Over at Huffington Post, HealthBeat reader Jim Jaffe asks “Which Side Are Docs On?”
“The quest for evidence-based medicine, embedded in already-enacted economic stimulus legislation, gives reformers a tool to recruit doctors. New research would define optimal care, which often is different – and less expensive – than what doctors are doing today. How to turn these findings into practice is a key question.
“Doctors can reject it, attempt to stick to their old habits, resist efforts to impose it on them and rally their patients against rules imposed by faceless bean-counting bureaucrats. That worked when they successfully resisted and rejected managed care a decade ago.”
But, Jaffe points out, “Things have changed since then. The cost problem is seen as more acute. There's a growing realization that there's substantial overconsumption. And opposing protocols set by reputable scientists would be much tougher than pushing back on insurance companies that had meager public support.”
To read the whole post, got to : http://www.huffingtonpost.com/jim-jaffe/which-side-are-docs-on_b_218563.html
I’d like to comment on best practices. One of the commonly heard arguments is that doctors order too many tests because they fear being sued if something goes wrong later and they skipped something. Even doctors say this often when asked.
It is just as likely that they are motivated by the extra income that such actions produce. In fact they may not even be explicitly aware of this motivation which sounds self-serving and greedy and doesn’t match the image that doctor’s have of themselves as altruistic people.
Once a regimen has been adopted it is much easier to keep using it than to take a risk by making a change. Where does the information come from that favors the new approach? Is it based upon comparative studies or just anecdotal evidence? If you do try something new how do you know it is actually better?
As long as the bulk of practices are small and private I don’t see much progress happening. Even if a review board is established and does good work, old habits die slowly.
The implementation of recommendations needs to be addressed, just generating them isn’t going to do the job.
Private insurers will keep placating physicians because they fit into their overall plan. Under the present HMO-for-all type systems, doctors are becoming employees of the hospitals, instead of remaining as independent contractors.
We can choose to have a public option, with proper funding and fair reimbursements, or continue having an HMO-for-all system run by corporate consortiums whose main goal is increasing profits for itself and shareholders, rather than providing high quality health care.
As a sign of progress here’s a report from Carlat psychiatry blog about new regulations which require clinical tries to report all results, not just the positive ones.
http://carlatpsychiatry.blogspot.com/2009/06/geodon-ineffective-for-bipolar.html
Road Kill, not likely. One third of physicians are over 55 and know that it takes a full decade to replace them. They could easily do something else or retire and explode an already fragile access system. I’ve also talked to nearly a dozen physicians in my community alone that are readying themselves for a retainer or concierge practice depending on what exactly passes. Most of the other players such as insurance, device and pharmaceuticals will be much easier pickings, because they have nowhere near the trust and favorablity ratings that physicians enjoy. The best they can hope for is fragmentation, because if physicians were truly organized (card check could bite him in the arse if enacted) Obama knows he wouldn’t stand a chance. That’s why one of his most commonly repeated promises (although completely laughable that he can pull it off) is telling people they will keep their own physician. I believe he then says period. Jaffe is wrong though probably 99% of patients have no idea what MEDPAC is and all they are going to know is my physician wants X, and the government won’t do it because they are cheap. I trust him and those “scientists” aren’t in the exam room.
Unless you can clone a few hundred thousand Obamas to be in the exam room, and even then he isn’t as popular as the guy or gal with the white coat.
I’m always one for trying to get to the nub of the issue, avoiding what a long-dead teacher of mine termed “a forest-trees disassociation.” In this instance I think it’s time to remind ourselves of what most of us were taught in medical school — the venerable list of commands passed on by Robert Loeb, a famous internist at Columbia and co-author of one of the leading textbooks in internal medicine. We need to keep our eye on the forest.
Loeb’s Laws came from a simpler time — over fifty years ago — but they still are useful.
1. If what you are doing is doing good, keep doing it.
2. If what you are doing is not doing good, stop doing it.
3. If you do not know what to do (or are unsure), it is usually best to do nothing.
There are variants of the fourth law: “If possible, keep your patient out of the operating room,” and “Don’t make the treatment worse than the disease.” I’ve heard both versions.
When I recall this list of advice I realize evidence-based medicine is an old concept. Dr. Loeb was talking about empiric observations made on individual patients, of course, and not populations of patients. But they apply to populations, too. Law #3 is particularly difficult for American physicians, and patients, to accept. Often it is best to wait a while and see what happens. I think our healthcare costs would plummet if we kept this in mind. We’d be less likely to be roadkill.
RR:
Apart from cardiologists, the doctor ordering the study is not the one performing the study.
Doctors will spend a lot of healthcare dollars to stay out of court, which they regard as completely irrational.
Robert,Gregoory, Robert (2nd comment)
Robert– I agree that it is harder to make changes when the bulk of practices are small and private.
That said, financial incentives can steer doctors–and patients–toward best practice– lower co-pays and higher fees for the more effective treatment, higher co-pays and lower-fees for the less effective treatment for that particular patient.
Gregory–
When doctors are employees at places like Geisinger, Mayo or Peugot Sound, patients receive better care.
The problem with the “independent contractor” model is that too often, indepdent contractors do not collaborate and communicate with each other (other doctors).
And today the chronically ill patients who absorb 80% of our healthcare dollars are virtually always seeing more than one doctor–often 5 or more.
So collaboration is essential.
