Of the oft-cited “frivolous lawsuits” supposedly decimating our nation, medical malpractice suits are probably public enemy number one—the bogeyman of our medical system that drives the nation’s health care price tag ever higher (or so we’re told).
In reality, medical malpractice settlements and awards account for less than one-half of a percent of our total health care bill—a relatively miniscule amount. Of course a half percent of 2 trillion is still a lot of money, which means that if tort reforms—changes to the legal code that make it more difficult and less rewarding for plaintiffs to sue doctors—were as vital as their proponents claim, we’d end up with some significant savings. But as it turns out, tort reform barely makes a dent on either the frequency of successful malpractice suits or the amount of money our system pays out to them.
A Health Affairs study from last year compared state laws to see if tort reforms have a strong effect on four “outcome variables”: the average amount of a paid malpractice claim, the total number of such claims, the average dollars per practicing physician of a paid claim, and the number of paid claims per practicing physician. Together, these variables comprise what we’re really thinking when we talk about personal injury law suits: how often people win their lawsuits, how much they get, and how these numbers compare to the number of doctors in a given region (in this case, a state).
The study’s authors, who hail from the University of Tennessee, the University of Oklahoma, and the Kaiser Foundation, found that “strong tort law provisions can explain at most only one-fourth of the variation among states in the average payment on a medical malpractice claim.” That means three-quarters of the differences in payment amounts across the states has nothing to do with tort reform!
The results are even less impressive for the study’s three other
measures, as “tort law differences explain only 1 percent of the
variation in the number of paid claims, either total or per physician,
and only about 7 percent of the variation in dollars paid per
practicing physician.”
Let’s translate to layman’s terms: crackdowns on medical malpractice
lawsuits had the strongest impact on the amount of money, on average, a
plaintiff could expect—and even then, this effect was meager. The other
measurements—the number of claims that actually get paid, either as a
total number or broken down per doctor—were essentially untouched by
tort reform. So much for President Bush’s claim that “tort reform is
vital.”
Digging deeper, it’s worth looking at just what kind of tort reforms
we’re talking about and how they fare in the supposed fight against
frivolity:
- Across the four outcome variables, laws requiring expert witnesses
to “be of the same specialty as the physician being sued or actually be
practicing physicians”—a practice that tends to benefit doctors, who
can likely rely on the solidarity of their peers, who share their
interest in making malpractice suits more difficult—had the strongest
association with lower claim payment levels and number of claims. (One
should add that insisting that expert witnesses have expertise in the field where the alleged malpractice took place is only fair.) - Tort reforms that prevent plaintiffs from specifying the amount of
dollar damages they seek at the outset of a case—which gives plaintiffs
an edge by letting them set the award bar high—were negatively related
to the total number of paid claims and paid claims per 1,000 practicing
physicians, but not to levels of payments. In other words, the number
of paid claims fell, but the amount of money paid out stayed the same. - Surprisingly, caps on damages had no statistically significant
effect. This is important. It means that limiting the amount of money
that a plaintiff can be awarded actually does nothing to reduce either
the number or amount of malpractice payments—despite the fact that
those who call for tort reform tend to emphasize “caps” as the most
important deterrent. In truth, caps serve mainly to limit the
much-hated plaintiffs’ bars’ income, but don’t seem to slow down suits. - Frivolous suit penalties—punishments for plaintiffs who bring
forward cases without merit—were associated with reductions in the
numbers of paid claims and paid claims per physician, but not with
payments. Still, if these penalties served to limit the number of
suits—and if, in fact, they actually deterred frivolous suits, they may
be doing some good. - So-called collateral-source rules, which reduce the damages that a
plaintiff is awarded if he or she has some sort of fall-back that can
help shoulder injury costs (e.g. health or disability insurance) were
actually associated with higher average payments and payments per
practicing physician.
Taken together, these findings are a clear indication that tort reform isn’t all it’s cracked up to be.
Given the importance of these results, it’s worth understanding just
how the authors came to their conclusions. First, they went through the
tort laws of every state and ranked the severity of its provisions (in
other words, how tough it was on plaintiffs) on a scale of one to
seven, with this score being an cumulative measurement based on the
factors above (expert-witness restrictions, caps on damages, etc).
Then, “focusing on the most recent five years in the data (1999–2003),
we classified individual states as high or low payment outliers and
number outliers based on their average dollars paid per practicing
physician and their number of paid claims per practicing physician,
respectively. We examined the top and bottom fifteen states in each
category in detail, comparing their five-year average scores” on the
four outcome variables.
As the authors put it, this analysis produced “no ‘slam dunks’” in
terms of the relationship between tort stinginess and outcome measures.
In fact, they say, “the strength or weakness of many tort reforms
appears totally unrelated to the outcome measures.” Given these
findings, it’s clear that “tort law changes in any given state have
been determined by political context, not by empirical evidence of
effectiveness.”
This is, of course, something that many of us have already suspected:
the obsession over tort reform isn’t really about cutting costs or
streamlining the system, but about politics and ideology. Now there’s
the data to prove it—although something tells me the tort reform crowd
isn’t going to be swayed by pesky reality.
None of this means that frivolous or unfounded malpractice suits are
not a problem. In certain specialties (such as ObGyn) suits have driven
malpractice insurance premiums to heights that have forced some good
doctors out of business. Too many patients simply refuse to accept that
a tragedy may not be the doctors’ fault.
Meanwhile many doctors report that fear of malpractice plays a role in
over-treatment: they order unnecessary tests, they say, prescribe
medications they don’t believe are required–or even go ahead with an
unneeded procedure (which puts the patient at risk while offering no
benefit) because they fear being sued. It’s impossible to estimate how
much defensive medicine costs.
But clearly, the tort reforms that most states have tried are not
working. We need a much better way to sort out the difference between
negligent physicians and hard-working conscientious physicians who just
happen to find themselves in the wrong place at the wrong time—trying
their best to save a patient who can’t be saved.
On HealthBeat we hope to write about better solutions to the problem in
the future. In the meantime, we would be interested in comments from
readers: How could we rationalize our malpractice system? And how could we reduce the temptation to practice “defensive medicine”?
