Richard Moskowitz, MD

1. Malpractice as a Subset of Medical Risk.

The legal term “malpractice” applies only to those cases of patient injury for which individual or group liability can be attributed to human error, in the form of specific acts or failures to act, such as negligence, incompetence, poor judgment, or simple oversight on the part of physicians, hospitals, and often other health professionals as well.  A verdict of malpractice further implies that reasonable standards of care exist for the procedures and situations in question, are generally well known and adhered to by the profession, and were violated in the particular instance.

Malpractice tends to be difficult to prove in court, because medicine remains to a large extent an art, with standards that must be infinitely adaptable to each new situation and therefore often cannot be formulated rigorously or agreed upon in advance.  But in many cases the chief reason is simply that no definite mistake can be found, that the patient fell victim to a drug or procedure that is inherently dangerous, even when used appropriately.

Unfortunately, injured patients have no other redress than this difficult, prolonged, and expensive legal action, which attempts to assign specific liability for damages to the doctors, hospitals, and any other professionals involved.  While patients thus assume an enormous burden of proof, doctors need only establish that they acted more or less as their peers would have acted under similar circumstances, such that patients’ suffering and disability come to be reframed as a misfortune, in which nobody was specifically at fault and for which nobody in particular can be held responsible. 

This old and cumbersome machinery is also stacked against the patient in another important sense.  As in most other legal proceedings, malpractice cases are highly ritualized controversies in which the key roles and arguments are largely predetermined, and the often impassioned disagreements between them are reduced to the narrowly technical questions of whether malpractice occurred and how much compensation should be awarded to the victim.  No relief whatsoever is available to those who cannot or may not even want to restrict themselves to these issues, but are nevertheless genuine victims of the medical system, with a need and a right to be heard.

Consider a few common examples.  If a gynecologist performs a hysterectomy and severs a ureter or leaves a sponge or hemostat in the abdomen, a finding of malpractice is assured, and the woman will receive major compensation for damages, if she survives and can still afford an attorney.  But if the surgery is performed competently and the patient dies of an anaphylactic reaction to the anesthetic, or becomes chronically disabled from thrombophlebitis or a pelvic infection acquired during her hospital stay, the individual liabilities of the doctors and nurses attending her and the hospital where the events took place are likely to be far from clear.  If the case is dismissed or decided in favor of the defendant(s), as so often happens, the victim receives no compensation of any kind, and the doctors, the hospital, and the entire medical system escape any burden of responsibility for the outcome.

Many other cases fall somewhere between these prototypes.  Often a diligent and skillful attorney can find evidence of laxness in obtaining informed consent, careless record-keeping, or simple inattentiveness under the strain of a busy schedule or a contemptuous attitude.  Under such circumstances, insurance companies may well decide to settle out of court, even if their clients are innocent of more serious wrongdoing, rather than incur the trouble and expense of further litigation.  In either case, by focusing on the narrower question of individual responsibility, malpractice effectively conceals the broader institutional and deeper systemic issues posed by these vastly more common and important types of injury. 

The largely hidden bulk of this gigantic iceberg is also the main reason why skyrocketing liability insurance premiums cannot be blamed primarily on unscrupulous attorneys looking for work.  Even if nobody was specifically at fault, a malpractice case could not even be brought to trial, let alone settled, without grievous harm having been suffered by a patient. In my experience the vast majority of patients injured by the medical system never attempt to sue.  It cannot be the fault of either patients or their lawyers for attempting to redress their grievances, when their only available recourse is to enter the great malpractice sweepstakes or forever hold their peace.

Expensive though it may be, malpractice insurance continues to buy for physicians the assurance that most lawsuits brought against them will fail, and that the few exceptions will tend to be settled without further loss of income or disciplinary action, thereby allowing their business to continue more or less undisturbed, and protecting the basic features of medical practice from outside scrutiny or change. 

In exchange for these guarantees, however, malpractice litigation has had a chilling and largely destructive effect on the practice of medicine and the doctor-patient relationship.  By exaggerating the risk of injury due to individual human error, at times sensational but to a great extent unavoidable, it overlooks the more fundamental and correctable risks posed by the medical system as a whole, even when it is practiced conscientiously, with reasonable skill, and with genuinely informed consent. 

In 1981 the nature and extent of iatrogenic illness and injury were investigated by Knight Steel and his team, who followed 815 consecutive admissions to a university hospital medical service over a five-month period.1 Of those admitted to the 80-bed unit, the authors found

 

1) that 36% suffered at least one iatrogenic complication during their stay;

2) that one-fourth of these, or 9% of the total, developed complications that were seriously disabling, or potentially fatal, or both; and

3) that 2% actually died as a result of such complications while still in the unit.2 

 

Moreover, they pointed out, these remarkably high figures were in fact considerably lower than they would have been if they had counted

 

4) iatrogenic events suffered by the same population over the same time period, but before their admission or transfer into the unit, or after their discharge or transfer out of it, and

5) other episodes not attributable to any specific drug or procedure, such as seizures or falls in heavily medicated patients, which were written off as “incident reports,” even though their medications clearly made such events more likely.3

 

In any case, their findings were more than adequate proof that, regardless of the personnel who happen to administer it, the medical system is inherently dangerous to everybody seeking its help, or in other words, to everybody.

