A Perspective from Medical Malpractice Plaintiff Attorneys

Copyright 2010 Cambridge University Press.  Reprinted with permission. 

Excerpt from Professionalism in Medicine: A Case-Based Guide for Medical Students,
edited by John Spandorfer, Charles A. Pohl, Susan L. Rattner and Thomas J. Nasca.

A surgical waiting room contains many pamphlets from political campaigns urging the overhaul of medical malpractice. The pamphlets contain criticism of the local party candidate who does not support tort reform and solicits donations for the candidate who does. The patient, an attorney, is referred to this surgeon for evaluation of a rectal abscess. At the visit, the patient tells the surgeon of her unease about seeing political advertisements and brochures in the doctor's office and states she should probably be seeing a physician who is fully concerned about the patient's care and not as partisan.

The relationship between doctor and patient is marked by a level of trust rarely found in other professions. This trust is the result of an age-old commitment by physicians to honor one basic creed: to place the interests of the patients they serve above all else. The ethical guidelines of the medical profession embody this creed. Principle 7 of the American Medical Association's Code of Medical Ethics states, "A physician shall, while caring for a patient, regard responsibility to the patient as paramount."[51]  The Code of Medical Ethics similarly defines the patient-physician relationship as one that is "based on trust and gives rise to physicians' ethical obligations to place patients' welfare above their own self-interest and above obligations to other groups."[52]

For physicians, ensuring the patients' best interest remains paramount and requires a careful weighing of potential harms and benefits. For example, an oncologist knows chemotherapy causes numerous harmful side effects.  The oncologist also believes that the benefit of eradicating cancer cells outweighs those side effects. Thus, the decision to prescribe chemotherapy serves the cancer patient's best interest.

In this case, the doctor has filled the waiting room with brochures that urge patients to support tort reform. Certainly, physicians are entitled to express their beliefs about political issues and personally advocate for change in law and policy.[53]  By placing these tort reform brochures in the waiting room and urging patients to act, however, the doctor has exceeded the scope of personal advocacy. Rather, the doctor has thrust the tort reform debate directly into the physician-patient relationship. In so doing, the doctor has brought tort reform under the watchful eye of the obligation to regard his or her patients' welfare as paramount. Consequently, in order for this doctor's actions to be ethical and professional, the tort reform initiatives advocated in the brochures must be in the best interests of the patients who read them.

Like the decision to prescribe certain medication, determining whether tort reform is in the patient's best interest requires a weighing of harms and benefits to the patient. "Tort reform" refers to legislation that diminishes individuals' centuries-old right to seek accountability for wrongfully inflicted harms.[54]  Medical malpractice tort reform laws commonly impose statutory limits on the compensation that injured patients can recover for non-monetary harms such as disfigurement, pain, and physical impairment.[55]  These statutory limits apply regardless of the severity of the patient's injury.  For many injured patients - especially children, the elderly, and others who earn little income - tort reform therefore means they are left with a severely limited, one-size-fits-all system of justice.[56]  Thus, tort reform harms patients by forcing them to give up, either in whole or in part, their legal right to seek accountability and justice for harms caused by medical negligence. 

What about the benefits to patients from tort reform? Perhaps this doctor believes that tort reform will lead to lower health care costs. The Congressional Budget Office, however, concluded that medical malpractice costs amount to only 2 percent of overall health care costs.[57]  Maybe this doctor believes that medical liability is forcing doctors out of business and hindering patients' access to care. Yet recent studies show no empirical support for claims that doctors are fleeing certain locales because of liability concerns.[58]  Finally, this doctor may believe tort reform will lower his or her liability insurance premiums. This consideration, however, should have no place in the weighing of patient harms and benefits as it concerns only the doctor's self-interest. Moreover, comprehensive studies show no correlation between tort reform laws and lower liability insurance rates.

In sum, the benefits to patients from tort reform pale in comparison to the significant harms. Consequently, by placing tort reform brochures in the waiting room and urging patients to act, this doctor has failed the physician's professional obligation to regard patients' interests as paramount. In so doing, the doctor's actions have undermined the profound and unique trust that defines the patient-physician relationship.

[51]   Council on Ethical and Judicial Affairs. Code of medical ethics of the American Medical Association. 2006;15.[52]   Ibid. at 317.
[53]   Ibid. at 272.
[54]   Garner BA, ed. Black's Law Dictionary. 8th ed. Eagan, MN: Thomson West; 2004.
[55]   See, e.g., Alaska stat. § 09.17.010 (2006); cal. civ. code § 3333.2(2006).
[56]   See generally Finley LM, The hidden victims of tort reform: Women, children, and the elderly, 53 Emory L.J. 1263(2004).
[57]   Congressional Budget Office. Limiting Tort Liability for Medical Malpractice 6. /49xx/doc4968/01-08-MedicalMalpractice.pdf. Updated 2004. Accessed September 4th, 2008.
[58]   See generally Vidmar N, et al., "Judicial hellholes": Medical malpractice claims, verdicts and the "Doctor exodus" in Illinois, 59 Vanderbilt L.Rev 1309(2006).

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