Niko
Congrats on taking on a tough subject. I follow this subject closely, and have come to the conclusion that the answer is somewhere in the middle. Despite all the mudslinging and namecalling, bias, etc., I try and remain neutral, even as a physician. Not all trial attorneys are bad, not all docs are angels. Having said that, see recent ’08 publication from AMA. I would not base an entire post on one study, not at least on this subject.
http://www.ama-assn.org/ama1/pub/upload/mm/-1/mlrnow.pdf
Additionally, I would add that defensive medicine, despite the touted “1-5%” addtional cost factor we always see, adds a lot more to the bottom line than we calculate. I live and breathe it every day. Never bought it for a second, and I am a dyed in the wool EBM practitioner who teaches daily. Any doc who evaluates chest pain and does not think about repercussions is either lying or a fool. Enough said.
Brad
This doesn’t surprise me. I have long believe “Boogeymen” are a symptom of hidden motives. May I suggest Saddam Hussein as an example. Doctors are getting squeezed for their priveledged role of paternalism. Squeezed to demonstrate value, justify costs, change their behavior…And fear of malpractice is a weak excuse for defending bad behavior. Docs don’t want to police themselves, don’t want evidence based constraints on their decisions and we SURE don’t want to have to discuss with our patients the uncertainty of what we do, the tests and treatments of limited or no marginal value done daily, hourly, this moment. Let alone own to this level of uncertainty before a jury, in public.
Nope, it’s easier to bemoan the many frivilous and painful lawsuits. And they happen. And, as Brad F. says, the fear of one is real. But defending a system that is motivated by fear, fear and greed, is shameful. We can do better.
You said it best when you said ordering studies to cover all possible outcomes, no matter how unlikely.
It is not a small amount of money. It is massive amounts.
How do you remove it?
By categorically listing failure to diagnose as something that can’t be sued for.
Failure to diagnose is not negligence. It’s built into the imperfect art of practicing medicine.
That’s how you fix it.
Not limiting the amount of the lawsuit.
Because a physician will order that extra CT whether he can be sued for 100K or 100 million.
Hey Maggie, you hit the nail on the head in the last 2 paragraphs. The reform is irrelavent with caps. Doctors are already insured and the final payout is usually not the issue (although I’m sure it matters to the insurance companies). It’s not until you have to sit through 4 days of court (instead of in the office) for a frivalous lawsuit that you really want to play defensively. The real cost is in the additional tests, treatments and time put in because you will be pounded if you’re best judgement isn’t good enough. The real harm to the patient is how all of this is tying up the system and resources. Brad F has it right I think – for significant errors and ommissions there should be a means for patients to be compensated but you shouldn’t have to buy a health care plan to cover the costs of you’re tests, doctor and 20 lawsuits. Good for you for bringing up the subject.
http://www.waittimes.blogspot.com
Maybe I’m confused. You say, “But as it turns out, tort reform barely makes a dent on either the frequency of successful malpractice suits or the amount of money our system pays out to them.” And then you say, “Tort reforms that prevent plaintiffs from specifying the amount of dollar damages they seek at the outset of a case…were negatively related to the total number of paid claims and paid claims per 1,000 practicing physicians, but not to levels of payments. In other words, the number of paid claims fell, but the amount of money paid out stayed the same.”
In the latter statement, do you mean ‘the amount of money paid out per claim stayed the same’? From the wording it almost sounds like the number of claims dropped but the per-claim payment increased, resulting in no net change in number of dollars changing hands.
I guess from the way you worded parts of the post it’s not clear to me when you mean ‘money paid out per claim’ vs. when you mean ‘total money paid out for all malpractice claims.’ This is important since reducing the average per-claim payment, the number of payments and the total dollar amount ‘transferred’ are important distinctions.
Or…I could be a little slow.
I, too, have to complain that the focus on the tort reform proper is missing much larger aspects of defensive medicine. There are cost aspects of defensive medicine — I remain irritated at the time that I had been handed off so often that when it came time for me to make an informed-consent refusal of a test I neither needed nor could afford, I was in too much pain to talk.
It’s not just the expense of defensive medicine. Increasingly, technicians and nurses will not make decisions without having supervisory approval or a physician order, even when the patient is acting within his rights. These days, I tend to cringe when going for a technician-operated test, when there is often no pretense of orders — it’s “I’ll get in trouble if I let you do what you have a right to do.”
The courtroom is the wrong place to solve medical quality issues.
Tort reform has long been sold to the docs as being a way to control malpractice premiums. When I did the research for my book I found that in the states with various tort reforms there was absolutely no change in premiums. The AMA and many doctors have been beating the “tort reform” drum for a while. Further research reveals that many medical liability insurance companies have MDs as CEOs, chairmen of the board and a large number of stock holders. If premiums don’t drop who will benefit from tort reform? Stock holding docotrs and medical liability insurance companies. In my state two years after the advent of a board to review cases before they were “allowed” to go to court my premiums went up 17%!!!
The other major problem is that jury’s often make “emotional” decisions not scientific ones, this is why OBGYN does so poorly, “everybody deserves a happy healthy baby” and few things fire the emotions faster than the death or damage of a newborn. The fact is you can do everything right and still have a bad outcome, this is one of medicine’s nightmares.
For docs defensive medicine is all we have, we are not empowered in law suits in any way, if the insurance company deems the suit too expensive to fight (even if we did nothing wrong) they will pay out or “settle” leaving us (me) with a never ending black mark on my resume. Every single job in medicine I have ever had, and yearly the board of medicine, asks if I have ever been the subject of a malpractice suit!!! I assure you nobody cares if I was right or wrong, the mere implication that I “may” have done something wrong will cause me increased premiums, and decreased job opportunities for the rest of my life.
Finally, I disagree that tort reform is idealogic, it is financial, plain and simple.
All,
Thanks for commenting, as always.
