Our broken system: Medical liability in vascular practice

My last editorial, “How to succeed in vascular surgery: A guide for the aspiring outlier,” was more controversial than I expected. I naively believed that a critical expose of vascular surgery’s “1%” would be welcomed by roughly 99% of vascular surgeons. Unfortunately, some read my satirical take on overutilization as an indictment of private practice and outpatient care in general. My intention was to expose a very small group of surgeons whose practice patterns were several standard deviations removed from the norm. I remain puzzled by the rank-and-file 99%ers who took issue with an impeachment of a few bad apples among our ranks.

It seems, however, that we have taken a cue from the national political scene and embraced divisiveness and discord in lieu of the unity that this moment requires. So, it came as no surprise that when Dr. Malachi Sheahan offered me another editorial opportunity, he did so with the modest stipulation that any follow-up be unanimously embraced by the readership. While this may be a tall order in these contentious times, I do believe that there is one issue about which we can all agree. Irrespective of practice model, procedure venue, atherectomy enthusiasm, or Sunshine Act power ranking, we all share a common foe: our broken medicolegal system.

A brief history of medical liability and American litigiousness

The concept of medical liability can be traced back to the Code of King Hammurabi (2030 BC), which proscribed that “if the doctor has treated a gentleman with a lancet of bronze and has caused the gentleman to die…one shall cut off [the doctor’s] hand.” Obviously, our current system is somewhat less barbaric, except in the most litigious states—like New York and New Jersey—where a plaintiff ’s verdict can still result in amputation of the offending surgeon’s hand.

Subsequent Egyptian and Roman laws added the prerequisite of “malpractice” to hold physicians legally culpable for bad outcomes. This ultimately informed English Common Law and American jurisprudence. For several thousand years the situation was quite sanguine. Malpractice allegations were comparatively rare, and typically limited to cases of true negligence. Jury awards were proportionate. Physicians and lawyers peacefully coexisted, representing America’s aspirational professional class at suburban country clubs and European luxury car dealerships across the land. Willie Nelson even lumped us all together, advising mamas that their babies forsake the iconic cowboy lifestyle and pursue careers as “doctors and lawyers and such.” In recent years, however, the longstanding detente between doctors and lawyers has been threatened by an explosion in litigation.

Although documentation of Americans’ exceptional litigiousness dates back to Alexis de Tocqueville’s 19th-century observations, the so-called “litigation explosion” is a relatively recent phenomenon. Legal scholars and social scientists have written volumes on this topic. Although a thorough analysis is beyond the scope of this piece, there are numerous social, political and structural causes contributing to what author Walter Olson deems America’s “sue-for-profit industry.” I’m just a simple surgeon (and ardent conspiracy theorist), so I prefer a reductive analysis that attributes the American litigation explosion to systemic collusion between trial lawyers and their cronies, who we dutifully elect to populate our state and federal governments.

James Copland, author and legal director for the Manhattan Institute, coined the term, “Trial Lawyers, Inc.,” to refer to America’s lawsuit industry. If you harbor any doubts about the magnitude of our litigiousness, consider his assertion that tort costs exceed 2% of our GDP. Moreover, 20% of this expenditure—more than $50 billion annually—represents plaintiff attorney fees. That’s a lot of relative value units (RVUs). My guess is the plaintiff ’s bar isn’t grappling with the impending workforce issues that face vascular surgeons.

They do face different issues, of course. In a recent issue of Plaintiff magazine dedicated to medical negligence, one justice warrior laments: “The burden of proof is really quite a burden. It hangs over everything.” I’m no constitutional scholar, but isn’t this “burden” a cornerstone of our judicial system? Maybe I should be more empathetic to the plight of our paid-on-contingency friends. Perhaps I’ll start a GoFundMe site to help support unsuccessful plaintiffs’ attorneys who are frequently overwhelmed by the “burden” of proof.

Despite the impediments of “evidence” and “proof,” the plaintiff ’s bar benefits from a true ace in the hole: our country has always been governed by lawyers. Predictably, our elected officials dutifully indulge their former law school classmates (and their campaign contributions) with legislation that supposedly targets healthcare spending, while conveniently dodging the topic of tort reform. “Trial Lawyers, Inc.” isn’t just too big to fail; it’s too rigged to fail. Whether one chooses to blame the lawyers—or the other lawyers—for our current predicament, it should be clear that the medical malpractice division of “Trial Lawyers, Inc.” has been particularly successful.

Medical liability and healthcare spending

Billions of dollars in litigation costs actually represent a relatively small proportion of annual healthcare spending attributable to our broken medicolegal system. Defensive medicine, a by-product of American litigiousness, is a colossal cost-driver to our healthcare system. By some reports, the annual cost of defensive medicine amounts to hundreds of billions of dollars. Multiple surveys across specialties suggest that physicians characterize over 20% of tests and procedures as clinically unnecessary interventions driven by fear of litigation. Hospitalists have attributed close to 40% of inpatient costs to defensive practice.

