Wednesday, August 26, 2009

Retort


Sooner or later, in any discussion of health care reform (to the extent that screaming and fear-mongering can be gotten past and actual thoughts exchanged), the issue of tort reform is raised. On that subject I'm of two or more minds. Neither a student of the various proposals nor particularly well-versed on the veracity of claims and counter claims about tortophobia adding to costs of medical care, I can only speak based on personal experience. Which is why I'm multi-minded. I've seen good and bad. I don't think I altered my practice style to avoid malpractice suits, but I can see why people would.

The central issue is this: there's a difference between malpractice and adverse outcomes. Most certainly, the one leads to the other; but the other does not imply the one. Were that distinction properly made and encoded in the law, the rest of the issue would become moot. If malpractice suits were about bad care -- actual errors, poorly thought-out diagnoses or treatments, willful neglect of patient needs; that sort of stuff -- I'd have no problem with them.

I was raised among lawyers. I've lived in their dens, eaten their food, learned their language. I agree with their claim that malpractice suits have, over the years, led to improvement in care, institution of protective procedures. And I absolutely agree there are bad doctors out there; lazy, lacking in judgment, in it for the money. Drinkers, drug users. Representing an overwhelmingly small minority, they nevertheless give us all a bad name; they are the cause of and the justification for the worst views the public has of us.

But, unlike the guy struggling to fix my freezer as I sit and type this (peering occasionally at what he's doing: my home improvement skills have largely osmosed from such viewings), I dealt with soft stuff. Every freezer of this type is exactly the same; the wires, the machinery, the outcome if you plug x into y. Not so of us humanoids. (I'm not saying what he does is less important; we're having to get along without freezing tonic cubes for our G and T's [a trick I highly recommend to anyone so inclined]. Or, judging by his grunts and mutterings, any easier. Just more predictable.) If he makes the correct diagnosis and replaces the parts properly, the outcome is the same for the same problem, over and again, on every like freezer. I've had some sub-optimal outcomes, despite (take my word for it, okay?) doing everything right. Not often. Not, thankfully, catastrophic. But the possibility is always there.

I've been sued, and I've written about it. It's humiliating, frustrating, depressing, and anger-inducing. I'd say that's entirely because of my certainty that in no case was malpractice, as I understand the term, committed. On the other hand, had I ever done something (or failed to do something) in a way that fell into that category, the last thing I'd want to do would try to defend it on a witness stand, nor try to prevent the patient from being compensated. Patients need a mechanism by which they can be protected from errors, and their injuries redressed. What form that takes is a complicated subject. The current system, because it fails to separate bad outcome from errors in management, isn't the proper mechanism. It wasn't my intent, in writing this, to suggest solutions.

My point, at last, is that I don't think tort reform, per se, will have much impact on the total cost of health care. Reducing errors will. Addressing inefficiencies and variations in treatments among doctors will. To the extent that docs order tests to cover their legal asses, such behavior would be reduced, asses covered, if there were guidelines that indicated when such tests were medically necessary and when not. It's true that there were times, when deciding a course of action based on clinical judgment alone (diagnosing appendicitis without a CT scan or ultrasound is a perfect example; taking a patient with a rigid abdomen to the operating room without the delay of additional testing is another), that I felt a slight breeze on my backside. Many docs are unwilling to do it; partly out of fear, but partly, also, out of being trained in the era of judgment coming in pixels. I guess you can't legislate judgment, but guidelines would help.

And yet it seems there's no discussing it without raising the specter of rationing and death panels. When President Obama suggests that investigating what works would save lots of money and improve care, he's exactly right. That's where the big bucks are spent, and wasted. Addressing it would solve much, including the need for tort reform.

The political party who has argued for reducing Medicare since it began, whose most recent candidate ran on cutting it, has now, for pale political reasons, resorted to demagoging attempts to do just that, as fascist terror. Without diminishing service at all, huge amounts of money could be saved by doing exactly what Obama proposes. Surely there are a couple of Republican senators and representatives who know this. But, clearly, the resistance is not about effective reform. It's about politics, and defeating the party in power.

The public be damned.

25 comments:

John Baldwin, MD FACS said...

