Reformation of the medical malpractice system has been an issue of great contention in recent years. And then, John Edwards got the nod as the Democratic Vice Presidential Candidate. I’m not sure if you’ve heard this, but there are a few people who would like you to know that, before becoming a Senator, Edwards used to spend his days before neutral triers of fact representing those who may have been injured by others. And he was pretty good at it. Edwards’ presence on the ticket has whipped the pro-“tort reform” crowd into a frenzy, and over the past few weeks the drum beat for change has grown even louder (and the band would appreciate it if you pay no mind to whether the drummer has any rhythm).
The problems within the medical malpractice system are myriad. The legislative solutions proposed, however, have generally been myopic. This is because the proponents of change — the Republicans and physicians — have successfully boiled down the debate to One Big Thing: a cap on damages. And that’s precisely the One Big Thing the Democrats and trial lawyers do not want to see put in place. It’s been largely like this for thirty years, and so long as the discussion remains on this single axis, there is little hope for making significant progress toward improving the quality of care delivered in our health system.
Fortunately, there are a few people who are trying to reframe the debate, and in this month’s issue of Health Affairs, William M. Sage offers some exciting and innovative solutions to the medical malpractice quagmire. He does it by noting how different the health care system is from when the debate began three decades ago, and by focusing his attention on the aging hippopotamus that has been standing quietly in the corner, hoping no one would notice him.
The aging hippopotamus is the liability insurance industry:
The politics of liability insurance have been dominated by the offspring of the crisis of the 1970s: provider-sponsored carriers begotten by medical societies and hospital associations after commercial insurers had abandoned their members. Because of this heritage, the implicit relationship between public policymakers and these companies has been one of appeasement, not accountability. Especially in crisis periods, legislators offer tort reforms and outright subsidies to entice private liability insurers back into markets and expand their underwriting capacity rather than dispassionately assessing their effectiveness.
And conducting such a dispassionate assessesment finds that the medical malpractice insurance system has not kept up with the increased industrialization and corporate nature of health care delivery. Instead of recognizing the collaborative, corporate nature of modern medicine, the insurance industry continues to function as if the 1950s “solo physician as captain of the ship” approach to health service delivery still applied.
Organizational change has gone hand in hand with scientific progress; health facilities, financing entities, diagnostic enterprises, and suppliers of medical technology and expert labor now play a role arguably no less important than that of physicians….
Compensation for medical injury is paid mainly by physicians’ malpractice insurance because physicians still plausibly control roughly two-thirds of health spending through their ordering and referral decisions, and tort law holds physicians primarily responsible for the care that patients receive. However, physician services account for less than 15 percent of national health spending, creating a trillion-dollar gap between physicians’ revenues and total revenues because of sustained medical inflation. The medical profession is insufficiently capitalized to fund insurance for such a large multiple of earnings, particularly when the burden falls mainly on a few specialties.
Other concerns he raises about the current system include class rating as the means of pooling risk for the insured and the tighter, less flexible cost containment and reimbursement measures of the modern “managed care” system, which prevents physicians from passing on the costs of fluctuating insurance premiums to their patients.
So what should be done? Sage offers a number of proposals, but his most innovative is to let Health Care’s Big Dog — Medicare — off the porch. Medicare is a major player when it comes to pushing for quality of care improvements. And Medicare already sets the pace when it comes to reimbursement of health services (except of course for drug prices — the biggest reason Big Pharma worked so hard to prevent Medicare from negotiating drug prices in the Medicare Modernization law was that as soon as Medicare negotiated discounts, every private insurer would follow suit, gutting Big Pharma’s profit margin). Why not, Sage argues, let Medicare take the lead and allow it to restructure the way med mal claims involving Medicare and Medicaid patients are treated? Doing so would allow access to remedies to our poorest and oldest patients — who have been largely short-changed by the tort system because, let’s be honest, they’re not very profitable cases for trial lawyers to bring to court. In addition, by factoring malpractice into Medicare reimbursement rates, it would also allow providers to better recoup their malpractice insurance costs.
It’s a brilliant proposal. I hope it gets serious consideration. However, in the binary world of political debate, I fear it’s a bit too nuanced to get as much support as it deserves, especially from those who currently support reform. To put it another way: If you think Medicare costs are high now, how high do you think they would get if the administrative costs of medical malpractice (even a more streamlined med mal system) had to be folded in?
Anyhow, a bit of food for thought.
{ 21 comments }
peter ramus 07.20.04 at 5:47 pm
Ross, I’m wondering how the seeming reluctance of the AMA to rigorously police its own plays into the related question of skyrocketing medical malpractice insurance.
