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Conservatives call it the “malpractice crisis.” Public Citizen, a liberal non-profit consumer organization based in Washington D.C., calls it “The Great Medical Malpractice Hoax.”

No doubt you have read that ambulance-chasing lawyers have escalated their assault on health care providers, and that as a result, malpractice insurance premiums have been levitating, along with malpractice suits, further hiking the cost of medical care.

Various solutions have been floated, including “caps” on compensation for pain and suffering; “health courts” where expert judges replace juries; immunity for doctors who follow “best practice guidelines;” and “full disclosure” policies which urge doctors and hospitals to move quickly to disclose errors, apologize, and offer compensation.

In the end, the best solutions would make malpractice reform part of heath care reform. Our malpractice system should be redesigned to reduce medical mistakes, fully compensate patients who are injured by human error, reward doctors and hospitals that disclose errors, and penalize those that try to ”cover up.” When it comes to the cost of malpractice, reform should slash the exorbitant administrative costs built into an adversarial process that moves at a snail’s pace, while subjecting both plaintiffs and defendants to what a recent report from the American Enterprise Institute rightly describes as “inhumane.”


Myth: Limit Awards, and We Can Eliminate Thousands of Frivolous Suits

“Put a lid on how much a jury can pay a patient for pain and suffering,” conservatives say, “and watch the suits begin to disappear.” A bill that would do just that—and much more—is now wending its way through the House. Twenty-eight states already have capped compensation for “non-economic damages” (usually at $250,000) though in eight, a state’s Supreme Court has ruled such limits unconstitutional.)

Best of all, according to those who favor tort reform, limits on damages deter avaricious attorneys who, as everyone knows, take on baseless cases, hoping that one day they’ll look in the mirror and see John Edwards.

As is so often the case, the conventional wisdom is wrong. Attorneys rarely bring a case unless a patient was seriously injured and there is evidence of negligence. The costs of bringing a suit are too high, and the odds of losing too great to do otherwise. (As noted in Part 1 of this post, research reveals that juries tend to favor hospitals and physicians, even when plaintiffs have  what independent physicians describe as “strong evidence.”)

In April, the American Enterprise Institute for Public Policy Research (AEI) released a working paper which pulls no punches as it rejects the conservative wisdom on capping awards. The report is startling:  AEI is a conservative think tank. Nevertheless, the University of Illinois’ David A. Hyman J.D. M.D.  and William M. Sage, J.D. M.D. of the University of Texas at Austin write: While “critics of the tort system argue that it is essentially random, using language like ‘jackpot justice’ and ‘lawsuit lottery’ to describe the manner in which the system allocates payments,” in fact “the medical malpractice system gets to the ‘right’ result most (but certainly not all) of the time. . . Studies using experts to review medical records for evidence of error find that claimants who received substandard care usually obtained compensation, that claimants who received proper care generally did not, and that claimants whose care quality was uncertain wound up in between.”

As Hyman pointed out in the Vanderbilt Law Review five years ago: “We have empirical studies of the medical malpractice liability system that now constitute a substantial body of research.” They “depict a system that is stable and predictable and that sorts valid from invalid claims reasonably well.”

This  confirms what physician-reviewers at Harvard’s School of Public Health concluded in a 2006 study of malpractice claims that I described in Part 1 of this post. After poring over claims involving approximately 33,000 physicians, 61 acute care hospitals and 428 outpatient facilities in four regions of the U.S, they wrote: “Portraits of a malpractice system that is stricken with frivolous litigation are overblown. . .  Our findings suggest that moves to curb frivolous litigation, if successful, will have a relatively limited effect on the caseload and costs of litigation.”  Because this was such a large study that relied on physicians to investigate claims in their own specialty, it has set a gold standard for malpractice reviews.

Yet, despite abundant evidence to the contrary, conservatives continue to talk about “opportunistic lawyers” and “phony” suits in a debate over medical malpractice that Hyman and Sage point out in their paper for the American Enterprise Institute, “can often seem theological.” Indeed, as they describe it, the battle is rooted in ideology, and argued with a nearly religious fervor: “On one side are those conservatives and doctors who have no doubt that frivolous lawsuits and Democratic politicians beholden to trial lawyers are the reasons American health care is so expensive. On the other side are those liberals who see malpractice reform as another Republican conspiracy to shift attention from the real problem.”

As for attorneys who bring baseless suits, Hyman and Age acknowledge that “Such over-claiming” may be  common in the initial stages of a suit, but for understandable reasons: “It is important to note that saying a claim is non-meritorious does not necessarily make it ‘frivolous.’ Information is often difficult to obtain following a medical injury, leaving malpractice lawyers to serve a necessary (albeit inefficient) investigatory function. . .. Focusing on claims that are filed but later dropped or dismissed obscures the larger reality,” they add, “that most injured patients do not file claims even when negligence caused them harm.”

The Harvard researchers agree; hospitals and doctors stonewall injured patients: “Our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts and sharing of information that litigation triggers.”  Often, when they have more information, plaintiffs  drop the case.

Of course, patients should not have to sue to find out “what happened.” Here, Hyman and Sage suggest that, under health care reform, if “ patient safety procedures within provider organizations improve, and the results of post-injury investigations are shared promptly with patients and their families”  there should be less need for the legal system to assume this [fact-finding] role.” This is, of course, a crucial “if.”         

Myth: Caps Are Needed to Rein In “Runaway Juries”

Those who call for caps on damages often claim that we need to chasten lay juries who, heady with a rare moment of power, hand out multi-million-dollar awards. In truth, Robin Hood pay-outs are rare. In 2005, for example, million-dollar verdicts accounted for less than 3 percent of all payments.

Commenting on Health Beat, Anne Polta writes: “High-profile, multimillion-dollar cases tend to grab the public’s attention. From there, it’s a short leap to assuming these types of cases are common. But this is anecdotal at best, and the statistics don’t back this up. Maybe the discussion about tort reform would be less volatile if the emphasis was on fact rather than emotion.”

In its report on “The Great Medical Malpractice Hoax” Public Citizen confirms what Polta says about the stats: “The number of payments for judgments of $1 million or more is tiny — never exceeding one-half of one percent of the annual total number of malpractice payments from 1991 through 2005.  In 2005, the average award for a ‘significant permanent injury’ was just $215,000, while the compensation for a ‘major permanent injury’ was $315,000.” (These are the categories used by the National Practitioner Data Bank, or NPDB.)  In cases where “the patient became a ‘quadriplegic, brain damaged, or in need of lifelong care,’” the median award hit $635,000—and this was the category where compensation was highest. When the patient died as a result of a medical mistake, awards averaged only $195,000.

How could compensation be so low when a medical mistake proves fatal? Typically, in these cases, the patient is over 65, and retired. As a result, courts do not pay for lost earnings. The extra ten years that a grandfather might have lived, playing with his grandchildren, are not deemed nearly as valuable as ten years that he might have spent in the workforce. (A grandchild who believes that her grandfather was “the only person in the world who understood me” might disagree, but in a society that values human beings in terms of how much they earn, she doesn’t have a vote.)

Myth: Caps Bring Down the Cost of Malpractice Insurance

Perhaps the strongest argument for tort reform is that limits on awards will reduce malpractice premiums. But even here, the evidence is, at best, spotty. The most recent research reveals wide regional variation in malpractice premiums even within a state that has enacted strict laws limiting payouts. Premiums for malpractice may be 2 or 3 times higher in one part of the state than in another.
“This variation gets chalked up to differences in judges and plaintiffs’ attorneys, as well as the relative propensity of local residents to either sue or hand out big jury awards,” explains Robert Lowes in an article published in Medscape in November of 2010. “California is a poster child for tort reform because of its $250,000 cap on non-economic damages in malpractice cases. But one carrier charges obstetrician/gynecologists a base rate of $89,953 if they practice in Los Angeles and Orange counties, but only $30,463 if they practice in the more northerly counties of San Mateo, Santa Clara, Santa Cruz, Fresno, and Monterey, according to Medical Liability Monitor (MLM).

“The same pattern emerges in Texas” he adds. “Granted, statewide, malpractice premiums have decreased on average by 27.6%, but premiums for general surgeons are more than twice as high in Hidalgo County ($92,242) as they are in Potter County ($44,434).”

In their working paper for the American Enterprise Institute Hyman and Sage confirm that “malpractice premiums vary by a physician’s specialty and type of practice and the county [not the state] in which he or she works.”

Lowes concludes: “Even when tort reform does tame malpractice premiums, it does not eliminate wide variations within a state.” He quotes Lawrence Smarr, president of the Physician Insurers Association, a group of doctor-owned or operated companies that insure 60 percent of the nation’s physicians. “Tort reform doesn’t change [the local] culture.”

This group would have every reason to support caps. After all these are the companies that shell out the awards. But, to his credit, Smarr refrains from exaggerating the potential benefits of putting a lid on compensation. (It is also worth noting that close to 2/3 of U.S. doctors are paying malpractice premiums to insurers owned by fellow-physicians. Conceivably, doctors should shift their focus from limiting awards for a patient’s pain and suffering to capping these insurers’ profits which, at least in some cases, have reached an all-time high.)

Myth:  Fear of Malpractice Suits Drives Overtreatment

Extensive research suggests that roughly one-third of our health care dollars are squandered on unnecessary tests and treatments. Many physicians acknowledge that they over treat, but, they say, it is only because they agree with Justice Brandeis: “There are two things to fear in life: death and litigation.” If compensation were capped, some conservatives argue, doctors will no longer feel such pressure to practice “defensive medicine.”

In truth, there are many reasons why a doctor might order an extra test, recommend a more aggressive procedure, or hospitalize a patient who doesn’t really need to be there:

•    The case reminds him of another case that went sour, years ago, and he never did totally understand why. . .
•    The patient is someone he has known for years and likes very much. He just wants to be extra-careful.
•    The patient is someone who he has known for years, and dislikes intensely. But he knows that if he does not give in to her demands for a prescription or a test she will never stop talking. He just wants to get her out of his office.
•      If the patient is at home, he will have to field anxious late-night phone calls from her husband. If she is in the hospital, the nurses will take care of her.

These are just a few of the reasons why U.S. doctors might over treat. We should also recognize that, in this country, medical training reinforces the notion that they should be “thorough” and “do everything possible. The resident who orders that extra test and makes the diagnosis that no one else thought of is praised. Every doctor cherishes those moments when he “catches” something that most physicians would have missed—and perhaps saves a life.

Meanwhile, in medical school, physicians are rarely taught to worry about the cost of health care. They are told to do their best by each patient, one patient at a time, providing every service available, and doing “everything possible.” Many doctors feel that the fact this nation spends so much more on health care than any other developed nation in the world is not their problem. They are not economists. They are not politicians. They are physicians.  Even today, probably the majority of physicians still would say that it’s up to someone else to worry about unnecessary hospitalizations and tests—though doctors are becoming more aware that a needless hospital stay (or even an MRI) exposes a patient to unnecessary risks.

Many physicians believe that their duty is to focus on the individual and her family, not the price society will pay for a treatment, even if the physician knows that it will provide neither comfort nor cure. The cancer patient’s relatives want her in the ICU. Period. No doubt, death would come more gently if she spent her final weeks at home, with palliative care, or in a hospice. But the doctor doesn’t have the time to try to persuade her family that this final incarceration in an ICU is both futile and cruel. (Even if he had the time, he wouldn’t be compensated for that frustrating hour of wrangling with relatives.) Nor is he paid to think about how her stay in the ICU may ultimately contribute to Medicare’s insolvency.

