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.

37 replies »

  1. 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!

  2. 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

  3. 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.

  4. 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.

  5. 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?

  6. 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.

  7. 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.

  8. 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 AND 2004.” (Emphasis added)

    2) “Malpractice Payments Continue Downward Slide” http://www.medscape.com/viewarticle/767273

    “The number and total value of malpractice payments made on behalf of physicians declined in 2011 for the eighth consecutive year, according to a new study released yesterday by the consumer group Public Citizen.”
    I then went to the study for Public Citizen that this article references but was stopped by the second line of the article – “Skyrocketing Healthcare Costs and Rampant Medical Errors Discredit the Promises Put Forth by Advocates of Tort Reform”. (Sorry, can’t get past that sentence to believe this organization is doing a study rather than publishing a position piece.)

    Much of this article relies on data from the National Practitioner Data Bank which is reliable as far as it goes but …. When a suit is filed, it is common for the plaintiff to sue all the parties – including both the Physician and the Physician’s PA or LLC. It is very common for settlements to be structured so that payment is made on behalf of the PA or LLC, NOT the Physician. The reason for this is that if the payment is made on behalf of the PA or LLC, nothing gets reported to the Data Bank. As a consequence, doing a study relying on Data Bank data is a classic case of GIGO – garbage in, garbage out.

    In summary, I don’t find the data you used to defend your positions very compelling.

    You say: “A study of malpractice claims by five malpractice insurers found 39% of claims settled between 1984 and 2004 by these insurers did not involve medical error or patient injury, while the remaining 61% did. This undercuts the ‘frivolous lawsuits’ argument, as the majority of claims weren’t frivolous…”

    Let us assume that the statistics that you quote above are correct; then approximately 40% of settled claims are “frivolous”. This is still a huge number of frivolous cases and these cases can and do have a chilling impact on the practice of medicine.

    “Whatever the reasons, I find your evasion of this crisis in American healthcare troubling – and not unlike that of the medical profession as a whole. It’s understandable as a professional matter of self-interest, but it forfeits the profession’s claim to patient advocacy.”

    I do not think I am evading the crisis in American healthcare. Here is what I said in my previous post:

    “Patient’s biggest crisis is getting high quality medical care at a reasonable price. Medical errors play a part in that crisis as does the cost of health care, availability of care and a variety of other factors.”

    “Your own ER example proves this point, as CT scans are estimated to cause 29,000 cancers cases annually in America, half of them fatal.”

    More Baloney. And my point was that excessive CT scanning (with its attendant cost and radiation) is being driven by malpractice concerns and the lack of a safe harbor.

  9. 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 for the fifth straight year.

    Next I refer you to a study I cite in my book Our Healthcare Sucks, which I’ll quote directly:

    “A study of malpractice claims by five malpractice insurers found 39% of claims settled between 1984 and 2004 by these insurers did not involve medical error or patient injury, while the remaining 61% did. This undercuts the ‘frivolous lawsuits’ argument, as the majority of claims weren’t frivolous…

    “Further, this study found over 25% of cases with ‘culpable medical errors went uncompensated, suggesting the present system might be erring far more on the side of medical defendants (doctors) than is generally appreciated’.”. (Frivolous Malpractice Cases Are Less Common than Was Feared, Journal Watch Gastroenterology, 6/13/06).

    Notice that this study was of claims settled, not jury awards – and that frivolous claims were, indeed, in the minority.

    Now that we’ve dispensed with the baloney, let’s get to the REAL meat of the matter. I note that with all your commenting, you speak only to the malpractice issue, never to medical errors – other than to dismiss them as unrelated to malpractice claims (which the study cited above would seem to refute). This could be because, as a radiologist, you don’t have much patient contact and can’t personally relate to patient injury as you can the courtroom drama.

    Whatever the reasons, I find your evasion of this crisis in American healthcare troubling – and not unlike that of the medical profession as a whole. It’s understandable as a professional matter of self-interest, but it forfeits the profession’s claim to patient advocacy.

    This, more than all the rest of this banter, reinforces my book’s thesis that patients in America can no longer trust their doctors to protect them from either medical harm or inflated medical bills. Your own ER example proves this point, as CT scans are estimated to cause 29,000 cancers cases annually in America, half of them fatal.

    I thank you for reaffirming my thesis.

  10. 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? Welcome to the world of malpractice – where the “Standard of Care” is whatever a plaintiff’s lawyer can convince a jury of.