In the latter part of the study, the authors tried to determine which drugs or procedures posed the greatest risk of serious and fatal complications.  Even more to their surprise, they discovered that the risk depended much less on which diagnostic tests were ordered, which drugs were prescribed, or which surgical procedures were performed, than simply on how many, on the total number of transactions with the medical system, regardless of their specific content.4 Although Dr. Steel and his team were understandably reluctant to spell it out, the obvious implication of their data is that patients are harmed much less by how well or badly medicine is practiced than by how much it is practiced.

 

2. The Principal Sources of Medical Risk.

Although its practitioners habitually regard modern medicine as a purely empirical science, with no general philosophy of health and disease, and no desire for any, it would be truer to say that its fundamental principles are methodological, consisting of the experimental rules and procedures of anatomy, physiology, biochemistry, pathology, microbiology, and the like, which specify how to acquire valid scientific knowledge about human ailments, and how to devise practical technologies for controlling them.  We of today are so accustomed to its achievements that we seldom appreciate the profound shift in thought that was required to bring them about.  Consider the following passage, written in 1833, and sounding almost quaint today:

 

The physician’s high and only mission is to restore the sick to health, to cure, as it is termed.  The highest ideal of cure is rapid, gentle, and permanent restoration of health, in the shortest, most reliable, and most harmless way, on easily comprehensible principles.5

 

These are the opening lines of Hahnemann’s Organon of Medicine, the original homeopathic text, which was considered a radical and even heretical work in its own time.  But compare them with another passage, written only a few decades later, and already we are in a different world, much more like our own:

 

What we call the immediate cause of a phenomenon is nothing but the physical and material conditions in which it exists or appears.  The object of the experimental method, and the limit of every scientific research, is therefore the same for living as for inanimate bodies.  It consists in finding the relations which connect every phenomenon with its immediate cause, in defining the conditions necessary for the appearance of the phenomenon.  When the experimenter succeeds in learning the necessary causes of a phenomenon, he is in some sense its master.  He can predict its course and appearance; he can promote or prevent it at will.

 

Neither physiologists nor physicians must imagine it their task to seek the cause of life or the essence of disease.  That would be entirely wasting one’s time in pursuing a phantom.  The words “life,” “death,” “health,” and “disease” have no objective reality.  Only the vital phenomenon exists, with its material conditions.  That is the one thing that they can study and know. [Italics mine: R. M.] 6

 

In these words, which still ring true today, the great Claude Bernard perfectly captured the spirit that has ruled medical science for the past hundred and fifty years.  Discarding the absolute, metaphysical unity of the “vital force,” and the existential unity of the living patient, modern medicine prefers the defective but objectifiable unity of the disease process, e.g.,  TB, cancer, or hypertension, which can be defined on the basis of measurable abnormalities (TB bacilli, cancer cells, elevated blood pressure, etc.), and studied in the abstract, independently of the patient who happens to exhibit them.  Such disease “entities” can then be used to group and even help explain the clinical signs and symptoms, to the extent that the corresponding abnormalities would tend to produce them, like cough and hemoptysis for TB, headache and neurological deficits for brain tumor, or heart disease and stroke complicating high blood pressure.

No longer content simply to “heal the sick,” contemporary medicine is driven mainly to achieve effective control and dominion over every identifiable aspect of the life process.  What Bernard so clearly envisioned, and modern medicine routinely seeks to accomplish, is to acquire the knowledge and devise the means to regulate biological phenomena artificially, and more or less at will. In his formulation, the experimental method in human biology consists of

 

1)characterizing the phenomenon to be studied;

2)identifying its component parts;

3)isolating its physicochemical “causes;” and

4)devising appropriate technologies for manipulating them,

5)with as little disturbance as possible to the remainder of the organism.

 

Furthermore, what cannot be subdivided or objectified in this way need not and indeed should not be studied at all, since it cannot as yet be defined rigorously or thereby understood in any useful or meaningful sense.  But this technological requirement is also inherently dangerous to the patient, not only because it makes human error more serious and more likely, or because it may well fail or fall short, but also and especially when its immediate objectives are successfully attained.  However worthwhile its purposes, and regardless of their outcome, the mere attempt to control life processes by force creates insoluble theoretical and practical dilemmas for the profession that underlie and help explain the major crisis in our so-called “health care system.”

