Medical Malpractice and the Eveready Rabbit

Haleakala Crater in Maui, Hawaii - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com


In the world of physics it is impossible to design a perpetual motion machine, since it violates the laws of thermodynamics. There unavoidable inconveniences like entropy and conservation of energy and matter that get in the way. No such constraints inhibit malpractice litigation where anyone can be sued for any action for any amount. The world of medical malpractice law might as well come from another universe, for like the Eveready Battery Rabbit it just keeps going and going and going.


Doctors and hospitals pass higher malpractice premiums to patients. In hopes of avoiding potential law suits, doctors practice defensive medicine, and hospitals reduce efficiencies by imposing stifling documentation requirements on employees and the medical staff. Likewise these costs transferred to patients, but do little to fend off plaintiff attorneys.


Many physicians at one time or another have been the target of a frivolous law suit or been subjected to the travails of contentious litigation. The only party who consistently benefits from the current system is the trial lawyer. It is time to abandon the adversarial model in favor of a more civil, collaborative approach between the litigants rather than the traditional gauntlet which is time consuming, emotionally draining, expensive, and capricious.


In frustration with the present system and hoping to discourage malicious law suits, physicians often advocate “loser pays” scenarios and laws which facilitate punishment for attorneys who initiate meritless litigation. Appealing as these may seem, it is a political non starter. Improving the process must receive support from the legal community and insure harmed patients are guaranteed their right to compensation as a result of actual malpractice.

Alternate Dispute Resolution (ADR) is a process which employs mediation and arbitration to settle legal disputes and offers a fresh approach to deal with medical malpractice suits. From the outset ADR allows both parties, with the assistance of an attorney or judge who is well versed with medical issues, to participate in formulating a mutually acceptable solution. Every effort is made to dispense with the emotional component of the case which easily distracts the litigants and unnecessarily prolongs the process. It dispenses with jurors, who are often selected for their malleability instead of their ability to understand complex medical problems. It avoids judges whose varying abilities and motivations can lead to unfair verdicts. The goal is clear: at the conclusion of the dispute neither party may be completely satisfied with the result, but resolution is comparatively swift and fair.


The bold first step to revamp the system requires anyone who receives medical care paid through a government funded program such as Medicaid or Medicare and non paying patients to accept mandatory ADR in case of alleged malpractice. As a precedent, the Kaiser Permanente company stipulates its patients reconcile disputes in this manner.


Dealing with commercially insured patients presents a different circumstance, since private resources are spent to access medical care. In this case the medical insurance carrier offers the insured patient a choice between a less expensive policy which requires ADR or a more expensive conventional policy which makes no stipulation how potential disputes will be handled. There are distinct advantages of the ADR plan for physicians, patients, health insurance companies, malpractice insurance carriers, hospitals, and the court system:

• Physicians’ and hospital malpractice rates will drop as potential exposure falls accordingly. As the system becomes more widely accepted, physicians will be less inclined to practice defensive medicine.

• Patients’ insurance premiums will fall due to physicians ordering fewer medically unnecessary tests and medications, and hospitals regaining operational efficiencies.

• Health insurance company expenses for patient services eventually will drop as physician discipline is reestablished.

• Malpractice insurance company payouts will reflect a less hostile and volatile legal environment.

• Trial lawyers’ preeminence will give way to attorneys and judges who resolve disputes through ADR.

• The over burdened court system will be relieved of most malpractice cases which will be settled in other venues.

Even the indefatigable rabbit of television commercial fame has limitations, and those who buy the product are not so naive to believe any process or machine can operate indefinitely. The medical malpractice industry, which operates with virtual impunity and benefits a few at the expense of many, needs to rejoin a universe where common sense and sane conflict resolution are the rule.