But I totally agree that we don’t want HMO systems run by corporate consortiums.
The not-for-profit model of accountable care organization seems ideal–and as Gawande points out in his article, doctors who work solo or in small practices can group together, form a virtual accountable care organization, set guidelines for best practice and divving up payments–as they did in Junction City Colorado.
These are not the only models that can work, of course.Some academic medical centers provide high quality efficient and highly collaborative care– I think of Dartmouth-Hitchcock and University of California San Francisco.
Robert– Yes– requiring that all results be reported from clinical trials, not just the positive ones seems simple common sense.
The fact that we don’t do that now shows the power of lobbyists.
I think doctors could help drive healthcare reform, but are more likely to end up as road kill – or taking the exit ramp.
I am in Diagnostic Imaging as see a lot of unnecessary tests being ordered; some out of ignorance, some out of greed and some out of fear of malpractice. Many of my colleagues in Diagnostic Imaging agree that there are a large number of unnecessary tests done and would like to see them reduced (despite the potential negative effect on our income)
I believe that physicians could be won over to “evidence based protocols” if there was something in it for them. That “something” could be immunity from lawsuits if they followed established protocols. Not that we will see that from a Democratic House and Senate.
Recently, we reviewed the demographics of our groups (80+ Radiologists). As Jenga said at least a 1/3 are 55 or over. Rather than being “road kill”, I think a fair percent will just take the “off ramp”.
Fly boy,
I agree with you regarding trial lawyers. They know caps work. They work just as you suggest. When you can no longer threaten the doctor with unlimited loss, the settlement value of silly cases drops below zero. Dubious cases settled for pennies on the dollar are the bread and butter of much of the plaintiff industry.
The trial bar also says they trust juries. What they actually mean is that they trust that juries will make them rich if an attractive plaintiff has a bad outcome, regardless of the quality of care.
Over the last 25 years the value of malpractice awards have gone up by a factor of 18, a clearly unsustainable rate of increase. Even trial lawyers realize that if you are going to pay a neurosurgeon like a plumber, you cant drag him into court every year or two, the way we do now. ( Remember, when you pay neurosurgeons like school principals, you are going to end up needing a LOT more of them. )
My guess is that the trial bar sees the writing on the wall. They will angle for “enterprise liabillity”. In this scheme, the diabetic with a leg ulcer amputation sues the ACO, not the doctor. They will say, we don’t know who screwed up but she has one foot and the organization has to pay. They will want a system where they don’t have to show exactly what was done wrong..just that there was a bad outcome.
For the lawyer, it preserves eye-popping contingency fees, which might be lost if we had a worker’s compensation system. The individual awards would have to be smaller, perhaps even on a schedule! gadzooks!, but they would be more numerous, and easier to prove. Since the blame would not attach to any doctor, the defense would be less vigorous. Also, by this point, the individual doctor will be pretty much replaced by a clinical flow sheet. Juries will have trouble holding the doctor responsible as it becomes more obvious that their authority is quite limited.
In the interim, expect a false offer of compromise. They will throw in a swiss cheese immunity if you follow the clinical ladder. The ladder will be impossible to actually follow, though. Newsflash: if the outcome is bad, the court will discover that the protocol wasn’t followed, after all.
Christopher,
I thought that I was cynical, but you have me beat. Can’t say you are wrong though.
“They will throw in a swiss cheese immunity if you follow the clinical ladder. The ladder will be impossible to actually follow, though. …. if the outcome is bad, the court will discover that the protocol wasn’t followed, after all.”
Everything you say has the ring of truth.
Maggie,
I read your Articles: Medical Malpractice: Fiction, Facts and the Future: Parts I and II. I thought it was a well written and interesting article.
Unfortunately, there were some major flaws in the data supporting it:
• Repeats the unproven assertion that “sorry works”. “Evidence base for effectiveness in reducing costs consists solely of programs’ self reports” – NEJM July 2, 2009
• Repeats the statement “one of every 100 hospital patients suffers negligent treatment, and that as many as 98,000 die each year as a result.” Actually “The original estimate—the 98,000 deaths—may have been way off. In fact, some of the researchers who conducted the original studies used in the IOM report re-evaluated their data in 2002 and reported that had they used a different calculation method, the number of estimated deaths would have been less than 10 percent of the original. Oops.” – Zachary Meisel, Slate June 2009
• Does not properly analyze the rate at which different specialties are sued which underlies the statistic: “1.1% of all doctors accounted for 30 percent of all malpractice payments”
• Cites a Harvard study in which some cases were reviewed by inexperienced, non board certified physicians.
• Claims that improvements in Anesthesia malpractice are related to anesthesiologists “policing themselves” and ignores data suggesting that much of the improvement in Anesthesia safety was a result of improved monitoring techniques: “These results demonstrate that a large number of anesthetic mishaps resulting in negative outcomes sufficiently serious to engender malpractice actions may be preventable by the proper use of pulse oximetry and capnometry.” – Anesthesia 1989
I have more than 20 years experience reviewing over 100 malpractice cases – a wealth of practical experience. I suspect you discount this experience because you believe that as a physician I am “biased” – and I certainly may be. Some of the above issues suggest that I may not be the only one with a bias.
I will tell you emphatically what you already know, malpractice is a very emotional “hot button” issue for doctors. One way that Obama could get a lot more doctors on board is by making significant reforms in this costly and burdensome system. You can see by Christopher Georges’ comments that I am not the only one questioning whether meaningful reform will be coming from a Democratic Senate and House.
