PHYSICIANS/POLICY: Malpractice explained

Susan Sheridan, whom I wrote about last month, is even more famous. She and her son Cal who has kernicterus syndrome are the hook for a piece in The New Republic by Robert Berenson. (You may only be able to get to the first page…) It largely tells the truth about malpractice, but just to reiterate, my reading of the data is that:

1) The tort system only picks up about half of malpractice2) The medical system barely ever apologizes (Susan never got an apology), but when it does law suits are much less likely3) Too much of the money goes to lawyers and expert witnesses, and lawyers and Democrats don’t want to change that, but as they don’t hold power–so what.4) Doctors, whose Republican allies now do hold power, are only interested in reducing caps on damages, which may reduce their rates a bit but does nothing to help severely injured victims of malpractice and more importantly nothing much to reduce medical costs for the rest of us. (I live in California where we have the MICRA caps and my insurance premiums ain’t going down — sufficient proof to me that the Republican talking points about this are bunk).5) Defensive medicine makes the system and the doctors more money and until they stop getting paid for it, the whole "8-10% savings" concept is a myth6) Special courts, non-binding arbitration, apologies, openness, and a near-miss reporting system are all good ideas and are the eventual solution, but the AMA won’t back them, and their Republican allies won’t either. Why not? For them tort reform has nothing to do with patients, and not much to do with doctors, but much, much more to do with stopping what are mostly legitimate lawsuits against malfeasant corporations — and it’s much better if that all gets mixed up with an evil lawyer suing Marcus Welby MD in their PR campaign.

So unless there is some real concession from organized medicine, we’ll keep what we’ve got and it doesn’t work.  The "good" news is that it’s only a minor issue compared to the complete morass of the rest of the health care system.

(Hat-tip to Brian Klepper for the article)

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7 replies »

  1. Matthew- cannot give you data, but, from a percentage point of view, few doctors have ownership in high paying ancillary services.
    In your last paragraph, are you saying that other countries have the same amount of “defensive medicine” (“volume of servic is pretty comparable”)? This would seem to refute the concept that doctors order additional tests just to line their pockets.
    On an unrelated note, where are the posts about all the doctors, nurses, etc., who are volunteering in the hurricane ravaged areas? Providing the essential services without pay would seem to be something worth noting, as I imagine that all of the trades are working under some kind of federal contract… I appreciate Dr. Choi’s post, but I am wondering where the commentary is?

  2. Hmm. I’m a long way from believing that defensive medicine doesn’t help doctors financially. Not only is a lot of defensive medicine more procedures which turn into mor office visits, etc, but many doctors either own or have some other financial or organizational link to testing facilities, and as we also know, surgery centers. So there’s always an incentive to do more, and whether that “more” is defensive or not is pretty hard to judge.
    Anyway, Anderson Rheinhardt et al have shown that lawsuits have almost nothing to do with the extra costs of health care here, and in fact that the volume of servic is pretty comparable. Instead it’s the price per service that’s greater here.

  3. Stella- I would agree that spending on “defensive medicine” is wasteful. However, it is difficult to define “defensive”. The numbers that are thrown around to define the amount of “defensive medicine” spending are not based on any science that I am aware of. I would love a citation of some original research into the number. I have never seen any.
    Until “defensive medicine” can be firmly defined, and physicians have true liability protection if “unnecessary” tests are not ordered, agressive work-up of certain conditions will continue to occur unabated.

  4. //defensive medicine requires– lab tests, imaging, biopsies, therapy,//
    My impression is that doctors are practicing defensive medicine more by avoiding situations where they might have to diagnose and leaving the things ambiguous as possible rather than ordering superfluous tests.

  5. “No doctor is getting rich on defensive medicine.”
    But surely that’s not the point. The total cost of defensive medicine has by all reports become a worrisome part of our nations health care spending, and the nation is getting little in return for that. I think the point therefore is that defensive medicine is expensive and wasteful.

  6. Matthew-
    1. The AMA Board of Trustees is in favor of health courts in principle. Not speaking for them, the point of view is that noneconomic damage caps are a needed step because of their ability to impact rates. However, they seem to encourage alternative dispute resolution scenarios. See the board of trustees report from this summer at http://www.ama-assn.org/meetings/public/annual05/bot17a05.pdf
    2. No doctor is getting rich on defensive medicine. In general, the ancillary services that so-called defensive medicine requires– lab tests, imaging, biopsies, therapy, etc.– are not of any financial benefit to the ordering doctor. The “defensive” part means that the doctor believes that the potential liability risk of NOT ordering the test is higher than choosing to do the study.
    3. Ask the American Trial Lawyers Association what they think of alternative dispute resolution, or better yet, go to their website at http://atla.org/pressroom/FACTS/health/index.aspx. I’ll give you a hint, they’re not interested.
    The current medical liability system fails in almost every facet of what it is supposed to do: compensate the injured in a timely fashion, protect physicians who provide the standard of care from litigation, deter malfeasance, promote higher quality healthcare.

  7. //non-binding arbitration//
    The problem with arbitration is that judges have an incentive to lean in favor of the corporate juggernaut so they will get repeat business. Also, I did some research on arbitration decisions, and it looked to me like the settlements don’t even make the hassle of the process worth it. The factors that are taken into consideration are very narrow, while catastrophic disability has wide-reaching consequences. Beyond lost income, there’s lost prospective raises, lost interest on what would have been put into retirement investments, lost social security (for non-working spouse as well as self), lost professional development, etc. Not to mention the lost time for dealing with legal-bureaucratic processes, and possibly the cost of therapy to cope with the futility of it all.
    //medical system barely ever apologizes //
    This is a bigger problem than the money. And it’s costing the medical system money (which is passed on as costs to the patients), because they have to keep paying the lawyers while they are refusing to offer an apology. The patient is thus infuriated and vows never to give up on principle. In terms of the big players, all they have to do is wait for the patient to run out of money, which makes a huge wrong even more wrong from the patient’s perspective. The big reserves being built up in the medical system is abetting this problem.
    //Too much of the money goes to lawyers//
    I think the whole legal system is the problem here. In my limited experience with it, there seems to be a lot more concern about obscure procedures than actual justice. Also there’s a huge financial bar that no one seems to care about. Even if the court costs are waived, just the paperwork and transportation costs a lot of money. Lawyers know this, so one of their strategies to wear a patient down is to keep making them redo the paperwork. I used to think there would be some mechanism of justice in the Court itself to compensate for this, but there isn’t.