Below, an excellent Op-ed by Kevin M.D. in “U.S.A Today.” It looks at malpractice from the patient’s perspective. Read the whole piece—the final section explores what we might learn from other countries. Before commenting, be sure to take a look at the NEJM article (see link below).
Any malpractice reforms should put patients first
By Kevin Pho
Whenever the issue of medical malpractice comes up, my fellow physicians and I agree that changes are necessary. Where we disagree is on how to fix the problem. So we all took note when President Obama acknowledged that medical malpractice reform must be considered. In fact, he proposed pilot projects to study how to improve patient safety and change the way we compensate injured patients.
Reforming medical liability has historically been a source of major contention. Many physicians argue that the system is expensive, promotes multimillion-dollar awards disproportionate to the injuries and encourages "defensive medicine." Lawyers say suing doctors is the only way patients harmed by medical errors can seek financial redress. They dismiss the notion that malpractice costs and defensive medicine contribute substantially to health care spending.
This argument overlooks the fact that the liability system often does injured patients a disservice. A 2006 study from The New England Journal of Medicine should give health care reformers something to think about.
Lengthy battles
Researchers found that the impact of frivolous lawsuits was limited. More concerning was that in one in six cases, patients injured from errors received no payment. Patients who did receive compensation waited an average of five years before their case was decided, with one-third of claims requiring six years or more to resolve. To make matters worse, 54 cents of every dollar that injured patients received were then used to pay legal and administrative fees. These costs do not justify this level of inefficiency.
Furthermore, medical malpractice cases do little to promote patient safety. Although medical errors account for close to 100,000 patient deaths annually, according to the Institute of Medicine, the majority are caused by failed systems or procedures — not physician negligence. Doctors and hospitals ideally should learn from mistakes in order to improve patient care, but that's difficult to do when liability cases are resolved in an adversarial manner.
Problem with caps . . .
To read the rest of the Op-ed click here.
We hear ad nausem about how our healthcare system is broken. Well our malpractice system is in even worse shape, when you consider how it affects its participants. Trial attorneys and their lobbying targets are the only ones that benefit consistently from the current system. The central and most important participants, doctors and patients, do not. I know you are a fan of teamwork Maggie. It simply cannot be done if we maintain the current adversarial doctor patient relation ship no matter what reforms are enacted. And no, just telling physicians to enact “sorry works” is not going to cut it.
Agree with Jenga. And, unless you drastically cut the admin and legal fees, which will deter the likes of John Edwards, nothing will change.
As a physician whose practice was ruined by a malpractice attorney, it sure is tempting to cheer loudly in response to the effect of malpractice award caps in Texas. Malpractice reform is absolutely necessary; however, caps on awards are probably not a good idea. As KevinMD rightly remarks in his essay, caps can make it difficult for a plaintiff to find an attorney willing to take a case. A far better approach would be judicial courts rather than jury trials; the experienced judge would be much more capable of determining a fair award than a jury. The no-fault system is also an appealing option. Either of these options would presumeably minimize the fabulous exaggerations, distortions, and downright lies for which plaintiffs’ jurymeisters are rightly derided.
Thanks drburr47
I support the concept of judicial courts too. But the well trained judges must be at least three in mumber for each case.
Dr. Rick Lippin
Southampton,Pa
Stop trying to mislead people with FEAR TACTICS.
There is no such thing as a FRIVOLOUS MALPRACTICE SUIT in the State of CA. In order to even get an attorney to represent you, you must have records which upon review SHOW that some harm was done and that there was either negligence and/or malpractice.
You must have the sworn testimony of a MEDICAL EXPERT as to the validity of a complaint before a case can go to trial.
Most patients can’t even get complete & accurate copies of their records before the statue of limitations runs out to secure an attorney! When I did get my records, they were written BY OMISSION leaving out anything that would reflect badly on the doctor or hospital – never mind it was the truth of what happened. IT JUST DISSAPPEARED! I have tried for over 3years to get copies of the voluminous photo records taken of my injury during my lengthy hospital stay. According to the hospital – they have no photo records. (Ironic that I still have the Polaroid outtakes given to me by the nurse who took most of the photos. What happen to the ones at the hospital?)
EVERYONE…the hospital, the doctors, the nurses, the lawyers, the drug stores, etc – has made money off of my life threatening medical nightmare! THE ONLY ONE LEFT HOLDING THE COLOSTOMY BAG IS ME!!
Insurance rates are high because of CORPORATE GREED AND NOTHING ELSE! Don’t you dare try to blame patients who are just trying to get back to a normal state of life, bills covered and health coverage to continue healing treatment for the mess our healthcare system is in.
http://www.usatoday.com/news/health/2008-04-29-medical-records_N.htm
Today’s medical professional liability system is too adversarial and too expensive. There are alternatives. More at http://www.healthcaretownhall.com
If Congress would enact limits on the legal rights of patients, the biggest winner will be the property and casualty insurance industry, which has already seen its profits go up astronomically. The losers will be innocent victims with devastating injuries due to medical negligence.
