House Bill 3200 contains essentially nothing related to tort reform and malpractice reform. The assumption is that if doctors only follow a prescribed “standard of care” that they will be protected. However, practitioners know that text book solutions and cookie cutter care outlines do not fit all patients. It is indeed a fact that almost all endeavors to write standards of care by any medical group have resulted in a wide range of options for care of various conditions. This is based not only the variability of the various treatments but the application of them to individual patients in each individual circumstance of illness or injury. It is true, that medical malpractice occurs. But is also true that the vast majority of malpractice actions filed never see the light of day or are filed for nuisance value only, with a hungry trial lawyer seeking to pick up few bucks in a settlement. Despite claims to the contrary, malpractice concerns are behind a great many decisions made by doctors in day to day practice, especially in terms of tests and consultations ordered. Those consultants then order additional tests, mainly to assist in diagnosis, but also in part to cover themselves against claims of omission as well as any claims of commission.
There are myriad examples of doctors being named in lawsuits simply because they saw a patient one time during their hospitalization. Most malpractice lawyers ‘blanket sue’ every physician whose name appears anywhere on a patients chart, as well as the hospital and any ancillary providers of services. This results in many cases, in dozens of defensive legal actions having to be taken by all those named in the legal action, which costs not only time and money, but plays heavily on the physician’s emotional state and well being. Health reform without meaningful tort reform is merely campaign rhetoric and not Real Health Reform at all . . . jomaxx and obi jo
States classified as having a medical liability crisis or crisis brewing by ACOG [the American College of Obstetricians and Gynecologists] have significantly higher rates of cesarean delivery, and this may reflect a pattern of defensive medicine in response to the liability climate.
The American Medical Association has long battled Democrats who oppose protecting doctors from malpractice lawsuits. But during a private meeting at the White House last month, association officials said, they found one Democrat willing to entertain the idea: President Obama. In closed-door talks, Mr. Obama has been making the case that reducing malpractice lawsuits — a goal of many doctors and Republicans — can help drive down health care costs, and should be considered as part of any health care overhaul, according to lawmakers of both parties, as well as A.M.A. officials. It is a position that could hurt Mr. Obama with the left wing of his party and with trial lawyers who are major donors to Democratic campaigns
http://www.medscape.com/viewarticle/702712?src=mp&spon=21&uac=26695MY
Obama Open to Reining in Medical Suits -http://www.nytimes.com/2009/06/15/health/policy/15health.html
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I came across a story about malpractice suits and awards. I can’t recall the link, but it came up more than once.
In the Seventies malpractice awards against anesthesiologists (like many specialties) got way out of hand. The professional response was to get the national professional association, whatever it’s called, to gather information and establish a “best practices” list compiled of safety concerns gathered from across the profession. Following that when lawyers defending the cases were able to go into court with hospital records documenting compliance with those best practices the frequency and amounts involved dropped measurably.
It this is not an urban myth, then the example should be followed by any specialty with malpractice issues. Of course it won’t be much help to those failing to follow those “best practices” but in those cases the awards should be high.
I also read that malpractice settlements and awards are a small fraction of the total health care budget.
First, at least in the case of board certified doctors, they all make a very concerted effort to practice within the acceptable standard of care. However, there are always unique circumstances that occur that preclude this. In almost all cases, physicians endeavor to inform patients about options and choices when it comes to diagnostic tests and treatments and document that this was done. Certainly in the case of surgery, patients are given handouts, books, pamphlets, videos, CDs, DVDs and internet references to make sure that they and their family fully understand the risks and benefits of any procedure. Do all doctors do this 100% of the time. No, but the overwhelming majority do. Do all patients make an effort to educate themselves, or do they simply say “your the doctor, just tell me what to do”. Happily, more patients are taking the attitude of wishing to become educated and thus assuming a greater degree of responsibility for their care and health outcomes.