The situation is now very difficult and many people do not really know what to do, but now we must get down to analyze each of us and see if we can get ahead, as everything depends on oneself, there are ups and downs but the important thing is that while there is life there is hope, a few days ago I read in findrxonline that antidepressants are the most common pills used in these cases but not many of them know the consequences…
All of this discussion of malpractice misses the main point.
We need to focus on one fact here: the evidence shows that the malpractice environment does not have a significant impact on medical costs in general and on over-utilization in particular.
States that have adopted malpractice reforms have not seen any improvement in utilization. In particular, Texas and California, two of the states with the longest history of malpractice reforms, continue to be among the highest in over-utilization. Atul Gawande points out that the malpractice environment in Texas is among the best in the country but has not impacted medical costs.
We doctors would all like to see malpractice reform because malpractice issues are very upsetting to us. However, to suggest that malpractice reform will fix over-utilization is clearly wrong.
Malpractice reform is an issue that is seperate from fixing the major things wrong with our health care system, and is too often used as a screen to avoid the real issues.
The situation with anesthesia and practice standards vs. improved monitoring is not an either/or question.
Anesthesia quickly adopted the new monitoring techniques BECAUSE of practice standards.
Adoption of pulse oximetry and captnometry moved very quickly and became uniform practice because it was adopted as a practice standard as soon as it was proven. The existence of the standards not only got doctors to employ the techniques very early, but motivated hospitals and other anesthesia settings to buy the equipment rather than defer purchase to later dates.
I have talked with anesthesiologists about these issues a lot, and they are uniform in their opinion that without the practice standards the new monitoring techniques would have taken a lot longer to be widely and uniformly implemented.
Good practice standards create good practice, protect patients, and save money.
Pat,
Expodential “malpractice” growth in awards is unsustainable. The vast majority of this money goes to lawyers, not patients.
The evidence shows that the VA here, the military hospitals and all of the enlighted European health systems do not have malpractice, and they are praised on this blog. So, malpractice is not necessary for a functioning medical system.
California has slower growth in premiums compared with non reformed states. Texas has only had reform for a short while. Doctors don’t trust the durablility of reform, and it will take a while for the effects to be felt.
This behavior lag is another good reason why malpractice reform should come first not last.
The idea that we will curb utilization without reform is silly. You can’t have evidence based medicine, and “Queen for a day” justice. Look at OB; fetal monitoring and biophysical profiles have been discredited scientifically for over a decade, but persist because of our money driven legal colleagues.
Doctors, usually so called “enlighted doctors” who believe that malpractice is unimportant tend to be non-practicing or from a field where little contribution to patient well being is achieved by their care, and little harm by their non-care, so malpractice truly isn’t an issue. We are never calling from the ER at 3am that we need a rheumatologist or an endocrinologist.
The first priority of reform should be utilization containment, then universal coverage. The order matters.
Chris– Good to hear from you.
Thanks much for Loeb’s Laws–especially no. 3 Or as Dr.Jerry Avorn puts it:
Don’t Just Do Something–Sit There! (and, I would add, Listen!)
This reminds me of Dr. Diane Meier talking about how “just sitting with a dying patient” can help. Though she adds, “it’s the hardest thing to do.”
Pat S.–
Thanks for your lucid comments. Yes, caps have not worked the way proponents hoped they would.
Christohper– A rise in insurance premiums does not mean a rise in awareds.
Malpractice premiums rise when insurers have bad luck with their investments, and as a result of the “insurance cycle”- essentially a business cycle tied to insurers’ attempts to project likely pay-outs.
On malpractice:
Christopher and Legacy
Let me just say a few things:
Best practice guidelines, based on comparative effectivenss reserach, and protection for doctors who follow those guidelines should protect them against suits for failing to diagnose, etc. (Though of course if you follow the guidelines, but operate on the wrong limb, fail to wash your hands, etc, you coudl still be sued.)
Protection for doctors who follow the full protocol for shared-decison making also makes sense. (The State of Washington has passed legilsation doing just that.)
Sorry you don’t believe “sorry works.”
Many hospitals disagree with you–as do many attoornies who represent hosptials.
Bloomberg ran a very good piece last week. The headline called malpractice a “red herring” in healthcare reform debate. (See long quotes from the piece below)
But first, let me suggest that if those physicians who love to talk about malpractice paid as much attention to medical errors–and the 100,000 patients who die each as a result of surgical complications–we would have a much, much stronger health care system.
When talking about our “broken” systen, I’m always impressed by the fact that the vast majority of physicians talk about what is happening to PATIENTS.
The minority of phsyciians talk about themselves.
A very, very small percentage of doctors are sued. (See my post on myths, facts and fiction regarding Malpractice.)
A much larger percentage of hospitalized patients fall victim to errors,
avoidable infections, medication mixups, and outright malpractice.
So I’m inclined to focus on those patients as a bigger problem in our system. .
And let’s try to keep the facts straight.
Christopher– Malpractice awards are rising faster in the U.K. and Canada than in the U.S. (For proof, see footnotes in my book–available for $2 or #3 used–a like new copy–on Amazon. )
Malpractice awards in the U.S. are NOT growing exponentially.
