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The costs of practice have driven out hordes of doctors altogether. According to a 1987 survey by the American College of Obstetrics and Gynecology, 1 out of 8 U.S. obstetricians has left the field because of the malpractice threat. Those who manage to stay in business may feel forced to practice a kind of medicine that assumes every patient is a prospective litigant. Such defensive tactics are antithetical to compassionate care: the doctor ends up being afraid of someone he or she wants to help, cautious about trying attractive new treatments and emotionally aloof from someone in need of emotional support.
Doctors recognize a vicious circle here, but there are indications of a possible break. Last year, for the first time in more than a decade, medical malpractice suits abated. Claims settlements were down $100 million from the 1987 high of $4.2 billion. In response, several major insurers have reduced their premiums. On the basis of studies showing that physicians who know their patients well over a long period are less likely to be sued, more doctors are looking for ways to avoid the fearful, adversarial climate that prompts them to retreat emotionally -- which ends up making a suit more likely. "Many malpractice suits come because people are angry at their doctors for not communicating," says Cornell's Rogers. Consumer advocate Michael Rooney of the People's Medical Society agrees: "It's when they feel they've been hurt or betrayed that they sue."
The relationship is actually poisoned on both sides. Patients may insist on the most conscientious care and yet balk at the battery of tests that doctors order to cover themselves. "You come in for an ingrown toenail, and they turn you inside out giving you all kinds of tests that you don't need," says columnist Ann Landers, who receives complaints from all concerned. "The bill is horrendous. The doctors want to be able to prove that they didn't miss anything. It makes people mad, and I don't blame them."
Even as natural a procedure as giving birth has been greatly distorted by the epidemic of lawsuits. "Mothers believe that all babies should be born perfect," observes Massachusetts General's Stoeckle, and here the bond of doctor and patient may be most fragile. Doctors order expensive tests and uncomfortable procedures as protection against future suits. The costs to expectant parents are exorbitant, and discomfort during delivery is heightened: nearly one-quarter of all U.S. births are currently by caesarean section, which can be less risky to the baby than vaginal delivery and makes the doctor less vulnerable in court.
Finally, there are those who argue that litigation actually slows the progress of medicine. "Innovative techniques don't get used very often for this reason," says George Miller, an orthopedic surgeon in Washington, N.C., who last year won a malpractice suit that had dragged on for "eight long years." Doctors find themselves taking a more rote approach, what some call "cookbook medicine." By following standard procedures as much as possible, the physician may hope to avoid any controversy that might arise in court -- and thus steers clear of promising, if less proven technologies and treatments.