Insurers have refused to lower malpractice insurance premiums even after caps and other tort reforms have been enacted. States that have enacted legal restrictions have seen their insurance rates continue to shoot up, even after passing severe liability limits (e.g., Florida, Nevada, Ohio, Missouri and Texas).
Legislation to place limits on medical malpractice liability hurts patients by restricting their rights to hold physicians, hospitals, insurance companies, HMOs, and drug and medical device manufacturers accountable for injuries or death resulting from negligent care.
As for the claim of ever-climbing jury awards, studies of verdicts are skewed by what study sponsors leave in or leave out. The Medical Associations looked only at reported jury verdicts. The Trial Lawyers tracked all verdicts, including non-jury verdicts, through appeals, settlements and court-ordered reductions.
Why is tort reform even on the national agenda yet, at a time when insurance industry profits are booming, tort filings are declining, only 2 percent of injured people sue for compensation, punitive damages are rarely awarded, liability insurance costs for businesses are minuscule, medical malpractice insurance and claims are both less than 1 percent of all health care costs in America, and premium-gouging underwriting practices of the insurance industry have been widely exposed?
Limits on the rights of people hurt by medical malpractice will further victimize them and their families, and it will help neither patients nor doctors. The real beneficiaries will be insurance companies.
And who are the insurance companies? According to the Physician Insurers Association of America, a trade group of about 50 doctor-owned malpractice insurers, they cover about 60% of U.S. doctors in private practice and hospitals.
Solving the so-called medical malpractice crisis will involve a three-legged stool of legal reforms (not tort reform), insurance reforms and reduction of medical errors.
Homework Greg, how about you read the actual article and address Kevin’s points.
Instead of boring us with the standard trial attorney talking points.
I have read the description related to the Malpractice.I am oppose to malpractice visions.From this information, I come to know that Reforming medical liability has historically been a source of major contention. Many physicians argue that the system is expensive, promotes multimillion-dollar awards disproportionate to the injuries and encourages “defensive medicine.”
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How do those who defend the current medical malpractice system address the following facts? The current system broadly targets the medical profession, rather than narrowly target negligenct doctors. Most patients who are victims of true negligences are not captured by the system. Tens of billions of dollars are wasted on defensive medicine, a fact that has been belatedly concede by the Congressional Budget Office recently. Defensive medicine, not only burns up money, but it exposes patients to unnecessary risks. Does this sound like a system that is sound and functioning well. The tort system needs reform more than the health care system does. Just because tort reform benefits the insurance industry, doesn’t mean it’s a bad idea. See current posting at http://www.MDWhistleblower.blogspot.com
If you are hurt by some doctor or hospital, it should not matter whether they were well-intentioned and did not mean to hurt you. You should still be compensated. Your recovery of damages should not be limited by some arbitrary amount based on the argument that a high award would raise their insurance premium.
The right to a trial by jury is one that is guaranteed by the Seventh Amendment to our Constitution. The jury is the ultimate finder of the facts in any dispute before the courts. A group of people not beholden to anyone, not the doctors, not the hospitals, and especially not to you Jenga.
Medical malpractice reform isn’t about fixing a broken medical or justice system. It’s about protecting the public image and bottom lines of the biggest and most powerful companies in the world.
Medical malpractice reform isn’t about protecting doctors from high insurance rates, it’s about protecting their insurers from having to pay large judgements.
Medical malpractice reform isn’t about keeping greedy lawyers from filing so-called frivolous lawsuits, it’s about keeping those who are severely injured out of the court system and away from the public eye.
You failed to quote a single statistic on on how patients benefit from the current system, because they don’t. That is the entire premise of the article which you failed to comprehend. Malpractice reform could be about getting patients compensated. If it’s such a great system why do attorneys benefit more than anyone else, to the tune of 54 cents of every dollar. If you are truly for victims getting what they deserve you would be for a 20% cap on attorney fees similar to the VA system.
This tension between Gregory D. Pawelski and Michael Kirsch, M.D. about the current medical malpractice system-nonsystem is truly a major conundrum! We need a system that provides justice by (1) compensating families and patients that are injured by malpractice, and (2) a system that keeps providers informed of what they can and cannot do without repercussions. However, is the current system, where “experts” who are paid to testify and lawyers who keep much of any awards, the best way to get the justice that we seek??
Surely there have been some unreasonable rewards while at the same time the initial inertia to get a case to court has surely kept many truly injured patients from getting any justice. The latter hurts all of us in our ability to get good care. I personally am against arbitrary limits on awards, which seems unjust and a copout of/at the highest level. However, I would not be against changes in how easily cases are brought in for review, nor in the expert determination process which seems to be the basis of the final decisions.