    John Lynch: “My response is that there’s considerable evidence that frivolous malpractice claims are in the minority….”

    Legacy Flyer: BALONEY! The majority of malpractice cases that go to trial are won by the defendant, hence the majority of cases in which a verdict is reached are judged “non-meritorious” by a jury.

    However, we both know that the majority of malpractice cases settle. So does is mean that all cases in which a payment is made are therefore not “frivolous”? No. It is frequently cheaper to make a small payment to make a case go away than to take the case to court and win it. This does not mean the case isn’t “frivolous”, it just means it is cheaper to settle than fight.

    I am currently an expert in a case in which the insurance company will probably offer “defense costs” to the plaintiff. This means they are only willing to offer what it would cost them to defend the case in court – i.e. they believe the case is frivolous but want to get out as cheaply as possible.

    John Lynch: Here we are with malpractice claims at record lows and premiums that reflect that…. Well, it’s not their PATIENTS’ biggest crisis – medical errors are – and that should be of greater concern to them.

    LegacyFlyer: “malpractice claims at record lows and premiums that reflect that” – BALONEY again.

    Patient’s biggest crisis is getting high quality medical care at a reasonable price. Medical errors play a part in that crisis as does the cost of health care, availability of care and a variety of other factors. I think you (John Lynch) and I would agree that physician’s malpractice concerns are not and should not be a patient’s main concern. However, when malpractice causes the cost of medical care to rise and or care to become less available it does become a patient’s concern.

    Let me give you one example of how malpractice can drive cost – and to the extent that insurance becomes less affordable, hurt patient care. I read CT scans (and other XRays) for emergency rooms at night. A very commonly done exam is a CT of Chest for suspected PE. The hit rate is extremely low – in the range of 5% or less. ER docs know this and when I have discussed it with them they will tell me that they are mostly “covering their ass”.

    So why would a rational and intelligent ER doc “over order” a test? Because if he/she follows an appropriate guideline, but the patient has a bad outcome he/she can be sued – regardless of whether they were following best medical practices. Who pays for this? In the end patients do and it drives up the cost of medical care and consequently makes it more difficult for patients to get care. This is a situation in which a “safe harbor” would be very helpful.

  11. 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 each side cherry picks only the data that supports their arguments and ignores that which refutes it.

    I’d like to see a healthcare system in which our doctors truly DID behave as the patient advocates they claim to be rather than put upon victims. This isn’t a “Lake Woebegon” fantasy – merely a realization of the role the medical profession claims to adhere to, only it’s a hollow claim in the face of its continued indifference to patient safety.

    Here we are with malpractice claims at record lows and premiums that reflect that – as always, with a few exceptions – and the medical profession still carries on like it’s their biggest crisis. Well, it’s not their PATIENTS’ biggest crisis – medical errors are – and that should be of greater concern to them.

    It’s not a matter of mangling the line between errors and lawsuits but of contrasting the attention each receives by the only ones in a position to do anything meaningful about it – our doctors.

  12. 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 at Irvine so much higher than that of Intermountain in Utah? Why is it that what would be done to treat a condition in one metropolitan area is so radically different from what would be done elsewhere? Captain Sully Sullenberger addressed the 2010 HIMSS conference and read the group the riot act so to speak for not having checklists. Why doesn’t healthcare have checklists that are a routine, rigorous part of the care algorithm? Yes, I mean algorithm. We should be working toward or doing repeatable procedures everywhere possible. Too often medicine is a science experiment that is more about gratifying some over-sized ego rather than providing something that makes patients healthier.

    I have been relatively outspoken about my criticisms of the way health care is provided to people like myself, dealing with Parkinson’s. I think health care is an oxymoron. It would be more accurate, in my opinion, to refer to it as Sickness Perpetuation and Management. If people actually get better, who gets paid? If they stay sick, who gets paid? We need well established procedures that deal with common conditions algorithmically, and holistically. Parkinson’s is well known to cause problems with low blood pressure – orthostatic hypotension. Yet under our current system, I can fall and break bones requiring hospitalization, insurers and medicare will pay for that. Medicare will not pay for the compression stockings that might help the person better manage their blood pressure avoiding the fall completely. Can we all say stupid? This is what “Mal” looks like.

    Doctors need a way to be protected and shielded from silly complaints as long as they are following well understood, proven, effective procedures. This is how you get the Mal out of the practice of medicine.

    Overall, Mr. Lynch thank you for your post. You are pointing to something that does need illumination. My hope is that you can refine your message.

