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2. Trial lawyer bashing can be fun and I like to engage in it from time to time, but IMHO part of the problem has been that the provider community is just so damn reluctant to change anything. Their medical societies write the statutes and they are policed by their own (or not) and the absence of any threat other than a lawsuit only makes the reluctance to change worse.

3. For Barry and PCB,
   http://intqhc.oxfordjournals.org/cgi/reprint/12/5/363.pdf

4. One especially nice thing the Board does is (through its Patient Care Assessment program) try to address systems-level causes of patient injury.
   Paul Levy, CEO of Beth Israel Deaconess Medical Center in Boston, recently made the following comment on his blog in response to a question from me:
   All of the hospitals in the Harvard system collectively own a captive insurance company that provides the Harvard hospitals with malpractice insurance. When it identifies problems or adverse trends, whether they are doctor specific, procedure specific, discipline specific or hospital specific, it brings the issue to the attention of the appropriate parties so corrections and systemic improvements can be developed and implemented. Sounds like the way it should be to me.

5. TLA talking points aside Matt (I’m still trying to figure out how 60 percent contingencies serve plaintiffs needs), the only reason this is a problem is in the context of a single payer system. If the physician is unable to adjust his income to make up for the vagarities of liability costs, which are admittedly a function of both risk and the overall insurance market, then those practitioners are going to flee the system.
   As care is universalized through a patchwork of inflexable mandates and government payors, there will come a point when fungible liabilty costs will hit up against the relatively inflexible reimbursement structure. Docs with other options, the good ones, will leave. The lack of medical access will result in a backlash that will significantly swing the pendulum against tort access for the truly injured. It will take a lot to entice docs back in.
   Trial lawyers know this and they, like phsyicians, know that, modest self reforms now will prevent wholesale changes later. Yet the band still plays on.
   This isn’t going to be pretty

6. Peter, why on earth would I want to defend the AMA? Where in any of my arguments is there any reference to judgment caps or other positions that sad, dying organization supports. I don’t even know if the AMA has a position on medical courts. If it does, it hasn’t received much publicity.
   I suppose I’ll just state the obvious: nobody (except maybe trial lawyers) is well served by errors in any setting–medmal or medical care. There’s no reason to believe that making the medmal system more accurate would harm patients.
   Regarding the replacement of juries, the point is not that experts would be “more fair.” It’s that they would be smarter. One can be an imbecile, flip a coin, and still be fair. See my earlier posts for references on how badly juries get matters of science wrong.
   I don’t see why the experts have to be doctors. There are lots of alternatives if you’re scared of some kind of conspiracy. Statisticians come to mind as a particularly nice bunch: trained in science, deep understanding of decisionmaking under conditions of uncertainty, and very capable of reading the medical literature. Just get the laypeople out of there. They’re not qualified to adjudicate matters of science.
   I love the quibbling on the Mello/Studdert study figures. So 16% of the 37% were close calls? Want to lump those in with the errors? Fine. This change contributes nothing meaningful to the discussion. I could also point out that this study didn’t really test the accuracy of the system correctly since it’s only supposed to punish negligence (which is a subset of error). But let’s give the system the benefit of the doubt on its accuracy rate.
   “The bulk of most med mal awards is for past and future medical bills.”
   –news to me. Can you cite a source? It would actually be helpful to the thread to know if this is true.
   I hope one appreciates the irony of surfing around medical blogs of disgruntled doctors to support the assertion that (what: all? most? some? a few? only the bad?) docs hate experts and medical boards. I can only speculate here, but if docs could count on a scientifically rigorous judicial system to weigh the evidence and weed out charlatans, I doubt you’d hear too many complaints about experts.
   FYI medical boards vary in composition. Most contain multiple committees for licensing, regulation, and judicial functions, each with some doctors and some non-doctors. You’d have to look state-by-state if you were really interested. In Massachusetts the composition is mixed on all committees, and the only complaints I’ve ever heard are about the amount of paperwork it takes to get a license (not to mention the expense). In its judicial function the Board seems to be highly regarded. Sure, you’ll find a few pissed off docs here and there, but in general the word is that the Board does responsible investigations and doesn’t respond to the emotional (rather than scientific) arguments used by trial attorneys. One especially nice thing the Board does is (through its Patient Care Assessment program) try to address systems-level causes of patient injury. I suppose this is probably a good time to point out that the current medmal system, with its emphasis on individual culpability, actively perpetuates the culture of “blame and shame”…not exactly the way to go if you read any of the recent literature on medical error…just start with the IOM’s 2000 report. I’m surprised enterprise liability hasn’t come up yet.

7. I get so sick and tired of hearing the physician lobby bark about the evils of the medical malpractice system and identifying it as the single-biggest problem in the US healthcare system. Yes, it is a problem, particularly in the some awards granted for “punitive” damages, but it represents an extremely tiny piece of overall healthcare spending.
   The fact is the that for most medical specialties, medical malpractice costs have remained flat or pretty constant as a percentage of practice revenues over the last 20 yrs. MGMA has some pretty good data on this although they don’t do out of there way to advertise it.
   Medical malpractice has been a real issue for some of the surgical specialties, particuarly neurology, and for OBY/GYN. The real reason you hear so much about medical malpractice is because it is one of the few issues that the AMA can play anymore that resonants with physicians who aren’t in their organization. Additionally, trial lawyers are a huge and important contributor to alot of Democrats campaigns. Republicans have already helped to the neuder the power and influence of Big Labor since the 80s and would love to knock off another leg of the Democratic fundraising stool.

8. Some serious heat coming off this thread. Good stuff.
   To add some additional information to the 2000 IOM report on the 44-98,000 error related deaths:
   1. there was no appropriate comparison group (no “death rate” from comparatively sick hospitalized patients without errors to compare to the error group.) So how do we know what contribution errors made to the death rate in the group studied?
   2. Because of #1 above, in order to make the 44-98,000 claim, you must assume that there would be NO DEATHS in a similar high risk “error free group.” This is clearly an unreasonable assumption given the high risk patients studied.
   Take it for what it’s worth.
   Pete

9. “The trend is mostly driven by fear of litigation, and to a much lesser extent, a desire by some women to pick their delivery date.”
   Is that litigation fear rational, though? And if not, should we be making policy on the irrational fears of physicians?
   Do you not think convenience for physicians has anything to do with it? After all, during every malpractice “crisis” (we just ended the third one in 30 years), physicians have claimed that if we just give them this or that “reform”, defensive medicine will decrease and that all these expensive tests driving up the cost of healthcare will not be as necessary. Yet the cost of healthcare continues to rise and the testing is still done regardless of the “reform” enacted.

10. Barry, not sure this is what your looking for but here goes;
    http://secure.cihi.ca/cihiweb/dispPage.jsp?cw_page=AR43_2004highlight_e
    “Among those who die of preventable errors, how many were very frail and near death and how many had their lives shortened by years? How many fewer deaths would there be if every hospital operated at the quality level of the best in the country?”
    I guess that from a simple view reducing errors reduces adverse outcomes to patients. Trying to figure out who would have died anyway or how many years the life was shortened are not really measurable, are they? Is that the point? Would your response to learning that your wife died from a preventable medical error be,” Well she would have died anyway doc, don’t worry about it.” I guess if you are saying that errors are only perceptions by patients that don’t really affect their health then the Institute of Medicine reports would all be invalid – wouldn’t they? As to how many fewer deaths would occur, well one study above says 44,000 to 98,000. Any of your relatives in that number?

11. Let me say this – I am certainly not arguing that the current system is perfect. It’s expensive and time consuming. However, given the value of time of the parties’ involved, particularly the physicians and attorneys, there’s probably no way for it not to be expensive and time consuming.
    No matter what system you use, both sides are still going to want their own experts. Both sides are still going to need representation. And the insurer is still going to want to keep its money and the patient will still need that money very badly.
    I just fail to see how eliminating a jury with no stake in the outcome, and replacing them with a judge and expert (regardless of the cost) who is a political appointee, will be MORE fair. To any of the parties.