Here, from that hotbed of left-wing sentiment, Bloomberg about a week ago:
“The proportion of medical malpractice verdicts among the top jury awards in the U.S. has declined during the past 20 years according to data compiled by Bloomberg.”
Forom the NYT in 2004:”a study to be released today by the Center for Justice and Democracy, a consumer advocacy group in New York.” The study ” compiled from regulatory filings by insurers to state regulators, finds that net claims for medical malpractice paid by 15 leading insurance companies have remained flat over the past 5 years” (NYT)
More from the June 16 Bloomberg piece: “annual jury awards and legal settlements involving doctors amounts to “a drop in the bucket” in a country that spends $2.3 trillion annually on health care, said Amitabh Chandra, a Harvard University economist.
Chandra estimated the cost at $12 per person in the U.S., or about $3.6 billion, in a 2005 study. Insurer WellPoint Inc. said last month that liability wasn’t driving premiums.
Medical malpractice dollars are a red herring,” Chandra said in a telephone interview. “No serious economist thinks that saving money in med mal is the way to improve productivity in the system. There’s so many other sources of inefficiency.”
Obama, appealing for doctors’ support for health-care legislation, said he would “explore a range of ideas” to reduce the effect of lawsuits, without giving specifics. While he opposes caps on jury malpractice awards, Obama said he recognized the legal threat spurs doctors to perform unnecessary tests and procedures — so-called defensive medicine.
‘Fear of Lawsuits’
Making U.S. care more efficient will be harder “if doctors feel like they are constantly looking over their shoulder for fear of lawsuits,” the president said.
One possibility the Democratic administration has mentioned is shielding doctors from liability if they follow “best practice” guidelines developed by physicians’ groups, said J. James Rohack, incoming president of the 250,000-member AMA, in a news conference after the speech. Doctors were “thrilled” to hear Obama acknowledge the issue, even with the lack of specifics, said Nancy Nielsen, the outgoing president.
“What we heard we were very pleased with,” Nielsen said. “He is open to considering options that will lower the cost of defensive medicine.”
More from Bloomberg: “a March 2003 study by the U.S. Department of Health and Human Services that estimated the direct cost of medical malpractice was 2 percent of the nation’s health-care spending and said defensive medical practices accounted for 5 percent to 9 percent of the overall expense.
A 2004 report by the Congressional Budget Office also pegged medical malpractice costs at 2 percent of U.S. health spending and “even significant reductions” would do little to reduce the growth of health-care expenses.
“The development of new drugs and medical procedures, and their growth in price, has been a bigger factor in costs, said Chandra, citing his research and that of other economists. Studies haven’t found a link between increasing procedures, such as Caesarian-section births, and areas with rising malpractice damages, he said.
Medical malpractice is “not a major driver” of spending trends in recent years, Indianapolis-based WellPoint, the largest U.S. insurer by enrollment, said in May 27 report. The report cited advances in medical technology, increasing regulation and rising obesity as more significant reasons for rising costs.
Issue for Doctors
Malpractice is “a big issue for doctors but whether it’s a big issue for the American health-care system is another question,” Laszewski, the consultant, said in a telephone interview. “There are studies that indicate that medical malpractice reform would not have a huge impact on costs, but that is not what doctors think.”
Finally, for a fact-sheet describing how the Bush administration spread mis-information about malpractice, feeding unfounded fears, see
http://www.cmaj.ca/cgi/content/full/180/7/E4.
“More from Bloomberg: “a March 2003 study by the U.S. Department of Health and Human Services that estimated the direct cost of medical malpractice was 2 percent of the nation’s health-care spending and said defensive medical practices accounted for 5 percent to 9 percent of the overall expense.”
Maggie,
I think 5%-9% constitutes a significant factor in driving healthcare costs that’s worth addressing. While it’s not as significant as new medical technology, it at least equals and probably exceeds the private insurers’ entire administrative expense which I think you pegged at 5% of healthcare costs.
The concept of insulating doctors from lawsuits if they follow evidence based protocols makes sense on at least a couple of levels. First, it’s the right thing to do and is consistent with common sense. Second, if we can largely address the malpractice issue to doctors’ satisfaction through this approach and moving the cases to specialized health courts and away from juries, it will be easier for doctors to accept giving up some of their independence and autonomy and accept payers’ insistence that well established evidence based protocols be followed with reasonable exceptions allowed coupled with appropriate documentation.
It has been noted numerous times in the past that doctors’ decisions to admit patients to the hospital, prescribe drugs, order tests, refer to specialists and perform procedures themselves drive the vast majority of healthcare spending. If we are ever going to safely reduce healthcare utilization, we need their cooperation. Common sense malpractice reform should be a no brainer in this context and Democrats from the President on down should be prepared to take on their friends in the trial bar if necessary to make it happen.
There is a very interesting reading at this time. ¨The social transformation of the american medicine¨by Paul Starr. Reading the last two chapters is like describing the discussions taking place right now. 36 years later and this country is just again discussing the same facts: Excessive costs, way to many surgeries and hospital visits, M.D blocking reform.etc.
Put doctors on salaries with much more incentives for primary care,chronic disease manangement and palliative medicine care.
Strip away the huge obscene incomes derived by high tech specialists who benefit from doing more (often unnecessary) procedures,surgeries and other therapeutic excesses and/or harmful misadventures.
Dr. Rick Lippin
Southampton,Pa
Maggie – Thank you for responding to Rory on Politico. His blatant untruths were bothering me all afternoon.
