Reason Magazine - Staff

Malpractice vs. "Malresult"

tszasz@aol.com (Thomas Szasz) — Mon, 10 Jan 2005 00:00:00 EST

Doctors and patients both take risks when they do business together. The physician (for the most part), only puts his wealth at risk: He protects himself by means of malpractice insurance. But for the patient, both wealth and physical health are at risk. At present, the patient can protect himself only against the risk of incurring a ruinous financial cost for the diagnosis and treatment of his illness: He protects himself by means of health insurance. How do we create an insurance regime that provides a form of protection neither of these policies can provide?

I propose a new form of medical insurance for the patient: protection against the risks of diagnostic and therapeutic procedures that may or may not be due to bona fide medical negligence—that is, "malresult insurance."

When a patient suffers an undesirable outcome as a result of medical care, the harm may or may not be the physician's fault. More often than not, the "malresult" is an "act of God." Nevertheless, malresults are now often attributed to and treated as cases of medical malpractice (negligence). Making medical malresult insurance available and expecting patients to use it would be a step toward more fully recognizing the commercial aspects and risks of the medical situation.

People who choose to buy a house purchase home owner's insurance. People who choose to drive purchase (are compelled by law to purchase) automobile insurance. Similarly, people who choose to undergo diagnostic and therapeutic procedures ought to be able, and be expected, to purchase medical malresult insurance.

In ordinary commercial relations, premiums for insurance depend on the demonstrated behavior of the insured. Drivers with a good record pay a lower premium than drivers with a record of traffic violations. In medical malpractice insurance, this fundamental principle is largely inoperative.

Obstetricians and neurosurgeons pay a much higher premium for malpractice insurance than do ophthalmologists and pediatricians. Why? Not because they are more prone to practicing medicine negligently than physicians in other specialties, but because the procedures they perform are more hazardous than those performed by ophthalmologists and pediatricians. Accordingly, patients who submit to high-risk procedures especially need insurance to protect themselves from malresult, just as physicians who perform such procedures especially need insurance to protect themselves from malpractice.

Virtually all medical encounters are risky. The chance of dying during or after general anesthesia is one in 10,000. The risk of perforation of the colon during diagnostic colonoscopy is 0.2 to 0.4 percent; it increases to between 0.3 and 1.0 percent if it is combined with polypectomy; the overall death rate from the procedure is about one in 12,500. The chance of a pregnant woman dying as a result of her pregnancy is approximately 1 in 12,000 (in the U.S.).

The woman who chooses to become pregnant incurs risks similar, in principle, to the risks an entrepreneur incurs who chooses to engage in an activity that may be dangerous to others or himself, say, transporting gasoline. The pregnant woman exposes herself to the risk of having an abnormal baby or becoming the victim of a medical complication (for example, a stroke). It is reasonable that she bear the cost of insuring herself against these contingencies.

If an obstetrician delivers an abnormal infant, regardless of whether he is innocent or guilty of malpractice, juries are likely to find him liable for large damages. If the expectation for the purchase of insurance for malresult were as firmly established as is the expectation for the purchase of insurance for malpractice, pregnant women would be expected to protect themselves by purchasing such insurance. Obstetricians could then restrict their practices to women who have such insurance (the cost of which would be negligible compared with the cost of raising a child). As a consequence, their exposure to malpractice litigation would shrink to a fraction of its present size.

The diagnosis and treatment of disease is dangerous for the patient economically as well as medically. At present, the patient protects himself from the economic harm of the medical situation by health insurance, and expects to be protected from the medical harm by the physician's malpractice insurance. This arrangement fails to distinguish between injury the patient suffers as a result of the nature of his illness and treatment, and injury the physician inflicts on him as a result of improper care.

To the victim of a medical catastrophe, it makes little difference why such a calamity befalls her or him. Delivering an infant with spina bifida or becoming quadriplegic as a result of a hazardous spinal cord operation irrevocably changes the life of the mother and neurosurgical patient. Perhaps largely for that reason, tort law does not adequately recognize the difference between medical "malresult" that happens through no fault of anyone, and medical malpractice, that is, bona fide medical negligence. The result is that, in a suit for malpractice brought by a poor, disabled patient against a rich insurance company (and healthy physician), the jury is more likely to base its judgment on compassion for the sufferer than on the merits of the case (that is, on the question of the physician's culpability or lack of it for the patient's injury). Awarding a large sum to the plaintiff-victim "feels" like the "right thing to do" and makes members of the jury feel better.