12. Peter,
    I wonder if you can provide any comparative data with respect to how our medical error rates and preventable deaths (especially in hospitals) compare to other countries on a per 100,000 of population basis. I have no idea.
    I’m also not sure what preventable deaths, especially in hospitals, consist of. I suppose they could include everything from botched surgeries to incorrect medications or dosages to central line infections to ventilator assisted pneumonia and who knows what else. Among those who die of preventable errors, how many were very frail and near death and how many had their lives shortened by years? How many fewer deaths would there be if every hospital operated at the quality level of the best in the country?
    I also don’t know how you tell if someone who suffers a heart attack suffered it because he was not taking preventive medication. In my own case, six years after CABG and despite 100% compliance with my medication regimen, I needed a DES. Stuff happens to people. Plaque breaks off from an artery wall and forms a clot despite taking all appropriate medications. Forgive me if I’m a bit skeptical when I read stats like the ones you cited.
    By the way, on the cesarian stats, I actually understated the case. In the 1970’s about 5% of babies were delivered via cesarian section. This rose to 20% or so by the mid-1980’s and has since drifted up to 29%. The trend is mostly driven by fear of litigation, and to a much lesser extent, a desire by some women to pick their delivery date.
    OBGYN’s and neurosurgeons pay extremely high rates for malpractice insurance. When there is a bad outcome, the consequences are often severe for both the individual and the family, and the temptation to sue is probably strong. Sometimes the doc was negligent and deserves to be sued and sometimes he or she did everything humanly possible that could have been done but the end result was still bad. Even with a contingency fee payment structure, I think both the plaintiffs and the overall system would be better served with a special health court system than with a jury system to hear and resolve these disputes.

13. “You’re demanding high standards of evidence for some things (like the accuracy of patent courts…buddy, they’re just an example of an alternative to idiotic juries), micro-level details elsewhere (who pays the experts? give me a break…that gets worked out later), and making ridiculous assertions (doctors complaining about expert opinion? Which experts? Where? Do you have something other than anecdote to back this up?). ”
    Actually, I’m not demanding anything. I’m asking for the evidence to support someone’s claim that patent courts work so well and so much better than the jury system. I assume before that person reached that conclusion they had done some research.
    You don’t think who will pay these neutral experts is a big deal? Are you kidding? Do you know what doctors charge to testify? And you’re going to take them from their busy schedules, fly them around the country, have them review records and give opinions, and you’re not worried about the cost? Plus, it’s not like the defense and plaintiff won’t still hire their own experts. These are not small details – particularly when the taxpayer will be picking up the tab.
    As for doctors complaining about experts, are you kidding? Anyone who testifies for the plaintiff is called a whore by other physicians. Many physicians will tell you they would NEVER testify for a plaintiff, regardless of whether there was malpractice. And you need only scan the medical blogs for posts complaining about the medical boards findings and how they go about it. Presumably those boards are made up of doctors, aren’t they?
    “37% of the lawsuits that involved injury had no underlying error. Of these, payment was made in 28%. Looking at the 63% of lawsuits that did have error, no payment was made 27%. Leaving aside the question of whether the system should compensate error or only negligent error, the overall accuracy appears to be a little worse than 75%. So there’s at least a 1 in 4 chance of the system getting it wrong. ”
    This is the Studdert study, right? You haven’t exactly quoted it correctly, in that of the 37% involved injury they did not say unequivocally that there was no error – 16% of that 37% were “close calls”.
    And of course awards are going to be tied to injury severity. The bulk of most med mal awards is for past and future medical bills. The more severe the injury, the higher that number is likely to be. Why would you expect it to be different? If your actions fall below the standard of care, the degree of depth shouldn’t matter, unless we’re looking a punitives – which are exceedingly rare in the med mal context.
    Obviously we can do better, can’t all human endeavors improve? And we should strive to, but allowing physicians to judge themselves is the wrong way to approach it. After all, why stop at physicians? Why not any other group? Should we just turn over determining negligence to each profession’s own guild? Of course, since you offer few specifics, it’s hard to accurately analyze what your proposal is and its strengths/weaknesses.
    And, since no proposal not involving damage caps has never made it to a legislature, it’s probably moot anyway.
    And truthfully, it’s probably also moot because when we do have universal healthcare, we’ll go to a workers’ comp style no-fault system as a condition for receiving the benefits.
    A Constitutional Amendment to protect doctors is unlikely.

14. “What I’m saying is simple: Juries should be made up of qualified people, not housewives that fall for crying defendants. Not O.J. jurists.”
    Who gets to decide competence? You? I think this is along the lines about how everyone views their position on issues as the “reasonable” one. Well, obviously that can’t be the case for all.
    “I am not an expert on other countries (nor anything else, for that matter), but it seems to me that Britain has a pretty decent system. But I’ll let others comment on that.”
    What about it is so much better? If you’re going to advocate we change our system and criticize it as compared to others, don’t you think you should know something about the others?

15. “Goodness gracious. I suppose we can’t simultaneously try to work on two flawed systems at once.”
    harrumph, please tell me how much lobbying, time, and persuasion money is spent by the AMA on the issues I listed above as opposed to doctor financial issues like tort protection? Maybe I would have a better idea of how the AMA is advocating for patients as well.

16. harrumph, I think what gets Peter and many others of us upset are the many special interests who strive to block repair of the flawed health care system, even blocking progress on a national health care database that would mitigate the stats Peter pointed out and the resulting lawsuits.
    I happen to agree with your desire to fix the medmal issue, as I’ve stated above, but when I see that health care costs are going to hit 19.6% of GDP I get a little short on patience when I hear justifications for physicians (and other health care entities) going for the gold.
    Frankly, I believe Congress needs to set up a quasi governmental health care commission similar to the (relatively) non-partisan Federal Reserve Board with members appointed to staggered 14 year terms. Then let them fix the system despite the political pressures (and money).

17. OMG! Wow…who knew? You mean the health care system also needs improvement?
    Goodness gracious. I suppose we can’t simultaneously try to work on two flawed systems at once. God forbid I should speak for anyone else here, but I know it would definitely be too much for my little brain to handle.

18. By harrumph
    “So there’s at least a 1 in 4 chance of the system getting it wrong.”
    Some statistics from the Institute of Medicine web site:
    (1)Between 44,000-98,000 Americans die from medical errors annually (Institute of Medicine, 2000; Thomas et al., 2000; Thomas et al., 1999)
    (2)Only 55% of patients in a recent random sample of adults received recommended care, with little difference found between care recommended for prevention, to address acute episodes or to treat chronic conditions (McGlynn et al., 2003)
    (3) Medication-related errors for hospitalized patients cost roughly $2 billion annually (Institute of Medicine, 2000; Bates et al., 1997)
    (4)41 million uninsured Americans exhibit consistently worse clinical outcomes than the insured, and are at increased risk for dying prematurely (Institute of Medicine, 2002; Institute of Medicine, 2003a)
    (5)The lag between the discovery of more effective forms of treatment and their incorporation into routine patient care averages 17 years (Balas, 2001; Institute of Medicine, 2003b)
    (6)18,000 Americans die each year from heart attacks because they did not receive preventive medications, although they were eligible for them (Chassin, 1997; Institute of Medicine, 2003a)
    (7)Medical errors kill more people per year than breast cancer, AIDS, or motor vehicle accidents (Institute of Medicine, 2000; Centers for Disease Control and Prevention; National Center for Health Statistics: Preliminary Data for 1998, 1999)
    (8)More than 50% of patients with diabetes, hypertension, tobacco addiction, hyperlipidemia, congestive heart failure, asthma, depression and chronic atrial fibrillation are currently managed inadequately (Institute of Medicine, 2003c; Clark et al., 2000; Joint National Committee on Prevention, 1997; Legorreta et al., 2000; McBride et al., 1998; Ni et al., 1998; Perez-Stable and Fuentes-Afflick, 1998; Samsa et al., 2000; Young et al., 2001)
    Sorry harrumph but your 1 in 4 figure does not upset me when I see the stats on how many patients get hurt. No wonder lawyers have cases to bring to court.