I see the malpractice issue as entailing related elements of cost, fairness, and efficient resolution. The CBO has estimated that proposed tort reforms would do very little to reduce healthcare costs, factoring in the effects of both malpractice insurance and “defensive medicine”:
http://cboblog.cbo.gov/?p=389
This coincides with my own experience in the medical world, in which practice patterns are dictated mainly by standards prevailing in the community, with very little heed to concerns about legal liability. Of dozens of physician colleagues over the years, I have known none who claimed to base his or her decisions on the fear of litigation (although more than a few have claimed that others do just that). Ultimately, if reform legislation eventually leads to evidence-based guidelines through comparative effectiveness research, the legal hazards will be further reduced through judicious use of the guidelines in decision making, although the threat of lawsuits is unlikely to disappear completely.
On the other hand, it’s undoubtedly true that many patients who are injured are inadequately recompensed. Here, it seems that potential solutions may involve a number of different approaches. I doubt that jury trials as a fall back position can ever be prohibited without a constitutional amendment, but a need for them can be reduced by a number of measures. First, any healthcare reform that guarantees all Americans adequate and affordable healthcare will reduce the financial pressure to sue. I expect that this plays at least a minor role in the lower incidence of lawsuits in European healthcare systems. Perhaps more important is the no-fault concept, which would provide adequate relief without requiring the effort and legal expenses to prove that someone else is to blame. To some extent, the Workman’s Compensation program, despite some abuses, might serve as a model. In an ideal world, no-fault would extend beyond harm resulting from interactions with the healthcare system. One could ask, “why should someone whose illness is iatrogenic be more entitled to adequate medical and financial support than someone whose illness is nature’s fault?” Implementing this principle, however, would require a radical rethinking of the nature of shared obligations in a society as individualistically minded as ours, but a healthcare system committed to providing adequate care for everyone would be a step in this direction.
Finally, preemptive approaches to no-fault can apparently be fruitful. Some hospitals in the private sector, as well as VA healthcare have begun to explore the concept. The basic notion is that if something bad happens to a patient as a result of medical attention or inattention, the healthcare providers involved – physicians, nurses, etc. – are committed to reporting it with the knowledge that they will not be blamed, at least within the institution. This is clearly a tricky situation, because it does not entirely obviate the need to address legal liability nor the need to weed out truly negligent providers, but it apparently has been useful in making physician-patient interactions less adversarial in the face of bad outcomes. It further facilitates the identification of activities prone to error, thereby permitting them to be corrected. Within the VA, it has been used to identify not merely errors resulting in bad outcomes, but also “near misses” – e.g., the medication error that did no harm but might have – and so even further enhances the prospects for error avoidance. My knowledge of these approaches is second hand, and perhaps there are others with more direct experience who can provide additional details.
The Op-Ed suggestion of fair and timely compensation of the injured party, along with appropriate quality care guidelines for medical providers, would be better for the patient. Having been treated fairly, the injured party would also be unlikely to file a lawsuit, even though he would retain that right via the 7th Amendment, as Gregory Pawelski points out. Amending that would probably be as difficult as changing the 2nd Amendment or the constitutional provision for the Electoral College.
Jenga, Henry, Dr. Burr 47, Dr. Rick, Injured Patient, Jeremy, Gregory, Michael, Gregory, Jenga, NG, Fred, Richard
Jenga– This Op-ed points out that malpractice suits are settled more easily, and less expensively in countires that have special health courts (rather than lay juries). I would add that the rate of medical errors is also lower in other developed countries—which makes malpractice suits less of a problem.
Finally, we have good empirical evidence that “sorry works”—though of course the doctors and hospital administrators involved need to be people who know how to say “I’m sorry.”
Henry—
We already know that capping malpractice awards (thus capping attorney’s fees ) doesn’t help.(See op-ed) Did you read the Op-ed, or are you just repeating what you thought before logging into the blog?
Dr. Burr 47—
Thanks much for your comment. It is interesting that someone who has every reason to be bitter about our malpractice system is able to step back, recognize that the knee-jerk response (cap awards) is not the answer, and to recognize the merit of more rational solutions. I agree that special judicial courts—without involving lay juries– could be a very good solution. I also like no-fault—but how then do we weed out the small percentage of docs who truly are bad actors? Unfortunately, the medical profession has not been very good about policing its own . . .
Most of all, I agree that we need to take the drama and theatre out of malpractice suits. It’s too easy to play on the emotions of lay juries.
Dr. Rick–
The idea of three well-trained judges for each case makes sense. It would be too easy for one-judge courts to wind up being either “pro-plaintiff” or “pro defendant” courts depending on the background and temperament of the judge.
Three judges might sound expensive, but trials could be much, much shorter. Lawyers wouldn’t have to spend a huge amount of time trying to explain medical terms and procedures. (The judges would have read the briefs)
They wouldn’t have to give long dramatic speeches aimed at stirring emotions. (Judges wouldn’t’ appreciate them.) Presumably three well-trained judges could deliberate and decide faster than a lay jury.
Injured patient—
It can be hard for a patient to bring a malpractice suit. That’s one reason to like a no-fault system that would guarantee much more transparency. Hospitals would make your records available. Doctors and nurses would be allowed to explain what happened.
