OP-ED

Medical Malpractice – What Obamacare Misses

Medical malpractice in America remains a thorny and contentious issue, made no less so by its virtual exclusion from the Affordable Care Act (ACA, or Obamacare) governing healthcare reform in America.

Which is why I was glad to see the former head of President Obama’s Office of Management and Budget, Peter Orszag, now with the liberal Center for American Progress,  cite it as his second top priority for gaining control of our out-sized medical spending – an implicit criticism of its omission from Obamacare.

Although  speaking in the context of criticizing Rep. Paul Ryan’s (R-WI) plan to offer vouchers so Medicare enrollees could purchase private health insurance, his comments about the need to address malpractice reform are a departure from the liberal talking points on Obamacare. Here’s what he had to say…

Former Obama Budget Head Challenges Paul Ryan To Demonstrate How His Budget Would Lower Health Costs

“Rep. Paul Ryan’s (R-WI) proposals to control health care spending by slashing the federal government’s contribution to Medicare and Medicaid and shifting that spending on to future retirees or the states, has dominated Washington’s conversation about entitlement reform. But…a group of health care economists and former Obama administration officials laid out an alternative approach that could achieve health savings by encouraging providers to deliver care more efficiently…

“‘Mr. Ryan has had too much running room to go out with proposals that neither will reduce overall health care costs nor will help individual beneficiaries simply because there has not been enough of an alternative put forward by those who believe that we really need to focus on the incentives and information for providers…If I had to pick out two or three things to do immediately, I would pick the accelerated (trend) towards bundled payments and non fee-for-service payment…

“’The second thing, which might be a little more controversial, both substantively and politically, is to put forward a more aggressive medical malpractice reform

“’When I go out and talk to heath care groups, if you start out with the fact that you acknowledge that whatever the academic literature says, that it would be beneficial if we could provide more clarity to doctors, the conversation changes. And I think it would be beneficial for supporters of the Affordable Care Act (Obamacare) to change the conversation in that way,’ Orszag claimed (emphasis added).”

Missing from Obamacare

It’s too bad Obamacare doesn’t include more substantive approaches to tackling the malpractice issue. The actual potential for cost-savings from malpractice reform as it’s generally considered is slim. Not a single state that’s adopted some form of malpractice reform has shown any savings from it.

But Orszag’s point is that addressing the issue substantively in Obamacare would have helped to defuse it as an excuse for the rampant overdiagnosis and treatment going on in American healthcare. I cite one survey in Our Healthcare Sucks in which 94% of surveyed physicians admitted to practicing so-called “defensive medicine” designed primarily to protect themselves from perceived risk of malpractice lawsuits.

I also do a crude analysis suggesting the rate of needless hospitalizations admitted to in that survey – which was one in eight hospitalizations – was roughly a 100-to-1 overreaction to the actual risk of malpractice lawsuits. If nothing else, making some substantive changes to current malpractice laws might help to temper such overreactions – although the experience in Texas and other states that have passed malpractice reform legislation in the still-dominant fee-for-service payment system found no change in medical practices that remain highly lucrative.

In other words, the malpractice threat is often just an excuse to keep practicing in ways that drive up medical spending because it’s highly profitable to do so. Malpractice risk provides a convenient cover for many doctors, though not all. There are certain specialties that remain hard hit by malpractice premiums that would benefit from sensible reforms to existing laws – whether in Obamacare or otherwise.

The “Mal” in Malpractice

Malpractice reform – whether in the context of Obamacare or more broadly – is always framed as a problem for physicians. They’re victims of overzealous lawyers and an overly litigious society. But are they really the victims here?

Here’s a quote from Our Healthcare Sucks taken from a study in a major medical journal:

“Medical errors are common, frequently result in considerable human morbidity and mortality, and often are avoidable…Threats of legal liability are more compelling than altruistic motives…

“The American College of Physicians Ethics Manual states that a physician is obliged to disclose ‘information (to patients) about procedural or judgment errors made in the course of care if such information is material to the patient’s well-being.’…

Reporting medical errors represents a conflict of interest for physicians…(that’s led to) a veil of secrecy that surrounds medical errors.

