April 2003

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 (or wool 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?

email: mkatin@radiotherapy.com