Responding to 'New Crisis in the Mississippi Delta'

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"New Crisis in the Mississippi Delta"
The original article in Spark

Another Look
A response from law professor Paul Zwier II

Your response
Write a letter to Spark. Additional letters on this topic will be posted online.

I appreciate the ongoing discussion regarding medical malpractice and tort law reform. Dan Dekker’s response in the Spring 2004 Spark was interesting, but misguided. He claims to “cut through to the core of the problem” which is “excessive medical errors.” I believe he is referring to an article released in the last couple of years which recorded medical errors over a period of time. Unfortunately, this article was taken up and exploited by the mass media as are many other poorly controlled medical studies. Also, their definition of “medical error” was far reaching and in many cases did not even affect the patient.

He also stated that the US health care system has an “excessively high number of medical errors.” This is not true. In fact, systems within Europe accept medical errors as a reality and even have “acceptable miss rates.” These nations have limited medical malpractice so that it doesn’t eat up precious health care dollars.

This said, medical error will always be a part of medicine. Why? We live in a fallen world where perfection is an unreachable goal. We know this as Christians. Nonetheless, we within medicine constantly strive to reform and improve patient care through quality review. We learn from past mistakes and try not to make them again. We discuss cases where patient outcome was suboptimal. We discuss how to avoid the same mistake in the future. We also assign a category to the case which the hospital tracks. Any physician with excessive cases is reviewed and may ultimately be released from staff privileges at the hospital. Physicians and nurses have been doing this for years! So, “confession” and “correction” already occur. “Contrition” is not possible within a system where the repercussions of a lawsuit are so real.

This has not resolved the growing medical malpractice crisis as Dan Dekker would presume. The growing age of the population and subsequent growth of health care costs cannot afford the increasingly crippling affect of outrageous medical malpractice claims. Deny it or accept it. It is fact. West Virginia, Mississippi, Nevada and many more states have come to know this. This is because medical malpractice has become so excessive there is no insurance available to physicians in order to practice. Trauma patients in West Virginia must be flown to Maryland or Pennsylvania to find a Level 1 Trauma Center. Their trauma surgeons have left along with many fine board certified emergency physicians. At the same time, there is no medical liability crisis in California. Why? Because legislators with foresight passed tort reform over a decade ago (although trial lawyers attempt to overturn it every year).

I agree with Dr. Vander Velde that this is one step in many. Ultimately, society must be willing to accept that perfection within medicine, although an admirable goal and one to strive towards, is not possible in an imperfect world. Simply throwing money at the problem and placing further financial strain on the medical system is not the answer.

Marvin Heyboer ‘95
Modesto, CA

Morality crisis correctly identified
I read with interest the Spark article, “Litigation as a Health Care Challenge” (Fall 2003). My son is a freshman at Calvin and I am an attorney in Cleveland, Ohio, having practiced law for over 25 years. The vast majority of my practice is on the defense side, representing doctors, manufacturers of products, attorneys and other individuals who are sued.

Dr. Kooyer’s article is one of the best articles I have ever read on the subject of tort reform. He has correctly identified the root cause of the problem as a crisis in personal morality. Rather than merely looking at the “greedy” plaintiffs’ attorneys, one must look at the litigants themselves to find the source of the problem. Individuals now look to our legal system as a source of funds and don’t take a hard look at whether or not there is actually a case. Many times the only question posed to the plaintiff’s attorney is “How much money do you think I can get for my case?” As we know, the proper question should be whether or not there is a legitimate case to bring.

However, one must also keep in mind that in order to successfully bring a medical malpractice case, the plaintiff and the plaintiff’s attorney need a physician willing to testify against the defendant doctor. Thus, in the event a case that is not meritorious is brought, there are three individuals (the plaintiff, the plaintiff’s attorney and the plaintiff’s expert physician) who choose to cross the threshold of immorality.

Our entire country is gradually moving away from the concept of absolute moral authority or absolute truth and toward a concept of subjective morality (keep your personal beliefs to yourself). It is this crisis that has been correctly identified by Dr. Kooyer that threatens not only our legal system but many of the other institutions in this country.