I’ve done some research on this topic to evaluate its impact on vascular surgery. In a 2013 paper published in Surgery, we identified a significant correlation between rates of inferior vena cava (IVC) filter placement and a medicolegal environment. After adjusting for prevalence of venous thromboembolism and established clinical risk factors, a threefold variation in IVC filter use persisted, with comparative overuse in adverse medicolegal environments. A forthcoming publication from our group identifies a similar pattern in annual Medicare spending on diabetic patients. At the state level, every 1% increase in malpractice lawsuits is associated with a >10% increase in risk-adjusted, standardized spending per diabetic patient. The increased spending in states with adverse medicolegal environments is driven by more procedures, imaging tests, and hospital readmissions. Plaintiff magazine subscribers may be inclined to argue that defensive medicine—and the associated costs—lead to improved quality, but this argument has been repeatedly disproven.

A previously hidden cost

For those in the corporate world, these lawsuits are merely another “cost of doing business” in an overly litigious society. While this might be the healthiest attitude to adopt, it’s not so easy for us. Despite hospital administrators’ efforts to disempower surgeons, everyone knows that we are the proverbial captains of the ship. We get accolades when things go well; we get subpoenas when they don’t.

Our recent study, “Malpractice allegations against vascular surgeons: Prevalence, risk factors and impact on surgeon wellness,” characterizes the personal toll of malpractice allegations. Some 19% of vascular surgeons reported being named in at least one lawsuit in the preceding two years. Given the slow progress of the judicial system, many are actively defending against multiple malpractice allegations. Amortized over the course of one’s career, the average vascular surgeon (as always, my apologies for the oxymoron) can expect multiple opportunities to experience our bloated judicial system first-hand.

While it’s always a pleasure to educate plaintiffs’ attorneys about the nuances of complex vascular issues in accordance with the rules of a high-school debate competition (“Yes or no, doctor?”), these interactions subvert our wellbeing. We identified a statistically significant association between malpractice allegations and symptoms of burnout. Moreover, malpractice allegations lead to higher rates of subsequent self-reported errors, suggesting an erosion of confidence in our abilities. The psychological impact of malpractice claims seems to persist regardless of the outcome. While plaintiff courtroom verdicts are rare (5%), vascular surgeons described the outcome as “fair” in only 24% of closed cases.

We all make mistakes. I think it’s safe to make that admission in writing, provided I never attest that I consider Vascular Specialist to be “authoritative source.” (If you don’t get that legal reference, you will someday.) Furthermore, there are undoubtedly cases of true malpractice in which accountability is both appropriate and necessary to maintain standards.

Having said that, the ridiculous prevalence of malpractice allegations against us is inconsistent with objective data that speaks to the high quality of vascular care that we deliver. We are the last line of defense in the effort to preserve life and limb. We are better at achieving these objectives than ever before. Despite our successes, we have become the victims of a runaway medicolegal system that threatens the wellbeing of patients and doctors alike. We don’t have a quality problem. We have a medicolegal system problem.

What can be done?

We can’t match the political action committee (PAC) contributions of the trial lawyers’ advocacy groups (formerly known as the “National Association of Claimants’ Compensation Attorneys,” now the more palatable and more opaque “American Association for Justice”). We can, however, take steps to promote more unity, more advocacy and more peer support.

The increasingly frequent frenzy over proposed Centers for Medicare & Medicaid Services (CMS) cuts has become a unifying issue. We rally against these cuts not only for our own financial wellbeing, but also because of the implications for patient access to vascular care. Our broken medicolegal system threatens patients with higher costs, unnecessary interventions and a fearful, burned out, disillusioned workforce. Tort reform is really in our patients’ best interests as well.

Furthermore, we can take a page from the neurosurgeons’ playbook—they really are the smart ones—and establish comprehensive guidelines and standards for expert testimony that pertain to impartiality, subject knowledge and compensation. We have some semi-professional plaintiffs’ experts among us, whose comprehensive vascular knowledge allows them to speak authoritatively—for the right price—about procedures they rarely perform. I propose we celebrate these “experts” in our ranks and offer them some special distinction for their services: a scarlet “E” to denote their “expert” status, for example.

If we really want to win this fight, we need to start thinking like lawyers. For example, we’ve shown that malpractice allegations impact on our wellness. Ipso facto, the lawyers are causing us great distress. Is this not grounds for a class action lawsuit against the plaintiff ’s bar? Perhaps this is a preposterous idea, but I’m sure we can find a litigator who isn’t overly concerned by that pesky “burden of proof” to represent us.

Whichever strategies we employ, it should be obvious that we need to stop the infighting and abandon our beloved interspecialty turf wars. Our broken, bloated, predatory medicolegal system impacts us all. The time has come to rise up against this clear and present danger to our wellbeing. Join me in calling for our leadership to make this issue a top priority.

I rest my case.

Andrew J. Meltzer, MD, is chair of vascular surgery at Mayo Clinic Arizona in Phoenix.