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

THE OPEN MIND
Host: Richard D. Heffner
Guests: Dr. Harrison L. Rogers, Jr., William W. Falsgraf
Title: Medicine and the Law: An Irrepressible Conflict? Part II
VTR: 1986

HEFFNER: I’m Richard Heffner, your host on THE OPEN MIND, and I actually began today’s discussion last time when I suggested that we probably all agree about doctors, lawyers, teachers, that they represent the noblest of professions. Yet today in America, medicine and the law seem to be engaged more and more in irrepressible conflict. But the points in which they intersect, more and more, are points of contention, sometimes even of vilification. Malpractice suits put their practitioners at odds, sometimes the debate over the right to life and the right to die. So does the insanity plea, and abortion. We could go on and on. Colliding so angrily, lawyers and doctors puzzle and distress the rest of us, who do, indeed, depend so much on 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 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. Now mostly I want to ask them again why their professions are so at odds with one another, and what can be done about what I call this American tragedy. Gentlemen, thank you not for coming, but for staying from last week. The last time I was just getting to this question. I’ve written out here, “At what point, and to what degree is the doctor/lawyer conflict between the two exacerbated by the practitioners’ sense of themselves as businessmen rather than professionals? And, Dr. Rogers, we started talking about that, and Mr. Falsgraf, I wonder what your own feeling about that is.

FALSGRAF: I think you touch on a very important point with respect to both professions. I’m not sure it creates any tensions between the professions, but within the profession it certainly creates tension. Because, I think very clearly, at least I can speak for the legal profession, there is a great deal more attention paid to the business aspects of it. The cost of hiring young lawyers, for example, has escalated to tremendous heights; the cost of running a law office. All of this causes lawyers to look more towards the business aspects than the service aspects that typify the professional over the years, and it’s a matter of great concern to the American Bar and to its leadership.

HEFFNER: It’s interesting that you say that you don’t know whether it impacts upon the relationship between the professions, and yet it seems to me that there have been those doctors that have said to me, and perhaps have said to you that, “Those doggone lawyers. They are really…they are the root cause of all of our financial problems, our problems in terms of defending ourselves against…they’re ambulance chasers. They’re looking as businessmen, rather than professionals, to push their little “Mom and Pop” stores or their big “Mom and Pop” stores”. And I wonder how you respond to that notion.

FALSGRAF: Well, I think that’s an entirely different aspect of the problem. The typical plaintiff’s lawyer takes the case on a contingent fee basis, which means that they take the case, and they’re paid, if at all, as a percentage of the recovery. Which means that if they take very many cases which are without merit they’re going to very quickly starve. So when it’s said that the lawyers are bringing frivolous suits, they’re bringing litigation that has no merit, it just doesn’t make economic sense if no other type of sense. The fact of the matter is that there are recoveries, and that’s the heart of the problem. Recoveries have been increasingly great in the numbers of dollars involved, which indicates to me that there’s something there. You don’t recover unless there’s a basis for recovery, so I would say that it’s really quite the reverse of what you just said.

HEFFNER: And yet Dr. Rogers indicated in our last program that there is such an extraordinary surge of numbers of cases brought against numbers of trials in which doctors have to participate, that clearly the legal profession is doing well, maybe even doing good in some estimation.

FALSGRAF: Well, the figures that I have indicate that eight out of ten cases of actual provable malpractice never result in an actual claim for various reasons. Mostly because those cases are so expensive to bring that unless the foreseeable recovery is in the six figures the lawyer can’t afford to take it. So the $25-50,000 recovery simply won’t support the cost of the expert witness, the amount of time and preparation in bringing that case to trial.

HEFFNER: Do you think that…having the lawyer in these institutions stretch a bit his efforts to prove his case?