At the same time, we can’t say that “corporate greed” is the sole cause of high health care costs. All of us are implicated—patients and doctors as well as drug-makers, device-makers, insurers and inefficient hospitals that spend money on equipment and amenities that they hope will grow revenues—rather than investing the money in keeping patients safe.
Finally, oftentimes, while patients have a legitimate grievance (something went wrong that shouldn’t have), often, as Kevin MD points out, the problem is a systemic problem rather than something that an individual did wrong. But too many patients are caught up in “blaming someone” –and so go to court hoping for a huge award—rather than settling for fair compensation that acknowledges their economic losses as well as pain and suffering. (I do think awards should make reparation for emotional pain and suffering. Even if no individual is “responsible,” the system failed the patient, and the emotional consequences of being hurt by medical care can be devastating.
Jeremy—Exactly: the system is too adversarial (too much anger) and too expensive. I writing in the car night now, so can’t go to the link you suggest, but will look at it later.
Gregory—Actually, malpractice insurance rates came down in Texas after tort reform. But the amount of overtreatment (due in part to defensive medicine) didn’t change. So while some doctors saved money on their insurance, the system as a whole didn’t save money.
At some points in your comment you seem to be conflating health insurers (who “underwrite”) with malpractice insurers.
Also, the malpractice insurance industry is, like most insurance industries, cyclical. They go through periods where profits are small, then they raise premiums and profits grow. Then, the cycle turns, and once again, they’re scraping for profits. The insurers really are not the heart of the problem.
You ask: why are we talking about tort reform when only a small percentage of insured patients sue, and most of those do not receive a large financial award or settlement? A good question, but I think there is a good answer.
Physicians fear being sued—even if they win. Being dragged through litigation is one of life’s worst experiences. It is time-consuming and it creates great anxiesty. The attorney on the other side is doing everything possible to make you look bad (in depositions, even before you go to trial). You never know what a jury will do. If your insurance company or hospital decides to settle, your professional reputation may be damaged—even if you did nothing wrong.
This is why we need to find a fairer, more rational, less expensive way to address malpractice. I agree that this includes working to reduce medical errors as well as legal changes. And caps on awards that make it difficult for a patient to sue are not the answer. As I’ve indicated in comments above, I prefer judicial courts (well-trained judges and nor juries), or no-fault solutions which involve the hospital and doctors involved openly explaining what happened, while saying “I’m sorry.”
But even in those cases, I think patients should be compensated, not just for economic losses, but for emotional pain and suffering.
Michael—
Rather than responding to the op-ed, you seem to be simply repeating a pre-conceived set of ideas that you had before you logged on. Did you actually read the op-ed, or are you just using HealthBeat as a platform to express your ideas? HealthBeat is designed for people interested in hearing new arguments, new information, and then thinking about them and responding. It’s fine if you disagree—with facts and argument, not just opinion—but it’s not fine to just ignore the post.
Gregory—
I agree that our health care system would like to keep injured patients out of the public eye. (Some hospitals, in particular, seem to be in denial about how many patients are harmed.
And I agree that patients deserve compensation whether or not the harm was intentional.
But the right to trial by a jury of our peers was an idea conceived in a time when the amount of technical knowledge that a jury might need to have was tiny. There just wasn’t that much technical information out there. Back then, no one could have suspected how much a juror would need to understand in order to begin to comprehend what went wrong during a complicated surgery (or even during what should have been a normal delivery.
For that reason, juries tend to make decisions based on which lawyer they like or trust, how badly they feel for the victim (if a child or a baby is involved the jury’s sympathy is almost always with the child or parents). These cases really need to be decided by who people who possess enough medical expertise to fully understand the details of the case.
One could argue that trial by a jury of one’s peers means that the accused (the physician or hospital) has a right to a jury made up of doctors or hospital CEOs. (Usually jury of one’s peers applies to the accused, not the accuser).
I don’t think a jury of physicians would make sense either—but I do think that well-trained judges with medical background, and perhaps experience defending hospitals and well as bringing malpractice suits for victims would be ideal. Perhpas judges who have never been involved in malpractice suits would be even better, if we could find judges with medical training (went to med school, background as a medical researcher developing drugs , etc. )
Jenga—Plaintiffs wind up with less than half of the award because the cost of long, complicated malpractice trials involving expert witnesses, and months of preparation are so high.
There are always limits when you are trying to sue the government )and the VA is part of the government. Those limits never apply in the private sector.
Finally, you seem overly concerned with how much trial attorneys might make. It’s never a good idea to look into someone else’s pocket. Granted trial lawyers can earn large amounts, but that’s because the work involves taking large risks. (A trial attorney can spend months on a righteous case—and make nothing. This has happened to any number of attorneys who decided to take on the tobacco industry and bring suits representing smokers who began smoking before the cigarette companies warned of the danger of smoking. During that period, tobacco companies actively worked to cover up the dangers of smoking.
