The Return of the Angry Granny State

The Return of the Angry Granny State

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Texas should call itself The Granny State. That’s because it’s a nanny state in which the public officials who run the place have the values of a tea-totaling, Bible-thumping biddy who knows how God wants everyone to live and can’t resist telling them. No buying liquor on Sundays when people are supposed to be at church. No gambling ever. No whacky-weed for medicinal uses or recreation, even in the privacy of one’s home. No gay marriage, preferably no gays, and no transgender folk deciding which restrooms to use. And, of course, no sex, sex education, birth control, or abortions. Women should have sex only in marriage and then only to reproduce, and those who get pregnant must carry their babies to term, regardless of the consequences for themselves or anyone else.

These religion-inspired policies have served Texans poorly. The state’s maternal mortality rate nearly doubled in just two years after Texas cut its budget for family planning by two-thirds and eliminated funding for Planned Parenthood clinics. It’s now the worst in the developed world, not just in the US. Texas ranks 8th from the bottom in the frequency of STDs and has the 5th highest teen pregnancy rate too. Its 35 births per 1,000 girls aged 15-19 are nearly double the national average. Meanwhile, Colorado and other states have achieved miraculous reductions in teen pregnancy rates and abortion rates by providing young women with long-acting contraceptives, like implants and IUDs. If Texas is following God’s plan, then God’s plan is a bust.

Now Granny is once again sticking her nose where it doesn’t belong. Currently before the Texas legislature is Senate Bill 25, which would eliminate the wrongful birth cause of action that the Texas Supreme Court recognized four decades ago in Jacobs v. Theimer. The facts were as follows. While traveling, Dortha Jacobs became ill. Upon returning home, she consulted a physician, Dr. Louis Theimer, who discovered that she was newly pregnant. Fearing that the illness was rubella—also known as the German measles—Jacobs asked Dr. Theimer if there was reason for concern. Rubella can injure a gestating fetus severely. Dr. Theimer told her not to worry, but he did so without performing an available diagnostic test. In fact, the disease was rubella and the child “was born with defects of brain, speech, sight, hearing, kidneys, and urinary tract,” among others. The medical expenses were extraordinary.

The Jacobs sued for medical malpractice. In defense, Dr. Theimer argued that his mistake could not have harmed them. When Mrs. Jacobs became pregnant, the US Supreme Court hadn’t yet decided Roe v. Wade and abortion was illegal in Texas for all purposes except to save the life of the mother. Because the baby’s defects did not endanger Mrs. Jacobs, Dr. Theimer contended that abortion wasn’t an option for her. She’d have had to deliver the baby even if he had identified her illness correctly. Therefore, she and her husband would also have had to bear the infant’s medical costs.

The Texas Supreme Court disagreed. Abortion was illegal in Texas, it reasoned, but the procedure was lawful elsewhere. Consequently, Dr. Theimer had to give the Jacobs the information they needed to choose among their available options, including the option of having an abortion performed in another state. By misdiagnosing the illness, he therefore caused their loss and was on the hook for the extraordinary medical costs. (To be clear, Dr. Theimer was not responsible for costs the couple would have borne in the course of raising a healthy child. A healthy child is regarded as a gain, not a loss, even when a pregnancy is unwanted.)

SB 25 would eliminate the wrongful birth cause of action by making it impermissible for anyone to recover damages by claiming that they would have terminated a pregnancy instead of carrying a baby to term. The bill provides that “[a] cause of action may not arise, and damages may not be awarded, on behalf of any person, based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted.” Had the bill been law in 1975, the Jacobs would not have been able to argue that, but for Dr. Theimer’s negligence, they would have aborted the baby. They’d have had to pay for all the surgeries and other treatments the child needed, expenses that, today, would into the millions.

SB 25, which offers parents in the Jacobs’ position no financial help at all, has already passed the Texas Senate and seems bound to pass the House. Its success is assured because, politically, it is a two-fer. Texas’ Republican lawmakers are eager to free doctors from financial responsibility for medical errors and to advance the Christian right’s anti-abortion agenda. SB 25 does both.

The bill will cause problems, though, first and foremost because it allows medical providers to make errors with impunity. Given the frequency with which mistakes occur, Texas’ leaders should be strengthening the incentives providers have to exercise reasonable care, not emasculating the state’s already-weakened malpractice liability system.

