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.