Maggie, I think we are destined to talk past each other regarding malpractice litigation.
Of course malpractice premiums are a drop in the bucket compared to the US Healthcare bill. They are also a drop in the bucket compared to the GDP of China. They are NOT, however, a drop in the bucket compared to physician income. If you are an OB, it might be half of your income. And this expense is completely out of your control. It is just as out of your control if fluctuations are due to the (mythical) insurance cycle or due to awards. As has been pointed out, doctors are unable to raise prices.
Honestly, has there ever been an organization which has advanced the”insurance cycle ” theory that was not a shill for trial lawyers? Has anyone argued, by analogy, that car insurance is unrelated to payouts for accidents?
If I understand your argument correctly, those of us that advocate that a sustainable healthcare system with overhaul not only of the delivery, but also of malpractice litigation are venal, and those that argue expanding our already unaffordable federal healthcare system before rationalizing utilization are pursuing social justice, not national bankruptcy.
Do I have to remind you that insurance companies have no real interest in reining in expenses? They take their cut off the top. The bigger the gross, the larger their cut. They want to stay in business; but they don’t really want to reduce costs. How would Welpoint know the extent to which malpractice drives medical utilization? I don’t think anyone knows, so how would they know?
I can tell you what I do know. CT scans ordered by the ER to exclude pulmonary embolis have increased by a factor of about 100 in the last ten years in our hospitals. My belief is that this is almost entirely the result of defensive medicine.
I think the reason that physicians mention this topic is nobody else mentions it. As I have said before, I think it is the most important step to reducing needless, dangerous over-utilization. I don’t think malpractice reform is the whole answer.
Your position is that it has no role in over-utilization.
Let me give you an example, which I hope will illustrate why you can’t have one guideline standard written by the enlighted New Men and New Women and another legal standard written by retired postal workers with encouragement from persuasive plaintiff’s attorneys with a huge financial stake in the outcome.
Suppose an OB delivers a baby with CP. But she doesn’t overuse ultrasound, doesn’t use fetal monitoring, or perform a section … all overused, ineffective and discredited interventions. She follows the guidelines. But after parading the hopelessly crippled baby the jury awards the mother, $10 million. The doctor is now bankrupt.
Logically, the plaintiff’s cause of action should be against the guideline, not the doctor following it. If that were the case, it would be a lot easier for the guidelines to be embraced by clinicians.
Let the government pay for the mishaps which arise from fidelity to that guideline.
We need the same medical standard to apply prospectively and retrospectively if we really want to curb dangerous over utilization. What would the harm in that be?
Maggie,
“Lets try to keep the facts straight”
It is not the DIRECT costs of Malpractice that our country needs to be concerned about. It is the INDIRECT cost of Malpractice that should concern us.
The DIRECT costs of Malpractice are estimated to be about 2%. The INDIRECT costs are estimated to be about 5% to 10%. (Ref: Malpractice Lawsuits Are ‘Red Herring’ in Obama Plan – Alex Nussbaum – Bloomberg – 6.16.09) 5% to 10% of Health Care spending translates to roughly 100 Billion to 200 Billion per year. Not exactly “chump change” in my book.
My malpractice premiums run about 10% of my income. Although not insignificant, they are not a major driver of costs. But, if I throw a smattering of “recommend follow up MRI”, “recommend follow up CT”, and “Suggest Breast Biopsy” into my reports, I can easily “create” more in health care spending each day than I earn – by a wide margin.
“A very, very small percentage of doctors are sued.” YOUR STATEMENT IS FALSE. It is akin to saying that the risk of divorce is small by only considering the yearly divorce rate, rather than the divorce rate over the course of the marriage. The yearly rate at which a doctor is likely to be sued is small – approximately 1 to 2%. However, most doctors practice for many years and over the course of their career, an estimated 50 to 60% of doctors get sued. This is not a “very, very small percentage” but a majority.
I have seen the effects of being sued on patterns of practice within my own group. After a lawsuit, a physician typically becomes more cautious, less willing to make a decision and more likely to suggest follow up, further studies, etc. In essence, physicians who have been sued are more likely to practice “defensive medicine” – duh! And guess who pays for it?
As I said elsewhere, I do not oppose the idea of malpractice reform, and think the ideas cited in the recent NEJM article are a good place to start the discussion.
However, I do not believe that fear of malpractice is a very significant factor in health care costs and over-utilization. Evidence looking at regions that have had malpractice reform (and the “recent” reforms in Texas date from George Bush’s governorship) as well as evidence looking at variation in utilization statistics within the same cities and market areas strongly suggest that malpractice is not a big issue.
The example of CT angiography for pulmonary embolism diagnosis is a good example indeed. I believe that the main reason for the explosion in use is the perception — from training programs and scientific articles — that they are the standard of care, coupled with the easy and rapid availability of the procedure, the high acceptance by patients, and the perception that the scans are harmless. The general perception in the places where I have read thousands of the scans is “why not go ahead and order the test? It makes everybody happy.”
Pat and Christopher,
I am in a particularly good position to comment on the use of CT angiography for PE.
I work as a “Nighthawk” covering 7 hospitals at night. Most nights that I work, I read about 50 CTs of the Chest – that’s right 50. I find a positive about once every other night for a hit rate of about 1 in 100.
