John Yoo and Jay Bybee were the lawyers who provided the sham legal cover for the Bush/Cheney torture machine. The original draft of the Office of Professional Responsibility (OPR) report had determined that Yoo, Bybee, et al had committed grievous misconduct in their legal reasoning and advice and recommended that they be remanded to their state bar associations for possible discipline and/or disbarment. Of course, in the final version of the OPR report, Yoo and Bybee, although severely reprimanded by Associate Deputy Attorney General David Margolis, were ultimately cleared of providing "intentionally false arguments that they knew to be wrong". In the original OPR report, Yoo and Bybee were determined to have failed "to exercise independent legal judgment and to render thorough, objective, and candid legal advice." Apparently this basic standard of professionalism was deemed by Margolis to be too high a bar. Margolis instead argued that since Yoo was an ideologue who truly believed in what he was saying, then it wasn't his fault that the advice he gave was factually and legally false. Intention to harm is all that matters to Margolis. This is the low standard of professional conduct that an accused lawyer can always appeal to when his or her license is on the line. The blogging lawyer Jack Balkin has an excellent review of this fiasco here:
It's not about what people should do, but about how badly they have to screw things up before they are subject to professional sanctions.
Instead, Margolis argues that, judging by (among other things) a review of D.C. bar rules, the standard for attorney misconduct is set pretty damn low, and is only violated by lawyers who (here I put it colloquially) are the scum of the earth. Lawyers barely above the scum of the earth are therefore excused.
This got my mind revving about medical malpractice reform. It's very clear that malpractice litigation, as currently constituted in this country, is harmful to doctors, patients, and the country's fiscal well being. Frivolous lawsuits lead to defensive medicine and all its attendant costs, in addition to creating an uneasy, antagonistic dynamic in the doctor/patient relationship. Patients who are harmed by bad doctors generally are not compensated for their injuries. (One study determined that only 2% of negligent adverse events occuring in a hospital resulted in a med mal claim.) It's a bad system. The only ones who seem to benefit are the plaintiffs attorneys and the defense lawyers for the big med mal insurance companies. It's a cash machine.
From the perspective of a practicing physician I would like to see reform take several iterations. I think these cases need to be tried in specialized "health courts", with the evidence weighed by independent panels comprised of physicians and lawyers and a judge familiar with medical standards. This way, you eliminate the wild west system of the "show" where hired gun physician expert witnesses argue that "obvious negligence" has occured while others argue the exact opposite. I think any potential malpractice litigation ought to be screened by an indepedent advisory board that would determine the validity of said claim. This would create a mechanism for weeding out those frivolous cases that a doctor has to address via his defense attorney in our current system. It would reward physicians who follow best evidence guidelines and shield them from the lottery system of a med mal trial. I'm also in favor of altering the evidenciary standard in medical malpractice cases from "preponderance of evidence" (which merely implies that malpractice was more likely than not to have occured) to one of "clear and convincing" evidence (a standard just below "beyond a reasonable doubt" in criminal cases.) I'm not so attached to the idea of capping damages. For one thing, caps only benefit insurance companies. Ask any doctor--- it doesn't matter if you're sued for a million bucks or $50,000, the mere fact of "being sued" alters one's future practice patterns rather than the gross dollar amount of the judgment. So I don't think capping the damages will have any appreciable effect on the scourge of defensive medicine. I do, however, like the idea of pre-determined awards that victims are slotted into based on the kind of injury sustained, victim age, and lost wages. This would all be calculated as part of the compensatory aspect of the verdict. The unlimited punitive damages phase of the verdict serves no purpose other than to line the pockets of the plaintiff's attorney.
Those are just a few ideas. I have a future post brewing that goes into more detail. But for now, those are my preliminary thoughts.
The point of this post is to correlate the Yoo/Bybee nonsense with med mal reform. As physicians, we have particular interests and goals with regards to medical malpractice reform. Overall, I think there is broad based support for what physicians desire. But we have to be reasonable about our entreaties. We have to approach the negotiating table in good faith. What can we do in return for arriving at some judicious accomodation? (You know, sort of like what the AMA ought to have been doing all last year instead of stridently, but vaguely, screaming about tort reform tort reform tort reform!)
Here's what we can offer: A renewed dedication to improving professional accountability. Via the state medical boards, medical societies, hospital QA committees, and intra-departmental morbidity and mortality meetings, we need to do a better job of holding those doctors accountable who fail to meet basic standards of care. Our ranks are infested with our own Yoos and Bybees. We need to police ourselves better. And not merely by using some statistical rubric devised by some hospital risk management executive. (Stats don't tell the whole story. Doctors who realize that they will be judged solely on outcomes will seek to eliminate those patients who are more likely to result in bad outcomes, i.e. the suburban hospital that shunts all redo CABG's to the main tertiary center, thus improving their "statistical superiority".) It needs to be done on a case by case basis. It will be labor intensive. Bureaucracies will need to be created. There will be errors and missed opportunities for intervention. But we need to do something. To serve as a practicing physician is a privilege, not a god given right, no matter how many diplomas you have hanging from your wall. You have to re-earn it every single day, with every new patient who walks through your door.
To lose your medical license, or even to be suspended or face disciplinary measures for failing to meet the bare minimum standards of care happens far too rarely in this country. You basically have to show up drunk or drug addled, repeatedly, or to have so many complications that the local newspaper does a story on you and your injured patients in the metro section for there to be any consequences. The bar is set too low, in other words. Denial doesn't help matters (ask the Vatican right now). We need to subject ourselves to a higher standard than what we've held our members heretofore. The surgeon who has four bile leaks in a year maybe needs to have another board certified surgeon watch his technique for his next ten cases. The internist whose diabetic patients develop an inordinately high rate of foot ulcers and have elevated hemoglobin A1c levels perhaps ought to be forced to enroll in some didactic session or a CME course on proper diabetic management.
I don't have the exact plan for how all this is to be enacted. I'll leave that to the AMA, hospital QA committees, and perhaps even federal oversight to determine how we self-regulate ourselves. But the point is that we have to make a move toward greater transparency and better quality assurance. This is the price of any meaningful tort reform. The standards we as physicians hold ourselves to have to be higher than the low bar set by trial lawyers, right?