Threat of lawsuits is crippling doctors

Medicine is supposed to be about medicine but in America it is increasingly about law. There is the never-ending malpractice battle: in April the Senate rejected - without even debating - legislation that would have given obstetricians greater protection from lawsuits. In June the Supreme Court ruled that an individual state did not have the authority to create a "bill of rights" for patients - but left matters open so that Congress might create a national patients' bill of rights.

Then there is the choice of John Edwards as Democratic vice-presidential candidate. Mr Edwards made his career as a trial lawyer. Whether you admire or despise his crusading malpractice suits, one thing is clear - when it comes to health issues, a Vice-President Edwards would view them from a legal perspective.

The general debate about law and medicine, however, tends to obscure a reality. It is that the encroachment of law causes human casualties. Some of them are the uninsured. But there is also one who rarely earns a mention: the doctor.

For most of the past century, the American doctor was a proud creature, a scientific superhero, as prestigious as they come. After the advent of general anaesthetics, surgery became a kind of secular ritual - at which the doctor, of course, presided. "Learn the secrets of the Men in White and the women they love", read an MGM poster for the film Young Dr Kildare. Vaccines and antibiotics only elevated the doctor further. Other professions were important - there was Perry Mason - but the doctor was special.

Money? Senior doctors earned respectably. Younger doctors made sacrifices. Richard Chamberlain in the Dr Kildare shows of the 1960s was a man of medicine and romance, not cash. (The very figure of Dr Kildare was based on an old short story by Frederick Schiller Faust entitled Internes Can't Take Money.)

Add a bit of Freud to the mix, which some practitioners did after the 1950s, and you got yet greater authority. (And, at times, insupportable arrogance.) Think of Marcus Welby, MD, viewed by one in four US households in the late 1960s. Dr Welby wasn't just a doctor, he was a doctor who healed his patients with a blend of medicine and pop psychology.

But then changes came into the doctor's life - changes with which most Americans are all too well acquainted. The first was price pressure. Demand for hospital magic turned out to be so high that the government began setting price controls and rationing procedures, albeit in a less direct manner than happens in the UK. Similar pressures applied in the private sector. Neurologists found themselves working like electricians, gastroenterologists like plumbers. The old soulful connection to the patient attenuated. (I did recently witness a surgery visit in which a doctor scrutinised the patient with Welby-level attention. The patient was enrolled neither in a government insurance scheme nor a private one. She was a parakeet.)

Still, perhaps the biggest blow to the doctor has been the lawsuit. Part of the assault has been monetary: as the medical associations point out, insurance premiums are rising astronomically.

But lawsuits do something more profound than attack the purse. They attack professionalism. In a malpractice case, after all, there are two battles going on: the battle between patient and practitioner and the battle between the legal profession and the medical one. In the courtroom, the law is always victorious. After all, the judge trained as an attorney, not as a cardiologist. Legal doctrine subjugates a doctor, even when the judge sides with him.

The legal threat is so pervasive and demeaning that it tends to drive doctors beyond frustration and into rage and inconsistency. The shift helps explain some of the truly bizarre and self-destructive behaviour seen of late. There is the unionisation trend: as I write, doctors in Washington state are petitioning the National Labor Relations Board for union recognition. If they are not getting protection of one kind or the other through their MD status, they reason, maybe they should demand the sort of protection afforded to workers. A more self-confident profession would not willingly downgrade itself to working-class status - at least not in a striver society such as the US.

More dramatic is the decision by doctors to withhold treatment from the average patient. In the risky field of obstetrics, two out of 10 practitioners do not deliver babies. Others will not perform difficult procedures. This is terrible for the patients, as has been noted repeatedly. But it is also terrible for the doctors. It violates their professional culture. The first reason for ceasing is age - older physicians do not like the hours. But the second is litigation. This is a tragedy. To give up doing what you do best before it is time - after enormous investment - is surely wrong.

Finally, there is the decision by a few MDs to refuse to treat plaintiffs' attorneys or their families. Some have even set up a national plaintiff database online (www.doctorsknow.us). This has met the predictable wall of outrage. But of all the weird behaviour, it is probably the most logical.

American medicine generally remains well-respected - as we know from watching ER. Still, the doctor as a force is fading. And not many Americans can relish where that leaves them: alone with the lawyers.

© Copyright 2004 Financial Times

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