According to a report in Forbes magazine:

“One in 200 patients who spend a night in a (U.S.) hospital will die from medical error.”

Malpractice claims are at record lows despite persistent medical errors.

An entire chapter in Our Healthcare Sucks is devoted to the subject of medical errors. Among other things, it notes that malpractice claims are at record lows despite persistent medical errors that account for well in excess of of 100,0000 deaths annually in America.

And medical errors remain a much bigger problem in America than in other developed countries, as the following information excerpted from a table in the book demonstrates:

The true and lasting solution to our medical malpractice problem requires much more than caps on damages that limit financial liability – a formula that’s proven to do nothing to lower medical costs in the states in which it’s been enacted. A more realistic solution is described in Part 3 of Obamacare – The Good, the Bad & the Missing, summarized briefly as follows…

Malpractice Reform + Medical Error Reporting + Stronger Informed Consent

The following is excerpted from the book:

“In states that have capped damages for patients’ pain and suffering, medical over-treatment has continued long after the malpractice insurance concern has been relieved. This means no savings are realized by medical consumers despite sacrificing legal rights…

“But comprehensive reform needn’t come off the backs of patients. True malpractice reform requires more than capping damages for victims of malpractice. This simplistic but superficial approach – like American medicine itself – addresses only symptoms while ignoring the underlying causes…

“Capping patient damages has consistently failed to reduce malpractice premiums or consumers’ health insurance bills in states in which it’s been tried. What’s needed instead is comprehensive reform targeting medical errors and other causes of malpractice claims…

“To implement malpractice reform without requiring greater transparency in public reporting of medical errors – which is currently inhibited by malpractice liability – would fail to capture one of the main reasons to undertake malpractice reform…

“The third leg of this three-legged approach to malpractice reform would include a strengthened program of ‘Informed Consent’ as part of a broader patient education initiative designed to make patients better medical consumers. This is the most promising approach to not only malpractice reform, but to smarter use of our expensive medical system.”

This kind of comprehensive approach to malpractice reform that targets not the superficial consequences of malpractice – patient damages – but its root causes is sorely among  ”The Missing” in Obamacare.  And its free-market alternative would deregulate healthcare reform and very likely exacerbate medical errors and the malpractice claims they will generate.

“A Conspiracy of Silence”

An article in the Journal of Patient Safety that’s cited in Our Healthcare Sucks had this to say about this subject:

“When it is clear that our care has caused preventable harm and we allow a conspiracy of silence to betray those who have put their faith in us, we inflict the impact and pain that is nothing short of a ‘hit and run’ accident (emphasis added).” [1]

As but one example, the book cites a survey finding that 6 out of 7 radiologists were unwilling to admit mammogram screening errors to patients. That makes this accepted medical practice even though it explicitly violates the AMA’s Code of Ethics.

This is the true crisis in American healthcare – the crisis of deteriorating medical ethics that’s behind much of our actual medical malpractice and our unnecessary spending to fatten the wallets of unscrupulous doctors and hospitals.

Malpractice reform is just a smoke screen that distracts from the all too real injury, including death, that’s inflicted on unsuspecting patients and their families each and every day in America – Obamacare or no Obamacare.

For more on what Obamacare – and its proposed alternative of deregulated free-market healthcare – both miss, see Obamacare vs. Romneycare vs. What’s Still Needed.

[1] Disclosure Through Our Eyes. Journal of Patient Safety. 4(1):18-26, March 2008.

John Lynch founded and served as Chairman, President and CEO of Medical Diagnostics, Inc. (MDI), a company that developed a network of mobile MRI clinics; MDI was twice ranked among Business Week’s top ten “Best Small Businesses” in America. He has a diverse range of industry experience as a hospital and regional planner, hospital manager, trustee, consultant, entrepreneur, and consumer advocate. Lynch is the author of Our Healthcare Sucks and its companion volumes, the MedSmart Series. He blogs regularly at Our Healthcare Sucks.