Keep in mind that “trial attorneys” or “plaintiff’s bar” refers, not just to lawyers who bring malpractice suits, but lawyers who sue auto companies who know that there is a defect in the car (in a rear-end collision is likely to burst into flames) and keeping on making the car, after doing a “cost –benefit analysis”
which tells them that compensating the relatives of those who die in those fiery accidents would cost less than admitting the problem and issuing a recall. Then there are the companies that make toys that are dangerous to small children—and don’t label them properly. Or companpies that pay off food inspectors so that they can bring tainted food to market. Or contractors who pay off building inspectors while erecting unsafe buildings.
I could go on.
Conservatives don’t like “trial attorneys” because they don’t like anyone who might represent a consumer in a suit against a business. Conservatives tend to view these suits as interference in the free market.
NG—Yes, solving the problem won’t be easy—and probably won’t completely satisfy conflicting interests. But I agree that arbitrary limits on awards are a cop-out at the highest level.
Fred—Thanks for a very thoughtful comment. I agree that, the more I read and learn, the more it seems that overtreatment is, to a large degree, a function of prevailing standards in the community. IN other words the “medical culture” determining much of what doctors do. (I also think that “excess capcity’–more hospital beds and specialist than the community actually needs is a function of a medical culture that is accustomed to an embarrassment of beds and specialists.
And I think you are right. The reform legislation now on the table encourages use of comparative effectiveness research that will be used to create “guidelines” (not rules) for best practice. Doctors who follow the guidelines should be shielded from suits.
I am quite sure that there are ways of getting around jury trials—short of a constitutional amendment. For one, I’m pretty sure that the accused can waive his right to a trial by a jury of his peers. IT would seem to me that, from a physician’s point of view, since a “jury of his peers” means laymen who know nothing or nothing about medical practice, it would be a no-brainer to waive right to a jury and ask for a panel of three specially trained judges who have extensive medical knowledge—as Dr. Rick suggests.
(In theory “expert witnesses” make up for the jury’s lack of knowledge, but as we all know, it’s usually possibly to buy an expert to represent either side of a case. And it’s hard for a jury to know which of these experts is honest and knows what he is talking about and who is merely a hired gun.)
You bring up a provocative question: “One could ask, “why should someone whose illness is iatrogenic (caused by medical care) be more entitled to adequate medical and financial support than someone whose illness is nature’s fault?”
I think the answer is two-fold. To some degree we must all accept the human condition—the fact that we are subject to natural catastrophes. There is nothing that society can do to change this. If my child is struck my lightening and dies, I don’t expect society to compensate me for my grief and suffering. (Though if my husband, who is the family’s breadwinner, is struck by lightening, and I am left with three children, I think a fair society would have safety nets in place to help widows and children so that they don’t lose their home, very good low-priced day care so that the mother can work, no-interest loans for some period of time while the family re-organizes, etc.
By contrast, when we are harmed due to the negligence of another person—or a man-made system—we don’t accept the injury as “an act of God or Nature.” Quite understandably, we feel aggrieved, if not angry. And I think we want something to happen to make it less likely that this will happen again to another person. This is a case where society can have an effect. By insisting that the individual or man-made system that made the error compensate the victim, society makes it more likely that the system (or hospital) will take the event seriously, and try to correct the system. As for individual errors, the knowledge that an individual will be (or the organization that the individual works for ) will be held responsible for a preventable error will make everyone that much more careful.
Often, the victims of malpractice feel much better if the hospital is able to explain changes it is making that will make a similar error less likely in the future. And of course, this is good for society as a whole.
Finally “pre-emptive approaches” which involve encouraging all medical personnel to acknowledge both errors and “near misses” in a forthright fashion (knowing that they will not be penalized) do work.
The is the approach that airlines and pilots have taken, and it helps prevent future errors. The same transparency is connected to a policy called “Sorry works” that some hospitals have been using—with success. Rather than stone-walling a patient or his relatives, the hospital, doctor and nurses explain exactly what went wrong—and apologize.
It’s the stone-walling that makes many patients and relatives so very angry. This also eliminates the need for an elaborate and expensive process of “discovery.” With the facts on the table, the victim and the hospital can go to arbitration to decide on fair compensation for the victim. If that doesn’t work, they can go to trial, but it still is much less complicated and expensive.
Richard Kasbeer—
Welcome to the blog. Yes, fair, timely compensation for victims, and guidelines to protect docs would help both—and make it much less likely that the patient or family would file a lawsuit. It is very important to defuse the situation, as early as possible. Families tend to sue when they feel that the doctor or hospital doesn’t care. Doctors who are arrogant, cold or dismissive are much more likely to be sued. Victims forgive doctors and hospitals that appear to care, accepting the fact that within medicine, human errors are inevitable. (They still expect to be compensated, but they’re not looking for vengeance.)
As I said to Gregory, I’m pretty sure that, under the law, the accused can waive his right to a jury trial. It seems to me that most doctors (and hospitals) would prefer to have the case decided by a panel of judges who possess medical knowledge rather than a “jury of their peers” which, in this case, means a jury of laymen who typically know little or nothing about medicine.