Is the AMA moving with alacrity (or at all) to remove serial blunderers from the operating room before they get a chance to make that one enormously expensive mistake that drives up the cost of malpractice insurance for everybody? Or are the overwhelming majority of legal actions taken against medical providers whose errant acts are first time offenses?
How much would a robustly enforced delicensing program help, if at all, to reduce both cost of insurance and the threat of bad practices?
Sebastian Holsclaw 07.20.04 at 6:20 pm
“And that’s precisely the One Big Thing the Democrats and trial lawyers do not want to see put in place.”
There are lots of other things that trial lawyers have resisted that might help–revamping the increasingly broken expert witness disaster areas, making it somewhat more difficult to bring cases, enforcing the penalties in place for bringing frivolous lawsuits.
I think that there is a cultural problem among judges with respect to enforcing rules against attorneys who file frivolous suits. I also suspect that there must be a better balance between comprehensive discovery (often the most expensive part of a case) and allowing for useful summary judgment after some lesser amount of discovery has already taken place.
Anyway, I agree it is an ugly problem. And I’m a conservative so I’m not thrilled with the idea of going hog-wild with Medicare bullying. Quite a few doctors simply refuse to deal with MediCare patients already. Is that a trend we should encourage? Are you going to force doctors to take Medicare patients?
gavin 07.20.04 at 6:41 pm
Not sure that the debate has all boiled down to just the one issue of damages – and really the damages issue actually comprises two elements: the first, non-economic damages, and the second, punitive damages.
But apart from that, as this CBO report makes clear (http://www.cbo.gov/showdoc.cfm?index=5549&sequence=0) there has also been lots of action in the fields of collateral source rules, and joint-and-several liability.
My own picks for future action are more coordingation by the states (and if necessary, legislation) to prevent venue-shopping, and also I would have punitive damages paid to the state, rather than the plaintiff. This would have a big impact on frivolous lawsuits and better reflect the fact that the broader social costs of malfeasance fall upon society, rather than the plaintiff (who gets their damages in another capacity).
But the bigger picture is that there has already been quite a lot of tort reform, but it has largely gone unnoticed since the media prefer the big bucks headline awards given by juries and don’t report the scaled back final awards given by judges.
Which is my last point, as long as juries decide on initial awards, there are always going to be wacky outcomes. Hence, the attempts to move some cases into federal courts where judges decide.
Robbo 07.20.04 at 7:17 pm
I agree with the overall premise of this post: Republican suggestions of caps on damages are a short-sighted, incomplete solution. Even in states with malpractice caps, the cost of malpractice liability insurance is going up at several multiples the rate of inflation. (It just happens this rate is several multples fewer than states that don’t have caps…)
Some major factors that don’t get addressed by the malpractice caps solution:
1) Medical malpractice, by its very nature, is a complex issue. Forget the juries, most of the *judges* involved in these cases don’t understand the issues at stake! The best solution I’ve seen proposed for this is to have an entirely separate system for dealing with medical malpractice–akin to the patent law system–where there are arbitrators and judges who understand the science (and “art”) of medical malpractice much better than the average county or circuit judge; and the ultimate decision is made by either a trained arbitrator or a group of arbitrators/judges (a 3 person panel, say).
2) It doesn’t address the HUGE financial industry personal injury tort (including medical malpractice) has become. John Edwards, when he left legal pratice, sold his practice for somewhere in the neighborhood of $15MILLION dollars–that means the buyer thought they had a good chance of making that, plus some, by taking over the practice. How many other industries (heck, how many other fields of law!) can someone realistically hope to make tens of millions of dollars in a career spanning less than 20 years? Basically, you’re looking at either being a personal injury plantiff lawyer, or being REALLY good at a sport that draws millions of fans to stadiums and television sets… This huge financial incentive creates a lot of soft money to block true reform.
3) The problem is most of our lawmakers, of each party, are attorneys. Most of them have a big disincentive to really do what it takes to fix the system. Even if they don’t personally work in tort law, like Edwards, many are hoping if the next election doesn’t go the way they like, they can parlay their “experience” and “connections” into a cushy lobbyist job, or law job. If they alienate the whole plantiff’s bar, they’re closing out a lot of jobs for themselves (more so than they would open up by being friends with the physician/hospital/tort reform crowd).
However, one big glaring problem with Sage’s ideas:
Medicare ALREADY factors in medical malpractice cost into the reimbursement process for each and every payment for services to doctors, hospitals, nursing homes, etc, etc, etc (see http://www.cms.gov, and look for “relative value units” to read more on this.) And this is intended to “reimburse” physicians, etc, for the rising costs… but it really is a drop in the bucket. Sorry, but this suggestion does make me wonder just how much Sage really understands the system and just how it works (and doesn’t work…!).
