It Ain't Necessarily So
By Michael J. Katin, MD
A display at the 1904 World's Fair and Louisiana Purchase Exposition in
St. Louis attracted a lot of attention. A lion
and a lamb were seen together in the same cage, peacefully interacting.
The audience was very impressed by this and had no idea that the only reason
this was possible was that a new lamb had to be put in about every 2 days.
It is obvious that this month's column is dedicated to
the topic of tort reform.
It would be nice if the peaceable kingdom could develop naturally but
they probably could have kept stuffing lambs into the cage until the cows
came home and the outcome would have been the same until the lion died of
old age or obesity
bezoar). The fact is that there is no room for being judgmental. The
lion was carrying out its natural behavior regardless of the reason the
tableau was set up. The same applies to today's society.
It is inappropriate to expect the legal profession to suddenly decide
that its basic principles have been applied too enthusiastically. It might
be reasonable to think that aggressive intervention might be depleting natural
resources to the point that there will be nobody left to pursue in the future,
just as the brown
tree snake has nearly wiped out the bird population of Guam. This hasn't
stopped the brown tree snake from jumping on everything with feathers that
comes its way and it is incapable of learning that this may ultimately lead
to its own demise.
The bottom line is that it's hard to avoid doing
something that fulfills one's mission and also makes
money. When in radiation oncology we're confronted by
a patient with a serious problem for which the chance
of cure is minimal, and when we're being asked to
treat, it's hard not to do this. Especially since
we'll run the risk of getting sued if we don't.
Maybe the argument's getting circular now, but it's nearly impossible
to make decisions independent of one's fiscal well-being. This applies
whether you're in municipal government handing over management of the water
supply of the United States to foreign
companies, or encouraging your clients to buy
worthless stocks on which you can make a commission. This is only human
nature and can't be faulted.
Of course all physicians want protection from liability since some things
are just destined to go wrong no matter what you do, and attorneys want
to be paid for their efforts on behalf of the client's right to be compensated
for damages, both real and extrapolated. Why would either side capitulate?
For the first time in years, there's a coordinated effort by physicians
to press for tort reform including intensive lobbying of legislators and
events to get the attention of the public, including office closings and
demonstrations. This coincided nicely with the start of Gulf
War II, with news coverage of the malpractice issue now relegated to page
34C in most newspapers.
It may be necessary to face the inevitability that
nothing will change, although it has been mentioned
that things would be better if everything went back the
way it used to be. The dilemma is, how long ago?
Because of the war, many people are finding it impossible to avoid being
contaminated by historical facts about the region, but so far I haven't
heard much about the Code
of Hammurabi, which is not the numbers to get into the doctors' lounge,
but rather the first written set of laws in history. George Santayana once
said "Skepticism, like chastity, should not be relinquished too readily,"
which has nothing to do with this, but he also said, "Those who cannot remember
the past are condemned to repeat it." Fortunately, in the Code of Hammurabi
there's no reference to radiation oncology, but surgical malpractice is
addressed in #218: "If a physician make a large incision with the operating
knife, and kill him, or open a tumor with the operating knife, and cut out
the eye, his hands shall be cut off."
We would agree that in that scenario that something dreadfully amiss had
occurred, and probably the physician should be penalized. Is this what
is going to evolve? And if implemented today, would the attorney get seven
of the fingers?