I caught a lot of hell for going to law school, but I never thought it would make me fear for my life.
It’s been less than two months since I started law school, and in that time I’ve endured a steady stream of email forwards with lawyer jokes from my annoying uncles, suffered snide comments from friends who insist that I’ve chosen a “dick profession” (their words, not mine), and ignored two verbally abusive encounters with fellow subway riders who saw my law books and launched into angry (and mostly incoherent) diatribes about how lawyers are “scum.”
Of course, it doesn’t help matters when I read news stories about guys like that Covington and Burling partner who wrote a book called Life Without Lawyers: Liberating Americans from Too Much Law and his big objection to “over-lawyering.” It’s fair to say that we might be a better society with fewer laws. I happen to think there’s a lot of merit to that point, but the trouble is arguments against litigiousness (and by extension, lawyers) end up in the hands of reactionary half-wits—like the ER doc who had the audacity to lecture me on the harm that frivolous lawsuits have on healthcare in this country while he was supposed to be diagnosing the cause of my seemingly life-threatening chest pains.
The chest pains began in the midnight hours while I was trying to brief Palsgraf for Torts the next day. I’ll spare you the gross details of my other symptoms. I ended up in an emergency room at 3:00 a.m., which is no place for any human—even your worst enemy. If Dante were alive, he’d create a tenth ring of hell and call it an ER.
The place was loud, crowded, and about as clean the gyro cart halfway down my block. Thankfully, there was no waiting for me. That’s what happens when you collapse in the triage line. A kind, flu-stricken woman stepped over my writhing body and harangued the indifferent nurse until she agreed to take a look at me. After a few quick questions and vital signs, the triage nurse sent me back to see a doctor.
That’s when the real trouble began.
“What do you do for a living?” the doctor asked as he began his physical examination.
I think he was just making small talk, but my answer set off a hornet’s nest.
“I’m a first-year law student.”
He practically hit the roof. And the examination ground to a halt.
“I’ll tell you what’s ruining medicine in this country—medical malpractice,” he said.
That was his opening salvo in a lecture that made me miss the Socratic method.
I don’t remember how long his diatribe lasted, but it included such choice offerings as: “Lawyers cost the system more money than insurance company profits; and tort reform is all we need.”
In actually, medical malpractice lawsuits account for about .5% of the total healthcare costs in the U.S., according to a recent report from the Congressional Budget Office summarized at FactCheck.org. Yes, that half of one percent is real money ($11 billion this year, $41 billion projected over the next decade), but it is not the whole enchilada. Not even close, Doc.
Now, of course none of these facts and figures were available to me in the emergency room, and arguing with the good doctor would have been about as helpful as performing the examination myself. Which is why I found myself doing something I thought would be at least three years away.
I threatened to sue the bastard.
I told Dr. Douche that if he wanted a firsthand look at a medical malpractice lawsuit, I’d give him one. In my extreme pain, I may have even threatened to take his license and mount it in a frame on my wall next like a Moose head.
That might have been what got the attention of the attending physician, who asked me what the problem was.
After I explained that I wanted treatment, not a lecture from Doctor, the attending sprung into action.
That was the good news and the bad news. I survived, but my bank account is going to be in critical condition for sometime. The attending was a genuinely compassionate doctor, or some lawyer before me had trained him. Either way, I got the very best defensive medicine money could buy.
Now, don’t get me wrong. I’d much rather get defensive medicine than no medicine at all. Ultimately, I got very good care and was able to walk out of the hospital alive less than a day later. But to call the battery of tests and the thousands of dollars of medical care that the attending ordered “overkill” would be a huge understatement.
I’ve since taken my bill (part one of three!) to four doctors for some explanation. None of the doctors can agree on exactly what they would have done when presented with my symptoms, but they can all agree that the attending went too far. Way too far.
All four doctors agreed that anywhere between 50% and 70% of the tests ordered on me were unnecessary. Apparently, that’s not uncommon. An irrational fear of medical malpractice lawsuits among doctors drives up medical costs by as much as 3%, or about $60 billion a year, according to a recent article in The New York Times that cites the work of Amitabh Chandra, a Harvard economist whose research is used by both the American Medical Association and the trial lawyers’ association.
But here’s the truth as it pertained to my case: Three of the four doctors said they were confident that any decent physician could have diagnosed my condition with medical history, a physical exam, an X-ray. I got all that, plus an MRI, blood work, and enough tests to make the Princeton Review people salivate. The fourth doctor said he would have ordered a few more tests, but not nearly as many as the attending physician, who he said was clearly “covering his ass.”
In other words, I got the do-everything-special that seems to be in vogue with American doctors these days.
But that was not what I asked for. I asked for treatment, not the best treatment ever. Not record-breaking, medical heroics stuff. Not George Clooney and his pulling-out-all-the-stops ER fantasyland crap. I just wanted real medical attention that meets, or exceeds, the standard of care in my area. No more, no less.
Sometimes that means really expensive care. But in most cases, a little bit of common sense and cost benefit analysis can produce the best possible outcome for the patient.
Now, I’ve explained that when I went to the ER, I thought I was dying. Chest pains will do that to you. But none of the doctors thought I was dying, especially since you don’t often see a lot of 24-year-old healthy males going into cardiac arrest.
As it turned out, I had one of those medical problems that certainly feels dire, but really isn’t all that serious once you figure out what it is. It was more painful than anything else, and once the attending came back with a diagnosis of kidney stones, I was instantly relieved.
And that means that this was one of those routine situations where common sense and some cost benefit analysis would have helped me a lot. It would have delivered the same healthcare outcome at a fraction of the cost.
Unfortunately, I began the experience with a rude and reactionary doctor who forced me to do a little legal saber rattling just to get what anyone who walks into a hospital expects—competent medical care. But by insisting on my right to treatment, I ended up becoming the victim of my own advocacy.
That’s the rub, as I see it. There’s no such thing as reasonable, cost-effective care in this country. Doctors are too afraid of lawyers to think straight. Hell, they’re even afraid of law students.
Do lawyers add unnecessary costs to the healthcare system in this country? Of course they do. But those costs—while real—aren’t anywhere near the whole problem, and yet we have absolutely no clue about how to put that issue in perspective.
If we’re going to talk about tort reform in this debate (one of those ideas that might not make it into a final bill, but just won’t die, either), we had better be prepared to answer this question: What if I had died while Dr. Douche was busy lecturing me? Would my family have been able to file a lawsuit against him and the hospital for failing to properly supervise this zealot? Would that lawsuit have put a damper on his career and—maybe—taken a bad doctor out of circulation? Would it have prompted the hospital to rethink the way it supervises doctors and perhaps even offer additional training on dealing with all the people who walk their doors?
I’m not sure how much that lawsuit would’ve been worth (I hear the lifetime earning power of lawyers today isn’t what it used to be), but I don’t see why doctors are so special when we’re really just talking about cracking down on negligence. After all, the best defense to a malpractice case is not to commit malpractice.