FALSGRAF: Well, that’s the lawyer’s job. If he accepts a client for representation, he is bound by the (???) of ethics to preserve that client’s rights, their legal rights to the fullest extent possible and if they don’t do it he or she can be sued for malpractice, so when you say in that tone that indicates that they’re overreaching, no, I don’t think so. I think that they’re doing exactly what they’re hired to do. The result of that is that with increased education on the part of the lawyers, increased sophistication, increased access to expert testimony, that indeed, they are able to prove instances of negligence that perhaps they wouldn’t have been able to prove 20 years ago because they simply didn’t have the sophistication, the knowledge and the training to do so.

HEFFNER: Do you think it’s easier to prove a malpractice today than it was a generation ago?

FALSGRAF: I don’t think the standards of proof have changed at all.

HEFFNER: What about in terms of juries’ attitudes?

FALSGRAF: Well, that’s entirely different. I think it’s demonstrable that (coughs)…I’m not just saying that this is true in just medical cases. The top end of the scale, the big verdict, in some 400 plus verdicts over a million dollars in the country just last year…at that end there is a rather sharp escalation in total dollar amounts of those awards. Down at the lower end, the average case is yielding the same as it was 5 years ago, in the $20-25,000 range. Now, these are the automobile accidents, the run-of-the-line types of negligence actions. So something’s happened up here in the big case, in the big headline-type case, the ones we read about. I’m not sure what it is. There’s sophistication on the part of the lawyers, sophistication on the part of the expert witness, the jury, attitudes; probably a combination of all of those things.

HEFFNER: Let me ask you one further question. Whatever it is, is it good in your estimation?

FALSGRAF: Well, you can’t moralize about whether it’s good or bad. The system is set up so that that’s the result. Now if the society determines that the result isn’t good, than society ought to change the system. I think that’s what Dr. Rogers is suggesting. They’d like to change the system. They don’t think it’s working right.

HEFFNER: You mean there aren’t instances in which things happen in our society and you pass judgment as an individual upon it, it’s good or it’s bad? That’s what really I was asking.

FALSGRAF: Oh, I don’t think overall…no, I wouldn’t characterize it as a bad trend. I admit to you and to Dr. Rogers that there are always areas in the law that could use re-examination and fine-tuning. But to say that because insurance premiums have gone up ten times, or that the incidences of lawsuits have risen over the past 5 years…that we take 2 centuries of law and we throw it in the ashcan is like your car breaking down and you drive it off a cliff. You don’t do that. You take it in and you fix it. And that’s really what I’m saying. It’s appropriate with the system.

HEFFNER: I wanted to ask Dr. Rogers about a United States World and News report. We’re talking here at the end of July, 1986, and it was at the end of this month too, that Mortimer Zuckerman, the chairman of U.S. News and World Report in an editorial said “The medical profession cannot complain about malpractice insurance…while this lack of discipline is allowed to continue.” He’s referring to…here is the charge that doctors presumably discipline themselves, they don’t do it often. And I wonder how that relates to what we’re talking about here.

ROGERS: I’m sure there is some small relationship…

HEFFNER: Small?

ROGERS: Small. I think that the issue of the bad doctor being responsible for a significant part of the malpractice cases that are presented in our country is small. I think that that is not a large part of the problem. It may be a part of the problem, and it certainly is one that we as an association that we as a profession are trying very hard to address. As a matter of fact, our national legislation we introduced the (???) bill, if you recall, has within it provisions to strengthen the State Boards of Licensure because we feel that these boards need to be strengthened with more money, more resources, more personnel, so that they can do a better job. We need to pass laws, if you will, within our states, to give physicians immunity, to require that they tell about their colleague that has a problem, or whatever, which they can’t do in many states across the country. So we think that this is an important thing. We don’t think that it’s the most important thing. We think it’s very low on the scale of important things to be done. One of the problems that we see, and I’ll have to go back to something that you and Bill were talking about, is the issue of the settlements today. I think that the settlements today in court frequently have no relationship to fault, frequently have no relationship to negligence on the part of the physician. We have many cases in which at the end of the trial the physician says that the juror comes and says, “Dr. Rogers, you know, I don’t want you to feel that we found you guilty because you did anything wrong, but because this poor lady needed the money.” Now, we’re using this system as a compensation system in our country today. It was not designed as a compensation system. It was not designed to reward those people who have a bad result for any reason.