Finally, critics of our health care system suggest that “fee-for-service payment” provides a perverse financial incentive to “do more.” To this, a doctor might reply:  “Do I make money on those extra tests? Sure. But I’m just doing my job. I have a right to be paid for my work. And let me tell you, I don’t want to be sued for missing a diagnosis.”

In the end, no one can untangle the many reasons why a doctor winds up over-treating. Even the physician himself would be hard-pressed to assign a weight to each of a half dozen motives driving his decision.

Some doctors confide that only another physician would understand how complicated these decisions are. So when responding to a layperson’s query about “defensive medicine” it’s easier just to say: “Do I sometimes over-treat? Sure. Maybe 15 percent of the time. I’m afraid of being sued.”

Myth:  Caps on Awards Would Make Health Care More Affordable

The conventional wisdom, at least in some quarters, is that if we put a lid on awards for pain and suffering, plaintiffs’ attorneys wouldn’t be so eager to pursue these claims. Thus, we wouldn’t have to waste billions on malpractice trials and settlements. And because doctors would have less to fear, they would be less likely to over treat. Voila, we could pare billions from the nation’s health care bill.
Begin with the belief that caps would deter the ambulance-chasers. Conservatives make the argument that since plaintiff’s attorney usually work on contingency, (taking 30% or 35% of the award if they win), they will be less likely to take on cases if pay-outs don’t exceed $250,000.  The truth is that trial lawyers already are very wary of taking any but the strongest cases.

Plaintiff’s attorneys are not chasing business; they are running away from it. Sage and Hyman explain, “malpractice claims are protracted and expensive to litigate, a case yielding less than $150,000 in recoverable damages is often a bad business proposition for a potential plaintiff’s counsel.”  As noted above, even in states where there are no limits on damages, awards are just not that large: Nationwide, in 2005, the average award for a “significant permanent injury” was $215,000. If the patient died as a result of negligence, average compensation was just $185,000.

Thus “plaintiffs’ attorneys screen malpractice cases carefully and reject the overwhelming majority of those who request representation,” report Sage and Hyman, citing empirical evidence showing that trial lawyers themselves are “Holding Back the Floodtides” of suits.

Conservatives like to hold up Texas as an example of a state where tough tort reform discourages lawsuits. After Texas clamped down on compensation in 2003, the number of malpractice suits filed over the next five years reportedly dropped by some 60 percent. But over that span, fewer than 800 claims were filed, resulting in less than 160 payouts. In other words, in absolute numbers the change was not that great. This is because only a tiny percentage of injured patients seek compensation. At the margin, caps could shave the number of suits by making some cases less attractive for trial lawyers to take on, but limits on damages won’t substantially reduce the total number of cases.

Moreover, as Consumer Reports Health.Org points out, the amount of money that could be saved, even if we cut malpractice claims in half nationwide, is not nearly as large as tort reformers claim: “The direct cost of malpractice insurance  premiums and court verdicts, plus the cost of defensive medicine, together account for less than 2 percent of overall health-care spending, according to a 2009 study by the non-partisan Congressional Budget Office, which came to a similar conclusion when it reviewed the idea during the Bush administration. Tort reform might cut those costs by 0.5 percent, saving roughly $11 billion of a total $2.5 trillion annually—barely making a dent in overall health care costs.”

But wouldn’t health care bills shrink if tort reform persuaded doctors that they don’t need to order those extra tests? There is no evidence that doctors practice more conservative medicine in states such as Texas.  Just as a propensity to sue is grounded in local culture, a tendency to over treat finds its roots in a local medical culture—as Dr. Atul Gawande showed in his now famous New Yorker investigation of two towns in Texas.

Writing for the American Enterprise Institute, Sage and Hyman point to “a recent RAND study of hospital safety and malpractice claims at the county level in California,” which “found a strong correlation between reduced adverse events and lower malpractice claim rates.” In other words, in places where there are fewer patient injuries, there are fewer malpractice claims. Safer hospitals—that is what makes the difference.

Meanwhile, caps don’t persuade doctors that they can forego defensive medicine. When doctors talk about their fear of lawsuits, they make it clear that what they dread is the psychological ordeal, as well as the possible damage to their reputations. Whether or not awards for pain and suffering are capped at $250,000 or $500,000 is irrelevant. The money will not come out of the physician’s pocket: the insurer pays. Even if there is no payment to the plaintiff, it is the experience of being accused that is harrowing.

Finally, as Hyman and Sage observe in their working paper for the American Enterprise Institute (AEI) the argument that tort reform would reduce how much we, as a nation, spend on health care is “totally wrong.” If we cap damages, they explain, “the resulting reduction in insurance payouts and malpractice premiums is largely a redistributive transfer; Tort damages transfer wealth from health care providers [through insurers] to injured patients. Reducing those awards will transfer wealth in the opposite direction, but does not by itself constitute net ‘savings.’ If reducing awards also reduces injuries, social savings will result, but there is no reason to believe that will happen.”

Again, keep in mind that AEI is a conservative think tank and that Davd A. Hyman is an adjunct scholar at the libertarian Cato Institute. They are not making these arguments in order to advance a liberal agenda. They are saying these thing because they are true.

Myth: “Every Patient is a Potential Plaintiff”

Politicians who peddle fear like to raise the specter of hard-working, dedicated doctors losing not just their reputation, but their homes, and their life savings, because for one moment, their concentration lapsed. After a lifetime of serving patients, they make a single mistake.
Once again, there is virtually no basis in reality for this claim: “In the current system, little direct compensation is available to claimants beyond what is provided by physicians’ liability insurance,” Hyman and Sage report. “Whether because of asset protection schemes, jury discomfort with ‘blood money,’ or high transaction costs of collection, injured patients rarely received compensation from physicians’ personal funds.”

They cite a 2008 analysis using data collected by the Texas Department of Insurance, examining all insured medical malpractice claims against physicians between 1990 and 2003 (before Texas enacted a cap): “Contrary to common claims in policy debates and in the health policy literature,” limits on what an insurance policy will pay out “appear to act as de facto caps on recoveries.” Judges and juries just don’t award more than the physician’s insurance will cover.

Yet even doctors who understand that they won’t be bankrupted by a greedy attorney are inclined to believe that they are in constant danger of being sued.  “From day one of medical school, you are warned to view every patient as a potential plaintiff,” wrote one physician, commenting on Part 1 of this post.

One can only imagine how such paranoia undermines the doctor-patient relationship—and  it is not grounded in reality. Over the course of a career, the AMA reports, only 42% of doctors are ever sued. In her March post Naomi quoted Louise Marie Roth, an associate professor of sociology at the University of Arizona who is studying the relationship between malpractice litigation and obstetric practice: “The actual risk of getting sued is low,” says Roth. “Practitioner’s fears of litigation are exaggerated,” she observes, and “an unfounded fear of malpractice litigation leads to defensive practices that are totally out of proportion to the actual risk.”

The average doctor stands less than a 50 percent chance of being sued just once in his career. And odds are that he will win, even if the plaintiff was seriously injured and can present solid evidence. Granted, just being dragged into litigation is a horrible experience. But the notion that every patient represents a serious financial threat would suggest that most physicians should expect to be sued multiple times over the course of a career. And that just isn’t true.

Only a tiny cadre of physicians inspire more than one suit and wind up making repeated payments.  Public Citizen reports that from 1991 to 2005, just 5.9 percent of doctors were responsible for 57.8 percent of all malpractice payments. Each of these doctors made at least two payments.  Over the same span 2.3 percent of doctors made three or more malpractice payments, and were responsible for 32.8 percent of all pay-outs. Meanwhile, just 1.1 percent of doctors, were responsible for 20.2 percent of all pay-outs, each making four or more payments. Perhaps some of these physicians were working in specialties where they are likely to be sued (neurology, ob-gyn) and were brave enough to take extraordinarily difficult cases. But many are cowboys, who practice extremely aggressive medicine without informing patients about the risks. Others are physicians who are impaired in one way or another, yet continue to practice.

The tragedy is that state medical boards and health care institutions do so little to investigate these doctors. According to Public Citizen’s analysis of NPDB data, disciplinary actions such as license suspension or revocation are shockingly low:

• Only 8.61 percent of doctors who made two or more malpractice payments were disciplined by their state board.
• Only 11.71 percent of doctors who made three or more malpractice payments were disciplined by their state board.
• Only 14.75 percent of doctors who made four or more malpractice payments were disciplined by their state board.
• “Only 33.26 percent of doctors who made 10 or more malpractice payments were disciplined by their state board – meaning that two-thirds of doctors in this group of egregious repeat offenders were not disciplined at all.” Empirical  evidence suggests that many of these physicians enjoy enough wealth, power and clout with local hospitals [because they are “rainmakers”] to evade regulators. Others simply move from one state to another.

This is the true “malpractice crisis.”

Myth: Americans Patients Are Extraordinarily Litigious

Comparing how often patients are harmed to how often patients sue, Hyman and Sage report that,” by one estimate, there are more than 1 million medical injuries, annually, but only eighty-five thousand malpractice claims. They are quick to point out that “Not all of these injuries are the result of medical negligence.” But while we don’t have good nationwide statistics on how often patients are harmed by human error, many states have compared medical injuries to the number of claims.

In a 2006 article published in the Vanderbilt Law Review, Hyman and co-author Charles Silver offer examples: From 1996 through 1999, Florida hospitals “reported 19,885 incidents of medical negligence to a state agency, but patients filed only 3,177 new medical malpractice claims.” Thus “the total number of hospital -reported negligent incidents was 6.3 times the number of state-wide malpractice claims.”
“Because under-reporting of such incidents is common, and the study did not include negligent incidents in the outpatient setting, the actual ratio of negligence to malpractice claims is undoubtedly much higher,” they add.  Another “observational study of patients in a single hospital in Chicago found that only 1.2 percent of patients who experienced a medical error made a claim” A third  study “focused on birth injuries in Florida in 1987 that resulted in death or permanent injury. Of 220 women whose babies suffered serious injuries or died, only twenty-three sought legal advice and none sued.”

Even in cases of wrong-site surgery, patients are exceptionally forgiving.  Consider this stunning statistic: in US. hospitals and clinics surgeons operate on the wrong body part—or the wrong patient—“40 times a week,” Kaiser Health News reported a few days ago, pointing to a statement by the Joint Commission, the Chicago-based group that accredits the nation’s hospitals. Investigators at the Commission had analyzed state data.

Mark Chassin, a former New York state health commissioner and since 2008 president of the Joint Commission, told KHN that he thinks such errors are growing in part because of increased time pressures. Preventing wrong-site surgery also “turns out to be more complicated to eradicate than anybody thought,” he said, “because it involves changing the culture of hospitals and getting doctors –who typically prize their autonomy, resist checklists and underestimate their propensity for error—to follow standardized procedures and work in teams.” A “time out” is considered an essential part of patient safety:before surgery begins all work  is supposed to stop so that the  team “can confirm  that they have the correct patient, correct procedure, correct site and side, medications on the sterile that of all items anticipated for the procedure to begin.”

