Bad medicine

Harvey F. Wachsman

November 16, 1993|By Harvey F. Wachsman

MEDICAL negligence kills more than 100,000 Americans every year and injures more than half a million.

Yet only about 2,000 physicians are disciplined each year by state medical boards.

The vast majority get a slap on the wrist -- a warning or short probation -- and most of these cases involve fraud or other crimes, not malpractice.

Clearly, medical malpractice reform should be a centerpiece of our new health-care system.

Yet most of the recent reform proposals have been advanced by the insurance and medical lobbies, and they do more to insulate bad doctors and keep malpractice victims out of court than they do to protect the public.

The proposals include no-fault plans under which the state or federal governments would pay any claims, which would effectively absolve negligent doctors of liability; caps on damage awards, which would discourage lawsuits by people with legitimate claims; mandatory arbitration outside the courts, and panels to screen for "frivolous" lawsuits.

These last two proposals are tantamount to blocking the courthouse door.

In my practice, I have seen thousands of cases of negligence in which patients' lives have been destroyed or lost because of negligent physicians. America needs malpractice reforms that RTC protect patients, not bad doctors.

States claim that they lack the money and staff to investigate and prosecute all complaints against physicians. But there are resources available to help them locate the bad doctors, and the government should require states to use them.

A study by Tufts University found that insurance companies restrict or cancel the malpractice policies of more than 7,000 doctors every year because of questions about competence or inordinate numbers of malpractice suits.

That's only a fraction of the incidents of malpractice, but it's more than triple the number of doctors who are being disciplined by state authorities.

The Clinton health plan should require insurance companies to report to state medical boards when they cancel or restrict a policy.

This would enable states to focus their investigations on physicians who are likely to be a public risk and to determine whether action should be taken against them.

Also, experience shows that physicians who don't carry malpractice insurance are more likely to practice substandard medicine.

At the very least, requiring insurance companies to report would allow states to make public the names of doctors who don't have insurance or have had it revoked or severely limited.

And the government should require states to open licensing and disciplinary hearings to everyone and to make their findings public. Boards should also be required to issue their findings in disciplinary matters within one year -- rather than allowing them to drag on indefinitely, as often happens now.

Congress can also improve the watchdog systems that are already in place. For example, the Federal Health Care Financing Administration regularly compiles the mortality rates at hospitals around the country, but provides no information on the causes of death.

Why not require its investigators to evaluate whether the death rates are due to factors beyond the hospitals' control or to negligence or substandard care?

Another asset that has been wasted is the National Data Bank -- a federally financed computer registry that includes the names of physicians who have been found liable for malpractice, who have paid out settlements to victims in malpractice lawsuits or against whom disciplinary actions have been imposed.

At present, this valuable information bank is closed to the public. President Clinton has recommended that it be opened. Congress should follow suit immediately.

If the American people are to have confidence in a national health care plan, they will have to be assured that their physicians are, at the very least, competent. Congress should enact malpractice laws that protect us from those who are not.

Harvey F. Wachsman, a lawyer and neurosurgeon, is author of "Lethal Medicine: The Epidemic of Medical Malpractice in America."

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