Jewish World Review Jan. 21, 2005 / 11 Shevat, 5765

Thomas Sowell

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Consumer Reports

Medical lawsuits | 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.

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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 more.

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 legal environment.

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JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, "Applied Economics: Thinking Beyond Stage One." (Click HERE to purchase. Sales help fund JWR.) To comment please click here.


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