In my opinion CT angiography is grossly overused. Lots of radiation, lots of contrast, lots of money, very few positives. On the other hand, I can’t blame my colleagues in the ER for covering their asses – they need to. An ER doc can be right 100 times in a row about a patient NOT needing a CT angio, but the one time he is wrong and something serious happens he can kiss his a** goodbye (from the malpractice standpoint). And when he is on trial Maggie and the PhDs from Harvard who talk about over-utilization will NOT be sitting next to him.
I think we need to develop protocols/criteria to aid in ordering decisions and even more crucially, we need to PROTECT docs who follow these guidelines. But like Christopher George I have my doubts about the protective value of protocols when a serious injury or death occurs and the case goes before a jury.
Let me take a new tact here.
The Dartmouth Study speaks to the variance in practice cost and intensity between different practices and locations. It is clear that the high variance is not justified by result. We all agree about this.
The expenses for the high spending AND the low spending doctors are both rising expodenially. This is the trend driven by tort fear… ( amoung other things like advancing technology and new therapies…)
Statistically, I am concerned about the mean spending … the first momment.. the Dartmouth data and yourself seem stuck on the variance,.. the second momment. This is important, but much less important than the rapidly rising mean spending.
Put another way, we are still going to the poor house nationally if we eliminated the high variance, but were still left with exponentially growing costs.
Wasn’t it Sir Issac Newton who postulated that the great failing of the human mind was the inability to grasp the exponenial function?
Do we need to control growing costs in health care? Yes. I wrote a guest essay about that a while back. We need to drive down the cost of health care to protect health care in the US. If we don’t it will go away, since if something is impossible it will cease.
Does the Dartmouth data and the issue of regional and institutional cost and use variation have a role in this discussion? Yes. The importance of the issue of regional and institutional variation is that it suggests where we can begin looking for answers to the problem of cost and overuse.
Are adoption of rational practice standards the best hope for controlling costs? Yes again, and I have discussed that hundreds of times here.
Could national practice standards help malpractice? Yes again, especially if backed by legal regulations preventing suit if the standards are actually followed — in reality, not just lip service.
Does variation in malpractice costs or in the rate of malpractice suits, or in the presence of malpractice reforms, account for any of the variation in over-utilization? No, since variation in overuse does not correlate at all with variation in malpractice climate.
Doesn’t this suggest that malpractice is not a key factor in overuse? Clearly yes. If it were, overuse and negative malpractice climates should and would go hand in hand.
Have we strayed far from the topic at hand, which is what the role of doctors in health care reform should and will be? Oh yes. Since malpractice is not central to the issues of costs, appropriate practice, performance of US health care, or any other important issue, discussion of malpractice is a sideshow.
Should we have malpractice reform? Yes. But we do need to make the reform a true reform, one that benefits patients as well as doctors and hospitals, and especially one that protects the rights of patients with legitimate complaints to seek redress. The recent NEJM article discusses how that might work, as well as issues related to possible solutions.
Pat S,
What do you say to Bloomberg who estimates that the INDIRECT cost of malpractice is 5 to 10% (100 to 200 Billion).
Are they smoking weed?
I would say “watch the donut, not the hole.”
I would say that malpractice reform would help keep costs down. I would also say that that number puts it in the same range as the added costs of administration due to private insurance or the potential savings from government negotiation for drug costs, and far far below the costs of overutilization as a whole. I would also say that that is an estimate with only minimal actual evidence behind it, since no one has access to any real data on the question, only to hypotheticals.
I am not arguing that malpractice reforms are not a good idea. I am arguing that they are not anywhere near central to the issue of health care reform, and that we should be paying less attention to that and more attention to the much more important issues at stake.
Pat S.
I couldn’t agree more. It’s not that malpractice reforms are not a good idea, but malpractice reforms are not anywhere near central to the issue of health care reform. We need to be paying less attention to the “malpractice” and more attention to the “health care” reform. Malpractice reform is a true red herring in the health care reform debate. I’ve notice a number of conservative media outlets and people trying to bring malpractice reform into the debate, as a central issue.
If you want something you have to give up something. Reformers want good press if something is passed where the rubber meets the road (the exam room). They want doctors on the same side as comparative effectiveness and partnering with the government in the PR rollout. You have to have malpractice reform, otherwise physicians will simply not carry your water for you. PR is not their job. They will order the same tests and do the same procedures and when patients are told no, they know where to place the crosshairs. Doctors will tell patients the “government” won’t pay for X, because they think you are not worth saving. Health reformers can’t handle that PR. It’s as simple give to get, make a deal.
Legacy & Christopher
(I’ll be back to respond to other comments)
Legacy– You ask what do I say to Bloomberg’s estimate that defensive medicine (due to fear of malpractice) may equal 5% to 10% of healthcare spending?
First–there is no way to separate fear of lawsuits from the many other motives that lead to a doctor to order a test or a procedure –that’s why the estimate is so rough (5% to 10% –they can’t fine-tune it.)
And secondly –fear of malpractice doesn’t just lead to overtreatment. That fear also leads doctors to take the time to do the right thing.
In other words, not all of that 5% to 10% is waste.
Fear of being sued for malpractice
also causes a tried doctor (or resident) to stop, and listen–rather than just brush off a complaint from a querulous patient.
Christopher–
No, Dartmouth is not “stuck” on the idea of geographic variation.
As usual, they are way ahead of you. (These are very smart guys who have been doing this reserach for more than 20 years. There is not much that you or I might think of that they haven’t already considered.)