Livongo’s Post Ad Banner 728*90

37
Leave a Reply

25 Comment threads
12 Thread replies
0 Followers
 
Most reacted comment
Hottest comment thread
12 Comment authors
BoobydocEvan GuthrieChet KahuhuAndreaHideyuki Recent comment authors
newest oldest most voted
Boobydoc
Guest
Boobydoc

You are kidding me, right? Walk a while in my shoes Buster! And, while you are at it, pay my malpractice premium! I have an excellent C.V. and have no malpractice claims in 30 years and can not afford the ridiculously high rate for malpractice insurance. And do not forget the tail which is much higher than the actual claims-made premium! Put your money where your mouth is!

Evan Guthrie
Guest

Thanks for the medical malpractice analysis.

Chet Kahuhu
Guest

This is a great website you have and I believe my site can be a great benfit to yours. As its related to the same industry sector, your viewers might appreciate our link to your page. acalculator.com

Andrea
Guest

Nice informative articles. I enjoy the read. The site also looks great on mobile.
Andrea, http://PrescriptionAttorney.com http://MalpracticeAttorney.co

Legacy Flyer
Guest
Legacy Flyer

Good. I am glad that we have been able to find a small area of agreement.

I agree that we should leave it at that

John Lynch
Guest

As a “great ethicist”, I agree that such safe harbors make all kinds of sense. They would also segregate obvious malpractice from the more dubious.

Now that we’ve found something to agree upon, we should probably leave it at that. Thanks for all your feedback.

Legacy Flyer
Guest
Legacy Flyer

Touche

Yes, I think that many doctors find it disturbing that they are “forced” to order tests that they don’t think are indicated by malpractice concerns.

As to how unethical it is to let the public’s wishes (as expressed through the legal system and jury verdicts) affect doctor’s ordering practices – I will leave that to the great ethicists such as yourself.

However, wouldn’t it be better for all parties (including patients) if physicians knew what tests to order AND could expect legal backing if they did so rather than have to deal with the retrospective second guessing which now occurs.

Legacy Flyer
Guest
Legacy Flyer

You misunderstood my point. I am aware of the estimates of increased cancer due to radiation.

My comment “More Baloney” had to do with your blaming ER docs for excessive use of CT when they are being coerced to ordering all these extra studies by malpractice concerns.

John Lynch
Guest

Ahh, I’m glad you clarified that. Still, it seems you’re suggesting that malpractice concerns – legitimate or inflated – have come to trump doctors’ Hippocratic Oath to “do no harm” to their patients, which is also an explicit provision of at least the AMA’s Code of Ethics.

So whatever else you choose to say to defend or justify these practices, will you at least grant that they are inherently unethical?

John Lynch
Guest

Rather than belabor this, I’ll simply give you my citation for the estimated 29,000 cancers a year caused by CT scans in America: Projected Cancer Risks from Computed Tomographic Scans Performed in the United States in 2007. Arch Intern Med.2009;169(22):2071-77.

I’m sure this respected journal also publishes “baloney” when it’s not what you want to hear.

Legacy Flyer
Guest
Legacy Flyer

I checked your reference: http://www.medscape.com/index/list_3783_0 It actually is a list of articles on Medscape. ( I hope you realize that Medscape is like the People Magazine of Medicine.) Here are two of the articles on the list that you refer to: 1) Physician Malpractice Rates Fall for Fifth Straight Year: http://www.medscape.com/viewarticle/772314 …. premiums for medical malpractice insurance for 3 bellwether specialties dropped for the fifth straight year in 2012, according to a new report published in Medical Liability Monitor (MLM) …. The article goes on to say: “THESE DECLINES, HOWEVER, ARE DWARFED BY ANNUAL PREMIUM INCREASES TOPPING 20% IN 2003… Read more »

Legacy Flyer
Guest
Legacy Flyer

Hideyuki – thank you for your comments. You are correct, medical errors and malpractice are actually two separate and minimally related issues. John Lynch: “I … disagree with … your opening comment about mangling the line between malpractice and medical errors – and your closing comment about removing the mal from malpractice simply by providing doctors with “safe harbors” of proven medical practice.” Legacy Flyer: As you probably could have guessed, I disagree with what you say. “Safe harbors” protect physicians who follow proven, standard practices. How in the world could a physician who follows proven, standard practices have erred?… Read more »