19. One thing I learned when I sued my own county over a line dispute, and acted as my own lawyer, was that suits are launched by complaints NOT evidence. When a lawyer sues he has no real knowledge of all the facts in the case, that’s what discovery is for. I was able to do my own pre-lawsuit discovery because I was suing a government which had open public records laws and I was not restricted in interviewing or doing investigative ground work. Lawyers have more restrictions in this and private parties are not compelled to divulge unless they are sued. Discovery is where each side finds out what people and facts are on the table. From there parties not really involved in the suit can be dismissed by the plaintiffs lawyer and deals can made before court. I think contingency fees is one of the great leveling devices this country has that gives those people with little resourses the ability to win over deep pocket corporations or governments. I won my case with the county ($13,000 award) largely because I was acting as my own lawyer – the county could not out spend me even though I had all the facts in my favor. Governments and corporations always try to out spend a complainant – is that justice?

20. Matt, buddy…you’re all over the place here. You’re demanding high standards of evidence for some things (like the accuracy of patent courts…buddy, they’re just an example of an alternative to idiotic juries), micro-level details elsewhere (who pays the experts? give me a break…that gets worked out later), and making ridiculous assertions (doctors complaining about expert opinion? Which experts? Where? Do you have something other than anecdote to back this up?).
    Do we have incontrovertable proof that a patent-court-style system for handling medmal would be better than the current system? Of course not. We don’t have proof of anything except that a system capable of producing perverse results that are destructive to public health can and should be improved. In addition to Dr. Angell’s book “Science on Trial,” see “Winners and Losers by Daniel Merenstein: JAMA 2004; 291: 15-16” or the discussion of the medmal system in the IOM report “To Err is Human.”
    But I’ve taken you to task for use of anecdotes, so let’s have a look at the science.
    There are only a few big studies on medmal accuracy. The first was the Harvard Medical Practice study Parts I-III which was published in NEJM 1991-1992. The basic lesson was that the vast majority of injured patients don’t sue, most lawsuits aren’t the result of _negligent_ error, and jury awards were related to injury severity rather than negligent error. So between over- and under-compensation, the system’s accuracy sucked. The most recent well-done update, again from Harvard, was Michelle Mello’s study “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation” N Engl J Med 2006; 354:2024-2033, May 11, 2006. They studied a random sample of 1452 closed medmal claims, so they weren’t in a position to comment on undercompensation at the lawsuit initiation level. But they could study accuracy of the lawsuits that were brought. 37% of the lawsuits that involved injury had no underlying error. Of these, payment was made in 28%. Looking at the 63% of lawsuits that did have error, no payment was made 27%. Leaving aside the question of whether the system should compensate error or only negligent error, the overall accuracy appears to be a little worse than 75%. So there’s at least a 1 in 4 chance of the system getting it wrong. Who wouldn’t want to improve this? One might think it would be those whose income relies on inefficiency and obfuscation. One might even think those people are trial lawyers. But I couldn’t possibly comment.
    Medical courts wouldn’t have to _exactly_ follow the Common Good model. The general idea of medical courts is that they should increase the accuracy of the current medmal system. If they don’t (and this is empirically testable once they’re piloted), we throw them out. It’s hard to see how an intelligent person could argue that we shouldn’t attempt to improve the accuracy of the current medmal system.
    Regarding the legal impediments to establishing specialized medmal courts, I won’t pretend to be an expert. Sure, sure, there are probably lots of roadblocks. But I only care about legal constructs to the extent that these would need to be overcome without mucking other things up. If a constitutional amendment is required to improve the accuracy of the medmal system, fine.

21. This is a story for another day, but HealthAffairs just released a new report:
    “The health share of gross domestic product (GDP) is expected to hold steady in 2006 before resuming its historical upward trend, reaching 19.6 percent of GDP by 2016.”
    Nice!
    See: http://content.healthaffairs.org/cgi/content/abstract/hlthaff.26.2.w242

22. Glad to have you back Eric. Don’t expect you to overtake your own posts, just banter with us. You provide valuable insight from the physician’s side of it, though we perhaps don’t always agree.
    But what are your thoughts about the medical courts issue?

23. >>> “I guess I don’t understand the difference between my peers and the PA’s peers.”
    What I’m saying is simple: Juries should be made up of qualified people, not housewives that fall for crying defendants. Not O.J. jurists.
    I am not an expert on other countries (nor anything else, for that matter), but it seems to me that Britain has a pretty decent system. But I’ll let others comment on that.
    >>> “If physicians in the US are complaining about experts as it is…”
    Where are they complaining about experts in medical courts?

24. “And I’d ask one more question. Assuming you were charged with a crime, would you prefer being judged by your peers or the prosecuting attorney’s peers? The same consideration should be given to doctors.”
    I guess I don’t understand the difference between my peers and the PA’s peers. Do you mean juries made up of other PAs as opposed to juries of other accused criminals? I’m not following you.
    “Other countries have successfully implemented medical courts, and as harrumph noted, they don’t necessarily have to be physicians. Just trained and qualified arbitrators.”
    Which countries? Do any of them have the 7th Amendment to the Constitution? Who picks those arbitrators? Who pays them? If physicians in the US are complaining about experts as it is, do you really think they’re going to live happily with the decision of a “trained and qualified (in what exactly)” arbitrator?
    And remember when considering other countries, with universal health care it’s not as necessary to file a malpractice claim. A deeper social safety net removes the financial hardship. You get rendered disabled by malpractice in this country, you’ve got big problems because you’re uninsurable and can’t work and our social safety net is pretty low. That’s not the case elsewhere.
    And, those arbitrators may be operating under a “bad outcome” system – ie. no fault, where you’re not determining the standard of care, just the nature of the injury.

25. Jack,
    I’ve read the Common Good proposal – it’s backdoor damage caps. Read it closely. Remember, Common Good is run by a lawyer from the tobacco industry’s chief lobbying firm, Covington & Burling. C&B has used tobacco money to set up tort reform “grassroots” efforts around the country.
    “Please explain how medical courts are impossible when patent courts can work so well.”
    How do you know patent courts work so well? What about them makes them models of efficiency? Do the losing parties simply take their lumps and say “oh well”? You’ve assumed their efficiency and their more accurate results without any evidence. Where can you show me that they work better than juries do in med mal? That their percentage of correct decisions is any higher?
    Besides that, patent courts are statutory creations, unknown at common law. Medical malpractice was a suit at common law at the time of our founding, and thus taking them away from a jury would be a violation of the US Constitution.
    “….”Can you prove it didn’t happen?????” Too many juries buy this and then turn around an wonder why they have to drive 200 miles to a neurosurgeon who can’t speak english.”
    Again, you just make blanket assumptions without any proof. If that’s your opinion, that’s your opinion, and no one can change it. But it certainly lacks a factual basis – or if one exists, you haven’t shown it.
    “Anecdotal. I review claims and I can tell you that the ones that go to court are invariably ones where the plaintiff and the doctor did not have a good relationship going in.”
    Anecdotal? If physicians relied on anecdotal evidence in diagnosing medical problems as much as they do diagnosing legal problems, we’d have some serious issues. Is a poor doctor/patient relationship a factor? Of course, but that’s a factor in any case. Two parties to a breach of contract action are much more likely to resort to a lawsuit than if they have a good relationship and can work out something amicable. That’s not surprising, but it says nothing about the underlying merits of the claim.
    “If your position is true then you will have no problem ending direct advertising, userous contingency fees and instigating loser pays. Folks with real injuries won’t lose out, and defensive medicine costs, argueably a small piece of a huge pie, can be somewhat saved.”
    Direct solicitation to individuals is already permitted, and many state bars have tried to limit advertising, only to have their regulations declared unconstitutional (freedom of speech and all). I have no problem with ending much of the advertising though. As to contingency fees, how else do you propose a person with a debilitating injury, mountains of medical bills, as well as regular everyday bills pay their lawyer, the experts, and all the associated costs with the trial? I’m sure many plaintiff’s lawyers would love to be in the position of the defense – get paid win or lose, no money out of your pocket. Unfortunately the clients aren’t insurers and can’t do that.
    We already have loser pays in most states, or a modified form of it. Check the Rules of Civil Procedure (although some may have done it statutorily).
    “Why does the neurosurgeon whose partner ordered bedrest get named when the bed breaks and the patient falls and gets a bruise? because his name was somewhere on the chart and a big net was cast. ”
    Maybe it’s because since med mal has the shortest SOL of almost any action, they are trying to get it filed and make sure not to miss anyone. Maybe it’s not clear from the records who did what or who was supervising and you won’t know for sure until depositions are done? Who knows without looking at the chart. Why would a plaintiff’s lawyer want to add one more defense lawyer to the case, meaning more potentially uncompensated work on his part, if it’s clear from the records that he’s not liable. If juries didn’t favor doctors 3-1 you might have a point. But they do.
    If the neurosurgeon wants out quickly, he need only offer himself up for depo. In fact, some states allow him/her to file an affidavit right away saying why he is not liable, and if the plaintiff keeps him in, then they pay his costs if he’s ultimately found not liable.
    “The degree of malpractice has nothing to do with a case going to trial.”
    That’s undoubtedly true. Lots of things go into it, including the patient’s ability to pay for the damages, whether their doctor, like you, admits their error, the willingness of the insurer to settle pretrial, etc.
    Can I tell you every plaintiff’s case is genuine and there are no bullshit claims filed? Of course not. No system involving humans is perfect. But all objective studies indicate it’s pretty darn good.

