A plea for sanity

Volume

34 Diseases of the

COZON & RECTUM Number

2 FEBRUARY 1991

The Joseph M. Mathews Oration

A Plea for Sanity A C o m m e n t on Medical Liability

Stuart H. Q. Quan, M.D.

From New York, New York

Quan SHQ. A plea for sanity: a comment on medical liability. Dis Colon Rectum 1991;34:105-110.

E very other year since 1938, our socie ty com- m e m o r a t e s and honors its founder and first

p res ident Dr. Joseph McDowel l Mathews with this address (Fig. 1). To be se lec ted as the 25th Math- ews Orator by your p res iden t and the execut ive commi t t ee ove rwhe lms me with honor .

Before embark ing on my topic ent i t led "A Plea For Sanity," a c o m m e n t on medical liability, it is

appropr ia te to say a few words about Dr. Mathews' a ccompl i shmen t s and realize how indeb ted we are

to him. Dr. Jo seph McDowell Mathews was born 1847 in New Castle, Kentucky. By the t ime he was

30, this young physician b e c a m e in teres ted in colon and rectal diseases but was dissatisfied with the lack of profess ional ism and k n o w l e d g e relat ing to the current practice of this specialty. Failing to

fulfill his quest for s tudy of this subject in New York City, he journeyed to London and enro l led in the St. Marks Hospital .

On his return to Louisville, he l imited his practice to that of colon and rectal diseases, b e c a m e

the first professor of this newly created special ty in the Kentucky School of Medicine and, indeed,

Read at the meeting of The American Society of Colon and Rectal Surgeons, St. Louis, Missouri, April 29-May 4, 1990. Address requests for reprints to Dr. Quan: 116 E. 68th Street, New York, New York 10024. 0029/7828/91/4306-0319/$3.00 Diseases of the Colon & Rectum Copyright @ 1991 by The American Society of Colon & Rectal Surgeons

105

Figure 1. Dr. Joseph Mathews.

b e c a m e the first procto logis t p e r se in this country or any other country.

Attesting to his outs tanding qualit ies of leader- ship, at age 52 this remarkab le man b e c a m e the

106 QUAN Dis Colon Rectum, February 1991

youngest President of the American Medical Asso- ciation in 1899. It was also in this important year that he gathered together 12 of his colleagues who were either full or part-time practitioners of proc- tology, to found The American Proctologic Society, Joseph Mathews became its first president, whose memory we honor today.

My talk entitled "A Plea For Sanity," a comment on medical liability, is based on almost 50 years of involvement with medicine from the first day I entered medical school in 1941 to the present. What spectacular and almost incredible advances have been made in medicine these past 50 years. To name a few: anesthesiology, antibiotics, cardi- ovascular surgery, transplantation surgery, cancer surgery and research, etc., etc.

In my college days, I can recall a painting by an unknown artist which greatly influenced me and inspired me to go into medicine. It is a painting depicting a bedside physician attending a very sick child lying in bed at home. What that physician of long ago lacked in medicine and medical technology was partially made up by his compassion, pa- tience, and love of his work, and therefore of his little patient. The practice of medicine was gener- ally regarded as the noblest of professions then and its practitioner revered by his patients. Where has that universal respect disappeared to?

Picture that same child now in an intensive care unit hooked up to so many life support systems, that the little body and face are virtually unrecog- nizable. The horse and buggy doctor then, now called primary care physician, has been replaced by a corp of attendings, residents, nurses, and technicians. Personal attention and care by one individual has been replaced by computer print- outs and high technology. Expectation for a medical miracle to occur runs high in modern medicine, and the family of this sick child anticipates a complete cure, or else, someone is to be blamed.

The "or else" attitude today is generated in part by the overreporting in the press and by the media on spectacular advances of modern medicine, and equally spectacular medical negligence. Because of this, the patient and the patient's family expect too much from the physician. Medicine, after all, is an imperfect science. We physicians may attempt to influence life and death, but we cannot control life and death. Witness the falling apart between doctors and patients as depicted by the press in recent mass publications.

Figure 2. "Of What illness Will the Patient Die?"--Goya.

