Starting a Dialog between Attorneys and Surgeons about Medical Malpractice

I was honored to be invited to speak the other day to a leadership conference of the American College of Surgeons about medical malpractice. They assured me I could leave my bullet-proof vest at home, and true to their word, the assembled surgeons were cordial and asked excellent questions. Even better, they told me how helpful it was to hear from an attorney for injured patients and how they plan to do it again.

I spoke about how patient safety efforts could make for better care and greatly reduce the need for patients to come calling at my office. And I highlighted how the surgeons, mulling over possible “reforms” in the civil justice system in how malpractice cases are decided, ought to consider what I said should be the litmus test of fairness:

Is this reform something you would advocate if the tables were turned, and instead of speaking for doctors you were advocating for a family member injured by care at some medical institution other than your own?

Here are excerpts from my talk:

I feel honored to be here. You might see me as an adversary. After all, I have sued many of your member surgeons. In fact, I think we are natural allies. And I think the more we recognize how closely allied the leaders of the American surgeons are with attorneys who represent injured patients, the better we can make progress in our shared goals.

What do we both want? Your profession and mine both want high quality surgical care for all patients – where the right patient gets the right operation at the right time, done in the right way, by the right surgeon.

We both know that ideal cannot always be met. When things go wrong, when patients get hurt through no fault of their own, when looking back we can see the patient’s injury was entirely preventable, then I hope that we share two more goals:

First, to learn lessons so it doesn’t happen again – so the individuals involved in causing the harm are held accountable if they’ve done something wrong, and to hold the system accountable if it’s done something wrong, and to fix it. That means retraining, educating, coming up with new checklists and protocols. Malpractice cases can provide a powerful tool for re-education and reform. Injured patients know this already when they come see people like us. I hear so many of them say: “The money is not so important. I just don’t want the same thing to happen to somebody else.”

Second goal: to fix the harm to the individual patient. In the kinds of tragic injuries that I and other patient advocates work with – the patient’s health cannot be restored. So our civil justice system uses money as a poor but necessary substitute – to compensate the patient with money for what cannot be replaced in kind.

“Compensate” comes from a Latin word meaning: to weigh one thing against another – literally to balance things out. That’s what justice does.

Yours is an ancient and esteemed profession. Every day, surgeons across America cure disease, relieve pain, and make lives better.

I see what we attorneys for injured patients do as another form of healing – helping to restore broken lives to some measure of independence and dignity. Helping to balance things out.

Part of the legal healing process that health care providers should want to encourage is restoring the patient’s trust in their own doctors and nurses. Trust is a vital ingredient in health care. When injured patients are treated fairly in the legal system, it helps restore their trust.

About our American civil justice system, I feel the same way that Winston Churchill felt about the democratic form of government: Democracy, he said, is definitely the worst form of government … “except for all those other forms that have been tried from time to time.” Likewise, the civil justice system is easy to criticize. It’s too expensive, it takes too long to reach resolution, it can be emotionally difficult on all the participants.

But it’s not broken. And like other democratic institutions, nothing better has been invented for the fair resolution of disputes. Our system is fair to the participants, in several fundamental ways. I can think of at least three.

First, our justice system is even-handed. The same rules apply to both sides.

Second, our justice system respects the uniqueness of each human litigant. There are no pre-fab boxes that people are stuffed into. On the patient’s side, that means you get to try to prove the full dimensions of the injury, with no artificial barriers like one-size-fits-all damages caps, or set schedules of payments like so much for an eye, so much for a brain. On the health care provider’s side, it means proving what was unique to the care in your case that might justify the care and explain the injury.

Third, our justice system respects and maximizes the freedom of the litigants. Each side runs its own lawsuit. Each litigant hires whatever lawyer he wants, pays him whatever they negotiate, hires whatever expert witnesses they want, and then they present their cases in a courtroom presided over by a professional judge trained in neutrality, and usually decided by a jury drawn from a cross-section of the community.

[To be continued in my next blog post; click here to read it.]

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