First, the diagnostic process whereby living patients are assigned to abstract pathological categories deliberately ignores and distorts how they subjectively feel and even objectively function according to their own personal criteria, such as job record, school performance, ability to cope with stress, and the like, in favor of whatever generic norms happen to be and statistical averages calculated for them.  Thus many patients with X-rays showing advanced osteoarthritis or osteoporosis of the spine experience no pain, stiffness, or functional impairment to speak of, while others suffer extreme impairment and disability without any detectable pathology at all, and perhaps the largest group lie somewhere uneasily in between.  Yet crucial life decisions, such as whether to undergo surgery, radiation, or drug therapy, continue to be made largely on the basis of X-ray shadows, statistical abnormalities, and what biopsied cells look like under a microscope, despite the poor and at best inconsistent correlation between any test result and how well or badly any given patient feels or functions, then or later.

The hypothetically important technical question of whether or not the test or its interpretation is accurate thus tends to obscure its equally important tendency in either case to prod or bully the patient in the direction of undergoing still more diagnostic and treatment procedures in the future, all of which help in turn to exacerbate or bring about the reality, the suspicion, or at least the fear that at least in retrospect seems to justify the intervention.  Always in the name of greater precision, this obsessive reliance on diagnostic testing generates an unending cycle of ever more uncertainty, fear, and confusion in doctor and patient alike that multiplies exponentially and across the board both the probability and the risk of still further interventions within the system.

Perhaps even more dangerous is the concerted effort of medical science not only to avoid, obscure, and discredit, but also in fact to weaken the innate self-healing capacity of the patient, which by modern standards seems at once too crude to define or measure and too unpredictable to control.  Thus illness is diagnosed primarily on the basis of objective abnormalities, that is, physical signs, structural lesions, and increasingly, simple deviations from statistical norms, while older terms like pain, nausea, vertigo, etc., which denote purely subjective states of feeling, tend to be given lesser value, or dispensed with entirely. 

In this fashion, the concept of the disease process reduces the actual experience of illness to a mere automatism, a self-propelling chain of necessary causes pre-programmed to worsen, and thus silently ignores the equivalent tendency of every illness in every patient to recover.  To accept any pathology as given, to surrender ourselves to what we imagine or are told to be its laws, is to forget that every illness must also be received and expressed by every patient in his or her own way, and that whatever individual factors may have played a role in our falling ill in the first place may well help us recover in the future.

The total eclipse of the natural self-healing capacity at the hands of modern science is regularly celebrated and even sanctified in the famous “double-blind” experiment, in which drugs and procedures are officially pronounced as effective if and only if they can wield enough force to outperform and thus supersede the now naked and merely sentimental hope of all patients to recover, and of their doctors to help them recover.  Like the starved and tattered remnant of the ancient and venerable vis medicatrix naturæ, heretofore thought indispensable in maintaining the health and well-being of every patient, this so-called “placebo effect” is carefully minimized by keeping both doctors and patients ignorant of whether the drug or procedure in question was actually used, or only a passable imitation.

Much as in a bullfight, the superior technical resources of modern civilization are thus ritualistically pitted against the primitive forces of nature in an absurdly unequal contest, in which the latter is hobbled in advance and almost always defeated.  Seemingly so precise and useful in other respects, the double-blind experiment ironically obliges the medical system to resurrect the self-healing capacity just long enough to vanquish it again and again, and thus to eliminate what most urgently needs to be studied.  For if they cannot ultimately help sick people to heal themselves, even the most powerful technologies must remain doubly-blinded forever, with the blind leading the blind along a perpetually invisible and sightless path.

Finally, as a kind of corollary, the abstract concept of the disease process also distorts and trivializes both prognosis and case management, by reducing the whole art of treatment to simply correcting the abnormalities used to define it, namely, killing the TB bacilli, destroying cancer cells, lowering blood pressure, and the like.  Just as histologically “cured” cancer patients with aplastic anemia or dementia are often at least as sick as before, these crude oversimplifications leave a profound ambiguity in both the assessment of improvement or worsening and even the taxonomy of disease itself.

Thus patients developing a severe or intractable illness following apparently successful treatment of another illness pose a major practical dilemma that cannot be resolved within the theory of the disease process.  For even if we say that the two conditions are related, the patient will still require diagnosis and treatment for each of them, while if we say that they are not, then there is no meaningful way to address the individual patient as a whole, as a unified bioenergetic system evolving through time.  In either case, the net effect of medical science as a conceptual system is still, as before, to multiply non-specifically the number of technical interventions that are called for within it, by virtue of its awesome power to subdivide the living organism into ever more identifiable, subdividable, and potentially controllable phenomena.

Given their own fears and hesitations on the one hand, and the immense knowledge and power of the medical system on the other, our patients themselves provide a fitting epilogue in their profound desire, need, curiosity, and endless fascination to try to match up and integrate their own uniquely lived experience with the independent and often profoundly alien version of the body as a machine, so blissfully or horribly anonymous and neutral.

In precisely analogous fashion, these considerable perils involving diagnosis and case management are then further intensified and even consummated in the sphere of treatment, where something more or less drastic is done to the patient, and its stated purpose virtually guarantees that potentially destructive force will be required to achieve it.

