Conservative Argument for Healthcare Reform: Part 4: Pop Torts

After attending the Sestak-Toomey debate in Allentown this week I struck up a conversation with one of the people who questioned the two senate candidates during the forum. This person was a 60-something doctor of oncology. His perspective was how much we need tort reform because malpractice insurance rates are killing his ability to make a profit. Forget that off-the-wall settlements are representing about one half of one percent of the cost of doing business; he is concerned that the unintended effects of a free-wheeling jury system forces doctors into unneeded tests, or defensive medicine.

There should not be obscene judgments to people who, in his mind, can’t use them. Part of his argument to me was a case where a crack baby from Philly needed surgery to fix a leak in her heart. During the surgery they needed to place equipment on her one of her two arteries on the baby’s arm. Because she is a crack baby many parts of the child did not develop normally. When they placed the equipment on the arm it caused complication such that the arm needed to be amputated. Somebody got a lawyer and sued and won a judgment of $150 million. Many times greater, in the doctor’s mind, that that girl could use or deserves.

He is also concerned about the future of the types of people going into medicine. By this he means that the malpractice rates are so exorbitant it would not be profitable to be a doctor anymore. His assistants joined the conversation outside the forum with the tack of lower standards would allow unqualified people into the field. There was veiled racism involved in this charge and it was at this point I said I would need to leave.

During the conversation the doctor and his assistants talked a blue streak. I couldn’t refute anything because they sucked half the oxygen out of the Lehigh Valley.

I’ll do my refuting here.

Let’s look at the defensive medicine argument for a moment. Anytime somebody gets symptoms there is a method to fixing them. A regimen is formed over time, over the millions of people who get treatment. As an idea works, it is incorporated into the process. If an idea doesn’t work it is discarded. Defensive medicine, as I am seeing it now, is the coming together of the experience from over time and methods that are essentially be handed down by a form of common law (from outside the medical system – and you know how easy it is to say to some doctors there is another way of doing things…).

This form of common law is the lawsuit. People who have been harmed by the omission of a test are able to go to court and make the case that the test they missed should be part of the regimen. The uncomfortable part of this for the doctor and his insurance carrier is the big punitive settlement.

The punitive settlement will get the attention of the other doctors, who say, “I have a patient with X symptom, if I don’t do test Y to rule something in or out, I may have a problem later.” Believe it or not this is Adam Smith’s invisible hand at work. The marketplace is dictating to the doctor – do this or else. You could almost look at the punitive damages as kind of an ongoing education system.

Another facet of the big settlement is the safety valve function. There is nowhere else in the system that allows for redress or prevention of a bad doctor. I asked the oncologist how many of his brethren in the Lehigh Valley were bounced out or at least reprimanded? The blue streak immediately fired in another direction.

There is no effective weed out process evident to the public once somebody gets an MD. It is like looking at the thin blue line in another profession. The only redress is the big buck settlement. You can complain about the lawyers all you want, but they are the natural counter-balance to an out-of-control doctor. It is kind of the next step up in the economic predatory food chain. We are still looking for the predator that will ace the lawyer.

That brings me to the last part of this argument, brought in by his back-up band. The argument went along the lines of; ‘because there isn’t as much money to be made in healthcare you won’t get the best and brightest. God help you if you will someday be treated by one of THOSE people who were let into the medical schools with lower standards.’

This part of the conversation led me to think about what these folks think of as best and brightest. I am willing to bet there are a lot of people out there who could not go to medical school because of economic issues. They are wonderful healers, but not talented with a checkbook. Put them in a lab and they are wizards, put them with a stock portfolio and they are 4 feet sticking up in the air. My doctor is a really nice guy, but it really doesn’t matter to me what my doctor’s stock portfolio looks like, unless he has a good tip. I want to know that he can troubleshoot my problems and come up with solutions. My customers don’t care about my car payments, can I fix their computer?

I am not saying here all doctors are greedy and need reigning in, but it does make you wonder when you realize a doctor actually intentionally set the Octomom saga into motion. If the exorbitant dollars some of these people are getting dried up, would there be so many optional plastic surgeons, botox clinics or viagara ads? Would those resources actually go to helping those who really need medical care? Yes, it is the invisible hand working towards having these things, but it doesn’t jibe.

If a doctor is in medicine for the money first, please do the rest of us a favor and go into another part of the marketplace, we need the economic development and you have the brains. We need people dedicated to healing like poets are dedicated words.

The conversation also made me think about my wife, who has a doctorate. She doesn’t get the big bucks this guy is talking about. It made me think of the really, really dedicated people who work at the rehab center my wife works at, or the other professors she has taught with. I don’t see these as people who are out for the buck first. I see these as people, many truly free-spirits, who have dedicated their professional lives to the betterment of their fellow human being. For that, they are all better than me.

Yeah, everybody bitches and moans about the bucks they get or the resources allocated to do the job at hand. But that is everywhere and in every profession. Maybe it is time some of these doctors got on the level with the rest of us.