Moreover, the fact that Medicare already helps foot the malpractice bill brings up a really scary conclusion: we ALL (who live in the USA) helped personally enrich John Edwards (and the rest of his plantiff lawyer colleagues). Why? Because each time Edwards won one of his mega-million cases in N.C., the rate ALL doctors in N.C. had to pay for malpractice insurance went up. And when that went up, the “RVU” payment from medicare, to each of those doctors, went up. And that didn’t just get paid by N.C. tax dollars–it got paid with FEDERAL social security dollars! And without fixing the underlying problems (ie: mega-million dollar verdicts, judges and juries that don’t understand the complexity of the cases, etc), throwing more Medicare dollars at the problem will only bankrupt Social Security that much faster…
So, I agree, the Republicans fall far short of fixing the system. The problem is with Edwards as a candidate, the democrats basically have completely cozied up to the current, broken system. And unfettered, it’s not just going to continue to drive up the cost of health care, it will make Social Security that much more of a farce to people my age (I’m 33)…
Robbo 07.20.04 at 7:47 pm
You quote a link:
(http://bloviate.blogspot.com/2004/03/tort-reform-texans-tall-tales.html)
“even a reduction of 25 percent to 30 percent in malpractice costs would lower health care costs by only about 0.4 percent to 0.5 percent, and the likely effect on health insurance premiums would be comparably small.”
This is an *incredibly* misleading statement! The writer either complete ignores (or is completely ignorant) of the factor that many different posters have brought up about this issue in other posts: the very nature of malpractice litigation in this country, as well as the expections of patients for “perfect” health care, creates a system that uses up many more dollars per capita than any other country in the world! Yes, the actual direct costs of malpractice litigation aren’t a huge percentage of overall healtchcare expendature; but the way it affects the rest of the system is the kicker…
The scenario (very simplified) is this: You go to your doctor with a headache; you haven’t had a lot of headaches before, so you’re a little worried about it. He/she is looking at you, and decides while you are in significant pain, your examination is otherwise normal. He/she is about 95% certain this is a migrane headache, which is something that can be treated with analgesics, and maybe a few, slightly more expensive migrane-specific medicines.
HOWEVER, there remains the other 5% chance that this is something much more serious (bleeding inside your brain, a tumor, etc). Analgesics and migrane medicines, obviously, might just mask over the symtoms so that the doctor “misses” the diagnosis, and a catastrophe results.
So what happens?
If you’re seeing your doctor in much of western Europe, your doctor trusts his/her physical exam, prescribes the medicine, and figures that if your symptoms worsen or change, he/she will look into it further. Estimated cost: $60 for the professional work, $5-60 for the medicine.
[If you are seeing your doctor in much of the third world: your doctor gives you some panadol (tylenol for the Americans) and hopes this works, because he/she doesn’t have much else to do for you. Cost: one week’s wages for the average worker.]
If you’re seing your doctor in the USA, and ever more likely if you are seeing your doctor in the USA in an emergency room: Your doctor says “Well, if the 5% chance comes up that this is a tumor or brain bleeding and something bad happens, I could lost 2 weeks work in depositions, and possibly lose my house, kids’ college savings, and professional reputation.” So, in addition to the $65-120 cost to the western European paid to get their headache treated, you now get an $800 CAT scan… your bill: $920 to treat a migrane headache.
Robbo 07.20.04 at 8:02 pm
peter ramus wrote: “How much would a robustly enforced delicensing program help, if at all, to reduce both cost of insurance and the threat of bad practices?”
Well, I think it *would* help with bad practices… and that could significantly help healthcare quality.
However, it wouldn’t help malpractice rates/costs significantly, IMO. Why? Well, because malpractice litigation has very little to do whether or not good practice has occured or not. It has to do with the frustration of a plantiff, and a plantiff’s attorney thinking the potential reward is worth the time spent researching the case. If the patient (or their family) isn’t upset, no claim is made. Moreover, as Ross’ post alludes to, if there is’t a significant gain to be had, no plantiff lawyer is going to touch the case, even if it’s a case of eggregious mistreatment of a patient, because it “isn’t worth it” to the lawyer.