26. Happy to participate… will try to get involved later today… I try to not overtake my own posts with add’l comments…

27. A look at the United Cerabal Palsy (UCP) web site produced this:
    “Partly due to the significant increase in survival of the very premature infants in the last decades, cerebral palsy of perinatal origin is not decreasing and has even been shown to increase in some Western countries. This condition has devastating consequences for the individual and for society. Multiple factors can cause injury to the developing brain leading to cerebral palsy. Many preconceptional, prenatal and perinatal factors (endocrine imbalances, genetic factors, oxidative damage, and maternal infection among others) are known to be associated with brain injury. Perinatal hypoxia/ischemia, a disruption of blood and oxygen delivery to the brain, is a primary cause of brain injury in the newborn. To date there are no effective means to repair the brain once damage has occurred. Moreover, since many of these insults occur in utero, prevention may prove difficult, and regenerative strategies may be a better alternative to reduce the damage to the brain.”
    Another search produced this quote:
    >>>Dr. Murray Goldstein, a neurologist and the medical director of the United Cerebral Palsy Research and Educational Foundation, said it is conceivable for a doctor’s incompetence to cause cerebral palsy in an infant. “There are some cases where the brain damage did occur at the time of delivery. But it’s really unusual. It’s really quite unusual,” Goldstein said.
    “The overwhelming majority of children that are born with developmental brain damage, the ob/gyn could not have done anything about it, could not have, not at this stage of what we know,” Goldstein added.<<<
    Then I found this summation of John Edwards malpractice cases:
    (1) Application of abdominal pressure and delay in performing c-section caused brain damage to infant and resulted in child having cerebral palsy and spastic quadriplegia. Verdict set record for malpractice award.
    (2)Infant born with cerebral palsy after breech birth via vaginal delivery, rather than cesarean. Established North Carolina precedent of physician and hospital liability for failing to determine if patient understood risks of particular procedure.
    (3)Plaintiff alleged infant's severe cerebral palsy was caused by negligent administration of pitocin, failure to use fetal monitor, or timely intervening in baby's fetal distress.
    (4)Infant suffered severe brain damage after obstetrician failed to moderate use of Picotin after baby displayed clear fetal distress.
    (5)Birth-related injuries including cerebral palsy and mental retardation allegedly caused by obstetrician's failure to diagnose fetal distress, including umbilical cord wrapped around baby's neck prior to delivery.
    Can anyone say that Edwards did NOT have legitimate cases to take to court? He didn't take but a few cases and picked the ones with clear evidence that he could win. When do doctors want to take responsibility for their actions/inactions? Most of this focus on Edwards cases is Republican policitical hate spin, not science over "junk science".
    A little read here points to the real reason for tort "reform", which is really about a strategy to indemnify businesses.
    http://www.motherjones.com/news/outfront/2004/09/09_400.html

28. And I’d ask one more question. Assuming you were charged with a crime, would you prefer being judged by your peers or the prosecuting attorney’s peers? The same consideration should be given to doctors.
    Other countries have successfully implemented medical courts, and as harrumph noted, they don’t necessarily have to be physicians. Just trained and qualified arbitrators.

29. Matt (and I assume you are not the Matthew that runs this blog), take a look at the following discussion:
    http://cgood.org/healthcare-newscommentary-inthenews-45.html

30. Whoa Matt, hold on a minute big fella
    “Obviously each turned on specific facts, and you’ll find no physician who will tell you that a physicians’ actions can NEVER be the cause of cerebral palsy.”
    Your comment reads like the end of Plan Nine from Outer Space….”Can you prove it didn’t happen?????” Too many juries buy this and then turn around an wonder why they have to drive 200 miles to a neurosurgeon who can’t speak english.
    Plaintiff attorneys don’t drive med mal??????!!!!?????Patently false. Plaintiff attorneys absolutely drive med mal, they convert prospective plaintiffs through omnipresent, hamfisted advertising and they sponsor drive-by clinics with mobile x-ray and echos that troll for class members. If your position is true then you will have no problem ending direct advertising, userous contingency fees and instigating loser pays. Folks with real injuries won’t lose out, and defensive medicine costs, argueably a small piece of a huge pie, can be somewhat saved.
    Our current system serves the needs of the attorneys first, Plaintiffs second. It is extortive, userous and manifestly unjust to the accused in the civil realm. No matter how you value our legal system, though, its perceived problems must be addressed or the stakeholders will flee and we will be left with a sort of Iraq, a country with its leaders dead and its intelligensia fled….a country that just won’t work.
    “In some jurisdictions, virtually any unfortunate outcome might result in a jury award, though most bad outcomes don’t involve malpractice.”
    “What basis do you have for this claim?”
    Anecdotal. I review claims and I can tell you that the ones that go to court are invariably ones where the plaintiff and the doctor did not have a good relationship going in. There is always a point in real cases where the story where if the doctor would have only interacted differently with the plaintiff, all would have been avoided. The degree of malpractice has nothing to do with a case going to trial. I have made four potentially serious errors in my career(fortunately each each one different), one which had significant health consequences. In each case I came clean as soon as I could and never came close to litigation….knock wood. It is the relationship with the doc that determines malpractice risk, not the degree of malpractice. Many mutuals will hire private investigators, usually women, to deterimine if potential insured are, well, jerks. I have seen many many many (well, over 100) where the lottery mentality is evident, where the suit was clearly filed in the hopes of a big payday over a nonsensically minor injury. Why does the neurosurgeon whose partner ordered bedrest get named when the bed breaks and the patient falls and gets a bruise? because his name was somewhere on the chart and a big net was cast. Getting off these cases is time consuming, stressful and forever a bad mark against you. Yet there is never, and I mean never, any sanction against the plaintiffs attorney for doing it… in fact he can be sued for not harrassing an innocent bystander…some system.
    “If you want certainty, promulgate some solid standards of care, have the medical societies adopt them, and come down on those who testify contrary to them.”
    this has already been tried, most recently in North Carolina, and the State medical societies have gotten investigated and sued by the Federal Trade Commision for their trouble….and this in a republican administration, the would get “disappeared” if Edwards was President.
    . “I would also be interested in any comments you can offer with respect to futile care at the end of life. What percentage of patients who reach this stage have a living will and/or advance directive for healthcare? How do those break down between instructions that call for no heroics vs do everything? For those who don’t have a living will, could you give a sense for the magnitude of spending on futile care because the law and the malpractice system give you no choice and no ability to apply common sense depending on circumstances?”
    As I have a relationship with most of my patients, The living will issue is moot. it is addressed soon into our relationship and put in writing. For those who have no living will and I don’t have a relationship with, well, the risk of a distant relative is great enough that the costs can run into $100,000s in Icu and ventilator costs. It probably happens in our hospital over 100 times a year. It only takes a few terminal days on the vent to push the cost to six digits.
    Again I don’t apologize. Folks watch ER and House. People know the default is the full court press. If you don’t want it, then action on your part is required. Most living will say that when I think there is no reasonable hope, then a comfort level of care will be instigated. Rarely do I have a problem with families when I have the legally binding goods. If I do, I apply serious guilt. If that doesn’t work, then I turn it over to the hospital arbitrator. I have never had one go to court. As the money for the patient’s attorney comes out of the relative’s inheritance, I am not surprised. I direct most living wills into all or nothing ( no cpr, intubation , cpr or counterhsock)categories for practical reasons. In my opinion “undirected” end of life care costs far more than defensive medicine, in as much as it occurs in the most expensive venue.
    My defensive medicine costs far outweigh my malpractice premiums
    “Pray for us, in the future”
    Plan Nine from Outer Space

