This afternoon I have with me a good friend of mine, Jeff Campbell, a practicing attorney. Jeff has spent his career in the world of malpractice defending physicians. I have asked Jeff today if he could give us some insights from his long career in terms of a better understanding of medical malpractice. Jeff, thank you for coming to Healthcare PittStop.
So Jeff, what is really the purpose of medical malpractice?
The purpose is to compensate a patient who allegedly has been injured by negligence of a healthcare professional. So if they’ve incurred damages as a result of improper care, or care that was below what we call the applicable standard of care, [malpractice serves] to compensate them for their injuries. That is the purpose for a medical malpractice lawsuit.
I think of malpractice as a system that has been set up to keep us safe. Do you think it’s more about making the individual whole or do you think it’s about raising the standard here in America?
The system has been set up to fairly compensate a person. I think sometimes the plaintiffs’ bar try to set the standard of care by having a certain standard applied across the board. There have been situations where the plaintiff’s bar would argue that by bringing lawsuits they have elevated the awareness of care providers to provide a higher standard of care. On the defense side, I think most doctors are very well educated; the training programs teach them what the standard of care is. And so I don’t know that the lawsuits actually set the standard of care, but they are designed to compensate an individual who’s injured by a physician who did not comply with the standard of care. The system is designed to compensate them, or make them whole, on that negligence.
That phrase you’re using—standard of care—is an important one. Standard of care really varies depending on where you are, doesn’t it?
It does. In Arizona, for example, we define standard of care as what another reasonable, prudent physician in the same specialty would do under the same or similar circumstances in the state. I think it’s fair to say, however, that with most physicians going through national board certification, the standard of care in Arizona is true; the standard of care in California, New York—it’s pretty United States specific. There are probably some local or smaller communities where they don’t have the same type of equipment, same type of things, and so it would be a lower standard in those communities depending on the resources available. In most major cities it’s going to be the same standard of care no matter what city you’re in in the country.
If I go to a chiropractor versus an MD, do they have a different standard they practice under?
Well, the standard of care is defined by that profession, so for chiropractors it would be what another reasonable, prudent chiropractor would do under the same or similar circumstances. And in Arizona that’s very specific. The standard of care is established by the specialty you are suing, so suing an obstetrician/gynecologist, the standard of care is what another OBGYN would do under the same or similar circumstances. And the plaintiffs are required to have an expert in that same specialty testifying as to what they believe the standard of care is and in their opinion this particular defendant—healthcare provider—fell below that standard of care.
I know that different countries—in fact our own federal government—have a different approach to malpractice than what most folks outside, say the VA system, are used to. Can you comment on that approach to malpractice and how it may be better or worse?
Let’s just say that in other countries it’s pretty well recognized that in the United States we have more malpractice cases than any other country does. So looking at other countries where they have socialized medicine, they have a lot fewer lawsuits. In England and places like that, you have fewer lawsuits than you do in the United States. Unfortunately, in our society it has become socially acceptable to sue your healthcare provider.
With respect to the federal government, we have a system in place where before anyone can sue—and we’re talking about the VA specifically—if the physician is employed by the VA, [plaintiffs] can only sue the VA or the federal government. And before they can sue them, they have to file a claim, and the Federal Torts Claim act applies. What that does is it gives the federal government the opportunity to evaluate the claim before a lawsuit can be filed. After 6 months, depending what the government’s response is, if they’ve not responded in 6 months it’s deemed denial and the person can file a lawsuit. The difference is that in federal court the lawyer’s fees are limited by the Federal Tort’s Claim Act; limitations of attorney’s fees and their procedural law would apply under the federal government, but the substantive law would apply under whatever state it occurred in. So when it comes to standard of care, [and depending on] what type of specialist you need, you’d look to Arizona law if it was an Arizona case. So you’re still going to apply the substantive law of the state and the procedural law would be under the federal laws.
I know VA physicians have a very different feeling about malpractice because they have the federal government between them and the patient, [as opposed to physicians] in the private sector.
That’s because in those cases the doctors cannot be individually named; you can only sue the government. So if you name a doctor who’s employed by the VA, [the suit is] going to be dismissed as a matter of course. The claim is only going to be against the United States government. That does give them some protection that in the private practice world they are not afforded.
Has anyone ever looked at the difference in utilization or other levels of care, to see if that difference across the US matters for different subgroups?
Comparing the VA system to a private system?
I don’t know if there have been studies. My guess is there probably have been. Of course with all the negative publicity the VA’s gotten recently, I don’t know if that would be an argument that people want to make right now. A lot of people would argue that they’re getting substandard care through the Veterans Administration system. I’m not saying that’s true, but there is an argument in light of all the negative publicity they’ve gotten over the past couple of years.
I know you’ve helped to defend many physicians over the course of your career. I was sued as a resident very early on in my career, and it made me very anxious at that time. In your experience, how has [a malpractice suit] changed the folks you’ve helped to defend?