Yet this is not altogether new in the history of doctor-patient relationship. One only has to go back to the 18th century for a pictorial description by one famous Spanish master painter Francisco Goya, for example, who besides being an elegant court painter, was also an acerbic critic of his own 18th century society. This next figure illustrates how he regarded physicians of his time. The painting is entitled "Of What Illness Will The Patient Die?" (Fig. 2). The response is sardonically suggested by the picture, namely "He Would Die of The Doctor." Note the great ring on the fashionably dressed physician. It is so large that it probably makes the patient prognosticate his own burial stone.

If this deplorable caricature of physicians existed then in the eyes of a talented and highly regarded artist, when medical malpractice was unheard of, transplant that idea to the present and it is no wonder we have the medical malpractice problem. The physicians assume partial responsibility together with the lawyers for this dilemma. Since according to Article Seven of the United States

Vol. 34, No. 2 THE JOSEPH M. MATHEWS ORATION 107

Constitution: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." The right to sue is here to stay. We must take stock of our own profes- sion, our own behavior, and image to the public in resolution of this predicament.

At this juncture may I cite some personal experiences to illustrate: When I first went into surgical practice in 1953, my malpractice insurance pre- mium for top coverage was approximately $200.00 per year. Now it is over $70,000.00 plus the rein- forced coverage paid by the hospital.

Furthermore, two brief personal experiences will illustrate the precarious relationship between responsible surgeon and patient. Patient 1, a 57- year-old stone mason who was referred to me by a previous patient, received a low anterior resection with primary anastomosis for a Dukes' C cancer of the midrectum from which he recovered satisfactorily. His only postoperative complaint was impotence which was satisfactorily treated with penile papaverine injections. Two years postoper- atively a mildly elevated CEA (13 ng) prompted a thorough workup that revealed small scattered pul- monary metastases for which chemotherapy was begun. At this time the patient apparently con- suited his attorney who informed me of an impending law suit. No Bill of Particulars was sub- mitted. After much conferring with my defense attorney and the referring person who knew the patient personally, the impending suit was dropped.

Patient 2, a 60-year-old business executive referred by another physician, had a large midrectal cancer for which an abdominoperineal resection had been the only prior operative recommenda- tion. I was able to perform a low anterior resection with primary anastomosis for what turned out to be a Dukes' C lesion. Despite a temporary diverting colostomy and apparent healing of the primary anastomosis, a subsequent leak from the primary anastomosis developed following closure of the colostomy. The patient left my care at this point and brought suit against me. After countless hours of deposition and months of litigation, the case was settled out of court as advised by my insurance carrier.

In my retrospective analysis of these two cases,

I realize now that what eventually resulted in the legal action against me must have been based on insufficient communication with the two patients preoperatively, as to what might happen to them despite a difficult, complicated "successful operation." In patient 1, I apparently failed to explain the likelihood of metastatic disease occurring despite a curative resection. In patient 2, I apparently failed to warn him of the possibility of anastomotic breakdown and its consequences.

The wise Bostonian physician Francis Peabody said that "The secret of the care of the patient is in caring for the patient." I wish to paraphrase, and to add to these words "The secret of communicating with the patient is to communicate with the patient."

This brings us to the discussion of the term "informed consent," and how important it is to realize the full meaning of its legal significance for the physician and its ethical importance and con- sideration for the patient. Taking time to explain the benefits and the pitfalls of an operation to the patient is not only a protective mechanism for the surgeon against misunderstanding, but, a caveat against overexpectation of results by the patient. Wise defense attorneys remind us that an informed consent discussion should begin in the office when the doctor first sees his preoperative patient, con- tinue through the time of preliminary preparation and culminate in the signed informed consent sheet just prior to surgery.

Informed consent thus should not be treated as a discreet doctrine, but should be an ongoing process of medical discussion and disclosure to the patient to formulate a therapeutic alliance between doctor and patient. Extra time for such a discussion will help build a relationship that not only enhances the therapeutic value for the patient, but indeed forestalls misunderstanding that can lead to malpractice suits. Or as one prominent defense attorney puts it, "So-called bad outcomes complete with bad feelings precipitate more malpractice claims than bad medicine itself."

Bad feelings on the part of the patient and the patient's family indeed are behind most malpractice actions. These feelings of anger and emotion- alism can be prevented, or at least diminished, often, if we surgeons can reveal our humanistic and compassionate side to the patient or the patient's family prior to and following an operation. In this fashion, then perhaps the patient and the


family can better understand or perceive that not every unexpected and/or unfavorable clinical outcome is avoidable or preventable.

