Academic journal article Vanderbilt Law Review

Dishonest Medical Mistakes

Academic journal article Vanderbilt Law Review

Dishonest Medical Mistakes

Article excerpt

In the medical liability wars, physicians like to think that they are the ones in the trenches. Yet the true soldiers, of course, are the patients. As patients seek to avoid the barrage of malpractice reforms and the spoliation of managed care, one of their key refuges-the fiduciary duty of health care professionals-is being assailed from a number of directions. This Article describes these attacks and suggests how best to thwart them.

I. THE PATIENT'S PREDICAMENT

Imagine that you are seriously ill and go to a doctor. If you are like most patients these days, you are enrolled in some form of managed care.1 One consequence of this is that your doctor is a relative stranger.2 Another is that the doctor has a financial interest in providing you with the minimum possible amount of care, for example, foregoing beneficial diagnostic tests and ordering less expensive treatments.3 This can seriously harm you.4

How would you feel if the doctor made a mistake that harmed you, not because he was careless or forgetful5-what might be called an inadvertent or "honest mistake"-but because the doctor made a "dishonest" mistake-that is, sacrificed your interests in order to benefit himself? In other words, how important is it to you that your doctor be not only competent, but committed to placing your interests ahead of his own?

Chances are, it is pretty important to you for three good reasons. First, you have far less power than the doctor. Due to the non-competitive market for general practitioners6 and the likelihood that if you are sick you will need care urgently, you are not in a good position to insist upon seeing the most highly qualified and trustworthy physician. Second, the doctor often has to do things that you cannot monitor because you are untutored or oblivious.7 Third, your health and well-being are in peril, and most likely you are worried and afraid. (Some experts say you can be so intensely affected by your circumstances that you are no longer the same person.8)

No one knows how often doctors take advantage of patients in this situation. Although several research projects have attempted to determine how frequently doctors make mistakes in general,9 none have attempted to classify mistakes in terms of whether or not the doctor took advantage of the patient, and it is not clear how such a study would be designed. It is probably safe to assume that most medical mistakes are honest mistakes-ones that occur despite the doctor's best intentions. Doctors certainly believe that this is true10; this is one of the main reasons why they despise the malpractice system, with its "shame and blame" approach.11 In fact, physicians seem to think that, for the most part, they do not deserve to be punished at all. As Lucien Leape observed, most doctors insist that the vast majority of physicians who get sued are not careless or "engaged in foolish behavior."12 By and large, physicians believe that they are conscientiously trying to do the right thing. "A malpractice suit isn't about being a bad doctor," emphasizes a psychiatrist who conducts medical malpractice education sessions for physicians. "It's about a bad event."13 The title of a 2000 report on medical mistakes by the Institute of Medicine says it all: "To Err is Human."14

Yet there is no question that doctors sometimes do make mistakes by placing their interests ahead of their patients'. For one thing, it is relatively easy for doctors to get away with it. Most of the time, doctors who make any kind of mistake, honest or dishonest, do not get punished. This is because nothing untoward happens; or something does, but the patient does not realize that it was the doctor's fault; or the patient does realize this, but is unable to sanction the doctor for it.15

It is likely to be even harder for patients to establish that a mistake was dishonest. Conflicts of interest abound within the patient-physician relationship. As mentioned earlier, managed care creates financial incentives for doctors to provide less than optimal care. …

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