The famous passage in Macbeth, “a tale told by an idiot, full of sound and fury, signifying nothing,” refers to the futility of life. Or does it refer to a medical malpractice lawsuit?
There are 175 lawyers in Congress; 1 out of every 3 members is a lawyer. There are, also, 20 doctors; 1 out of every 27 members is a doctor.
Of the 175 lawyers, those who were formerly malpractice attorneys are unknown. Sen. Dick Durbin was.
Of the 20 physicians, those who were formerly medical expert witnesses in a medical malpractice lawsuit, likewise, are unknown. We do know that some were defendants: Sen. John Barrasso, Sen. Rand Paul, Sen. Roger Marshall, and Rep. Scott DesJarlais.
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It goes without saying that for 195 members of Congress, which accounts for 36 percent of the entire Congress, medical malpractice is more than just passing legislation. The success rate of doing so is the Affordable Care Act (ACA), which has no provisions concerning medical practice. There is always HR 1215. This bill caps noneconomic damages in medical malpractice lawsuits at $250,000. It died in Congress.
Yet, this bill recognized that frivolous lawsuits were problematic. According to the Congressional Budget Office, if passed, at the very least, the cost of defensive medicine would decrease by $10 billion per year. In terms of health care costs, $10 billion is a drop in the bucket. Still, it is the annual cost of insulin for every insulin-dependent diabetic in the country; the cost of 350,000 ICU beds; and premiums for 1.5 million Medicare patients. However, for those who opposed it, the reduction of defensive medicine mattered less than the specter of limiting medical malpractice lawyers from filing a frivolous medical lawsuit against a doctor.
According to them, when negligent doctors are loose upon the land, they must be held accountable lest good people are harmed. How about when sanctimonious lawyers are loose upon the land? Their self-righteousness is less about protecting good people than it is about protecting the proprietary interests of medical malpractice attorneys. In the end, there is only ambition, power, and greed.
Today, our country is beset by so many problems that medical malpractice is not a big deal in comparison. However, by connecting the dots, a disturbing picture emerges. There is something catastrophically wrong when systems fail.
Lawyers not only make the rules for us, but they make the rules for themselves, as well. Paragraph 9 in the preamble of the American Bar Association’s Model Rules of Professional Conduct states that depending on circumstances, a technical violation of a rule is not necessarily a wrongdoing. The preamble makes rules discretionary according to the circumstances. Under what circumstance is a violation of a rule not cheating and since when is cheating not a wrongdoing? If serving justice is as arbitrary as circumstances, then zealous advocacy by lawyers and intellectual differences of opinion by medical experts are convenient excuses to break a rule.
This explains what happens when I confront my state board of physicians and my state medical society over a high-profile malpractice verdict.
The main medical expert for the plaintiff attorney is a maternal-fetal medicine specialist and a lawyer. He also has an MPH and an MBA. He does not practice medicine and, instead, maintains his own consulting practice. Although some states place a time limit of 20 or 25 percent on expert testimony, this expert dodges those rules. According to him, the hours spent reading medical charts, researching medical literature, or writing preliminary expert reports are not activities that directly involve testimony.
I file a grievance with the medical society over this expert’s impunity toward objectivity; objectivity is required by the AMA’s Code of Ethics. The society simply dismisses my grievance in the most perfunctory manner imaginable. In response, I file a grievance about the society with the state board of physicians. It denies having jurisdiction over the medical society.
The duplicitous peer reviewers, who, themselves, are either attorneys or doctors, too easily interpret legitimate violations of the AMA’s Code of Ethics, of the medical society’s rules and of the board of physicians’ rules not as a wrongdoing, but as something that only superficially appears as a violation. No rule is violated; therefore, no correction is warranted. An alternate explanation for these decisions is peer reviewers are simply afraid of crossing swords with a consultant like this one. Nevertheless, he is only a hired gun.
Peer reviewers remain silent. “Thus, silence does make cowards of us all,” a quote from Hamlet. However, when such consultants are exposed, they are not the giants they would have us believe.
You just finished reading a tale “full of sound and fury.” If you are a physician and you are ever sued for medical malpractice, consider who is telling the tale, lest the tale of your medical malpractice lawsuit is told by an idiot, signifying nothing. Remember, although medical malpractice insurance companies have chosen your attorney and your attorney has chosen your medical expert, there are still experts who are only hired guns and are in it for the money. Ask yourself, “Is this how I want to be represented?”
Howard Smith is an obstetrics-gynecology physician.
