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Medical Professional Liability and the Relations Between Doctors and Their Patients ARNOLD RELMAN, M.D. in my judgment, the problem of med- ical malpractice liability has four root causes. I believe they are all important, and I mention them in no special order. CAUSES OF THE PROBLEM Malpractice The first ofthese root causes is malpractice itself. However uncomfort- able it makes us feel, we physicians must recognize that there are incompetent and impaired physicians who ought not to be practicing medicine and who are prone to errors that may do serious harm to patients. They probably constitute a tiny faction of the profession, but nobody knows exactly how many there are. In any case, they often manage to escape detection and disciplining by peer review state licens- ing bodies, at least for a long time, and they probably account for a large share of malpractice actions. A variant of this problem is the otherwise competent physician who is doing something for which he or she has not been adequately trained and who therefore performs ineptly. Although there are no data on this point, ~ would guess that the great majority of physician defendants in malpractice actions would be judged by their peers to be generally competent and unimpaired, and qualified to provide the service that preceded the plaintiff's injury. Furthermore, I suspect that qualified and unbiased experts with access to all of the 97

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98 MEDICAL PROFESSIONAL LIABILITY: VOLUME II relevant facts would find only a small fraction of cases in which the care provided by the physician had been inept. Unfortunately, there is no reliable evidence on this score, but ~ think it is safe to say that malprac- tice is by no means the only cause and probably not even the major cause of malpractice actions. The Tort System A second explanation for the rising tide of malpractice actions is to be found in the perverse incentives inherent in the present tort system. The contingency fee arrangement encourages patients to take legal action. It also gives lawyers a powerful reason to seek out plaintiffs and to ask juries for large settlements. The outcome of the adversarial courtroom drama, played before a lay jury, is often influenced more by emotion, legal histrionics, and the testimony of hired-gun "expert" wit- nesses than by the weight of scientific evidence and the opinion of unbiased authorities. Huge awards for "pain and suffering" are common and tend to drive up costs. The most perverse aspect of the whole system is its failure to provide for compensation without proving malpractice. Maloccurrence, which justifies compensation, does not necessarily mean that malpractice has occurred. At present, however, compensation for iatrogenic injuries de- pends on convincing a jury that there has been malpractice by the physician (or the hospital). The system, in other words, forces all pa- tients seeking compensation for an injury to convince a jury that some person or institution is at fault, even though frequently there is reason- able doubt about such fault. The fact that most malpractice cases are decided in favor of the defendant suggests that legal action is very often initiated without sufficient evidence to support the claim. Nevertheless, this circum- stance does not mean that the plaintiff has not suffered injury at the hands of the medical care system nor that the plaintiffis undeserving of compensation. The basic problem here is that there is no way for the plaintiff to get that compensation without taking legal action against the health care provider. This basic distortion of logic must ultimately be corrected if we are ever to solve the malpractice problem. Social Attitudes The epidemic of malpractice litigation is due also to a general change in social attitudes. We live in an increasingly litigious society in which there is a growing tendency to assign personal responsibility for almost every misfortune and to use the legal system to gain compensation from

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RELATIONS BE'1 WHEN DOCTORS AND PATIENTS 99 those believed to be at fault. Liability actions are increasing in many sectors, not just in medicine, and liability insurance costs for many private businesses and public institutions are rising rapidly. The growth of a more militant consumerism adds to the pressure for litigation, as does a growing public skepticism about the medical profession. Physi- cians in general no longer have the unquestioned public trust and esteem they enjoyed a generation ago. The image of the doctor as omnis- cient and beneficent has been tarnished by a spate of stories in the media about incompetent, venal, and unethical physicians and by a growing suspicion of all authority. Commercialization of Medicine The commercialization of medicine, which has become increasingly apparent during the past 10 or 15 years, contributes to this erosion of public trust. The growing tendency of hospitals and other health care institutions to act like businesses—and of many physicians to act like businessmen—has changed the attitudes of patients. When the Samar- itan ethic was more in evidence and patients believed that their doctors were more interested in their welfare than in economic gain, liability actions were unlikely, even when things went very wrong. But when medical care becomes primarily a commercial transaction and patients are treated as customers, the climate changes. As customers, patients are more inclined to demand total satisfaction and to seek legal redress when the results of their medical care are disappointing. Litigation, after all, is a frequent resort when relations between the parties in a commercial transaction become troubled. It ought to be only rarely used in a properly functioning doctor-patient relationship because patients who see their physicians as trusted coun- selors rather than as vendors of services demand only that they be competent and caring. Patients who trust their doctors and believe they are doing their best are more philosophical about disappointing out- comes. EFFECTS OF THE MALPRACTICE CRISIS ON DOCTOR- PATIENT RELATIONS These general considerations bring me to a consideration of the main topic of this discussion: how relations between doctors and patients affect, and are affected by, the malpractice crisis. There is no doubt that among the major causes of this crisis are the attitudes doctors and patients have toward each other and the way doctors and patients interact. Equally certain is that concern about malpractice litigation