  13. 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 our healthcare system. As to the solution, I encourage you to read Steven Davidson – Still Broken. After analyzing reform over 100 years, since Teddy Roosevelt, and analyzing all those cries that ‘privatization will decrease costs’ our the fundamental logic is flawed. There is no such thing as competition when it comes to a moral standing. And our health, our very lives, are that benchmark. He believes that government, not the employer, should have that responsibility, and should be in control of all sub-components, including med mal. Since our government is corporate-owned at this point in our evolution, the only answer, the ONLY answer, even according to him, is a grassroots movement, for the people, by the people. Incremental change will continue to cost a tremendous number of lives. P.S. I like your book. I think we can be friends!

  14. 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 a small fraction of patients who would have a legitimate basis for suing actually do so, which is what makes so much of defensive medicine an overreaction.

    I’m afraid your call for a complete transformation of the system, noble as it is, isn’t very likely. Nor is mainstream medicine lining up to adopt the integrative medical practices you and I both endorse. So, in the absence of these ideal solutions, my focus is on alerting patients to just how dysfunctional our healthcare system is and providing them with the information and tools they need to avoid harm and better manage their healthcare costs (unlike Canada, Americans are facing a doubling and tripling of their already unaffordable healthcare costs over the next decade – and that’s with or without Obamacare).

    We agree the answer lay with patients becoming better medical and health conscious consumers. I don’t predicate that on a collapse of the current system, however, but rather on the compelling need to help patients and consumers cope better with its continuing failures.

  15. 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? Check out this to find out HOW the SYSTEM is integrated to keep us where we are…http://www.kevinmd.com/blog/2012/10/americas-healthcare-system-sick.html!! THE only answer is total, integrated collapse of all components, and a rebuild from the grassroots…call me crazy, but there’s no way out, except OUT!

  16. “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?

  17. 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 in many shades of gray.

    John Lynch,

    I never said greed was not a factor – it definitely is. In fact one of the biggest “troughs” in medicine is self referral schemes related to investor owned MRI/CT. An area that I am sure you are familiar with. There is good research showing what happens to referral patterns when docs own a “piece of the pie” of an MRI or CT

    I am afraid you and I are going to have to differ about the influence of fear of malpractice. My 30 years of experience of having seen questionable cases and talked to the docs who ordered them is not going to be changed by your arguments. In essence, “What am I going to believe, you or my own eyes?”

    I think I have said about all that I should. I recognize that I have not changed either or your opinions and I really didn’t expect to. You certainly haven’t changed mine. I hope I have been able to act as a counterweight for those readers who are still on the fence.

  18. Well, here’s the mammogram citation so you can check it out yourself: Disclosing harmful mammography errors to patients. Radiology. 2009 Nov.;253(2):443-52.

    As for your Lake Woebegone analogy, I hardly think asking for at least modest progress in reducing our rate of medical errors qualifies. Face it, doctor, it simply hasn’t been the priority it should be for a profession that claims to be advocates for patients.

    I think the medical profession wants it both ways: they want to fend off insurer intrusions by claiming to be advocates for their patients, and yet have done little to actually advocate for them when it comes to reducing medical errors. Indeed, defensive medicine often subjects patients to increased risk of harm. This isn’t patient advocacy where I come from.

    As for your reply to Peter, the experience in states with so-called “malpractice reform” in the form of caps on patient damages is that doctors have failed to deliver on the quid pro quo you suggest in return for capping damages. Overtreatment continues unabated in those states like Texas, where one doctor quoted in Dr. Gawande’s famous New Yorker article described many of his medical peers as acting like “pigs at the trough”.

    I’m afraid that proves that greed is a more dominant factor in all this than you’re prepared to acknowledge. And the difference between doctors and lawyers when it comes to ethical failures like these is that the damages with doctors can be far more than monetary.

  19. “A: Fewer unnecessary tests/procedures”

    Where is the evidence that this is happening in tort reform states? And fewer tests don’t mean much unless patients get lower health care costs and just as safe medicine.

    What you’re saying is competent docs know what tests/procedures are needed and are confident in their diagnosis but for fear of lawsuit suspend that confidence for unnecessary tests that don’t lead to the correct diagnosis – I’m not buying that.

  20. Peter1

    Q: “If docs want less med/mal risk then what are they willing to give the rest us in return?”
    A: Fewer unnecessary tests/procedures

    I would maintain that one of the major drivers of unnecessary testing and treatment is fear of malpractice – i.e. defensive medicine. There are others as well, I do not deny that greed plays a part in unnecessary testing and treatment too. Ignorance and age also play a role – in my experience younger doctors order more tests than older ones and PAs and Nurse Practitioners order more tests than doctors.

