“There are two things to fear in life,” Justice Brandeis once said: “death and litigation.” Most physicians would agree.  Win or lose, the process of being sued for malpractice will forever change the way he views both his profession and his patients. No wonder fear of malpractice drives so much costly and potentially hazardous “defensive medicine.”  Nevertheless, some have argued that malpractice suits protect patients by forcing hospital boards to take a closer look at patient safety issues. Perhaps—but the high administrative costs associated with malpractice suits, combined with the effect they have had on the doctor-patient relationship suggests that there should be a better way to shield the sick.

An article in Sunday’s New York Times points to a new approach. “For decades,” the Times reported, “malpractice lawyers and insurers have counseled doctors and hospitals to ‘deny and defend.’  Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.” But with providers “choking on malpractice costs and consumers demanding action against medical errors,” some of the nation’s leading hospitals are trying out what is, for them, a new strategy—reveal and apologize.  It’s a simple solution: telling the truth. The mounting cost of malpractice claims may finally be having a constructive effect. The evidence suggests that if more hospitals adopt this approach, there could be great benefits, both for physicians and for patients.

Nevertheless, there are risks for health care providers. “Disclosure is the right thing to do,” an article published in Health Affairs last year observed,  but as “pressure mounts on physicians and hospitals to disclose adverse outcomes…and medical injuries” they should be aware that the volume of claims would rise and providers should be ready for “the financial consequences.”

After all, we are, as everyone knows, a litigious society. President Bush has warned us, repeatedly, of “what’s happening all across this country…lawyers are filing baseless suits against hospitals and doctors. That’s just a plain fact. And they’re doing it for a simple reason. They know the medical liability system is tilted in their favor.” In the nation’s “judicial hellholes,” the President of the United States cautions us, “every claim filed by a personal-injury lawyer brings the chance of a huge payoff or a profitable settlement out of court…This liability system of ours is out of control.”

The President is not alone:  you have read the news stories about the multi-million dollar cases, and the op-ed pieces declaring that they are now the norm:  emotional juries and prejudiced courts are persecuting blameless doctors, driving up the cost of health care while forever ruining careers.

As is so often the case, what “everyone knows” just isn’t true. 

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Film-makers who are making a documentary about Money-Driven Medicine have contacted me to ask if I know of anyone who “is suffering  from, has suffered from, or is related to a patient who they believe has suffered from some type of over-treatment.

“It doesn’t have to be a dramatic case – just someone who feels they were pushed through a cascade of needless scans towards some surgery or treatment that they would rather not have had would make the point, too.”

I don’t think we’re looking for a case of malpractice, but rather a case where the patient chose elective surgery or an elective procedure without having the opportunity to fully understand the risks and benefits in the way he or she would have if they had gone through a “shared decision-making” process. (See related post on “consumer-driven” vs. “patient-centered” medicine). It could be a knee replacement or hip surgery; it could be angioplasty or by-pass, it could be treatment for early-stage prostate cancer, another round of chemo, etc. 

If any readers have a suggestion, please comment or e-mail me at mahar@tcf.org.

Your comments on “The Ticking Clock” (below) raise some questions about consumer-driven healthcare that I decided deserve a separate post.

One reader wrote: “We have all been fretting for decades over how to get patients more involved in understanding and buying-in to their health care needs. Consumer-Driven Health Care (CDHC) is the most effective means to that end that has ever come along.”

He added: “Certainly you are right that very often the optimal treatment is unknown or ambiguous. But isn’t that precisely when the patient should be making the final decision? Who else should do it? That does not mean the patient is playing doctor, only that patients will consult with physicians they respect for the best recommendation and will decide on what course of treatment they are most comfortable with. It is, after all, the patient’s life and health that is at stake.”