This is where I do think Bush has backed a reasonable solution: My understanding is that he’s supportive of an error reporting system that focuses on fixing the problem, not castigating the error-maker. Let’s face it, we ALL make mistakes. Why is it just for a physician who has spent a career helping people to get suddenly sunk for house and home for a single mistake. There *is* good evidence that physicians who get repeatedly sued aren’t such good physicians. But one study I saw said that 58% of doctors in the USA had been sued at least once. While a plantiff’s attorney might aruge this means 58% of them are bad doctors, a further examination of the evidence suggests otherwise. The same study said that approximately 80% of obstetricians and 75% of pediatricans have been sued at least once. Are obstetricans and pediatrics lousy doctors as a whole? Unlikely. A better explanation is there are big dollars to be had from getting a jury to feel sorry for the parents of a child who was injured or killed–whether or not the doctor in question had anything to do with the injury/death.
An error reporting system is a good idea because it can allow for fixing the system. It allows for errors that might be repeated at another institution to be prevented. Plus, it allows for the *source* of the error to be examined. If the error is because of a faulty computer system, it can be fixed. If the error shows that a doctor really doesn’t understand how to take care of a given medical condition, they can be retrained, or have their priviledges appropriately restricted. And for cases of physicians who show themselves to truly not be able to do their job, they’d be able to (appropirately) have their licenses revoked.
Ross Silverman 07.20.04 at 8:29 pm
Thanks to everyone for their insightful comments. A few responses, questions and thoughts:
1. Robbo, I agree that implementing the system Sage proposes is utopian, including for the reason you state in point #2 – trial lawyers aren’t going to give up their livelihood lying down. But the insurance companies (including the physician-owned med mal insurers) aren’t going to take it lying down either.
2. On the issue of panels of experts: in the abstract, I am in favor of this approach to adjudicating injury claims, however, given the political system in which we currently operate, I am skeptical of the ability to find truly “objective” expertise on the subject. Who, exactly, would be responsible for putting together these expert panels? Who would be responsible for putting in place the people in charge of deciding who comprises these panels? Having worked in the past for state licensure boards, I know the power state medical societies have over every aspect of state government which purports to offer “oversight” over their profession. Will we be satisfied that putting the fox in charge of the henhouse is both scientifically and morally the best approach? How is that different from the conduct you deride in your lawyers-to-legislators-to-lobbyists statement?
3. I fear my summary of Sage’s Medicare use proposal was somewhat reductive — I am certain he is aware of the RVU system, but his proposal does not stop with RVUs. It also would take advantage of Medicare’s administrative adjudication (faster and less expensive case handling, no juries so more “reasonable” payouts) and the power of its quality initiatives to reduce costs.
4. Robbo, On your second post, your scenario tells only a part of the story, and leaves out the nature of the U.S. health insurance system, which insulates specialists and patients from the consequences of overuse of services. Some of the problem may be hunting zebras, but some of it is also getting paid to give the people what they want. To this point, it’s difficult to separate out one from the other, at least with hard data.
5. The expert witness issue is a problem – on both sides. Few local providers are willing to step in when one of their colleages are on the firing line, which means “hired guns,” a further distortion of the system and more costs incurred in each case.
6. Punitive damages are relatively few and far between in med mal cases. Furthermore, while part of the problem of rising claims values is with non-economic damages, the rising amounts are also due to increases in economic damages. Not a lot of data has been released by the insurance industry about the breakdown of Economic/Noneconomic damages in cases (we hear wild anecdotal cases, but those are exceptions, not the rule). As was recently stated in the LA Times about the RAND study of the California law, One of the chief goals of California’s malpractice cap was to keep medical malpractice premiums affordable for doctors by limiting insurers’ payouts.
The Rand study didn’t assess whether it has made any difference in premiums. Nick Pace, the study’s lead author, said that would have required insurers to open their books so researchers could scour their claims-paying history and other variables.
serial catowner 07.20.04 at 9:24 pm
As a nurse and a patient, I find the comments interesting and a little amusing.
To start with, very few doctors have A CLUE about what is happening. They act like robots, and pretty much trust that if something is really wrong, or out of the ordinary, someone else will catch it.
They supplement this ignorance by constantly lobbying to lower the standards for the people they hire as ‘office assistants’ so they can pay these people less.
But, not to worry! The average patient knows less than the average doctor, and your chances of finding a good lawyer aren’t that good.
Based on what I’ve seen personally, the chances of a plaintiff’s attorney presenting a credible threat to a malpracticing institution are way below 1%.
By now, ‘tort reform’ is a part of so many Republican speeches that they probably don’t even really want to fix it.
So things will go on pretty much as they have. When the stock market dips, the insurers will blame the plaintiffs for their financial losses. The doctors aren’t going to change a system that lets them function on autopilot for their working life.
And advances in health will come from improvements in nutrition and workplace safety, as they have for the past century.
