Medicine and the Law: An Irrepressible Conflict?, Part I

THE OPEN MIND
Host: Richard D. Heffner
Guest: WILLIAM W. FALSGRAF, President, American Bar Association, and DR. HARRISON L. ROGERS, JR., President, American Medical Association
Title: “Medicine and the Law: An Irrepressible Conflict?”, Part I

HEFFNER: I’m Richard Heffner, your host on THE OPEN MIND. Doctor, lawyer, teacher – I suggest we’d all agree that they represent the noblest of professions. Yet today in America at least medicine and the law seem more and more to be engaged in almost an irrepressible conflict, with the points at which they intersect more and more points of contention, sometimes even of vilification. Malpractice suits set their practitioners at odds. So does the debate over the right to life and the right to die. So does the insanity plea and abortion, and we could go on and on. Colliding so angrily, lawyers and doctors thus puzzle and distress the rest of us, who depend so much upon these professionals for our own sense of personal and public well being. How better than to address some of these issues than with an open mind?…so that my guests today are Dr. Harrison L. Rogers, Jr., elected President of the American Medical Association in June 1985, and William W. Falsgraf, who became President of the American Bar Association in August 1985. Mostly I want to ask them why their professions are so at odds with each other and what can be done about this American tragedy.

Gentlemen, I do appreciate your coming here today. I’m sure you’ve joined with each other on this discussion many, many times before. I wondered if I could begin by reading from the beginning of…of two essays that appeared in Yale Law Report in Spring 1986 – one by the Dean of Yale Law School, the other by the Dean of the Yale Medical School. The Dean of the Medical School wrote “The quality of medical care today is threatened by the pervasive, unwelcome, crushing embrace of the law. Every participant in the health care system – doctors, nurses, hospital administrators, paramedical personnel – is beset by an onslaught of new laws and regulations affecting every phase of medicine, from care of the critically ill newborn to that of the terminally ill aged, from the termination of pregnancy to the termination of life support systems, from criteria for hospital admission to those for Medicare reimbursement, from Baby Doe regulations to school laws”. Then he writes…I guess, Mr. Falsgraf, I’ll turn to you and ask you your reaction to this, “Worst of all, because it is the most personal, physicians are forced to live with the specter of malpractice litigation constantly in their minds’ eye. This legal assault has occurred so swiftly and has been implemented so harshly that it has begun to erase some of the very attractions long associated with pursuing a medical career – autonomy, independence, approbation, inquiry”. I wonder what your reaction is to that.

MR. FALSGRAF: Well, as you were reading that my reaction was that this is true of society as a whole. As we get more and more complex, we get more and more laws, everyone is subject to more regulation, to the more pervasive intrusions on their daily life by the government and by…by laws. Now when you get to malpractice, to negligence, that strikes me as a little strange…that observation…because the laws of negligence have been with us for centuries and they haven’t changed perceptibly over the last five, ten years. We have the same notions, we have the same jury system, we have the adversary system. So I’m curious as to why he would equate this proliferation of laws, which do impact us all, the negligence system which seems to me as one that’s been around for a long time.

HEFFNER: If it’s been around so long, why are we beset now with such problems? – and we seem to be.

MR. FALSGRAF: Well, I think the answer lies not in the system itself but in the results of the system which is the liability insurance premiums and availability. That seems, to me, is at the core of the problem. It‘s become very costly to insure against this type of law suit. And it’s not just the doctors, it’s the lawyers who talk to me and say, “I can’t get malpractice insurance in Wyoming anymore. What are you going to do about it?” The architects, the engineers, Coney Island had to delay opening. It’s all part of a much larger pattern and it’s creating a lot of resentment throughout the country, there is no question about that.

HEFFNER: Dr. Rogers, would you also point the finger at the insurance people and say let’s…let the lawyers and the doctors get together and say it’s the other fellow?