31. Matt: what about patent courts? Aren’t these a working model of adapting the legal system to matters of science that are well beyond the grasp of (even intelligent) people without specialized training? Please explain how medical courts are impossible when patent courts can work so well.
    Who said the juries of medical courts (or the judge or whoever would make the decision) would be doctors?
    For a really great look at the legal mishandling of scientific information, check our Marcia Angell’s book Science on Trial. It’s about breast implant litigation and it’s probably the single scariest thing a science-minded thinker can read. Her description of how trial lawyers couldn’t figure out the reason why a second clinical study might be of value (when the first “proved” something) still sends a chill down my spine.
    But then again…I’m a doc (academic, but still seeing patients) and I can’t say I really give a shit about trial lawyers etc when I practice. Might as well worry about comets, tsunami, and other senseless, unreasoning things over which I exert no meaningful control.
    A final comforting thought: no successful parasite kills its host.

32. I have trust in the current system because it works better than any other system derived to date. It’s as close to incorruptible as possible. And actually, the unbiased studies done by those with no axe to grind either way show that it works pretty well.
    As for doctors deserving a jury of other doctors, that’s like foxes guarding the henhouse. Why stop at doctors? How about insurance companies being judged only by juries of insurance execs? Truck drivers by other truckers? Juries find for the doctor far more often than not, so if you believe most of these claims shouldn’t be brought, obviously they are fairly smart.
    Barry, you make some very broad generalizations as to Edwards’ verdicts. Obviously each turned on specific facts, and you’ll find no physician who will tell you that a physicians’ actions can NEVER be the cause of cerebral palsy. Without reading the facts of his cases involving that issue, it’s simply impossible to accuse him of basing his theories of liability on “junk science”.
    As for the reason for C-sections, maybe that’s the reason, maybe not. But if doctors say they are still being sued for birth injuries at a ridiculous rate, then why are they still doing them? Perhaps other factors, such as convenience of the patients and physicians are at work?
    “In some jurisdictions, virtually any unfortunate outcome might result in a jury award, though most bad outcomes don’t involve malpractice.”
    What basis do you have for this claim?
    ” Judges with expertise in medical practice and neutral experts should be able to make this distinction much more competently and consistently than juries of lay people even setting aside the issue of how skillful the lawyers on each side are.”
    Tell me how an expert is objectively neutral? How do you pick such a person. Particularly when you consider the scorn brought to bear on those physicians who dare testify for plaintiffs as it is? Physicians often can’t even agree with their own, presumably neutral, medical boards. If a Democrat is picking the experts, will physicians not accuse him of picking pro-plaintiff experts whenever he rules against them and vice versa if it’s a Republican?
    And who will pay for all these experts? The taxpayer? And how does a judge become trained not only in the law but also across a vast spectrum of medical injuries? And who gets to pick that judge? Will he not be subject to the same bias accusations depending on political affiliation and campaign contributions? In theory, health courts sound like a fine idea, but the practice doesn’t really work.
    If you want certainty, promulgate some solid standards of care, have the medical societies adopt them, and come down on those who testify contrary to them. You do that, though, and physicians will tell you every patient is different and there can’t be cookie cutter standards. Well, so we’re back to the whim of two people, these experts and these judges, susceptible to all the complaints of bias I listed above. Not to mention the cost factor of all these experts.
    Plaintiff’s lawyers don’t drive med mal, plaintiffs do. Do you guys really think these people WANT to hire a lawyer and spend years going through litigation? And would you really call it a “lottery” win? How many people who have been awarded large sums of money in a med mal case would you call “lucky”? Would you take their injuries for the money?
    You guys had a very well reasoned well thought out debate about the medical field, but it appears with regard to the legal field’s intersection with medicine, you’ve relied on a surface repetition of talking points without much consideration of their practicality.
    I agree with Jack on punitive damages, by the way.

33. So, Barry, we really have plaintiff attorneys, through their lawsuits, driving medical decisions. I don’t think I like that.
    I’d also suggest that in the past these lawsuits have become more like lopsided lotteries than fair adjudication, and that’s not fair to the system (neither doctors nor the public).

34. With respect to junk science and John Edwards, my understanding is that his most famous malpractice cases involved children with cerebral palsy. Edwards argued that failure to deliver the babies via C-Section caused the cerebral palsy. At the time, the percentage of babies delivered that way was in the single digits – 6% or thereabouts. Over the ensuing 20-25 years, the percentage of babies delivered via C-Section rose well into the 20’s, I believe. This change was driven primarily by the fear of litigation. Virtually any pregnancy that had even a slightly above average risk associated with it became a candidate for C-Section delivery. However, the incidence of cerebral palsy did not decline. Thus, thanks to John Edwards and some of his colleagues, we now have many more C-Section deliveries, along with their associated higher costs but no decline in cerebral palsy. Maybe Dr. Thom and others can speak to this with more authority, but it sounds to me like Edwards won his large damage awards based on junk science.
    As for health courts, they do not have to limit damage awards. They offer the potential to bring objectivity and consistency across similar cases and diverse jurisdictions. Courts can hire neutral experts from well outside the geographic area where the incident occurred. In some jurisdictions, virtually any unfortunate outcome might result in a jury award, though most bad outcomes don’t involve malpractice. Some certainly do. Judges with expertise in medical practice and neutral experts should be able to make this distinction much more competently and consistently than juries of lay people even setting aside the issue of how skillful the lawyers on each side are.

35. >>> “If on the other hand I have a real financial stake in the actions, I may think twice about what I need….”
    That’s called co-pays and deductibles, and they can have both positive and negative financial reactions. They can delay needed care until it becomes far more costly to treat. Those who promote preventive care should shudder at this.
    Matt, you have far more trust in the current court system than I. If you were to say that physicians should be judged by their peers — that is, twelve doctors — I’d accept the current system. But they are judged by 12 of the patient’s peers who must (and are not qualified to) determine whether the plaintiff’s experts are more believable than the defendant’s experts. I can accept a reasonable settlement for pain and suffering and economic losses. But punitive damages should not go to plaintiffs and their attorney. They should help fund the single-payer system.

36. Here is an interesting read on the term “Junk Science”.
    http://en.wikipedia.org/wiki/Junk_science
    Seems it’s used by both sides.
    I guess I have to ask in relation to John Edwards – Where were the defendants lawyers?

