The Urge to Sue

It was almost midnight as a Denver attorney and two physicians drove home from an outdoor concert in nearby Red Rocks Park. Suddenly, the car's headlights flashed across a hole in the earth at the edge of the road, and the lawyer blinked with astonishment. From the dark hole protruded the legs of a woman. "That woman needs help," he cried, stopping the car. "Drive on," urged the doctors. "We can't afford to get mixed up in this and then get sued for malpractice later." They drove on.

More and more U.S. doctors are resorting to just such callous measures, as they learn a bitter lesson: medicine is an inexact science, but there is little room for error as far as the courts are concerned. One in every seven U.S. physicians, says the American Medical Association, has been sued for giving treatment that a court may decide is contrary to accepted rules and injurious to the patient. Last year alone, 6,000 doctors were sued. Jury awards in malpractice suits have nearly trebled since 1950; lawyers' fees, court costs, damages and out-of-court settlements in last year's cases totaled an estimated $50 million. Good Samaritan cases, such as the Denver doctors dodged, form a small but rich field for suits, because emergencies demand haste, often catch the doctor ill-equipped and ill-prepared.

Doctors v. Lawyers. The result is that almost 95% of all U.S. doctors carry malpractice insurance and many feel like sitting pigeons for unscrupulous patients and lawyers. General Counsel C. Joseph Stetler of the A.M.A. blames exaggerated stories of new drugs, methods of treatment and "miracle" surgery, which "lead the public to believe that anything less than a perfect result is per se evidence of negligence." Result: an increased urge to sue. Some doctors insist that only 10% of all malpractice suits have any merit; the rest, they claim, are nothing more than "legalized blackmail."

Not so, say trial attorneys like San Francisco's Melvin M. ("King of Torts") Belli, whose courtroom success once moved a California physician to speculate: "If Melvin Belli were removed from the California malpractice scene, our insurance rates* would drop 50%." Quickwitted and Darrowesque, Lawyer Belli estimates that he has filed more than 1,000 malpractice suits (75 actually went to trial), relieved doctors and insurance companies of $8,000,000 in judgments and out-of-court settlements.

Belli says that "most of the verdicts are justified, because judges and the law have put so many safeguards around doctors." He points out that in some states (e.g., Arizona, New Mexico) malpractice cases are "very rare indeed," because doctors flatly refuse to give testimony that would show medical negligence by their colleagues. Says Belli: "It's the damnedest conspiracy, but it's understandable: the doctors fear reprisals--their insurance can be yanked, or they can be bumped off the hospital staff or find empty chairs beside them at the medical banquets." Doctors' self-imposed silence has prompted two states--Massachusetts and Nevada--to permit use of standard medical textbooks in court to establish prudent practices.

Res Ipsa Loquitur. A.M.A. studies show that two-thirds of malpractice claims originate from in-hospital incidents. Sponges occasionally are sewn into patients' stomachs (a group of California hospitals recently reported a run on "lost sponges"--18 in a single year). Obstetricians have been known to deliver one baby and quit, leaving its twin behind. Surgeons have removed a kidney only to discover that one is all the patient had. A more common cause: transfusions of mismatched blood, which kill about 3,000 patients a year in the U.S., injure thousands more. In such cases, where human error is clearly responsible, courts often hold that res ipsa loquitur--"the thing speaks for itself"--and the injured patient need not produce expert testimony to prove the physician's negligence.

The doctor may also get into a jam for administering antibiotics to allergic patients, or for invasion of privacy--like a Michigan physician who invited a friend to watch a delivery. He may even be accused of contributing to his patients' neuroses. A classic case: a New York woman, suffering from bursitis in her shoulder, received a radiation burn from excessive X-ray treatment, was later warned by a skin specialist that cancer might develop. She sued, and an appeals court in 1958 awarded her $15,000 for "cancerophobia" induced by the dermatologist's warning.

Doctors also have been sued for failing to spell out risks. Notes one recent decision: "The plaintiff may expect his claim to be upheld if he avers that his right to make his own decisions, based on the nature of his disease, was thwarted by the doctor's concealment." Earlier this year, after a Kansas woman suffered burns from radioactive cobalt therapy for her breast cancer, her physician was judged negligent--even though the treatment was skillfully performed--simply because he failed to tell her there was a risk of radiation burn, and therefore, said the court, had not obtained her "informed consent" to the treatment.

Nowhere in the U.S. is the malpractice suit more common than in California. One in every four California doctors has already been sued at least once, and the state boasts records for both the highest jury award ($250,000) and the highest out-of-court settlement ($290,000) in U.S. history. During the past four months, in Los Angeles County alone, malpractice damages have totaled $400,000. One California doctor, insured for only $5,000, was slapped with a $75,000 judgment, lost his home, automobile and other assets. Dr. William F. Quinn, former president of the Los Angeles 'County Medical Association, says the area's physicians may soon become uninsurable. He adds that this might be a good thing: "We wouldn't have half the malpractice suits we have if the shysters and the insurance carriers knew we weren't insured."

Fighting Back. Physicians last year persuaded the California legislature to Dass a "Good Samaritan" law that guarantees civil immunity to doctors giving aid in emergencies, and the Colorado Bar Association is drafting similar legislation. Members of California's joint Alameda-Contra Costa Counties Medical Society, just across the bay from San Francisco, have a successful, 15-year-old malpractice review program that has been copied in eight other states. Its motto: "We fight when we're right and pay when we're wrong." Patients' complaints are studied by a board of 15 doctors and one clergy man. If the committee decides a malpractice complaint is justified, the medical society's insurer--American Mutual Liability Insurance Co.--is obligated to set tie with the plaintiff. Largest out-of-court settlement so far: $95,000.

Out of fear of malpractice suits, many U.S. doctors have become careful, and even ultracautious, about the kind of medicine they practice. The results: higher costs and--in certain cases--poorer medical care. Some anesthesiologists now shy away from medically advisable spinals, because the public imagines them to be dangerous and is thus prone to sue if anything goes wrong. Some internists order superfluous, expensive diagnostic tests and X rays, to cover themselves against lawsuits from every angle. Many general practitioners no longer will dispense telephone advice or permit prescription refills. Suit-shy surgeons, says a San Francisco doctor, have become "frankly reluctant to try radical things--which might do a patient some good." Doctors dislike these dodges, but they feel in real pocketbook danger. A joke going the rounds among physicians has St. Peter greet a man at the gates of heaven saying: "You weren't due here until 1965. Go back and sue your doctor for malpractice."

*At $214 for general practitioners a year for coverage of $50,000 per claim, up to a maximum of $100,000 per year, California's big city rates are the nation's highest.

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