The Dallas/Fort Worth Healthcare Daily ran a fascinating excerpt from the Steve Jacob’s book So Long, Marcus Welby, M.D.* The excerpt contained some very interesting assertions and statistics. For example:
- Consultant PwC, relying on that Congressional Budget Office (CBO) report, estimated that malpractice insurance and defensive medicine accounted for 10 percent of total health-care costs. A 2010 Health Affairs article more conservatively pegged those costs at 2.4 percent of healthcare spending.
- In a 2010 survey, U.S. orthopedic surgeons bluntly admitted that about 30 percent of tests and referrals were medically unnecessary and done to reduce physician vulnerability to lawsuits.
- A 2011 analysis by the American Medical Association found that the average amount to defend a lawsuit in 2010 was $47,158, compared with $28,981 in 2001. The average cost to pay a medical liability claim—whether it was a settlement, jury award or some other disposition—was $331,947, compared with $297,682 in 2001.
- Doctors spend significant time fighting lawsuits, regardless of outcome. The average litigated claim lingered for 25 months. Doctors spent 20 months defending cases that were ultimately dismissed, while claims going to trial took 39 months. Doctors who were victorious in court spent an average of 44 months in litigation.
- A study in The New England Journal of Medicine estimated that by age 65 about 75 percent of physicians in low-risk specialties have been the target of at least one lawsuit, compared with about 99 percent of those in high-risk specialties.
- According to Brian Atchinson, president of the Physician Insurers Association of America (PIAA), 70 percent of legal claims do not result in payments to patients, and physician defendants prevail 80 percent of time in claims resolved by verdict.
Fending Off Liability
The issue of physician liability gets the blood boiling quickly. Doctors throughout the country feel as though one mistake could destroy their careers. Indeed, California Proposition 46, which was defeated on the November 2014 ballot, would have raised the state’s cap on non-economic damages that can be assessed in medical negligence lawsuits from $250,000 to more than $1 million.
Thus, as noted above, many physicians over-treat as a defense mechanism. Who can blame them given the litigious nature of our society?
The problem, of course, is that over-treatment is immensely wasteful and expensive (for more, see “Overtreated” by Shannon Brownlee). Tort reform is often mentioned as a possible solution to this problem but that misses the forest for the trees in a way. Yes, tort reform may be part of the solution but at a much deeper level the issue isn’t legalistic: It’s about making health care much safer so that many fewer patients are injured.
Like so much in health care, there is greater clarity when we look at issues from a patient-centered perspective.
Focus on Patient Safety
The reality is that there is a huge gap between how safe health care is today and how safe it could be.
Virginia Mason Medical Center in Seattle is an example of an organization that has through its lean management approach worked relentlessly to reduce errors and improve safety. It has often been cited as a model of safety improvement. When a scandal engulfed the Mid Staffordshire hospital trust in England—negligent care caused deaths and widespread suffering among patients—English leaders turned to Virginia Mason for guidance. Jeremy Hunt, secretary of state for health in the United Kingdom, traveled to Seattle to learn firsthand about Virginia Mason’s safety efforts.
Mr. Hunt pronounced Virginia Mason as, “one of the safest hospitals in the world and perhaps the safest in the world.” Virginia Mason consistently receives top scores on the Leapfrog Group’s safety scores. (The Hospital Safety Score was developed by the Leapfrog Group, an independent national nonprofit run by employers and other large purchasers of health benefits.)
Another source of safety best practices is the Lucian Leape Institute at The National Patient Safety Foundation. According to the Leape Institute, “the free, uninhibited sharing of information … is probably the most important single attribute of a culture of safety. In complex, tightly coupled systems like healthcare, transparency is a precondition to safety. Its absence inhibits learning from mistakes, distorts collegiality and erodes patient trust.”
What are the building blocks for a culture of safety?
What safety best practices have you implemented? Are there barriers to implementing these? How have these been overcome?
Jack Cochran, MD, FACS, (@JackHCochran) is executive director of The Permanente Federation, headquartered in Oakland, California.