Andy 07.20.04 at 10:22 pm
I like Robbo’s solution, though my analogy was to workers’ comp (itself not a perfect system, but arguably an improvement over what we have now). Simple negligence gets handled through the MedMal Board, which can flag doctors, award damages, etc. Gross negligence, including cover-ups, remains actionable.
Since the latter cases are the punitive-damages bonanzas, there’s a huge incentive for doctors, etc. to self-report, protecting themselves & creating a paper trail that allows the repeat offenders to get their licenses yanked. With a more open system, the systemic causes of medmal can be analyzed and diminished.
Thomas Dent 07.21.04 at 10:00 am
I would be interested to know the real proportion of migraine headaches
that get treated with CAT scans. I suspect it is not very high, at
least where HMO-funded care is concerned.
In California, HMOs are effectively shielded from any serious liability,
they are free to give inferior care to any patient who doesn’t have the
money to sue them and get large economic damages if something goes
wrong. How can a good standard of care be enforced if there is no
incentive to give good service rather than mediocre?
And here’s a case where an $800 CAT scan was the correct thing to do
and would probably have saved hundreds of thousands of dollars, as well
as saving a family from a lifetime of despair:
http://www.consumerwatchdog.org/healthcare/fs/fs003009.php3
For every anecdote of a ‘crazy’ jury, there’s another anecdote – or
many – of a life ruined by inadequate or incompetent medical care.
There is a kind of myth here that care providers are in the business
out of the goodness of their hearts and would never intentionally do
put profit before delivering the best medical care. No, healthcare
is run as a business, and one where the customer – far from being
always right – has virtually zero power.
MDJD 07.21.04 at 1:23 pm
The issue of medical malpractice always seems to boil down to “bad doctors who hurt patients vs greedy lawyers”. Neither position will help the problem or even let us know if there is a real problem. The issue should probably be “do physicians operate under the same rules as lawyers regarding malapractice/”. The Bar sanctions many less lawyers than medical boards sanction physicians. This would suggest that if self regulation is ok for lawyers then it would be ok to turn regulation completely over to medical boards. Objectivly medical boards do a better job than the bar. In legal malpractice the plaintiff must prove that they would have won the case except for the malapractice, not that they had a better chance of a good outcome. This would suggest that a med mal case should be dismissed unless the plaintiff can prove they would have been in perfect health when treated by the method the plaintiff claims should have been done. If a plaintiff received a settlement they can’t win against their attorney just by saying that they should have gotten more money. If a patient gets a recognized complication than any suit based on avoiding it would be dismissed at the pleading stage. Attorneys are also not liable for bringing suits which were unsuccessful. When a former plaintiff gets a multimillion dollar settlement for the “pain and suffering” that going through the litigation process for a weak suit brings then I’ll believe it is an equal system. Enterprise liabilty is interesting but just a joke until judges can be held liable as part of the tort system, ie if they allow a judgement based on junk science(CP as birth trauma) they are personally liable for the damages.Until then we must understand that this is just a political question about protecting lawyers income, not a discussion about improving medical outcomes.
robbo 07.21.04 at 6:24 pm
Ross:
on 1) That’s true; I guess my fear is that the attorneys *seem* to be more entrenched in the various levels of goverment and beaurocracy than are doctors and insurers (some of it by the nature of the jobs…)
re: 2) You’re right… it could be a sticky wickett to get those panels appointed. However, I do agree with MDJD that physicians appear to have been policing better themselves than attorneys… not that that’s saying much (attorneys police themselves about as well as 3rd world dictators do), but I do think it’d be an improvement over the current system. It may sound naive, but at least doctors would have a stake in “purifying” their profession… rather than trying to reap millions out of the system in the name of “fixing” it.
Also, I do think if you took away some of the malpractice stigma with a combo of an error-reporting system and injury-related compensation system, it could create an atmosphere of getting rid of the “squeeky wheels” and making sure people were taken care of adequately for real damages/needs related to bad medical outcomes. In fact, then it wouldn’t necessarily need to be a neglegence-related issue. (ie: if you just happen to the be the sorry person who has the 1/1million disease, we can help you as a society, even if your doctor did everything reasonable to look for the cause before the zebra stamped all over your health). I must say, however, I shudder at the thought this might look like Worker’s Comp, because that system keeps a lot of attorneys *VERY* well employed, and razes a few thousand acres of forest a day to keep the paper mills running…
re: 4) I think that you’re *exactly* right. Some of it is like you said, patients expecting to get a doctor visit, MRI, 2 prescriptions and a backrub on the way to their car for their $20 co-pay; and the specialists certainly have a double-incentive to do what the patient wants (ie: I get paid if I do what they want *and* I might get sued if I don’t!). But I do think some of it is the litigation climate creates a sense, like I said earlier, of “any time I don’t get better means my doctor is incompetent” attitude in the USA.