Brad, you’re right that there’s a lot of other studies/numbers we could look at—and we should. I focused on this study because I think it’s a powerful one that hits at the heart of tort reform, i.e. the notion that making lawsuits tougher is somehow a silver bullet. Though some of the ever-educated Health Beat crew might know better, I think most people tend to intuitively buy into this prospect—not least because, as a culture, we’re always ready to jump on litigiousness (not least because we are some of the most litigious people in the world!).
Ian, FYI, this post comes from me (you can check out the posted by line under each post to see if it’s by me or Maggie).
Tom: Sorry if I was unclear. What I meant was that the reform preventing plaintiffs from setting damage amounts (1) reduces the number of claims that are paid to plaintiffs, both as a total number and calculated and in terms of prevalence across physicians. To get a better sense of what this means, it’s easy to think about an analogous, but more familiar example: measuring crime.
We can say that there were X number of crimes for a given period, or we can say calculate the crime rate, some number of crimes that happens among a given number of people (e.g. 18 crimes per 1,000 members of the population). So for our purposes, we’re kind of talking about the total number of paid claims and the rate at which claims are paid.
(2) When I talk about the amount of money, it means the amount of money paid out per claim. Keep in mind the outcome variables that the study looked at:
–average dollar value of a paid physician medical malpractice claim
–total number of paid claims
–average dollars per practicing physician paid in claims
–number of paid claims per practicing physician.
drmatt-the difference between financial interest and ideology is all but non-existent today, I’m afraid. many folks, or at least political actors, believe what benefits them–and then that message is sold to people who have little financial stake in the issue. Money plays into it big-time, but the reason it gets a lot of traction is the narrative built around it of bloodthirsty lawyers, lazy whiners, etc.
As for defensive medicine, expect to see a future post on the issue sometime in the near future.
Ian and Brad–
Ian–Thanks, as it happens, I did write the last four paragraphs of this post, and so I’ll respond:
I agree, for doctors the size of the pay-out isn’t the problem since insurers pay that. For doctors, the problem is, first of all, how awful it is to be sued. As Justice Brandeis once said, there are two things to fear in life: death and litigation.
I would guess that being sued for malpractice is up there with going through a divorce as an unpleasnt life experience.
Secondly, a lawsuit can waste an enormous of time, in depositions etc. And finally, even a suit that is totally without basis can hurt a doctor’s reputation or his standing with a hosptial.
The people who object to big pay-outs are not the docotors, but the insurance companies.
And conservatives, in general, object to juries making large awards in any plaintiff’s case. This is because conservatives do not like to see individuals suing businesses of any kind– be they hospitals, corporations or doctors.
They see the “platiniff’s bar” (attorneys who represent consumers) as creating costs for corporations that reduce the value of the corporations stock (and the wealth of the shareholders who own that stock.)
This is why conservatives have objected to tobacco lawsuits, asbestos lawsuits, etc. Even when a corporation knowingly conceals the risks of its products (tobacco) conservatives defend the company’s right to sell the product. They say that it is up to the consumer to watch out for risks (caveat emptor.)
This is why malpractice is an ideological issues.
Progressives put the rights of the consumer–who, they say, should be able to
count on getting a safe product– ahead of the right of company to sell whatever it can persuade consumers to buy–even if the advertising is misleading.
Conservatives argue that companies have a right to “free speech.” This is how they defend much of the misleading direct-to-consumer advertising now being done by drug companies.
Brad–Thanks for sending the AMA study. I read it–
The problem is that it’s hard to knwo what to make of its numbers.
As you know, the AMA is not exactly without bias. The Massachusetts branch, for instance, which owns JAMA, regularly fires editors-in-chief of JAMA who dare to
publish pieces that don’t conform to AMA politics.
I had a run-in with them when I was asked to give a speech a meeting of the Mass. AMA. I planned to talk about “shared decision-making” and was told by the person planning the event (not the president of the Mass AMA, who is actually fine)that I could not talk about “Shared decision-making” becuase the doctors in the audience do NOT want to hear about this. They alrady have enough to do–and a hard enough time making money–without spending time including patients in the decision-making process!
She was dead serious–and this was about a week before the event. She tried to disinvite me. I dug in my heels and refused to be disinvited.
Ultimately, I gave a speech that was half of what I wanted to say–without using the dread phrase “shared decision-making”.
Returninng to malpractice I think we need to reform how we deal with malpractice, by replacing lay juries (who are too emotional) with professional malpractice judges and juries made up of scientists, doctors, nurses, etc.
And penalities for frivolous suits seem like a very good idea.
The problem with caps is that it makes it very difficult for a poor person to sue. A poor person can’t afford a lawyer–he needs someone who will take the case on “contingency” (taking a percentage of the award if they win. If the awards are capped, the percentage may be too low to make it worth a lawyer’s while to take a complicated, time-consuming case.
The medical profession also needs to do a much better job of policing itself–firing docs (or taking away their privileges) if they are truly negligent, turning them into the state medical association and making sure they lose their license.
I also think that in some cases, you should be able to sue for misdiagnosis.
For instance, in N.Y.C there are low-cost mammogram mills that do a very poor job of reading mammograms. Poor women go to these places, get a false negative reading, and wind up finding out they have breast cancer when it is too late.
Kasier actually fired a couple of doctors reading mammograms a few years ago because after doing a survey of their , Kaiser realized that a few of them were missing a large number of positive readings. They just weren’t doing a good job, and refused re-training.
This is a good example of how we need to have doctors working for large organizations where other physicians are looking over their shoulder.
Here in Texas a group of attorneys have filed a class action lawsuit challenging the malpractice caps as unconstitutional. Recent story in the SE Texas Record.
There’s an interesting book on this subject by Michael Townes Watson, “America’s Tunnel Vision…How Insurance Companies’ Propaganda is Corrupting Medicine & Law.”
There needs to be accountability in health care, the industry is totally self-policed (poorly), I don’t agree juries should be made up of medical peers, that sounds like the State Medical Board which is nothing more than a “Good Old Boy” network.
Perhaps those responsible for failures, be it an individual clinician or the facility directly should be fined appropriately (paid out by their insurer). Said revenue would support patient safety initiatives, fund patient safety programs, etc.