Modern surgery, for example, the epitome of technical mastery in medicine, could not reliably succeed without the ability to control pain, bleeding, and infection by purely artificial means, or the precise and systematic identification of the structure and function of the parts of the human body, a truly heroic achievement.  Without consummate skill and effective moment-to-moment control at every point, our surgical patients would regularly die or suffer crippling impairment on the operating table.

But the surgical ideal of technical control is also inherently dangerous, quite apart from the innumerable ways in which it may fail.  When technically feasible, surgical procedures often seem irresistibly attractive, because they conjure up the prospect of immediate, profound, and permanent relief, because wounds tend to heal automatically, whereas diseases have to be slowly and often laboriously cured.  By converting diseases into wounds, surgery more than any other branch of medicine ironically relies on its patients to heal themselves, to summon their optimal self-healing capacity just in order to survive.  In emergency situations, such as a ruptured spleen or gallbladder, tubal pregnancy, or overwhelming pelvic infection, surgical intervention may be the only way to save life, and often miraculously achieves a complete recovery.

But the act of cutting into a living body also means that something momentous and often irreversible has been done: certain parts have been removed, bypassed, repaired, or replaced; the seamless integrity of the organism has been interrupted or interfered with; and the experience and functioning of the patient has been disfigured or altered in some way that requires a series of artful decisions in every case, and the long-term consequences of which can never be precisely foreseen.

As a way of assisting the natural healing process, whether by repairing the body when it is already broken, or by removing a part when it is already dead, modern surgery unquestionably ranks among the supreme technical achievements in human history.  But as the preferred method of curing illness, and indeed the ruling paradigm or conceptual model of the medical enterprise as a whole, it is a cruel travesty, a quasi-military decision to cut and burn in lieu of gentler, safer, and more authentic modes of healing.  A telling indictment that never shows up in our statistics, the burden of suffering and disability cheerfully borne by our “cured” patients furnishes a true measure of the risk that such procedures will continue to succeed in the future.

A very similar calculus applies to treatment with pharmaceutical drugs, which are also designed to correct specific abnormalities, as we saw.  While physicians certainly assume, for example, that most hypertensive patients will feel better, live longer, and suffer fewer heart attacks and strokes as a result of their treatment, its proximate goal remains simply to normalize the blood pressure, hoping that the other purely derivative and statistical goals will eventually follow.  In analogous fashion, modern doctors routinely use antibiotics to kill or inhibit bacteria, anticonvulsants to control seizure activity, corticosteroids to suppress inflammation, antithyroid drugs to block excessive secretion of thyroid hormone, bronchodilators to open constricted air passages, diuretics to force the kidneys to excrete more urine, insulin to substitute for a diabetic pancreas, and so forth.  In advanced cases, such drugs may indeed give miraculous relief, buy valuable time, or at least do the best that can be done under adverse circumstances.

But because such abnormalities represent only a limited aspect of all that our patients are struggling to overcome, drugs potent enough to counteract them are also capable of overriding other unique, individualizing features at work in the case, and thus of weakening the total self-healing capacity in some manner, and to an ever-increasing extent, as larger and larger doses are required, and the “margin of safety” between the therapeutic and toxic doses becomes smaller and smaller.  What used to be called the “art” of medicine has long since been reduced to simply walking this tightrope as adroitly and with as generous an allotment of good luck as possible.

Furthermore, just as with surgery, the risk of iatrogenic complications is far more serious when the drugs “work” than when they don’t.  Any reasonably experienced, attentive physician is able to suspect and willing to make the proper adjustment when the prescribed dose is excessive or insufficient, and to identify and discontinue medicines that are ineffective or produce serious toxicity in the form of “side effects.”  But when the drug effectively suppresses or counteracts the abnormality in question, the latter either reappears with equal or even greater force when the drug wears off, or disappears entirely, in which case some deeper and more serious condition often arises in its place.  Either way, using drugs to force the issue in this manner entails the readiness to continue using them for long periods of time, perhaps for life, with the clear expectation that the original complaint, or worse, will reappear as soon as they are discontinued.  A pretty fair definition of “addiction” in its original sense, a deep and prolonged chemical dependence of this type follows reliably and more or less automatically from our habit of using drugs to control abnormalities, rather than to assist and enhance the patient’s innate self-healing capacity.  It is also the fitting conclusion to the self-fulfilling prophecy already implicit in the theory of the disease process, that chronic diseases are by definition incurable in any case, and must therefore be controlled with drugs throughout life, removed surgically, or simply borne in silence.

In this way, what began in most cases as an episodic illness, idiomatically programmed, readily and insidiously becomes a chronic and indeed less and less curable process, chemically programmed, in exchange for temporary palliation of symptoms, quasi-mechanical “correction” of abnormalities, and long-term perpetuation of the original energy dysfunction.  Insofar as all drugs tend to become less and less effective over time, increasingly large doses will often be required, as we saw, and the already slim margin of safety eliminated entirely in sensitive cases.