 

The wording of SB 25 is also too broad. Suppose that a woman with a defective uterus becomes pregnant, that her ob-gyn negligently fails to identify the defect, that late in the pregnancy her uterus ruptures, and that the woman dies or is severely injured. If SB 25 becomes law, neither the mother nor her survivors will be able to recover from the ob-gyn. Their claim would be that, but for the doctor’s mistake, the mother would have protected herself by aborting the fetus instead of carrying the baby to term—precisely the claim that SB 25 would forbid. The bill would thus eliminate civil liability for negligence committed in the one context where abortion has always been lawful in Texas—to protect the life of the mother.

 

There’s no need for the bill either. In 2003, Texas eliminated the possibility of excessive damage awards in medical malpractice cases by capping patients’ damages. Both the number of malpractice claims and physicians’ insurance premiums are at historic lows. Wrongful birth cases are rare too. Although the available data do not quantify them precisely, a study by The Doctors Company finds that most malpractice claims against obstetricians involve delays in treatment of fetal distress or improper performance of vaginal delivery. Wrongful birth claims are brought too infrequently to have their own category.

 

SB 25’s supporters are offering two types of argument in support of the proposal. One is the worn-out assertion that the bill will attract doctors by making Texas a safer place for them to practice. Texas is already one of the most doctor-friendly states in the US—Emergency Physicians Monthly ranks it among the top four—and the assertion that tort reform brings doctors into the state has been thoroughly disproven. Texas’ leaders should be ashamed of themselves for repeating this falsehood.

Another argument is that wrongful birth lawsuits insult disabled persons by telling them that they would have been aborted had their parents known of their impairments. This is an example of good intentions gone astray. In all lawsuits, parties say unpleasant things about others. Plaintiffs accuse defendants of neglecting duties, committing frauds, breaking agreements, and being dishonest. Defendants accuse plaintiffs of spouting falsehoods, exaggerating injuries, and being responsible for their own losses. One wishes that civil justice could be delivered with fewer insults, but it is a blood sport and always will be. The main point, though, is that parents of children borne with serious defects need resources. Only with those in hand can they love their children and provide for them too. When the choice is between a dignitary loss and the money with which to pay for life’s necessities, the decision is easy, even if it is also made with regret.

 

Charles Silver is a professor at the University of Texas School of Law and a co-author of After Obamacare: Making American Health Care Better and Cheaper (forthcoming 2018).

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19 Comments on "The Return of the Angry Granny State"


Member
Allan
Apr 27, 2017

“Given the frequency with which mistakes occur, Texas’ leaders should be strengthening the incentives providers have to exercise reasonable care”

Is your claim that physicians don’t have enough incentives to provide reasonable care? At various times in some areas of the country physicians have refused to do obstetrics because of their liability.

I’m not commenting on the wording of the law or whether or not it might be too broadly applied. You can further enlighten us on those aspects.

I note you say the following below, but I’m not sure what low is or how low low malpractice awards are with regard to obstetrics.

“In 2003, Texas eliminated the possibility of excessive damage awards in medical malpractice cases by capping patients’ damages. Both the number of malpractice claims and physicians’ insurance premiums are at historic lows.”

We have to remember that medical liability limits patient access to healthcare especially those that are needy. It also causes costs to rise so that medical insurance becomes unaffordable. We can look at either side of the coin on malpractice issues and find merit, but one can’t simply pick a side and find some major problems. Obstetrics insurance in Texas is high in comparison to other specialties. Basic insurance might not cover the costs of the claim you discussed so to be covered for such claims would incur even higher costs.

Member
[email protected]
Apr 28, 2017

Hi Allan,

Thanks for the comment. Unfortunately, we disagree greatly about certain facts, and that could prevent us from having a constructive exchange. Here is my understanding.

First, the point that providers’ incentives to exercise reasonable care are deficient is so clear as to be unarguable. Empirical studies of med mal litigation show that patients with meritorious claims are routinely and substantially under-compensated for their losses, which implies that providers are not forced to internalize the costs of medical mistakes. Third party payment for services also weakens incentives by insulating providers from competitive forces that motivate sellers of other types to serve consumers better by improving quality. The examples of quality problems that could be cheaply avoided are many, and include such things as CLABSIs and other HAIs. There is also the problem that providers often make more money when patients are injured or suffer complications than when they fare better.

Second, the evidence on volume/quality relationships with which I am familiar indicates that it is good, not bad, that most doctors have stopped delivering babies part-time. Here and in other practice areas, we want to encourage specialization and high-volume provision. The problem of access in rural areas may require special accommodations, but that should not distract attention from the fundamental proposition.