Thomas Mazanec
Cleveland, Ohio

Medical errors contribute to rising costs
As a health care professional, I read the recent articles on medical malpractice by Kurt Kooyer and Paul Zwier with great interest. However, both articles fail to cut through to the core of this problem (a skill I was taught at Calvin), which is excessive medical errors. Plain and simple, medical errors cause lawsuits, lawsuits cost money, and pay outs make medical costs rise. What is the best way to reduce medical litigation? Reduce the errors!

Although the U.S. has an excellent health care system, it also has had an excessively high number of medical errors, a fact which was swept under the carpet for decades. Because of litigation fears, frequent errors were covered up, ignored and regrettably sometimes repeated. However in 1999, the Institute of Medicine, a federal agency, reported that up to 98,000 Americans die each year as a result of preventable medical errors, and several times that many suffer significant injuries. This is equivalent to one full jet fatally crashing each and every day due to human error!

While doctors and lawyers endlessly blame each other, and politicians try to limit damage awards, the real cure for this problem began a few years ago when the health system finally began to own up to the error problem and to study how to reduce errors. Every hospital now has a patient safety (error reduction) program, many states have instituted mandatory error reporting systems, research has discovered that most errors are due to "system problems,” and computerized medical records have demonstrated the ability to dramatically reduce errors.

When unfortunate errors do occur, the cover up and fight mentality of the past has been shown to be a lose-lose situation for everyone, and frankly doesn't seem very Christian either. Again, things may be improving. A few years ago, the Lexington, KY VA Hospital began a revolutionary new program of being honest with their patients about errors that had occurred and apologizing, and lo and behold, they found that their malpractice costs decreased! By treating patients with respect, patients responded likewise. Other health organizations have taken note of this, and begun to move in this direction. The ethics involved in resolving malpractice was a major topic at a recent Michigan Medical Society conference.

It would seem that Christian principles have something to say about this "world and life" problem. When a medical error occurs, responsibility should be acknowledged (confession), an apology can be made (contrition), the error must be corrected (a striving to do better), the person who was wronged can make a statement of forgiveness, and guilt is absolved for all parties. This is a model of reconciliation, which just could be an important part of the solution to the litigation crisis.

Several years ago I was a victim of a medical error when outpatient surgery was performed on the wrong part of my body. I wrote pointed letters to the hospital and doctors involved, and never received one reply, even though I am a psychologist. The issues of carelessness and failure to listen which I raised were ignored because of liability fears. Nothing was acknowledged, nothing corrected, and I spent years struggling with forgiveness.

Although a remediation program could have reversed course for the doctor involved, his pattern of errors continued with nine lawsuits being filed. Not until two patients died from alleged negligence was the doctor's license permanently suspended. Recently a jury awarded a $10.7 million judgment to three young surviving children, the largest award ever in our county.

There has to be a better way! To cure the liability crisis the health system needs to look at the "beam" in its own eye before complaining about the "mote" in another's eye. Thankfully, this process has begun.

Dan Dekker, Ed.D., '68
Lansing, Mich.

Not only is Mr. Zwier’s article a succinct encapsulation of the increasingly contorted concept of responsibility promoted largely by the trial law industry in the United States, it reflects a shocking lack of understanding of the medical profession.

In his hypothetical case of Ms. Jones and her child, although heartbreaking both for the mother and I am sure for the physician as well, he fails to establish a grounds for holding the physician responsible. Is it because she was made to wait? Or that the physician “seems distracted,” or that an expensive medication was prescribed? It may well be that a key finding was overlooked in which case the physician should be held fully accountable, but Mr. Zwier has not described it here. This does not discourage him from the evermore pervasive assumption that real fault does not matter. What matters is material compensation for bad outcomes and tragic events. The physician (or more correctly, his or her insurance company) in this case is simply the closest and deepest pocket.