Finally, effective suppression of symptoms or abnormalities for long periods of time may itself lead to more serious ailments in the future, as previously shown.  Thus asthma appearing after suppression of eczema or hay fever, endometriosis or ovarian cysts after a course of oral contraceptives, and Crohn’s disease following years of anti-inflammatory drug treatment for irritable bowel syndrome all exemplify a problem that cannot even be meaningfully stated without going beyond the theory of the disease process to consider the patient as a unified bioenergetic system that grows and develops through time.

Thus several orders of magnitude beyond that of its deviant youth, our society as a whole is itself built on an almost insatiable drug habit of truly colossal proportions.  Without accurate statistics of the hundreds of millions of patients maintained for years on officially sanctioned drug dependencies, it is impossible to give true weight and measure to the mistakes, overdoses, side effects, and allergic, idiosyncratic, and toxic reactions that inevitably follow in their wake.  By providing formidable biological weapons with the power to kill, maim, or at least keep patients effectively trapped within their orbit, the medical system makes it seem possible and even attractive to ignore, circumvent, or supersede the natural self-healing capacity and the practical understanding of life that alone could guide or restrain us in their use.  Much more dangerous than our sophisticated methods of diagnosis and treatment per se, in themselves capable of much good as well as harm, is the idolatrous worship of biotechnology for its own sake, and the mindless but hugely profitable substitution of technical imperatives for authentic human problems requiring art and caring and individualized attention.

 

3. Healing the Doctor-Patient Relationship.

Since all of these risks are ultimately realized or dispelled through actual relationships with physicians and other health professionals, they cannot be readily distinguished from the risk of the disease itself, or from that impending sense of danger that motivates a patient to seek such help in the first place.  Whether for good or ill, the awesome power vested in the doctor-patient relationship arises from the basic human need to comprehend the mystery of illness and contain it within the familiar parameters of a personal encounter.  Arising from a request for help and a hope for change, the interaction is poignant and fraught with the nearness of suffering.  Even in the face of such pressures, a relationship based on mutual trust and respect can help even gravely ill patients to heal what can be healed, and to accept what cannot be changed, while a breakdown in communication can transform even a minor illness into a nightmare of anguish and betrayal.  Not by skill and training alone, the prominence and high estate of physicians in society must also be earned through diligent and reliable service. 

If doctors and patients can agree to make all decisions jointly, and to share responsibility for both the process and the outcome, the risk of drugs and procedures is minimized by the sober realization that both parties are committed to doing the best they can, without expectation of cure or guarantee of benefit, such that death and failure to recover are always possible, and therefore in themselves no cause for personal or moral blame on either side.  But by substituting its own primarily technical priorities for the give-and-take of human relationships, the runaway growth of the medical system threatens to dissolve the therapeutic alliance, the indispensable glue which cannot itself be measured, yet holds the system together at every point and makes it work.  In no small part, this divergence is attributable to the fact that the goods and services of the health care industry – the diagnostic equipment, the surgical instruments, the pharmaceutical drugs, and the techniques and policies governing their use – are controlled by the companies that produce them, the research institutions and training hospitals that house and maintain them, and the physicians and other health professionals that prescribe and use them.

Whether sold to the patient for profit, or made available on some other basis, these major commodities are doled out on a highly restricted basis, dictated almost entirely by their owners, in accordance with their own corporate, institutional, and professional values, and having at most secondarily to do with the felt needs and expressed wishes of the individuals about to be subjected to them.  In addition, the rampant specialization of medical care obliges patients to seek out and maintain relationships with an ever-wide network of physicians and allied health professionals, whose diverse roles and areas of expertise are likewise ruled by institutional, guild, or team criteria that are minimally responsive to criticism or negotiation from outside.

Finally, as we saw, conventional medicine and surgery are explicitly designed to identify the chief abnormalities and diseased parts, and to correct and at times literally remove them from the body.  Reduced to a specimen of his or her disease, the patient becomes the passive recipient of various procedures, with residual power to give or withhold consent, but few opportunities to negotiate diagnostic or treatment plans, or to alter or modify them once begun.  In short, the patient stands essentially alone, isolated, and defenseless against the entire medical system, with compelling reasons to fear it, no effective check on its power, and no realistic alternative but to submit to at least some of its offerings, and to bring a malpractice suit after the fact for actual damages done.

Extending well beyond the narrowly technical and legal question of malpractice, the so-called “malpractice crisis” of our time actually represents the spontaneous and mostly leaderless insurrection of millions of patients against the harsh restrictions and impositions of the medical system as a whole.   By far the most prevalent and dangerous of these is the pervasive sense of fear, rage, powerlessness, and distrust that have come to be shared by doctors and patients alike, poisoning their ability to work together in harmony, and twisting their very different experiences of illness and disease into an obsessional neurosis of calculated risks and hidden meanings.  By no means accidental, or attributable solely to prejudice or fault on either side, the adversarial relationship now prevailing between doctors and patients follows logically and inexorably from the dominant conception of chronic disease as a sequence of abnormal mechanisms predestined to worsen and therefore always in need of artificial correction.

