Medical Liability and the Hidden Curriculum

Photo by Rachel Eastwood Jason Sanders

Medical liability reform isn’t a prominent feature of the official Harvard Medical School curriculum. There is general awareness, but student enthusiasm for involvement in the issue seems to wane just as fast as premiums can raise eyebrows. Maybe our future physicians already are desensitized; maybe they can’t expend the emotional reserve to think about it; maybe it’s just not a polite subject. While practicing physicians identify medical liability reform as a top legislative priority and take action (even if it means moving to another state), medical students rank it much lower on their to-do lists. Where is the disconnect?

We Don’t Discuss It at the Table
Part of the answer is that liability is political and divisive. Those who doggedly promote reform often are charged with narrow-mindedness and with wasting resources that could be used for other health care problems. The issue has been commandeered by some as a partisan weapon, though both Democrats and Republicans have a disproportionate number of legislators who were trained as lawyers. Liability has the potential to pit lawyers against doctors for higher stakes than mere Sunday cartoons or offhand jokes. While academic collegiality shelters graduate students from the real-world mudslinging, the unofficial curriculum can provide a glimpse of the conflict: some may recall the tension in the TMEC amphitheater when law school visitors held a heated exchange with then American Medical Association president Donald Palmisano.

Another part of the answer is that liability does not have the same reality test for all physicians. My perspective was shaped by sitting on the Massachusetts Medical Society Professional Liability Committee and seeing everything from the nitty-gritty details of insurer negotiations to the sticker shock of regional jury awards. Yet liability affects specialties differently, with procedural fields being particularly vulnerable. Barbieri et al. (Obstetrics and Gynecology, 2005) cite annual insurance expense variation from multiples of 0.68 (pathology) to 9.0 (neurosurgery) relative to internal medicine (1.0).

The Balkanization of American medicine into specialty societies hampers a coherent response to the issue. Meanwhile, medical students, with increased debt along with decreased real earning power, can be hard-pressed to differentiate malpractice premiums from a host of other insolvency risk factors. And those physicians who practice under staff models or within academic medical centers might wonder, “What’s the big deal?” given a greater distance from the daily forces that affect salaries.

High Stakes
Liability strikes at the core of the patient–doctor relationship, the central part of any physician’s career. Claims of malpractice are personal, gut-wrenching, and exhausting for all parties involved. They buffet the trust that is the foundation of healing. Third-year medical students see this on the wards when their role models—attendings and residents, even entire departments—are demoralized by a lengthy and adversarial trial. Life seems topsy-turvy when patients become plaintiffs, when the warmth and empathy of healing becomes the chill and misunderstanding of suffering and anger. Extra tests, circumspectly worded diagnoses, and general defensiveness are symptoms of an ill patient–doctor alliance.

Reframing the Argument
Perhaps liability reform is too selfish to be part of the formal curriculum, too protective, too guildlike. Stabilizing physician salaries doesn’t hold much political currency. Perhaps liability reform is beyond the scope of physician training. The tangled web of legalese is quite different from the philosophical tenets revered by medical institutions. But such misgivings should not necessarily carry the day.

The disconnect resides in not stepping up to the challenge. It resides in allowing more third parties to interfere at the bedside and failing to return to the primary foundation—the patient–doctor relationship. There can be no conversation about malpractice reform without an equal focus on patient safety and professional responsibility. It’s a simple argument somehow lost in political distractions, from lawyers and insurance companies blaming each other to anecdotal stories trumping common sense.

Once the patient’s well-being is made paramount, the best track for handling malpractice becomes clearer, and the current system appears all the more ludicrous. Litigation is seen as another big business with significant conflicts of interest; as Studdert et al. write (New England Journal of Medicine, 2006), “the overhead costs of malpractice litigation are exorbitant.” Jackpots for the random few fail both to equitably compensate the deserving majority and to increase investment in prevention. Legal gamesmanship is all hindsight with little interest in improving the system going forward.

It’s time for doctors to retake leadership. Though we lack numbers in Congress, we have an invaluable ally (and voter) greeting us in the office each day—the patient. Let’s make this part of the curriculum official.

—Jason Sanders is a fourth-year medical student at HMS.

The opinions expressed in this column are not necessarily those of Harvard Medical School, its affiliated institutions, or Harvard University.

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