    John Lynch

    There is a saying that “everyone is entitled to their own opinions, but not to their own facts.” You and I are clearly not in agreement on the facts. What you want exists in Lake Woebegone – “Where all the men are handsome, all the women are beautiful and all the children are above average.” Everyone wants their doctors, hospitals and nurses to be the best. In reality, half of the people are going to be disappointed.

    I have worked in hospitals for over 30 years and I have not seen widespread incompetence, wholesale coverups, or any of the other things that you allude to. I have seen doctors (and nurses) with a spectrum of abilities ranging from superb to poor. I have witnessed physicians losing their privileges and have personally been involved in firing two physicians from our group for performance/quality reasons. I believe that Physicians compare favorably to other professional groups (Lawyers, Businessmen, Teachers, etc.) in terms of their quality and ethics. The quality of the medical care that you will receive as a poor person is undoubtedly better than the quality of the education or legal services you will receive. That is not to say that there are no problems.

    There is one specific point that you made in your original post that I am certain is a distortion (not necessarily by you): “the book cites a survey finding that 6 out of 7 radiologists were unwilling to admit mammogram screening errors to patients.” I practiced mammography for close to 30 years – thankfully I no longer do. Mammography is a poor diagnostic test with a false positive rate of well over 50% and a very significant false negative rate – in the best of hands. In virtually every case in which a cancer has been discovered by interval screening, the same area can be looked at retrospectively and determined to be abnormal. This does not necessarily constitute a “miss”, except to a plaintiff’s expert witness. I could go on but …

  21. “Tell me, in a system of universal medical coverage, what changes would you make in our current system of malpractice which is expensive, complicated and doesn’t benefit most patients who have bad results?”

    Previous postings by others have proposed judge only med/mal courts. I guess the reason is that docs feel most decisions against them are emotional not factual. I don’t know what a perfect system would look like. Maybe dispense with the pain and suffering aspects of awards, after all that’s the part that pays the lawyer above his costs.

    My experience in universal health has been Ontario, Canada. Docs there have part of their med/mal premium paid by the province and there is no contingency in Canada, to my knowledge. But contingency gives legal access to poor people and for the most part lawyers in Canada are not affordable for the middle class. Canada is also not as litigious as the U.S.

    I think there are way too many lawyers in the U.S. chasing too little legitimate business, so they take the crap to pay the bills. If that’s true how do you restrict the # of lawyers? But contingency is not free for the lawyer and so he needs to evaluate the merits of the case to justify what could be a very expensive legal case.

    I’m with you on legal fees being so costly that many times it’s better to just settle than fight the good fight. In my opinion lawyers arn’t subject to enough oversight by their own profession, but I also think that about docs.

    But no one wants to have to worry about being accountable to another ans I think that’s most of what’s driving this passion against med/mal and the red herring that it drives medical costs.

    This link shows Miami Dade as the most expensive city, yet Florida has tort “reform”.


    If docs want less med/mal risk then what are they wiling to give the rest us in return?

  22. Interesting article just posted on Health Affairs blog about health courts that bears directly on this discussion. Unfortunately, trial lawyer opposition is keeping this rational approach to the first leg of the three-legged stool for real malpractice reform I describe in this article from gaining real traction.

    The basic idea is that specialized health courts could replace the current ad hoc system, which has no learning capacity. By constantly refining what appropriate care means as case law builds, current inconsistencies and the arbitrary nature of jury awards would be replaced with well-defined clinical standards that would reduce the perceived need for excessive tests and procedures for purely legal defense reasons (i.e., defensive medicine).

    Here’s a link to the Health Affairs piece:


  23. Legacy makes some good points and obviously has extensive experience in this area. I’m not sure, however, that it’s productive to speculate about what malpractice might look like under a system of universal medical coverage, since that’s such a remote political possibility in our current environment.

    However, I would like to pick up on your comment about my suggestions falling on deaf physician ears. I suspect you’re right – and that’s very much part of the problem. It’s easy to understand and sympathize with physicians’ sense of helplessness and resentment around this issue, but much of it is of their own making.

