MARCH 18, 2013
Attorneys and physicians share common goals?

Here is big news from the March 2013 issue of the American College of Surgeons Bulletin.

The headline reads, "Attorneys and physicians share common goals."

The primary author is a medical liability plaintiff's lawyer from Washington, DC.

The article states that surgeons and liability attorneys want similar things for patients. "Both surgeons and patient attorneys are committed to patient well-being and the relief of patient suffering." Really? So for liability attorneys, it's not about the money? I see; it's about "relief of patient suffering."

"Surgeons belong to an ancient and esteemed profession; every day, surgeons cure disease, relieve pain, and make lives better. Attorneys see themselves as members of another healing profession, helping to restore to broken lives some measure of independence and dignity." I did not know that attorneys were members of another healing profession. I've never heard it put that way before. I mistakenly assumed it might be about the money.

"When injured patients are treated fairly in the legal system, it helps restore their trust by facilitating communication between the clinician and the patient and providing clarity about a potential error and how it occurred." So the elaborate process that goes along with a medical liability lawsuit is all about communication and restoring trust? And I thought it was about the money.

"Liability cases and fair compensation are means of honoring patients. Because they draw attention to patient suffering and physician error, they help ensure that the opportunity to prevent harm to another patient will not be lost or wasted." It's good to know that plaintiff's attorneys are in business for the purpose of honoring patients. Silly, cynical me. I thought it was about the money.

In the U.S., the “deny and defend” response from physicians is quite common. This reaction may be due in part to the perverse and dangerous incentives that characterize the American medical system. For instance, the fee-for-service model provides a disincentive for less-qualified surgeons to refer patients to trained specialists." According to Mr. Malone, doctors' denying and defending lawsuits is the real problem. And that's because of the fee-for-service payment system? Sorry, I don't follow that line of reasoning.

"One legal reform could go a long way toward fixing this problem. If surgeons were employees of their hospitals and not independent contractors, the employer would have both the muscle and the financial motivation to better supervise individual practitioners." Mr. Malone may have a point here, but I wonder if he would opt for a system that made all lawyers employees and not independent contractors? Since we are both members of healing professions, I think it would be fair if everyone was salaried.

Regarding the use of guidelines as a malpractice defense which some have labeled a "safe harbor," he says, "However, the safe harbor concept becomes unacceptable if it allows guidelines to be used as a 'get out of jail free' card. Guidelines must be useful in exonerating and implicating clinician wrongdoing." What he seems to be saying is that it's OK to use a guideline to prove a clinician did wrong, but following guidelines shouldn't be a fail-safe defense strategy.

Maybe someone can explain to me why the American College of Surgeons would print an article such as this in its house journal.

Skeptical Scalpel is a recently retired surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and a surgical sub-specialty and has re-certified in both several times. For the last two years, he has been blogging at and tweeting as @SkepticScalpel. His blog averages over 800 page views per day, and he has over 5000 followers on Twitter.

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