Philip F. Stahel, director of orthopedic surgery at Denver Health Medical Center  served as lead author of a 2010 study of 132 wrong-site and wrong-patient cases between 2002 and 2008 of which one-third resulted in death or serious injury. In 72 percent of cases there was no timeout.

Stahel says many doctors resent the rules, even though orthopedists have a 25 percent chance of making a wrong-site error during their career, according to the American Academy of Orthopaedic Surgeons, which launched a voluntary “Sign Your Site” campaign in 1997. (The AAOS deserves credit, though I fail to see why signing the site should be voluntary.)

The legal system typically offers little recourse: One study found that only a third of wrong-site cases result in a malpractice suit. Stahel’s team found that the average payment was less than $81,000 in cases resulting in a lawsuit and $47,000 in those resolved without legal action.

While some wrong-site errors inflict little or no injury, either because they are corrected early or did not involve major surgery, others are devastating. Last year a jury returned a $20 million negligence verdict against Arkansas Children’s Hospital for surgery on the wrong side of the brain of a 15-year-old boy who was left psychotic and severely brain-damaged. Testimony showed that the error was not disclosed to his parents for more than a year.

Kenneth W. Kizer, who coined the term “never event” nearly a decade ago when he headed the National Quality Forum, a leading patient safety organization, said he believes reducing the number of errors will require tougher reporting rules and increased transparency. Kizer, California’s former chief health officer, advocates mandatory reporting of wrong-site errors to a federal agency so cases can be investigated and the results publicly reported.  Right now, KHN notes, only half of all states require that the hospital or doctor report the incident:

Reporting to the commission is voluntary and confidential—to encourage doctors and hospitals to come forward and to make improvements, officials say. In two states that track and intensively study these errors, 48 cases were reported in Minnesota last year, up from 44 in 2009; Pennsylvania has averaged about 64 cases for the past few years.”

“How can you say these things should not be reported?” asks Kizer. “These are the health-care equivalent” of plane crashes.

Kaiser Health News reports that although “efforts to eliminate wrong-site surgery  have been unsuccessful, there is an overall consensus if safety protocols are properly implemented and followed these tragedies do not have to happen.” The Canadian Orthopaedic Association mounted a significant educational program from 1994-1996 to eliminate this problem and has reported that the number of known wrong site orthopaedic surgery claims in Canada has subsequently dropped dramatically.

In Part 3 of this post, I’ll examine why patients don’t sue, and explain that, contrary to what the fear-mongers say, the number of malpractice suits, the size of awards and even malpractice premiums have leveled off or fallen in the recent decades. We are not experiencing a litigation crisis that is driving health care inflation.

Why then, do conservatives speak with such passion about the need for malpractice reform?  Their real concern has little to so with protecting doctors or hospitals, the authors of the American Enterprise Institute say. Their goal is to shield all businesses from consumer suits with an eye to protecting corporate profits.

Finally, in Part 3, I will also discuss other solutions to the malpractice mess: safe harbor for doctors who follow guidelines, special “health courts” where cases are decided by medical experts, not juries, as well as the theory that if doctors and hospitals “disclose, apologize and compensate,” the cost and the pain that the system now inflicts, both on doctors and on patients, could be greatly reduced.

Maggie Mahar is an award winning journalist and author. A frequent contributor to THCB, her work has appeared in the New York Times, Barron’s and Institutional Investor. A fellow at the Century Foundation, Maggie is also the author of the influential HealthBeat blog, one of our favorite health care reads, where this piece first appeared.

 

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54 Responses for “Myths about Medical Malpractice: Part 2 Crisis or Hoax?”

  1. rbaer says:

    Maggie,
    I believe that you mean well and trying hard, but I think you are really not listening to the the majority of physicians who are concerned about litigation and defensive medicine.

    1) Most physicians are concerned about any kind of lawsuit, caps that usually apply to noneconomic damages don’t matter (in that respect, you got it right)
    2) As I said before (and Dr. mike did above), this is not a partisan issue for physicians (it may be for our major parties). I am a PNHP member (single payor advocacy group) and still concerned about the issue. Physician friends who teach public health are concerned as well. Yes, there are some docs (for instance that pediatrician who writes for salon.com) who go along with what you write, but they are a minority.
    3) It would be interesting to poll physicians knowing a different medicolegal environment – I know (from own experience and talking to many colleagues from other countries) what the result would be. The only small study I know about is
    http://www.clineu-journal.com/article/S0303-8467(05)00101-0/abstract
    4) Is your explanation for the fear of malpractice suits mass psychosis? Republican propaganda?

  2. I agree that doctors are not generally capable of comprehending the aggregate social costs of med-mal litigation, but their self-interest in reform does not necessarily mean that it’s a bad idea.

    As for the fact that med-mal payouts are extremely skewed, “conservative” scholars agree with that and argue that this is a negative outcome of med-mal litigation. Socially optimal med-mal litigation would result in more equitably distributed awards.

  3. Greg Pawelski says:

    Maggie

    Unfortunately, there will always be conservative ideologs that will try to drive the tort de-form movement. It’s the “take care of yourself” that rules this mythology, like a drug addiction. Jury awards fall into this category. It’s this ideology that drives the tort de-form movement to proudly say that one of their goals is to defund trial lawyers so they will no long be able to mount an effective opposition to their political movement. We need to weed out bad doctors, implement patient safety reforms and reform the insurance industry, rather than restrict patients’ rights. The pain and suffering award is used to level the playing field. It’s essential that injured victims’ rights to due process be protected.

  4. Maggie Mahar has chose to frame malpractice reform as a conservative-liberal issue.

    Eleven times she evokes the word “conservative,” and I quote.

    1. Conservatives call it the “malpractice crisis.” Public Citizen, a liberal non-profit consumer organization based in Washington D.C., calls it “The Great Medical Malpractice Hoax.”

    2. “Put a lid on how much a jury can pay a patient for pain and suffering,” conservatives say, “and watch the suits begin to disappear.

    3. In April, the American Enterprise Institute for Public Policy Research (AEI) released a working paper which pulls no punches as it rejects the conservative wisdom on capping awards.

    4. AEI is a conservative think tank.

    5. Yet, despite abundant evidence to the contrary, conservatives continue to talk about “opportunistic lawyers” and “phony” suits in a debate over medical malpractice that Hyman and Sage point out in their paper for the American Enterprise Institute, “can often seem theological.”

    6. “On one side are those conservatives and doctors who have no doubt that frivolous lawsuits and Democratic politicians beholden to trial lawyers are the reasons American health care is so expensive.

    7. “On one side are those conservatives and doctors who have no doubt that frivolous lawsuits and Democratic politicians beholden to trial lawyers are the reasons American health care is so expensive.

    8. . Conservatives make the argument that since plaintiff’s attorney usually work on contingency, (taking 30% or 35% of the award if they win), they will be less likely to take on cases if pay-outs don’t exceed $250,000.

    9. There is no evidence that doctors practice more conservative medicine in states such as Texas.

    10. Again, keep in mind that AEI is a conservative think tank and that Davd A. Hyman is an adjunct scholar at the libertarian Cato Institute.

    11. Why then, do conservatives speak with such passion about the need for malpractice reform.

    Her overuse of the word “conservative” shows her bias and mars an otherwise balanced and well-written blog. Malpractice reform is not about conservative-liberal differences. There is not a nickel’s worth of difference in malpractice rates among conservative and liberal doctors or among conservative and liberal sections of the country. It is about the built-in incentives for physicians and lawyers engendered by the American jurisprudence system, which produces the highest malpractice rates on the planet.

    Personally, I believe the answer may reside in adoption of the rule of British legal system, where losers in malpractice law suits pay. As noted in a December 15 Wall Street Journal editorial, “Loser Pays, Everybody Wins, “ perhaps we should adopt “ a British-style ‘loser pays’ rule, which would require plaintiffs to pick up the legal costs of their targets if they lose their suits. Almost all of America’s economic competitors follow a similar standard, but trial lawyers and their Democratic codependents have blocked states from making this revolutionary improvement to U.S. civil justice.”

  5. Maggie Mahar says:

    Richard & Rbaer

    Malpractice reform has always been a highly partisan issue. Conservative think tanks like the Heritage Foundation and the Republican party have claimed malrpactice reform (and “tort reform) as their issue for years.

    Below, from Newbatch –* Your Internet Guide to an Understanding of Polilcy Issues.)
    “Tort Reform” is a very partisan issue. At both the state and national levels, Republicans overwhelmingly support tort reform and Democrats oppose it. The trial lawyer associations which represent plaintiff lawyers are major contributors to the Democrats. Insurance and medical interests contribute heavily to Republicans. In fact, the tort reform debate can be considered as an aspect of the overall political dynamic involving distribution of the nation’s wealth. The most contentious issues involve medical malpractice and product liability. The result of settlements and verdicts of these cases is a transfer of wealth from groups which tend to be wealthy to victims and their lawyers. Virtually all the reform proposals ultimately attempt to limit the amount of funds which are distributed in this fashion.”

    Also: “Tort reform remains a major policy objective of the Republican party. The 2008 Republican platform continues the pledge to reform what is described as corruption in the civil litigation system”

    Then there is this from Forbes magazine: “conservatives have long argued that if we could only do away with – or place severe caps on- malpractice claims, a major step towards bringing down the high cost of care could be achieved.”

    This is from Wise Republic (” a new common sense, Reagan conservative news & opinion blog.”)
    “The Republicans in the House want to quickly satisfy their constituents who have been pressing for tort reform for 15-20 years–which to most of them means hard caps on non-economic damages. Yet the Senate Democratic Leadership is known to be quite sympathetic to the personal injury lobby, which is adamantly opposed to all tort reform, particularly caps on damages

    Finally, this from the New York Times “about.com”
    “Conservatives are typically supportive of reforming tort litigation.

    In other words, both conservatives and liberals view tort reform as a partisan issue. IF you look at a history of Congressional votes on the issue, you’ll find that they break down along party lines. Finally, plaintiff’s attorneys have a long history of contributing to liberals during compaigns while those who support tort reform (which includes malpractice insurers) have a long history of contributing to conservatives.

    . Dear rbaer,

    Thank you for your very civil response.

    I’m afraid that some doctors have mis-read what I am saying about
    our malpractice system. One commenter wrote: “the bulk of the article is in defense of the current system”

    Yet in the fourth paragraph, where I sum up my argument (what journalists call the “nut graph)”, I write:

    ” Our malpractice system should be redesigned to reduce medical mistakes, fully compensate patients who are injured by human error, reward doctors and hospitals that disclose errors, and penalize those that try to ”cover up.” When it comes to the cost of malpractice, reform should slash the exorbitant administrative costs built into an adversarial process that moves at a snail’s pace, while subjecting both plaintiffs and defendants to what a recent report from the American Enterprise Institute rightly describes as ‘inhumane.’”

    Does this sound like a defense of our current system?

    In this second part of the blog I am trying to reasure physicans that their chances of being sued are not nearly as high as fear-mongers suggest because I believe that seeing every patient as a potentail plaintiff (what one doc who commented on my blog said he was taught “from the first day of medical school”) undermines the patient-doctor relationship.

    But, as I say in the post, I don’t mean to in any way minimize how horrible it is to be sued.