Third, my research group studied payments in med mal cases in Texas involving perinatal injuries (patient age 0-1 months). You can find the results here: https://experts.illinois.edu/en/publications/malpractice-payouts-and-malpractice-insurance-evidence-from-texas. We also studied the impact of the 2003 tort reforms on payments. You can find those results here: https://www.scholars.northwestern.edu/en/publications/does-tort-reform-affect-physician-supply-evidence-from-texas. Nutshell summary: payments tend to be small and, more importantly, to be fully funded by insurers, and payments dropped through the floor after tort reform took effect.

Fourth, there is little evidence that med mal liability is a significant driver of health care spending or that it impedes access to medical services. Claims to the effect that it generates hundreds of billions of dollars in spending on defensive medicine or drives doctors out of states are wildly overblown. Providers are fond of making these claims because it is easier for them to blame the legal system and lawyers for the problems of the health care sector than to take responsibility for them. My research group studied defensive medicine and physician supply in Texas pre- and post-tort reform. You can find the results here https://www.scholars.northwestern.edu/en/publications/will-tort-reform-bend-the-cost-curve-evidence-from-texas and here https://www.scholars.northwestern.edu/en/publications/does-tort-reform-affect-physician-supply-evidence-from-texas. Nutshell summary: Texas neither attracted doctors nor reduced medical costs by (nearly) eliminating med mal lawsuits.

Best wishes,

Charlie

Member
Allan
Apr 29, 2017

Part 2: “we want to encourage specialization and high-volume provision.”

That has certainly been accomplished in some areas. Woman have problems finding an obstetrician and when delivery comes the obstetrician frequently isn’t there on time to actually deliver the baby. When the concentration of the specialty becomes so great one recognizes that the doctor can be in only one place at a time. Many woman don’t have an obstetrician available and have to use a midwife. I am not against such usage, but that does mean less training for those delivering babies and more responsibility placed on those obstetricians still in practice. You mention that exceptions might have to be made in rural areas, but we are seeing the lack of obstetricians at the delivery table in well populated areas.

Most of the doctors I know weren’t delivering babies part time as an afterthought as you might be suggesting, rather they were delivering them on a regular basis. In many physician practices some of the physicians stopped practicing the obstetrics part and let their patners do deliveries. That type of practice has existed for a long time.

Part 3: “Nutshell summary”

I haven’t read these particular studies, but from your summary it seems like the variables included were few in number. That is typical of a lot of studies that attempt to prove a certain dialogue. Unfortunately decades later we learn that there were other variables not thought of at the time and led to conclusions that were meaningless. With all due respect I find a lot of studies (not mentioning any in particular) very thin proving very little true information because of the selection process.

Part 1: “Empirical studies of med mal litigation show that patients with meritorious claims are routinely and substantially under-compensated for their losses, which implies that providers are not forced to internalize the costs of medical mistakes.”

Perhaps the practice of medicine is a bit harder than many suggest. Perhaps physicians need more training yet some prefer midwifes and Nurse Practitioners to provide care. Nothing wrong with either viewpoint, but we need to be consistent in our desires. You are suggesting that malpractice is willful, but I don’t think that is the case. I think we expect too much from the physician community and I think malpractice keeps the problems silent when what we need is discussion of those issues where physicians feel things could have gone better.

At the present time physicians are being overburdened with regulations, many of which interfere with the time available for the patient and the time available for consideration of the problem. They are becomming a hinderance.

It seems we disagree over a lot of issues, however you do provide a problem, third party payer, that we agree upon. It is my contention that if third party payer didn’t exist the malpractice situation would significantly change likely for the better. I am not against malpractice for it protects me from having to compete in the direction of the lowest common denominator. On the other hand I do find your “trial attorney” viewpoint to be mostly errant, IMO. I also think you underestimate the effect of malpractice on the physician community with the resultant high costs for marginal care.

Member
[email protected]
Apr 29, 2017

Hi Allan,

Thanks for the detailed response. I appreciate the direct and sustained engagement.

Re the shortage of obstetricians: I did a little searching and found a recent article on the subject: http://file.scirp.org/pdf/SS20110200012_56241038.pdf. I do not know the journal, but the authors are at the Ohio State University College of Medicine, so I assume they know what they’re talking about. Here is what they say.

There are multiple reasons for the shortage of physicians in the U.S including the specialty of Obstetrics and Gynecologists (OBGYNs). The chief cause is continued growth in the U.S population and a static supply of physicians necessitated by a freeze in the funding of the number of training residency positions at 1996 levels through the Balanced Budget Act of 1997.

This is the same point that David Hyman and I made in a prior post. Doctors and politicians are responsible for the ongoing physician shortage. http://thehealthcareblog.com/blog/2017/04/12/whos-to-blame-for-the-shortage-of-doctors-doctors-and-politicians/. The authors also mention that medical students are choosing to specialize in areas of obstetrics that do not involve deliveries. They do not identify malpractice liability as a significant driver of the shortage.

