Take a Stand Against the Liability Cross

Physician's Money Digest, Nov30 2004, Volume 11, Issue 22

The result:

William Jennings Bryan won the Democraticnomination for president in 1896at age 36. The country was embroiled inan epic struggle that would affect thecourse of American history. A few wealthy businessmenon the East Coast had a lock on monetary policy vialaws that made gold the standard for all monetarytransactions in the country. This gold standard made iteasy for them to dominate economic activity to theirown ends. a devastating 9-year nationwiderecession. The Democratic Party was the only organizedopposition to those cold-hearted businessmen, andBryan crystallized the party with a stunning speechdemolishing the arguments for the gold standard,declaring, "You shall not press down upon the brow oflabor this crown of thorns. You shall not crucifymankind upon a cross of gold."

It occurred to me that Bryan might have somethingto say that would help us get through the crisis in ourown time. Of course, when a physician talks about a crisis,they are invariably talking about the liability crisis.So, Mr. Bryan, what do you think?

Mr. Bryan: Since I arrived in your time period, Ihave carefully analyzed your crisis. It is analogous tothe crisis in my time. Rich and powerful businessmenput their interest ahead of the country's and caused aprolonged recession. You have an equally small groupof people (ie, plaintiffs' attorneys), who use the liabilitysystem to their own ends, ignoring the damage thisdoes to the country. It's shocking that through litigation,some of those law firms obtain a cash flow largerthan that of major American corporations. Andwhat do they produce that benefits the body politic?Nothing substantive.

Dr. Constan: How can we fight the entrenched interestsof those decadent lawyers?

Omaha World

Herald

Mr. Bryan: It isn't easy. I spent much of my life railingagainst injustice as editor of the and public speaker on the lecture circuit. Duringthe presidential campaign, I traveled 18,000 miles andgave 600 speeches.

Dr. Constan: But we physicians have done the hardwork for 30 years and haven't gotten anywhere. Whatmore can we do?

Mr. Bryan: You have to keep hammering on theissues that the average person sees as critical. In mycase, they were economic issues: People didn't havejobs and many were hungry. In your case, it's medicalcare. Your latest public health emergency was broughton by excessive reliance on liability as a public policy.Companies that make vaccines have stopped doing sobecause of the high liability costs of that business.Law firms encourage suits against those companies.The elderly sue when they have that rare anaphylacticreaction to a flu shot and shareholders sue wheneverthe stock price goes down. Now the federal governmentis planning to sue Chiron Pharmaceuticals forallowing their vaccine to be contaminated. I don'tbelieve Chiron's board will allow the company to continueto engage in a business with such a tremendouspotential to bankrupt the company. Next year,America will likely have only one company making aproduct necessary to prevent tens of thousands ofdeaths. You ought to be hammering this home withyour legislators and patients.

Dr. Constan: I didn't get a single dose of flu vaccinethis year, and I normally give out over 300 doses. Anepidemic seems certain. My patients will surely suffer,and likely some will even die. My colleague Dr.McMillan is even more upset than I am. His office gotall the vaccine he asked for, but he's worried that hewill be sued for using it improperly. He is subject to allsorts of conflicting rules being promulgated by the publichealth authorities during this time of crisis. The publichealth department in my state has threatened topress civil and criminal charges against physicians whogive the scarce vaccine to those it doesn't consider athigh enough risk. If he refuses one of his patients forbeing not sufficiently high risk and that patient getssick, the patient can sue him. If he shares his vaccinewith my office, he can be sued for abandoning theinterests of his patients. Perversely, you see, my patientswill die because I have no flu vaccine and my friend'spatients will live because they have the flu vaccine, yetI myself am in a better legal position because I can't besued for having no vaccine at all, and I certainly can'tgo to jail for not giving what I don't have.

Mr. Bryan: You've just described a system that isdoomed to fail. The gold standard was doomed becauseit harmed the vast majority of Americans. The liabilitysystem is doomed to fail for the same reason. The richlaw firms will never be able to restrain themselves. Theywill continue to beat up on the pharmaceutical companiesand physicians until no one dares to make vaccinesor administer them. Americans will die, but you can'tprevent it until the system changes.

Dr. Constan: Yet it seems that people are sympatheticto those rich law firms. They like the argument that it'ssimple justice to let anyone sue anyone for anything.

Mr. Bryan: That's why I describe the crisis in termsof a cross of gold. The wealthy businessmen in my timeargued that the economic success of the country dependedon them and their companies being successful, andthat they needed to control public policy for that tooccur. They put up a false cross and argued that everythingdepended on that cross standing. The public in mytime came to understand that this was a lie. And the publicin your time will understand it as well. You musthammer this idea home whenever you can. We did thissuccessfully in the 1890s; you can do it today.

Dr. Constan: But you lost the election. How can yousay you were successful?

Mr. Bryan: We lost the battle but won the war. Neveragain after that election did a few rich businessmen holdsuch power over the economic welfare of our country.The power of an idea was greater than any one personor political party. As I said in my speech, "The humblestcitizen in all the land, when clad in the armor of a righteouscause, is stronger than all the hosts of error."

Dr. Constan: This all sounds plausible, but what ifthe politicians settle for a band-aid solution and persuademore pharmaceutical firms to start making vaccinesthrough tax incentives, a pooled liability fund, etc?The system would remain the same and the countrywould continue to suffer.

Mr. Bryan: The flu vaccine issue is simply the tip ofthe iceberg. There are many other issues caused by thisfalse cross, including the following:

  • Excessive medical costs—People can't afford tovisit a doctor or buy health insurance. You doctors haveno choice but to practice defensive medicine and driveup costs, which further interferes with people gettingcare. Uninsured sick people don't get the care they needand die of their illnesses.
  • Improper diagnoses—Even those who are wellinsured are harmed. Defensive medicine leads to over diagnosisand overtreatment. Some Americans havereceived more radiation exposure from unnecessary xraysthan did atomic bomb survivors in Japan.

Dr. Constan: You're right, if we don't do the x-ray,we'll be sued. If we do the x-ray, even though weknow it is wrong, our patient may get cancer. It's apainful dilemma.

Mr. Bryan: If you do the right thing as a medicalcommunity, you hurt yourself. If you do the wrongthing, which you are perversely incentivized to do, youhurt your patient. We've been talking about the cross ofgold, but we can't forget the crown of thorns and the factthat a crucifixion was taking place in this analogy. Yourpatients are suffering. There is dying taking place on thatcross. You get people's attention when you talk aboutsuffering and dying. You're calling on all responsiblepeople to change a system that is hurting them.

a family practice physician in

Saginaw, Mich, is the editor of the Saginaw County

Medical Society Bulletin and Michigan Family

Practice. He welcomes questions or comments at

3350 Shattuck Road, Saginaw, MI 48603; 989-792-1899; or louisconstan@hotmail.com.

Louis L. Constan,