There’s nothing really motivating the industry to perform at it’s best…perform for their patients. I think we need governance of the industry by an independent third party. If someone is harmed or killed as a result of medical negligence, they should have access to the courts just like any other citizen. Malpractice caps and tort reform have in effect, given the industry the green light to do as they wish with no consequences.
Llisa–
I disagree about lay juries.
The average lay person cannot follow the complexity of medical proedures that may involve 260 steps.
And when it comes to malpractice cases, lay juries do rule on emotions, not facts. Moreover, many malpractice
attornies make blatant appeals to emotions–and get away with it in court. (I have great respect for many malpractice attornies –not all.)
On two occasions, once when I was hurt in an accident, once when my father died in a hosptial, malmpractice attornies who I can only describe as ambulance chasers contacted me trying to get met to sue. I refused.
Moreover, Americans do labor under the illusion that anything can be cured, that everyone has a right to a healthy baby (as someone said above) that medicine is a science, and that if a relative dies, it may mean you’ve won the lotto.
Eventually we all die. Most of us will die under a doctor’s care and probably in a hospital.
Most of those deaths are unavoidable. Honest mistakes are also unavoidable. Someone is tired. Or, for whatever reasons, his or her concentration lapses for just a moment. Read Atul Gawande’s “Complications: A Srugeon’s Notes On An Imperfect Science.”
Unless you’re a dermatologist, most doctors will make a mistake (or more than one) at some point in their careers that costs a person his or her life or serious injury.
Further, I am not suggesting juries of doctors who are pals with the doctor on trial. I suggested nurses (who are much harder on doctors than the average layman because they undrstand what is going on), and others who have expertise in the disease in question. Medical ethicists might also be good candidates.
As for the Texas Medical Assocaition, I spoke to a group in Austin a few months ago and was very, very impressed. The Presdient of the Association focused his opening remarks on Medicaid patients, and how doctors need to open their doors wider to Medicaid patients, even though, in the state of Texas, reimbursements for caring for these patients are very, very low. (As one doctor said to me, Texas is a state that never has, and never will take care of its poor.)
I’m afraid that some malpracice attornies don’t want knowledgeable juries because they do see the law as all about playing on the juries emotions, prejudices, etc.
If you’ve spent much time in courtrooms, following trials (as I have–tobacco trials, asbestos, lawsuits against various companies) you will see that many of our attornies are trained to “play” to the jury in ways that turn our legal system into a travesty.
Even the way juries are picked–and stacked– by people who are “experts” at picking juries–who know when to pick a woman, when to pick a black person, when to pick a Catholic, when to pick an elderly person–make a joke out of the idea of justice.
Finally, when you say “there is nothing really motivating the industry to perform at its best” you seem to suggest that heatlhcare is an industry like any other.
Going through medical school is hard. There are much, much easier ways to make $300,000 a year. (For example, you could become an attorney. Compared to med school (or grad school in many subjects) law school is really, really easy.
Finally you don’t seem to respect the fact that the vast majority of doctors and nurses are professionals, and feel terrible when they make a mistake that causes someone serious injury.
(In my experience, relatively few lawyers feel that badly when, for example, they cost two people enormous sums of money and emotional anguish while “represnting” them in a divorce.)
There are a small percentage of doctors out there who are negligent, callous and indffierent. They should not be fined. They should be stripped of their medical licenses.
There is a percentage of hosptials out there that are dirty, poorly managed and poorly run. They should not be fined. They should be shut down.
Malpractice is a red herring in regards to the reason healthcare costs of escalating. This is a political ideology issue pure and simple and health service researchers article like the one done in Health Affairs will have ZERO impact on informing policy in this area.
This issue is really a pure political play by Democrats and Republicans on overall tort reform. Democrats want to keep one of their few remaining reliable donor bases (tort lawyers) satisfied and viable while Republicans want to largely dismantle yet another bloc of donors that generally donate financial contributions largely to Democrats.
There was a very good article last week in the NY Times Sunday Magazine on the Supreme Court (Supreme Court Inc) and the issue tort reform.
I don’t feel as passionately as you do regarding who is on a jury…agree with you about nurses, though. I’m saying I’d like to see another outlet available other than the court system.
Any physician, by virtue of being a physician, is a “pal” to another. John James’ book, “A Sea of Broken Hearts” may be of interest to you.
My comments relating to the State Medical Board are exclusive to accountability. We don’t have any way to strip incompetent providers of their ability to practice… not in a timely fashion, and when there’s finally discipline in one state, they simply move to another. Same problem with shutting down the poorly run facilities. There are precious few means to these ends and almost the only one that exists, to obtain any sort of accountability, is the court system.
I’m not sure how a provider having bad feelings about an error is relevant to this topic, particulary in light of your comments that emotions should be separated from facts. I’m not sure why you think I’m disrespectful to medical professionals when in fact the opposite is true. At the very least these failures should be a learning opportunity so it doesn’t happen again, this rarely occurs.
In our own experience I can’t point to any individual caregiver as incompetent, nor did I ever. However, in all my years of research and learning from others’ experiences, coupled with our own, I can offer my opinion that there should be more accountability in health care, right now that only avenue is the courts and I don’t think it should be restricted, is all I’m saying. No, we did not ever sue anybody, attempt to sue anybody or threaten to sue anybody. I was hoping there would be lessons learned and improvments made as a result of our experience, that never happened. What does that leave the next person? Justice must exist somewhere.
“Moreover, Americans do labor under the illusion that anything can be cured, that everyone has a right to a healthy baby (as someone said above) that medicine is a science, and that if a relative dies, it may mean you’ve won the lotto.” I can’t speak for all American’s but I can tell you I’m as average and middle class as they come and none of these statements accurately reflect my opinions, or anybody I know. Well, medicine is a science, but it’s an art as well.
In the most recent famous example, Dennis Quaid newborn’s. The nurse probably felt really badly, the checks and balances in place to prevent this type of error failed at every level. Do you think Dennis Quaid or his insurance company should pay the additional treatments costs as a result of the Heparin overdose? I do not, I think the hospital should eat the costs.