Tort litigation cannot restore health irrevocably lost, much less bring back the dead. All it can do is take money from the insurance company (and/or the physician) and give it to the victim or his family (and his lawyers). Adding a market in patient insurance for malresult to the market in physician insurance for malpractice would accomplish two important goals. It would guarantee compensation for the injured patient, more expeditiously and securely than malpractice insurance does, and it would protect the physician innocent of malpractice from having to settle claims against him. (Insurance companies could establish a schedule of specified diagnostic and therapeutic malresults similar to the schedule of bodily injuries specified in policies for accidental bodily injury and death.)

According to the American Medical Association, 20 states now face a full-blown medical liability crisis. Data from the National Association of Insurance Commissioners shows a 750 percent increase nationally in malpractice insurance premiums since 1975. For some specialists, such as obstetricians, the annual insurance premium exceeds $200,000.

High malpractice premiums cause physicians to restrict their practices or retire early, and lead medical students to avoid going into lawsuit-magnet specialties like obstetrics and neurosurgery. While the risk of malpractice litigation affects all physicians, those most affected are specialists whose patients are most likely to suffer devastating injuries. Similarly, while all patients need malresult insurance, those who need it most are obstetrical and neurosurgical patients.

People do not go skiing to break a leg. If they do so, they are, as a rule, responsible for paying the cost of their treatment or for having insurance to pay it. People do not consult physicians to become disabled or die. If they do, they ought to be responsible for the financial consequences or have insurance to compensate them for their loss, unless the physician commits demonstrable malpractice.

Sooner or later, we shall have to confront our inconsistent expectations from modern medical technology. We demand, as a "right," the accurate diagnosis and effective treatment of disease; but when, in the process, we suffer, we feel medically and legally wronged and take to the courts. Rights and responsibilities cannot be disjoined forever. It is a delusion to believe that we can continue to assume medical risks without assuming responsibility for the harms we suffer as a consequence. The availability of insurance for malresult would radically change the medical tort litigation scene: it would place some of the responsibility for risks inherent in medical diagnoses and treatments on patients, where it rightfully belongs

Sins of the Fathers

tszasz@aol.com (Thomas Szasz) — Thu, 01 Aug 2002 00:00:00 EDT

We use words to label and help us comprehend the world around us. At the same time, many of the words we use are like distorting lenses: They make us misperceive and hence misjudge the object we look at. As Sir James Fitzjames Stephen, the great 19th-century English jurist, aptly put it, "Men have an all but incurable propensity to prejudge all the great questions which interest them by stamping their prejudices upon their language."

Consider the ongoing scandal involving Roman Catholic priests accused of molesting boys. American law defines sexual congress between an adult and a child as a crime. The American Psychiatric Association defines it as a disease called "pedophilia."

Crimes are acts we commit. Diseases are biological processes that happen to our bodies. Mixing these two concepts by defining behaviors we disapprove of as diseases is a bottomless source of confusion and corruption.

That confusion was illustrated by a February 8 letter to The Boston Globe in which the Rev. John F. Burns defended Boston Cardinal Bernard Law against critics who said he ought to resign. As an archbishop, Law had transferred the Rev. John J. Geoghan to a new parish despite allegations of sexual abuse. Geoghan eventually was accused of molesting more than 100 children over three decades.

"It should be noted that neither Cardinal Bernard Law nor Father John Geoghan was aware early on of the etiology or pathology of the disease of pedophilia," Burns wrote. "The cardinal did what an archbishop does best. He showed kindness and love to an apparent errant priest. Father Geoghan also did what more recent knowledge shows pedophiles do: namely, be in total denial, with hardly any remembrance or remorse for their diseased acts. Calling for the cardinal's resignation is absurd. Let the healing begin and the law take its course."