37. “The doc can’t know who will be on the jury hearing his or her case (if it gets that far) and whether the plaintiff will be represented by a glib trial lawyer like John Edwards who can manipulate a jury and use junk science to win a huge verdict. ”
    I’m sorry, can someone who has reviewed the evidence in one of John Edwards’ cases explain to me what in it was “junk science”?
    “By contrast, if the doc really perceived that a system like health courts would deal with any dispute fairly and objectively and based on sound science, the psychology driving his or her practice pattern would likely be very different.”
    Why go to all the trouble of creating a health courts system (which are essentially, in their current proposed forms, backdoor damage caps) when you can simply promulgate standards of care. Assuming we (the taxpayer) can find physicians from every specialty willing, and afford to pay them, to serve as “neutral” experts, why will you be more certain to agree with them? What happens when the expert in your specialty locally is someone you have had past disagreements with? Do you do more or less?
    Beating the drum of health courts is nice in theory, but when you look at the proposals and consider what they entail, the shine fades.
    “The ideal mentality, I think, would be to treat the patient as though he or she were a member of the doc’s own family and the bill was being paid out of personal resources, not by an insurance company.”
    Obviously, that’s the ideal. But as long as physicians get paid per action, as opposed to the time spent with the patient, that’s not really a realistic option, is it/ Health courts won’t change that, changing the manner in which physicians are compensated is the only way to change that.
    “Correct me if I’m wrong, but, from a doctor’s perspective, the key issue here is not so much financial exposure but unpredictability and stress.”
    And the stress of the person who has the claim? What if it’s legit and the insurer has decided it’s simply not worth the value the plaintiff places on it. The doctor misses a few hours away from his practice doing depos and is stressed as a result. The injured party lives with their pain daily, and the resulting stress from that, and perhaps not being able to earn a living at all. Frankly, the whole “unpredicatiblity and stress” claim by the physicians is a little overwrought when you consider the typical respective positions of the parties in the litigation.

38. “In what way are patients qualified to make medical decisions? If they are, what the hell do they need doctors for?”
    Of course the discussion needs to move to one of value, but medicine typically lacks the usual means of establishing what really constitutes value. I have a friend who was essentially butchered by an inept physician, but they still love their physician. They don’t even know enough to know that they were not provided optimal care. Was that “value”? How much did it cost? I’m sure my friend had no clue and paid very little out of pocket. In a cost/quality equation it is difficult to know whether that was “value”. While I share your aversion to “blame shifting”, you can’t ignore fundamental human behavior. If I’m not paying for a service available to me I’m much more likely to see a doctor when I really don’t need to, request drugs that I really don’t need, and request every test under the sun “just in case”. Just look at the research on the impact of copays on patient behavior. If on the other hand I have a real financial stake in the actions, I may think twice about what I need – and in fact may be more likely to ask “where is the evidence that this [drug, procedure, test] is really effective and appropriate?”. See “supply induced demand” for other examples from the provider incentive side. It’s not about individual patients and physicians, it’s about a system that doesn’t support high quality or low cost. Yes we need to get to “value”, but we have a heck of a long way to go to even be able to define it, let alone make decisions based on it.
    I believe that if you address the structural and systemic issues – how medicine is financed, organized, and delivered, you will find yourself in a better postion to assess “value”.

39. “The real culprit here, of course, is the 3rd party payer system that divorces patients from costs and risks—and places those risks squarely on the shoulders of healthcare providers. Even for many of the chronically ill, the knowledge that someone else is picking up the tab alters behavior.”
    In what way are patients qualified to make medical decisions? If they are, what the hell do they need doctors for?
    I’m sick of this argument and its implicit blame-shifting. Hippocrates didn’t say “Caveat emptor.”
    This isn’t about cost. It’s about value. Stop trying to reduce cost and, instead, provide a better quality “product.” Why is this so damned hard to understand?

40. Yeah, if the docs in India are properly trained, and I worry about that. But in the discussion of med-mal, I do think a best practices national database will help mitigate errors and the resulting lawsuits (though I still favor medical courts).
    I would also say that I don’t think we’ll ever get an accurate picture of the cost of “offensive” ordering (for profit-making purposes, which could also serve some value in treating the patient and CYA). Maybe someone a hell of a lot smarter than me could extrapolate from all of the data available, but the child in me says “why waste our time. We know it’s there, let’s find a way to stop it.”

41. Outsourcing of radiology services looks like a no brainer to me. That has to be the most overpaid specialty in the medical profession. The sooner it happens, the better.

42. Dr. Thom,
    Thanks for all the great comments. I have a few follow-up questions and thoughts.
    1. Could you provide a rough estimate of the number of patients (both inpatient and outpatient) who get “the treatment” over the course of a year. For the inpatients, in particular, $4-$9K of defensive medicine related costs (for 2-3 consults) would very quickly far exceed the cost of a PCP’s annual malpractice insurance premium.
    2. With respect to Peter’s comments about malpractice claims and payouts in other countries, I think it misses the point. Correct me if I’m wrong, but, from a doctor’s perspective, the key issue here is not so much financial exposure but unpredictability and stress. If a claim is made, it can take a very long time to reach either settlement or dismissal and can consume a lot of the doctor’s time for depositions and the like. The doc can’t know who will be on the jury hearing his or her case (if it gets that far) and whether the plaintiff will be represented by a glib trial lawyer like John Edwards who can manipulate a jury and use junk science to win a huge verdict. Under the circumstances, this is an ordeal to be avoided at all costs. Since most of the cost of defensive medical tests will be paid by insurance, and the doc may also be financially rewarded for doing them, it is likely that they will be done even though it would be hard to categorize them as defensive or offensive. By contrast, if the doc really perceived that a system like health courts would deal with any dispute fairly and objectively and based on sound science, the psychology driving his or her practice pattern would likely be very different. The ideal mentality, I think, would be to treat the patient as though he or she were a member of the doc’s own family and the bill was being paid out of personal resources, not by an insurance company. Under the current system, I suspect that the high estimate of 9% of healthcare costs for defensive medicine is probably much closer to the mark than the 0.5% attributable to malpractice premiums and court awards.
    3. I would also be interested in any comments you can offer with respect to futile care at the end of life. What percentage of patients who reach this stage have a living will and/or advance directive for healthcare? How do those break down between instructions that call for no heroics vs do everything? For those who don’t have a living will, could you give a sense for the magnitude of spending on futile care because the law and the malpractice system give you no choice and no ability to apply common sense depending on circumstances?

43. Posted by: jd
    “Also, what about other nations? I seem to remember reading a Health Affairs of CommonWealth Fund article in the last year which established that malpractice claims were roughly as frequent and as large in other countries as here, yet their healthcare costs were lower.”
    jd, Here’s the link to Commonwealth Fund article.
    http://www.cmwf.org/usr_doc/846_anderson_hltspendingUS&world_itl.pdf
    From the article:
    “Role of Malpractice Litigation:
    Another commonly cited contention is that medical malpractice litigation is driving up U.S. health spending. The authors compared malpractice claims data from the U.S., Australia, Canada, and the U.K., using information from national reports and databases. While the U.S. had 50 percent more malpractice claims filed per 1,000 population than the U.K. and Australia, and 350 percent more than Canada, payments were lower, on average, than those in Canada and the U.K. More important, average payments per capita were only $16 in the U.S. in 2001, compared with $12 in the U.K., $10 in Australia, and $4 in Canada. Including awards, legal fees, and underwriting costs, the total amount spent defending U.S. malpractice claims was an estimated $6.5 billion in 2001, or 0.46 percent of total health spending. Defensive medicine could contribute more to health spending than malpractice payments do, but it is difficult to measure and estimates vary widely, say the authors. Even the upper estimate—9 percent, according to the U.S. Department of Health and Human Services—would explain only part of the higher U.S. health spending, they say.
    Facts and Figures
    • In 2001, the average malpractice payment in the
    U.S. was $265,103, which was higher than Australia,
    but 14 percent below Canada and 36 percent
    below the United Kingdom.”
    Notice the statement about defensive medicine and malpractice. It is also intersting that the .46% for malpractice of total healthcare spending never comes up when supporters of the U.S. system keep saying this sector only contributes 5% and that sector only accounts for 3% so it’s not really going to save us much by changing anything. But when malpractice is brought up it’s the key to reducing overall U.S. costs.
    This link will give a Canadian perspective:
    http://www.chsrf.ca/mythbusters/pdf/myth14_e.pdf
    It should be noted that in Ontario Canada the government, hear that Eric, pays 70% of the physicians cost of malpractice insurance. Evil governments!!