DR. ROGERS: Well, no, I wouldn’t. I think that…in fact, to go back to the original thesis of the article, I think that there is, in fact, a proliferation of regulations. It’s just unheard of as far as medicine is concerned. Doctors across the country do feel a very great thereat to their autonomy as far as how they deal back and forth with their patients because of the regulations, because of the legal implications of what they may or may not do. And so I think that is a serious problem. I think that the malpractice issue for physicians across the country is, in fact, a crisis at this point in time – as far as the physicians in this country are concerned. They do feel that it’s a crisis of money. They think it’s a crisis of the numbers of suits, the size of the awards, everything related to it. And then the introduction of what Bill describes as the adversary system – the introduction of that attitude, of that part of his system into the system of delivering care, that has made for physicians across the country such an unpleasant thing.

HEFFNER: But he says two things. One, it’s not an introduction, it’[s been there all along. And two, don’t the doctors simply have to come into the twenty-first century with the rest of us, with all the unpleasantness that goes with it?

DR. ROGERS: Sure. And I would certainly agree that we’ve got to come into the twenty-first century – and we are, there’s no question about that. I think that we have participated in forums around the country to change the laws. And I think what we’re trying to do is to make the law more adaptable to the delivery of good, quality health care. And I think we are doing this around the country today and we’re seeing dramatic results, I might add.

HEFFNER: You say the law needs to be changed.

DR. ROGERS: Well, there are just a number of things, and you were perfectly aware of the sorts of things that the American Medical Association is suggesting that we do in states around the country to make the professional liability problem less acute in states around the country. Such things as the California initiative that was just passed – Proposition 51, I believe. This is and will make a substantial impact on the liability issue for the future, I think.

HEFFNER: In what way?

DR. ROGERS: Well, it’s going to, I think, decrease the amount of money that’s going to be required to insure me against that possibility that I may be very peripherally involved in a liability situation in California – as a practicing physician in California. As you know, in the past in California, if I was held to be two or three or five percent responsible for a particular action in California, that I could…and the other parties to be case had no insurance or no assets…that I could be held responsible for the entire amount. Well, municipalities, we’ve heard, are just desperate to be faced with this. And this situation has been changed so that now, as a part of my own negligence, if you will, and not for that of anyone else involved in the suit. That is going to make a big difference. It’s going to make a big difference in how much I have to pay, the reserves I have to carry as an individual to cover myself for liability.

HEFFNER: Mr. Falsgraf, you feel this is a step in the right direction?

MR. FALSGRAF: I think it’s an interesting step and it remains to be seen how…what kind of effect this has on the insurance premiums. But this is exactly the way it should be done. It should be done in the laboratories of the states around the country and they’ll try different thing. California may seek to solve the insurance problem in the way that Dr. Rogers says…has explained here. Others will go about it in a different way and what we’ll have is the opportunity to view all these different experiments going on and find out which work, which don’t work, and that will help us out. What we’re fundamentally opposed to is attempting to legislate a quick fix, particularly at the Federal level. I don‘t think that that’s the way to go about it.

HEFFNER: Why?

MR. FALSGRAF: Well, because it is a terribly complex problem. The Congress is beginning to understand that you’re not going to fix this by a wave of the wand. It has to do with insurance economics, it has to do with public attitudes, it does have to do with some aspects and changes…developments in the law. But it is so complex that changing one little part of the system probably will not yield the results that both Dr. Rogers and I are looking for and I think we’re in total agreement that insurance premiums are too high, and worse – to the extent that any professional in this country cannot buy insurance, that’s unthinkable. You should not require anybody to go without the coverage because they could lose everything and that’s not right.

HEFFNER: But, of course, the paragraphs that I read talk about more than insurance premiums – they talk about an interface of your professions in a way that makes one feel very, very strangely. I mean…every parent brings up his or her children, initially, to be a doctor or a lawyer.

DR. ROGERS: Well, I would certainly like to reiterate that point I made a little earlier and that is about the introduction of the adversary system. That attitude being introduced into the doctor/patient relationship is very damaging. I understand that it is a very necessary part of the legal system – it’s a part that we’ve used for centuries and it served us well – but in the doctor/patient relationship – in my relationship with you as an individual patient – I simply cannot have the stand-off, sparring sort of attitude with you as a patient that the lawyer may have with his opponent or client in the courtroom. It is imperative that I have with you a warm, friendly, open, confidential transfer of information back and forth so that you and I can get the most out of my intelligence, explaining your problem. And with the adversarial attitude of sparring with each other, it really destroys or very badly damages that relationship. And we’re saying this across the country – the access to insurance, the access to care…where all the obstetricians are leaving…the increase in suits, the increase in judgments – all those things are bad problems, but the introduction of the adversarial relationship between me and my patient is a very damaging thing.