*IF* you want to have doctors “be the bad guys” and tell patients that they aren’t getting tests they want but don’t need, you need to protect them, for the sake of our society. (Else, as you said, they have little reason to put up a fight! If the patient is the one in a million whose back pain is a spinal tumor and not a muscle pull, well, he/she’s SOL if he/she doesn’t get the MRI the patient wants!) The Supreme Court has recently ruled the HMO’s aren’t on the hook for these decisions (because of ERISA, all those “sue your HMO” state laws are now unconstitutional), so it basically is going to all fall on the doctors, as things stand now.
As it stands, *neither* party, IMO, is doing enough to push through the patient’s bill of rights bill through to make insurers more accountable for denials. OTOH, this bill might just multiply the effect you mentioned: suddenly, it *IS* the patient’s right to have that MRI. So while I’m no fan of the tactics of insurers in this country (there’s no accident most have been named in collusion/racketeering suits), I’m not exactly thrilled about this sort of bill, either, for fear of strengthening an entitlement mentality toward health care that’s already draining our economy.
Robbo 07.21.04 at 6:35 pm
Thomas Dent wrote:
“And here’s a case where an $800 CAT scan was the correct thing to do…”
I’m not arguing there aren’t such cases, nor that they aren’t sad, or that some of them aren’t preventable. I’m not even stating that doing the CAT scan is a wrong thing to do, in a general ethics sense. It basically boils down to a question of “how much do you want to pay for all of these cases to be prevented?” Because it *does* cost something to do the tests; and deciding when they are absolutely necessary *isn’t* always clear at the time they’re done. If Americans are comfortable that their health care is MUCH more expensive than the rest of the world, it’s OK to strive to prevent all of these cases. But the problem is, Americans are unhappy with the cost of healthcare. And somewhere, something has to give (because professional salaries are a much smaller cost of the overall health expendatures than things like high tech tests…).
“There is a kind of myth here that care providers are in the business
out of the goodness of their hearts and would never intentionally do
put profit before delivering the best medical care”
That’s a bit of an overgeneralization, no? I do know doctors who fit this (as well as the comments of serial catowner). But I also know a number of doctors who spend their vacation volunteering their time in third world countries treating people who would otherwise have no health care–or “spelling” overworked doctors in those settings (some of whom are US trained physicians). These doctors spend their own money to get there, and their only pay is the thanks of the patients they treat. Yes, this is the exception, but they do exist…
Plus, I think that “myth” is about 15 years out of date. I think most of the public sees doctors as grossly overpaid and greedy. (Nevermind that most primary care doctors earn less than a lot of engineers with fewer years of schooling much less school debt…).
Robbo 07.21.04 at 6:36 pm
Thomas Dent wrote:
“And here’s a case where an $800 CAT scan was the correct thing to do…”
I’m not arguing there aren’t such cases, nor that they aren’t sad, or that some of them aren’t preventable. I’m not even stating that doing the CAT scan is a wrong thing to do, in a general ethics sense. It basically boils down to a question of “how much do you want to pay for all of these cases to be prevented?” Because it *does* cost something to do the tests; and deciding when they are absolutely necessary *isn’t* always clear at the time they’re done. If Americans are comfortable that their health care is MUCH more expensive than the rest of the world, it’s OK to strive to prevent all of these cases. But the problem is, Americans are unhappy with the cost of healthcare. And somewhere, something has to give (because professional salaries are a much smaller cost of the overall health expendatures than things like high tech tests…).
“There is a kind of myth here that care providers are in the business
out of the goodness of their hearts and would never intentionally do
put profit before delivering the best medical care”
That’s a bit of an overgeneralization, no? I do know doctors who fit this (as well as the comments of serial catowner). But I also know a number of doctors who spend their vacation volunteering their time in third world countries treating people who would otherwise have no health care–or “spelling” overworked doctors in those settings (some of whom are US trained physicians). These doctors spend their own money to get there, and their only pay is the thanks of the patients they treat. Yes, this is the exception, but they do exist…
Plus, I think that “myth” is about 15 years out of date. I think most of the public sees doctors as grossly overpaid and greedy. (Nevermind that most primary care doctors earn less than a lot of engineers with fewer years of schooling much less school debt…).
robbo 07.21.04 at 6:45 pm
serial catowner:
Well, the decision as to hire RN’s (vs other professionals) doesn’t always lie with the physicians. More and more physicians I know are employees, and have less and less decision-making power about their work environment. My impression is that more and more, those decisions are made by MBA’s running increasingly large and impersonal hospital and large multispecialty groups.