The total health budget also includes defensive medicine – tests, procedures and surgeries – performed that are indicated, but are also ordered to document that all bases were covered, in the event of a lawsuit. That is the “hidden” cost to the budget, well beyond the costs of malpractice settlements and awards. Also, you make no mention of the global costs of malpractice insurance which add to the overall costs of care for all. These costs vary little by individual practitioner and are based on speciality and service ratings. In other words, OB-GYNs have among the highest rates due to potential damages related to a bad birth outcome. This is the reason that C-section rates are so high in many states. Doctors do not want to risk being sued for using their medical judgement.
So in our opinion, malpractice reform must be a major part of any Real Health Reform.
I guess the anesthesiologists story didn’t ring a bell.
I found the link. It was a guest post by on e”Dr. Pat S” in March.
http://www.healthbeatblog.com/2009/03/a-guest-post-what-the-doctor-ordered.html
“Many health care providers will be willing to implement these changes in their practices if the government provided them with cover by setting standards and explaining the standards to both providers and the public. This is partly because most providers really do want to provide the best possible care (and almost all believe they do,) and partly because establishing practice standards could protect against inappropriate lawsuits.
“The most dramatic example of this can be seen in the history of anesthesiology. 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.
“This effect of practice standards on the malpractice climate could be helped along mightily if states passed legislation to codify the fact that documented proof of following best standards promulgated by federal agencies would serve as a clear and binding defense against charges of malpractice. This is not to say that patients do not deserve to be compensated when real malpractice occurs, but that the public also deserve protection from inappropriate and sometimes dangerous procedures, tests, and treatments ordered as “defensive” medicine to try to avoid lawsuits. “
Thanks for the reference. Read it. There are many good points in this commentary, but in the end, there is a fundamental commitment to group decision making and loss of individualism. We already have a form of this in place as Medicare and private insurers decide what they will and will not pay for. The difference under the proposed system is that a single government board, with two thirds of the membership directly appointed by the President, will make these decisions. Congress will have no input and there is only ONE seat allocated for an actively practicing physician. Anyone with brains can see where that train is going to head. It might save money, but it will not necessarily be the kind of health care that most American’s really want.
Good point. A good model would be similar to what Grady Hospital did here in Atlanta. Two or three years ago it was on the verge of closing, but it is the area’s biggest and most important charity hospital as well as one of the few Level I trauma centers in the Southeast.
Problem was the Fulton County Commission had control over the board of directors and didn’t want to relinquish their power. A study group recommended restructuring the flow chart to have an independent BOD organized as a proper not-for-profit organization.
There was an ugly tug of war between the commissioners and the private benefactors who would underwrite the transition until an agreement was made to appoint a board to start, but thereafter the board would find and appoint their own successors. The idea is that over time the political conflict of interest would give way to a less conflicted arrangement.
But back to H.R.3200, what what we now have is
1.) Medicare rates in the pork barrel
2.) No Medicare price negotiations with PhRMA
3.) Physician-owned for-profit clinics and hospitals (double-dipping)
4.) No dis-incentives to over-order procedures or replicate tests
5,) No standardized national platform for electronic records
And most important of all,
6.) A shrinking population of PCP’s and no serious efforts to advance the PCP/medical home/ombudsman concept which would help all the players be safer, avoid conflicting orders and medications, and share both information and accountability.
I don’t think doing nothing is an option.
(And about that “outcomes” business, I sometimes wonder what the metric is when the patient dies…)
First rule of medicine is that all outcomes end in death. No matter what treatment is used, in the final analysis, the end result is the same.
Doing nothing is not necessary. But doing the correct thing requires political courage and not demagoguery. Courage is lacking in Washington and posturing is in style.
Not sure what is the issue with “for profit” ownership by doctors of their clinics or hospitals. All medical facilities have to be profitable to pay their bills and keep their doors open. Even so called “not for profits”, which is a euphemism for non-tax paying, have to show a profit to stay open. Agree with electronic medical records comments and we have posted on that topic previously. Disincentives for physicians to order tests is a tricky and potentially harmful environment to create. It may place patients in much greater jeopardy.