They happen not only to good people but to good physicians too, says Dr. Neil K. Kochenour.When a child is born neurologically damaged, because of the exorbitant expense of keeping such a child alive, many couples are forced to allege negligence through a malpractice suit to pay for health costs - whether the physician was at fault or not.
But society has an obligation to take care of bad outcomes, he said. "Why should a couple be wiped out or have to sue because their child was born impaired?"
"Our society doesn't allow for bad outcomes in medicine. There is a tremendous incentive to put the blame on someone. But the fact is that some bad outcomes aren't due to negligence. Bad things just occur sometimes," he said.
In addition to a major overhaul in the "malfunctioning" legal system, Kochenour proposes "catastrophe insurance" provided either by the state or through a general insurance fund. Perhaps the public could pay a small percentage of their insurance premiums to this fund, he suggests. Great Britain has a successful catastrophe program. "If you have a brain-damaged child in
that country, the child is taken care of by the state. No one has to have a finger pointed at them or become financially ruined."
Negligence should be separated from natural bad outcomes, he said. And incompetent or careless physicians should be penalized through the medical profession - not a courtroom. "The medical profession has fallen down in the control of quality care. We need to do more to improve care than we have in the past."
An obstetrician specializing in high-risk pregnancies, Kochenour understands an infant's vulnerability at that fragile time of delivery.
"During this crucial time, there's always a cloud over you. You can do everything perfectly, but with a bad result, there's a good chance you'll be sued. I've seen doctors wiped out emotionally who didn't do anything wrong. It's agony for everyone."
Although catastrophe insurance would be his ideal solution, Kochenour supports removing malpractice cases from the jury to a panel of experts. He said the proposal to have a physician on the panel would increase understanding of subtle complexities of medicine. A physician would not hesitate to award fair financial compensation to a patient who has been injured through negligence, he added. "Doctors have a keen interest in ensuring the reputation and quality of their own profession. They expect high professional conduct."
Most physicians have little confidence in the legal system, he said.
He said contingency payment - where an attorney receives 20 to 30 percent of the amount awarded to a plaintiff - is a concept that erodes the court system of justice and fosters outrageous awards. He said lawyers should be paid at an hourly rate instead.
"If an attorney takes a case on a contingency basis and a couple is awarded $3 million to pay for long-term care of a child, then the attorney walks away with $1 million. Why? We're the only country in the world that allows that."
Finding a solution to rampant malpractice suits and caring for those who suffer because of a bad outcome is a critical moral dilemma, he said.