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Lawyers, Heal Thyselves (Fat Chance!)
"There is a story of a greedy wolf, who having deceptively wrapped himself in woolen clothing . . . was permitted to prowl about certain homesteads, where, . . . he caused most unaccountable decreases in the family store of mutton."1
In his editorial in the January 1998 issue of the ARCHIVES, James P. Richardson, MD, MPH,2 regrets the overuse of antibiotics for respiratory infections. He tells us that the reasons for this are largely nonscientific—low reimbursement, physician laziness, and a desire to increase patient satisfaction.
His suggested solutions to this widespread problem include educational intervention and financial incentives for physicians.
Some of this is probably true, but Dr Richardson has missed the obvious. All human activity in this country is held hostage to the legal system. Everywhere, everyone performs unnecessary and duplicative activity to help immunize against frivolous lawsuits. This epidemic of barratry is made possible by a tort system driven by contingency fees in which lawyers have little to lose except time. Lawyers file suits without merit by the millions, knowing that in a such a lottery game, a payoff must occur at some time.
The medical field is no different. Physicians operate more, test more, and prescribe more not so much from stupidity or sloth but from fear. The tort system is the deceptive wolf in Aesop's fable, except we know the wolf is always nearby, ready to strike. We abandon science in favor of fear.
Then what is the solution? First, stop these mea culpas; stop bashing ourselves. The more we call ourselves the bête noire, the more the label sticks.
Second, direct our energy away from the medical system to the real problem—the tort system. Make lawyers assume risk like others. Introduce into tort law that mechanism the rest of the world employs to restrain meritless suits: a "loser-pays" provision. Lawyers then will be more prudent, since they may lose not only time but also money. Once fear is diminished, those of us who practice in the real world, outside academia, can make decisions based on science.
Dr Richardson's solution to overprescribing would help. However, until a loser-pays system prevails and lawyers can be penalized for frivolity, unnecessary medical activity will continue unabated and so will the excessive use of antibiotics.
Calvin S. Ennis, MD
Escatawpa, Miss
1. Aesop. The wolf in sheep's clothing. In: Aesops' Fables. 590 BC.
2. Richardson JP. Physician heal thyself: are antibiotics the cure or the disease? Arch Fam Med. 1998;7:51-52.
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In reply
I thank Dr Ennis for his thoughtful comments. One small correction: I did not write and do not believe that unnecessary antibiotic prescribing occurs because of "physician laziness." On the contrary, I believe that the vast majority of physicians are trying to do their best for their patients. Although all physicians have had occasion to practice defensive medicine, I could find little support for Dr Ennis' implication that unnecessary prescribing results from physicians' efforts to reduce the possibility of lawsuits. I searched MEDLINE from January 1966 through April 1998, using the subject headings "antibiotics" and "malpractice," and found only a handful of relevant articles. Those articles that concerned primary care practice often mentioned inappropriate use of antibiotics as a possible contributing factor in malpractice cases.1-2 It seems, therefore, that physicians wishing to avoid lawsuits would do well to prescribe fewer antibiotics, not more.
I agree with Dr Ennis that the "mea culpa" approach is not enough. We know that we physicians fall short in many areas of practice; rather than documenting study after study of our deficiencies, we need to study how to change our behavior. The goal of my editorial was to provoke the reader, whether physician, managed care administrator, or public health official, to think of the problem of inappropriate prescribing as a problem with our health care system, not with individual physicians. In this respect, I agree with Dr Ennis. But although our current tort system hinders medical care in many respects, I do not believe we can blame attorneys for all of our problems.
James P. Richardson, MD, MPH
Baltimore, Md
1. Kuehm SL, Doyle MJ. Medication errors: 1977-1988: experience in medical malpractice claims. N J Med. 1990;87:27-34.
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2. Fink III JL. Liability claims based on drug use. Drug Intell Clin Pharm. 1983;17:667-670.
ABSTRACT
Arch Fam Med. 1999;8:11.
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