Jewish World Review Jan. 21, 2005 / 11 Shevat, 5765
When a friend told me recently that he was going to undergo a
painful medical procedure to see if he has cancer, it reminded me of a time
years ago when I faced a similar prospect. The testing procedure in my case
would have been both painful and with some risk of infection.
Fortunately, it was a two-part procedure. The first part was
uncomfortable but not painful or with any great risk of infection. After a
young doctor had put me through this part, an older specialist took over and
examined the results and he decided not to proceed with the second part
of the test.
When my wife asked me if that meant that I did not have cancer,
my answer was, "No."
"What it means," I said, "was that the doctor weighed the
alternatives and decided that the chance that I had cancer was sufficiently
small, and the danger of infection from the test itself was sufficiently
large, that the best choice was not to go any further."
My wife seemed not completely put at ease by that, so I added:
"Like anybody else, this doctor can be wrong. But, if it turns out that I do
have cancer and die, I don't want anybody to sue that man. Nobody is
infallible and no patient has a right to infallibility."
Since this was many years ago, apparently the doctor's choice
was the right one. But how many doctors feel free to make such choices in
today's legal climate, where frivolous lawsuits and junk science can lead to
multimillion-dollar awards or settlements?
After so many megabucks awards grew out of claims that babies
born with cerebral palsy could have been spared if only the doctor had
delivered them by Caesarean section, C-section births rose sharply. But it
did not reduce cerebral palsy.
While the C-section births may not protect babies from cerebral
palsy, they protect doctors from being ruined financially by glib lawyers
and gullible juries. Those lawyers who claim that their big-bucks awards
don't add much to the cost of medical care are counting only the sums of
money they collect.
But needless operations and needless tests are not free, either
financially or otherwise.
Today, I cannot help wondering whether my friend is going to be
put through a painful procedure for his sake or because the doctor dares not
fail to do this test, for fear of a lawsuit somewhere down the road. This is
one of the hidden costs of frivolous lawsuits and runaway damage awards,
quite aside from the sums of money pocketed by lawyers.
When I was growing up, it would never have occurred to me that
Dr. Chaney, our family physician, was doing anything other than giving it
his best shot for the sake of our health.
It probably never occurred to Dr. Chaney that we might sue him.
For one thing, he knew we didn't have enough money to hire a lawyer, so that
was out of the question in the first place.
Trust between doctor and patient is not a small thing. Sometimes
it can be the difference between life and death. Our laws recognize the
enormous importance of that relationship by exempting doctors from having to
testify to what a patient has told them, even if it is a murder case.
To go to these lengths to protect the doctor-patient
relationship and then blithely throw it away with easy access to
frivolous lawsuits makes no sense. Neither does creating a massive medical
bureaucracy to pay for treatments and medication, where that means that
patients can go only to those doctors preselected for them by some insurance
company or the government.
One of my favorite doctors retired early and spent some time
explaining to me why he was doing so. The growing red tape was bad enough
but the deterioration of the doctor-patient relationship soured him even
Earlier in his career, patients came to him because someone had
recommended him and they came with a wholly different attitude from that of
someone who had been assigned to him by an insurance company. He now found
much more of a distrustful, if not adversary, attitude that didn't do him
any good or the patient any good.
That may be the biggest cost of our current bureaucratic and
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