Another reader responded to my comment that when the patient begins to think of himself as a “consumer” and of the doctor as a “retailer,” this can undermine the trust needed in a doctor-patient relationship. He replied: “As a physician I have to disagree with your comment that ‘Even then, many physicians feel that the consumer vs. seller model undermines the patient doctor relationship.’ If anything it enhances the relationship as only the consumer truly understands their needs and therefore it is best for the consumer to have a good deal of control. Some physicians tend towards protectionism. I also think your opinions regarding the ability of a patient to make [his or her] own decisions [are] a trifle paternalistic, though I can understand how you might have come to that conclusion.”

Let me say first, that I agree with both readers. But I think that what they are describing is not “consumer-driven medicine.” It’s “patient-centered medicine.” There is an enormous difference.

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The most recent issue of Health Affairs focuses on “The Politics of Health Care Reform” and features an article by pollster Celinda Lake, president of Lake Research Partners in Washington.

Lake takes the pulse of public opinion by holding focus groups, and then tries to shape a reform plan that mirrors their hopes and fears. Rather than crafting a blueprint for health care reform and then presenting it to the public for discussion, Lake believes that reformers should begin “by exploring voters’ own perceptions and the core values that shape their views on health care…Leaving aside the base voters at opposite ends of the spectrum who were most strongly in favor of or opposed to universal health care,” she and her group “focused on the large clusters of swing voters whose support for health reform was more conditional. Through segmented focus groups and a national telephone survey in 2006, we identified a set of values that drive these swing voters’ perceptions of reform.”

Lake has little patience with old-fashioned reformers: “Advocates for change in health care would like to think that by using a combination of facts and reason, they could persuade Americans that a progressive, universal health care system would be more effective, efficient, and humane than the current system,” she writes. But that’s simply not true, she asserts: “real changes must be enacted in the world of politics and public opinion, where values and perceptions are more important than facts and reason.”

Lake is not alone. I have heard other progressives express their belief that conservatives have “won” the national political debate in recent years because they are so clever at using memorable memes and slogans to appeal to voters’ values and emotions. And Lake is right that slogans don’t appeal to “fact and reason.”  Slogans are like television ads or bumper stickers: they’re not designed to provoke thought; the goal is to make the mind click shut like a box.

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After being re-elected in 2004, President Bush began touting an ambitious social policy platform, the so-called “ownership society.” Part of this agenda was a strong push for high-deductible health plans (HDHPs) coupled with health savings accounts (HSAs)—tax-free savings accounts to pay for health care expenses.

Like so much else that the Bush Administration attempted, the ownership society flopped, in large part because it called for the privatization of Social Security. With this failure, HDHPs and HSAs fell out of the public spotlight. To the casual observer, the question of whether or not health care reform should move in this direction seemed to have been put to rest.

But even though they are no longer in the political spotlight, HDHPs and HSAs are actually thriving—and in fact penetrating our health care system at a relatively brisk rate. This is problematic. Not only are HDHP/HSA plans poor policy, but their proliferation also weakens the political viability of the health care reform we really need.

Here are the numbers: at the end of last month, the Associated Press reported that the number of Americans enrolled in HDHP/HSA plans has nearly doubled from 2006 estimates, to around 6 million. Admittedly, these plans still have a long way to go before they become a force to be reckoned with.  America’s Health Insurance Plans estimate that enrollment in HDHP/HSA plans comprises just 3.4 percent of the private insurance market in the U.S., and in March, Employee Benefit Research Institute (EBRI) estimates that 42 percent of people who have HDHPs and are eligible for HSAs don’t even use the accounts.

Nevertheless, a doubling of enrollees over two years is nothing to scoff at. And while national rates of enrollment are still meager, the picture’s somewhat different at the state level. The AP reports that in Minnesota, the state with the highest percentage of HDHP enrollees, “about 9.2 percent of the state’s total enrollment in private health insurance comes through high-deductible plans. Following closely behind [are] Louisiana, [at] 9 percent and the District of Columbia, [with] 8.7 percent.”

State governments are also beginning to turn to HDHPs and HSAs as models for reform. Last week, Georgia passed a law—with the support of Newt Gingrich—that will give insurers $146 million in tax breaks for selling HSA plans. In Indiana, Health Affairs reports that HSAs are being coupled with Medicaid to provide high-deductible health insurance to low-income citizens.