44. Ditto on the radiology services to be the first to be outsourced overseas. That’s already being done via the Internet. Also the busness co-ops are already sending their employees to India for heart surgery and spitting the savings.

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46. drthom, thanks for the insights again. Speaking from the insurer side of the fence, I completely agree on this one:
    Look for radiology services to be the first to be outsourced overseas.
    I also think that this movement will be slowed by sensationalistic media stories which present a few hyped cases in which a diagnosis is missed, but without any scientifically-valid comparisons with how often they were missed when the tests were done in the US. It will be all anecdote and innuendo, helped along by the radiology lobby, of course.

47. The only information I have is anecdotal but here goes.
    1 I guess 1/50 outpatients and 1/20 inpatients get “the treatment” (I take unassigned call at our hospital, the liability risk increases with the lack of a long term relationship, although insurance and socioeconomic status is not a predictor) Each consult will result in 2-3k of imagining and lab and there are usually 2-3 consults per patient. Most important, it usually extends their stay 1-2 days. with all the attendant costs and risks. It would take a majority of the physicians to have either personal or experience through a collegue that health courts are equitable before you would see a change in practice patterns. There is a deep and deserved mistrust of our current tort structure. At current malpractice risk 3-5 years.
    2. If I had no private insurers to cost shift for Medicare/Medicaid, I would have to stop taking them now or contact the bankrupcy attorney in 6 months.
    3. Offensive medicine is more costly than defensive, but the data will be hard to tease out. For years our hospital did bone densities 1/2 day a week. I rarely ordered them due to the hassle factor lack or effective data or treatment. When the bisphosphonates came out, with actual outcome data for the 75+ set, we asked our hospital to improve access. They said no and we bought our own. This year we will probably do 500+, most on q 2 year schedules. Are we being offensive or delivering quality care? We got around stark with our multispecialty clinic and billing with a single number and sharing the proceeds equally. We use quality review to consiously put a check on our utilization. The total number if MRIs we ordered actually went down the first year we had it, mostly on the advice of our specialists as to when the test was indicated. I was getting a lot of MRIs of elderly knees at the hospital before the orthos told me it is a useless test. It appears an MRI is only medically appropriate when a specialists orders it…who knew?
    4. I really think radiologists drive a significant % of diagnostic cost, both offensive and defensive. So many more studies now have “questionable” findings that require additional studies.
    What am I to do when the radiologist calls an abnormality and a follow-up? If I don’t do as they say I am off the reservation. Honestly, if the f/u recommended requires no radiation (u/S and the like) I very rarely have the time or the expertise to question them. If a radiation deficiency is diagnosed, I try to take the time to quiz the radiologist to get a sense of how “abnormal” things are and ask the patient to come in if I think they can do without the study so at least I can get some informed consent on the chart. There is an excellent study to be done about the rate of f/u studies recommended before and after Jan 1 2007 when the radiologist got hammered on their reimbursement. I know what my hypothesis would be
    5. business co-ops are coming and , short of going back to vo-tech (I got my only F ever in shop class) I am going to have to have some data to show I do well at best practices so the co-ops have some data to show their employees the businesses are not completely bailing on their responsibiites. Look for radiology services to be the first to be outsourced overseas.
    New onset afib require a blood count (anemia) a creatine (renal function) TSH (hypothyroidism) and an echo, even in a high liability risk patient. To do more actually increases your liability risk as you increase the risk of unneccessary complications. As to why the cath was done,well, it is probably just habit and culture. If it was done for liability, all they did was to increase theirs. When all you have is a hammer, everything looks like a nail.

48. >”I’d like to hear Eric’s data too, but I think he is AWOL. He tends to start threads and then scoots. ”
    Eric, these discussions would be much more interesting with an occasional response. Anyone can start one of these things…a few brash statements with some anectodal evidence…
    There is no one answer here:
    Healthcare costs are high because ALL these things are going on. If you don’t think doctors act in their own financial interest or that CYA is common than you don’t know anything about healthcare beyond your own nose.
    Another term I recently came across (in a great article in Health Affairs) that describes what is going on is “super-good”; that is – “health care is a “super-good,” in which the demand to live without pain and “feel better” is continuous and robust”. In a system with few cost constraints (where most care is provided to people who don’t pay for it) this will result in an increasing spiral of cost. Coupled with all the factors discussed here it is no reason it’s out of control.
    The tremendous amount of money flowing through the “system” means there are a lot of people with a vested interest in keeping things just as they are. A real solution will take an honest assessment of the dynamics that got us here – and the part that all players play – not just deflecting blame to others.

49. People make all sorts of wild claims about the impact of defensive medicine, but I have never seen a large scale controlled study that could give a reasonable estimate for US health spending as a whole.
    I’m sceptical of the view that defensive medicine is a much bigger factor than what I’ll call offensive medicine (the desire for additional fees) or passive medicine (doing whatever the patient wants). For the record, though, Jack is right: almost no one claims that most of the excessive cost in our system is the result of physicians chasing fees that are not medically warranted. Instead, reasonable people claim at most that offensive medicine is a bigger factor than defensive medicine. These same people can claim that passive medicine is more important than either, or that our fragmented delivery system is a bigger factor.
    Given that providers in a fee for service system generally have two or more compatible economic interests in asking for additional tests, visits, procedures, etc., it is extremely hard to tease them out. Natural experiments are hard to come by.
    Does anyone have a reference to differences between states that have strong limits on malpractice claims and those that do not?
    Also, what about other nations? I seem to remember reading a Health Affairs of CommonWealth Fund article in the last year which established that malpractice claims were roughly as frequent and as large in other countries as here, yet their healthcare costs were lower.
    Better to get the data than to guess.

50. I’d like to hear Eric’s data too, but I think he is AWOL. He tends to start threads and then scoots.

51. Alex you bring up a good point about the gatekeeper role doctors have been successful at protecting. But the role is based on economic protection, not healthcare or cost control. Notice how Eric always reverts to blaming the patients but always wants to protect his profession’s gatekeeper role and their spend what I want medicine. We have insurance companies contributing nothing except middleman expenses and docs who get it wrong 45% of the time thinking their role as sole gatekeepers actually gives something back. I doubt that the treatment demands of patients actually drive much of the cost – but I’d be willing to see Eric’s data and not his anecdotal accounts.

52. I don’t think the greed is a conscious choice in all cases, I think it is just a natural result of economic incentives. It’s crazy how we just happen to have more imaging equipment than anyone else and just happen to do way more imaging.
    On patient demanded health care. Physicians have received special treatment under the law for ages based largely on their special training and the assumption that the health of the public is better protected through licensing and scope laws. If physicians lack the intestinal fortitude to say “no” to patients, then perhaps we need to revisit just how appropriate their gatekeeper role is. Patient demanded health care clearly is a pocketbook issue. Physicians are afraid to say no because the patient can walk out the door and get someone else to do it.
    Stark is classic well-intentioned nearly impossible to implement legislation. How many people actually understand Stark? About 50, maybe?

53. And Eric, one of the unintended consequences of the Stark law (1989 Omnibus Reconciliation Act, Purchased Services Legislation) was that it actually encouraged physicians to buy their own diagnostic testing devices and move their testing in-house. HCFA was warned that it would cause overuse of ordering, and it did. And while you can chalk one up for entrepreneurial physicians, that was one stupid government decision that played into physician’s (and device manufacturers’) hands. Physicians were initially not able to refer to labs in which they had a financial interest (they can now), but they could purchase the expensive equipment for their office and perform the tests in-house. That’s where we saw physician volumes skyrocket on certain tests.