“It’s never a good idea to look into someone else’s pocket.”
Did you really just say that? Did that just happen?
You have an website and an entire movie dedicated to looking into other people pockets and you’re telling me I shouldn’t. Bar none, one of the funniest bits of unintentional comedy I’ve ever read.
Thank you
So many questionable statements, so little time …..
Fred Moolten said:
“Of dozens of physician colleagues over the years, I have known none who claimed to base his or her decisions on the fear of litigation”
I am not sure what it is like in an academic cancer center, but in private practice in a community hospital, I don’t know a physician who HASN’T based a decision on the fear of litigation. Talk to ER docs about why they order the tests that they do. Talk to a Radiologist who reads Mammograms. Talk to an OB/GYN with a high C-Section rate. (“you can get anything through the vagina, but can you get it through the 2nd grade”), etc. etc. And the “standard of care” itself that exists today has been shaped by the fear of malpractice that has existed over the last 30+ years.
Maggie said:
“I would add that the rate of medical errors is also lower in other developed countries.”
And
“Finally, we have good empirical evidence that “sorry works””
Recently, I investigated a similar pseudo fact to the first. It was claimed that US physicians are less likely to follow guidelines than physicians in other developed countries. This turns out NOT to be true – not because US physicians follow guidelines carefully, but because NEITHER DO PHYSICIANS in the UK, Canada and Australia. I would welcome data to back up Maggie’s claim that the rate of medical errors is lower in other developed countries, but do not believe that it exists. Most likely a well done comparison (comparing medical errors using the same criteria and methods) will show similar rates.
Months ago I looked for “good empirical evidence” to back up the statement that “sorry works”. In fact there is none. What data I could find comes from some VA hospitals and the U of Michigan. At U of Michigan, they revamped their ENTIRE risk reduction program, (including “sorry works”) and noticed improvements. Changing multiple variables, then attributing the results to only one of the variables is the essence of bad science. I am not saying that “sorry works” doesn’t work or that it may not be desirable to adopt for other reasons, but just that empirical data supporting its effectiveness at reducing malpractice costs does not exist.
Our current malpractice system is one that only a lawyer could love. Most of the money that goes in gets used up in lawyers fees and other costs – think of it as an insurance company that spends less than 50% of its premiums on medical care for the insured. Many or most patients that are injured receive nothing. It is extremely ineffective in identifying poor physician perfomance/real malpractice. Bad outcomes are more likely to compensated than true malpractice, etc. etc. Due to the amount of money that lawyers have given to the Democratic party (lawyers were #1 contributors to Democrats in the 2004 election cycle and #2 in the 2008 cycle – OpenSecrets.Org) real malpractice reform will not occur with the Democrats in power.
Finally, with respect to the costs of defensive medicine, it is interesting that the CBO’s estimate of the cost of defensive medicine is accepted without question by some here on Healthbeat, while other estimates of the CBO are railed against. Funny how the CBO is a unbiased source when it agrees with you, but is a biased source when it doesn’t score savings from health care reform.
To Legacy – My own perception that practice decisions are based on prevailing community patterns rather than fear of litigation is indeed based on personal experience, including that of family members in private practice. That is anecdotal, of course, and so the more cogent case is the CBO estimate that I linked to in my earlier comments, which also concludes that the contribution of “defensive medicine” to cost excess is minor. That is not to say that practitioners don’t worry about litigation, but rather that according to the CBO, and consistent with my own observations, that fear is not a driving force for excessive tests or procedures that would not have been performed otherwise. The failure of tort reform legislation in various states to make much of a difference is also consistent with the same conclusions. There can never be conclusive proof, because one person’s defensive medicine is another’s prudent concern for patient health. However, the Dartmouth study that Maggie has cited on several occasions testifies eloquently to the dominant role of community patterns as the main determinant of what individual practitioners decide.
In a sense, though, these divergent perceptions can be reconciled by considering the principle that community standards are relevant to both litigation and also to what physicians generally consider to be optimal practice choices. The challenge, then, may be less to persuade individual physicians to deviate from community standards, and more to persuade entire communities to recognize that what they see around them is not necessarily the prevailing standard elsewhere, and that community based changes that reduce excesses can be good for the health of patients and the health of the economy without incurring increased legal liability.
Fred,
Obviously, your perceptions and mine differ substantially.
Since you are such a believer in the CBO, you must disagree with Maggie that the CBO was wrong in not scoring any savings from Health Care Reform. Personally, I don’t have much faith in the CBO’s estimates of the cost of defensive medicine (or in their estimates about savings from Health Care Reform). Here is my estimate of the cost of defensive medicine – 20%. That includes not only what physicians acknowledge they knowingly order to CYA, but the effect that malpractice has had on the “climate” of medicine over the last 40 years.