Re the soundness of my research group’s studies of the size of med mal payments and their sources: These are simple descriptive studies that are based on a comprehensive dataset that was audited for accuracy and completeness. They were peer-reviewed, published in leading journals, and are recognized as significant contributions to the literature on medical malpractice litigation. Limitations on the data are noted in the studies.

Re internalization of malpractice costs: No, I am not suggesting that malpractice is willful. It occurs because delivery systems are poorly designed, and it occurs despite the strong desire of the vast majority of doctors, nurses, or other providers to help patients. The failure to internalize costs helps understand why delivery systems leave open as many opportunities for errors to occur and for patients to be harmed.

Re malpractice liability causing silence about errors: This is a common assertion and one that David Hyman and I have studied and written about repeatedly. The truth is probably the exact opposite: malpractice liability brings to the surface errors that would otherwise remain hidden because the culture of medicine discourages providers from talking about mistakes. Rather than repeat the many pieces of evidence that support this view, I will link you to one of our articles: http://cornelllawreview.org/articles/the-poor-state-of-health-care-quality-in-the-u-s-is-malpractice-liability-part-of-the-problem-or-part-of-the-solution/.

Re “my ‘trial attorney’ viewpoint” and the impact of malpractice on physicians: I am an academic researcher, not a trial attorney. I’ve never been involved in a medical malpractice case. My goals are to understand the operation of the civil justice system, its collateral effects on the health care system, and, more recently, the problems of the health care system itself. I think that the vast majority of the problem of health care have straightforward explanations that do not involve the legal system. Usually, the payment system or the political system is the culprit. To guard against the possibility of bias, I work with a group of researchers and take other precautions. That’s the best I can do.

Member
Allan
Apr 29, 2017

Charlie, I appologize that at this time I am unable to devote adequate time to our discussion. I appreciate your openess, but disagree. I can’t answer all points as well as I would like as I am in transit, but will do the best I can with the limited time I have. Please forgive me if I don’t respond to specific points or my response is a bit jumbled.

“There are multiple reasons for the shortage of physicians in the U.S including the specialty of Obstetrics and Gynecologists (OBGYNs). The chief cause is continued growth in the U.S population and a static supply of physicians necessitated by a freeze in the funding of the number of training residency positions at 1996 levels through the Balanced Budget Act of 1997.”

All that is true, but the supply of obstetricians becomes even more limited when so many trained obstetricians drop obstetrics from their practices due to insurance costs. I know this as a physician and as a father whose own daughter had trouble finding an obstetrician when years prior I referred to loads of gynecologists that practiced obstetrics. They gave the obstetrics practice up due to malpractice even though it cost a loss in their gynecology practices.

“The authors also mention that medical students are choosing to specialize in areas of obstetrics that do not involve deliveries.”

They may not mention malpractice as a reason for not being involved in deliveries, but these types of surveys are very weak. When I practiced, I didn’t count them highly when I determined what treatment I would offer my patients. They were too weak unless they were the only studies that existed. Peer review is good, but it is a very low level of evidence. Non peer reviewed is something I might look at, but consider more as an anecdote.

“Re internalization of malpractice costs: No, I am not suggesting that malpractice is willful. It occurs because delivery systems are poorly designed”

I don’t think many would disagree with this statement, but this doesn’t prop up your former statements except for the one mentioning that third party payer has a bad effect upon care and finances.

” malpractice liability brings to the surface errors that would otherwise remain hidden because the culture of medicine discourages providers from talking about mistakes.”

You have that backwards. Everyone is afraid to talk about their concerns due to malpractice. Malpractice came first as the major cause and I have witnessed this throughout my career. Remember, this is coming from a doctor who recognizes some of the benefits of malpractice. In full disclosure over a period of about 40 years I had no judgements against me, but one attempt. This attempt and the way the courts handled a case with no merit (eventually thrown out) is one of the reasons I quit practicing medicine. I practiced with one of the sickest populations in one of the worst areas for malpractice. I don’t know of many physicians in my area of practice at my location that didn’t have at least one major suit.

I don’t see where your citation says anything opposing my responses. If you feel differently quote my comments and the portion of the article and I will respond.

” I’ve never been involved in a medical malpractice case.”

I recognize that and it is clear to me based upon your responses. I agree that the system is broken, but our agreement on that point has been said in this reply along with the earlier ones. Politics has destroyed the healthcare environment and that leads to a lot of undesirable results.