    There is, after all, a collective responsibility in the profession for the culture of looking the other way when confronted with incompetence and impairment among their medical ranks. Medical licensing could be much more effective and consistent if the profession made it a priority. It hasn’t, nor has it made patient safety the priority it deserves – and I’m hard pressed to accept your separation of the ongoing failure to more aggressively tackle this problem and the lingering malpractice problem.

    Of course there are patients suffering real harm who never even recognize it – and that deception itself is inherently unethical – as well as those suffering no harm who receive financial benefit unjustly. Those are byproducts of our dysfunctional reactive approach to malpractice as strictly a legal matter rather than taking a proactive approach to it as a broader medical issue. Perhaps this is a result of medicine’s history of decentralized and largely unmanaged practice with no one in a position to “own the issue”.

    Whatever the reasons, I believe it’s intellectually dishonest to bemoan our litigious consumer culture while denying the contribution our medical culture makes to the problem with its indifference to patient safety.

    I close one of the chapters in Our Healthcare Sucks as follows:

    “Imagine a world in which your doctors got as outraged about THEIR patients dying needlessly every year in THEIR hospitals as they do about
    malpractice insurance and trial lawyers!”

    Poetic license aside, wouldn’t that be a better world than the one we now inhabit?

  24. Peter,

    You have a good point. The evidence for the cost of defensive medicine is thin. I believe that this is because nobody has yet done a good study to prove it, rather than it not being the case.

    I read Atul Gawande’s post in the New Yorker when it came out. I have sent copies of this article to physician friends. It is an excellent article and very thought provoking. I don’t see how it disproves my assertion that fear of malpractice is a major driver to the cost of medical care.

    I also believe that we should have some type of universal medical coverage. I think the current system we have is too complex, too expensive and doesn’t yield as good results as it could/should.

    Tell me, in a system of universal medical coverage, what changes would you make in our current system of malpractice which is expensive, complicated and doesn’t benefit most patients who have bad results?

  25. If med/mal is so costly then why have medical costs not been lowered in states where it has been enacted?

    Read this article and tell me defensive medicine is the problem.


    If we had universal medical coverage then at least mistakes/complications would be covered and not come out of the pockets of the injured. That would at least lower needed awards.

    Docs talk as if defendants can’t hire competent attorneys.

  26. Malpractice is a mess and the only people who benefit from it are the lawyers – both plaintiff and defense. I have acted as an expert witness for over 20 years and have seen over a hundred cases of “the good, the bad and the ugly”

    In the first place, there is a huge “rake off” of the money that goes into the system. Considering insurance costs, plaintiff attorney fees, defense attorney fees, expert witness fees, legal costs, etc. probably only about 50% of premiums go to reward injured parties. It is ironic that many self proclaimed “health care experts” who want to keep insurance overhead under 10 to 15 percent accept such a huge “rake off” of malpractice premium dollars
    In the second place, there is only a minimal relationship between “malpractice” and medical errors. The number one predictor of malpractice risk is specialty, all other predictors pale in comparison. The reason that OB/GYNs and Neurosurgeons are at much greater risk than pediatricians and psychiatrists is that they do much more dangerous things, not that they are better or worse doctors. There are many medical errors that are never discovered, there are many medical errors that are never compensated and there are malpractice cases in which no error occurred, but the patient got compensated anyway. In essence, malpractice is like the multiple choice questions I used to take where the answer is: TRUE, TRUE, UNRELATED. It is TRUE that patients are injured by errors, it is TRUE that (some) patients are compensated, but these two things are (largely) UNRELATED.

    To say that the rate of medical errors is 50% higher in the US than in other developed countries is ridiculous. It is a total apples to oranges comparison, what this factoid really says is that our legal system is different from that of other developed countries. Even for those cases that enter the legal system, most are settled without any verdict. Are those cases of malpractice? Or are they cases in which it was cheaper to settle than to go to court?

    There will never be any significant medical malpractice reform under a Democratic President. And I am a Democrat who voted for Obama – one of my favorite foreign born Muslims ;). In 2008 the amount of money that came in to the Democratic Party from the Lawyers was second only to that coming in from Banking and Wall Street (OpenSecrets.Org). They won’t kill the Goose that keeps laying the Golden Eggs.

    What is rarely focused on, but is truly the Elephant in the Room, is what our malpractice system costs us in unnecessary testing, procedures, C-Sections, etc. – “Defensive Medicine”. Unfortunately, there is not a lot of good data on what these costs actually are, but my observations (and those of others) is that the cost of defensive medicine is huge – at least a multiple of 10 compared to the direct cost of malpractice. In my review of hundreds of malpractice cases, I don’t recall ever seeing someone allege that fewer tests, fewer consultations, etc. were needed. On the other hand, in virtually every case, plaintiffs allege, that another test, consultation, etc. should have been performed. What is the take home message that our malpractice system sends to Physicians?