Under these circumstances, the idea of malpractice insurance does seem compelling, to the extent that physicians are allowed and even expected to assume effective responsibility for the lives of their patients, many of whom truly believe that medical science understands their needs better than they do themselves, and should therefore be authorized to decide when and how they live or die, recover or fail to recover.  The incalculable risk to which malpractice insurance does in fact address itself is the infinite liability that doctors incur once death and worsening come to resemble failure in their Sisyphean quest for purely technical solutions to disease and all other human problems.

Because no amount of insurance could ever adequately indemnify a risk of such colossal proportions, to most doctors the idea seems almost too good to be true, no matter what it costs.  It not only protects them from catastrophic loss of income if a claim against them proves successful, but could also become a profitable investment in its own right, since the initial outlay is made up many times over by the ever-increasing volume of procedures that it underwrites, and the ever-higher fees that can be charged for them.  In physician-owned companies, the combined premiums actually resemble a tax-free mutual fund that could also generate major dividends, if the claims made against it can be kept sufficiently small.

In either case, the bottom line is that, by deciding which doctors to insure and how much to charge them, which practices to defend, and which to settle out of court for, liability insurance companies have in effect substituted their own technical, actuarial, and simple herd criteria for the independent and inescapably artful clinical judgment of practicing physicians, based to a large extent on unique individual variables at work in each situation.  Consulted for what appears to be a simple tension headache, for example, a conscientious physician could well decide to hospitalize the patient, consult a neurologist, and obtain a CAT scan, just to make sure, without the slightest reason to suspect a brain tumor, except for our technical capacity to find it, and thus a potentially serious legal liability for not finding it.

While physicians thereby limit their own exposure by sharing it liberally with colleagues, their patients incur a tremendous added expense and receive nothing but the same old treatment, which most often merely palliates the symptoms in any case.  In this fashion, both the patient’s overall risk and the physicians’ total liability for even this routine indisposition are compounded again and again over a long period of time, rather like a home mortgage loan.

Similarly, gynecologists regularly advocate hysterectomy for uterine fibroids, even without pain or bleeding, and although the chances of malignancy are vanishingly small, merely because surgery is what they know how to do superbly well, and the insurance company can more readily defend a recognized procedure, even one that is ineffective or unsafe, than doing nothing, and simply admitting that we do not understand tumor formation well enough to help our patients heal it naturally and in a timely fashion.

Although what we call “the medical system” is in fact merely a heterogeneous assortment of techniques with only a restrictive methodology to unite them, both the constant threat of litigation and the breakdown of the doctor-patient relationship exert intense and powerful pressure on every physician to practice in conformity with the real or imagined standards of their insurors.   In effect the lowest common denominator of what our least imaginative colleagues are doing, such standards often amount to little more than doing something, that is, filling the void with a definite action or procedure, whatever the outcome, leaving no plausible diagnosis unlooked for, and no possibly corrective treatment untried.  Thus awkwardly and inadvertently, the law of malpractice not only teaches doctors to fear their patients, but also often sacrifices their own personal enjoyment of and fulfillment in their work, and to resist the temptation to follow the intuitive or creative impulse of the moment, so apt to seem meaningless and indefensible outside of that unique and never-to-be-repeated situation.

Ironically, when a doctor is sued, the insuror may well choose to settle out of court, even when no mistake was made, or try to secure an acquittal for wrongs that were in fact committed, in either case purely on the basis of their own corporate needs.  In other words, malpractice insurance protects doctors and hospitals solely for playing by the rules of high-cost, high-tech, high-risk medicine.  The standard argument that it also protects the patient overlooks the inconvenient truth that the victims of medical malpractice are people who have already been maimed or killed by their doctors, that the kind of protection they needed was precisely the kind they didn’t get.

Indeed, by promoting fear and suspicion on both sides, and thus multiplying immeasurably the total number of diagnostic and treatment procedures, as we saw, both malpractice insurance and the law that it underwrites must be reckoned as liability risks of enormous proportions in their own right.  By singling out a few egregious mistakes, they allow the main business of the medical system to continue without interruption, and leave its radical distortion of health and illness both unexamined and unchanged.  Far from protecting patients, the malpractice system is the principal reason why the vast majority of medically injured patients will never have to be compensated or even heard.

From these simple truths, it follows that malpractice insurance alone cannot solve or even meaningfully address the present crisis in health care, and that the imperative of rebuilding the doctor-patient relationship and the level of trust required to sustain it will never be possible without a serious commitment on both sides.  For patients to become equal partners in their health decisions, both parties will need to affirm as a fundamental political, legal, and moral right that birth, death, health, and illness are core experiences belonging primarily to the people undergoing them, and that nobody has the right to manipulate or control them without their explicit request, or that of someone duly authorized by them to act on their behalf. 