Every night I work I see dozens of examples of poorly indicated diagnostic tests that have been ordered due to a combination of fear and ignorance. The examples are endless – here are just a few; CT scans for headache with no neurologic findings, CTA of the Chest for R/O PE in 20 and 30 YOs with no significant risk factors and X-Rays of the ankle that don’t follow Ottawa rules. As far as I know, these ER docs don’t derive any income from ordering these tests and do so for medico-legal reasons. In multiple discussions with these docs, they freely admit that they don’t really think the patients have the disease they are testing for but they need to CYA.
I read mammograms for over 20 years. The number of unnecessary extra views, biopsies, follow up exams, etc is huge and is heavily motivated by fear of lawsuits – with good reason.
The main allegation in many/most “bad baby” cases is that the Obstetrician didn’t do a C-Section soon enough and that is why the baby has ______. Why would an OB want to do fewer C-Sections and increase his/her risk of suit? Just ask John Edwards how he made his money.
“Community standards” themselves are partly due to perceived risks of malpractice. The accusation in any malpractice trial (and I have reviewed over 100 cases) is that the physician violated the “standard of care”. Since the “standard of care” is not well defined, why wouldn’t a doc practice like others around him?
There is the specious argument that because caps haven’t dramatically changed the cost of care in the year after they were adopted, defensive medicine is not a major issue. That is a little bit like a parent who has let a child run wild for 16 years and who then unsucessfully attempts discipline at age 16 saying – “see, I told you it wouldn’t work”. Fear of malpractice is too deeply embedded in physicians and in the guidelines and standards that surround medicine to be affected by a simple change in a caps (although they do cut rates).
In one sense I think that Maggie has it right about malpractice – the experience is too painful to be changed by the size of the award. Compare two scenarios – I am sued in California which has a cap of $250,000 or in a state with no cap. (I am ignoring the effect of caps on how many suits are filed) What is the difference? Very little, I still have to go through the same process. I am still on the hook for the same economic damages, which are not capped. I still have the same potential risk to my medical license/hospital privileges (i.e. my future livliehood) and I still get put through the same unpleasant wringer of depostions, etc. And I am still be judged by a jury who probably doesn’t understand most of the issues and is making its decision based on my appearance and how eloquent my lawyer is. Yes, the award may be a little higher in an uncapped state, but that is paid by the insurance company.
Go out of your academic cancer center to a community hospital and ask the docs on the front lines what they do because of malpractice. You might be surprised.
Legacy – I suppose we’ll have to leave it by agreeing that motivations are complex, and might in some cases dictate procedures “to be on the safe side”, where “safe” refers to both legal liability and concern for patient welfare. I agree with you that the CBO alone can’t be relied on for precise estimates, although for them to be several thousand percent off, as you suggest, seems unlikely to me.
Regardless of motivation, the Dartmouth data tell us that there are medical communities that achieve superior health outcomes with far fewer tests, procedures, etc. than elsewhere, commensurate with restraints exercised in other nations. To me, this indicates that fear of litigation does not inevitably drive up costs, and that the potential exists to emulate the better performing communities if long-standing but unjustifiable concepts of what interventions are needed can be reformed in the communities with a tradition of excess. If no-one around me is ordering a CT scan for a simple headache, the chances are I won’t see myself as risking a lawsuit if I don’t either.
We’ve now had thousands of word and 23 comments and still no one has disproved the entire point of Kevin’s article. Our current malpractice system is lousy for patients and it only helps one group. He backed it up with statistics. For some of the technical and nuanced arguments made here, my statement was simple and has not been answered. Name a single statistic that shows our current system benefits patients. Kevin did his job showing the contrary with hard facts. Pawelski never answered. Maggie avoided it. Simply put, it sucks and only benefits one group. At least those that state we have the best healthcare in the world can name something. If this is the best malpractice system in the world, back it up. QUOTE A RELEVENT STATISTIC. If it is the best for patients. QUOTE A RELEVANT STATISTIC. Kevin did. The converse hasn’t.
Maggie
You say that medical malpractice cases need to be decided by people who possess enough medical expertise to fully understand the details of the (medical) case. Does that mean that a criminal case needs to be decided by people who possess enough criminal justice expertise to fully unerstand the details of a criminal case? Of course not.
If a trial by a jury of one’s peers means that the accused has a right to a jury made up of doctors or hospital CEOs, then so be it. The pool of potential jurors needs to reflect more accurately their communities. You’d be surprised how many physicians, (as you say “who possess medical knowledge”), would side with the plaintiff.
I like your quote, “Conservatives don’t like ‘trial attorneys’ because they don’t like anyone who might represent a consumer in a suit against a business. Conservatives tend to view these suits as interference in the free market.”
Actually, in Texas, supporters of the caps insisted that the measure would lower malpractice insurance rates. At hearings, the state’s largest insurance carriers, however, planned increases of 19 to 35 percent. In fact, GE Medical Protective, the nation’s largest medical malpractice insurer, admitted that medical malpractice caps on damage awards and other limitations on recoveries for injured patients would not lower physicians’ premiums.
The revelation was contained in a document submitted by GE Medical Protective to explain why the insurer planned to raise physicians’ premiums, a mere six months after Texas enacted caps on medical malpractice awards.