Thanks for the excellent discussion. I will try and respond to your other comment tomorrow,

Member
Allan
Apr 28, 2017

Thanks Charlie for your response even though we don’t agree. I only have a short time to respond so I will respond to one part at a time when I can.

Part 4 “there is little evidence that med mal liability is a significant driver of health care spending or that it impedes access to medical services.”

That is what you think based upon selective studies. That is wrong on both accounts. I am not concerned with the malpractice premiums paid for they are only a small part of the problem. Why do we have so much marginal care? In great part because of malpractice. I remember one case won by the doctor over a CT scan. The number of CT scans done after that case was filed increased dramatically all over the state and they weren’t needed. He won the case.

The secondary costs due to malpractice are astronomical because they build upon one another like compound interest so it becomes difficult to separate the standard of care and what parts of it were due to fear of a malpractice suit.

You claim it is easier for physicians to “blame the legal system”. Yes, it is easier to blame the legal system than to face a malpractice suit and that is exactly the point. It sometimes complicates the life of the physician to practice defensive medicine because it can take time and effort without a dime extra in compensation.

I saw the results of defensive medicine almost at every stage in the treatment of a patient. Just ask patients that have to pay the bill and you will hear that the doctor ordered a lot of testing for nothing. They see it, why can’t you?

Member
[email protected]
Apr 29, 2017

Hi Allan,

Again, we disagree on the facts. The practice patterns of doctors who experience malpractice claims have been studied, and the evidence is that changes are temporary and minor. Here is an example:

“In this paper, we examine how obstetricians respond to litigation. It is contended that obstetricians respond to increases in litigiousness by performing more cesarean sections. Using micro data, we examine whether physicians perform more cesareans after they or their colleagues have been contacted about a lawsuit. We observe very small, short-lived increases in cesarean section rates. It does not appear that the recent sharp rise in cesarean section rates is in direct response to litigation.”
https://b2c172dc-a-62cb3a1a-s-sites.googlegroups.com/site/yasutorawatanabeswebsite/home/research/2_Influence_and_Deterrence.pdf?attachauth=ANoY7cozP5d3QcPUP68A76uJ7P0eqsAXPLE-6faL_bMObm3a2xkUXsN4kl6nZ0qk52aO_5Jo0OD4nV4pkfxl_cDmmdaQ5B4r_ZkPWeXMhDtJJecH8QU8qtdQhJLnb_Qe-dlkXTaNSIMpUEcKD0rF2ooS6SEm9nYCZ0J_NSY2FTzUxVhhWlPsSMcIynSCJcZR3GL_ouXfVqF3CAR3k4F93e3Crbu-Ixx-W3ZE4JYsDMJFp816BaG-qUK5nVFJcSfpcNK38O0dAfuUKMdOSjkya0qqsPE-j0nBVg%3D%3D&attredirects=0.

The impact of tort reforms on physicians’ practices has also been studied and again the evidence is that they do not change. For example, here’s a recent study that examined the behavior of ED docs in three states that essentially eliminated med mal liability for them. http://www.nejm.org/doi/10.1056/NEJMsa1313308. The conclusion:

“Legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measured by imaging rates, average charges, or hospital admission rates.”

Re They see it why can’t I?: Doctors and hospitals make money by delivering services. As a result, the US is awash in medical treatments that are unnecessary. Here’s an article by Atul Gawande on the subject: http://www.newyorker.com/magazine/2015/05/11/overkill-atul-gawande. It’s easy for doctors to see this problem and blame others, without recognizing the importance of compensation as a driver. But when there’s a simple and obvious explanation—the incentive to over-treat—why go looking for another?

Best wishes,

Charlie

Member
Allan
Apr 30, 2017

“Again, we disagree on the facts.”

I’m not sure much of anything we have under discussion reaches the level of fact. Much of what you are saying is based upon your particular view of what particular studies mean and your particular belief that those studies answer the questions at hand or are even good studies on the question. I don’t think trying to elevate our viewpoints to fact is the appropriate direction we should take.

Cesarian sections: I don’t know why you are basing your contentions on caesarian sections and malpractice. Basically what you are saying is that if cesarian sections (some claim are caused by malpractice) are not caused by malpractice then all the other claims that malpractice influences physician behavior are wrong.

That is not good evidence to base your contentions off of. Firstly, it takes a hot side issue (where I am mostly agnostic) and uses it as a metric which it certainly isn’t for many reasons, too many to mention and reasons that take us down a different trail. (one example: There are many reasons for doing a caesarian section outside of medical necessity. Some of those reasons are possibly more important than malpractice concerns such as convenience.) I am sure you would agree that would be a ridiculous assumption though I understand the point you are trying to make.

