Doctors, lawyers, Indian chiefs
Tuesday, March 17 2009
Kevin, MD applauds President Obama’s willingness to consider malpractice reform, but the linked story is less optimistic in that respect:
Obama signaled last week that liability issues should be “on the table” in any discussion of his plan. And Senate Finance Committee Chairman Max Baucus (D-Mont.) called for changes to the system, even as he acknowledged that research doesn’t uniformly back up anecdotal claims from physicians that malpractice suits are driving up health care costs.
[...]
But senior Senate aides say medical liability has yet to figure into the negotiations among members of the finance and health committees.
Maybe Obama is indeed prepared to tackle medical malpractice. Or maybe he recognizes that talking about malpractice is what it takes to get physicians to the table; we shall see. In the meantime, physicians are doing themselves and their patients a massive disservice by touting malpractice reform as the key to health care reform. I doubt Kevin is willfully obstructionist – but I do think he’s latched on to some bad information and can’t let go. But whether deliberate or not, this obsession greatly limits many physicians’ positive contribution to the health care debate; of all the things they could be talking about, they spend their time blaming lawyers for what’s wrong with medicine.
Now I don’t think trial lawyers are saints, but here’s the thing: when faced with their own mistakes, doctors can no longer be trusted to act in their patients’ interests. Trial lawyers may be working from craven self-interest, but that self-interest is better aligned with patients’ interests on this problem. Kevin is right: the malpractice system is a pretty lousy way to compensate patients for medical errors. But so far, it’s the only system, and the physician-approved legislative solutions are no better. And if physicians really wanted to do what’s best for their patients, they don’t need to wait for government. In fact, they already have a model of how to address malpractice, courtesy of their colleagues in anesthesiology; this, from a guest post to Health Beat:
In the mid-70’s, anesthesiologists faced the highest malpractice insurance premiums of any specialty – often as high as $100,000 a year (and those are 1975 dollars, remember.) The Society of Anesthesiology, realizing that this was threatening the viability of many practices, created a national panel which developed a set of specific standards for anesthesia practice.
They then created a task force of lawyers and academic experts that offered its support to any practitioner who could document that they had followed the standards but was still being sued. Verdicts against anesthesiologists plunged ,and–since plaintiffs attorneys cannot afford to lose regularly –the number of lawsuits declined sharply Insurance premiums fell by 90%.
More importantly, complications of anesthesia and deaths from anesthesia also declined. The standards not only had the desired result of ending the malpractice crisis in anesthesia, but also made anesthetic management safer and more effective. This created an impressive win for the patients as well as the doctors.
What’s notable about this is that it happened without government intervention: the doctors and the lawyers came up with a solution that reduced lawsuits, lowered insurance premiums, and decreased medical errors – all without stripping patients of their rights. You would think doctors everywhere would want to replicate such a program – but they don’t. Of course, there is a disadvantage to this system: it forces them to work to improve their practice of medicine. Make of that what you will.
Physician intransigence notwithstanding, there was an effort to push that model to all of medicine. In 2005, a couple of Senators wrote legislation to that effect and later published a piece in the New England Journal of Medicine. At the time, Kevin even posted about their plan, though he didn’t spend much time on it. If the anesthesiologists’ experience were any indication, this would have radically transformed medical malpractice – but the bill died in committee.
Where does that leave us in 2009? As you’ve probably figured out, one of the authors of that 2005 legislation was the junior Senator from Illinois, now President Barack Obama (the other was Hillary Clinton). So it stands to reason that his thoughts on medical malpractice reform look a lot like the National Medical Error Disclosure and Compensation Program he co-wrote four years ago. If that wasn’t good enough for the physician lobby then, it probably won’t be now. In the meantime, nothing is preventing physicians from solving this problem – as the anaesthesiologists did – instead of waiting for government to do it for them.
(See also this 2006 Ezra Klein article about the medical malpractice myth.)
