Time for Physicians to Speak Up on Medical Malpractice

September 11, 2009
Mike Hennessy

Of all parties taking part in the national discourse regarding healthcare reform, it is surprising that physicians have not answered the call to arms on the one issue on which all should agree.

The national discourse regarding healthcare reform has taken several interesting twists and turns since the inauguration of a new President. First to speak was President Obama, laying down general principles under which he wanted to see a healthcare overhaul, and leaving the details to his administration and lawmakers in Congress. Next to speak were Republicans, questioning the trillion-dollar-expenditure and the reliance of the public sector instead of the private sector.

Next were private citizens (or, if you prefer, “angry mobs”) at town hall meetings across the country. The citizens were driven not by a vast right-wing organization, but in many cases by fear that they would lose their current health coverage, or their relationship with their physician, as a result of healthcare reform.

Physicians, as the cornerstone of healthcare in this country, would seem to have the most critical participants in the debate. Yet, with a few notable exceptions, our nation’s physicians have largely been silent on the issue of healthcare reform. Certainly there has been no unity of voice for physicians. A physician friend of mine has suggested that it’s partly due to apathy; many of his colleagues, he says, seem to now think of being a doctor as a 9-to-5 job, as opposed to a mission.

But it is surprising that our nation’s doctors haven’t answered the call to arms on one issue in particular on which all should agree: major malpractice reform should not be an afterthought to any discussion of healthcare reform—it should be front and center. Primary care physicians and specialists alike know the sting of malpractice litigation, the long shadow it can cast on any practice, and the impact the threat of litigation has on everyday patient care. Yet, to date, none of the major bills circulating even tackles the issue.

A physician friend who has seen just about everything tells stories about radiologists who read scores of unnecessary x-rays and then suggest more involved tests “just to be certain they don’t miss anything,” gastroenterologists who make money doing procedures ostensibly so that they don’t get sued, and cardiologists who do too many stress tests and cardiac catheterizations. These are not isolated anecdotes. Every physician can rattle off examples.

On the need for malpractice reform, the entire AMA membership is in unison—the organization has made it one of their top priorities to pursue a national cap on jury awards in malpractice cases. But President Obama, speaking at the AMA National Meeting this past Spring, plainly said, “I want to be honest with you. I’m not advocating caps on malpractice awards, which I personally believe can be unfair to people who have been wrongfully harmed.” And in his national address to the country one day ago, Obama made only a token mention of malpractice reform, and offered no specifics on how to get it done and no mandate for Congress to include it in the next reform bill draft.

In other words, “I feel for you, but I don’t support you.” Though the President is too politically savvy to say why, others in his party were open about why the bills do not address malpractice issues. Democratic leader Howard Dean, in remarks to the Washington Examiner, said, “The reason tort reform is not in the [health care] bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on. And that’s the plain and simple truth.”

As a voting bloc, physicians don’t hold nearly as much sway as seniors or union members. But as influential leaders of society, physicians still wield a great deal of authority and influence—not least of which with their patients. Organizations like the AMA, the American Academy of Family Physicians, and many specialty organizations are speaking out about the need for major malpractice reform, but until all physicians add their voices together, this will remain a back-burner issue.

Until medical malpractice reform comes to the front of the debate, we all stand to lose. Every taxpayer who pays higher taxes to cover malpractice insurance loses. Health insurers paying for unneeded medical tests and procedures as a result of physicians practicing “defensive medicine” will lose. Employers, who still pay the lion’s share of employee benefit costs will lose. The economy will lose, crippled by waste and inefficiency.

It’s time for physicians to speak out about this to anyone who will listen, including their patients, their state and local governments, their state medical societies, their specialty organizations, and advocacy groups like the AMA and AAFP. It’s time to expose our broken legal system for what it is—unfair, expensive, and leading to unintended consequences that hurt many aspects of our economy along with the practice of medicine. There’s too much at stake for physicians to stay silent any longer.

Mike Hennessy is Chairman and CEO of MJH & Associates. Click here for more Hennessy's Highlights