NEJM: ““Legislation that substantially changed the malpractice standard …”

Take note in the methodology used, ***a quasi-experimental design***. Then take note how its conclusion can mean more than one thing. The subtle and dangerous thing about the effects of malpractice is that it creates a standard of care that is not changed when malpractice concerns lessen. The benefits derived, I believe, mostly involve not increasing the standard of care further while some of the old standard erode due to new knowledge. Change in medicine is both quick and slow at the same time which in my opinion is a good thing, something apparently frequently forgotten.

“Doctors and hospitals make money by delivering services. As a result, the US is awash in medical treatments that are unnecessary.” Add to that third party payer and managed care along with a lot of government interference and it is hard to determine heads from tails. I know how malpractice affected me and how it affected the doctors surrounding me. I can see from the testing ordered and from all the other expenditures malpractice concerns being intimately involved in elevating costs. I have seen the literature on both sides, but much of that literature is created by people who have already decided in advance what conclusions they would like to draw.

As far as Gawande’s popularized magazine article, I like his writing and have read one of his books, but one should recognize a magazine article is not a study and some of what Gawande states is more of his opinion than proven fact. Another problem with this New Yorker article is that Gawande hasn’t admitted to mistakes he has made in this article and this was pointed out by Kip Sullivan on this blog. ( example: “Once the Mayo myth was refuted, Gawande had a choice: He could either notify his New Yorker readers he was wrong to call Mayo an example of an ACO, or he could notify them he was wrong to claim that ACOs cut costs. He has done neither. He has simply gone quiet about Mayo’s costs. Nor has he stopped promoting ACOs and gigantic hospital-clinic chains. He even has the chutzpah to tell us the Cheesecake Factory should be the model for the hospital-clinic cartels that have formed over the last three decades.”

http://thehealthcareblog.com/blog/2016/10/24/atul-gawande-acos-and-the-myth-of-the-mayo-clinics-low-costs/

I think discussing Gawande extends the conversation to new heights and will be impossible to manage.

I look at evidence as a bridge across a river. One can build on one side of the river downstream half-way in and another half upstream, but the two sides never meet so the bridge has not really been built. I think that is what is done in law, but has not been done here so therefore I don’t believe you have proven your case.

Thanks for the fine discussion and best wishes. I await your replies.

Member
Charles_Silver
May 2, 2017

Hi Allan,

Facts matter, and when complex facts—such as the collateral effects of med mal liability—are disputed, I know of no source other than empirical studies to consult. These studies aren’t perfect, but they’re often good and when grouped, they often produce consensus answers.

Re Cesarean Sections: In my world, the person who asserts a fact bears the burden of proving it. You asserted that med mal liability is responsible for over-treatment of hospitalized patients—all those needless billing entries. I offered the study of C-Sections to cast doubt on the general assertion of a strong connection between med mal liability and physicians’ treatment practices. In effect, I said “Prove it.”

The move seems perfectly legitimate to me. Doctors assert that fear of med mal liability drives their treatment decisions in a host of ways, adding hundreds of billions of dollars to health care costs. This assertion enjoys little empirical support. The study of ER docs is to the same effect. It shows that treatment practices remain unchanged after the threat of being sued is removed. The ball is in your court, insofar as proof of the asserted connection is concerned.

Re “NEJM: “Legislation that substantially changed the malpractice standard””: I think you are misreading what the law did. In Texas and the other states mentioned, the law raised the standard that plaintiffs must meet to establish that ER docs are liable. In other words, it enabled ER docs to avoid liability by meeting a lower standard of care—really, a standard that is all but impossible to fall below.

Re “I know how malpractice affected me and how it affected the doctors surrounding me. I can see from the testing ordered and from all the other expenditures malpractice concerns being intimately involved in elevating costs.”: This is the nub of our disagreement. I don’t believe that doctors “know” what you claim to know. They believe it, just like you do, but they do not “know” it because they don’t study their behaviors under different legal regimes (liability vs no liability). Mutatis mutandis, the same goes for what doctors “know” about treatments. E.g., doctors “knew” that annual mammograms for women aged 40-50 with no history of breast cancer worked, that annual PSA tests helped men, that arthroscopic knee surgery improved functioning, and that venous filters protected patients from blood clots. Then studies showed that these beliefs were wrong. Studies of physicians’ actual treatment practices suggest that doctors are also wrong about the collateral effects of med mal liability.

Re Gawande: Thanks for sending the link to the column. It’s a great piece and I enjoyed reading it, but I’m not sure why it is relevant to our conversation. Do you mean to deny that America is awash in unnecessary medical services?

