Medical Malpractice and Censorship

Definition: The failure of physicians or other medical professionals to meet professional standards of care, thereby making them subject under civil law to claims for compensation by injured patients

Significance: Fear of malpractice lawsuits often restrains communications among patients and health care providers or inhibits professionals from divulging information about negligent colleagues.

Medical malpractice is patient care that fails to satisfy the professional standards of a nation’s doctors, or other health professionals, such as nurses or dentists. It becomes a social and legal problem when a medical professional’s mistakes or substandard care injures a patient. When physicians are deemed negligent according to civil law, their patients may sue for damages to pay for further medical treatment, or to compensate for pain and suffering.

Although valuable tools for policing medical practices, malpractice suits are complicated, expensive, time-consuming, adversarial, and often anguishing for patient-plaintiffs and physician-defendants alike. Medical malpractice does not always involve censorship; however, health care providers, lawyers, and consumer advocates have complained that fear of malpractice suits discourages doctors from reporting negligent colleagues, prompts self-censorship over medical treatments, and hinders doctor-patient communications.

In the United States, the majority of physicians will face at least one malpractice complaint during their careers. However, data from a nationwide indemnity insurer shows fewer than one-quarter of malpractice complaints lead to lawsuits and only 1 to 5 percent of such suits result in damages being paid to plaintiffs, depending on the medical specialty. Surgery, pathology, obstetrics and gynecology, and pediatrics are among the specialties at highest risk for malpractice suits. Most often, patient complaints of inadequate care arise because of misunderstandings that conferences among doctors and patients can clear up. Unsatisfied patients can complain to local medical boards, which in the United States are state government panels staffed by doctors who judge whether doctors have in fact failed to meet professional standards of care.

If a patient is still unsatisfied, and can prove that an injury has resulted from inadequate medical care, the patient can retain a lawyer and initiate a lawsuit. The doctor is notified, and there follows a period of evidence gathering, called “discovery,” during which sworn statements and documentary evidence, such as medical records, are collected. At the ensuing civil trial lawyers for the each side argue whether the evidence presented does or does not establish harmful negligence. Meanwhile, lawyers elicit further evidence in question-and-answer sessions called examination and cross-examination. Finally, a jury decides whether the plaintiff or defendant has the stronger case and dismisses the suit or awards damages accordingly.

Fear of Malpractice and Self-Censorship

All health care providers dread malpractice suits. Win or lose, such legal actions cost money and time, and are likely to leave defendants feeling compromised or humiliated. With the rapid rise in malpractice suits filed in the United States since the 1960’s, this concern has assumed ever greater importance. It can induce three types of self-censorship.

In the first type, doctors overrule their own medical judgment. All medical treatments entail some risk, but the greater the risk, the less defensible is a particular procedure or drug if it turns out, for any reason, to harm rather than help a patient. Consequently, some doctors who perform major, technology-dependent procedures—such as obstetricians and surgeons—have admitted being unwilling to offer radical or experimental operations, even when such procedures hold a great promise of benefiting a patient. Similarly, doctors may order medical tests that they know are unnecessary—and thereby censor their best advice—so that, in case of a lawsuit, they can demonstrate that they did everything possible for their patient. Furthermore, doctors may feel constrained in how they report treatments in patients’ medical records, knowing that patients, lawyers, and review boards may eventually scrutinize those records. Doctors call such constraints upon their practice “defensive medicine.” The extent and effects of defensive medicine, although generally acknowledged, are controversial.

In the second type of self-censorship, doctors’ fear of malpractice claims inhibits their communications with their patients. Doctors who believe that some patients are eager to press malpractice claims speak warily, fearing that such patients may seize upon simple slips of the tongue, or poorly explained remarks, to make legal trouble for them. The fear of making damaging misstatements can affect the communications between a doctor and any patient. Psychiatrists and psychoanalysts in particular have remarked that such self-censorship limits the types of questions they can use during interviews with patients. Doctors have been known to refuse to reveal that they are doctors when they come upon victims of automobile accidents—especially if a victim is unconscious—because many lawsuits have been filed against doctors whose emergency care—however well intended—has failed to prevent serious disability.

The third type of self-censorship strains relations among doctors. When one physician observes another give a patient substandard care, the first may feel pressured to say nothing. Doctors inclined to be whistle-blowers worry that they will only earn reputations as troublemakers and that other physicians will shun them. Furthermore, physicians who recognize their own capacity for error and its attendant dangers hesitate to criticize others publicly. An incorrect accusation of malpractice, especially if it encourages a patient to sue, harms both the accuser and the accused, while doing nothing to help the patient.

Legal Action and Censorship

During malpractice suits, censorship becomes more direct. In many states in the United States doctors named as defendants in such suits may not discuss the cases with the plaintiffs’ other health care providers after the discovery phase begins. These ex parte communications can only occur after a plaintiff’s approval.

To strengthen arguments concerning alleged malpractice, lawyers for both defendants and plaintiffs may ask expert witnesses to comment upon a defendant’s medical treatment of a plaintiff. Some doctors called as expert witnesses have reported pressure from other doctors not to testify. The pressure, they claimed, might be as simple as overt displeasure from colleagues, or involve threats to the careers of the witnesses, who might suddenly find, for example, that their colleagues no longer refer patients to them. The extent of such peer-pressure censorship is difficult to assess; however, the “conspiracy of silence” that popular writers have evoked gives a mistaken impression of doctors unified against the rest of society. Some doctors do encourage injured patients to sue negligent colleagues, and others do testify in court for plaintiffs.

Health care providers understandably do not want to become stigmatized by claims of malpractice, which can happen even if the claims lack justification. For this reason, fear of malpractice claims has subtly changed doctor-patient relationships by introducing into it a strong undercurrent of wariness. Where doctors once saw themselves first of all as advocates for patients’ physical well-being, they have come to watch themselves carefully in order to avoid legal complications.

Avoiding Malpractice

As of 2012, thirty-six states and the District of Columbia had enacted an "apology law" that enables a health care provider to make apologies, give condolences, otherwise express sympathy, or admit error to a patient without fearing that the statement or gesture would be used against him or her in court. States vary in the timing and persons to whom such expressions may be made without incurring liability. The impetus for these laws was to prevent "defensive medicine" and reduce the number of lawsuits. Because a perceived lack of remorse and patient or family anger are major drivers of medical malpractice suits, the apology laws are thought to encourage open communication, demonstrate the health care provider's humanity, and assuage hard feelings before litigation comes into the picture. Some evidence suggests the laws are working as intended.

Proactive communications-and-resolution programs, like that pioneered at the University of Michigan Medical System, have been more effective at lowering both the number of claims and the resources used in handling claims. Under such initiatives, medical establishments conduct internal investigations, report errors to patients when found, and offer restitution.

Certain high-risk specialties, such as anesthesiology, have similarly led self-reform efforts. Anesthesiologists frequently met with malpractice claims and suits until the American Society of Anesthesiologists assessed what specific claims were being made and revised protocols to improve patient safety.

Bibliography

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