Malpractice Plague Needs a Rapid Cure Richard Schwartz
The Daily News, February 12, 2004 Legal experts say Rapkin did nothing terribly wrong in not jailing Smith for
falling behind in paying court fines. But the Brucia family is understandably
outraged. Had Smith been confined, their daughter might be alive. "If Rapkin were
allowed to be sued, a jury so horrified by what happened to that poor little girl
might find fault with the judge - even though he may have been justified in his
ruling concerning Smith," said malpractice defense lawyer Sanford Gold.
But judges cannot be sued. If it were allowed, our already contorted and costly
justice system would be even more so. It would be like, well, our medical system.
Consider, for example, what has been happening in the field of obstetrics. Every
day, thousands of babies are born in America. Some have problems. Sometimes the
doctor is at fault, sometimes not. All too often, the obstetrician has done nothing
wrong, yet the baby has a defect or dies. The distraught parents sue, and a jury,
swayed by emotion, rules against the doctor. A career is needlessly ruined.
Today, a combination of runaway juries, pro-plaintiff judges and greedy trial
lawyers who sue at the drop of a stethoscope has forced the medical profession
to rewrite its rules. Doctors now practice defensive medicine, using unnecessary
tests and procedures to avoid being sued. Obstetricians, who are sued more than
just about any other type of doctor, have had to embrace defensive medicine big
time.
Just look at the explosion in Caesarean-section births in this country. In 1970,
only 5% of babies were delivered through this procedure. Today, nearly 25% of
U.S. births are C-sections. It's the most common major operation in the country,
with about 1 million performed per year. The World Health Organization advises
there's no reason to have "more than 10%-15% Caesarean-section births." But when
something goes wrong with natural births, doctors get sued because they didn't
intervene and operate. So they've learned: When in doubt, apply the scalpel.
Many young doctors won't specialize in obstetrics. They fear the threat of suits
and wince at malpractice insurance costs, which run around $200,000 a year. Last
summer, Manhattan's Elizabeth Seton Childbearing Center, which practiced natural
childbirth, had to close when its malpractice premiums rocketed to $2 million.
Litigation reformer Philip Howard has a solution: Create a special medical court.
Replace sympathy-prone juries with experienced judges well-versed in medical procedures
who would limit the size of pain-and-suffering awards and compensate plaintiffs
according to a preestablished formula, depending on the injury.
Lotto-size jury awards would be supplanted by settlements that are fair to patients
and doctors. Incompetent doctors would be sanctioned but honest mistakes would
not end a career.
Such a system would relieve obstetricians and all doctors of enormous stress
and let them make decisions in the best interests of patients. It would end the
wasteful practice of defensive medicine, which costs our economy an estimated
$50 billion to $100 billion a year. It would allow doctors to do what they think
is right.
If you want people to do their best, you can't keep suing them when they do. | 