Unfortunately, I’m about to encounter a time-crunch, so I’ll have to make this my last entry. I’ve enjoyed our back-and-forth. I went first (by posting my column), so you can have the last word—which I will certainly read. I look forward to having another exchange on a future column.

Best wishes,

Charlie

Member
Allan
May 2, 2017

“Facts matter, and when complex facts—such as the collateral effects of med mal liability—are disputed”

Absolutely! Facts matter Charlie, but that is not what we have been dealing with. Viewpoints and conflicting data don’t provide facts. I completely understand the various levels of evidence and consensus thinking, but that doesn’t provide us a definitive solution especially since all these things are heavily disputed. A quasi-experimental design*** from the NEJM is not fact and it isn’t even considered a good study though it may be interesting and a good thought to base a future study off of. Consensus is merely the status quo until a new idea is developed. Further the idea of what constitutes a consensus is frequently a debatable issue.

Re Cesarean Sections: “ In my world, the person who asserts a fact bears the burden of proving it.” Your blog asserted a lot of things regarding malpractice of obstetricians so I am not the one initially asserting the facts. You even discussed how the rates have fallen in Texas for all malpractice, but you left out that obstetrics had one of the highest rates for basic coverage. I think that you should have listed those rates for the obstetricians so others could decide for themselves. When I last looked their rates were in the mid twenty thousands for what I consider insufficient coverage. My actual coverage at a minimum was for 3-10 times the amount of coverage I saw when I last looked for obstetrician coverage in Texas. Similar coverage would leave malpractice premiums quite high or the coverage could still be leaving the physician with a high risk.

Nowhere did you touch on the concept that a reduction in malpractice insurance doesn’t eliminate all the fear nor should one expect a drop in costs. Did any of your studies deal with that most important concept? #The prior malpractice situation created a standard of care that for the most part I believe will continue, perhaps without much of a fall, but the costs in the future will not grow as fast and gradually the costs of prior malpractice fears will erode as medical care changes. I don’t believe your studies deal with this very real concept. Until they do I believe your conclusions are errant. Now I ask you what asked me. You are the researcher that spends his time on this limited topic. “Prove it”. #

“The study of ER docs is to the same effect. It shows that treatment practices remain unchanged after the threat of being sued is removed. The ball is in your court, insofar as proof of the asserted connection is concerned.”

First, you have to get things right. The threat of malpractice has only been reduced despite your claim “after the threat of being sued ***is removed***”. Such statements are inaccurate and should not be made. Secondly, the effects of a reduction of malpractice risk likely has its greatest effect on future changes in medicine, not those treatment practices that already have already developed an expensive standard of care due to greater previous risk. (See # # above.)

“ I think you are misreading what the law did.”

Thank you, I understood that part of the law and didn’t question it. “ the law raised the standard that plaintiffs must meet to establish that ER docs are liable.” I agree, but the standard of care provided by the law doesn’t suddenly change the standard of care already adopted by the physician community. As physicians we are at risk of juries and interpretation of the law. Any time you want to assume the risk of an obstetrician I am sure they would be willing to hand it over to you and my guess is you wouldn’t want it. (See # # above.)

“ They believe it, just like you do, but they do not “know” it because…”

You have just made one of my points. “They believe it” whether or not it exists. It is the fear that creates the costs, not the reality. By nature human beings are risk averse so on equal bets they will generally take what appears to them to be the safest route. That is precisely one of the reasons I said what appears at # # and in my earlier responses. Thank you for adding you voice to my point.

“Studies of physicians’ actual treatment practices suggest that doctors are also wrong about the collateral effects of med mal liability.”

Physicians might misinterpret the facts regarding liability, but perception is reality. This is one of the reasons I believe your studies are faulty with regard to your conclusions.

“Re Gawande: Thanks for sending the link to the column. It’s a great piece and I enjoyed reading it, but I’m not sure why it is relevant to our conversation.”

You brought up Gawande and his magazine piece, not I and it appeared you were utilizing this piece as evidence. I merely demonstrated that the piece was flawed and therefore unless you could show otherwise this magazine article you used to prove your point was poor evidence. Gawande erred on an important issue.

“I’m about to encounter a time-crunch” We all have time considerations so we all understand. I myself am not home, so I have had to respond on the fly. However, you are a researcher in this topic and I respect that. I brought some important points that I believe deserve more attention by you for some of those points radically change one’s perspective. I was surprised that you didn’t respond directly to them. Perhaps you will in the future or perhaps you will reconsider and do so in the present. Research is a multi-sided adventure unless one is fixed to a singular point of view and sets out to prove it. I am open to persuasion and that is why I presented my ideas the way I did.