    Yet,, the truth is that a great many doctors will, inevitably, make a mistake at some point in their careers that will seriously injure or even kill a patient. (See Dr. Atul Gawande’s very honest book “Complications.” )
    I think we all need to admit this: doctors and patients.should realize that
    doctors are fallible and medicine is a n imperfect science.

    When our heatlhcare system fails us and patients are injiured by a medical error, hosptials and dooctors need to admit that they made a mistake, fully disclose what happened (legally protected so that this it not used against them), and apologize. Tje malpractice insurance company or hospital (many hospitals are self-insured) need to compensate the patient.
    Then, –and this is most important– everyone involved needs to figure out how to avoid making the same mistake in the future.

    The goal of malpractice investigations should be to try to reduce malpractice. I would like to get away from a “blame & shame” culture and
    move toward a culture where doctors are willing to admit mistakes. Today, it
    seems that too many docs just become very hostile at the very idea that they might be sued.They seem unwilling to admit that, in fact, even if they are good doctors, at some point(s) in their career they will, almost inevitably,
    make mistakes that harm patients. Hospitals and dcotors need to learn from those errors. But if they dont’ acknowledge them, they won’t learn.

    Finally, I’m surprised that so many doctors seem more concerned about what they perceive as a large number of malpractice claims–and less concerned by the much larger number of patients who are harmed while receiving medical care. (The research shows that the majority of patients seriously injured by a medical error don’t sue.)

    I actually know doctors who say that sometimes they can’t sleep, not because they are worried about being sued, but because they are worried
    about a patient. “Did I miss something? Why isn’t she getting better? She’s such a lovely person . . I don’t think I missed something, but tomorrow, I’m going to call Doctor X and and ask him what he thinks.”

    The very best doctors realize that they are fallible, and consult with others.
    They worry more about their patients than they worry about themselves.

    I would submit that, as a result, they are less likey to be sued. And if a patient does bring a claim,, there is a very, very small chance that the doctor will lose. Part of what I was trying to explain in this part of the post is that our current malpractice system is not totally irrational. Doctors should not feel that theyare practicing in the middle of a malpractice lottery.
    ,
    Ultimately, all a doctor–or anyone can do is do his or her rjob as well as he or she possibly can. (Btw , as a financial journalist, particuarly at Barron’s, I was vulnerable to suits that could have killed my career. When doing a story, I just didn’t think about it. I simply tried to dot my i’s and cross my t’s– much as a doctor would try to follow evidence-based recommendations and safety protocols.

    Dear rbaer,

    Thank you fso much for your very civil response.

    I’m afraid that some doctors have mis-read what I am saying about
    our malpractice system. One commenter wrote: “the bulk of the article is in defense of the current system”

    Yet in the fourth paragraph, where I sum up my argument (what journalists call the “nut graph)”, I write:

    ” Our malpractice system should be redesigned to reduce medical mistakes, fully compensate patients who are injured by human error, reward doctors and hospitals that disclose errors, and penalize those that try to ”cover up.” When it comes to the cost of malpractice, reform should slash the exorbitant administrative costs built into an adversarial process that moves at a snail’s pace, while subjecting both plaintiffs and defendants to what a recent report from the American Enterprise Institute rightly describes as ‘inhumane.’”

    Does this sound like a defense of our current system?

    In this second part of the blog I am tyring to reasure physicans that their chances of being sued are not nearly as high as fear-mongers suggest because I believe that seeing every patient as a potentail plaintiff (what one doc who commented on my blog said he was taught “from the first day of medical school”) undermines the patient-doctor relationship.

    Moreover, my point is not just that less than half of doctors wil ever be sued. The vast majority who are sued once, will win, This knowledge should cut their fear.

    As I say in the post, I don’t mean to in any way minimize how horrible it is to be sued.

    But, the truth is that a great many doctors will, inevitably, make a mistake at some point in their careers that will seriously injure or even kill a patient. (See Atul Gawande’s very honest book “Complications.” )
    I think we all need to admit this: doctors and patients.should realize that
    doctors are fallible and medicine is a very imperfect science.

    When our heatlhcare system fails us and patients are injiured by a medical error, hosptials and dooctors need to admit that they made a mistake, fully disclose what happened (legally protected so that this it not used against them), and apologize. The malpractice insurance company or hospital (many hospitals are self-insured) needs to compensate the patient.
    Then, –and this is most important– everyone involved needs to figure out how to avoid making the same mistake in the future.

    Of course in many cases where the outcome is bad, there was no error.
    Full disclosure of exactly what happened can make that clear if everyone who was involved–including nurses– are allowed to talk and describe what happened. As the American Enterprise Instititue report explains, plaintiffs often drop cases once they getting into the legal process of “discovery” (which forces the hospital to produce documents etc. revealing what happeped) and realize that no error was made. But plaintiffs shouldn’t have to sue and go through the expensive legal process of discovery to find out what happened.

    My main point is that the goal of malpractice investigations should be to try to reduce malpractice. I would like to get away from a “blame & shame” culture and
    move toward a culture where doctors are willing to admit mistakes. Today, it
    seems that too many docs just become very hostile at the very idea that they might be sued.They seem unwilling to admit that, in fact, even if they are good doctors, at some point(s) in their career they will, almost inevitably,
    make mistakes that harm patients. Hospitals and dcotors need to learn from those errors. But if they dont’ acknowledge them, they won’t learn.

    Finally, I’m surprised that so many doctors seem more concerned abcout what they perceive as a large number of malpractice claims–and less concerned by the much larger number of patients who are harmed while receiving medical care. (The research shows that the majority of patients seriously injured by a medical error don’t sue. Injuries far outnumber suits)

    That said, there are doctors who worry more about the patients than the lawsuits. I know doscotrs who say that sometimes they can’t sleep, not because they are worried about being sued, but because they are worried
    about a patient. “Did I miss something? Why isn’t she getting better? She’s such a lovely person . . I don’t think I missed something, but tomorrow, I’m going to call Doctor X and and ask him what he thinks.”

    The very best doctors realize that they are fallible, and consult with others.
    They worry more about their patients than they worry about themselves.

  6. Maggie Mahar says:

    Richard–

    The problem with “loser pays” is that low-income and middle-income people wouldn’t be able to sue. They couldn ‘t risk losing and be bankrupted. (Unlike hospitals and doctors they don’t have insurance that will pay their court costs.)

    In European countires that have adopted “loser pays” there are generous safety nets that protect a patient who sues & loses. Thanks to universal health care, all of his medical expenses are paid.He may well receive free legal services. And bankruptcy laws are differentt in Europe.

  7. Maggie Mahar says:

    Greg & John

    Greg–Yes, we really should be focusing on the patiients who are injured.–and figuring out how to reduce medical errors.

    We need to compensate patients for pain and suffering. Tell the woman who accidentally had two breast removed (patient mix-up) that she should just be happy if the insurer pays for reconstructive surgery . . . .

    In extreme cases like these large pain and suffering rewards will make hospitals take these mistakes seriously and enforce rules that could virtually eliminate wrong-site surgeries.

    I’m afraid the “take course of yourself” mentality is commonplace among those who talk about bankrupting plaintiff’s attornies. But luckily, they do nto
    represent all doctors.

    John–
    I ‘m not sure what evidence there is that med-mal payouts are skewed.
    Everything that I have read– including the American Enteprise report and the Harvard study– indicates the pay-outs are highest for serious permanent injury, and lowest for more minor or temporary injury.

    Could you point to reserach?

  8. rbaer says:

    Maggie,

    I agree that it has become a partisan issue in the US, where other issues that should not be partisan have become partisan as well (e.g. global warning). However, the unfairness of the legal system affects doctors on a daily basis (I am not forgetting injured patients, but let’s keep this separate for a moment). The fact that liberal/progressive docs (incl., but not limited to myself) agree with conservatives on this very issue should give you pause.

    I seriously suggest the following: go to any medical center in the US and start interviewing US doctors who did several years of practicing and/or training abroad about the following questions:
    (1) How does the (perceived) medicolegal threat in the US compare to the (perceived) threat in your home country? If there is a difference, what do you think is the reason for this difference?
    (2) How do you think is patient safety and the risk of negligent injury comparing the US and the country you first practiced in?

    I casually talked about this with many fellow FMGs from various countries. If you did the same, you would be gaining a better perspective.

  9. Barry Carol says:

    “The fact that liberal/progressive docs (incl., but not limited to myself) agree with conservatives on this very issue should give you pause.”

    rbaer –

    I agree. I also note that of the many comments posted by doctors on this subject in response to Maggie’s first two posts of her three part series on medical malpractice and associated litigation, not one said anything like the following: The fear of malpractice suits is grossly overblown in the U.S. and I personally practice very conservatively with minimal defensive medicine regardless of how my local colleagues practice because I don’t fear lawsuits. My competence and conscientiousness as well as my pleasant bedside manner should afford me ample protection. Besides, even if I am sued, I’m confident that I’ll win the case.

    The fear of suits is real and it affects doctors’ practice patterns and the development of standards of care though how much that adds to healthcare costs is impossible to quantify with any precision. Perceived litigation risk is, in all likelihood, far higher in the U.S. than it is in Western Europe, Canada, Japan or Australia.

  10. Maggie Mahar says:

    Barry–

    Thanks for your comment.

    First: Doctors who fear malpractice suits are vocal. Doctors who are far less concerned about this issue are less likely to speak out. They don’t want to upset colleagues.

    Similarlly, people who live in the West and own rifles in order to hunt, but don’t own hand-guns, don’t speak out to advocate gun control of hand guns. They don’t want to become pariah in their own towns

    You write: “Perceived litigation risk is, in all likelihood, far higher in the U.S. than it is in Western Europe, Canada, Japan or Australia.”

    “Is, in all likeihood,” suggests that this is your opinion. Could you point us to any research which backs up the opinion?

    • rbaer says:

      Maggie,
      I am not Barry but I linked to one small study re. your very last sentence above. And there is probably more research about the frequency of med litigation that you should know prior to writing this large series.

      Also, you are good at interviewing docs and well connected. Why wouldn’t you pick up my above suggestion of interviewing FMGs? There a lots of docs from India, Pakistan, China, and quite a few from Thailand, Germany and many who spent some time in GB.