IMO, it’s the trend of physicians having less control over their practices has played a part in the depersonalization of care.
Yes, there are doctors who basically run their practices in “auto-pilot” and let “physician extenders” see patients in conjunction with MA’s and the like. The solution isn’t to demonize *all* physicians. IMO, the solution is to change the system.
Why? Because CPT and E&M guidelines rewards doctors who zip through a million patients a day. We need a re-vamping of the system on that end, too, so that a doctor who spends more time with their patient and bills a high level of service isn’t looked at as “kook” by his employer and a potential “fraud” by the Centers for Medicare and Medicaid…
eudoxis 07.21.04 at 8:40 pm
So, um, capping awards as one step in an incremental approach is myopic, but allowing medicare, which sets the pace in reimbursement by reimbursing care at less than cost (capping), to ” restructure the way med mal claims involving Medicare and Medicaid patients are treated” and passing the cost on via reimbursement is “brilliant”?
Medicare, in its general approach of unfunded mandates and stultifying standards of uniformity has been a major force in the structure of inefficiency of medical practice and cost-shifting to the private sector.
I would think that the goal of medical expenditures is not divorced from improvement in the practice of medicine. There is no indication that unleashing the big dog off the porch would improve patient care. Rather, it would result in a big disincentive to those institutions where exellent medicine has been the main weapon in an arsenal to fight lawyers in a battle over the health care dollar.
Thomas Dent 07.22.04 at 1:04 pm
One thing I don’t understand is the rhetoric applied against “preventative medicine”. That is, spending
more money now in order to avoid the risk of having to spend a lot more money in the future (and of
having a severely ill patient).
What happened to the idea that prevention is better than cure? As well as the fact that most illnesses
are much easier to treat when diagnosed early.
I don’t see any “demonization” of doctors in this thread. A small minority of them who do charitable
work, etc., are no doubt praiseworthy, but are also quite irrelevant to the discussion.
I suppose putting in place a system of no-fault compensation for catastrophic errors in treatment would
address some of the concerns. But we also want to maintain pressure on doctors not to make mistakes,
and on HMO’s not to put profit before care. How can this be done *without* a system which severely
penalizes the worst?
Possibly one could require doctors and other care providers to publish statistics on their success
rates. That way, patients could really have an informed choice and could have the power of customers
in the market. However, doing this consistently with confidentiality appears difficult.
Robbo 07.23.04 at 2:39 am
Thomas Dent wrote: “How can this be done without a system which severely penalizes the worst?”
I’m not arguing with that… what my beef is with is the *current* system, which does *not* punish “the worst.” It punishes based on the sadness of an outcome, not on lack of clinical competency. There are many, many well-designed studies that show this is true when viewed at a variety of angles.
As mdjd said, the current system does less to encourage quality than it does to enrich lawyers. *IF* the system could encourage quality I’d be all for it. However, it’s hopelessly *not* doing that, it’s bankrupting our economy, and therefore it needs to go…
Thomas Dent 07.23.04 at 11:28 am
I like that. It’s not tax cuts, it’s not the war in Iraq, it’s not pork, it’s
MEDICAL LIABILITY INSURANCE and MALPRACTICE LAWSUITS that are causing the
enormous deficit and are at the roots of economic malaise! The Republicans
send their love.
I don’t see any real evidence that the current system punishes based on the
“sadness” of an outcome. This is a pretty funny word to use. The death of
your pet hamster is “sad”: for a normal child to be permanently disabled and
brain-damaged because of a bad medical decision is more than sad.
I suppose you want to say that juries are sentimental fools who don’t care
whether or not what the doctor did what was right, only about the result.
To show this, you’d have to prove that juries took little or no account of
medical competence in deciding awards. The alternative, I suppose, is to sue
or punish in every case where a mistake was made regardless of the
severity of the consequences. Now, I certainly think that mistakes with
very bad outcomes ought to be punished more severely than those which turn
out all right in the end. After all, the goal of medicine is to make people
well, not to follow the rules.
To argue that the current system is nowhere near perfect, therefore we have
to get rid of it, is incoherent. California did get rid of it, and the results
there are, arguably, no better, because some people cannot obtain redress at
all. The danger is that insurance premiums get reduced but the standard of
care for a minority of unlucky people decreases. The lucky, relatively healthy
majority benefits at the expense of the unlucky minority
who are the victims of medical mistakes.