It goes without saying how important it is for us to keep good notes in our office charts and on the hospital records. For as a study of 20 patients showed, informed consent information-recall by patients was only 29 percent for primary recall and 42 percent for secondary recall, the same author of this article, a cardiac surgeon, in a subsequent study concluded that: "The surgeon is a major benefici- ary of in formed consent, with an unparal le led opportunity to reduce his personal liability. This may have resulted from more realistic expectations following informed consent, as well as an appre- ciation by the patient of the fact that the physician and surgeon cannot control all eventualities. Of some importance is the f a c t that in formed consent with disclosure of all adverse results does not ap-

p e a r to do any harm." Another remedial device with which to reduce

malpractice litigation is the use of a medical malpractice mediation panel. Since 1975, it has been part of the New York State Law, wherein a judge, lawyer, and physician sit on a panel to dispose of a malpractice suit prior to trial if possible. (In 1985 the Judicial Law of New York has amended to exclude a few counties including Suffolk, Oneida, Oswego, etc.) An informal presentation by the plaintiff and defense lawyers is made to the panel who then discuss the merits of the case to deter- mine one of three verdicts: 1) a unanimous judgment in favor of the physician indicating that no liability exists, 2) a unanimous judgment in favor of the patient indicating that liability does exist, or 3) a mixed verdict wherein the panel cannot reach a predominant judgment.

Whereas a mixed or no finding verdict by the panel is meaningless, a unanimous verdict for or against the physician is admissible as evidence for the trial. This in effect might help either side to negotiate a disposition and thus avoid a formal court hearing.

In the presentation to the mediation panel or at trial, the plaintiff has a "burden of proof" that requires showing that liability and "proximate cause existed," namely that the physician departed from the standard of practice current for that time, and that "departure" caused injury to the plaintiff. For example, if the physician prescribes an inap- propriate medication that causes no harm, then

there is no malpractice. One can see how difficult it is to apply this analogy to surgical procedures that we deal with.

For example, in our particular specialty, a patient with cancer of the rectum must realize that not every cancer can be cured, nor that every rectum can be saved. He must further be informed that performing such delicate surgery is not without unavoidable complications even in the most skilled hands.

One can also readily realize the difficulty of finding an impartial medical expert (selected by the representative local medical county society) who has the credentials or expertise to perform some of the more complicated surgical procedures that we do. Also, a general surgeon, no matter how extensive his surgical experience is, may be sitting on the panel to render judgment that we should have performed art abdominoperineal resection in- stead of a low anterior resection with end-to-end anastomosis for a midrectal cancer, fully realizing that the former is easier to do, and fraught with fewer postoperative complications. Be that as it may, the medical malpractice mediation panel does serve a useful purpose in reducing the over- burdened court docket.

That there is a ray of light in the dark sky is suggested in a recent report published in the Feb- ruary 1990 issue of the American College of Sur- geons Bulletin. 1 It is based on an 1987 study com- missioned by the American College of Obstetrics and Gynecology to conduct an omnibus telephone poll survey of 338 state and federal judges through- out the country, as to their opinion concerning various tort reforms in malpractice cases. Mind you, most judges are lawyers by education, but the very nature of their station in the judicial system requires them to be impartial and protect the interest of society. The conclusion of this study is and I quote: "On balance the ACOG survey of judges shows that they agree with physicians who argue that the present system needs to be changed. The overall message is that the presen t tort system does not work very well in the area of expert witness testimony, the system of j u ry decision making, or the a wa rd in g of damages. Since it does not work very well, the medica l c o m m u n i t y must con t inue to advocate changes to the system, ones that are fa i r to society as a whole. The judges ' opinion on what reforms would better serve society can be persuasive data to presen t to state a n d f edera l

Vol. 34, No. 2

Median Awards 1000-- ($Thousands)

800

400 '0: ,HRtnH lg80 81 82 83 64 B5 66

THE JOSEPH M. MATHEWS ORATION

87 S8 8g

~ a r r o r ; s/~ury verdict Research

Figure 3. Reduction in median awards according to years 1980-1989.

8 ~

legislatures, So it's not just lawyers versus doctors anymore. After all the judges are lawyers too. A n d

these lawyers seem to be on the doctors side."

