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'Dirty little secret' of the malpractice crisis

By Francis J. Collini. M.D.

Who is to blame for the medical malpractice crisis in Pennsylvania? Is it the attorneys? Yes, in part. Attorneys advertise in a deceptive fashion and by way of these advertisements, incite patients to sue doctors. Those attorneys who pursue cases which are frivolous in nature and defy the common sense of reasonable people, diminish the integrity and credibility of the honorable men in their profession.

Are insurance companies to blame? Yes, they play a part as well. Insurance companies gouge physicians by increasing malpractice premiums, much of which is used to pay the multimillion-dollar salaries of their CEOs. They do this to compensate for their losses in the stock market and to recover other losses in a legal system gone awry. Should physicians be responsible to pay for this?

Are patients to blame? Patients, too, are partly responsible because they are taken in by deceptive advertising paid for by plaintiff attorneys. Some patients look at malpractice suits as a way to gain a quick buck. And why not, there is nothing to lose. Attorneys do not charge a dime unless they win and, if the doctor wins, he cannot counter-sue for lost time or wages. This is a win-win situation for the plaintiff and the attorney. The system, in its current state, is a jackpot lottery for plaintiff and attorney, the rewards of which can be substantial.

Are the doctors to blame? This is the “dirty little secret” that nobody wants to talk about. Lawsuits against physicians, frivolous or not, would not be filed unless one doctor is willing to testify against another doctor, under oath, for money. You won’t hear lawyers talking about this because they are afraid that doctors will catch on to this “dirty little secret” and lean on their fellow physicians to stop testifying against one another. This could put the malpractice legal system out of business or substantially reduce the number of malpractice cases. You won’t hear doctors talking publicly about this problem because many are embarrassed by their colleagues’ behavior.

Doctors who, under oath, distort medical facts and medical records for the sole purpose of making money are the fuel that sparks the fire of the malpractice crisis. And it works both ways-plaintiff and defendant. Without physicians testifying against other physicians, greedy attorneys would have no cases, judges would hear no frivolous lawsuits and juries would not have to make decisions regarding medical facts that they know little about. Try to find a lawyer who will sue another lawyer. It’s real tough. There is an unwritten law among lawyers that simply states that they will not rat on a fellow colleague. No such unwritten law exists among fellow physicians. If the price is right, some unethical physicians will sell their soul and hence, their integrity to the devil.

I was recently victorious in a medical malpractice lawsuit filed against me in Philadelphia by a patient who I operated on in Wilkes-Barre. Despite the fact that the venue laws have changed in Pennsylvania, I had to travel to Philadelphia twice daily for seven working days to fight this lawsuit. It took the jury just fifteen minutes to come to verdict in my favor.

Can I counter-sue for my time, lost wages and the fact that my malpractice insurance premiums jumped out of sight because the insurance company had to defend me in this lawsuit (to the tune of $46,000)? No! The system does not allow for this. My losses are not recognized as an injury. The system does not view the defending physician as the real victim in such cases. This is inherently unfair.

I do not blame the opposing attorney, nor do I blame the patient for filing this lawsuit. I do not even blame the judge for allowing this case to go forward. The simple truth is that this case would never have gone forward had it not been for the board certified plastic surgeon who agreed to testify against me for money. He was paid handsomely for his testimony. He distorted the medical facts of the case to create a story filled with mischaracterizations and half-truths. Fortunately, good documentation and my strong rebuttal testimony allowed the jury to see through this charade and the members found verdict in my favor.

What is the solution to the expert witness problem? One solution is for each specialty to create a panel of physicians who issue a “certificate of merit” similar to a certificate of board certification to those physicians who qualify to become an expert witness in their respective field. Those physicians who desire to obtain a “certificate of merit” as an expert witness must pass qualifying written and perhaps even oral examinations to ensure their credibility and integrity. Recertification could be done every five to 10 years. Physicians who receive a “certificate of merit” can either donate their time or receive predetermined reasonable monetary compensation for their time and expenses.

As it stands now, expert witnesses receive exorbitant fees for their testimony and this can bias their opinions of medical facts so as to suit the fancy of the attorney who is paying them. By establishing a “certificate of merit” for expert witnesses, bias and discrimination can be diminished and the number of frivolous lawsuits could drop. Furthermore, certified physician experts would maintain respect among their peers.

Monetary compensation for expert witness testimony dilutes the integrity and credibility of all physicians. It is bad for society as a whole and even worse for medicine. Physicians such as the one who testified against me are dangerous. By way of their clouded testimony, the esteem and respect that people have for physicians is damaged. As physicians, we must place ourselves above this type of denigration. It seems morally and ethically reprehensible for physicians to make part or all of their living by accepting money for expert witness testimony.

We blame others for the causation of the medical malpractice crisis when, in fact, we contribute by testifying against one another. We must censure those unethical, greedy physicians who testify against other physicians solely for the purpose of making money. We, as a society of physicians (the AMA included), have turned a blind eye to this sector of our profession and as a result, we have tacitly accepted this behavior. It is time we take a firm stand against these physicians.

Tort reform is also essential to squelch the malpractice crisis. Without tort reform, plaintiffs’ lawyers and disgruntled patients will look upon the legal system as a jackpot lottery. Simply file a lawsuit, hope that an expert witness can be found and a jury persuaded against the treating physician. Given the right set of circumstances, frivolous lawsuits can be won and substantial awards provided. Many of these awards are unjustified. Capping awards is necessary for the future of medicine. It will deter frivolous lawsuits; it will maintain reasonable compensation for victims and allow the medical profession to go forward, minimizing the departure of physicians from Pennsylvania.

Am I saying malpractice does not exist? Of course not. It does and victims must be reasonably compensated. But why is it okay for the workman’s compensation insurance board to cap awards for work-related injuries and not okay for the malpractice insurance board to cap awards for doctor-related negligence cases? Why the double standard? Work-related finger injuries are compensated a certain amount, arm injuries another amount and so on. Why not the same or something similar for doctor-related injuries? Because there is too much money at stake. Billions of dollars, part of which plaintiff attorneys take home.

Reasonable tort reform can start at $250,000 for pain and suffering; it can be adjusted with inflation each year. This cap on pain and suffering will not include medical costs. Medical costs will continue to be covered by malpractice insurance. Why is this not reasonable? Plaintiff attorneys do not want tort reform because it would directly cut into their take of the loot. Once again, greed and money negatively influence the behavior of reasonable men.

In summary, the three things that, in my opinion, would greatly diminish the malpractice crisis in Pennsylvania are the following:

• Establish a “certificate of merit” for expert witnesses.

• Predetermined, reasonable compensation for expert witness testimony.

• Tort reform with reasonable caps on pain and suffering.

Failing to do something about doctors who make their living testifying against other doctors will call into question the integrity of the medical profession as a whole. Failing to put limits on pain and suffering will foster and perpetuate frivolous lawsuits. The above suggestions are necessary for the survival of the medical community.

As Wendell Phillips said, circa 1884: “Revolutions are not made; they come. A revolution is as natural a growth as an oak. It comes out of the past. Revolutions never go backward.”

Francis J. Collini, M.D., F.A.C.S., P.C., is a plastic surgeon practicing in Shavertown, Pa.

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