Working in hospitals for twenty years, I know first hand that there needs to be some sort of malpractice reform. Like it or not, defensive medicine is performed because of lawsuits, especially in Obstetrics. (BTW, I am a nurse, not a physician. You outed me as a doctor in one of my previous comments
. We are mandated to by our insurance carriers to do crazy things like send cord blood gases on every delivery and save every placenta for pathology. We do these things to defend against allegations of cerebral palsy caused during the birthing process. Also, one in three woman in American undergoes a cesarean section in order to “protect” the fetus. Studies have shown that even with this increase in C/S, there has been no change in the morbidity or mortality of infants in the US. Yet, the failure to perform a C/S is one of the leading causes of lawsuits in OB. How do you reconcile this? The study and process review for anesthesiologists is remarkable, and should be replicated in other fields. Nothing would make me happier than to support a laboring patient without the threat of her lawyer hanging over my head.
As it turns out, anesthesiology is well-suited to standardization. There are x number of drugs that can be administered to a person of y weight with a few variable multiplicands yielding a graph that one can pin on the wall as set standards. Much of medicine is not so simple.
I assume you know this. Otherwise, why would you be writing so authoritatively?
If you want an egregious example of how setting down written standards and requirements don’t work — and can actually do great irreversible harm — why don’t you address thew much greater example of MQSA (Mammography Quality Standards Act) in which the federal government wrote to rules and standards and backed them with a law.
Do you think medical liability became less of an issue in mammography?
Do you think that mammograms find mor cancers after MQSA than before the law?
Do you think mammography is more available to women now than before MQSA?
http://tedstumor.blogspot.com/2009/03/mqsa-mussolini-and-mammography.html
@Reality: Sorry for the mix-up! I don’t know enough about ob/gyn to address your question specifically. I would be interested to know what Jill from Unnecesaerean.comthinks; she has commented here before, so maybe I can lure her back. That said, I am convinced defensive medicine happens – the question is, to what extent is that a bad thing? The post I linked to bad information discusses the best research I could find, which suggests defensive medicine is at most 9% and probably closer to 2% of health care costs. I just don’t see how 2%-9% savings makes this the epicenter of health care reform. [I edited this para after posting it.]
@Dr. T: I am relying on the authority of Pat. S, a physician, and Health Beat, who wrote and published the post I quoted (link now fixed). My argument is no different from Pat. S’s, and there has been a vigorous discussion in his comments section that you might want to join.
It’s not quite clear how your MQSA tangent pertains, since the quoted passage is about standards written by doctors. I will say that if written standards “don’t work”, then the courts are still the best tool we have to resolve malpractice claims on a case-by-case basis, and we patients must rely on lawyers to that end.
There were plenty of physicians involved in MQSA. My point is that if we want to see, first hand, what standardization does to health care, look no farther than the 1993 MQSA and what it has done to mammography. It’s a wrecked field.
Insofar as the current malpractice system, it cannot be defended. The attorneys triage their work based on the potential for profit. They will not accept cases that do not offer them adequate financial rewards. This is in no way, and only randomly, associated with the patient’s best interests or improvement in health care quality. By definition this is grossy inefficiant, and in actuality it is harmful to the system. I can think of ten better ways to address patient grievences and physician errors off the top of my head that are better directred at the issues.
Finally, anecdote never advances anyone’s cause or adds to the weight of a conclusion, so what has happened to you or me (I have a child with a significant severe and chronic disorder similar to yours) cannot be adduced for the purpose of advancing the argument.
Thank you for answering, and I like this blog.
@Dr. T – perhaps anaesthesiology and mammography are the two poles of a spectrum of standardization results? I don’t know enough about mammography to say, but clearly the anaesthesiology community saw some benefit to standardization.
I can defend our malpractice system only because it is the consequence of our Constitutional right to use the courts to resolve disputes. I agree it’s problematic, but not so much that it should be answered by the loss of our rights. If you have suggestions as to how to fix malpractice without making patients still more vulnerable, I am entirely open to those ideas.
I’m not sure what you’re referring to by “anecdote”; I understood your line on MQSA as mostly anecdotal. I do think I’m pretty good about showing data and evidence where appropriate – maybe more so than most med-bloggers. But I also think it useful to the discussion to show where my experience connects to the evidence, and how what has happened to me relates to what is happening to a lot of people. Nonetheless, I appreciate your feedback, and my best wishes to your child.
The Anesthesia Example is such Crap…99.999999999% of the reduction in anesthesia related deaths is due to widespread use of Capnography, the other .000000000000001% being the Oxygen interlock so you can’t create a hypoxic mixture. Wouldn’t even need the EtCO2 if people would see the tube goin through the cords, I know, not always possible…