A few doctors I’ve defended have actually threatened to leave the practice of medicine because of a lawsuit. Obviously it’s a very personal attack on a professional’s reputation to claim that they’ve done something negligent, and most of the time doctors, especially if they feel that they did the right thing, it’s very hard for them. I’ve not had personal experience of their actually quitting the practice as a result. I have seen, perhaps, from the doctors I’ve defended that they get to be better documenters; they start focusing more on documentation. I would call it a defensive mechanism. And I think they probably practice more defensive medicine [overall]. They order more tests and things that they may not think are necessary. But they think, well if I don’t order this, someone’s going to be critical of me for not doing more. So we get into the whole issue of unnecessary tests that are done as a result of defensive medicine.
In my experience defensive medicine certainly enters into the picture, even when the threat of a lawsuit comes up. I’ve seen data; in one study on 2000 orthopedic surgeons, 96 percent admitted to practicing defensive medicine. At least in this study, from Frontline Med, these orthopods felt that a quarter of all tests ordered were in part for defensive reasons. Do you think the legal profession sees it in that way or do they just see it as part of doing business? I know how physicians look at it. Does the legal profession look at it any differently?
I think the defense bar would agree with you that, in fact, there’s a lot more defensive medicine going on. I don’t know that the plaintiff’s bar would agree with that. I think that they view themselves as those trying to set the standard. I think they believe we really aren’t doing everything we could or should do for patient care, and they think that by filing these lawsuits, they are going to set the bar higher. I’m not an advocate of that position, but I certainly think there are a number of attorneys in the plaintiffs’ bar who will tell you that they are filing these lawsuits and they are improving the quality of care by forcing doctors to do more.
Of course no one knows what “quality” is anymore. Ordering more [tests] does not necessarily mean quality. Years ago there was concern that certain services wouldn’t be deliverable. Several years ago the trauma surgeons in Las Vegas kind of closed up shop and said, look, until we’re covered we’re not going to practice in Las Vegas, and so we had a whole bunch of transfers. Do you think that malpractice has had an impact on the services that are available to folks?
I know that has been a thought process, and I believe it’s why the Mutual Insurance Company of Arizona was created as a physician-owned and based insurance company to provide medical malpractice insurance to physicians, and to be sure that there would be coverage for those physicians in rural areas that were finding it much harder to find insurance. That was true in obstetrics back in the 1980s. I personally have not seen, at least in Arizona, service areas that are not being serviced for lack of a type of physician. What ended up happening was that certain hospitals in those areas provided inducement for the physicians to come in—they might offer them so much guaranteed income to help provide for the medical malpractice insurance they are required to have. So I think the rural hospitals, at least in Arizona, have done a nice job ensuring that those services are still available for rural communities in Arizona. I have heard of problems in other parts of the country, but I personally have not seen that.
If you were made king, can think of any innovative ways you might change malpractice here in the state or internationally?
I personally am a believer in putting some limitations on damages. I think in Arizona, for example, we don’t have any limitations. In fact it would be unconstitutional according to the Arizona constitution to put a limitation on injury damages—the pain-and-suffering type damages. I think in those states where we’ve seen caps on damages—California has had caps for a very long time, probably thirty years; Texas too; a lot of states have caps on damages. I think that has helped when you look at these non-economic damages. There’s no cap on economic damages—the proven damages—but these non-economic damages, the pain and suffering, when you can put a cap on some kinds of damages, I think it is beneficial, and I think there should probably be some limitations. Although I’m an advocate of that, I know a lot of people are not.
As a physician, I don’t think having a huge award against an individual is necessarily a good thing. It just changes them; en masse as physicians we start to worry. But on the flip side, I think we, as physicians, need to do a better job policing each other when we see issues come up.
You know, Donald Trump is now our president. He’s Republican, and Republicans tend to try to limit damages from litigation. But Trump himself tends to use the courts pretty actively. How do you think the Trump presidency—”Trumpcare” if you will—is going to impact malpractice?
It will be interesting because, as you know, Donald Trump has come in with the platform that he’s going to get rid of Obamacare. I don’t know if the plan will be to come up with a new nationalized healthcare program to replace it or just eliminate it completely, but certainly on the table with him as a Republican will be tort reform. So if there’s going to be a nationalized healthcare platform, I can see him also pushing a nationalized tort reform, which would include limitations on damages and certain things like that that. However, I guess time will tell when it comes to that.
Right. When I sit around the lunchroom and talk to other physicians, the one thing they really feel Obamacare missed on was any form of tort reform within the Affordable Care Act.
Any comments either for patients or physicians, advice you can offer them on malpractice?
There are times when physicians make mistakes, and if we could come up with a no-fault kind of compensation program for those who are injured—almost like a Workers Compensation program—that might alleviate some of the malpractice cases that we see. I mean, right now, at least in Arizona where there’s no cap on damages, a practice’s cases can have a very broad range of damages, and people believe their pain and suffering is worth at least a million dollars. There’s very high demand in these lawsuits, so I think some form of cap on damages [would be good], and where there is negligence fairly compensating an individual for their damages but without giving them a blank check for millions and millions of dollars for their perceived pain and suffering.
I wholeheartedly agree with this kind of cap or shared risk. There’s no free lunch in the world. Healthcare has risks to it. We certainly want to take care of people who are injured, but I think that’s shared thing rather than an individual thing.
Jeff I really appreciate your time in talking to me today, and I thank you very much.