    I am an older physician and have been jaded by what I have seen over the years. Perhaps there is a reservoir of good will amongst younger physicians who have not yet been through the malpractice mill. Frankly I doubt it. I predict that your calls for physicians to “heal thyself” with respect to malpractice will largely fall on deaf ears, however well meaning they are.

  27. Thanks for the thoughtful comment. It’s hard to be objective when you’ve been through what sounds like quite an ordeal, so your measured comments are appreciated.

    My point about caps is that they’re not enough BY THEMSELVES. You’ll note that one of the three legs of what i’m proposing is “malpractice reform” – meaning as it’s generally discussed today. But simply limiting damages without addressing the underlying problems that contribute to malpractice liability – from medical errors to uneven physician licensing standards and practices to insufficient patient understanding of their risks of treatment to grant truly informed consent – won’t do much to change medical behaviors that drive so much of our medical spending.

    I realize that better educating patients about treatment risks as well as potential benefits is a considerable undertaking and there’d need to be some consensus about who should own that responsibility. But the most fundamental and enduring way to lower actual malpractice risk, I believe, is by empowering patients to take more responsibility in the medical decision-making process. The more they’re able to share in those decisions – with real understanding of their actual and fully disclosed treatment risks – the more they’ll share in the liability for any harm from treatment. Involving patients more in such decisions inherently lowers their physicians’ legal risk simply by virtue of patients assuming more responsibility for their decisions.

    I’m no lawyer and i’m sure it’s more complicated than I’m stating it, but I do believe such a comprehensive approach – basically upgrading the Informed Consent process to what it was originally intended to be and not the legal “C.Y.A.” process it’s become – would do far more to lower both malpractice and medical costs as more conservative, and lower risk, treatment choices are likely to ensue.

    Finally, thanks for the benefit of the doubt about what I was trying to do with this article. I have plenty of other criticisms of medical practice in America , but this is an area where I think physician support – support that’s critical to getting our healthcare spending on a more sustainable trajectory – could be enlisted to everyone’s benefit.

  28. @ Legacy. I get the frustration. I live every day under the threat of litigation. My life has been completely upended by a series of lawsuits. (The first major, the second relatively minor. Both completely without merit.) So you have my sympathy and my empathy. Not sure I agree with John on the caps argument and some of his other points, but he’s right that leaving malpractice out of the health reform was a major strategic error on the part of the White House. From a drone flying at 30,000 feet the logic makes sense (bypass a potential minefield and get the legislation done and then circle back around deal the problem from a position of strength). The end result, combined with the scientific application of paternalistic quality improvement processes and HMO-like payment “reform” has left doctors with the feeling that’ve been royally and repeatedly screwed. The current system serves nobody involved, other than the lawyers who use the system as a business model. I read John’s essay as an honest take on developing a solution to a difficult problem …

  29. Not me.

    Legacy, why is it that it’s always the other guy’s lawyer that’s the blood sucking scum? And if you ever needed a lawyer which would you choose, the predator shark or the conciliatory guppy?

    I can find lots wrong with the legal profession, but don’t pass the risk and punishment of doc mistakes and incompetence on to wronged patients.

  30. My question remains.

    How many readers thought John Lynch was a plaintiffs attorney after reading his post?

  31. Although The Health Care Blog has added my bio info since this comment was posted, I’d just like to state – for the record – that I’m not an attorney of any kind, nor do I play one on TV or even on the internet.

    But you’re right to look for conflicts of interest. Make sure you do the same in your healthcare decisions.

  32. If our rate of medical errors in America is 50% higher than other developed countries yet malpractice claims are at record lows, why are doctors always complaining about frivolous malpractice suits?
    It would seem there are probably more legitimate malpractice claims than are being filed, yet doctors still overreact with needless treatments and hospitalizations. The failure of reform to curtail these practices in states that cap patient damages shows it’s mostly about profits, not protecting patients.
    This article is spot on in identifying the need for a comprehensive approach that educates and empowers patients to protect themselves from needless medical interventions. Well done John Lynch.

  33. Tried to find who John Lynch is and what his qualifications are by Googling him. Too many John Lynches to find the right one.

    Wild guess – he is a plaintiff’s attorney.

    How many other readers would have made the same guess.