For physician, the duty to serve begins and ends with being attentive to and respectful of patients’ expressed needs and wishes, enlisting their active participation whenever possible, making no decisions without their approval, and being ready and willing both to learn from them and advise each one in a manner congruent with his or her own lived experience.  Most of all, it calls for a deep and abiding commitment to the relationship itself as the most precious resource, and the basis of all genuine healing work.  As set forth in the policy guidelines of two prominent consumer organizations, these minimal standards actually correspond fairly closely to what most patients are really asking for.7  As a sign of good faith, it makes practical sense for doctors to make public acknowledgement of these duties, or something like them, as some of what is owed to patients.  In like manner, it costs us very little to allow and encourage our patients to invite friends and relatives to attend their consultations, both to bear witness, and to serve as advocate or intermediary if necessary.  Finally, patients have every right to form their own political organizations and interest groups to represent them, just as they are already doing, and to use them to negotiate with doctors, hospitals, insurors, legislators, and government agencies, and to appear in court on their behalf.

Far from limiting their freedom of action, physicians committed to these basic rights for their patients also have the right to expect certain analogous responsibilities from them in return:

 

1) to learn as much as possible about their condition and what they can do to promote and assist in their healing work;

 

2) to be familiar with and mindful of all rules and policies governing their care, and to honor and carry out all agreements freely entered into; and

 

3) to make their needs and wishes known as clearly as possible, and to give feedback and constructive criticism when they feel dissatisfied or unheard.8

 

It goes without saying that, even if these guidelines are honored in good faith and carried out to the letter, malpractice and the larger problem of iatrogenic illness and injury will not just disappear.  Patients will still be injured by what doctors do or fail to do, and some way will have to be found for society as a whole to acknowledge and indemnify the large majority of instances, where no individuals were specifically at fault.  What is undeniably true is that doctors who are attentive to their patients, respectful of their wishes, and sensitive to the needs of the relationship between them are much less likely to be sued.  For doctors and patients alike, the relationship itself provides the best possible insurance against harm, and ultimately there need and can be no other.

 

4. Healing the Medical System.

Healing the doctor-patient relationship is therefore simply our point of departure.  As we saw, malpractice and the other forms of medical risk originate in our fundamental concepts of health and disease, and the often inarticulate and unspoken assumptions that underlie them, such that reducing them substantially will require major changes in how both physicians and the lay public are taught to think about illness and disease in theory, and to diagnose and treat them in practice. 

One simple and effective initiative would be to provide comprehensive and universal health education to the general public, beginning in elementary school and continuing throughout life.  With a basic core of good habits built into the curriculum at every level, children of all ages can readily grasp that good health is not solely or primarily the absence and prevention of diagnosable diseases and abnormalities, must begin and end by developing a general sense of physical, mental, and spiritual well-being, and by teaching how as living organisms we maintain and repair ourselves, recover from acute illness, and seek out compatible health professionals to guide us through more serious complaints.

Already prominent in Hippocratic medicine, the enduring idea of the natural self-healing capacity is beautifully expressed in these classic aphorisms of Paracelsus, the great Renaissance physician and alchemist:

 

The art of healing comes from Nature, not the physician . . .

Every illness has its own remedy within itself . . .

A man could not be born alive and healthy were there not already a Physician hidden in him.9

 

Evoking a venerable philosophy of ancient lineage, these simple maxims may be interpreted roughly as follows:

 

Healing implies wholeness.

Derived from the same root as “whole,” the English verb “to heal” literally means to make whole [again], and represents a fundamental property of all living systems, as evident in wound healing, for example, and represents a concerted effort of the entire organism that cannot be achieved by any part in isolation.

 

All healing is self-healing.

As an intrinsic function of the organism, healing occurs automatically and continuously throughout life, with or without outside help.  In other words, all healing is self-healing, such that the proper role of drugs, surgery, and professional or other designated healers is simply to facilitate or assist the natural process that is already under way, and not to alter, interfere, or substitute for it.

 

Healing applies only to individuals.

Healing is always possible, but also inherently problematic, even risky, and may always fail to occur.  That is because it pertains solely to living individuals in concrete, unique, here-and-now situations, rather than to abstract “diseases” or principles.  In other words, healing is also inescapably an art, which can and should never be reduced to any formula or technique, however powerful it may be, and however scientific its foundation.

 

First of all, I envision a basic health and self-care curriculum for everyone, beginning in primary school, and offering physical training, nutrition, and daily spiritual practice, in order to assist students in understanding and coping with ordinary life stress, and to provide simple, safe, and effective techniques that are readily accessible to everyone and applicable throughout life.  A corps of part-time community health workers, analogous to “barefoot doctors” in China, could be recruited from a pool of qualified applicants, offered a brief but rigorous training program, and employed to teach and supervise others in the areas of self-care, health maintenance, triage, and first aid of simple domestic ailments.