I served as a vascular, cardiac and general surgeon in war and at home for 40 years, and was never sued. Part is luck, part is skill and part is communication.
I had a bunch of "poor outcomes" , some because the disease was bigger than my talent and several because of just plain "failure" on my part.
I always communicated with family and patient and never ran away from a "complication"; indeed, cancelled many away days to remain vigilant and in charge of my patient and his/her situation.
NO physician wants a complication, infection or most of all, a death. But they happen to best of us. Dr. Norman Shumway, my cardiac surgery mentor at Stanford, and next to Michael DeBakey, America's foremost heart surgeon, had MORE LAWSUITS filed against him in 1990 than any other California doctor. Why? Because what he did was cutting edge and risky. And still is.
No doctor intentionally hurts people (I hope). But the unfortunate few who drink, use drugs, fake bills, have sex with patients and are under-educated and trained stain the water for those of us who lay it all on the line...as did Dr. Sid Schwab.
I truly enjoyed this editorial by Dr. Schwab, and knowing his integrity and honor, recommend it to all of you as genuine.

rlbates said...

Nothing to add to either your post Dr Sid or Dr Baldwin's comment. I respect and admire you both.

Anonymous said...

Dear Dr. Sid,

A blog posted on www.kevinmd.com/blog for 24 Aug really clarified the situation for me. It's titled, "Health care reform, back of the napkin version" and I heartily recommend it to everyone. Granted it is rather simplistic, but it points out that what we actually all want (except for the insurance companies) is insurance reform. Please, please, please read the post and tell me what you think.
Classof65

Sid Schwab said...

Class: I've seen it before, and think it's a fairly good summary. To go over it point by point would be more than I want to do, I think.

There are some things I don't agree with: ie, single payer is NOT socialized medicine, as I see it. Socialized medicine is when the providers are government employees and the hospitals government owned. England. The VA.

I think it does a pretty good job of explaining what's on the table, and what isn't. One can infer from it what I've been saying; namely, that insurers really don't add anything useful. He says at one point that they function to keep costs down, which they don't, but then says they haven't been doing a good job of it, which they haven't.

It's right in saying there's discord between docs and insurers, but I'd say it's more true, in the one direction, that it's PATIENTS that are "enemies" of the insurers. It's their illnesses, after all, that require the insurers spend money they'd rather keep.

And I suppose you noticed that in the past couple of weeks several in the Obama administration have been referring to it as health insurance reform.

Unfortunately, as has been pointed out elsewhere, the proposals on the table are all built around insurers; effectively rewarding them with more patients despite the fact that they're a central reason we're in trouble.

Eric Turkewitz said...

The current system, because it fails to separate bad outcome from errors in management, isn't the proper mechanism.

Actually, the law does separate them out.

Bad outcomes are not malpractice.

Mere errors of judgment are not malpractice. The judge, in fact, will directly instruct the jury that way (at least in NY, where I practice).

You must show a deviation from the standard of care, and you must show that that deviation was a substantial cause of injury. Because that is what the judge will tell the jury.

The lawyer that takes the bad cases is the lawyer that goes belly-up.

Sid Schwab said...

Mr Turkewitz: if you read my series on malpractice, you'd see my thoughts on that. It may be true that the law makes the distinction, but there are plenty of cases where insurers will settle rather than pay the expenses of defending, or risking a loss. And there are plenty of lawyers (and, yes, paid "experts") more than willing to try to blur the lines in the eyes of the jurors.

In an ideal world, some sort of panel would be able to make an initial decision about that distinction. I'm not opposed to litigation over malpractice; although, if it were determined by such a panel that malpractice had occurred, it might be that there'd be no reason for a trial.

Eric Turkewitz said...

It may be true that the law makes the distinction, but there are plenty of cases where insurers will settle rather than pay the expenses of defending, or risking a loss.

Well, I've been at this for 20+ years and I've yet to find an insurer willing to throw money at me just to make me go away.

In fact, the general philosophy (at least in NY) is defend everything and only make a decision when trial is imminent. Thus, I've had a few cases of retained sponges. claimps, etc., for example, that need to go through years of litigation before the insurer is even willing to talk.

I sure wish I could meet those insurers that you mentioned, but I've never met them.

Sid Schwab said...

ET: Maybe things are changing in that regard. The example about which I wrote shows how the system worked great for all the lawyers involved, and played me like a penny whistle. But that was a few decades ago.

Meanwhile, as far as I know, there's still the issue of MY kin, so-called "experts" willing to say whatever is needed for a buck. In fact, when I retired I signed up to review some charts. Figured it would be easy money and the system could use an honest voice. The outfit was delighted to have me, with my credentials, regaled me with the number of cases they could send me.