According to the Medical Protective filing: “Non-economic damages are a small percentage of total losses paid. Capping non-economic damages would show loss savings of 1.0 percent.” When the largest malpractice insurer in the nation tells a regulator that caps on damages don’t work, every legislator, regulator and voter in the nation should listen.
As in Texas, California has caps on damages. And, as in Texas, large California insurers have proposed major rate hikes on doctors despite the caps. As you said Maggie, “the malpractice insurance industry is cyclical. They go through periods where profits are small, then they raise premiums and profits grow.”
In fact, no increases in medical malpractice insurance premiums connected to actual payouts. Rather, they reflected the well-known cyclical phenomenon called a “hard” market. Property/casualty insurance industry “hard” markets have occurred three times in the past 30 years. They were simply the result of insurance industry economics, supplemented by insurer hype intended to divert attention away from the mismanagement by insurers that caused the so-called medical malpractice insurance crisis.
The Center for Justice & Democracy said the the real reasons medical malpractice insurance rates rise so dramatically for doctors was market forces and dropping interest rates, not because of a sudden increase in medical malpractice jury awards or payouts. Congress must repeal the decades-old McCarran Ferguson Act, which exempts the insurance industry from anti-trust laws.
Case closed.
Nothing. No stats. NADA.
If our current system is serving patients well, Quote a statistic that proves it.
Gregory —
You write:
“You say that medical malpractice cases need to be decided by people who possess enough medical expertise to fully understand the details of the (medical) case.
“Does that mean that a criminal case needs to be decided by people who possess enough criminal justice expertise to fully unerstand the details of a criminal case? Of course not.”
Gregory–I’m not sure what you mean by “criminal justice expertise.”
But I could follow a case about someone robbing a liquor store and shooting the owner.
Or a case about someone beaking into in a house, and raping the owner.
Orea case about a DWI accident that killed someone.
But I coudn’t feel at all confident that I could fully understand a case about a
surgery that went sour, or even a delivery that went bad.
And in the last case, I’ve had some personal experience: I’ve had two children.
But I would have no way of knowing: should the doctor have done a C-section sooner? Was this a case where a preemie was basically doomed — no one could have saved her?
There are at least a dozen other variables.
Medical cases require a much, much higher level of
knowledge and expertise than your average criminal case.
Why is the “jury” to blame in the need for medical malpractice reform? Why is wresting the power away from the “jury” appropriate? This falls woefully short of explaining the nature of the so-called crisis.
Virtually all medical malpractice cases require testimony from a medical expert. The jury is instructed to consider all the facts provided by the medical expert. And sometimes, the medical malpractice case is so obvious that a medical expert is not needed in order for a jury to understnad the facts.
Do away with peer-based juries and replace them with judges trained in medical standards? This is more like the “fox-guarding-the-henhouse.” Medical malpractice victims should have full access to a court system in which their peers consider evidence from both sides and determine possible damages that are based fairly on the extent of their injuries or damages.
A better way to limit malpractice judgments would be to limit substandard medical treatment that results in injury or even death. And the best place to start would be in the AMA’s own backyard. People have a right to expect good, professional health care and when they don’t receive it, they should have the right to reasonable financial claims.
Blah, Blah, Blah Greg
Here we are, still not a single statistic to defend the status quo. You are wasting our time. Name a metric that shows the current system is good for patients. We are STILL waiting.
Jenga & Gregory–
Jenga–
“Blah, blah , blah” . . . is not the level of debate and analysis that we’re aiming for on HealthBeat (And by “we”- I mean not just Naomi and I, but the vast majority of our readers and commenters.)
I like to think of HealthBeat as one of many blogs that offer islands of sanity and civility in a blogosphere that, too often, is dominated by people who enjoy “attack TV”
Gregory–
I tried to explain why I think lay juries are often not in a good position to rule fairly in malpractice trials as clearly as I could in my comment.
Probably we should just agree to disagree on this point.
But we can agree that the best solution to malpractice would be fewer errors!
I agree on two points Maggie. The best solution to medical malpractice would be fewer errors!
And “Blah, blah, blah” is not the level of debate and analysis that is aimed for on HealthBeat. I tend to respond to constructive criticism, not sarcasm.
That’s fine. We all know you don’t have an answer anyway.
I agree patients need to get back their right to the court house and a jury of their peers. I also agree the focus should not be on tort reform, but on preventing the circumstances that drive the lawsuits in the first place. Why don’t we start with State Medical Boards. See this recent article about Texas and our abysmal record policing physicians:
http://www.dallasnews.com/sharedcontent/dws/news/healthscience/stories/101109dnpromedboard.42491dd.html
However, we DO have different courts for different purposes. Civil vs criminal, district, federal, small claims, we do have different courts for different reasons. I don’t see anything wrong with health courts but patients still have a right to a jury of their peers. Bad outcomes, bad care, negligence, in a lot of cases it’s not that complicated.