  11. Dr. Mike says:

    “My main point is that the goal of malpractice investigations should be to try to reduce malpractice.”
    I don’t see how any thinking person reading your two posts so far would come to the same conclusion. That may be coming in part III, and indeed you have alluded to that goal, but it would see to me that your main point so far has been that the current malpractice system is for the most part tolerable, driven by the incompetence of physicians, and if they were just willing to learn from there mistakes there wouldn’t be so much litigation.
    “I would like to get away from a “blame & shame” culture and move toward a culture where doctors are willing to admit mistakes.”
    And yet your arguments so far are exactly “blame & shame.” Your animosity towards whole groups of people drips from your words, but of course you don’t see it that way because you are the one who is right. What do you think happens when you admit that you made a mistake? Yes, that’s right, you get sued because there exists no other mechanism by which to compensate the patient. A simple law suit might not seem like such a bad thing to you, but then it is clear from your article so far that you have no empathy for nor understanding of why physicians are so loath to suffer the consequences that follow in the aftermath of a suit in today’s health care and legal environment.
    “Today, it seems that too many docs just become very hostile at the very idea that they might be sued.”
    Actually, I love the very idea that I might be sued. Does that sound like a statement a sane persone would say? Yes it’s a bit extreme to say ‘love’ but does it really make any more sense to say “I’m ok with the idea of being sued, because I know that I would only be sued when I truly made a mistake and I’m sure the whole process will be a learning experience.” It is astounding that anyone who has any understanding of the current tort system would ask a physician to make such a statement, and yet, you did.
    “Injuries far outnumber suits”
    This gets to the crux of your argument in which you take this little factoid (and a few dozen similar factoids) and make it to mean, “You incompetent bast@rds, you’re not getting punished half as much as you should be, so shut your whining and start admitting your mistakes.”
    “When our heatlhcare system fails us and patients are injiured by a medical error, hosptials and dooctors need to admit that they made a mistake, fully disclose what happened (legally protected so that this it not used against them), and apologize. Tje malpractice insurance company or hospital (many hospitals are self-insured) need to compensate the patient.
    Then, –and this is most important– everyone involved needs to figure out how to avoid making the same mistake in the future”
    Upon this I think we all agree. The problem is your attitude is so caustic towards the current players in the health care system that it makes it very difficult to view your article as an attempt to improve upon the current failed system. I for one look forward to reading part III, but I suspect that your goal in enlightening all of us would have been achieved much more efficiently had you only written part III.

  12. Greg Pawelski says:

    Why is tort deform even on the national agenda? Only 2% of injured people sue for compensation, punitive damages are rarely awarded, liability-insurance costs for businesses are minuscule, medical-malpractice insurance and claims are less than 1% of all health care costs and premium-gouging underwriting practices have been already widely exposed?

    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 look only at reported jury verdicts. The trial lawyers track all verdicts, including nonjury verdicts, through appeals, settlements, and court-ordered reductions.

    Limits on the rights of people hurt by medical malpractice will victimize them and their families further while helping neither patients nor doctors. The real beneficiaries will be insurance companies, including the doctor-owned malpractice insurers.

  13. Barry Carol says:

    “”In, in all likeihood,” suggests that this is your opinion. Could you point us to any research which backs up the opinion?”

    Maggie –

    It is my opinion and I don’t have any specific research to cite. I do recall reading, though, in T.R. Reid’s book “Healthcare Around the World” that, according to the author, doctors he interviewed have a much lower perceived risk of being sued than U.S. doctors do.

    Conversely, Paul Levy had a blog post sometime back about the healthcare system in Israel after he was there for a conference. In response to a question from me about malpractice, an Israeli doc told him that litigation there was getting worse and was starting to look more like the U.S. environment, especially for OB-GYN’s, orthopods and neurosurgeons.

  14. Peter says:

    My good friend who is a doctor in Spain told me that to be sued in Spain one would have to be seen actually smothering the patient or shooting them.

  15. rbaer says:

    Determined colleague,
    I want to comment that I do not think that MM is hostile towards docs (although some of her conclusions may sound hostile if you feel the medicolegal threat as a doc), and her book re. “Money driven mediciine” is well researched (with plenty of doctor interviews) and right on the mark, as far as I can recall. There are also some, I would say rather few docs (for instance Dr. Parikh, a pediatrician who occ. writes for salon.com) who echo her thoughts about malpractice). Other than that, I noted that when people interested in HC delivery have an opinion similar to MMs, they tend to be economists, PhDs but not clinicians.

    But I think that this is a small minority (does not prove them wrong per se, but …), and I agree with you that the statements “the statistic of about 42% of doctors will be sued in their careers and then one or two paragraphs later says basically “no need to panic” is rationally hard to uphold rationally.

  16. Maggie Mahar says:

    rbaer, Dr. Mike, Determiend M.D.

    Thanks for you comment. As you know I am not hostile to doctors, and in fact a great many of my readers at HealthBeat are doctors. I also know many doctors who have asked me to speak at their conferneces, etc.

    I have talked to many doctors about malpractice, and medical mistakes, both here and in Europe. (Comparisons to what goes on in Pakistan are less relevant; usually health care in the U.S. is compared to heath care in other developed countries.

    A couple of years ago I went to an int’l conference in Germany — 3 days, thousands of doctors from Europe, the U.K., Israel. Virtually no Americans. The doctors there expressed surprise that so many doctors in the U.S. don’t practice evidence-based medicine–and that they are not disciplined when they don’t follow the safety protocols and wind up hurting a patient.

    A pediatric oncologist from Germany who had spent a year here was amazed that doctors here still give children antibiotics for ear-aches– rather than pain-killers.
    The German oncologist also commented on how the doctors he worked with in the U.S. “talked about money, all of the time.” He was surprised that money was such a big topic of conversatioin. He was looking for colleagues who would want to talk about new medical research here and abroad . . .
    I also recall a doctor from Sweden who was surprised that we still do PSA tests (“We stopped doing them long ago . . “. ) .
    One could say that this was just anti-American sentiment, but the organizers of the conference were not particuarly political, nor were the speakers.
    They were concerned about the same things that concern us: lifting quality and reducing costs.

    On HealthBeat I also receive comments from doctors in other countries.

    I suspect that part of our malpractice problem is the fact that , as In the Washington Post recently reported: In the U.S. “State medical boards have failed to discipline 55 percent of the nation’s doctors who were sanctioned by the hospitals where they worked . . ”

    We expect doctors to be self-regulating. In other countires (for example, Sweden) the government steps in directly to displine doctors, and in other countires settlements are often decided by govenrment boards. Thus, there is less of a need for trials.

    On this thread, we have two doctors who repeatedly attack me personally: Dr. Mike and “Determined M.D./M.D. as Hell “. The latter is actually one person pretending to be two people. This tells you that he is a troll.)

    Yeterday , THCB’s editor told someone at THCB to delete Determined ‘s comments and Dr. Mike’s comments. They’ve been having trouble with WordPress, but that will be happening today..
    When the editor read their comments, his reponse was “This makes me very, very sad.”

    I don’t mind disagreement. Barry Carrol often disagrees wtih me here and on
    HealthBeat. But he doesn’t feel a need to turn to personal attack.

  17. Maggie Mahar says:

    On this thread a couple of doctors have dominated the discussion,.

    But not all doctors agree about malpractice. When I posted part 1 and part 2 of this post on HealthBeat, commenters offered a variety of opinions. Here’s a sample:

    A doctor in the U.S. writes:
    I do think that all medical practitioners who have the opportunity, inclination, and ability to spend the time to develop good relationships with their patients are much less likely to be sued, and that NP’s frequently do that as well or better than doctors. Both the NP’s I refer to above were working settings where their relationship with the patients were brief.
    Pat S. (a long-time reader, is a doctor.

    A doctor from the U.K. writes:
    “I have to say that this particular conversation sounds very strange to someone living outside of the USA.
    Of course doctors are practicing defensive medicine and the cost of this is immense, not only financially but to the detriment of the health of the patient. When a doctor thinks of doing something to avoid being sued, he is thinking of himself/herself and not his/her patient.
    Study after study shows that doctors that get sued are sued after a precipitating event but before that there was a personal interaction between patient and doctor that left the patient feeling resentful. Few doctors are sued without this particular failure of the therapeutic relationship. How do I know this? My medical negligence insurance company told me so at an excellent seminar I attended, hosted by them for free!
    Here in the UK we have universal health care in the form of a National Health Service. American ‘conservatives’ would not like this because to them it reeks of socialism and communism. However it functions as a sort of Mutual Funds system and although it may be less than efficient at times, most of the money does actually go to improving the health of patients.
    Across the Atlantic things are different: Besides patients, many more people have the right ‘do well’ out of medicine. These important people include the pharmaceutical companies, the medical insurance companies,the Government (who taxes these) and yes, many, many lawyers who have to make a lot of money out of medicine. The enrichment of all these groups of people (including of course the buyers of their stocks and shares)is perhaps why the New England Journal of Medicine of January 2010 ranks American Medicine as the 37th best in the world.
    Congratulations guys, your health care is in the top 20% in the world. Why all this whining and complaining?
    Posted by: Dr Brian Kaplan | July 02, 2011 at 11:19 AM

    A comment from another U.S. doctor
    We heard had an unforgettable speech the first day [of medical school’ from the President or Dean in which he very movingly emphasized “do no harm.” I am unsure if it made a difference for me–I hope I already had learned that at home. On the other hand, strict adherence to primum non nocere conflicts with the weighing of a risk/benefit ratio, but it is still a very important principal.
    And later, upon my introduction to the pediatric eye clinic, our kindly chairman pointed out that each and every one of these patients we would see was somebody’s precious child. Again, I already knew that, but it was a great reminder, perhaps particularly for a young resident who did not yet have children.
    With all the technology, one hopes these important touches continue in medical education.

  18. Maggie Mahar says:

    Here are some more comments from medical professionals commeneting on HealthBeat
    From a doctor:
    bit off topic, but this pretty much typifies the attitude many medical professionals have towards poor people:

    “I’ve heard from plenty of doctors who work in inner city ER’s that even poor people are not shy about suing when there is a bad outcome.”

    It’s so sad that people think somehow poor people should somehow accept sub-standard care more than those who are not poor. As Maggie has frequently pointed out, there are serious quality problems in our health care system. Everyone should have high quality care, and malpractice is necessary to protect patients and to keep doctors accountable.

    Thank you for reminding us about the facts.

    Posted by: Sharon MD | June 22, 2011 at 05:12 PM

    From a nurse:

    Maggie said, “Some hosptials encourage ERS to do tests becausse the hospital needs the revenues.”

    Maggie, I’d venture to say that MOST hospitals encourage ERs to do tests for revenue. Tests and procedures.

    When I worked in the ER, I was trained to fill out the coding sheets that were used for billing. We had to assign a Level based on the complaint: Level 1 was a trauma code, 2 an ICU type complaint resulting in admission (MI, Stroke, etc), Level 3 a complaint generating a serious work up (chest pain respiratory, GI) Level 4 Minor (minor ortho, lacerations) Level 5 Fast track (what the heck are you doing here anyway?) complaints.

    THEN we checked boxes for everything we did: med administration. Vital signs. IV insertion. Dressings. Foley catheter. Nasogastric tube. Ad nauseum.

    We were clearly told, “this is how you get paid.” It was emphasized to us to be sure to charge for every thing we could think of, and make sure there was supporting documentation in the chart. We weren’t specifically told to pad the bill . . . but it happened.

    The doctors filled out their OWN charge sheets . . . the ones we did were for the hospital charges.

    Posted by: Panacea | June 29, 2011 at 10:21 PM

    Excellent overview on such a complex topic. Thanks for helping to correct some common misconceptions about medmal that physicians may still harbour.

    I agree that it is indeed “extremely disturbing” when studies suggest “plaintiffs won damages when the reviewers saw NO EVIDENCE of malpractice in 10% of all cases”. Very traumatic for the physicians involved.

    But I find it even more disturbing that “nonpayment of claims WITH MERIT occurred” in 16% of the cases reviewed. Very traumatic for the patients involved.

    Previous research on why doctors get sued also supports the JAMA report. For example, you may already be familiar with the work of the University of Toronto’s Dr. Wendy Levinson, considered a foremost researcher on physician-patient communication.

    In a landmark 1997 study, she recorded hundreds of conversations between a group of physicians and their patients. Half of the doctors had NEVER been sued, and the other half had been sued AT LEAST TWICE.