Lisa–
Thanks for responding.
I think I may well have misread your tone about doctors.
It’s just that I think that most are trying very hard to be “professionals”–which means putting their
patients’ best interest ahead of their own. In today’s climate, that is hard.
You’re right to call me on the fact that while, on the one hand, I don’t want
emotional juries, I stress how important it is that we all understand how terrible doctors and nurses feel when they make mistakes.
But what I was really trying to say is that in many businesses, if you make a mistake, and it costs your customer more money . . well, you may not feel that badly.
But you would have to be a very callous doctor or nurse not to feel terrible
if you hurt someone.
As a result, I’m not as interested in punishing the doctor who makes a mistake. In most cases, realizing he has made a terrible, irreversible mistake is probably punishment enough.
That doesn’t mean the victim does’t need to be
compensated.
But it would seem to me it would make sense to move away from costly lawsuits, and toward some sort of arbitration where judges who specailize in malpractice oversee the proceedings.
And when arbitration won’t work and we need a trial, I still think the people on the jury shouldn’t be laymen. I agree with you that nurses may be the ideal jurors. They understand what happens in hospitals, but at the same time are rarely part of the “club.” But I don’t think we want all-nurse juries. Depending on the nature of the case, other
experts including technicians, medical ethicists, and scientists very familiar with a particular disease and treatments could be very useful.
In the Quaid case, do I think that Quaid or his insurer should pay the extra costs? No.
. But we
all need to realize that when the hospital “eats” the cost, we will all ultimately pay for it because to make up for the loss, the hospital will have to raise prices somewhere else.
Finally, I believe that we need to change the law so that
doctors who lose their license in one state cannot simply move to another state. We need some sort of national license board that looks at these cases, and, unless the board decides that the doctor was treated unfairly in one state, he won’t be able to practice anywhere.
We should have zero tolerance for truly negligent physicans–those who drink, use drugs, or are simply in so much of a hurry to make money that they consistently practice sloppy health care.
I suspect you and I are not that far apart on these issues. . . Sorry
that I misread your tone.
MG–
I agree,that when it comes to the escalating costs of health care, medical malprctice is a red herring–it just isn’t the biggest problem, and is too often used as an excuse.
That said, malpracrice does drive “defensive medicne” –which is costly.
And defensive medicine is interwoven with overtreament and excessive use of cutting-edge, unproven medical techologies.
You would need a very, very fine knitting needle to tease out the differences between overtreatment due to fear of malpractice and the many other reasons doctors over-treat: they were trained to “do something”–never give up; they are honestly concerned about their patients, aren’t sure what to do, and so do all of the tests that might possibly help; our fee-for-service payment system inevitabl encourages doing more.
It seems to me that the discussion of this issue fails to include the context. “Consumers” of medical services in the US have received a lifelong propaganda campaign from the medical professional organizations that medical doctors are the ONLY and FINAL arbiters of medical treatment decisions. As a result of this presumption, they have put themselves in the position of having to be perfect practitioners of the art.
Of course, this is an absurd position to be in. And costly, because when mistakes are made, the sufferers are less than likely to be forgiving. Who can blame them?
To add to the conflagration, the medical community has done simply a damnably poor job of policing itself. There are too many cases in which the medical organizations behave more like a paternal brotherhood than a professional organization. Instead of kicking out the wrong uns, they cover up for them. For example, shortly before I left Oregon five years ago, a particularly ridiculous case surfaced, in which an MD known to be drug-addicted was repeatedly given “second chances” over a period of TEN YEARS before finally having his license suspended. I’m not going to trust medical opinion until that kind of crap stops, period.
I myself was the recipient of poor medical treatment at the clinic of a major Portland, OR hospital. As a result of a misdiagnosis, I ended up spending 5 days in a hospital bed, at $2000 a day, uninsured. The hospital happily charged me 12.5% interest on that $10000 mistake. Nobody stepped forward to say, “Oops, we should not have let your case get to the point of being life-threatening.”
Sometimes, I regret I didn’t sue them. But, I’m not that kind of guy. If I hadn’t seen a different physician on my last visit, I would have died of double pneumonia. I’ll never forget that scared look on her face when she showed me the XRays of my lungs. She knew, but said nothing. She let me pay the price for poor medical decisions.
What is a life worth?
Thanks.
mp
As Maggie (and others) said, defensive medicine, while impossible to quantify precisely, is both expensive and embedded in the culture of medical practice in this country. I think we can do much better than the current jury system for settling malpractice disputes. My own preference is for health courts presided over by judges who have built up special expertise in medical dispute resolution. The courts would have the power to hire and pay for their own experts and would, presumably, be much better able than jurors to discriminate between junk science and sound science. Jurors, as Maggie suggested, could be nurses, medical ethicists, doctors, etc.
From a payer’s (malpractice insurer’s) perspective, if there were confidence that the dispute would be decided objectively and based on sound science, there would be more incentive to fight dubious or non-meritorious cases rather than settle them.
From a doctor’s perspective, he or she would be more confident that the facts of the case will be dealt with objectively by people with expertise in the area. Moreover, there would likely be more consistency in outcomes both geographically and among similar cases.
Patients and their lawyers would still both get their day in court, but they will know that they have to make their case on the merits rather than on junk science and/or trying to play to jurors’ emotions.
If we had such a system nationwide, I think defensive medicine would decline over time as doctors gained confidence in the system’s objectivity but it would probably not decline in the short term. It could also make the job more satisfying if doctors come to feel that every patient, especially those they don’t know or don’t know well (yet), is not a potential malpractice claimant.
At the same time, since there is a consensus that a comparatively small number of doctors account for a disproportionate share of medical malpractice, the medical profession must do a better job of policing its own. Perhaps more transparency about doctors’ records with respect to how many times they have been successfully sued and how that compares vs their peers might be helpful.