After one case, in which I explained why the surgeon did not commit malpractice, I never heard from them again.

Anonymous said...

Rejection of care is a very lucrative business for the insurance giants. The top 18 insurance giants racked up $15.9 billion in profits last year.

Claims denial rates by leading California insurers, first six months of 2009:

• PacifiCare -- 39.6 percent
• Cigna -- 32.7 percent
• HealthNet -- 30 percent
• Kaiser Permanente -- 28.3 percent
• Blue Cross -- 27.9 percent
• Aetna -- 6.4 percent


See Full article at:

http://www.dailykos.com/story/2009/9/3/775815/-The-Real-Death-Panels:-Insurers-Deny-22-of-Claims-


EugeneInSanDiego

drcharles said...

I agree with your distinction between "malpractice" and "bad outcomes" and would add that many juries are swayed not by any rigorous review of standards of care, but rather by emotional pleas to their sense of pity for the injured (see career of John Edwards). The multimillion dollar awards (23 million for X) reflect a general cynicism and lottery mentality that goes beyond this post... but I can also agree that being named as a defendent is one of the most awful, disheartening, and spirit-defeating experiences you can have as a doctor, since it betrays everything you worked so hard to create - compassion, expertise, even devotion to patients.

until we have some justice in our legal system, perhaps through the institution of specialized healthcare courts, trial lawyers and their clients will keep fleecing the the truth for millions at the expense of weeding out bad doctors and fairly compensating the majority of truly injured patients who suffer the inevitable mistakes inherent with human imperfection and frailty.

Don Cox said...

"Socialized medicine is when the providers are government employees and the hospitals government owned. England. "

And the government is owned by the citizens. A national health service should be built on democratic government. (This is not the case in Cuba or Libya.)

Malpractice suits are less common in the UK than in the US, but they do occur.

Anonymous said...

"would add that many juries are swayed not by any rigorous review of standards of care, but rather by emotional pleas to their sense of pity for the injured (see career of John Edwards)."

This claim gets made a lot, but so far no one who has reviewed the evidence in Mr. Edwards' cases has said that. So what leads you to this conclusion?

Why exactly do you believe that the voters of America are all just weak kneed saps waiting to be led astray by crafty plaintiff lawyers while defense lawyers sit there like potted plants?

I'm betting it's not any actual experience at trial, or rigorous review of the evidence.

While you may find having your name listed as a defendant in a lawsuit devastating, I promise you it's not 1/10 as devastating as being the victim of malpractice.

Anonymous said...

"The multimillion dollar awards (23 million for X) reflect a general cynicism and lottery mentality that goes beyond this post."

So the outliers define all? Given that the average malpractice judgment is below $500,000, it would seem that the multimillion dollar cases are fairly rare. So would it be fair to say that most physicians act similar to your typical celebrity doctor?

"trial lawyers and their clients will keep fleecing the the truth for millions at the expense of weeding out bad doctors and fairly compensating the majority of truly injured patients who suffer the inevitable mistakes inherent with human imperfection and frailty."

Why do you have to change the legal system to weed out your own bad doctors? It would seem you have that power today. And if you want to fairly compensate people, why don't you just do so? If a physician injures someone as a result of their negligence, nothing stops them from fairly compensating that person at any time.

You seem to be waiting for others to act before you will do what you believe is the right thing. If it's the right thing to do, you shouldn't make it contingent upon the actions of everyone else.

Anonymous said...

A serious review of said interactions would show a direct correlation between the rise in malpractice lawsuits and the increase in physicians incomes. Preventative medicine has certainly been a boon to the incomes of physicians and the cost has been a mere 5 - 10% of that income. Who wouldn't trade 5% of their income to earn double the money?

Sid Schwab said...

Interesting point. If it were true, it could also be said that physician incomes have risen with global warming.

Actually, for many physicians, income has steadily declined for the last couple of decades. Not that data seem to have influence your comment.

Anonymous said...

I think I get the gist of your comment, seeing as temperatures have fallen the last few years you're saying doctors incomes have 'risen' the same as temperatures.

Alas, the doctors incomes you refer to must be those poor saps doing family practice. Those in the specialty fields have yet to suffer any such infirmary.

As my gastro friend says, the report of $400,000 per year is only off by 100%. Or my friend who recently entered the gas business. Apparently there is no relevance to experiece as she already earns more than the stated average - and she's in a low cost area.