HEFFNER: Well, you say introduction, and certainly I agree with you. I must have great faith and confidence in you to be helped by you, but if I feel that you are not willing, as a representative of a profession, to put the finger on those who are not practicing as you would practice and as you have practiced all your life, what option do I have, other than to resort to the legal profession, to assure myself that malpractice will not be permitted by the medical profession itself?

DR. ROGERS: I think that’s a perfectly legitimate position that you’d adopt, that you insist that physicians in this country put the finger on bad physicians and require sanctions, require removal of license or whatever might be required. I think that’s an appropriate thing and I think physicians…organizations and groups of physicians around the country will support that one hundred percent. My problem is not with you and I dealing with each other as a public and a profession, but individually as we deal with one another, doctor and patient – in my caring for you. I simply don’t have the ability to provide you with as good a service if I don’t trust you completely…if you don’t trust me completely.

HEFFNER: May I ask whether you believe in your heart of hearts that essentially this developing adversarial relationship – and Lord knows it has developed the pace in recent years – is a function more or less of true malpractice on the part of your profession, or attitudes pressed, pushed, sold by the legal profession?

DR. ROGERS: Well, I’ll have to say that I don’t believe that it’s a function of a poor quality care being given, because at a time when the quality of care, nation-wide, has improved dramatically, at a time when the quality of our individual practitioners, as judged by certification…board certification and testing and all the other things we do, has improved dramatically, and we…at the same time see a dramatic increase in the number of personal litigation instances. And this seems incongruous to us. So that I don‘t believe it’s related.

HEFFNER: On that subject – what’s your own response to that?

MR. FALSGRAF: Well, I think we’re missing a fundamental point, and that is that the adversarial system doesn’t come into play until there’s a dispute. The reason for the adversarial system is to determine where lies the fault, where the facts…what the facts are and, at least in this country, we’ve come down on the side of the adversarial system as being the best way in which to gather those facts and to determine the relative innocence or negligence of the parties.

HEFFNER: In a doctor/patient relationship too?

MR. FALSGRAF: In any. In any. But this is the point that I’m trying to make is it doesn’t happen in the doctor/patient relationship until something happens to that relationship. It’s when the…the patient suddenly believes that he or she has been treated improperly. At that point, and that point only, does the adversarial system come into it. Now, it would come into it if the doctor, during the course of treating the patient, is looking over his shoulder the entire time as to…”Now, if I do this, am I going to get sued for it?” That’s possible. But the system itself doesn’t come into play until you get a controversy.

HEFFNER: The question occurs to me, as a lay person – are you suggesting that each malpractice suit is a reflection of malpractice? And when you say it doesn’t come into play until there is bad medicine, are you suggesting that all of this is a function of bad medicine alone?

MR. FALSGRAF: No, it’s the system that’s set up to determine whether an injury was a result of improper practice of medicine. That’s what the whole thing is all about.

HEFFNER: But that’s the system that’s at question now, isn’t it?

MR. FALSGRAF: No, I think what the doctor is saying is that in the course of ordinary doctor/patient relationships, there is this adversarial feel and I question that. It may be that the doctor feels that – I don’t think patients do, but maybe they do. The point of the matter is – it’s not the system, it’s the feelings of the persons involved in a personal relationship, because the system doesn’t come into play until there is a dispute.

DR. ROGERS: Yes, that’s…well, it’s very true that doctors, as they view their patients today, view them with a little more edginess than they ever did before. And the reason is perfectly obvious. You know, when twenty to twenty-five percent of the doctors across the country are being sued every year, when three-quarters of the doctors…of the neurosurgeons in Florida are being sued every year, we know very good and well that neurosurgeon in Florida…every neurosurgeon who sees a patient in Florida is a little edgy. He’s a little…there’s a little of the adversary system there and I agree with Bill that it’s…served us well in the courts, but it does not serve me well as I deal with my individual patient…in caring for that patient.

