Michael Arnold Glueck, M.D., and Robert J. Cihak, M.D.
Tuesday, Feb. 11, 2003

In our increasingly litigious society, doctors are so afraid of crippling lawsuits that they work behind the thin armor of millions of dollars’ worth of malpractice insurance – ensuring a lush picnic basket of goodies for attorney ants to attack.

Doctors know that if results don't meet expectations, patients can open the Yellow Pages and find hundreds of attorneys who will gleefully file a lawsuit for them. These attorneys take much of any award if they win or settle the case; if they lose, they get nothing. But win or lose, the doctor always loses because of increased insurance premiums in the future and time lost in defending the case.

Lawsuits for bad results or unpleasant complications of good medical treatment, rather than true malpractice, account for most medical liability costs. True malpractice is another matter; it would – and should – still be tried in a reformed and specialized court and settled on the basis of scientific evidence instead of by a shoot-out duel of hired legal guns in front of a judge.

Although malpractice insurance can cost a physician more than $200,000 a year, the physician is not the only one who bears the cost. Everyone has to pay, either directly in the higher fees the doctor charges or indirectly through higher health insurance premiums.

Parenthetically, some people think their employer pays for their health insurance. Actually, the workers themselves pay for it; if they aren't productive, they will either lose their job or the employer will go bankrupt.

Everyone pays again when doctors order extra tests to make sure their bases are covered in case of a lawsuit. These extra tests add costs but rarely turn up any significant medical condition.

The illusion of deep pockets entices more Willie Suttons to go where the money is. We say "illusion" because the people who see a doctor, go to a hospital, pay health insurance premiums or pay doctor fees are the ones really paying. But, of course, the doctor pays up front, and the burden is driving many out of the profession, especially in states that allow excessive lawsuits, such as Nevada, West Virginia and New Jersey.

A few courageous physicians don't buy insurance protecting against these kinds of lawsuits. This can ruin the day for a plaintiff's malpractice attorney, who often drops the case when there's no easy insurance honey pot to dip into.

But this option isn't just risky; it's also not available to doctors in many hospitals and in some states, such as Georgia and Florida, which require doctors to buy malpractice insurance before they can practice.

The current medical liability system should be radically changed.

To cut down the number of picnic basket goodies, why not allow everyone the option to buy individual insurance to cover bad medical results? This form of "patient medical outcome insurance" would be similar to flight insurance. In other words, those who want coverage for an uncommon medical risk simply insure themselves so they don't even have to hire an attorney to collect.

Individuals buy what they want instead of what the lawyers currently force them to pay for. This would cut the cost of much medical treatment.

Patient medical outcome insurance, coupled with a direct financial relationship with doctors, such as fostered by a Medical Savings Account (MSA) or a Health Reimbursement Account (HRA), puts patients back in the driver's seat. They see their own money at work, ask more questions and become better informed.

In addition, doctors can focus on patient care rather than on ordering a lawsuit-proof series of diagnostic tests and writing up lawyer-proof paperwork.

As the Association of American Physicians and Surgeons (AAPS) says, "We need to put patients back in the financial equation, and remove lawyers from it. We need to emphasize individual responsibility and move away from shifting responsibility onto third parties."

If we remove the honey pot for attorneys, medical care won't just cost less, it'll also be of higher quality.

Michael Arnold Glueck, M.D., is a multiple-award-winning writer who comments on medical-legal issues. Robert J. Cihak, M.D., is a former president of the Association of American Physicians and Surgeons.

Contact Drs. Glueck and Cihak by e-mail.

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