GUEST EDITORIAL
Our broken system: Medical liability in vascular practice BY ANDREW J. MELTZER, MD
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.
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t 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 Andrew most litigious states— J. Meltzer like New York and
VASCULAR SPECIALIST Medical Editor Malachi Sheahan III, MD Associate Medical Editors Bernadette Aulivola, MD, O. William Brown, MD, Elliot L. Chaikof, MD, PhD, Carlo Dall’Olmo, MD, Alan M. Dietzek, MD, RPVI, FACS, Professor Hans-Henning Eckstein, MD, John F. Eidt, MD, Robert Fitridge, MD, Dennis R. Gable, MD, Linda Harris, MD, Krishna Jain, MD, Larry Kraiss, MD, Joann Lohr, MD, James McKinsey, MD, Joseph Mills, MD, Erica L. Mitchell, MD, MEd, FACS, Leila Mureebe, MD, Frank Pomposelli, MD, David Rigberg, MD, Clifford Sales, MD, Bhagwan Satiani, MD, Larry Scher, MD, Marc Schermerhorn, MD, Murray L. Shames, MD, Niten Singh, MD, Frank J. Veith, MD, Robert Eugene Zierler, MD Resident/Fellow Editor Laura Marie Drudi, MD Executive Director SVS Kenneth M. Slaw, PhD Director of Membership, Marketing and Communications Tara J. Spiess, CAE Managing Editor SVS Beth Bales Marketing & Membership Specialist Anna Vecchio Assistant Marketing & Social Media Manager Kristin Crowe
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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,
Physicians and lawyers peacefully coexisted, representing America’s aspirational professional class at suburban country clubs and European luxury car dealerships across the land continued on page 4
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