Sick, Tired and Not Taking It Anymore

By Charles Krauthammer

Surgeons in West Virginia have gone on strike to protest the exorbitant cost of malpractice insurance. Good for them. Don't talk to me about the ethics of doctors going on strike. So long as they agree to treat emergency cases, they have as much right to strike as anybody else. The premise of a free market is that people can withhold their labor if they find the conditions under which they work intolerable.

Many doctors do. Many, especially those in the inherently risky specialties, such as surgery or obstetrics, have been forced out of business by malpractice premiums or hounded out by malpractice litigation. A totally irresponsible legal system, driven by a small cadre of lawyers who have hit the mother lode, has produced perhaps the most dysfunctional medical-liability system in the world. Juries hand out millions of dollars not just for lost earnings but also in capricious punitive damages in which the number of zeros attached to the penalty seems to be chosen at random.

As a result, innocent doctors who have devoted their lives to their patients are required to spend tens, even hundreds, of thousands of dollars a year on insurance. In effect, we are making doctors give up an entire chunk of each year laboring just to work off their insurance premiums. Why? To cover for the few offenders in their midst. To compensate the lucky few victims who stumble upon the most profligate juries. And, most important, to make a few trial lawyers very, very rich. (Herewith the requisite full disclosure: I am a doctor, though I no longer practice.)

This is not a hard problem to fix. Tort reform is not rocket science. A reasonable bill passed the House of Representatives just last year but died in the Senate, where the trial-lawyer lobby rules. The elements of a fix are simple: no limit on plaintiffs' lost earnings or other costs, a reasonable cap on pain and suffering ($250,000 in the House bill), a similar cap on punitive damages, serious penalties for frivolous lawsuits.

For years, such remedies have had a tough time getting through legislatures, which are--surprise!--peopled overwhelmingly by lawyers. That is why you have never heard of a lawyers' strike. Lawyers have assured themselves pretty good working conditions. Some of my friends who graduated with me from medical school in the mid-'70s are working 50 to 60 hours a week, almost as hard as they did as interns, just to make ends meet: to pay their rent and nurses and other office expenses on the highly reduced reimbursements they get from HMOs, Medicare and Medicaid. And then a huge part of what is left over goes to pay for malpractice insurance.

But the frustration of doctors is more than a matter of money. The real blow to the profession has been the assault on autonomy. Physicians spend endless days and long years acquiring an extraordinarily specialized skill and then find themselves being told by some 23-year-old HMO administrator a thousand miles away how many minutes they can spend with a patient, how long they can keep him in the hospital and what kind of treatment they are allowed to give him. The introduction of managed care may be societally necessary to keep down costs. But we should at least recognize its cost to the dignity and effectiveness of the profession it regulates. Forgive my obsession here, but lawyers would never put up with faraway bureaucrats dictating their methods and setting their fees.

A doctor wants to strike no more than does a textile worker. But the malpractice burden--indeed, the malpractice threat--is the final assault on the implicit contract society makes with its healers: you give up the best decade of your youth, your 20s, to treat the sick and learn your craft, and we will allow you to practice it with autonomy, dignity and the kind of security--and freedom from capricious victimization--that, oh, say, lawyers enjoy.

Of course there will be medical errors. And there will be medical malefactors. The bad doctors need to be found, punished, defrocked. But why should their sins be paid for by the good doctors among them?

The current system is crazy, ruinous and unfair. And it is easily changed. By lawyers.