54. Reasonable points all.
    It’s not one way or one or another, it is the combined effect. Clinicians, facilities, plans, patients and employers generally behave within their interest, which are plural. It seems illogical to demonize or aggrandize the virtues of a particular participant, as opposed to accept, what we empirically observe, which is that when remuneration is attached to a behavior, more of that behavior results. This does not preclude the legitimacy of encompassing the issues of litigation, and patient demand, but does suggest each of these elements represent factors of import. In fact, we can likely concur that although the direct cost of litigation is small as a percentage, the more significant indirect cost is many times that by any measure.
    The historical combination of separating patients from participating in the value equation, and provider procedure based incentives, coupled with the current addition of advertising and marketing, creates the synergy of inefficiency that is reflected in our system to date.
    Similarly, the frame of free market vs. single payer is less than representative of the paths that we may choose from. Although we have differing perspectives concerning single payers, most of the technical arguments on all sides share elements of what is generally observed. The synopsis of which can reasonably be condensed to suggest that without a balance of competition and regulation, based on aligning incentives with expected behavior, neither approach in its extreme form provides an attractive result.
    On balance, In terms of coverage, if not universal, including a rating system that functions for those currently participating in the individually underwritten market (acknowledging the many valid issues raised in prior threads concerning the unimpressive results of community rating), how can we comprehensively resolve any of the challenges discussed above?

55. I have always contended that a Medicare-for-all system must pay physicians well, and if they were the only payor they would. Medicare and Medicaid have gotten by with short-changing them because they knew they’d shift the costs to private payers. But get this: there will soon no longer be private payers! Corporations are already banding together and forming co-ops and managed care services. They are going to run these like their businesses, cheap and dirty including outsourcing to other countries. My advice to the DrThoms of the world: try plumbing or electrical work. It is still free market with little government or outsider intervention.

56. Jack,
    Everything I read from Dr. Thom and other PCP’s suggests that Medicare pays less than private insurers and requires lots of documentation. Medicaid (another government payer) is far worse. I think Dr. Thom said that his practice may no longer accept any more new Medicare patients. That doesn’t exactly sound like a ringing endorsement to me. If I were a doc, my answer to your question as to which system I would prefer to operate under, would be whichever one pays me a fair rate for my time and effort including the time I need to spend satisfying the payer’s documentation requirements.

57. “The solution for the single-payer crowd—more regulation of providers and price fixing for service delivery. It has not worked until now, and will not work into the future.”
    Seems to work in all of the single pay countries that use it.

58. Barry, your summation is completely consistent with my claim, even IF it were just $8 billion in overuse (though when you add in hospital upcoding and nursing home fraud, it is far higher than $8 billion). Eight times the number of studies ordered by the average conflicted physician is more than I would have expected but I am not at all surprised.
    There are many ramifications of the past rise in health care costs, and I challenge Eric and other physicians to consider this: Who would you rather have control your professional future; a single-payer health care board in a quasi public-private system (Medicare-for-all) or a private system controlled by for-profit corporations and CEOs? I’ve asked this before and not seen an answer. It IS going to be one or the other. Which do you prefer?

59. John,
    I have no idea. I also don’t know what other tests an executive physical consists of. He may have had a standard stress test and/or worn a 24 hour monitor. I know he didn’t need to go to a hospital or have an angiogram.
    The key issue in a malpractice context, is what is the appropriate standard of care under the circumstances? If there is a standard that is widely accepted by doctors and would be consistently applied by health courts, it should make for a sound and sustainable system. No?

60. Barry, if your boss had died (or worse, had a heart attack that left him incapacitated) who would have been sued?

61. Dr. Thom – I am interested in your thoughts regarding what would happen if we got a nationwide system of health courts to replace the current jury system to settle healthcare disputes. My questions are as follows:
    1. Assuming the health court system worked as advertised in bringing objectivity and fairness to the dispute resolution process, how long do you think it would take doctors to perceive it as such?
    2. How long would it take that perception to translate to practice patterns (and teaching patterns) that significantly reduce both defensive medicine and the CYA culture?
    3. How much do you think we could save based on today’s healthcare spending base of $2 trillion?
    Jack – I say again that you way overemphasize profit seeking through self-referral. The McKinsey study that I linked to on Eric’s earlier thread stated that doctors who own their own labs, ASC’s, etc. are, indeed, up to eight times more likely to refer patients to them than docs who don’t which is consistent with your point. However, McKinsey also states that this only accounts for about $8 billion of what they called the “excess costs” (pegged at $477 billion altogether) of our system beyond what would be predicted by our wealth vs other nations. Yes, $8 isn’t nothing, but it’s not breaking the system either. It only represents 0.4% of current healthcare costs and less than 2% of total physician and clinical services fees.
    The examples you cited from your former business could probably be picked up by a decent database designed to identify high utilizers. They could be challenged as such by insurers and identified as such to consumers. Hopefully, that combined pressure would drive down their market share (or even drive them out of business) unless their practice patterns fell back into closer alignment with their competitors.
    I can’t resist another anecdote, even though I profess not to like them. My boss several years ago had an executive physical at the Mayo Clinic’s branch in Jacksonville, FL. During a routine EKG, they discovered that he had atrial fibrillation. They told him that and prescribed coumadin. By contrast, my brother-in-law, who lives in the malpractice hell hole of Philadelphia, PA was also found to have atrial fibrillation by his family doc. The doc sent him to the local emergency room where they kept him for several days because they didn’t have a regular room to admit him to. This was a Tenet owned hospital, by the way. He was then referred to a cardiology practice. The cardiologist sent him for a thalium stress which turned out to be normal. She then sent him to one of Philadelphia’s teaching hospitals for angiography. His arteries turned out to be perfectly clear. His sister, who is a nurse outside of Boston, said all of that care was unnecessary. About the only part they got right was prescribing coumadin. The cardiology practice, by the way, only benefitted from reading the test results. They did not own the facility that did the thalium stress, and the interventional cardiologist that did the angiogram was a referral doc.

62. Eric, I think you know better than that. The Stark laws did not cut utilization because the Stark laws were ultimately gutted by pressure from physician groups and the rest of the industry. Physicians can once again refer patients to labs in which they have a financial interest. Hospitals can now employ their own referring physicians. Physicians can now have a financial interest in hospitals to which they refer patients.
    As one of the single-payer proponents to which you likely refer, I do not recall ever saying MOST physicians engage in this behavior MOST of the time. I think I have quoted the 80-20 rule and stated that 80% of physicians are pretty decent providers, and once you hit 80% it starts declining from grey to black. That also applies to CEOs and salesmen and everybody else, though the ratio reverses when you get to politicians.
    To hear you spin it, physicians who have an ownership in their own lab or diagnostic equipment have no higher utilization rates than physicians who have no such ownership. It’s all CYA.
    Hogwash. With 25 years owning my own cardiac lab and watching physician ordering practices, I take great exception to that. I have seen physicians more than quadruple their volumes once they invested in their own equipment, and that is the rule rather than the exception.
    It has nothing to do with CYA, though I do agree that we need to move toward medical courts.
    But beyond all of that physicians had better come to grips with whether they want Medicare micromanaging their ordering practices or if they prefer managed care controlled by CEOs whose only interest is cutting costs and increasing profits. The fat days of lucrative insurance policies are over.

63. My CYA costs are primarily the result of early consultation in cases I judge to be high risk for litigation. My consultants realize I am asking them to ride shotgun and that such consultations are the price of admission if they want my other referrals. This is especially true in obstetrics where my perinatalogist once referred to herself as a hired gun, called on to keep me out of trouble and take the bullet if required. The costs these referrals generate through testing and the like are truly impressive and I don’t apologize for them at all.
    Jury members hear the question,”why did you not get a consultant?”, nod their heads, award millions of dollars; then turn around and complain of overutilization. We get the system we deserve.
    Liability reform must be addressed or you will have a system in which a significant percentage of current healthcare costs will never be recovered and/or the competant will flee the system leaving it to be administered by less able practitioners.