The Medical Establishment’s Demonization of Malpractice Attorneys.
Throughout our education and training, we physicians are intermittently schooled about the evils of medical malpractice lawsuits.
This brainwashing process entails anything from how to avoid a “med-mal” lawsuit, to how these legal complaints are driven by money hungry personal injury attorneys, to how to stay loyal to each other and to our “standards of care” when defending against med-mal litigation, to how damaging such cases are to the financial integrity of the healthcare system we belong to and to the reputations of individual physicians who are our colleagues.
You name it, and when it comes to defending against malpractice claims, the guardians of the healthcare establishment will promote it to the young physician until it is fully engrained.
This propaganda is so radically contorted, you’d think the medical establishment is a charity organization that could do no wrong — not the financially driven business that it is in America. Of course, we physicians are all susceptible to this hogwash, because most of us chose the medical profession based in noble and idealistic intent. “How could we possibly be wrong?”, our overinflated egos ask.
At the center of the caricature painted by the guardians of the medical establishment is a harmed patient or grieving family and an immoral, money hungry personal injury attorney egging them on to seek monetary damages from noble professionals — the imagery is of thieves robbing a church, hooligans damaging an institution whose purpose it is to selflessly serve the sick, a crazed ambulance chaser whose only goal is to profit from sick people’s desparation.
This convenient misrepresentation of medical malpractice law, created by legal defense professionals and medical establishment leaders, has been imprinted in the minds of a vast majority of American physicians — and many in the healthy public. And it renders many of us totally distrustful of Plaintiffs’ lawyers, making assumptions about their corrupted motives and unwilling to cooperate with them — unable to understand the seemingly paradoxical but critical importance of medical malpractice litigation to the very health and integrity of our medical system.
Of course, the visceral distaste for medical malpractice litigation has evolved to bolster the main legal defense against charges of medical malpractice. That being, so long as a physician can claim that he/she exercised a standard of care, he/she is in legally defensible space. Most physicians won’t pay attention to whether a standard of care was inappropriately or unsafely applied to a particular patient and harmed them — or worse, if a particular standard, itself, meets the broader legal definition of negligence. Most physicians won’t even bother asking whether the broadly applied standards of care they offer to patients have been vetted adequately using prospective randomized controlled trials to establish LEVEL 1 data on safety and efficacy. Most physicians, as members of a guild, have either tribal prejudices/loyalties or financial conflicts of interest preventing them from adequately challenging their profession’s standards of care or their rampant colleagues’ use of them — even when they see problems. Of course, neither of these motives justify physician complacency in the face of clear wrongdoing — and especially not when a physician or an entire guild of physicians commit negligence in applying or designing a particular standard of care.
To balance my argument out, of course there are certainly bad malpractice lawyers out there: Ones who don’t litigate cases to completion to keep their firms’ costs at a minimum, or those who are primarily motivated by money and not by the principles of justice they are sworn to uphold as officers of the court. But, unfortunately, such bad apples are part of any profession — so this is by no means a valid indictment of the medical malpractice lawyer.
It’s a fact that most personal injury attorneys live off of the contingencies they earn when they settle or win cases for plaintiffs. So the whole system is financially motivated. But money being the main driving force of medical malpractice law does not render it morally objectionable — after all, medicine itself, as one of the largest business sectors in America, is primarily driven by money interests.
The reality is that in a free-market system, where every sector of industry is by its very nature governed by a balance between revenue and liability, the safety of citizens and consumers is actually being assured by this balancing act. And, it’s an undeniable fact that the liability signals to any industry sector needed to create this balance are generated through the civil court system. In fact, “liability signals” are a key component of the market signal to industry — just like market demand for any particular product is. Without robust liability signals and consequences, it would be insane to expect that adequate self-regulation by industry leaders would eliminate harmful products efficiently — especially when it comes to revenue rich and high demand products and services. Medicine is no exception!
The genius of the medical defense guardians is in not only having created a legal paradigm, where breach of standard of care is the threshold for progression of med-mal cases in court — but also in having successfully convinced the vast majority of American physicians that legal interrogation of the use of a standard of care by a physician/hospital or, worse, questioning of the standard itself is actually an EVIL to the medical system.
In truth, medicine is a business — and no business is perfect. When any industry standardizes a product or service into an efficient revenue machine, typically, only the threat of liability, or liability itself, will drive the business to change course towards safety, when unsuspecting and trusting consumers are in harms way. And in a financially driven society, medicine is no exception to this rule — despite the morally untouchable aura of the white coat and the “selfless” veneer of contemporary American medicine.
To be clear, I am no apologist for the medical malpractice lawyer — certainly not the cretans amongst that group who are willing to override the standards of professional conduct and justice with money as their primarily goal. Having been on the receiving end of a bad plaintiff lawyers’ assault as a physician in the past, I know that many of these folks are simply defunct thinkers and fail their clients miserably because of greed.
But, of course, I would say the same of the grotesque physicians whose main motivator is money — and who nonchalantly blast through their “cases” for need of “volume” and “revenue”.
I am, however, suggesting that every physician should abandon this false notion that medical malpractice law is our evil enemy.
Medical malpractice law is the force that balances revenue with liability in America to help the medical establishment evolve into a safe and justifiable utilitarian space. Let us reject the propaganda that plaintiff lawyers are an immoral and money hungry bunch — because, in fact, the vast majority are at last as much on the side of the patient-client as every physician claims to be.
In the end, I suspect that plaintiff’s attorneys and the civil court system, not physicians, will be the ones to balance out our radically imbalanced healthcare sector — and save it from financial and moral bankruptcy.
My perspective here has come from deep personal wounds and a clear view into the souls and behavior of those who are the guardians of the medical establishment —But, business is business and money corrupts, no matter the academic accolades and well-marketed insignia and white coats attached.
Of course, as a physician, having this opinions puts me in the significant minority — and at odds with the zealots who are in charge of guarding the institution and its financial loot. But so be it!