I would like to see resolution before things escalate to the court stage, that’s what’s missing in health care. Lessons are not learned so mistakes repeat themselves, nobody is policing the industry. I don’t think we’re far apart, either. The health department will tell me if there’s slime in the ice machine at my local restaurant. The health department will not tell me if there’s MRSA on the doorknobs at my local hospital. If a dead body is found in a ditch, people with badges show up to investigate. If a person dies while hospitalized, nobody with badges investigates. The DOT has hours of service regulations for professional drivers, why don’t we have hours of service regulations for medical students (residents)? If I’m distracted while operating a motor vehicle and cause injury or death to another as a result, I’m going to feel terrible about it, but that doesn’t absolve me or my insurer from fiscal responsibility and could very well result in criminal vehicular manslaughter charges. I can look at a website like the BBB and find out if a company I’m considering doing business with has complaints against it and what the resolution was. Why does JCAHO keep this information secret? My point is the health care industry just doesn’t live by the same rules the rest of society has to follow. You said it was an industry unlike any other, if anything we should have much higher standards, not lower. I really don’t care who sits on a jury in a med/mal case, but it is my opinion it should not be full of professional peers as this is how the system already “works” and it doesn’t work. It’s corrupt. There’s a huge gap missing between a patient’s health care event and a med/mal case, I think that’s the gap we need to fill, effective regulation and policing of the industry.
I always giggle a little when those who have not been through residency training or spent a shift with a busy ER doc question how pervasive defensive medicine is.
We can argue what to do about it, we can argue whether it’s contribuing to 5 or 25 percent of overtreatment, and we can argue how “complex” the motivations are, but let’s stop pretending it’s a red herring. It’s real and pervasive.
(And we don’t need to put the term defensive medicine in quotes either, Maggie.)
A very interesting thread.
Niko or I will be responding to more of your comments, but in the meantime, I thought I’d point out an article that Kevin MD just recommended on his site (www.KevinMD.com).
It’s from Medical Economics and it’s written by a doctor describing how he and the colleagues in his practice have managed to avoid a malpractice suit for 30 years (knock on wood.) Cut and paste this link: http://medicaleconomics.modernmedicine.com/memag/Medical+Malpractice%3A+Risk+Management/Why-weve-never-been-sued-for-medical-malpractice/ArticleStandard/Article/detail/501549
He admits that there is an element of luck involved, but many of his practical tips make a lot of sense–in particular, documenting, in very clear fashion, everything you’ve done.
That takes time, and so can become expensive for the physicians, but since they’ve been in business 30 years,it sounds as if they are thriving.
I read the medical economics article. Bravo, if this is what you call defensive medicine than I’m all for it. These common sense procedures to stave off lawsuits are also staving off a lot of the reasons lawsuits are brought to begin with, and preventing errors. Communication and carelessness are what breed medical errors.
I want Dr Caldroney’s practice to treat me and my family. A place where nobody sues each other and the doctor actually has your chart in front of him when he’s talking to you….oh my…..Thank You Dr. Caldroney.
“The most expensive thing of all is the loss of trust”
There are only three things ANYONE needs to know to understand EVERYTHING about the fundamental problems of healthcare spending in this country (but there is a lot in those three things…)
1. How much do the various players in the game trust each other– in the game theory world of The Prisoner’s Dilemma, are most players in the system playing: “Tit for tat”, “always cooperate”, or “always defect”?
“Defensive medicine” is to the healthcare system, as the credit crunch is to the financial system. In our prisoner’s dilemma- cooperation/betrayal world, we are witnessing physicians lose trust in their patients and unless that trust returns, we are all screwed.
2. All healthcare spending follows fractals; ALL significant medical malpractice issues follow fractal distributions.
Cauchy or Lorenz statistics (from which we derive fractals, power laws, fat tails and chaos theory) are very different than Gaussian statistics, yet most of the articles on this blog use Gaussian analysis– this is fundamentally wrong, and bad science, to say the least. I might suggest Mandelbrot’s The Misbehavior of Markets for an introduction to uncertainty, fractals and ‘fat tails’ if you are not familiar with their language. It is an easy read.
3. What are the boundaries of our healthcare system– the most significant of course is our morals.
What is ‘our’ responsibility towards each other? How much do we owe one another? When is it ‘enough’? What % of our individual resources, when collectivized, do we owe one another? And what is the limit any one person can ask from the collective?
(All these topics form the basis for rationing, whatever form that rationing takes).
And morality is nearly impossible to quantify as it always seems in flux and anyone who does tries to have a ‘quantitative’ discussion on the subject usually gets labeled a Nazi– particularly from people who like to use the word ‘progressive’ a lot.
And whoever said “defensive medicine” is ‘hard to quantify’ is not very creative– I have run a few analysis on this topic with my own data and my quick calculations are pretty alarming (I am an administrative physician in a multihospital/multisystem physician staffing group).
About a year ago I noticed that after we hired 8 newly minted EM physicians from some of the top residencies in the country to staff a new facility one of our hospitals had just built (their employment happened to begin all at once), admissions increased from 14% to 18% instantly (no surprise the was hospital was thrilled). It has not gone down since.
When we pulled the charts to see what was going on, it was clear the ‘newbies’ were admitting patients the previous docs hadn’t. It seems the new grads were being taught a miraculous ”new” techniques for improving patient care and reduce med mal claims– ‘admit the patient’.
You do the math: 4% increase on 75,000 visits/year (remember almost 2/3 of healthcare costs are on the inpatient side) and you will pretty quickly see where a lot of money is going– and that doesn’t even include the incredible increases in tests these newly admitted patients are utilizing.
Every hospital/ED/insurance company has this kind of data. Get a little creative.
And whoever wrote med mal is a smoke screen simply doesn’t understand the asymmetric nature of the problem when viewed thru the eyes of a physician.
Med Mal almost never happens in the outpatient arena because the ‘risk’ of bad outcomes is simply non-existent. This is why all that mumbo jumbo on how compassionate physicians with good bedside manners have lower rates (all done in outpatient settings) is just that, mumbo jumbo. While it may be true in a literal sense, a fraction of a grain of sand is still a grain of sand.