Mr. Zwier somewhat sarcastically suggests that if we physicians want low malpractice premiums, maybe our fees should be capped. He of all people should know that if you want to win an argument, you should get your facts straight first. Our fees ARE currently capped! In fact, our fees are predetermined by Medicare/Medicaid and the private third party providers which take its lead. The only way to recuperate revenue is though volume, which is what has brought us to long waits and distracted doctors to begin with. A lot of good that has done for our liability exposure and patient relationships!

The solution for Mr. Zwier seems to rest in physicians living in and becoming part of the communities they serve, especially low income areas. This is a laudable goal in and of itself, but one which is unlikely to affect the current crisis. Most physicians do live in the locales they serve. In addition, it is a false assertion that poor people are more likely to be the victim of medical malpractice or to sue for alleged malpractice. The concept that this is an issue of grand social justice for the economically downtrodden is a smokescreen raised to maintain the status quo. Furthermore, I have personally witnessed how some of these communities function. Elected judges bankrolled by the plaintiff attorneys who find a home for every loosely connected case, not to mention the class actions. Doctors who refuse to speak out because of the barrage of nuisance lawsuits which will predictably follow. Communities which have sunk deeper and deeper into economic depression because most businesses (and doctors) have fled the oppressive legal environment. At this level, it is impossible to separate medical malpractice with product and personal liability issues, for they all go hand in hand.

I strongly support the use of caps on non-economic damages. Look at the states which have enacted them such as California and Indiana. Premiums are in check and no one is screaming about social injustice. But in addition, the medical community must exert more self policing. Stronger state licensing boards coupled with better reporting from hospitals and medical centers will help root out bad eggs in the practice. Paradoxically, it is fear of legal liability which impedes such steps currently. There must also be a breaking of the pervasive mind set which holds that every misfortune by necessity demands compensation and therefore demands the identification of an external culpable entity. This will not be easy to say the least. But the practical measures of tort reform currently promoted will help to stop the disintegration of health care in many areas.

Theodore Vander Velde ‘89
Saint Louis, MO

I am deeply troubled by Professor Zwier's response in the most recent Spark. According to Mr. Zwier, there is nothing wrong with the current tort system. He goes on to say that we need to take the "profit out of" medical practice and advocates a national medical insurance plan.

I am a physician for the Indian Health Service, which provides a comprehensive health plan for Native Americans living on or close to their reservation. It is essentially a national health plan on a smaller scale. I have no "profit" in my practice. Our malpractice is covered by the Federal Tort Claims Act. That is, plaintiffs cannot sue an individual doctor, they must sue the Indian Health Service. We are represented by federal attorneys. The only way individual physicians can be sued is when they are accused of a criminal act (intentionally harming a patient).

Since Mr. Zwier advocates a national health plan as the solution, would he also agree to all physicians being covered by a National Tort Claims Act, modeled after the current Federal Tort Claims Act? Should we take the profit out of legal practice as well?

The crisis that Dr. Kooyer talks of is real, even if Mr. Zwier denies it. I would guess that Mr. Zwier also supports the silicone breast implant settlement even though it is now known that the science supporting injury has been thoroughly disproven.

Mr. Zwier unfortunately sees the speck in Dr. Kooyer's eye and not the plank in his own.

William Krzymowski, MD, FACP
Gallup, New Mexico

Tort Litigation And Social Justice. I have read with interest Dr. Kurt Kooyer’s account of how litigation and its cost made him leave the community in Mississippi he formerly served as a physician. Another Calvin graduate, Dr. Paul J. Zwier, a professor of law at Emory University School of Law responded to Kooyer’s article.

If you will permit, I would like to analyze Zwier’s thesis, or rather his multiple thesis and some of his conclusions. After that I will respond with some facts and options for citizens to consider. The topic is timely and significant for all Americans. For Kooyer the cost of litigation, as reflected in the cost of his insurance coverage (or lack of it), was a fact that caused he and his physician wife to leave an area they had chosen to serve. For Zwier the cost of litigation is an investment in a just society.