HEFFNER: Mr. Falsgraf, I wonder about that point…Such rulings, as compensation…making people whole, not again, because they never were whole, but making them whole because society has not done so. Do you think that this does play a large role?

FALSGRAF: I think that certainly has got to be on the mind of a juror, but remember, that case never gets to that juror until the legal predicate is established. A legal predicate is some kind of negligent behavior, and in order to get the case from the court to the jury you have to have some evidence, normally supplied by an expert witness who would be, in this case, a doctor, saying “Dr. A. did not perform, in my opinion, up to the level of competence that should be anticipated and expected in this community”. If, at that point then, the court hands the case to the jury without that, the case is over before it’s even submitted. So…

HEFFNER: Let’s just…

FALSGRAF: …when a jury says, “No, no, we’ve found you guilty”, that’s just wrong, if they did.

HEFFNER: Let’s for a moment, though, concede that. You’re not willing to, but let’s, just for the sake of argument, concede that. What is the purpose of the huge award? What does the legal profession seek in the huge award? What good does it do society?

FALSGRAF: The legal profession doesn’t seek anything, other than, of course, to gain the maximum that is obtainable under the set of facts. The system says that our system is set up to do two things: To compensate the injured person for the pain and suffering and the economic loss that he or she has suffered, and: 2) to deter this type of action, or negligent action in the future. So it’s a two-sided approach the system takes.

HEFFNER: First, I think I do need to ask this again as a lay person: Are you suggesting that council simply reflects what a litigant wants? “I want to sue my doctor for fifteen million dollars, five million dollars, one million dollars, will you take my case?” Or is there more of a role, a larger role that the attorney plays, in deciding what will be asked for, what…

FALSGRAF: The first thing that happens when a person comes into a lawyer is a considerable period of evaluation of the case because, as I said before, if for no other reason, and there are many of them, including ethical reasons…a lawyer will not take a case that has no legal justification. The first thing you do is analyze the facts as applied to the laws that determine whether there is any legal claim at all. Then, based on experience, based on recoveries in similar cases and so forth, you determine what the proper parameters are.

HEFFNER: Is it the attorney’s obligation to get as much for his client as he can?

FALSGRAF: Oh, sure. Absolutely.

HEFFNER: Now, is that the primary purpose?

FALSGRAF: The purpose is to obtain compensation if, in fact, there has been negligence. And that is not as much as you can get necessarily, as it has to do with damages that have been sustained, the amount of injury seriousness…of the injury…but certainly it is the obligation to present the very strongest case, factually and legally, that you possibly can.

HEFFNER: …if anything, what do you find wrong with that?

ROGERS: As we mentioned last week, the situation in Florida where three-quarters of the neurosurgeons had been sued…we see more often than not, the professors of a particular specialty or a particular discipline are those who are sued the most often. These are the people who are the most competent. These are the people who are doing good work, who are training our youngsters. But these are also the people who get the difficult cases, and the difficult cases frequently will have a bad outcome. By necessity, they’ll have a bad outcome. There’s only so much you can do for somebody who has a terrible injury to the head, for example. And yet if that person does not return to society as an absolutely whole individual, then there’s basis for (???) and this seems to us to be a poor way to adjudicate that system.

HEFFNER: Mr. Falsgraf, you said a number of times, “Look, here’s the system. This is the system that makes this country strong. And it does, intellectually, morally. And it is a system that has worked. Don’t knock it”. What would you think…would knock anything about it, as a citizen? Not now President of the American Bar Association, not as a leading practitioner, but as a citizen concerned with patients, concerned with doctors, you know, concerned with the profession itself?

