COMMENTARY

Med-Mal: 'Crazy Laws' Trap Docs

Philip K. Howard; Leslie Kane, MA

Disclosures

November 08, 2013

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Leslie Kane, MA: Hi. I am Leslie Kane, Editorial Director of Medscape Business of Medicine. I am here today with Philip Howard, an attorney and founder of Common Good, an organization based on the philosophy that we have too many laws and that the reliance on the lawsuit mentality causes problems for society in general and physicians in particular. Mr. Howard is the author of The Death of Common Sense and Life Without Lawyers (not a title you typically expect to see from a lawyer). Thanks very much for being with us today. It's good to speak with you.

Phillip K. Howard: Nice to be with you, Leslie.

Ms. Kane: I want to begin with a couple of provocative quotes that you have made in different speeches at different places. You have said, "Crazy laws have changed Americans to the point that they no longer trust their own judgment," "People are acting like idiots," and "An uncontrollable web of rules ensnares people, particularly in the medical profession." Those are pretty strong statements. What do you mean by them?

Mr. Howard: Throughout society, people with responsibility no longer feel free to do what is right. Teachers have lost control of the classroom. They are told that they can never put an arm around a crying child. Healthcare professionals find themselves with their noses in rulebooks, trying to figure out what can be reimbursed or what the practice guidelines require instead of just trying to understand what a patient needs and doing what their professional judgment says. It is an enormous diversion of energy and undermines responsibility.

Ms. Kane: Trial lawyers, who do not look very kindly upon you, say that they are just fighting against ineffective care. What do you have to say about that?

Mr. Howard: It is important that patients who are injured by mistakes be compensated in a way that the law is supposed to provide, but the point of law is to provide reliable decision-making that can sort good healthcare from bad healthcare. That is not how the system works; rather, it is ad hoc, jury by jury. The studies show that the system is rife with error in both directions; sometimes it favors the doctors who did something wrong and often it favors an injured patient even when the doctor did nothing wrong, particularly in tragic cases. The result of that unreliability is that doctors go through their days with little lawyers on their shoulders whispering in their ear, "What happens if something goes wrong?" That leads to all kinds of pathologies: defensive medicine, ordering tests and procedures just to prove that you did something, bulking up patient files with irrelevant facts just to prove that you looked at everything.

A patient record would be much more useful if it focused on things that were abnormal rather than [all of the details about] a patient who is normal. One of the worst things about the current system of unreliable justice is that it has fostered a culture of opacity. Studies on this find that physicians and nurses are thus trained not to speak up when they see something in their peripheral vision that they are not sure is right, because they might be taking legal responsibility, and you do not want to take legal responsibility if you do not have to. So all of these tragic errors occur because people are afraid to say, for example, "Are you sure that is the right dosage?" when it is not their patient.

Ms. Kane: Looking at this from the other point of view, some people say that physicians are just using the excuse of defensive medicine to perform more services. Do you think there is any truth to that?

Mr. Howard: Sure. There are mixed motives. We have a horrible system of healthcare reimbursement that encourages physicians to think selfishly about what is reimbursable, which drives care in the direction of what can be reimbursed rather than what is necessary. Sometimes -- not all the time, but sometimes -- physicians are paid more for it, and maybe there are some physicians out there who are just being greedy, but often I think physicians do not even know what their motive is. They know they are trying to protect themselves and they know that this gets reimbursed, so you have this whole system leaning towards doing what can be reimbursed and doing more rather than doing what is really needed.

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