Zwier presents the tragic death of a child as his example of the need for tort law in society. His arguments from that case go something like this: When someone makes a mistake people have the right to sue. They are seeking justice. Doctors make mistakes and have to pay malpractice premiums to “cover their risk, their personal history, and pay the insurance company.” Doctor defendants may not like the courtroom but they have an even chance because they can afford good lawyers.

His discussion then emphasizes the need for social justice, and states: “The rule of law is key.” He quotes President Carter’s address to their law school emphasizing “the need to build a community of trust, respect, caring, justice and freedom.” Next, Zwier (not Carter) ties tort law directly to social justice and has a question for the medical profession: How can the medical profession help build that kind of a community (a just social community) if they want to deny poor people access to the legal system (assumed to be Dr. Kooyer and his types)?

Zwier further suggests that if someone questions current tort law and suggests tort reform, they will “exacerbate the divisions between the rich and poor, black and white, and those who make large incomes and those who don’t.”

Next Zwier finds it “troubling” that Kooyer questions whether jury awards are out of proportion to the injury. (The $10 million jury award cited.) So there you have Zwier’s presentation: Tort law is an arena of social justice, medical malpractice litigation is part of tort law, a doctor who questions whether this is just probably does not want to live under the law and by inference, has placed money over the good of society. Anyone who suggests that judgments may be excessive has trouble living under the law. His final recommendation out of all this: It is time to “take the profit out of medical practice. If doctors want lower insurance, ‘we’ can cap what they charge or ‘we’ might enact a national medical insurance plan.”

So there you have it, Dr. Kooyer. You are, by implication, a money grubbing doctor with an impaired social conscience.

On a more objective note, let us go back to the opening case that Zwier presents. This was a child who died from some type of intracranial hemorrhage and had been seen by an emergency doctor 24 hours before death because of severe headaches. The grieving mother was referred to a malpractice attorney.

Let me state at the outset that there is no physician in the world who does not think that is a tragedy. And there is no physician in the world who would not want a correct diagnosis and treatment, regardless of costs. That is the essence of being a physician. And there is no physician who would deny them justice. Whether this was or was not a preventable death, or whether a cure was in this physician’s power to perform cannot be deduced from the facts presented and will be excluded from this discussion.

We are told that the jury gave a monetary award to the family. This was paid by the doctor through his insurance company and/or personal funds. Where did his insurance money come from? Basically it came from charges made to patients. It came out of health care dollars. And who received the money? The family got what was left after paying the attorney 40% or more of the judgment. If the attorney added the court costs to his bill the family would have received less than 50% of the amount the jury specified. (Juries are not allowed to hear in court how much the attorney charges.)

A proper question is this: Did this case, or the cumulative effect of similar cases, create the social justice professor Zwier implies? I doubt it. The only action of certainty was that there was a transfer of money. That is what the tort industry is about. It is about money. Tort law has nothing to do with social justice. Brad Isenbray has commented wryly, “Tort law is about individual rights carried to their judicial absurdity.” If there is any doubt in your mind on that subject, read any of John Grisham’s books. They are fictionalized truths about the tort industry. If they were not true Grisham would be the full time defendant in a courtroom.

Zwier presents this case as an example of the social justice and change in personal ethics that he states the system is designed to produce. Was this a bad doctor who was eliminated from further practice? No. Was this doctor changed into a more responsible human being by the lawsuit? No. Was there a societal change by this or perhaps by thousands of these cases? No. If the doctor was underqualified for the specialized work this case may have required, was that rectified by a budgetary shift to hire a more qualified doctor? I doubt it.

Zwier unfortunately picked the wrong target when criticizing Dr. Kooyer, who happens to be exactly the kind of physician American society wants and needs. Capable, idealistic, hard working. Read the articles about Dr. Kooyer. Zwier apparently did not.

Furthermore, in American society which branch of the government is empowered to make laws, especially about social behavior? Which branch enforces laws? Deeper into the subject, what are the foundations of ethics and morals in individuals, in society, in government, in making the law, in the interpretation of law, and in tort law specifically?

