Barnard Collier
May 12, 1975 12:00 PM

Courts across the nation are decreeing higher and higher cash awards for victims of medical malpractice. As a result, the price of malpractice insurance for physicians and surgeons has risen six to seven times in the last five years. State legislatures are now weighing various alternatives to the current system. Indiana recently set up a medical review board to study each case and issue an opinion, which may be submitted to the court or used in a settlement. The state is also limiting an individual doctor’s responsibility in a malpractice case to $500,000. In several states, including New York and California, private insurance companies want to raise their rates even higher than now and in some cases are threatening to drop malpractice coverage altogether. Some angry doctors say they may have to move to other states or close up shop. In charge of assessing the dilemma for the Department of Health, Education and Welfare is 71-year-old Dr. Roger Egeberg, onetime personal physician to Gen. Douglas Mac Arthur, former dean of the University of Southern California Medical School and now special assistant to HEW Secretary Caspar Weinberger. Dr. Egeberg recently discussed the malpractice crisis with Barnard Collier for PEOPLE.

How do you define malpractice?

Malpractice ought to be called medical liability. It isn’t just bad practice.

Why are people now more eager to sue?

People expect perfection nowadays, and it’s not always possible. A certain amount of carelessness and negligence does go on in a hospital, but it would simply cost too much to prevent it. And there are medical people who are really malpracticing. They are simply ignorant, callous or careless.

Who are these chronically negligent physicians?

They are doctors who don’t see what the other 99 percent of doctors see—a human being. They do things they are not trained to do, performing operations they have no business doing. The careless physician is almost like an accident-prone person. He just can’t do the thing right, and he shouldn’t be doing it at all.

Can you give an example of a typical malpractice case?

Let’s say you have something as simple as a postoperative stitch abscess, caused by an infected suture, let’s say, or an organism in the blood. It might keep you in the hospital three weeks extra or out of work for two months. The doctor doesn’t explain why it happened, because he has been told by his insurance company to act like nothing has happened. The doctor sloughs it off. Then you talk to your neighbors and finally somebody says, “Why don’t you find a good lawyer?” That patient was stupidly handled by his physician.

How should the doctor have acted?

Something went wrong. Maybe it was the doctor’s fault, maybe it wasn’t. But as soon as he saw it, the doctor should have come to the patient and said, “We’re sorry this happened to you. It happens in one out of 100 cases,” or “I goofed, but I want to assure you that you’re going to be all right, that you’re not going to have to pay anything extra for the extra days in the hospital, and that we’ll take care of the money you’re going to lose by not being able to work.” The doctor must show the patient that he is interested and sympathetic, but the insurance company says not to say that. So the patient builds up a resentment toward his doctor.

Why are judgments against doctors so much higher than they used to be?

Sometimes I think a jury is just trying to set a record when they give $4 million to a paraplegic. But the jury gets mad at the doctor, and so does the judge. I would, too. So insurance rates for all doctors go up. In California, for example, they’ve had 18 judgments and settlements of over $1 million in the past 24 months. This frightens the insurance actuaries, so they want to double, triple and quadruple the premiums.

What are the current rates?

For internists, general practitioners and psychiatrists, the premiums are still very low, usually between $300 to $500 a year. But when you get people who are cutting—performing operations—they jump. In New York premiums for some high-risk doctors will soon be up to $60,000 a year.

Which are the high-risk doctors?

They are those we call the “Group Five”—neurosurgeons, orthopedic surgeons, anesthesiologists, plastic surgeons and obstetricians-gynecologists. For some of these specialists, the premiums already are up to $20,000.

Are the chances of being sued that much greater for this group?

In the case of the obstetrician-gynecologist, you have two lives, and twice the chance of something going wrong. In the case of an orthopedic surgeon, you often get cases referred to you that have not been handled well in the past. If you’re a neurosurgeon, well, I’ve often wondered why the hell any doctor ever goes into it. There have been tremendous improvements in neurosurgery, of course, but there are still patients who are disappointed. Plastic surgeons get women who say after an operation, “You said I’d look like Greta Garbo and I look like one of the Marx Brothers.”

And the anesthesiologist?

He’s always in the operating room, so no matter who’s being sued they usually toss him in the pot.

How much is malpractice costing in terms of national health care?

A staggering amount, and the patient is hardly benefiting at all. We estimate that $4.5 billion is attributable to the malpractice problem nationwide. This includes premiums for insurance, plus the cost of “defensive” medicine—tests and examinations which probably aren’t medically necessary, but which are performed by a doctor to protect himself in case a patient should bring suit.

How do these costs break down?

Ten years ago a hospital paid about 10¢ per bed per day for malpractice insurance. Now it’s up to at least $2 and in some hospitals as high as $10.

How much do patients in this country wind up collecting from malpractice claims each year?

Around $300 million. There were 18,000 claims closed last year. About half were dropped before getting to court. In about one-quarter of the cases, the insurance companies apparently felt that the doctor was guilty and settled.

Are insurance rates likely to go down in the foreseeable future?

Only if there is something done to prevent a doctor’s liability from going on ad infinitum. A doctor can be sued for something he did 20 years ago. In one case, a spastic 19-year-old was talked into suing the obstetrician who delivered him for somehow causing his spastic condition. The case was decided in favor of the doctor. Something must be done to limit the time in which a suit can be started.

What are some ways to handle the overall problem?

This Administration feels solutions ought to be up to the states. I hope states will require insurance companies to form consortiums to sell malpractice insurance. I also support binding arbitration before a panel of doctors, or doctors and lawyers. And there ought to be a limit on awards. I would like to see the lawyers’ contingency fee cut to 30% or 40% of the first $100,000 with a scaled down fee after that. Juries also should make the awards for a sum of money annually, instead of a lump sum.

Is there less malpractice in some parts of the country than in others?

There are states, like Idaho or in places outside the big cities, where there are very few malpractice suits. People who live there don’t have the same attitude as the New Yorker or the Los Angelino or the Chicagoan. Also, people in some less urban states are in the hands of doctors who know them.

Is the “Marcus Welby” manner that important?

Absolutely. Most suits are against doctors who have only seen the patient a few times and for less than a year. If he’s gruff and ignores you, you may look for a reason to sue him.

If you were a doctor starting out in practice, how would you handle the huge malpractice premiums?

I’d consider moving to a state such as Indiana, where the laws are now more reasonable. Then I might put everything in my wife’s name and tell my patients that I am practicing without insurance, and that they would have to trust me. But the lawyers would probably get around that one soon.

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