    Dr. Levinson found that just on the basis of those recorded conversations alone, she could find clear differences between the two groups.

    Interestingly, Dr. Levinson reported NO DIFFERENCE in the amount or quality of information doctors gave their patients; the never-sued doctors did not provide more details about medication, treatment or the patient’s condition.

    The difference was entirely in HOW they talked to their patients.

    More about what these differences were at: http://ethicalnag.org/2010/10/15/why-doctors-get-sued/

    Posted by: Carolyn Thomas | June 23, 2011 at 06:11 PM

    Another post from the nurse:

    I’ve been thinking about the “trained to fear suit” from medschool thing.

    I talk to my students about protecting their licenses all the time, and making their charting defensible. Yet I’ve never been sued, I don’t know anybody (in nursing) who’s been sued, and I don’t fear getting sued. I don’t even carry malpractice insurance anymore. Didn’t see the point, even though it is a measly $72/year.

    And it’s not like nursing is immune to lawsuits . . . I do know nurses are being sued more, and I see adverts all the time for conferences on how to protect yourself from being sued.

    Yet nursing malpractice rates are quite reasonable.

    While it is true that some doctors become quite wealthy, most have an income that is quite reasonable. If juries and judges are not imposing damages more than the doctor/insurance company can pay (and nurses carry the same amount docs do, up to 3 million), why is there such a difference in the premium rates?

    I suspect docs are getting taken to the cleaners on the true cost of their malpractice insurance, because they ARE taught to quake in their boots at the mention of the word “lawsuit,” or “lawyer.”

    Finally, on the thought that plaintiff’s attorneys actually turn down cases. That I find quite true. Part of the job I do when I do case reviews is to tell the lawyer what cases either have no merit, or don’t rise to the level of negligence or malpractice that justifies expensive litigation. The attorney I do case reviews for has told me he takes on quite a financial risk: he and the client pay all the bills until the case is settled or a verdict is rendered . . . and investment he might lose in its entirety. So he’s very careful about the cases he DOES take.

    He often sends records to me first because I charge a fraction per hour to review a case compared to what a physician charges. If I look at a case and see nothing violating the standard of care, he might drop that case. If I’m not sure, or if I’m convinced there IS a case for negligence or malpractice, he’ll get the more expensive physician consultant to look at the records.

    Posted by: Panacea | June 30, 2011 at 06:24 PM

    I should add that several doctors suggested that didn’t understand how upsetting it is to know that you have a 1 in 2 chance of being sued–and that this drives defensive medicine. I agree that the threat of suit of horrible –
    this is why I used words like “harrowing” and “cruel.”

    • rbaer says:

      Maggie, I think your longer post above citing other doc commenters does not really disprove the doctors (incl. myself) concerns who think that medical litigation is a true problem in the US.

      And ironically, it sounds pretty defensive.

      I think there is some psychological research supporting the conventional wisdom that the more you are invested into a certain attitude/opinion, the less likely you are to ever change your opinion. I hope you are not at that point yet, and acknowledge that there are quite a few valid arguments made by posters that you could not really refute. I think it is never too late to rethink the entire issue, and I have made some suggestions how to get to a different perspective, suggestions that – as far as I know – fit very well with your modus operandi.

      And as a general comment, I perceive most of your posts as well intentioned, well reasoned and grounded in research (interviews and/or research), as opposed to other contributors who do quick posts based on trivial anecdotes and/or biased research from conservative think tanks.

  19. Peter says:

    Why is it that Maggie gets to decide what happens on The HealthCare Blog? I like reading the comments by Dr. Mike and MD Hell/Determined. Doesn’t Maggie have another blog that she can police? I really liked the fact that Matt didn’t delete people–very democratic–even if the comments were snarky. I am sad that now this site is turning into Maggie’s site.

  20. Maggie Mahar says:

    Determined M.D. — In response to your question :

    THCB’s editor e-mailed me and then called me a week or two ago and asked
    if I would come back to THCB. That’s why they are cross-posting me. He also
    offered to delete any abusive comments on my posts that focused on me as a person.

    (I had asked THCB to stop cross-posting my posts becuase I was tired of responding to you and perhaps two other trolls who consistently and persistently wrote comments that attempted to undermine my credibility while attacking me in a personal way.)

    Determined M.D. I recall when you used to sign your coomments “M.D. as Hell”
    I mentioned that your anger might be getting in the way of clear thinking ,
    so you announced you were changing your name to determined M.D.

    I

    • MD as HELL says:

      Since this is wrong, what is not wrong in your posts?

    • Nate Ogden says:

      “I was tired of responding to you and perhaps two other trolls who consistently and persistently wrote comments that attempted to undermine my credibility while attacking me in a personal way”

      So its ok for Maggie to call names but don’t call her one back?

  21. Maggie Mahar says:

    Peter–

    I don’t make decisions about what happens on THCB. The editor does.

    As I explained to Determined M.D. THCB asked me to come back, and offered to delete the personal attracs that the editor finds inappropriate.

    Most blogs have standards (some of them spelled out) refusing to publish
    personal attacks, defamatory language, etc. Most people find it adolescent and unpleasant, and once a thread dissolves into personal attacks of this type, other people just stop commenting on the thread.

    Matt also has e-mailed me about this problem in the past, and on one occasion, deleted a comment himself .

  22. Greg Pawelski says:

    I’ve read this blog off and on and am fed up with the constant, wasteful personal attacks and arrogance of some of the commentators. It is patently unfair for them to personally attack anyone else’s thoughtful opinions or information which just doesn’t meet with their personal opinions, People who are incapable of addressing the topic with civility at hand and instead launch into personal attacks, ususally by ascribing some neurosis that actually applies to them. There are certain number of “allrightnicks” who have appointed themselves the arbiters of truth. You just aren’t allowd to play in their sandbox (Nah! Nah! Nah! Nah! Nah!). Remember children like this? Maggie is providing information and a point of view, backed up by some very good data, I may add.

    • Nate Ogden says:

      greg does this include labeling people who disagree fear mongers, 5 times i count so far, and throwing in some “they lies” as wasteful personal attacks and arrogance? If you start a debate with a personal attack what sort of responce does that invite? While Maggie does provide a thorougly thought out argument from a liberal perspective with many studies, not all factual, to support it she also does so with considerable hate and viteral.

      If your going to denounce those that respond to this shouldn’t you also denounce the original attack that started it?

  23. Dr. Mike says:

    Maggie,

    It would have been nice to have been able to have a friendly discussion on this blog about this important topic. You raise some very valid concerns and convincingly show that there are behaviors by physicians that are detrimental to both themselves and to patients. But I cannot get past your framing of the argument in partisan terms. This shuts down debate before it even gets started. You say, “conservatives say blah blah blah” then I say I believe the same “blah blah blah” and viola, now I am a conservative perpetuating myths on the unsuspecting public. But you don’t know what I am. I have never believed in caps on damages. I have always felt that that I should be able to admit when I made a mistake, apologize, and have the patient compensated immediately. (I also happen to disagree with “conservatives” on many points) Who doesn’t want the current system reformed? You do – you hinted at some of the reforms you would like to see implemented. The debate is not about keeping the current system intact, it is about enabling it to achieve the goals you articulated briefly in your article. And yet here we have pages of diatribe against physicians and conservatives. It appears as if you want to win an argument and have your side prevail, not to work with the very people who are going to have to be assured of the value of your ideas. It is a shame that someone would choose to perpetuate the myth that everything has to be political.

    • Disappointed MD says:

      I defy the editors to let this comment stand, because this matter has deteriorated to letting a contributor to edit and censor rebuttals and dissent, and I will make sure people hear outside this site that it is not about fair and equal commentary at THCB following this piece and thread.

      As above, Dr Mike appropriately points out that Maggie Mahar is fairly partisan about her positions and agenda, and by censoring me and others I may not even know have challenged her, your site in my opinion is no longer appropriately titled “The Health Care Blog”, but in fact the “Matt Holt Propaganda Machine for Framing Health Care as Wanted by a Select Group.”

      So, have it your way. And run risk of being seen as not a source for reasonable and fair debate and opinion of health care matters. I give you my final statement as a former commenter here: Do the bidding of special interests and run the risk of being defined as a lackey.

      Good luck with that potential mission statement!

  24. Maggie Mahar says:

    Greg & rbaer

    Greg– Thank you!

    Rbaer- I agree that a 42% chance of being sued is frightening!
    When I say “don’t panic” I’m mainly trying to act as an antidote to the fear-mongers who make docs feel that every patient is a potential plaintiff.

    The fear-mongers -mongers suggest the that number of suits is increasing (not true, it’s fallling–see part 3) they sugget that the size of awards is skyrocketing (not true, they’re declining see part 3) and they suggest that mapractice premiumsm are spiraling (not true– nationwide, they’re down.)

    The fear-mongers don’t mind lying– and this means that they can have quite an impact.
    .
    But ultimately, my solution (part 3) is not simply to tell doctors “Don’t Woirry” but to suggest that we move away from an adverserial tort system and toward a system where hospitals and doctors can safely offer full disclosure of exactly what happened. (As long as doctors feel that the system is a)totally irrationa, and b) stacked agains them they won’t agree do acknowledging mistakes.)

    IF (and I emphasize “if) there was medical error the patient should be fairly compensated (ideally either the patient accepts the settlement the hospital offers, or insurance company offers, or the size of the settlement goes to arbitratoin.) And, as part of the settlement the hosptial (or doctor) presents it’s (his) plan for reducing the chance of such errors in the future. This really matters to many injured patients and doctors. They woudl like to feel that they are part of making things better for future patients.

    If doctors didn’t have to be worried about being dragged into court (unless what they did really constituted criminal negligence) then perhaps they wouldn’t fee obliged to practice defensive medicine and coulld focus more on
    what we know about how to practice safer medicine.

    Though I would add that hospitals should require that doctors follow safety protocols, and that hospitals themselves should be required to do the things
    that we know could reduce the incidence of everything from bed sores (which actually can prove fatal) to hospital acquired infections, medication mix-ups and wrong-site surgeries. Doctors who refuse to do this should lose their
    privileges at a hospital. Hospitals that fail to do this should face financial penalties from Medicare

  25. Greg Pawelski says:

    I agree that most substantial blogs do have standards, refusing to publish personal attacks, defamatory language, etc. I too find it adolescent and unpleasant to read personal attacks against articles written and comments stated.

    Perhaps Matt should discontinue allowing these people to hide behind Monikers. Putting your real name behind trash talk would seem to put a lid on this kind of behavior. If any of these children ARE actually doctors, they should be ashamed of themselves.

    After a health care provider makes an error, the family is kept in the dark about why it went wrong. They are given an explanation, even one that is technically accurate. However, it is not the complete explanation. Doctors are reluctant to admit fault and are unwilling to blame a colleague.

    If you are fortunate to hire a lawyer to find out what happened, you are not told because the state legislature has prevented the patient from learning that information, because of “peer review” privilege. This privilege allows the hospital to investigate the problem without disclosing its findings to the patient. And, in court hospitals hide behind “peer review” protection.