I await for our next exchange hoping that your research expands its dimensions. That, I presume is why you post here in the first place.

Best wishes to you and your research.

Allan

Member
William Palmer MD
Apr 27, 2017

There was no routine clinical test for diagnosis of rubella in 1975. Serological tests were send-out special tests, which could have been done theoretically in this case, but we do not know the office location or sophistication or difficulties or costs of such a send-out.

The diagnosis was usually made by clinical appearance: seeing a maculo-papular rash and some lymphadenopathy and some fever in a person who said she was possibly exposed. Folks could also be infected but without any symptoms. The incubation period can be quite long for rubella,12-20 days, so that the doc may have had to have the patient come back to the office weeks or so later to see if the typical rash developed.

Maybe the doc should have been perfect here. Maybe you are expecting too much. I feel sorry for the woman. This congenital rubella syndrome is terrible.

I believe in abortion for any reason up to the end of the first trimester. But, are you advocating abortion at any gestation for children that might cost the mother a lot of dough?
How is this different from pure eugenics?

Member
[email protected]
Apr 28, 2017

Hi William,

Thanks for the info about the manner of diagnosing the illness. I’m not a historian of medicine, and the courts’ opinions said almost nothing about the nature of the test or examination the physician omitted. So, I intentionally left that matter vague. I’m not expecting perfection either. Rather, for the purposes of the column I merely assumed that the doctor was negligent. Whether he was would have been a question of fact for the jury after expert testimony, etc.

Where to draw the line time-wise for the availability of abortion is also not at issue in the column. The fact is that abortion was a legally available option in some states when the diagnosis of the mother’s illness was made.

Personally, I have misgivings about abortion, even though I believe it should be legal, and my misgivings are especially strong when abortions are performed late in the pregnancy. That’s one reason why I strongly favor the availability of cheap, long-term contraceptives. Better to avoid pregnancies that are unwanted—whether because of expense or for other reasons—than to abort them.

Best wishes,

Charlie

Member
Peter
Apr 27, 2017

“But, are you advocating abortion at any gestation for children that might cost the mother a lot of dough?”

If the state is to take medical decisions away from mothers then the state needs to provide the necessary financial support to properly support the child for the rest of its life.

My wife is a NICU nurse. I can’t tell you the number of times very sick babies with life long medical needs go home to trailer park finances. Many of these babies require 24/7 care which can only be provided by the family. This burden traps the family, with already limited resources, into an even greater financial hole then they’re already in.

Member
[email protected]
Apr 28, 2017

Hi Peter,

Thanks for making this point. I have nothing to add, other than to reiterate that SB 25 offers no financial help to parents in this situation.

Best wishes,

Charlie

Member
Apr 27, 2017

“If the state is to take medical decisions away from mothers then the state needs to provide the necessary financial support to properly support the child for the rest of its life.”

Ah, alluding to that pesky “equal protection” thing,

AMENDMENT XIV
“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
__

Most radically, go ahead, re-define a fertilized ovum as a “person.” And then try to argue that this zygotic person’s “rights” can somehow be “equal” to those of an actual impregnated female person (not even Scalia believed that).

I wrote about this conundrum 9 years ago. http://bgladd.blogspot.com/2008/04/diploid-dave-et-al.html

The ENTIRE male contribution to human reproduction begins and ENDS with the deposition of one copy of the DNA comprising 23 chromosomes. ALL of the subsequent gestational burden and risk fall on the woman. Yet overwhelmingly it is MEN deciding what pregnant women can and cannot do.

Member
Steve2
Apr 26, 2017

I really enjoyed the time I was stationed in Texas. The wife went to med school at UTGalveston after working there as a research assistant for years. We were both distressed about this. Much as I love to hassle Texans, it is a pretty neat place and it is sad to see them do this kind of stuff. Even though I think I am honor bound to disagree with lawyers on general principle, I think you have this one right. Hope this is fixable, and soon.

Steve

Member
[email protected]
Apr 28, 2017

Hi Steve,

“Honor bound to disagree with lawyers on general principle”? Alas. But I’m glad we’re on the same side on this one.

Best wishes,

Charlie

Member
Peter
Apr 26, 2017

Republicans are all about keeping government out of our lives but forcing their “Christian” religion into our lives. But that’s their constituency; well organized, well funded, radical fundamentalists who blindly follow demagogues.

These are the same mind sets that ran the inquisition.

Member
[email protected]
Apr 29, 2017

Hail science!

And remember Mel Brooks: https://www.youtube.com/watch?v=5ZegQYgygdw