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100 MEDICAL PROFESSIONAL LIABILITY: VOLUME II has powerful effects, both good and bad, on the practice behavior of many physicians. In focusing on these aspects of the subject I do not wish to minimize the importance of the others mentioned above. No satisfactory solution of the malpractice dilemma is likely to be achieved without attention to all of the causes I have outlined, but I have been asked to limit my comments to this part of the problem. In a symposium as wide- ranging as this one, the subject of doctor-patient relations obviously needs close attention. As an internist, I am not qualified to discuss the special problems of obstetrical practice. Most of my comments will be of a general nature, and to the extent that they are valid, they apply to obstetrical care as well as to other areas of medical practice. ~ must also point out that, because the literature has almost no factual evidence bearing on this subject, I am reduced simply to expressing my opinions, which are based on reasonably extensive clinical experience. Although ~ believe my views will be supported by most experienced physicians, they neverthe- less must be acknowledged to be opinions. With those caveats, let me begin by considering how the attitudes of patients and doctors and the practice style of doctors affect the likelihood of a malpractice action. Changes ~ Attitudes The first thing that must be said is that a patient is much less likely to sue a physician if they know each other well, if the patient trusts the physician, and if the physician tells the patient whatever he or she would like to know, explaining as much as possible and honestly facing up to any failures in diagnosis or treatment. When most physicians were primary care givers, personal contact between doctor and patient was maximized. The decline in the domi- nance of primary care practice and the increasing prevalence of special- ists have reduced the patient's personal contact with the doctor. Many specialists are virtual strangers to their patients. Specialization also means the introduction of many new technical procedures, which not only gives rise to greater expectations by patients but also increases the risks of incompetence and expands the possibility of malpractice. Specialized technology makes it possible to do more for patients, but it also tends to estrange doctors and patients. It is hardly surprising that, when anything goes wrong, specialists are more likely to be sued than primary care physicians. It is for this reason that the malpractice premium rates for specialists, who perform technical pro- cedures, are higher than for general physicians, who primarily offer counsel and relatively simple office procedures.

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RELATIONS BEATEN DOCTORS ID PATIENTS 101 Changes in Practice Organization The rise of group practice might affect malpractice risk in different directions. On the one hand, physicians in groups are more likely to be under close, continuous peer review and less likely than those in solo practice to be impaired or incompetent. This factor would suggest that bad outcomes leading to malpractice actions might be less common. On the other hand, physicians in group practice are more likely to share responsibility for their patients and therefore to be less closely bonded to them. For example, in large group obstetrical practices whose physi- cians rotate being on call, it is common for a woman to be assisted with her delivery by an obstetrician who has not provided most of her prena- tal care. This factor might suggest a greater likelihood of patient dissat- isfaction. ~ do not know the net effect of group practice on liability. Do physicians in group practice experience the same rate of malpractice actions as their colleagues in solo or partnership practice? ~ have been told that the costs of liability coverage in some groups are about one- third less than those of solo practitioners in the same community, but do not know of any published information on this point. It would be interesting to have such data. At this juncture I need to say something about "informed consent." Informed consent is a popular concept these Abut more a concept than reality because it is rarely possible to inform a patient fully about all the possible consequences of a proposed procedure. Furthermore, the urgency of the medical circumstances often gives the patient (or his or her surrogate) little choice but to sign a consent form. In addition, although informed consent documents are routinely used for surgical and invasive diagnostic procedures, it is impractical to use them for all of the vast array of diagnostic and nonsurgical therapeutic procedures employed in the everyday practice of ambulatory and inpatient medi- cine. In any case informed consent does not immunize physicians against legal action by patients who claim to have been injured by the inrnmn~t.~nt. nr~.t.i~.~ of medicine. although it probably lessens the risk. ^~ Brew—--or --, ~ ~~ ,- Changes in Physician Behavior So far, ~ have been describing how the attitudes of doctors and patients and the organization of medical practice can affect the likelihood of malpractice actions. I would now like to consider how the growing threat of litigation can, in turn, influence the behavior of doctors. Those who believe that the threat of litigation is necessary to keep physicians aware of their professional responsibilities and that it may have salu- tary effects on medical practice have some reason on their side. Many