Charles C. Kenney is a former reporter and editor at the Boston Globe and author of several books on healthcare in the United States.
Cochran and Kenney are authors of The Doctor Crisis: How Physicians Can, and Must, Lead the Way to Better Health Care. Both write about physician leadership at kp.org/physicianleader, where this post originally appeared.
The statistic most interesting is that the per cent increase in the cost to defend a med mal claim dwarfs the increase in pay outs in the interval stated.
That is because reconstructing the case from the hundreds of pages of legible EHR gibberish, and the absence on contemporaneous chart of records takes many more hours than prior to EHR run care.
From the doctors’ perspective, this parellels the excess time needed to manage a case in real time.
If the high deductible plans were fully covered wth paid for insurance benefits, do you think that coverage would entice people not to shop around as much?
Not sure I fully follow your question, but….
The principle is that patients should financially benefit from avoiding excessive consumption of medical services. Most people with plans that essentially cover all services assume that more tests and procedures are always good. If a doc wants to do a test, why not? The risk of damage/harm from false positives is seldom considered…..
For example, a good orthopedic doc diagnosed the cause of knee pain, outlined a tx plan, all with a good prognosis. Then he said let’s get an MRI. When I asked if the tx plan or prognosis would change based on the results he said no…..I said no thanks, I ‘d rather use the $800 it would have cost for a short vacation.
What I meant to ask is if the high deductible is fully covered with either paid-for insurance benefits, or an HSA, would these balances available to pay expenses in full under the deductible encourage people to go ahead and pursue medical services that are marginal? As opposed to no coverage under the deductible other than one’s personal savings.
Funds in an HSA are owned by the patient….just like an IRA or 401k…..and in my experience people treat it the same as cash. More likely to pass on marginal services….even asking about prices for medical services.
And I will read your book The Doctor Crisis.
A further thought re over-treatment: an essential element to fixing this is already in play: high deductible health plans. They transform patients into active, engaged consumers who ask whether the next suggested procedure is really necessary…..engaged patients asking questions is a powerful elixir supporting system reform…..and it is too often overlooked and underestimated.
In my opinion Nortin Hadlers 2013 book Citizen Patient is the most thorough and insightful analysis of how and why all this over treatment happens.
The link below (if it works) will take you to my review of the book….it gives a brief taste of some of his key insights.
Yeah, I have that book, and have cited it on my blog.
Paul thank you the book looks really interesting. I will read.
Bobby is 1000% spot on, and the article is excellent. I would just add that tort reform has rarely ever happened as caps on damages simply do not change the process enough to make any difference in physician behavior. The all too prevalent culture is to find someone to throw under the bus when something goes wrong. The key is not simply to make a smaller bus, but to eliminate the bus altogether by separating taking care of the patient or their family from taking care of re-educating or reprimanding the doctor or institution.
Attempts to quantify the effect that the tort system has on physician behavior (including utilization of healthcare resources) has failed because it almost always fails to account for how the fear experience by a prior generation of physicians affected their teaching and mentoring. Now the current generation, when asked why they do things the way the do, say that they are simply following standard of care – a standard that is often unnecessarily wasteful due to past fears of tort.
Absolutely. Standard of Care is not determined by thoughtful scientific medical process, it is determined by court cases.
Secondly, for policymakers to believe that doctors will practice Evidence Based Medicine or use protocols without some type of change in the medical malpractice tort system is very unreasonable.
Very interesting. One area I feel gets insufficient attention is that of what I call “workplace psychosocial toxicity,” e.g., “bully culture” (or just the more prevalent FUD environments). I argue that all of the Health IT and process QI (my specialty) in the world may be negated by chronically toxic workplaces where one speaks truth to power at one’s peril. It’s a sad irony that many healthcare workplaces are anything BUT “Just Cultures.” I have examined this issue at great length, breadth, and depth. The chronically psych-toxic workplace issue is ultimately a patient safety issue.