An even more hopeful light on the horizon is reflected in this article published in Barron's, a

business journal, in October 1989. 2 The title of the

article is: "Just What The Doctor Ordered" (The crisis in the medical malpractice insurance is ending). The word "ending" may be over optimistic, but it does describe what is currently happening and the various factors that seem to be responsible for the pendulum swinging back toward a balance.

Whereas the increase in malpractice insurance premiums as reported by the New York State's largest insurer was 128 percent in 1987, and 77 percent in 1988, it was only 10 percent in 1989. Figure 3 shows the reduction in median awards in thousands of dollars from 1980 to 1989. Notice the peak was in 1986 and has since been coming down, $800,000.00 to a little over $200,000.00. Figure 4 shows cumulative percentage changes by regions from 1985 to 1987 in the percentage of physicians being sued. The western area has been reduced by almost 20 percent, Texas 23.4 percent, the southern states and Alabama 31.7 percent. Even New York has gone down almost 25 percent, as well as Maine.

Numerous factors contribute to this happy trend because many states have revised the law as per- taining to liability claims. To mention a few: 1) Fee schedules for plaintiffs' lawyers are being scaled down. 2) Penalties have been imposed on lawyers for bringing lawsuits that are deemed frivolous. 3)

109

Statute of limitations are being pared down in which suit can be brought. 4) Plaintiffs must find a

medical expert to certify that the claim has merit for filing (except in New York). 5) A specific limit has been placed on the amount that a jury can award for "pain and suffering." 6) Insurance carriers and defense lawyers alike are taking a tougher stance not to settle but fight the case in court. 7) The general public is beginning to realize that the exhorbitant costs involved in litigation and enor- mous fees awarded, eventually will be reflected in

Figure 4. Percentage reduction of malpractice suits in dif- ferent U.S. states, 1985-1987.

Figure 5. Dr. Arrieta and Goya.


the c o s t of medical care for the consumer himself. 8) Doctors and hospitals admonished by their insurance carriers are modifying their practices to try to attain risk-free care for their patient.

I am sure it is because of all the above that accounts for the fact that three of four of the suits which are decided in court do resolve in favor of the surgeon.

In brief then, we can surmise from this interest- ing article that, although the medical malpractice crisis is not ending as the author optimistically labels, it is at least changing for the better. There are also reforms in the future that may help alle- viate the current malpractice liability problem. 3 These include the replacement of fault-based tort litigation by an impartial administrative agency in which the injured patient would be compensated for economic loss, regardless of negligence. The so-called no fault concept is recommended in a recent Harvard study 4 and already exists in the

states of Virginia and Florida in case of birth inju- ries, and indeed has worked well in small countries like Sweden and New Zealand. (Even as I speak, Congresswoman Johnson of Connecticut is drafting a Bill to this effect for federal legislation.)

Thus, my plea for sanity in this medical malpractice morass among doctors, patients, and lawyers is that, although we must encourage the patient on one hand to be realistic about the limitations of our treatment, we, at the same time, must leave him with encouragement of a favorable outcome. We ourselves must also be aware that high tech-

nology is not a replacement for human kindness and understanding. Judges and lawyers both good and bad are here to stay. We can best avoid them by following another Peabody dictumS: "The treatment of a disease may be entirely impersonal; (but) the care of the patient must be completely personal."

The last figure I wish to show you, ladies and gentlemen, is by the same Spanish master who had previously so sardonically portrayed physicians as dressed up donkeys. Goya himself now is a patient. This self-portrait shows him recovering from a very serious illness, at age 73, supported and tenderly cared for by his personal physician, a Doctor Ar- rieta, who saved his life (Fig 5). This painting was dedicated to the good doctor and illustrates the ideal physician-patient relationship that we all hope to achieve.

REFERENCES 1. Helan D. The judiciary: surprising supporters of mal-

practice reform. Bull Am Coil Surgeons 1990;75:7- 11.

2. Henriques D. Just what the doctor ordered. Barron's 1989; October 2.

3. Holzer JF. The process of informed consent. Bull Am Coll Surgeons 1989;74:10 14.

4. Manuel BM. Professional liability--a no-fault solution (editorial). N Engl J Med 1990;322:627-30.

5. Peabody FW. The care of the patient. JAMA 1927;88:877-82~

6. Young RA. The medical malpractice mediation panel. N Y State J Med 1989; 54-6.

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A plea for sanity