For more than a decade, a running joke among electronic health (EHR) record skeptics has been that its clunky “decision support” functions, defined as the on-screen provision of clinical knowledge and patient information that helps physicians enhance patient care , is condemned to always remain an innovation of the future. Yet, while published studies like this continue to fuel doubt about the prime-time readiness of this EHR-based technology, a growing body of clinical research suggests that the science is getting better. Jonathan Cohn, writing in The Atlantic, points out that IBM’s Watson has achieved enough of a level of sophistication to warrant clinical trials at prestigious institutions such as the Cleveland Clinic and Memorial Sloan-Kettering.
Unfortunately, there is an under-recognized threat to EHR-based decision support: the dysfunctional U.S. tort system.
The experience of Google’s “driverless car” may be instructive. According to National Public Radio, years of testing is putting this technology within reach of consumers. Thanks to the prospect of fewer accidents, better transportation options for the disabled, reduced traffic congestion and lower hydrocarbon consumption, some states have responded by attempting to support this promising technology with “enabling legislation.”
Unfortunately, the legislation in some state jurisdictions is being hindered by the prospect of complicated lawsuits. As physicians know all too well, when a single mishap lands in court, adroit attorneys can use the legal doctrine of joint and several liability to tap multiple deep pockets to increase the potential size of the award. In the case of driverless cars – in which the owner is more of a passenger than a driver – the accidents that are bound to happen could metastasize upstream from the owner and tie up the driverless automobile manufacturers and all of their business partners in time-consuming and expensive litigation.
Ditto the EHR’s decision support technology. Even with Watson’s intelligence, medicine will remain imperfect and allegations of medical mistakes will be inevitable. When lawsuits arise, the defendant medical providers will likely argue that their judgment was clouded by the very technology that otherwise helped them better serve their other patients. Personal injury lawyers are unlikely to let that theory of liability go unused. Tapping the same kind of lucrative joint-and-several legal theories that have served them so well in decades of standard malpractice litigation, they’ll undoubtedly be happy to name the EHR manufacturer and all of its decision-support business partners in these lawsuits.
Similar to many other states, Oklahoma has a statute prescribing that suits alleging medical malpractice must be verified by an affidavit from a qualified medical expert. Suits unaccompanied by a proper affidavit must be stricken out. This statute is part of what I call – and commend – as a procedural tort reform: it allows courts to get rid of unmeritorious suits against doctors and hospitals early in the process.
The statute, however, recently became a dead letter after being pronounced unconstitutional by Oklahoma’s Supreme Court for the second time in a row (Wall v. Marouk, — P.3d —-, 2013 WL 2407160 (Okla. 2013)). Evidently, this Court does not view merit affidavits as favorably as I do. Let’s see why.
The previous version of Oklahoma’s affidavit-of-merit requirement, limited to medical malpractice suits, was found unconstitutional as a “special law” and “monetary barrier to the access to courts” (Zeier v. Zimmer, Inc., 152 P. 3d 861 (Okla. 2006)). The current version extended to all suits asserting professional negligence, which makes it less “special.” This version was nonetheless challenged by a patient whose suit against a physician was not accompanied by a merit affidavit from a qualified expert.
The plaintiff alleged that the physician caused him permanent injury during surgery (loss of feeling in right fingers) by negligently cutting the median nerve in his right arm. The trial court ruled that the plaintiff must submit the required affidavit within twenty days or face dismissal.
The Oklahoma Supreme Court voided this requirement for being as unconstitutional as the previous one. The Court ruled that the requirement arbitrarily separates suits that allege professional negligence from other civil actions, in which plaintiffs do not bear the costly burden of obtaining expert review prior to proceeding. This disparate treatment, explained the Court, discriminates against victims of professional misconduct.
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…
Whenever I post about the malpractice system, I try to make it clear that while I don’t consider it to be the cause, nor the cure, for the problems in our health care system, that doesn’t mean that the system isn’t broken in many ways. Nuisance cases do exist; cases that have real merit never see the light of day. One additional side effect of portraying the malpractice system as the boogeyman of the entire system is that we lose sight of the fact that it really does impact physicians. Take defense costs.
There’s a new paper in the Journal of Law, Medicine, and Ethics by yours truly and co-authors that looks at this in detail:
The objective of this study was to take a closer look at defense-related expenses for medical malpractice cases over time. We conducted a retrospective review of medical malpractice claims reported to the Physician Insurers Association of America’s Data Sharing Project with a closing date between January 1, 1985 and December 31, 2008. On average a medical malpractice claim costs more than $27,000 to defend. Claims that go to trial are much more costly to defend than are those that are dropped, withdrawn, or dismissed.
A few days ago, I found myself involved in a debate over malpractice suits on The Heath Care Blog. One reader on the thread explained why, in his view, we need some type of tort reform: “What drives physicians to practice defensive medicine is the total lack of objectivity, fairness and consistency both across jurisdictions and even within a jurisdiction as to how medical disputes are decided. Juries of lay people who cannot understand the often conflicting scientific claims in these cases can be easily swayed by emotion and sympathy for injured plaintiffs.
“The inclination to practice defensively is especially prevalent in ER’s when the doctor and the patient often don’t know each other and there is time pressure to determine a diagnosis and send the patient on his or her way,” he added. “I’ve heard from plenty of doctors who work in inner city ER’s that even poor people are not shy about suing when there is a bad outcome if they can find a lawyer to take their case which they often can.”
This comment pretty well sums up the conventional wisdom about medical malpractice cases: Juries are not objective, don’t understand the evidence, and tend to sympathize with the patient. Meanwhile, doctors should be wary of those low-income patients in ERs. Americans are litigious by nature and if patients are not entirely happy with the outcome, they’ll jump at an opportunity to turn misfortune into a payday. Poor people, who need the money, are even more likely to try to “score.”
Those are the fictions.Continue reading…
Tort reform is a hot-button issue among physicians. It distorts the practice of medicine by compelling doctors to order tests, the lack of which, might be used against them. It makes each patient a potential enemy. It forces doctors to spend time in extensive documentation. It imposes extensive, often unnecessary, costs on the health system. And it received little attention in the new health reform law, other than being kicked down the road through a demonstration project, which will further delay the need for further action.
Well, Texas acted on tort reform back in 2003-2005, and the fruits of that reform have since become apparent. A WSJ editorial on December 15 , which I shall quote listed these benefits.
“This Texas upgrade would build on reforms in 2003 and 2005 that have vastly improved the legal climate in what has not coincidentally become the country’s best state for job creation. Texas rewrote everything from class-action certification to product liability. One success was rationalizing the asbestos-silica litigation scam. Another was an overhaul of medical malpractice laws, ending the practice of venue shopping for friendly judges and putting a $250,000 cap on noneconomic damages like pain and suffering.”
“Before the reform, Texas was a kind of holy place on the tort bar pilgrimage. Now it’s a Mecca for doctors, especially the emergency physicians, obstetricians and surgical specialists who elsewhere can face blue-sky malpractice premiums.
Sermo’s Daniel Palestrant got on TV with Howard Dean. It was an amusing (and short) little debate which you can find here.
The best moment was at the start when Dean claimed that Sermo was just a poll. Palestrant pointed out that Dean spent last week explaining how reflective online communities were about what their members thought. Given how Dean rose to national prominence I’m a little surprised that he’s trashing the Internet!Continue reading…