Sid Schwab said...

"Infirmary." Good one.

Anonymous said...

Where is the evidence that physician salaries are declining over the past few decades?

Sid Schwab said...

http://www.massmed.org/AM/Template.cfm?Section=Home6&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=28390


http://www.hschange.org/CONTENT/851/#ib1

http://forums.studentdoctor.net/blog.php?b=369

http://www.managedcaremag.com/archives/0304/0304.compmon.html


http://goliath.ecnext.com/coms2/gi_0199-7134228/Show-me-the-money-the.html


As a surgeon, reimbursement for a given procedure is currently around 30% (yes, 30%) of what it was when I went into practice. To maintain income, I worked harder and harder every year; in my last year in practice I saw 1200 more patients than one of my partners, and 800 more than the other. I did literally twice the national average of operations by a general surgeon, getting better results at lower cost. Still, the payment for my operation was the same as my partners', and of Joe Surgeon down the street. That's a large part of why I burned out and quit, in my prime, ten years sooner than I'd have liked. My clinic hired three surgeons to replace me.

Anonymous said...

This information seems to dispute that:

http://www.nejmjobs.org/physician-compensation-trends.aspx

http://industry.bnet.com/healthcare/1000302/employed-doctors-are-sitting-pretty/

Kathy said...

The author suggests, accurately, that reducing errors through standardization of practice and reducing waste is the best way to reduce costs. He also suggests that insurance companies have done nothing to help with this. Whether that is true or not is certainly debatable. However, I offer that it is solely the medical community's responsibility to find the ways to reduce errors and standardize the art of medicine. It certainly cannot and should not be left to insurance companies, and furthermore this process would be disastrously handled by government. Government's job is not to regulate the medical field - that is the responsibility of the medical field. Government is even more poorly equipped to handle such a project than insurance companies.

Clearly the medical community IS taking steps to reduce errors. I see it every day in the OR with the installation of processes designed to prevent airway fires, wrong-site surgery, sharps counts, ergonomic patient handling to protect staff from injury, and so on. There is change happening within the medical community to reduce errors.

That doesn't change the fact that doctors pay $100,000 a year for malpractice insurance. That doesn't change the fact that it is nearly impossible to find a OB/GYN in Las Vegas, due to insurance being so high there that gynecologists cannot afford to work there unless they work for a hospital. Tort reform is necessary to reduce the cost of insurance, a direct cost to the patient. There are lots of ways to reduce costs that do not reduce quality of care, but the government should stick to its own backyard - fixing the laws it created in the first place, and doctors should stick to regulating themselves/each other.

If you want to see change doctor, you have to start within your own community. YOU have to work at it, not just leave it in the hands of legislators.

Sid Schwab said...

I don't see where I suggested it was up to legislators. In fact, I indicated I don't think tort reform will lead to much of a decrease in the cost of care. And I've said many times in this blog that there are docs (myself included) who are able to produce better results at lower costs than others, and that it's necessary to identify those people and methods and get the word out.

Michael said...

Having worked in the area of healthcare risk/quality management and claims defense for 26 years now, I share the opinion that tort reform will likely not substantially reduce healthcare costs.

I have yet to seen data indicating that savings in malpractice insurance costs flow through directly to the patient. If the physician saves $ 15,000 per year, does that mean that the cost of a level 4 visit goes down as a direct result? I have not seen that in my experience.

Regards,

Michael Lloyd
Mill Creek, WA

Sid Schwab said...

Thanks, Michael. Nice to hear from you.

Anonymous said...

"That doesn't change the fact that doctors pay $100,000 a year for malpractice insurance"

All of them? Some of them? What are their claims histories? This number doesn't really mean much without context.

"Tort reform is necessary to reduce the cost of insurance, a direct cost to the patient. "

This is an incorrect statement, for the simple reason that physicians don't get to pass that cost on. Their charges are largely set by CMS and the insurers following their lead. What's more, there is no evidence that tort reform, which is basically caps, causes insurance to be any cheaper in states with it than states without it.

"There are lots of ways to reduce costs that do not reduce quality of care, but the government should stick to its own backyard - fixing the laws it created in the first place,"

Aren't you suggesting that the government come in and arbitrarily set the value of malpractice claims regardless of merit or the particular facts? So why would you object to the government regulating physicians? Particularly when it's responsible for paying 50% of all costs of healthcare?