The law is taking its course not only in the suits filed against the church by the victims of Geoghan and other abusive priests. Geoghan himself has been convicted of molestation in one case and faces trial in another. But if his behavior was caused by "the disease of pedophilia," a condition that not only compelled him to fondle boys but erased his memory of those "diseased acts," how can it be just to punish him? The uncertainty introduced by viewing sexual abuse as the symptom of a disease played an important role in the church's failure to protect congregants from priests like Geoghan. In a May 8 deposition, Cardinal Law was asked how he approached molestation charges. "I viewed this as a pathology, as a psychological pathology, as an illness," he said. "Obviously, I viewed it as something that had a moral component. It was, objectively speaking, a gravely sinful act." The combination of these two irreconcilable views, medical and moral, was a recipe for inaction.

Medical Penal Establishment

Today virtually any unwanted behavior, from shopaholism and kleptomania to sexaholism and pedophilia, may be defined as a disease whose diagnosis and treatment belong in the province of the medical system. Disease-making thus has become similar to lawmaking. Politicians, responsive to tradition and popular opinion, can define any act, from teaching slaves to read to the cold-blooded murder of a bank guard, as a crime whose control belongs in the province of the criminal justice system.

Applied to behavior, especially sexual behavior, the disease label combines a description with a covert value judgment. Masturbation, homosexuality, and the use of nongenital body parts (especially the mouth and anus) for sexual gratification have, at one time or place, all been considered sins, crimes, diseases, normal behaviors, and even therapeutic measures. For many years psychiatrists imprisoned homosexuals and tried to "cure" them; now they self-righteously proclaim that homosexuality is normal and diagnose people who oppose that view as "homophobic." Psychiatrists diagnose the person who eats too much as suffering from "bulimia" and the person who eats too little as suffering from "anorexia nervosa." Similarly, the person who has too much sex suffers from "sex addiction," while the person who shows too little interest in sex suffers from "sexual aversion disorder." Yet psychiatrists do not consider celibacy a form of mental illness; celibate persons are not said to suffer from "anerotica nervosa."

Why not? Because psychiatrists, politicians, and the media respect the Roman Catholic Church's definition of celibacy as a virtue, a "gift from God," even though celibacy is at least as "abnormal" as homosexuality, which the church continues to define as a grievous sin -- an "intrinsic evil," in the words of Cardinal Anthony Bevilacqua. Regardless of how unnatural or socially destructive a pattern of sexual behavior might be, if the church declares it to be virtuous -- as with celibacy or abstinence from nonprocreative sexual acts -- psychiatrists do not classify it as a disease. Thus a religion's moral teachings shape what is ostensibly a scientific judgment.

Conversely, psychiatric diagnoses affect moral judgments. Fred Berlin, founder of the Johns Hopkins Sexual Disorders Clinic and a professor of psychiatry at the Johns Hopkins School of Medicine, declares: "Some research suggests that some genetic and hormonal abnormalities may play a role [in pedophilia]....We now recognize that it's not just a moral issue, and that nobody chooses to be sexually attracted to young people." Yet an action that affects other people is always, by definition, a moral issue, regardless of whether the actor chooses the proclivity to engage in it.

Berlin misleadingly talks about the involuntariness of being "sexually attracted to young people." The issue is not sexual attraction; it is sexual action. A healthy 20-year-old male with heterosexual interests is likely to be powerfully attracted to every halfway pretty woman he sees. This does not mean that he has, or attempts to have, sexual congress with these women, especially against their will. The entire psychiatric literature on what used to be called "sexual perversions" is permeated by the unfounded idea -- always implied, sometimes asserted -- that "abnormal" sexual impulses are harder to resist than "normal" ones.

The acceptance of this notion helps explain the widespread belief that sex offenders are more likely than other criminals to commit new crimes, an assumption that is not supported by the evidence. Tracking a sample of state prisoners who were released in 1983, the Bureau of Justice Statistics found that 52 percent of rapists and 48 percent of other sex offenders were arrested for a new crime within three years, compared to 60 percent of all violent offenders. The recidivism rates for nonviolent crimes were even higher: 70 percent for burglary and 78 percent for car theft, for example.