HEFFNER: Yes, but of course the question occurs to me – shy are the statistics as you say they are? What has lead to this incredible increase of malpractice suits? Is it malpractice of is it a legal profession attitude that leads the public to feel that doctors are fair game of that conflict is fair game or that we should be even more litigious than we have historically been?

MR. FALSGRAF: Well, you, I think, ascribe a power to the Bar of the United States that it simply doesn’t have. The Bar cannot change public attitudes. Public attitudes change because of a number of things, largely the media, and I think what it reflects is an increasing degree of sophistication on the part of the consuming public who realize that indeed the result that they got may not be as good a result as could have been obtained had the procedure been carried out in accordance with the norms in the community.

HEFFNER: Well, let me…

MR. FALSGRAF: …They’re aware of these things and they’re also aware, through publicity, of the fact that a lot of people are recovering. So, it has an element…and I’ll admit, it has an element of the lottery to it, and I think that is extant in the minds of people…if something goes wrong, they know that they have access to the courts. I don’t think that educating the public is necessarily a bad thing. In fact, I think that’s what our country is built on.

HEFFNER: Educating them to the possibility of going to court?

MR. FALSGRAF: Certainly, that’s part of it. That’s the system.

DR. ROGERS: Well, I would certainly agree with Bill. You know, I think he’s right. I think our society today is a litigious society. It is a society that almost never settles its arguments between you and me as an individual by me inviting you out behind the woodshed anymore. It’s always, “I’ll see you in court”.

HEFFNER: But this is said approvingly by one of you, and I asked the other whether it is said approvingly, too. You’re saying, “Yes, this is what’s true – we’re litigious”. Now, are you applauding this?

DR. ROGERS: No, I’m not. I’m opposing it. I think it’s a sad state of affairs when we have to go to the courts to settle all of our disputes. I think this is a mistake. I think it’s a dramatic change that has occurred in the last twenty years, and I don’t think it’s going to result in a beneficial result for all of us.

HEFFNER: How do you feel about that Mr. Falsgraf?

MR. FALSGRAF: Well, I don’t agree with that at all. It seems to me that being litigious is not necessarily desirable, but what it means is that in a highly complex and interrelative society we’ve developed a means of settling our dispute without knives and guns and the things that people typically have resorted to. You talk about going behind the woodshed – if eight million people in New York City went behind the woodshed we’d have chaos. So I think the system is working. Now it is taking up time, it’s taking up money, it’s interfering with the practice of medicine in Dr. Roger’s situation and others, but you don’t change societal attitudes by snapping your finger and saying this isn’t the right way to go. You look at the alternatives – what are the alternatives to that kind of a system? How would you better resolve those disputes?

HEFFNER: What would you do?

MR. FALSGRAF: I think the system is working quite well myself. I think that we’re settling our disputes peaceably. What we’re doing is looking toward alternatives, in fact, to the court system, but, nevertheless, still within the adversarial ball park, if you will. We’re looking to mediation, arbitration. These sorts of things may represent a partial answer but not a complete answer because there are appendages to the system that Dr. Rogers is talking about.

HEFFNER: How sympathetic are you to the doctors who feel otherwise?

MR. FALSGRAF: Well, I think there…I understand why they feel the way they feel, and I would feel the same way. I wouldn’t like to be sued any more than anybody else would like to be sued, but viewed systemically, I think the system is working quite well.

HEFFNER: You mean that it results in better medicine? Is that what you mean?

MR. FALSGRAF: I think so. I think the very thing that he’s talking about – the doctor being a little more wary – causes him or her to regard that patient as something other than just “a good old buddy” and “We’ll try to help you out a little bit”. I think it is a desirable affect.

HEFFNER: Better medicine through the courts?