At the level of full-time licensed providers of primary health care -- Nurses, Physician-Assistants, Nurse-Practitioners, Certified Nurse-Midwives, and Family Physicians -- graded and certified programs would be offered in yoga, nutrition, acupuncture homeopathic and herbal medicine, midwifery, counseling, meditation, and the like, to promote and facilitate the self-healing and supervise the self-care of patients with common functional ailments in which anatomical lesions and tissue damage are minimal or insignificant.  By reserving the most advanced medical and surgical facilities for severe, intractable, or emergency cases, these primary-care providers could offer safe and effective health services inexpensively to millions, and help restore them to optimal health and well-being at modest expense, and with minimal risk.

Even at the most advanced levels of subspecialty and tertiary hospital care, a self-healing orientation would teach surgeons, cardiologists, and other highly-skilled specialists to make the proper diagnosis, but then set it aside long enough to allow the unique, individualizing features of the case to assist and guide them in healing it, trying gentler methods first, and resorting to conventional drugs and surgery only when they fail, in urgent or desperate cases, or where nothing else will serve.

By helping people to keep themselves sane and fit, a self-healing philosophy would also create new possibilities at every level of the system.  Developing and perfecting non-invasive methods of diagnosis and treatment will require new clinical training facilities for teaching and practicing them.  Keeping the concept of separate abnormalities and disease entities in reserve for when they are clinically necessary or useful, rather than as the default setting for every transaction, will suggest new research protocols for studying patients as unified bioenergetic systems growing and developing through time.  In addition to acupuncture, homeopathy, Kirlian photography, radionics, and other methods already in use, this simple but crucial paradigm shift will naturally tend to promote new, experimental health technologies that are more advanced and sensitive than any now available.

Once supported in this way, and made to feel secure in their helping and facilitating rôles as educators, counselors, advocates, and healers, physicians and other health professionals will learn to feel appreciated and rewarded less for what they do to their patients, than simply for being there for them, for helping them heal themselves, each in his or her own way. Conversely, once confident that they will truly be cared for on a personal level, patients will be that much more willing to trust themselves and their caregivers to make the hardest decisions when that time comes.

In a system modeled on self-care, it is very likely that the risk of malpractice and other forms of iatrogenic illness would become tiny fractions of what they are now, such that injured patients could be compensated from the same insurance plan that covers their regular health and medical expenses, and that the latter would also cost much less than it does now, because society as a whole would be underwriting it, so that health care would be recognized as a basic human right, rather than a privilege available only to the wealthy.  In the simplest and most efficient “single-payer” model, the same government-sponsored insurance plan, similar to MEDICARE, would pay all primary-care physicians and other health providers directly for basic health and wellness care, simple triage, diagnostic work, emergency care when necessary, and specialty care as authorized by referral at the time.  All services would be covered and paid for by the plan, which like MEDICARE would function as a huge HMO for basic health services, with the whole population as subscribers, and all licensed health professionals as providers.  Patients made ill or injured by their care would still be entitled to legal redress, and to receive compensation from the plan if their claims were upheld.

Additional private insurance could still be made available for “big-ticket” items, such as elective surgery or specialty care desired by patients or doctors more often than the plan would cover.  In any case, as we saw, providing safe and effective preventive, wellness, and holistic medical care would hopefully keep the need for conventional drugs and surgery to a minimum.  Could there be higher praise for a doctor or a health-care system than that patients regularly heal themselves without needing drugs or surgery, and continue to do so in the future? 

 

In the words of Lao-tse,

 

A leader is best when people barely know he exists,

Not so good when they obey and acclaim him,

Worst when they despise him.

Of a good leader, when his work is done and his aim fulfilled,

The people will say, “We did this ourselves.”10

 

 

 

NOTES.

 

1.Steel, K., et al., “Iatrogenic Illness on a General Medical Service at a University Hospital,” New England Journal of Medicine 304:638, 12 March 1981.

 

2.Ibid., p. 638.

 

3.Ibid., pp. 638-639.

 

4.Ibid., pp. 640-641.

 

5.Hahnemann, S. Organon of Medicine, 6th Ed., trans. Boericke & Dudgeon, Boericke & Tafel, Philadelphia, 1935, ¶1,2.

 

6.Bernard, C., Introduction to the Study of Experimental Medicine, trans. H. C. Greene, Dover, New York, 1957, pp. 65-67, passim.  

 

7.   Cf. “Code of Practice,” People’s Medical Society, Emmaus, PA; and Haire, D., “The Pregnant Patient’s Bill of Rights,” International Childbirth Education Association (ICEA), Minneapolis.

 

8.Cf. “The Pregnant Patient’s Responsibilities,” ICEA, Minneapolis.

 

9.Paracelsus, Selected Writings, trans. N. Guterman, ed. J. Jacobi, Bollingen Series, Pantheon, New York, 1958, pp. 50, 76.

 

10.   Lao Tzu, The Way of Life, trans. W. Bynner, Putnam, New York, 1944, pp. 34-35.

SOME THOUGHTS ON THE MALPRACTICE