Move to the inpatient arena (ER, OR, L&D, ICU, etc…), where the risk of bad outcomes increases markedly simply because patients are sicker and therefore have worse outcomes by their very nature, and the fat tail probabilities make the asymmetric issue a whole different problem.
A single bad outcome with error can lead to $1+ million payments easily. Get two or three of these in a few years (VERY improbable but statistically possible due to the fat tail nature of med mal claims EVEN if the doctor really is not a “bad doc”) and suddenly you see the problem– the physician’s career is over. No insurer will insure him/her anymore with a claims history like that as they can’t guarantee the physician isn’t a “bad doc”, and without insurance, a doc loses their inpatient privileges.
Put ANY fear of this in a physician—ANY possibility that all their work, training, investment, identity and career will ‘blow up’, and they will start to behave in ways they believe reduce the odds of such a possibilities (even if it is a VERY LOW possibility). In my experience, physicians generally tend to be risk averse… In many ways physicians are acting no differently than society does with safety equipment. Take ships: 99.99999% of the time the ships never all that stuff they ‘spend money on’, yet never the less the ships still all have the equipment (Titanic accepted) for the 0.00001% of the time they do need it.
Threaten them with their career (even if it is a VERY small threat) and see how much trust their patients. So whoever you are, please learn a little more about asymmetric consequences and how people react/prepare for them before you make up stuff you do not seem to understand.
And Maggie (is that your name?), as a policy wonk, please learn a little more about Cauchy statistics. This Gaussian analysis stuff really is garbage.
“The most expensive thing of all is the loss of trust”
Red Baron,
Very interesting comments. I am curious about what malpractice reforms you would recommend to significantly reduce the amount of defensive medicine assuming little or nothing can be done in the short term to address the trust issue between doctors and patients. Would health courts make a difference? How about the English Rule that requires the plaintiff to pay the defendant’s legal costs (at least up to a point) if the plaintiff loses the suit? Would episode or package pricing for hospital based procedures (especially surgeries) help? What about putting hospital based doctors on salary as opposed to letting them bill on a fee for service basis? I have always thought that defensive medicine contributes much more to healthcare costs than liberals / progressives claim, and I am interested in how doctors like yourself think it can best be addressed.
Barry, you have to understand no matter what we do there is always a cost to someone.
As for eliminating pay for service for salary– this issue still gets back to trust/integrity issues.
Yes, physician’s can overutilize (be incentivize to test under such a system– I could give more examples then I have the time to write)
But the real issue for healthcare systems is their productivity with their resources; basically ‘how productive are their providers’?
It is clear that for identical complaints, productivity differences between providers can EASILY run greater than 300% under fixed salary comp models.
This spread is always existant, but it moves closer to 80% (between high and low provider productivity) when physicians are placed on 100% productivity compensation models (what you call fee for service) and overall system productivity increases around 45-55%
Since 60% of cost are still in salaries, the loss of productivity still kills the system, even if you are saving on lower ‘utilization’–do the math yourself if you don’t believe me.
In fact, it is this very issue that hospitals ask us to address when they hire us– we can often eliminate subsidies to their providers by $1+ million/year depending on what their ED’s annual volume is.
So it gets back to what kind of integrity does the physician have, how much will they game the system for themselves at the expense of everyone else? How much do you trust your providers.
And PS– this issue of productivity is even greater amongst nurses, completely obscured in this whole ‘patient ratio per nurse’ debate.
As a famous poet once said… “No system of man can avoid the moral failings of its people”
Thanks for your comments:
Barry
You suggest that if we had malpractice courts where judges had expertise in this area and juror came from different sectors of heatlhcare ” I think defensive medicine would decline over time as doctors gained confidence in the system’s objectivity . . .
At the same time, since there is a consensus that a comparatively small number of doctors account for a disproportionate share of medical malpractice, the medical profession must do a better job of policing its own.”
I agree, completely, on both counts. In particular, I think that fear of malpractice suits is all tied up with the fear of being at the mercy of a totally irrational jury. (Not all juries are irrational, of course, but the group pschology is complicated, and sometimes one or two people can lead a jury right over a cliff.)
If a doctor had confidence that the system was rational, and knew that
he practiced medicine in a rational way, he would realize that the possiblity of finding himself in court would be much, much lower. (I’m assuming those judges who
specialized in malpractice suits would also be confident enough to throw out a larger percentage of frivolous suits. )
Lisa– Yes, wasn’t the
Medical Economics article
great? It’s always good to
come down from the theoretical (of “what if”) to the common sense of someone in the field. If I
were a young doctor, I
would take his advice to heart. (And I, too, wish he
could treat me and my family.)
Michael Powe–
You wrote: “As a result of a misdiagnosis, I ended up spending 5 days in a hospital bed, at $2000 a day, uninsured. The hospital happily charged me 12.5% interest on that $10000 mistake. Nobody stepped forward to say, “Oops, we should not have let your case get to the point of being life-threatening.”
Without knowing all of the details, it sound like you should not have been charged for the extra time you spent in the hostpital. Medicaree is now
talking about refusing to pay for things that Shouldn’t Have Happened in a hospital. (Maybe they have already implemented the program, I’m not sure.)
Medicare’s list is a little long–some accidents aren’t avoidable. Howard commented on this on this blog. As I recall, he pointed out that patients sometimes will fall if they try to get up and walk to the bathroom when they aren’t quite ready.
Unless a hospital wants to strap every patient to his bed, there’s no way to prevent this from happening–
But there are many preventable “adverse events” and I don’t think that patients or their insurers should have to pay for the most egregious.
Red Baron–
First, as it happens, I
do understand risk. Nassim
Taleb, author of “Fooled by
Randomness” is a friend–I wrote one of the first reviews of his book, and last time I looked my blurb in on the back of his book.
But this is a healthcare blog and I doubt that most people here are interested in debating Cacuchian vs.
Gaussian analysis.
More importantly, this is a blog where most of us value civility. We avoid calling each others’ ideas
‘garbage” or “mumbo-jumbo.”
And in fact,many suits do originate at the outpatient stage, where a doctor fails to diagnose breast cancer, for instance.