DR. ROGERS: Worse medicine by far. I think there’s no question that when I have a poor relationship with my patient…and I think a deterioration of the absolutely ideal relationship between you and me as a doctor and patient…any deterioration in that is bad and I think it means that I’m going to serve you less well, whatever my specialty, whatever kind of medicine I’m delivering to you – it’s going to be of a lower quality, I believe, if, in fact, we have this adversarial relationship in any degree. And so I think that because it is not serving the patients well – and that’s basically what we’re talking about, it’s what’s best for the American public.

HEFFNER: You know, that’s the point at which I would ask you, Mr. Falsgraf, what is your response to that statement by a physician? He is talking about his own practice of medicine.

MR. FALSGRAF: Well, I’m sure it’s a position that’s honestly held, but I believe – and I think if you’d talk to a typical patient across this country – that they would tell you that the practice of medicine has long since been depersonalized – you don’t any longer have the so-called family doctor. The day of the house call went by the board years ago. What we’re talking about is that we’re dealing with enormous institutions, big hospitals, HMO’s, groups of doctors who tend to be faceless, and the patient, you’re right, has lost that friendly person-to-person type of relationship that used to exist. And I would agree that if you could bring that back it would probably be desirable. I don’t know how you’d do that. I know that you don’t do it by blaming the system. The system didn’t create this.

DR. ROGERS: I think the system is at least partially responsible for it. I think that the problem that we’ve been describing – the litigation issue – is at least partially responsible for this. And I think it’s possible, even in a large organization such as an HMO, that, as Bill mentioned, it’s possible that even in that kind of an organization you can have a very close relationship with your physician and if you do, I think that you get better care than if you are, in fact, being treated by a stranger, who sees you as a stranger for a patient. That’s not the ideal situation. The ideal situation is to have a single physician who is responsible for your care and who feels a sense of warmth toward you. That is so valuable in the delivery of that care.

HEFFNER: But Mr. Falsgraf is saying is what I said at the beginning…or I raised the question whether we don’t have to admit that we’re going head-long into the twenty-first century. Let’s say we’re there now, in terms of the practice of medicine. And he says that if we could turn the hands of the clock back, fine. But that we can’t, and what you’re suggesting is something from another “never-never land”. What do you think about that?

DR. ROGERS: I don’t really believe it’s from another “never land”. I think it’s really…excepting the reality of the high technology, of the high intricacies of our system – the HMOs, the capitation systems of care – excepting all that, I think there is still a very close relationship between the individual patient and the doctor who operates on that patient, or who subscribes for that patient, or who answers the phone call in the middle of the night. That’s a close relationship, and it ought to be. And I think it serves the patients well for that system to exist. And I think anything that detracts from it, whatever it is, whether it’s the regulations that we have today or the development of the high technology, whatever it is that detracts from that I think is bad, is bad for the patient.

HEFFNER: Well, I guess the point that I do want to raise has to do with the possibility of having that kind of relationship, whether in medicine or the law, in terms of perhaps the deep professionalization of both professions and the degree to which both have become industries, to which both have become businesses, and whether the business ethic doesn’t play a larger role in medicine today, and perhaps in the law.

DR. ROGERS: It certainly provides us with a constant threat in medicine. You know, the development of the large systems of care, primarily those systems of capitation payments for care – HMOs, IPAs, and the large government programs – do, in fact, introduce a business ethic into the delivery of care that is an unwelcome addition, as far as I’m concerned, and makes it far more difficult for the physician to remain the true patient advocate in that situation because the physician in snot only faced with the problem of the professional relationship, but then also the business aspects of the relationship between him or her and that individual patient.

HEFFNER: You know, obviously this is a point that we really have to pursue and I’m getting the signal that we have just seconds left and I’d ask you gentlemen to stay where you are and after we say goodbye we’ll start again so that those who are watching us still can watch again next week and let’s pick up on this question of dollars and cents. Okay? Thank you both very much for joining me today on THE OPEN MIND.

And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as another old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; The Richard Lounsbery Foundation; Mr. Lawrence A. Wein, Pfizer, Incorporated, and The New York Times Company Foundation.

END OF PART ONE OF THE INTERVIEW WITH DR. ROGERS AND MR. FALSGRAF.