These numbers suggest that pedophiles resist their impulses more often than car thieves do. In any case, it is impossible to verify empirically whether an impulse is resistible. We can only say whether it was in fact resisted. But that doesn't matter, because the purpose of such a pseudomedical claim is to excuse the actor of moral and legal responsibility.

Catholic officials took advantage of this psychiatric absolution to avoid dealing decisively with priests who were guilty of sexual abuse. What do church authorities do when a priest is accused of molesting children? They send him to a prestigious psychiatric hospital -- Johns Hopkins in Baltimore, the Institute of Living in Hartford, the Menninger Foundation in Topeka -- for "treatment." In practice, the psychiatric hospital is a safe house for the sexually misbehaving priest, a place where he can be hidden until he is quietly reassigned to continue his abuse elsewhere. Berlin claims such priests are closely watched after being discharged. But a priest who commits sexual abuse is a criminal who should be imprisoned, not a patient who should be monitored by psychiatrists in the church's pay.

Greek Love

Sex with minors was not always considered a disease. In ancient Greece, sexual relationships between men and boys were a normal part of life. Such relations, called "pederastic," typically occurred between a 20-to-30-year-old man and a 12-to-17-year-old boy. The man pursued the boy, and the boy submitted to him as the passive partner in anal sex. The man also played the role of mentor to his pupil. With the arrival of heavy pubic hair, usually at age 18, the younger man found a boy to mentor and get sexual satisfaction from. Sexual relations between men and young children played no part in Greek pederasty. Judaism and Christianity redefined same-sex relations as unnatural and condemned them as sinful. Then, as criminal laws supplemented or replaced ecclesiastical laws, same-sex relations became crimes as well. That understanding governed popular opinion until the rise of secularism and medical science.

The first person to propose redefining "pederasty," which in the 18th century became the term for what we call homosexuality, appears to have been the French physician Ambroise Tardieu (1818�1879). In 1857 Tardieu published a forensic-medical study to assist courts in cases involving pederasty. Tardieu believed that the penises of active homosexuals were anatomically different from the penises of passive homosexuals and "normal" men, that the anuses of passive homosexuals were anatomically different from the anuses of active homosexuals and normals, and that physicians could examine individuals and diagnose homosexuality by observing these alleged markers.

It remained for Karl Friedrich Otto Westphal (1833�1890), a famous German neurologist, to convert homosexuality from a disease identifiable by examining the subject's body into a mental illness identifiable by examining the subject's mind. Westphal renamed pederasty "sexual inversion" (in German, "contrary sexual feeling"), a term that was widely used well into the 20th century. It was also Westphal who popularized the erroneous idea, still held by many people, that male homosexuals are effeminate and female homosexuals are masculine. He argued that since sexual inversion was a disease it should be treated by doctors rather than punished by law.

A Return to Athens

Creating diseases by coining pseudomedical terms was raised to the level of art by Baron Richard von Krafft-Ebing (1840�1902), a German-born professor of psychiatry at the Universities of Strasbourg, Graz, and Vienna. In his Psychopathia Sexualis (1886), which made him world famous, Krafft-Ebing authoritatively renamed sexual sins and crimes "sexual perversions" and declared them to be "cerebral neuroses." Lawyers, politicians, and the public embraced this transformation as the progress of science, instead of dismissing it as medical megalomania based on nothing more than the manipulation of language. "Sexology" became an integral part of medicine and the new science of psychiatry.

We have come a long way from Krafft-Ebing. In July 1998 Temple University psychologist Bruce Rind and two colleagues published their research on pedophilia in the Psychological Bulletin, a journal of the American Psychological Association. The authors concluded that the deleterious effects on a child of sexual relations with an adult "were neither pervasive nor typically intense." They recommended that a child's "willing encounter with positive reactions" be called "adult-child sex" instead of "abuse."

Not surprisingly, this conclusion created a furor, which led to a retraction and apology. Raymond Fowler, chief executive officer of the American Psychological Association, acknowledged that the journal's editors should have evaluated "the article based on its potential for misinforming the public policy process, but failed to do so."