Regarding productivity, I’m afraid your numbers are wrong. Many doctors on salary (at Mayo Clinic, at
Cleveland Clinc, at the VA
hospitals, at most academic medical centers) are far more “productive” than doctors working fee-for-service if you measure
productivity in terms of
efficency, outcomes and patient and doctor satisfaction.
At many of these medical centers, outcomes are better and the cost per patient (for very similar patients) is lower.
Of course of you measure productivity in terms of how many procedures the doctor did, how many tests he ran, how many scripts he wrote, he many ER admissions there were, etc., the “fee-for-service” docs might well look more productive because they are “doing more.”
But as 30 years of Dartmouth research has shown, doing more is not better care. See http://www.dartmouthatlas.gov.
Finally, we occasionally have had a problem with Trolls on this blog, so I
Googled definitions of what a troll is, to help with identification:
“A commenter whose sole purpose is to attack the views expressed on a blog and incite a flamewar, for example, a liberal going to a conservative blog, or vice versa. The word trolling means literally ‘to fish’, ie. when the troll fishes for a clashback from the blog writer and/or pro commenters. .. . Trolls’ verbosity can range from eloquent to crass, although most trolls probably fall into the latter category . .
“an individual who sits in front of a computer all day and posts flames of an idiotic or pseudo-intellectual nature on public forums and private websites. Many of these people actually become emotional
v.) (1) To deliberately post derogatory or inflammatory comments to a community forum, chat room, newsgroup and/or a blog in order to bait other users into responding.
I’m afriad your first post is dangerously close to troll-like in its pseudo-
intellecutal language, language you make no attempt to explain (which says that you are not interested in adding to our knowledge, or to the discussion , but are just trying to intimidate or “show off”), its inflammatory, absolutist
statements, and its rambling structure (which suggests a “rant.”)
Please be aware that we have zero tolerance for trolls on this blog. If you want to respond to what others are saying in a respectful way, that’s great. But please, no rants.
This Troll humbly apologizes for my inflammatory language. I can be hotheaded… I thought I deleted all inflammatory remarks, but clearly I missed a few.
I need to read the details of your Mayo clinic study before I comment. Do you have a link?
But observational data is not the same thing as ‘before and after’ data, and I have ‘before and after’ data for 32 systems.
I am very aware of what patients are interested in– total costs after you add everything up. I too care deeply about the patient’s pocketbook, or I would not have even posted.
As for my ‘pseudscience’, I stick by my guns. Your example of the problem oupatient physicians have with breast lumps is a classic example of the fractal nature of healthcare spending. Outpatient docs do have a few others, but not nearly as many as high risk specialties.
I am unsure how to interpret the fact that you bring up the breast mass, yet call my fractal post pseudoscience and irrelevant to a general blog audience. Please help me out.
Red Baron
On the Mayo Clinic, here’s the press release for a study that compares the efficiency of Mayo (where docs are on salary) to the ineffiicency of hospitals like UCLA (where docs practice fee-for-service.
http://www.dartmouthatlas.org/press/2006_atlas_press_release.shtm
A link on the press release will take you to the full study.
You should note that Salt Lake City, which, like Mayo, turns out to be a benchmark for high quality, more efficient care, is the home of Intermountain, another medical center where docs are on salary.
As for what patients (people who are sick) are interested in–“total costs” is not high on the list. Patients are intersted in the quality and safety of the care they are getting.
In most cases, in this country,
patients are not paying the bills. (More than half of our health care bills are paid by the government–and that share will only increase as more people go on Medicare, and health care reform begins to cover those who are now uninsured and underinsured.)
I am not saying that costs are unimportant. If we want a sustainable heatlh care system that covers everyone, we have to take a close look at costs. But that is not what patients worry about.
Finally, while readers on this blog are, by and large, not interested in “Cauchy” statistics vs. Gaussian analsyis, they
are intersted in the moral
questions you raise:
how much responsibility does society have for the individual? how much can I, as an individual, demand
from society?
In the future, think you’ll find that other readers are more likely to respond to your comments if you pursue some of those questions. .
“how much responsibility does society have for the individual? how much can I, as an individual, demand
from society?”
If we had a Comparative Effectiveness Institute modeled after the Federal Reserve, I wonder if it would approve super expensive drugs like Genzyme’s Cerezyme for Gaucher’s Disease at a cost of $300K per year at Genzyme’s recommended dosage.
Does the UK pay for this? I assume that many of the other OECD countries do because about 5,000 people are on the drug worldwide of which only about 1,500 are in the U.S. Since these patients presumably need at least some other treatment from doctors and hospitals besides just taking the drug, their healthcare costs exceed $300K each year. My understanding is that the UK’s QALY metric standard is considerably less than this, and the numbers I hear most commonly talked about, even for the U.S., are in the $150K per year range (adjusted for regional differences in healthcare input costs). If we had a $150K QALY metric standard, to take my example, I wonder if Genzyme would conclude that it could, in fact, make money selling the drug for $100K-$125K per annual treatment regimen instead of $300K and still finance its research to develop future drugs.
Separately, if NIH research contributes significantly to new drug development, as it did in this case, it seems reasonable to me for taxpayers to be cut in for a share of the future profits from commercialization of the research.
Mr. Baron,
I dig the trust issue, if we trusted that patient’s wouldn’t sue for frivoulous reasons, courts would use science to decide negligence, if patient’s trusted we would do our best, if we trusted the pharmacuetical and insurance industry to be fair, honest and equitable, if, if, if. Of course Hobbs would say (read the Leviathan) the whole reason for laws and recourse is humans can not trust each other.
I do however disagree with “And whoever said “defensive medicine” is ‘hard to quantify’ is not very creative”, first I would say that creativity is not defined by whether you can find the answer to a difficult question, secondly I doubt the increased admission habits of newly minted MDs comes anywhere close to representing the “true” cost of defensive medicine. It is however an interesting extrapolation, but it is an extrapolation.
Could you please send me the article, “True Cost of Poor Health”. It was mentioned at a seminar and I am having trouble finding it.
Thank you,
Heidi Maher