FALSGRAF: Well, if I were God…

HEFFNER: You’ve taken over that role…

FALSGRAF: …I would…I said that because on occasion some judges put themselves in that role…I think more often than they do now, they probably should…I’m being a little facetious when I say “play God”. Within the system now are checks and balances that already exist. The judge, for example, when he sees the jury, for whatever reason, has gone way beyond the mark to return a verdict that is…orders of magnitude above whatever reasonable person should expect…they hated the doctor, they hated the defense lawyer, or whatever happened to poison their minds…in any event, they reacted emotionally rather than in the way that they most often do. Then, I think, it’s the obligation of the court to reduce the…either call for a new trial, or reduce…reduce the amount of that award to some reasonable level. Certainly that is appropriate. Secondly, I went to the judge (???)…if a case comes before that judge that any reasonable person, any reasonably trained person would categorize as frivolous, then I think that judge ought to take a very strong stance, and ought to impose the sanctions that are in the law, and impose economic sanctions against the lawyer and the client, incidentally, who participated in bringing this kind of a suit…these are the kind of things I’m talking about.

HEFFNER: Does that happen often?

FALSGRAF: It happens on occasion, but not very often.

HEFFNER: Do you think it could work? Could it be made to work?

FALSGRAF: I, I think it can be made to work, yes. As I say, the law is there, the rules are there. To the extent that they need strengthening, changing, I certainly would support that. Putting a law on the books doesn’t mean anything unless it’s enforced. And whether the attitude of the judge generally is, “The jury sat here throughout this trial. They listened to the witnesses. They can make a pretty good judgment as to whether these people are lying or not. And I’m not going to interpose my judgment for those of six or twelve men and women on that jury.” They’re very worried about interfering with that jury system. I’m not suggesting that they do that on a wholesale basis, but let’s face it. Any system that is as well oiled and well tuned and it works, is going to have aberrations. Things are going to happen that are out of the ordinary. I don’t think that’s really what we’re talking about, though. Those occasional aberrations in the system aren’t the things that are driving the insurance costs. It’s the more routine case that I think is what we’re really talking about, because those run into the tens of hundreds of thousands.

HEFFNER: Do you want no-fault insurance in this area?

ROGERS: Our view is that we simply can’t afford it as a country. We simply can’t afford a system of care. We don’t know that for a fact, and we’re perfectly willing to test it someplace and see if it will work, but given the vagaries of human beings and how they react to injury or illness, and how they react to a situation in which their health is not perfect, it’s very difficult for us to say, you know, that every single bad occurrence…you say everybody who dies should be compensated, everybody who loses a limb should be compensated, everybody who has a bad result from an injury or from an illness should be compensated…well, if that’s the way our country has determined that it wants to go, then let’s do it on a fair…and across the board for everybody. Our system cannot do it on a piecemeal system of who can get into court and get that large award.

HEFFNER: So that does mean no-fault.

ROGERS: It does mean no-fault, yes. And I don’t think we can afford that kind of system. I think we’ve got to understand as a society that we are imperfect machines, if you will, that the human body has frailties and that I’m going to wear out someday. And that I’m going to lose a leg, or I’m going to lose my hair, or whatever may happen. And yet, this is no one’s fault. I don’t deserve compensation for it if it is an inevitable result of what happened to me, or my aging process.

HEFFNER: That’s what I wondered about the purpose of compensation, why I asked the question I did. What is the purpose of the award that you seek in a case, that an attorney seeks? Is it to make for better medicine? Is it for punishment, revenge? What is if for?

FALSGRAF: Well, as I said before, it’s a two-part approach. On the one hand, it is compensation. Compensation is much broader than just the amount of money that you lose for being out of the office for three or four weeks, or maybe for life, depending on the seriousness of the injury. It has to do with the quality of life, it has to do with the pain…

HEFFNER: How do you compensate that?

