or famine arrangement (no settlement means no feel many legal firms find the gamble worth taking. During the last quarter of a century, malpractice claims have gone from a few hundred to several thousand each year. If current trends continue, one physician in four can anticipate at least one claim to be filed against him during his years in practice.
For those who diagnose the problem as legal the remedies prescribed are legal. Legislation enacted by the state of Indiana, for example, appears to offer one solution to the malpractice mess. In the Indiana plan, contingency fees for attorneys are severely limited so that la½}'ers take greater risks and have a reduced expectation of gain. Patients wishing to press a case must go before a panel of physicians rather than a jury (doctors could be expected to be less sympathetic to a patient than his peers). Those patients who sue are limited in the amount they can expect to win, no more than $500,000. After insurance companies and law firms have absorbed their fair share of blame for the crisis, malpractice still leaves some thorny moral problems for people in medicine to face as well. Unfortunately, over the last century, ethics have seldom been a pressing concern for the medical profession.
Etiquette for Ethics
The first modem code of medical ethics was written by Thomas Percival, an English physician, in 1803. Until that time, the only formulated code of medical conduct to receive wide acceptance was the socalled Hypocratic oath. That code, which originated in Greece sometime in the 5th or 4th centuries before Christ, expressed the standards in medicine for Christians, Jews and Arabs throughout the Middle Ages, the Renaissance, the Enlightenment and into the 19th century.
If current trends continue, one physician infour can anticipate at least one claim to be flied against him during his years in practice.
At the tum of the 1800s, however, the medical profession was tom with bitter disputes which not only appeared in the cloistered pages of medical journals but erupted into the popular press as well. Percival wrote in order to counteract, or at least regulate, this self-destructive internicene warfare. Since his book primarily addressed itself to regulating relationships between medical practitioners, Percival redefined "ethics" by turning it into etiquette. The medical profession, both in England and America, gradually adopted Percival's approach to medical ethics. llhile the patient and the patient-physician relationship was not ignored completely, ethics concerned itself more with manners than with morals. Medical ethics addressed itself to whether physicians should advertise in newspapers, or publish their fees, or how they should arrange consultations properly and politely. To outsiders these rules of etiquette sometimes appeared self-serving and in themselves unethical. The term ethics, therefore, came to include manners - the etiquette of interprofessional and extra-professional relationships; modes - the demands made on the practice of medicine by the community either through convention or law; and morals - those values which have their source within our personal or professional conscience. If the term" ethics" could have been reserved for strictly moral matters and not confused with etiquette some of the malpractice problems might never have occurred. Etiquette parading as ethics has made it difficult for medicine to police itself. Physicians feel that they are violating club rules, and are being unethical, if they press questions about the competence of a colleague. Some estimates are that five percent of American doctors should not be practicing medicine since they have become addicted to drugs or alcohol, are emotionally unstable, or have not kept up with fundamental advances in their fields. Patients have no effective means for distinguishing between competent and incompetent physicians until poor treatment has damaged them. While men and women in medicine are the objects of malpractice suits, some patients are the victims of malpractice. Morality requires at least two things - that the victim be compensated and that the public be protected from unfit practitioners.
Money and Morals
Malpractice suits also raise ethical issues that extend beyond the personal doctor patient relationship. Thoughtful critics want to know whether American medicine as a whole delivers the best possible service to the people it purports to serve. Does the high income of physicians negatively affect the quality of health care in the United States? People in medicine believe, often with justification, that dollars motivate patients to bring malpractice suits and la,,)'ers to press these cases. Could that same corrupting motive also reduce the quality of medicine throughout our country? Americans spend more money on health care - not only in absolute but also in proportional amounts - than any nation in the world. The public suspects that a license to practice medicine does not necessarily wipe out greed. Doctors earn five times the average male income, and three to five times the average professional income. Some group, obviously, has to be on top. The nasty question emerges,
"Is the desire for larger income at the expense of health care?" Is there a deliberate effort, as some sociologists maintain, to keep the supply of physicians below the national need? The unavailability of doctors crowds waiting rooms and drives up fees but leaves a sizable proportion· of our population, usually in rural areas and in older urban neighborhoods, without adequate medical attention. Can nothing at all be done about this?
Why has the number of specialists increased? During the last thirty years the number of primary physicians has declined while the population has grown. The nation needs to double the number of primary physicians. Technology and the rapid advances of knowledge drives some men and women to specialize. Are specialists also lured to specialties by the prospect of higher income? Do such specialists resort to kickbacks for referrals, perform unnecessary operations or pad their bills to maintain a high standard of living? Are the scandals reported by newspapers of Medicare and Medicaid frauds the iceburg or merely the tip? Questions like these, embarrassing and perhaps unfair, will not go away. Steps taken by the government to police the medical system remain ineffective because they encumber the honest physician and permit the dishonest to escape. Judgment must start within the profession itself. Christians in medicine must insist on solutions that demand ethics and not etiquette. Incompetence and dishonesty in the profession cannot be ignored. In some states laws must be changed to make it easier to do right and harder to do wrong. "While malpractice must be distinguished from malresult, patients injured by malpractice should receive compensation; and rich and poor alike should be allowed to press just claims. Concerned men and women in the profession should offer alternatives that provide effective medical seJVices to a larger number of Americans. Insomuch as malpractice is a moral issue it is a Christian issue. An individual in medicine may feel he cannot do eveiyt:hing to solve these problems. Can he do anything? "What he can do he ought to do. By the grace of God, he must do. In taking one small step to explore morality and malpractice, members of the Christian Medical Society participated in a panel during the Texas Medical Association meeting in Dallas. Some of the papers in this Journal are a result of that meeting.