These are questions for one of those Calvin seminars assembling fine minds that would examine current legal and medical affairs under the ultimate authority of scripture. Such a seminar should include the Old Testament foundations, and more challenging, the New Testament scripture to that subject. Specifically, what does Jesus mean when he says in Matthew 5, vs. 40: “And if any man will sue thee at the law, and take away thy coat, let him have thy cloak also”? This sermon has much to say. It puts the ethical and moral burden on the person who wants to sue and take your coat. Look it up. It is a good reference, and there is not a lot of approval in that sermon for the bickering of tort law.

The law in America has lofty goals, especially constitutional law. The tort industry is different. It is trench warfare, and its goal is the transfer of money. It is impossible to find any proof for Zwier’s statement that the presence or absence of tort law is related to “the divisions between rich and poor, black and white, and those who make large incomes and those who don’t.”

And what is the cost to society of this transfer of health care dollars funneled through the legal system? The dollar cost is staggering. Insurance premiums and unnecessary lab tests currently amount to 16% of all health care dollars.

And where do these dollars go? A reliable study by the Michigan Physician’s Crisis Committee found that the majority of insurance dollars go to the legal industry, a small percentage goes to a plaintiff, and the rest is overhead. So of the health care dollars spent for legal protection most goes to the tort lawyers.* This is only part of the tort cost to American citizens. Class action lawsuits amount to the largest transfer of money in the history of the United States not voted upon by its citizens.*

And what is the total cost of tort litigation to health care dollars? It is staggering. Current accounting reports that 18% of all health care dollars are spent for legal protection and defensive medicine. An informed economist once said to me, on learning of these statistics: “This is simply economic wastage.”

And economic wastage descends most heavily on the poor in society.

Before we ascribe the power of changing society to the third branch of our government these questions are worth exploring.

And back to the child who died: Did this mother get justice? Did social justice result from tort litigation? If this verdict was just, did the mother get her proper share of the settlement? (Most juries think they are awarding the entire amount to the injured party because attorney fees are not revealed to the jury.) Are jury awards proportionate to the injury?

In spite of what Zwier has said, some of the most eminent jurists in our country question them, specifically, the justices of our supreme court itself. They place limits.

If anyone is curious, what about the future cost to a physician, but more importantly, to his/her patients? There are patients in Mississippi who are not now being served due to the loss of Dr. Kooyer and his physician wife. Was social justice served by the tort litigation that he went through? Was driving him out of practice in an underserved area good for society? Clearly not.

And how deep do these premiums dip into the pocket of health care? At the end of a recent mission trip to South America one of the surgeons totaled up the cost of his malpractice insurance for the two weeks he volunteered in Brazil. He calculated that his insurance premium for two weeks would have paid for the total care of 6 patients, surgery, hospital, everything. In fact, the legal insurance fees paid by all the volunteers would have repaired 60 people. To this writer that is inexcusable economic wastage.

One can logically conclude that this is a bloated, unfair system, a parasite on health care, and is a luxury our country will not long afford. The next time you read of a person needing a life saving medical procedure which the insurance carrier says they do not have funds to cover, remember where a good chunk of the money is.

Unless a startling change in tort law occurs one can only conclude that it is best described as social malpractice.

Robert Pool ‘49
Bloomfield Hills, Mich.

*Testimony of Robert Pool M.D. representing the American Society of Plastic and Reconstructive Surgeons

Professor Zwier,
I am currently a fifth year resident in orthopaedic surgery in Grand Rapids, MI, and a graduate of Calvin in 1995. I am off to do a fellowship in shoulder and elbow surgery next year at the University of Washington to work with Dr. Frederick Matsen III. I am still young and enthusiastic about my chosen profession, unlike some of my teachers in residency.

I read with both interest and concern your article in the recent Spark publication. Several comments:

First, the case you present describes a common situation. A child comes in complaining of headache and flu-like symptoms. In reality, expensive tests are often ordered in the emergency department. It has to be that way. The physician in charge would never want to “miss” a diagnosis, certainly not one such as this. It seems physicians today are trained to order many tests just “so they don’t get sued.” This takes away clinical judgment from the part of the physician, and weakens the profession. It also raises the cost of health care.