They understand that Growth in spending is the problem.
But it turns out that healthcare spending is GROWING AT A MUCH FASTER RATE IN THE HIGH-SPENDING AREAS.
From a Feb 2009 Issue Brief from Dartmouth: “Spending growth
varies dramatically
Between 1992 and 2006 Medicare
spending, adjusted for general price
inflation, rose 3.5% annually. But
there was considerable variation
among regions (Map 1). Per capita
inflation-adjusted spending in Miami
grew at 5.0% annually, compared
to just 2.3% in Salem, Oregon, and
2.4% in San Francisco.”
You’ll find detailed tables showing that health care spending is growing much faster in the most expensive regions here http://www.rwjf.org/files/research/policyimplications022009.pdf
My position is that the central issue is cost containment, and utilization containment. Most of you see universal coverage as the central issue. It appears that all the lawyers and at least some of the doctors believe that malpractice reform is trivial.
Anyone with even the slightest concern for patients can see that nearly all the money in malpractice premiums goes to lawyers. In our state, that is about 70%.
Malpractice reform, like O-rings of a space shuttle, is an unimportant part of reform.
Without it, the standard of care is a legal entity not a medical one. Without a medical standard of care, cost containment is impossible.
It takes no thought to order another CT scan or follow up visit.
( Especially, if everyone around you is doing the same thing… as in a high cost city or practice.)
Maggie, I think you have it exactly backwards. It can’t possibly be true that defensive medicine provides good value for the healthcare dollar. (That bit of twisted logic is right out the trial lawyer playbook.) Think of it like screening. An un- indicated test is like doing an MR of the breast on an average risk patient. Not a good idea. Every defensive study we do or defensive procedure we perform is one actually indicated study we can’t do with the same healthcare dollar.
That’s without considering the risk and delay the procedure might entail. Then all the incidental findings from the test have to be followed up… at additional expense, for little benefit.
What takes thinking is deciding what actually IS indicated, rather than use a shotgun approach to build your defense, should you end up in court.
BTW: If the low spending tranche and the high spending tranche are on similar trajectories, but at different rates, OF COURSE the upper trance has to be growing at a faster rate. (vida infra) if you don’t believe me…Ask any high school mathematics teacher.
Flying Circus: Note that the highest healthcare inflation is Miami, the locus of the most ferocious malpractice bar.
Esteban, Barry, Isher, Pat S. ,Jenga, Christopher
Esteban–
Paul Starr’s book inspired me to write my book. His book i brilliant-I just picked up where he left off in 1982.
And yes, everyone interested in the debate on reform should re-read the final two chapters of Starr’s book today.
Barry– AS I have said in the past (and much, much more importantly, as the president has said) we do
need malpratice reform.
The way we deal with malpractice today is needlessly painful and expensive for everyone involved.
That said, we know (from experience) that caps on awards don’t work.
So we need to experiment with other solutions-and see which ones work. I believe that this administration will do just that.
In the meantime, you are abosutely right, the cost of “defensive medicine”,
like insurers’ administrative costs, are not the major cause of healthcare inflation.
Moreover, I would point out that “defensive medicine” (motivated by fear of malpractice) is not all waste.
Sometimes that fear causes doctors to be a little more careful about patient safety–and nudges them to do the right thing even when tired and rushed.
Some years ago, I fell and broke my arm. I was sub-letting an apt. in Manhattan for the summer, didn’t have a doctor here, and so wound up in an ER.
The doctor who put a cast on my arm was pretty young.
A week or two later, the arm really hurt–the cast seemed too tight. It was just digging into my arm.
So I want back to the hospital where the cast had been put on, and asked to see a doctor. After a few hours, a physician finally saw me.
I explained that the cast seemed way too tight–and was hurting my arm.
He shot me a “are you a doctor?” look.
As you know, I’m outspoken, so I said, “Look, I would hate to wind up in a lawsuit. . . but I’m pretty sure that there is a problem. And if you ignore me . . ” ( said this in a pretty calm way. I have no interest in ever suing anyone. I agree with Justice Brandeis: “there are two things to fear in life– death and litigation.”
So he opened up the cast.
My arm was clearly infected. The cast had broken the surface of the skin.
The doctor was very nice, very apologetic, treated the arm, gave me antibiotics, re-did the cast–and I was fine.
It really wasn’t his fault. He didn’t put on the original cast. It’s probably pretty rare for a cast to cause a problem like this. And broken arms do ache; he has reason to think that I was whining.
(Moreover the person who put on the cast probably wasn’t negligent–just inexperienced. Residents have to learn on someone.)
But that threat of malpracticed did cause this doctor to take me seriously and do the right thing.
So if fear of malpractice adds 5% to health care spending, my guess is that half of that extra spending might be warranted. (I admit, this is a wild guess. But I’m quite certain that the general idea is true.)
Isher–
Thanks very much. His
“blantant untruths” were bothering me too. So, even though I really didn’t have the time, I replied on Politico yesterday and decided to cross-post it on HealthBeat.
Pat S.
You write:
“I would also say that that the estimate [of the cost of defensive medicne is an estimate[ with only minimal actual evidence behind it, since no one has access to any real data on the question, only to hypotheticals.
I am not arguing that malpractice reforms are not a good idea. I am arguing that they are not anywhere near central to the issue of health care reform, and that we should be paying less attention to that and more attention to the much more important issues at stake.”
