I wish to put in my two cents worth regarding the letter by Jack Modesett published Feb. 27, as well as the medical malpractice article by Naomi Snyder on March 3.
Mr. Modesett asserts that the problem is too many bad doctors and that fellow doctors do nothing to remove them from the practice of medicine. As a practicing physician, I have no more authority to revoke the license of a doctor practicing poor medicine than any motorist has the capacity to terminate the driver's license of a poor driver. Driver's license authority rests with the Department of Public Safety and medical license authority rests with the Texas State Board of Medical Examiners (TSBME). That board consists of physicians as well as non-physician members appointed by the governor.
In 2001, out of 49,184 practicing physicians, the TSBME revoked the licenses of, or disciplined, 105 doctors. By comparison, the State Bar of Texas (with 68,554 active attorneys) disbars or disciplines an average of only 18 lawyers per year (476 revoked and 401 disciplined in the last 50 years).
I believe the TSBME does an admirable job, especially considering its underfunded condition. Only one third of the $330 annual licensing fee paid by physicians goes to the TSBME for its operational budget. The balance goes into the state's general revenue fund. Furthermore, the ability of the TSBME, as well as hospital peer review committees, to discipline poor physicians is greatly hindered by the threat of, or in some cases the actual filing of, litigation against the TSBME or the hospital peer-review committee. These legal actions are, of course, facilitated by attorneys. Hence, it is the legal profession in many cases that hinders the ability of the medical community to discipline its own.
In regards to reporter Naomi Snyder's article, I would point out that everyone agrees that 80 to 85 percent of malpractice lawsuits end with no verdict or settlement against the doctor. This means that five times out of six, the lawsuit against the physician has no merit.
It is precisely this explosive rise in the number of meritless lawsuits that has physicians (and their malpractice insurance companies) perturbed. It costs an average of $59,000 to defend a doctor through trial, not including the productivity lost to the doctor from being out of the office two or three weeks.
It is true that statutes exist to discourage the filing of frivolous suits, namely the requirement for a $5,000 bond or a medical expert affidavit. But these requirements are routinely ignored by trial judges. For example, one locally prominent malpractice attorney has sued at least two doctors, in separate incidents, and neither doctor had ever seen the patient instigating the lawsuit. To my knowledge, no local judge has ever sanctioned an attorney for filing a frivolous malpractice lawsuit.
It is interesting to note that in the Rezulin lawsuit litigated by Mikal Watts, Mr. Watts readily admits the doctors should not have been sued. Since Watts (and his law firm) will likely garnish 30 to 40 percent of the $43 million dollar award, I feel it would be proper for him to reimburse the medical malpractice insurance company defending Dr. Mark Dodson for its $50,000 to $75,000 legal expense, as well as compensate Dr. Dodson for the three weeks he was unable to work and see patients.
Curb frivolous lawsuits
Doctors agree that poor physicians need to be disciplined or removed from practice. To do this more effectively, we need greater funding for the TSBME and less interference from the legal community when we try to ferret out poor doctors.
Conversely, the legal profession needs to improve its almost non-existent effort at controlling the 5 out of 6 lawsuits that are meritless. For the future, we need more effective means to prevent frivolous suits. For the present, we need judges to enforce the existing requirements for bonds and expert witnesses. Finally, attorneys who file clearly frivolous suits need to be sanctioned, or in some cases disbarred.
John Bishop, M.D., is a former chief of staff of Driscoll Children's Hospital. He is also a former chief of surgery at Driscoll.
March 11, 2002