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“His heart filled virtually his whole chest,” recalls Dr. Diane Meier describing her very first patient, an 89-year-old suffering from end-stage congestive heart failure. 

It was the first day of Meier’s internship at a hospital in Portland Oregon, and after being assigned 23 patients, she was suddenly told that one of her patients, who had been in the Intensive Care Unit for months, was “coding.” She raced to the ICU where the resident told her to put in a “central line.”

“I didn’t know how,” Meier admits.  “I felt overwhelmed and inadequate. Then, the patient died. . .

“Everyone just walked out of the room,” she remembers.  I stood there. I still sometimes flash back on that scene: the patient, naked, lying on the table, strips of paper everywhere, the room empty. This was my patient. I felt I was supposed to do something—but I didn’t know what.”

Meier left the room and, in the hallway, saw the patient’s wife. “I walked right past her,” she recalls, nearly shuddering at her own cowardice.  I didn’t know what to say. I didn’t even say ‘I’m sorry.’ As a physician, I didn’t think that I was supposed to do that. “

I heard Dr. Diane Meier tell this story at a conference for medical students at  Manhattan’s Mt. Sinai School of Medicine last week. When she finished, she asked her audience, “What is the hidden curriculum here? What does this story tell you?’

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This post was written by Maggie Mahar and Niko Karvounis

In 1980 Ronald Reagan claimed the presidency and America headed in a new, sharply more conservative direction.  It is no accident that this also was the year that “the corporatization of health care” in America began in earnest. This was the phrase that Paul Starr would use in his Pulitzer-prize-winning The Social Transformation of American Medicine to describe a revolution that would turn U.S. healthcare into an enormous for-profit business.

Thanks to changes in tax laws, for-profit HMOs would begin to replace not-for-profit  HMOs, and for-profit hospitals would begin to flourish. By 1986 for-profits had captured 14 percent of the nation’s acute-care hospital market. In this brave new world, more and more hospitals would be run, not physicians but by businessmen. After all, as Fortune magazine had declared some years earlier: “the management of medical care was too important to be left to doctors.”  Some physicians began to see themselves as entrepreneurs.  “Those who talked about ‘health care planning” in the 1970s now talk about “health care marketing,” Starr wrote in 1982. “Instead of public planning, there will be corporate planning.” And the goal driving that planning, Starr suggested, would no longer be better health, but rather “the rate of return on investments.”

Against that backdrop, in 1980 the Bayh-Dole Act was passed, and the face of medical research in America was forever altered.  The bill would bring academic institutions into the commercial world in a way that, at the time, seemed to ensure medical progress. Nature magazine offers a concise overview of the legislation, explaining that it “shifted the incentive structure that governed research and [the] development  . . . of federally funded [medical] inventions by allowing institutions to own inventions resulting from federally sponsored research and to exclusively license those inventions.” In other words, after Bayh-Dole, a university research team that came up with a drug could patent it and sell it to businesses.

This may seem hard to imagine today, but before Bayh-Dole, there was no such collaboration between those who invented a drug and for-profit companies.  Federally-funded research was considered a public good, owned by everybody and nobody. If, say, Doctor A created a breakthrough cancer drug at Harvard,  Doctor B at Stanford had free reign to experiment  with it as needed to improve it—as did other academics. There were no significant legal hurdles to open, ongoing collaboration and little profit attached to research.

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A few weeks ago a friend who I will call Tom was scheduled for cataract surgery.   As it happens, we share the same ophthalmologist, who I will call Doctor X. (Tom recommended Doctor X to me about 8 years ago.)

Dr. X told Tom that he was developing cataracts a couple of years ago, and a few months ago, he explained that the time had come for an operation on each eye. Dr. X  planned to do  one eye at a time.

Tom was about to go on a long business trip, so he didn’t schedule the operation immediately, but when he came back, he made an appointment with Dr. X who checked his eyes again,  and showed him a video of how the surgery done.  Doctor X also sent him for a cardiogram.

