Who is defending whom from what?

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By Barbara Katz-Rothman, PhD

Who is defending whom from what?  Thinking about ‘defensive medicine’ forces that question upon us – and we usually answer that doctors are responding to a fear of malpractice suits, as if Malpractice Suits themselves were the driver.  In truth, they are not even a big part of the rise in medical care expenses.  Malpractice insurance issues and the discussion surrounding them are a symptom, not a cause in our ‘health care crisis.’

That does not mean that fears of being sued are not significant for practitioners:  Individual physicians are of course going to be worrying about defending themselves, and would be fools not to worry.  In the United States especially —where each child is born into great and unending poverty unless lucky enough to be born to a parent willing and able to pull it out, where basic needs go unmet, where medical care for children with disabilities can wipe a family out financially, where medical bills are the leading cause of bankruptcy — a needy child inevitably necessitates a search for deep pockets.  If I had a child who used a wheelchair, I’d want the best possible chair, and probably a sports-use chair besides; the best household adaptations money could buy; every imaginable object and service that would make that kid’s life better.  And if I had to sue my mother to get it, why sue I would – and she’d be more than happy to be sued, if there was some insurance company backing her.

But a physician is not going to be so willing to use their insurance and small wonder – not likely that more than one grandchild is going to have such an opportunity, falling down grandma’s steps or whatever, but surely more than one patient will.  So it makes sense to me that individual physicians worry, and worry a lot, about being sued.   The individual physician, however, is the least of our problems.  Our energy needs to go to a higher social level, to address the more fundamental problem – what makes an action ‘sue-able,’ what makes a suit ‘win-able.’  It’s not just, or even mostly, about the condition of the child or even about some notion of preventable damage.

If a physician did something that vastly increased the chances of a child being born prematurely, that vastly increased the chances of a child’s being born too small, with the resultant vastly increased risk of neurological damage, perhaps blindness, perhaps cerebral palsy, well – a commonsensical approach would think that would be a sue-able and win-able situation.  And surely it would be if the alternative to the birth of that child was to inform the mother of the availability of prenatal testing and selective abortion for the condition that causes the prematurity.   The woman who is not informed of that option can indeed sue and, we have seen, win.   The woman who has rejected such testing for whatever reason – religious belief, commitment to the baby yet to be born, a strong commitment to valuing the life of all people with disabilities – that woman is on her own, with no one to sue, and that doctor is home safe.

But if the alternative was NOT to implant two fertilized eggs following IVF (thus increasing dramatically the chances of twinning, with resultant prematurity and all that follows) –well then, it seems to be a very different situation – the doctor whose behavior caused that prematurity  is a hero, and the birth of those twins are a medical miracle to be rejoiced.  Will the needs of those children be met?  Since IVF is so very expensive, since the infertility of poor women while far higher than that of rich women is not so quickly covered by insurance of any sort, most of those twins will be born to well-insured parents who do not have to seek a deep pocket to sue. 

Is any of this a sane way to run a medical system?  Clearly not.  Can we blame individual physicians for informing, for insistently informing, for seeking ‘informed consent’ (the far safer for them alternative to ‘informed refusal’) for prenatal testing to avoid the birth of a sue-able child?  Hardly. 

What a wild direction we are heading in, as we learn the many many ways in which all of us, and all of our children, are ‘at risk’ of some terrible, and terribly expensive, condition.  Dare a physician not explore the possibility of all the potential genetic and other risks a woman faces in a pregnancy?  Dare (s)he not inform the woman – insistently, repeatedly, and on the record –of those risks? 

In a better kind of insurance system, people would be insured for need – if you have a very expensive kid, one who needs wheelchairs and ramps, expensive surgeries, long-term nursing care, or all of those, then those needs would be met.  That is how universal health care coverage works in most of the world.  But we have not got that kind of system, so instead, individuals have to sue.  Private companies insure practitioners, and patients with unmet needs can sue practitioners who in some way failed them. 

I’ve often thought that if you could lay out all of the risks, all of the increased odds of this, chances of that, genetic predisposition for something else that each person faces, it would be a miracle if anyone was willing to give birth to anyone ever again.  And yet we are setting up a medical insurance system that makes that kind of bludgeoning with information all but inevitable, as risks are shifted off the shoulders of individual physicians or their malpractice insurance companies , and onto the bellies of pregnant women.  We say to families:  If you had all the information, and had this baby anyway, well then it’s your problem to meet the needs of your expensive child.  



Barbara Katz Rothman is a professor of sociology at CUNY. Her work is both interdisciplinary and international in scope, focusing on issues in Medical Sociology, Bioethics, Gender and the Sociology of Knowledge. Her professional honors and awards include the Lee Founders Award of the Society for the Study of Social Problems, the Jesse Bernard Award of the American Sociological Association, the mentoring award of Sociologists for Women in Society, the Award for the Promotion of Human Welfare of the Southern Sociological Society.