    It is incredibly expensive to file a malpractice case. You must locate a skillful lawyer who is willing to take the case and advance upwards of $50,000 of his or her own money for the expenses necessary to prove that one case. Why does it cost so much? Because you must have your own experts, often several of them, who are willing to testify that the doctor made a mistake and that the mistake affected the outcome. Truly qualified experts are not easy to find.

    The defense has sufficient resources to overwhelm the patient. Historically, doctors flock together. For every one expert you have, they have three experts.

    Cases can take years before getting to trial. Why does it take so long? There are several reasons, including the fact that these cases are complex, have multiple experts and take up more trial time because of the number of witnesses.

    At a trial, the patient faces a jury that has been told repeatedly that there is a medical liability crisis. That jury is prejudiced against your case, even though they have not heard one word about the case. For those patients who get their cases to trial, about 65 to 70 % of them will lose.

    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. If it’s the profits of these doctor-owned insurance companies that doctors want to protect, I suggest getting rid of those 5.9 percent of doctors who are responsible for 57.8 percent of all malpractice payments.

  26. Barry Carol says:

    What I would like to better understand is what impact, if any, does the litigation environment in the U.S. generally and doctors’ perceived risk of lawsuits specifically have on how the standard of care is developed in the various specialties and primary care? Is there much difference in the standard of care in the U.S. vs. other developed countries? If so why? Perhaps some of the doctors could shed some light on this.

    Also, with respect to malpractice and defensive medicine specifically, I think we need to look at care that takes place in a hospital setting separately from care that happens in an individual doctor’s office outside of the hospital. Issues like process, handoffs, infection control, patient safety, timeouts, checklists, and the like are relevant issues in the hospital setting. Failure to diagnose is the more significant issue, I think, with respect to care outside of the hospital. It’s well known, for example, that we do far more imaging per 100,000 people than most other countries and we have much more imaging equipment as well. Imaging is also a good revenue generator, at least until recently. While a lot of imaging is done in Japan as well, their machines are far cheaper than ours but not quite as good. The Japanese, though, perceive them as good enough so they’re well accepted by the population and lawsuits of all types are relatively rare in the Japanese culture.

    • rbaer says:

      @Barry and Maggie,

      “Failure to diagnose is the more significant issue, I think, with respect to care outside of the hospital.”
      I agree – but it is almost certainly an important issue in the hospital as well, as a poor outcome may be due to a missed- or misdiagnosis. Misdiagnosis in medicine does not automatically mean incompetence or negligence. But if the outcome is poor, it is all too easy to find an expert who states, with hindsight knowledge: “oh, diagnosis Y would have been made by a reasonable colleague”.

      However, Maggie, your reply to this issue tends to be: but see how poor US docs do in terms of EBM, hand hygiene, how much waste, error and fraud there is – I am among the first to admit that there is a varying extent of truth to most of these issues … but hand hygiene and failure to use EBM has little or nothing to do with litigation. Please separate the issues of “things that should be improved in healthcare because it would save lifes and/or money” and “medical litigation”. The latter will never be a good tool to improve the former … but there are other options.

      One quick word to the 2 European voices that you (MM) mention;
      (1) people in the US talk in general more about money, and more freely (that’s a definite difference in general culture). There are probably way more docs in the US who have a distinct entrepreneurial perspective, but that perspective – let’s just call it greed – exists in Germany as well, not so much in hospitals, but a lot in outpatient medicine. However, there IS a difference, in degree.
      At least in my nonsurgical specialty academic department, money does not appear to be a great motivator for individual docs, but it is formally discussed quite often because there are “production” expectations, coding mistakes etc.
      (2) ABx for earaches – there is quite some literature about this (unfortunately very few studies comparing cultures). It has a lot to do with patient expectations. The nonindicated ABx prescriptions are correlated with the doctors perception that the patient wants them.
      (3) same for PSAs and other tests. US americans (docs and pts alike) very often have the optimism that you can solve a problem just by throwing more things at it. The majority here wants stuff done, even if the evidence suggests that the action is not beneficial (be it cancer screening or treatment of terminal conditions). Most Europeans are rather skeptical and more often opt for/tend do let things run their course if action is not promising. There is an interesting book that I can highly recommend
      http://www.amazon.com/Medicine-Culture-Revised-Lynn-Payer/dp/0805048030
      even though it is unfortunately now rather outdated.
      As a side note, a lot of this in reinforced by what I’d call “hollywood narrative” – e.g. “Lorenzo’s oil”, “House”, “mystery diagnosis”.

      “Is there much difference in the standard of care in the U.S. vs. other developed countries? If so why?”
      Yes, I believe there is, and it can be summarized as various aspects of culture (we are talking about degrees and proportions here, not absolutes):
      -national/general culture: patient as paying customer , the newest/latest is the best, medicine is part of wellbeing/wellness (US); Europe: the patient is to be served but also is expected to adjust to the means of society and the HC facility he ends up in/with; and more individuals think that drugs are unnatural and should be avoided (and even more so, surgery); authority: you don’t argue with the busy doc
      -microculture of medicine: the more you do (diagnostically and therapeutically), the more patients and families will expect. If you want to stand out, as a provider or HC institution, you may have to offer even more, others catch up, this ends up being a self reinforcing feedback loop.

  27. Maggie Mahar says:

    Greg, Dr,. Mike, Rbaer

    Greg– Yes, I do notice that many (though not all) readers who are abusive and inclined to personal attacks hide behind monikers. Thanks for your support.

    Dr. Mike– On whether malpractice is a partisan issue. Did you read my July 13, 10 :08 a.m. reply to Richard? It is widely known and widely agreed that this is a partisan issue– like gun control. I’m happy to believe that you are not conservative. There are always exceptions. But if you look at the history of votes on malpractice reform, and if you look at the platforms of the Republican and Democratic parties, you will find that, on this issue, things break down along partisan lines.

    Rbaer–
    Thank you for your continued civility. I realize that malpractice is a very senstifive issue. I suspect that when you read part 3 and see parts 1 and 2
    in that context, you’ll feel better about what I’m saying. I’m not saying that doctors shouldnl’t fear malpractice suits. Brandeis was right: there are two things to fear in life: death and litigation.
    I’m saying that fear-mongers have played on those fears for their own reasons.
    And I’m suggesting that practicing defensive medicine really doesn’t protect a doctor against most suits, with the exception of “mis-diagnosis”–only about 17% of all claims. So many errors take place in hospitals where more than one healthcare worker is involved, and often the problem is the “system’ (or lack of system.” We need to and can do better. Then fewer patients willl be
    harmed, and fewer doctors will be sued. A win/win.
    Finally, when errors do occur, I think that full disclosure, acknowledgement If there is an error, compensation without going to court, and trying to figure out how to prevent the same thing from happening to another patieint is a win/win/win/wn.

    Going to trail seems to me almost a lose/lose –both for the plaintiff and for the defendant, whoever supposedly “wins.”

    • Dr. Mike says:

      Maggie,

      It is completely possible to address a partisan issue in a non-partisan way. It would certainly make your article much shorter, but I think the impact would be greater.
      It seems likely to me that the group of people most likely to advance the type of reforms you seem to be in favor of are the very people whom you find so disagreeable. I really don’t see democratic politicians nor trial lawyers appearing eager to address the issue at all. It is the conservatives you so revile that are clamoring for reform. Maybe the wrong reforms and maybe for the wrong reasons, but that does not mean that their energies could not be channeled into to championing the “right” reforms. That is, unless they happen to read your article…

    • rbaer says:

      The 17% number is almost certainly not correct – there was that recent JAMA article about litigation in the outpatient setting
      http://jama.ama-assn.org/content/305/23/2427
      indicating that put the number is at 46%.
      I also talked to a well respected malpractice lawyer mostly or exclusively defending docs and his estimate of “failure to diagnose” being a prominent part of a claim was 50%.

      I don’t want to repeat myself over and over and I feel I have written way too much about the topic, but as much as your replies are appreciated, they often do not address the most salient point. I am certainly looking forward to part 3, but your stated opposition to health courts does not sound too promising. Partisan expert review is mostly worthless, and juries are overwhelmed figuring out on which side the truth is, or whether it is somehwere in the middle … and that confusion, by the way, may be very well to the detriment of the plaintiff.

  28. Maggie Mahar says:

    rbaer:

    First, let me say that I don’t at all mind the fact that you persevere in your arguments. You are clearly genuinely interested in the facts, and issues at hand.

    i’m happy to debate and exchange information. That’s the purpose of a a blog-post thread. You also have made me realize that I over-did my well-intended “don’t panic” theme in parts 1 and 2. I’ll try to correct for that in part 3.

    Also, the Century Foundation (the non-profit think tank where I work) will be publishing all three parts as an Issue Brief sometime in the near future. Your feed-back will be helpful as I revise the posts for the brief.

    On 17% diagnostic errors: The sources are pretty good: “According to the IOM report, 17 percent of preventable medical errors are errors in diagnosis.” https://www.asrt.org/Content/GovernmentRelations/LegislativeNews/Federal/IOM_Report.aspx
    “All in all, diagnostic errors account for 17 percent of adverse events in hospitals, according to the Harvard Medical Practice Study, a landmark study that looks at medical errors.” http://turningpointhc.com/new/knowledge-center/the-startling-truth-about-doctors-diagnostic-errors

    Both companies that sell diagnostic equipment as well as fear-mongers have persuaded doctors that “failure to diagnose” is a major cause of malpractice claims.

    In fact, claims of misdiagnosis are particuarly hard to bring because of the ambiguity and uncertainties of medicine. A plaintiff’s attorney won’t bring the case unless he is pretty sure that he will win.

    By contrast, if an instrument was left inside the patient during surgery; if he developed an infection as a result of surgery and there is evidence that the OR was not entirely clean—these are much easier cases to win.

    You write that “the more you do (diagnostically and therapeutically), the more patients and families will expect. If you want to stand out, as a provider or HC institution, you may have to offer even more, others catch up, this ends up being a self reinforcing feedback loop.”

    Rbaer, we are the only country in the developed world that has decided to turn health care into a l for-profit enterprise. If the goal of healthcare is to make money, then you are right, many doctors will feel obliged to give the patient or family whatever they want– even if this means exposing the patient to unnecessary risks and suffering by agreeing to an unnecessary test, procedure or futile end-of-life treatment. And, in this country, some health plans may well pressure doctors to please the patient, following the “customer is always right” business model.

    But many U.S. doctors refuse to pander to patients. If they think a treatment or test is not the patient’s best interest, they say no. You sound like a good doctor. My guess is that you have said “no” to patients.

    (Good doctors usually don’t worry that the patient will drop them. They have as many or more patients than they have time to see. )

    And places like Kaiser, Mayo Clinic, Geisginer, and Intermountain encourage doctors to say “No” to patients who want unnecessary care.

    On a personal note: My daughter is having a baby in a few weeks at a hospital that does fewer C-sections than any other hospital in New York State. It refuses to arrange C-sections for women who want to ‘schedule” their baby’s birth for convenience (or because they don’t want to go through labor.

    We know that unnecessary C-sections expose mother and child to unnecessary risks. At the same time, C-sections are more lucrative for hospitals. (And this hospital probably has to pay higher malpractice insurance rates because it refuses to do unnecessary C-sections. Sometimes parents sue because an unncessary C-section was done, but they are far more likely to bring a claim –which they may well later drop during “Discovery”–because a C-section wasn’t done.)

    This hospital has an outstanding safety record.