In addition, the concerns of the case worker about child abuse are concerns imposed by none other than the legal system. Missing a case of child abuse is a crime on the part of the health care worker. I routinely contact Child Protective Services in certain types of pediatric fractures because I am required to do so by law, regardless of race or color. It therefore becomes not so appalling as it seems in your article.

Second, you discuss malpractice insurance. Insurance rates continue to rise so that plaintiffs can be rewarded outrageous sums of money for “economic damages,” and for “pain and suffering.” In Pennsylvania, many orthopaedic surgeons have recently been required to either retire, move or close their doors because their practices were losing money. They were actually paying money to stay in practice. In this case, doctors can no longer “afford the best” lawyers, as you brazenly suggest. There are obvious cases of negligence which occur. And it is tragic when it happens. But we must also remember where medicine has come from and the advances that have been made. It is not a perfect science. But we have had wonderful improvements. Let me mention a couple examples. Infection used to be a major killer. Before penicillin, infections were ahead of heart disease as cause of death. Post-operative infections now are a reason to sue for “pain and suffering.” Hip fractures used to be treated with traction until you either died or were able to sit up in a wheelchair. Now, hemiarthroplasty allows one to walk the next day. Medicine is not, and will never be, without complications. It is part of the package. And when complications happen, we must not be so quick to blame it on the doctor.

Physicians are trapped between two seemingly opposite desires: trying to keep costs of health care down, but at the same time trying to avoid negligence. The choice is not always as simple as just ordering another test to make your diagnosis. Primary care physicians use the MRI machine as a diagnostic test for shoulder problems. In reality, this is a waste of health care dollars. A simple history and exam would usually suffice. But they do it because it is what patients demand. However, health care dollars are not limitless. And doctors should not be the ones to suffer. I spoke to a local orthopaedic surgeon who has been in practice for 30 years. His reimbursements have dropped 4% a year on average for the last 15 years. Name another profession where this has happened. And he sees twice as many patients now as he did early in his practice. Is this a safe environment? Maybe not, but it is where the profession has been forced to go.

And before you talk of physicians and their charges, it would be wise to discuss lawyers and their charges. It is my impression that Congress opposes malpractice reform. Because lawyers are the ones who stand to lose. I can tell you that I make just more than minimum wage as a physician. I currently put in on average 80 hours a week. And this is reported as 40 to the government. 100 hours a week was not unusual prior to regulations imposed by the ACGME in July of 2003. I routinely work well past midnight in the emergency room seeing patients you describe. Patients with no insurance. And I can tell you that trauma is not an accident. Trauma happens to those at risk – irresponsible people who endanger their own lives and others with alcohol. Often I don’t enjoy seeing another drunk driver come in the trauma bay with bilateral open tibia fractures (which means I will get no sleep that night). The attending will often never get paid for such service. Then you ask that physicians begin charging less. Is that just?

I consider my work a service. I have worked hard, as you did during your training, to become the best I can be. It has been a calling. But it is a difficult time for young physicians. I still have high ideals of helping everyone regardless of race or color. In reality, physicians are highly trained professionals who should be compensated appropriately. Just as lawyers should be. Lowering malpractice costs may be a start. Take the burden off the physician. Allow more room for clinical judgment. Our medical training is more thorough and complete now than ever before. Allow our well-trained physicians to practice the art.

Finally, you suggest that we institute a national health care plan. Take a close look at Canada’s system and tell me if this is what you would want. Doctors check out at 5:00 because shift time is over. It doesn’t matter if there are still patients to see. What incentive is there to work hard, and to work efficiently when you are going to get rewarded the same as the guy down the hall dogging it all day long? I agree that changes are needed. Doctors, lawyers, and patients need to work together to find a solution. But socialized medicine would not work. As a though, how would you feel about a nationalized lawyer plan? All lawyers would be paid the same, by the government, even “the best”.

Thanks for your time.

Tim Lenters, M.D. '95
Grand Rapids, Mich.