FALSGRAF: Well, it’s a…of course, it’s a very subjective thing, and that’s why we turn to a jury…

HEFFNER: No, no, I don’t mean how much to compensate for, but how do you compensate for pain and injury? Do dollars make me whole? No.

FALSGRAF: No, of course, they never will.

HEFFNER: Do they make…

FALSGRAF: That’s all I’ve got. That’s all we’ve got.

HEFFNER: Well, what do you think…

ROGERS: Well…

HEFFNER: …if it’s all we’ve got.

ROGERS: …we have a very tough time accepting that pain and suffering is something that ought to be compensated for in this sort of a litigious situation. We have a very difficult time deciding how much my leg is worth, how much my spouse, or my parent, or my child is worth…how much my being away from work for a period of time is worth. We’ve seen the (???) juries across the country…unbelievable amounts as far as the dollars…

HEFFNER: But we DO know how much your time away from work…

ROGERS: Oh, yes.

HEFFNER: …is worth. But to measure the pain, to measure the suffering, that’s simply different. Would you be willing to give up the notion of pain and suffering?

FALSGRAF: Well, I don’t think so at all. No, no, because it ignores such a large part of it. Let’s take one of the anecdotes that floats around…and I hate to do this, because anecdotal evidence is worth very little, but (???)…a fellow with a cancerous kidney…the good kidney was removed and the cancerous kidney was left. Clearly that was a mistake. The man was in his sixties. He didn’t have very long to live. His actual out-of-pocket cost was very little, relatively, a few thousand dollars. Now, is it fair to condemn that man to death and to a life, by any standards, would be regarded as a very poor lifestyle? Is it fair to say, “Well, ten or twenty thousand, forty thousand dollars out of pocket…that’s all you’re going to get”?

HEFFNER: What would you say would be fair?

FALSGRAF: Well, I say what’s fair is what the jury, in the situation, determines what is fair.

HEFFNER: Do you think there’s a limit?

FALSGRAF: Virtually…of course there’s a limit. But the limits move. You know, a million dollars twenty years ago and a million dollars today are two entirely different things.

HEFFNER: Really…

FALSGRAF: I’m not prepared…and this is the problem with putting caps on pain and suffering…is somebody’s outside notion of what is fair, and what’s fair in your case is not going to be fair in mine…it’s arbitrary.

HEFFNER: Yes, I understand in terms of fairness…more about society…there’s nothing we can do for this man. Nothing.

FALSGRAF: That’s right.

HEFFNER: But if you say, this huge award, if there is one, will prevent this from happening again, or work towards preventing this from happening again, I would find that personally a more satisfying answer.

FALSGRAF: Well, that’s the other side of the coin. As I said, it’s always a two-edged approach. That’s part of the system. It’s a deterrent and a compensation.

HEFFNER: Then I do want…we have a minute left…think it’s a deterrence.

ROGERS: I think it’s a very small deterrence. I think it’s a deterrence for those who are associated with that individual case. I think far better is an enhanced system of regulation of physicians by the state licensing board, an enhanced system of interprofessional and inside the profession of one another and how I do my business and what kind of work I do. I think I ought to be severely criticized if I do something wrong. I ought to be sanctioned in some way if I do something that’s bad. But I think that money is not going to…I don’t think that’s the way to handle that individual problem.

HEFFNER: We obviously haven’t solved, in our two programs, what the best way is, but I do appreciate your joining me for these programs. Clearly you don’t represent the anger and the antagonism that we talked about, that I talked about in the beginning, of the two professions. I would like to think that your attitudes may be resolved, or help resolve…the way we started off in the first program. Thank you both for joining me today.

Thanks, too, to you in the audience. I hope that you will join us again next time. And if you’d like to share your thoughts about our program today please write The Open Mind, P.O. Box 7977, F.D.R. Station, New York, NY 10150. For transcripts, send $2.00.

Meanwhile, as an old friend used to say, “Good night, and good luck”.