    Pediatricians at this hospital also insist that babies have standard vacinations. When my daughter met with her future pediatrician, he asked her how she felt about vaccinations. She said: “We want them.”

    “I ‘m so glad” he replied. “I was afraid I was going to have to argue with you. ”

    The Ob-gyns, nurse-midwives and pediatricians affiliated with this hospital
    have made her feel that they have plenty of time to answer her questions. And this is not one of NYC’s wealthiest hospitals. It doesn’t offer the hotel-like amenities that some hospitals provide. All rooms in the maternity ward are double-occupancy. But it does offer very safe care.

    Hospitals in the U.S. do far more C-sections than hospitals in Europe. Both infant mortality and maternal mortality rates in the U.S. are signfiicantly higher than in Europe—even if you only compare white patients in the U.S. to white patients in Europe.

  29. Maggie Mahar says:

    Dr. Mike–

    First, thank you for reaching out in a much less adversarial way.

    I appreciate that.

    On why I present this as a partisan issue;

    First, becuause that is the reality–not necessarily among doctors (who by and large are, understandably, distressed about malpractice claims)– but among the population as a whole.

    Physicians make up a tiny percentage of the population, and a tiny percentage of those who have real power in Washington.

    If want to understand politics, you need to follow the money.Conservatives are correct when they say that plaintiffs’ attorneys contribute relatively large sums to liberal poiticians.
    Meanwhile business interests and Wall Street cointtrubte more to conservatives,and are by and large, in favor of tort reform that would, in their words, hopes and dreams, “bankrupt the plaintiffs’ bar.) .

    What most doctors do not understand is that they are relatively small players–pawns, I would say– in the larger fight over tort reform. Mapractice claims and the awards–represent only a small percentge of perxonal injury suits and awards. (Think of asbestos suits, lawsuits against automakres that have produced unsafe cars, or cars with unssafe tires; lawsuits against tobacco-makers.\

    Conservatives, and the business interests that fund them, object to individuals/consumers bringing a personal-injury case against any corporation or business becausse this coudl reduce corporate profits. (These suits have had a huge effect on profits the asbestos industry and cigarettte-makers. Wall Street hates this.)

    The tend to highlight malpractice suits because, compared to asbestos suits (which are very technical and borign) these lawsuits push emotional buttons and generate headlines.

    These business lobbyists really do not care about doctors, one way or the other. But they are the folks driving the conservative “fear-mongering” over torts (personal injurty suits) of all knds.

    I wrote about Wall Street for more than 20 years. I understand how it works.
    And I understand how important campaign contributions are to what happens in Washington.. This is, of course, totally unacceptable. But at this point in time, this is how things work.

    I want my readers to understand, this is why I try to point out the motives–on both sides– of those who argue over malpractice reform.

    • Nate Ogden says:

      “Meanwhile business interests and Wall Street cointtrubte more to conservatives”

      The wealthy securities and investment industry, for example, went from giving 2 to 1 to Democrats at the start of 2009 to providing almost half of its donations to Republicans by the end of the year, according to new data compiled for The Washington Post by the Center for Responsive Politics

      As far as business;

      GE
      Google
      Microsoft
      Facebook
      etc etc

      “Conservatives, and the business interests that fund them, object to individuals/consumers bringing a personal-injury case against any corporation or business becausse this coudl reduce corporate profits.”

      This is extremly dishonest and inflamatory. You have nothing to support this and should be ashamed to make such blanket statements while decrying personal attacks on yourself. Conservatives fully support injured individuals being compensated fairly, its what is fair that we disagree with the trial lawyers about, To frame this as conservatives and business object to any case is disgusting.

      Thank you for showing the readers how you truly are though. What was it Greg said so perfectly;

      “ususally by ascribing some neurosis that actually applies to them.”

  30. Barry Carol says:

    The whole asbestos mass tort litigation was absolutely scandalous. Literally dozens of companies were bankrupted by this, many of which had only a tiny percentage of their sales from products that contained asbestos or had a tenuous and small connection to asbestos products at best (worst). For every legitimate cancer or mesothelioma claim, there were hundreds and sometimes thousands of marginal or even non-meritorious claims that were bundled together in class action lawsuits. Settlements resulted in huge paydays for the handful of law firms that handled most of the filings. Some of the senior lawyers involved became extremely wealthy from asbestos litigation. Many claimants who received money were not sick but got paid anyway because it was too expensive to try the cases Others who did become sick had already lived a normal lifespan and then some. Then, the same crowd tried to extend this racket to something called silicosis on behalf of many of the same claimants though medical experts tell us that it is extremely rare that any given person would have both asbestosis and silicosis. A conscientious judge put a stop to that fraud fairly early one. This is justice? Give me a break. It’s no wonder that doctors fear being sued because there was an unfortunate outcome or a failure to diagnose but no malpractice.

    • Nate Ogden says:

      Look at a more recent scandal Pigford 1 and 2 settlements. A perfect example of trial lawyer abuse and abuse of the legal system. Then look at Maggies proposed reforms to tort, not one to address bogus lawsuits and fraud like this. If as a conservative you take issue with outright fraud like Pigford all of a sudden your labeled as opposing all lawsuits for poor hard working injured people, labeled a fear monger, and have your comments edited and stricken so no one dare queston the dogma.

      This is from one of the black farmers injured in the real discrimination, the ones that weren’t helped like they should have been becuase all the money went to the attornies and crooks.

      Pigford is the biggest rip-off this country has ever known, and there are lots of people in positions of power that know it. Politicians are using it to buy votes. Trial lawyers are using it to get rich.

      I personally know of people who have no connection to farming at all who got Pigford checks. People with potted plants in their apartments claimed to be farmers and got paid. I saw an instance where eight Pigford checks went to one house. There are drug addicts and pushers who have received payments who have never farmed a day in their life.

      There was discrimination at the US Department of Agriculture. It needed to be dealt with. I was suing the USDA before Timothy Pigford even filed suit. I wrote to attorney Al Pires, who eventually filed a class action lawsuit against the USDA, but he saw that there wasn’t going to be a huge amount of money for him. So he passed. What he did find was a way to work a scam from inside the Star City, Arkansas USDA office by paying a USDA employee to process claimants. This employee would take from $5,000 to $25,000 for each successful Pigford claim. Pires was in this totally for the money. He’s made far more money than any black farmer.

  31. Maggie Mahar says:

    The most recent comments on this thread (by Barry and 2 comments by Nate) have nothing to do with malpractice suits

    They are talking about personal injury lawsuits brought by consumers in
    many areas (asbestos etc.) This only confrims what Public Citizen say”
    “It is clear that this call for limits on the ability of injured patients to seek redress in court is just one piece of a larger effort by the business lobby to protect businesses from being held accountable when they recklessly or negligently hurt people.”

    The American Enterprise Institute makes the same point– I’ll talk about what they have to say in part 3.

    • Nate Ogden says:

      “The most contentious issues involve medical malpractice and product liability.”

      Maggie please explain what product liability has to do with Malpratice suits.

      “Also: “Tort reform remains a major policy objective of the Republican party. The 2008 Republican platform continues the pledge to reform what is described as corruption in the civil litigation system”

      Here you make another broad reference to the legal system as a whole.

      ““The Republicans in the House want to quickly satisfy their constituents who have been pressing for tort reform for 15-20 years–which to most of them means hard caps on non-economic damages. Yet the Senate Democratic Leadership is known to be quite sympathetic to the personal injury lobby, which is adamantly opposed to all tort reform, particularly caps on damages

      Finally, this from the New York Times “about.com”
      “Conservatives are typically supportive of reforming tort litigation.

      Two more references to the broad system as a whole and your opinion of what conservatives believe and are trying to accomplish.

      “Conservatives are correct when they say that plaintiffs’ attorneys contribute relatively large sums to liberal poiticians.
      Meanwhile business interests and Wall Street cointtrubte more to conservatives,and are by and large, in favor of tort reform that would, in their words, hopes and dreams, “bankrupt the plaintiffs’ bar.) ”

      “Conservatives, and the business interests that fund them, object to individuals/consumers bringing a personal-injury case against any corporation or business becausse this coudl reduce corporate profits.”

      None of these comments are malpratice, you made general and usually inflamatory, stattements about conservatives and those were responded to. Then you try to dismiss them as off topic?

      You need to do some reserach Pigford is about racial discrimination by the USDA not personal injury. Now that the readers know the correct facts care to explain how that confirms what Public Citizen says?

      Pigford doesn’t even have a business as the defendent yet you try your slight of hand to blame it on business and conservatives.

      I have no problem with blog owners dong what ever they want with their blog but perpatrating this double standard needs discussed. How can you protect Maggie and censor people that respond to her while allowing her to label people trolls, fear mongers, and liers while she so blatantly distorts the truth. If a set of stanards is going to apply to those who disagree with Maggie, she herself should be expected to live by them.

      • DeterminedMD says:

        Which is why this site is becoming a fraud. Watch out Nate, you will be next, guarantee it!

        Sorry, had to comment after reading that last paragraph, as I was interested to see where the thread went after my abrupt exit.

  32. Barry Carol says:

    “Both companies that sell diagnostic equipment as well as fear-mongers have persuaded doctors that “failure to diagnose” is a major cause of malpractice claims.”

    Maggie –

    While diagnostic imaging may be the first thing that comes to mind when one thinks of defensive medicine to avoid a potential failure to diagnose claim, it goes well beyond that. It can include lots of other things like blood tests, colonoscopies, biopsies of various types even when the doctor thinks the issue is probably nothing to be concerned about, cardiac stress tests, and even angiography, among others. Doctors who order most of these tests are unlikely to benefit financially from doing so in most cases.

    I think it might be helpful if you specifically ask some of the doctors you know to what extent they practice defensive medicine, why they do it, and how much of the aggregate cost of the healthcare utilization driven by their decisions was ordered largely for defensive reasons. Ask for a ballpark guesstimate and see if the answer clusters around a narrow range of numbers.

    I think the issue of litigation risk, from a doctor’s perspective, has a lot to do with the perceived uncertainty of the outcome of a specific malpractice claim should one be brought as well as the stress of being involved in one and the length of time it takes before it is brought to a conclusion one way or the other. Ordering defensive tests or procedures that are unlikely to cause harm and are largely paid for by third party insurers, including government payers, are the path of least resistance. At the same time, patients often want these tests, especially imaging, because they’re not invasive while patients in other countries are less likely to ask for them if the doctor doesn’t think they’re necessary.

    By contrast, things like timeouts and the use of checklists cost NOTHING and are unrelated to defensive medicine. They are patient safety issues pure and simple.

  33. Frank Castle says:

    Written just like OweBama — someone who has never been on the business-end of a lawsuit. Who’s never work on the floor of a busy hospital.

    MM also left out “Bush’s fault.” Soros won’t like that.

    GIGO.

  34. Maggie Mahar says:

    To my more outspoken critics:

    You guys are so angry. I have to wonder, why?

    (I’m really not that important or powerful.)

  35. Not to hijack this thread, but I’m looking for a good Fresno attorney and I can’t figure out how to find them do you know anything about this Fresno attorney? Its based out of Fresno, close to my office I can’t find reviews on them — Fresno Attorneys, 1713 Tulare Street #215, Fresno, CA 93721 – (559) 460-0529

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