This is precisely the sort of inequity that the legal system is made to
address, which is why one should be very wary of taking power away from
courts and juries and giving it to politicians and corporate bodies such as
HMOs.
Finally, the complaint that lawyers make a lot of money at malpractice. As
we all know, they only make money if they win cases, and in all cases the
plaintiff gets more money than the lawyer. This division is agreed between
plaintiff and lawyer. So, if you want to stop lawyers making money this way,
you must also want to stop plaintiffs being awarded substantial non-
economic damages. So what is your alternative? What else can serve the dual
purpose of adequately compensating victims of gross incompetence or neglect,
and adequately punishing or deterring those that would commit it? What, apart
from a court of law, could legitimately make an equitable decision in such
cases?
Robbo 07.24.04 at 4:08 am
Thomas, congratulations on sparring with the red herring.
Well, first of all, California didn’t “get rid of it,” they put caps on awards; the merely revised the system, not abolished it. California’s system is *not* the system I’ve advocated… yes, the AMA and *some* tort reformers advocte it; but it is also a broken system.
And yes, there is *ample* evidence that juries make awards on sentimentality. Not *all*, no… but in this area, and many others, juries often make awards based on sentimentality. The idea of the award being awarded on the “sympathy” factor didn’t originate with me. It originated with a study from Harvard Medical School, the most powerful of multiple studies that have examined the issue. The study put real medical mishaps in front of a panel of “experts.” Granted, these experts weren’t omniscient, but they certainly were well informed, in that they were medical school professors. They basically were allowed to “know” everything the jury “knew”–short of the verdict.
The result was the “experts” didn’t agree with the juries much. In many cases where the jury awarded for the plantiff, the experts saw that there was a sad outcome, certainly, but no wrongdoing by the defendant. But before you charge that they were merely extending “professional courtesy,” they also found a great number of cases where the doctor was exhonerated by the jury, and the experts deemed them negligent. The authors of the study, in their opinion, stated that the difference in opinion between the experts and the juries was often due to whether or not a plantiff/victim (and/or his/her family) “resonated” with the jury…
The point is that the information is complex, and in the absence of understanding, emotion often becomes the deciding factor.
The solution isn’t to abolish courts or the rule of law (I *never* suggested that–read my posts again). The solution is to establish a completely separate court system, that does *nothing but* decide medical malpractice. This would be much like there is a separate court system to decide patent law cases, so it isn’t without precedent in our legal system.
Your comments about Iraq, government waste, etc, not withstanding, the fact remains that in spending not entirely controlled by our government, healthcare is probably the biggest albatross on the neck of our economy. Multiple threads on this website have demonstrated just how much more the USA spends, per capita, than any other country. I’ve outlined in multiple ways how the current tort system contributes to this; you have not in any way refuted this.
Your reply basically is summed up with “there’s no other way to do this that won’t cheat the victims.” The truth is there are other possible ways to compensate victims and not enrich lawyers; many other countries have such systems in place already. Then there are other ways
The biggest obsticle to doing away with the current system is not in finding a viable, fair, and just alternative; the biggest obsticle to doing away with the current system is the current system supports an entire “cottage industry” of personal injury lawyers and their employees, and tort reform is a threat to their livelihood. The problem is their livelihood syphons off the rest of us…
Robbo 07.24.04 at 4:22 am
re: “After all, the goal of medicine is to make people
well, not to follow the rules.”
Yes, but that isn’t always possible… moreover, in a long-term sense, it’s NEVERY possible to do this indefinately. We all die, eventually… the question is in a malpractic case, who’s fault is it.
The point is *medical malpractice* is asking the question “Did the doctor cause this person’s injury (death, disability, etc)?” That often is *very* difficult to prove, and even “experts” don’t always agree. And as I mentioned above, even when they do, they often don’t agree with the 12 people off the street who comprise a jury.
One solution is to adopt a “no fault” system, like much of western Europe has. That would actually be supported your line of reasoning over the current system. Why? Because then you don’t have to prove anyone did anything wrong, just that someone is hurt. So even if everyone did “everything right” the patient still gets compensated (sort of like, as one poster mentioned, Worker’s Comp).
The other is to have a court system with special expertise in medical law. The judges would have expertise because they could get extra training, and then would learn even more over time, because all of their time would be spent on these cases (and not a little medical tort, a little family law, a little bit of traffic court, etc…). Or there could be panels of experts who decide the cases. The point is the possibilities are limitless; and there are *myriad* alternatives that would (a) be more fair and rational, (b) cost less to our economy, and even (yes!) (c) get more money in the proper hands–the patient (and/or family) that suffers. The *only* people who lose are the lawyers…
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