Thanks– I agree completely.
Jenga–
You write “You have to have malpractice reform . . ”
If, by “malpractice reform” you mean caps on awards–that’s not going to happen.
Let me put it this way: Barack Obama was elected president.
You weren’t.I’m sorry to be so blunt–but this is the simple truth.
Christopher–
This post was not about malpractice suits.
It is, quite frankly, tedious when one or two people take over a thread going on and on about their personal grieveance/obsessions.
In a recent comment on this thread you wrote:
“My position is that the central issue is cost containment, and utilization containment. Most of you see universal coverage as the central issue. ”
This tells me that you don’t bother to read other readers’ comments–though you expect them to read yours.
Very few people who comment on this blog believe that universal coverage is the central issue. The vast majority realize that we can’t have univereal coverage without cost control.
Simple truth Obama’s not a doctor either, but he’s pretty good at telling us about our job. All I’m saying is he has a potentially huge PR problem coming that he could head off. In one swoop he would have 95% of physicians happily embracing comparative effectiveness if he encouraged safeharbor for guidelines. Encouraging caps might win him the entire community whatever is passed. We are where the rubber meets the road. He’s not entitled to free PR in my office. Again all he has to do is make a deal, if he wants this to last long after he’s out of office or get it passed and working properly in the first place. My way or the highway is a good way to get your policies reversed in short order.
Obama is already on record as favoring the idea of safe harbor for guidelines.
It is his opponents who have opposed any talk of guidelines.
The link:
http://www.nytimes.com/2009/06/15/health/policy/15health.html
Also, doctors need to be careful about their own PR position. If doctors are too aggressive at opposing reforms, it will be all too easy to portray them as motivated by greed rather than by real health care concerns. We are already walking a tightrope on that issue as it stands.
Jenga, Pat S.
jenga– you weren’t elected president. (Luckily for the rest of us.)
Obama was.
While most patients like and trust their own doctor they are much more skeptical and cynical about doctors in general than they used to be.
They are not skeptical and cynical about President Obama.
So I don’t think he has to (or would) do anything simply to capture the physician vote.
Your language: “all he has to do is make a deal” suggests that you would like to see someone in the White House who is willing to take bribes from the AMA. That’s not how this president operates.
And he is not going to support caps on awards because a) they don’t work and b) it would be wrong.
As he said in his AMA speech, innocent “patients would be hurt.”
Guidelines could provide some safe harbor, but guideines cannot cover all cases or all variables.
Pat S.- Yes, I do think that the part of the physician community that opposes refroms and focuses primarily on its own financial interests does have a PR problem.
A great people were turned off by the AMA’s stance on the public-sector option.
And the booing was unacceptable. (You just don’t boo The President of the United States unless it is doing something that would be grounds for impeachment. Lying to you about a war, for example.
(And even then, booing seems adolescent. A march, with placards spelling out the issue would be much more acceptable.)
If a president tells an interest group that is not going to give them what they want does not justify booing.
I hear more and more people complaining about even their own doctors’ obvious greed. “Everytime I walk into his office, I can hear the cash register . . .”
And people want to trust their doctor. But some physicians are making it very hard– and in the process, they are hurting the entire profession.
Physicians should want to follow evidenced based medicine, just as the airlines follow protocols that keep the number of aviation accidents to a minimum. The UK is a good example of the buy in between payor and provider about adhering to guidelines (National Institute for Clinical Excellence – NICE) that America should follow.
Philip–
I totaly agree. You might want to read one or two past posts that I have written about NICE.(
HealthBeat’s search engine doesn’t always work well. But if you GOOGLE my name, NICE, UK and go up to “Other” (top of screen) and scroll down to Blogs,
you’ll find it.)
Maggie,
You say: “While most patients like and trust their own doctor they are much more skeptical and cynical about doctors in general than they used to be. They are not skeptical and cynical about President Obama. So I don’t think he has to (or would) do anything simply to capture the physician vote.”
At THIS POINT in his presidency you are correct. He can probably ram something through without the support of physicians. What happens over the long term is more difficult to predict. As the nation’s focus turns to other areas – energy policy, Iran, gay marriage, etc. – and Obama has to use up his political capital in other areas, having the support of physicians could be helpful to him.
You say: “Your language: ‘all he has to do is make a deal’ suggests that you would like to see someone in the White House who is willing to take bribes from the AMA. That’s not how this president operates. And he is not going to support caps on awards because a) they don’t work and b) it would be wrong.”
The Democratic party has already “made a deal” and taken its “bribes” from the lawyers. (Lawyers were #1 contributor during 2004 election cycle and #2 during 2008 – OpenSecrets.org) For a little balance, why don’t you publish how much money individual Democrats have taken from lawyers, like you did for Insurance Companies? (and this doesn’t even cover how many of them ARE plaintiff’s attorneys) Of course Obama is not going to support caps even if they do work (and they probably do).
You say: “Guidelines could provide some safe harbor, but guidelines cannot cover all cases or all variables.”
This is exactly what Christopher George and I are suspicious of – “swiss cheese guidelines” that won’t hold up in Court. Physicians are very familiar with this having dealt with it from HMOs – pressure to get the patient out of the hospital as quickly as possible and restrict/deny treatment – yet complete lack of accountability from HMOs – “That was your medical decision – we’re not responsible for it in any way.”