John Lynch
Guest

You seem to rely on your personal experience – ample though it may be – to justify your charges of “Baloney!”. Not having comparable experience, I’m forced to rely on the published evidence – and it suggests your charges of “Baloney!” are, to quote Joe Biden, “Malarkey!”…:-) First, I refer you to this page on Medscape – http://www.medscape.com/index/list_3783_0 – which hosts a series of relevant articles that support my statement that malpractice claims are at all time lows. There’s more where that came from if you still have doubts. This article at http://www.medscape.com/viewarticle/772314 shows that malpractice premiums declined in 2012… Read more »

Hideyuki
Guest

First I agree with LegacyFlyer’s critique of the post. It is misleading to mangle the line between malpractice as in lawsuits and medical errors as in all those mistakes doctors and hospitals make, but no one wants to fess up to them. There does need to be genuine accountability for errors. We clearly need to find ways to make both hospitals and doctors report error rates rather than hiding behind some conspiracy of silence. In general malpractice complaints are distractions away from what we really need to be looking at. Why is the C-Section rate for the University of California… Read more »

John Lynch
Guest

Thanks for your thoughtful comment. I can’t disagree with almost anything you’ve added except your opening comment about mangling the line between malpractice and medical errors – and your closing comment about removing the mal from malpractice simply by providing doctors with “safe harbors” of proven medical practice. My response is that there’s considerable evidence that frivolous malpractice claims are in the minority, Yet most doctors choose to ignore this fact and pretend they’re the victims of an epidemic of frivolous malpractice claims that are, in fact, at historic lows. It reminds me of the ongoing political debates in which… Read more »

John Lynch
Guest

Well, Natasha, you needn’t do either – I didn’t write a book called Our Healthcare Sucks expecting to be loved anyway…:-) I admire and respect what you’re trying to do with your health conscious movement and it’s very much aligned with my own efforts, as I’ll shortly be issuing a series of eBooks attempting to do much the same. As for this malpractice issue, however, I’m afraid I see it as more the fragmentation of medical practice that contributes so mightily to both medical errors and the lawsuits they occasionally produce. i say occasionally because the data suggest that only… Read more »

Natasha Deonarain
Guest

John, John, John, John, John….I STILL believe in the spirit of humans!! 🙂 I STILL believe that the individual CAN do it. I STILL believe in the power of people, together, small acts, one by one by one, changing their destiny, changing their world. I believe, like Carne Ross (excellent book – The Leaderless Revolution) and Gene Sharp and William James all those crazy individuals who stood up for humanity despite the condition of our world – WE can change our lives. WE CAN. And, WE have the power all along, right inside – even inside the myopic fragmentation of… Read more »

Natasha Deonarain, MD, MBA
Guest

John, I’m not sure if I like you or hate you! I completely agree, reform must include a tear down of med mal. Coming from Canada, liability cost is 2000/year, ALL SPECIALITIES!! But you miss some very important points on how the system is integrated to keep doctors in what you call “malpractice risk provides a convenient cover for many doctors.” Did I go to medical school to commit ‘fraud and abuse’, encourage litigation, and willingly drive the cost of the system into the statosphere, or did I train for 10 years to do something else as a doctor, huh?… Read more »

Legacy Flyer
Guest
Legacy Flyer

Peter, I have already conceded that the published evidence for what I am saying is slim. I do however have the advantage of having seen thousands of exams and speaking to the docs who have ordered them. They admit that many of these exams are CYA – “cover your ass” and wouldn’t have been done if not for malpractice concerns. You say: “competent docs know what tests/procedures are needed and are confident in their diagnosis”. This statement displays a fair degree of naivete about the diagnostic process. You view things as being black or white – in fact they come… Read more »

John Lynch
Guest

Fair enough.

Peter1
Guest
Peter1

“This statement displays a fair degree of naivete about the diagnostic process. You view things as being black or white – in fact they come in many shades of gray.”

Agreed, I know that diagnosis can be a “process” with observation and adjustments to the correct end, maybe even multiple diseases present. But having said that are you saying that a battery of unnecessary tests gets the diagnosis on the nose?