Apparently no one noticed that, according to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV, published in 1994), a person meets the criteria for pedophilia only if his "fantasies, sexual urges, or behaviors cause clinically significant distress or impairment in social, occupational, or other important areas of functioning." In short, pedophilia is a mental illness only if the actor is distressed by his actions.

Psychiatrists had likewise classified homosexuality as a disease if the individual was dissatisfied with his sexual orientation ("ego-dystonic homosexuality"), but not if he was satisfied with it ("ego-syntonic homosexuality"). Bending to the wind, the American Psychiatric Association later backtracked. In DSM-IV-TR, published in 2000, the requirement of "clinically significant distress or impairment" was omitted from the criteria for pedophilia.

Mental health professionals are not the only "progressives" eager to legitimize adult-child sex by portraying opposition to it as old-fashioned antisexual prejudice. In a 1999 article, Harris Mirkin, a professor of political science at the University of Missouri-Kansas City, stated that "children are the last bastion of the old sexual morality." As summarized by The New York Times, he argued that "the notion of the innocent child was a social construct, that all intergenerational sex should not be lumped into one ugly pile and that the panic over pedophilia fit a pattern of public response to female sexuality and homosexuality, both of which were once considered deviant." Mirkin cited precedents such as Greek pederasty. "Though Americans consider intergenerational sex to be evil," he wrote, "it has been permissible or obligatory in many cultures and periods of history." He told the Times: "I don't think it's something where we should just clamp our heads in horror....In 1900, everybody assumed that masturbation had grave physical consequences; that didn't make it true."

The analogy is fatally flawed. Autoerotic acts differ radically from heteroerotic acts. Masturbation is something the child does for himself; it satisfies one of his biological urges. In that sense, masturbation is similar to urination or defecation. That is why we do not call masturbation a "sexual relationship," a term that implies the involvement of two (or more) persons, one of whom may be an involuntary participant. Masturbation (in private) is an amoral act: Strictly speaking, it falls outside the scope of moral considerations. In contrast, every sexual relationship is intrinsically a moral matter; medical (or pseudomedical-psychiatric) considerations ought to play no role in our judgments of such acts. The religiously enlightened person may view same-sex relations as evil. The psychologically enlightened person may view any consensual sex relations as good. Society must decide which sexual acts are permissible, and individuals must decide which sexual acts they condemn, condone, or wish to engage in.

The Legal Line

The criminal law defines sex between adults and minors as a crime. But the law is a blunt instrument. Technically, an 18-year-old male who has a consensual sexual relationship with a 17-year-old female is committing a criminal act (statutory rape), even though he might be only one day older than his partner. Such "crimes" generally are not prosecuted.

Sexual contact between a priest and a 10-year-old boy is quite another matter, and here is where the medicalization of unwanted or prohibited behaviors hinders our understanding. To impress the laity, physicians long ago took to using Greek and Latin words to describe diseases. For example, they called inflammation of the lung "pneumonia" and kidney failure "uremia." The result is that people now think that any Greco-Latin word ending in ia -- or with the suffix philia or phobia -- is a bona fide disease. This credulity would be humorous if it were not tragic.

Bibliophilia means the excessive love of books. It does not mean stealing books from libraries. Pedophilia means the excessive (sexual) love of children. It does not mean having sex with them, although that is what people generally have in mind when they use the term. Because children cannot legally consent to anything, an adult using a child as a sexual object is engaging in a wrongful act. Such an act is wrongful because it entails the use of physical coercion, the threat of such coercion, or (what comes to the same thing in a relationship between an adult and a child) the abuse of the adult's status as a trusted authority. The outcome of the act -- whether it is beneficial or detrimental for the child -- is irrelevant for judging its permissibility.

Saying that a priest who takes sexual advantage of a child entrusted to his care "suffers from pedophilia" implies that there is something wrong with his sexual functioning, just as saying that he suffers from pernicious anemia implies that there something wrong with the functioning of his hematopoietic system. If that were the issue, it would be his problem, not ours. Our problem is that there is something wrong with him as a moral agent. We ought to focus on his immorality, and forget about his sexuality.

A priest who has sex with a child commits a grave moral wrong and also violates the criminal law. He does not treat himself as if he has a disease before he is apprehended, and we ought not to treat him that way afterward.