A few weeks ago, it was finally time for the operation on the first eye. Then, the day before the surgery, Dr. X’s  office called three times—each time rescheduling the operation for a different time the next morning.

Exasperated, Tom  finally said: “Let’s just cancel it.”

Since we had been talking about the operation and about Dr. X,  he called me.  “I feel like an idiot, canceling at the last minute,” he said. “I’m not afraid of the operation—these days it’s pretty simple, but there’s something about Doctor X . . .”

I couldn’t help but agree. Over the years, I have found Dr. X annoying. His waiting room always  is crowded;  it is not  unusual to wait  1 ½ to 2 hours to see him.  It struck me that he was trying to see too many patients, but when I mentioned the long waits  he blamed “my genius office staff" for over-scheduling him. 

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This post was written by Maggie Mahar and Niko Karvounis

Life expectancy is a pretty simple concept: it’s an estimation of how long the average person lives. Anyone can understand that. So how is this for a compelling data point: if you look at life expectancy in nations around the globe, you’ll find that over the past 20 years, the U.S. has sunk from ranking  No. 11 to  ranking No. 42. In other words, a baby born in 2004 in any one of 41 other countries can expect to live longer than his or her American counterpart.

This may come as a surprise. Sure, we all know the health care system in the U.S. is broken, but life expectancy isn’t just tied to medicine—it’s also related to quality of life in a larger sense. (I can live in a nation with the best health care system in the world, but if it’s in the throes of civil war, my life expectancy will be short). As we all know, the American standard of living is the envy of the world.  After all, we’re the richest country on the globe. So what gives?

While some of us are rich, the average American is not.  And while the rich are living longer, the poor are living shorter.  Factor in the profit motive that drives U.S. healthcare, and you will begin to understand why American medicine has done little to heal the gap between rich and poor.  Over the past twenty-five years, we have poured money into healthcare, but have paid relatively little attention to public health.

This may seem a bold claim, but last month the Congressional Budget Office (CBO) issued a report that provides the numbers:  “In 1980,” the CBO found that “life expectancy at birth was 2.8 years more for the highest socioeconomic group than for the lowest. By 2000, that gap had risen to 4.5 years.”

The report notes that “the 1.7-year increase in the gap” between socioeconomic groups “amounts to more than half of the increase in overall average life expectancy at birth between 1980 and 2000.” In other words, even though the average life expectancy has increased in the U.S., it has grown more slowly because of widening socioeconomic disparities.

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If healthcare reformers hope to capture the Congressional votes they will need to make universal coverage a reality, they must unite. Only then can they hope to form a wedge strong enough and sharp enough to divide the opposition. With that in mind, last week I wrote about the debate in The American Prospect‘s May 2008 Special Report, The Path to Universal Health Care, underlining areas where reformers agree, as well as issues that still divide us.

By clarifying our differences, and offering each other arguments and evidence for our positions, I am hoping that reformers can move closer together. In this second post, I consider the cost of universal coverage, the argument that talking about cost-control only hands ammunition to those who oppose reform, and, finally, whether American Prospect co-founder Robert Kuttner is right when he says that “there are not the votes in Congress to enact a true universal health-insurance system. Any progress toward universal coverage will necessarily be incremental.”

Last week, in part 1 of this post, I explained why many reformers who might  prefer to see a single-payer plan replace employer-based, private insurance have nonetheless rallied around Yale political scientist Jacob Hacker’s alternative—a proposal that gives Americans a choice between private insurance and a public-sector plan modeled on Medicare.

The truth is that the majority of Americans who have employer-based insurance want to keep it. As I’ve discussed on Health Beat, poll after poll makes it clear that they will not accept a government edict telling them that they have give up what they know for an unknown—a single-payer plan designed by Washington.  Most people are afraid of change, and the last eight years have not boosted their faith in programs run by the federal government. Congressmen know that this is how their constituents feel.  And this is why they will not vote for single-payer.

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