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102 MEDICAL PROFESSIONAL LIABILITY: VOLUME II physicians have undoubtedly become more cautious and more concerned to see that nothing is overlooked in their care of patients. In obstetrical practice, more attention is probably being paid to all of the dovetails of prenatal care. Counseling, explanation, and informed consent are em- phasized more, and obstetricians probably take greater pains to discuss all of the options for prenatal diagnosis. In general, physicians who worry about the threat of litigation are more likely to document every- thing they do very carefully and to seek consultation more readily when they are in doubt about a diagnosis or treatment. All of this is to the good. Yet the increasingly litigious climate has many negative effects as well. If physicians have become more cautious, they have also become more suspicious and defensive toward their patients. Patients are likely to be seen as potential courtroom adversaries, thus straining the tradi- tional bonds of beneficent concern and good will. If doctors are now more motivated to ensure careful, detailed workups of their patients, they are also often intimidated by the threat of litigation and as a result are more likely to do too much. One often sees physicians ordering tests and consultations simply to protect themselves against possible subsequent legal action, even when the tests are redundant and unnecessary. This practice, of course, increases the cost and risk of medical care. In obstet- rics, the growing and probably excessive—use of fetal monitoring and cesarean sections undoubtedly stems in part from this fear of the legal action that might result should the pregnancy yield anything less than a perfect baby. Much has been said about the national cost of this kind of "defensive medicine," as it occurs in all types of practice. Some observers consider this trend to be a major factor in the overall inflation of medical costs, but there are no reliable data on this point. Certainly, the cost must be considerable, particularly if the secondary consequences ofthe excessive diagnostic studies, such as the additinna1 t~.~t.in~ ~~n~r~.PH by fain" positive results and the morbidity of the procedures, are included. Defensive medicine can also lead physicians to withdraw their ser- vices. In some of the high-risk surgical specialties, such as orthopedics, neurosurgery, and obstetrics, physicians have been retiring early or changing their practices to avoid seeing patients with clinical problems that carry a high likelihood of malpractice litigation. In some areas of the country this stance has led to shortages of tertiary care specialists and obstetricians. Exorbitant liability insurance premiums in high-risk specialties and fear of involvement in malpractice suits are undoubtedly discouraging many physicians from entering or staying in these spe- cialties, but the exact extent of the problem and the role of other factors have not been clarified.

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RELATIONS BETWEEN DOCTORS AND PATIENTS 103 Even the increased attention given to informing patients more fully about alternatives and consequences which helps to avoid misunder- standings and false expectations—has its negative side. Some physi- cians, particularly those with relatively little experience, are so eager to avoid responsibility that they abdicate their role as trustee and counsel- Tor. They lay out all the possibilities and choices and leave the decisions to the patient. Some patients clearly want to be in that position, and for them such behavior is fine; but most patients, after a modest amount of explanation from their physician, want him or her to take the lead in recommending a course of action. They need reassurance. They want to feel that their doctor is shouldering most of the responsibility and the worry and will stand by them, no matter what happens. On far too many occasions ~ have seen physicians act simply as technicians, providing the medical services patients seek but not the counsel and support they also need. ~ believe this abdication of professional responsibility reflects many currents in our culture, but surely one of its major causes is the growing wariness many physicians fee] as they think about the possibility of malpractice action in the event of any untoward outcome of their work. SUMMARY I have emphasized that an important source of the malpractice prob- lem is the changed relationship between doctor and patient, which results from the rise of specialization, the commercialization of medical practice, and the erosion of the physician's public image. At the same time, a growing awareness ofthe malpractice threat is changing the way physicians treat patients—in ways both salutary and deleterious but on balance probably damaging to the practice of medicine. The malpractice problem is complex, deep-seated, and pervasive. It is not likely to be solved by anything less than a fundamentally new approach to the compensation of iatrogenic injuries and a determined effort by the medical profession to deal with the root causes of public dissatisfaction.