The ACP Advocate Blog

by Bob Doherty

Thursday, September 9, 2010

What is the real impact of medical malpractice?

It is an article of faith among many physicians that the threat of malpractice suits is behind rising health care costs. "How can we be expected to 'bend the cost curve' when we are under constant threat of being sued?" said one internist to me at last week's ACP South Dakota chapter meeting.

There is no question physicians are under a constant threat of being sued. A new AMA study finds that by age 55, 61% of physicians have been sued at least once. For general internal medicine physicians, it was 58.3%; for IM subspecialists, 57.6%; for general surgeons, a whopping 89.8% percent.

One might expect that physicians in states that have caps on non-economic damages would be less worried. Not so, according to another new study by the Center for Studying Health System Change. The Center found that "Even in states with economic damage caps in malpractice suits, physicians remain highly concerned about being sued, suggesting that many popular tort reform proposals may do little to deter the practice of defensive medicine that contributes to unnecessary health spending." The authors raise the possibility "that physicians' level of concern reflects a common tendency to overestimate the likelihood of 'dread risks'--rare but devastating outcomes--not an accurate assessment of actual risk ... Whether justified or not, physicians' liability fears are a policy problem because defensive medicine raises health care costs and potentially subjects patients to unnecessary care."

But how much does defensive medicine really contribute to health care costs? Kaiser Health News reports on a new Health Affairs study that finds that the cost is tens of billions per year--but not as much as many believe. "The total cost of medical malpractice-related costs to the health care system, including defensive medicine, is about $55.6 billion per year, or about 2.4 percent of annual health care spending. Defensive medicine is about 80 percent of that total, the researchers found."

The finding that the costs of defensive medicine are a relatively small contributor to costs does not mean the system shouldn’t be reformed, say the authors. "We're spending a very large amount of money every year on a system that's deeply flawed," said Michelle Melo of the Harvard School of Public Health. "Many injured patients never get compensated at all, and many patients sue who are not really victims of medical negligence."

My own view is that it is almost impossible to get a reliable estimate of how much defensive medicine costs the United States in dollars and cents. But when physicians worry constantly about being sued, when most end up getting sued at least once during their career, when patients who are victims of negligence never see any compensation, while others who weren’t harmed by negligence bring suits that aren’t warranted, when patients are exposed to unnecessary procedures because of physicians’ concerns about being sued, when the amount of an award depends more on where you live, the whims of a particular jury, and the quality of your legal representation--not the merits of the case, and when the U.S. spends "a very large sum of money on a system that is deeply flawed"--well, the system is broken, and must be fixed. I also think we need to broaden our thinking beyond the question of to cap or not to cap, since even in states with caps physicians worry about being sued. Caps, after all, limit how much is paid out if a physician is found to be negligent under a flawed tort system, but they don't keep such unwarranted cases out of the tort system in the first place. We need to consider ideas like health courts, no-fault, and other alternatives to the adversarial, confidence-sapping, unpredictable and unfair (to both doctors and patients) medical liability roulette created by our current tort system.

Today's question: What is your reaction to the new studies on medical liability reform?

4 Comments :

Blogger ye said...

This study is another reminder that a lot of money is wasted as a result of yet another broken system.

I'm more familiar with professional liability than I care to be. In addition to taking care of patients for a living, purchasing PLI for over 20 years (including seeing a doubling of my premiums in the early 2000's), sitting on the board of a medical society's insurance brokerage, and having testified numerous times in the state legislature in support of liability reform, I am one of those 58.3% of general internists that Bob described in his post. So, I've seen how the system works from several perspectives.

I believe that there are two major flaws in how we (the profession) have approached the professional liability issue over the years. First, we get hung up over what the "true" cost of defensive medicine is and waste our time and effort arguing over the amounts and the methodologies of estimating those amounts, as if the validity of our argument that something needs to be done depends on how much is at stake. Even the lowest estimate is valuable money wasted and should not diminish the importance of fixing the medical professional liabilty "system."

The other flaw is that we have defined "tort reform" to mean California MICRA-style caps and other measures that are more accurately described as liability insurance reforms. There is nothing wrong with reforms that reduce unpredictablity in jury awards, expedite trials, limit pre-judgement interest, etc., as they can stabilize premiums and make the litigation lottery less lucrative for trial attorneys, but they don't address the issue of defensive medicine and the impact of lawsuits on the morale of physicians.

"Tort reform" of the type described above will do little to reassure a physician whose fear of being sued plays a role in their medical decision making. Why should it? Whether you're getting sued for $250,000 or $2.5 million dollars, the intrusion and disruption of a malpractice suit is the same. Even if caps reduce the number of suits by, let's say, 50% (and I have no reason to think they would have such an impact), how does that reassure a physician who will still see the risk as too high? Yet we insist on pushing this non-solution over and over again as if it is a cure-all to the crisis of defensive medicine and the high costs of health care.

I don't know if a system exists that will reassure physicians that if in spite of practicing the best medicine their patient experiences a bad outcome, they will be protected from the violation and insult of a lawsuit, or be treated fairly if sued. I do know that the "reforms" that many our colleagues are willing to fall on their swords for will not achieve that. We need to come to terms with that and unite behind reforms that will actually reform.

Yul D. Ejnes, MD, FACP
(my opinion, not that of ACP)

September 9, 2010 at 8:01 PM  
Blogger The Unseen Patient said...

Physicians make mistakes. Some of these result is serious injury to our patients and their families such as when a family with young children supported by two working parents suddenly becomes a family with only one working parent because of an error of their physician. Financing the future of their children may now be reduced by half. The financial picture may be permanently changed.

There must be a need to compensate the family. Unfortunately, the courts are the only way that can provide that compensation. Capping the compensation does not allow flexibility to account for the differences in individual cases.

Having been involved in reviewing and occasionally testifying in medical malpractice cases over the past 25 years, I can see there are a couple of areas where reform is needed 1)better means of separating the serious from the frivolous cases. Tighter criteria are needed. Some of the cases that go forward including some that are found in favor of the plaintiff, are unfortunate but not necessarily due to physician error. 2) a better means of arriving at judgment. Both defense and plaintiff lawyers use legal means to present their case in the best way for their clients. However, the logic in their arguments is legal and not medical. Medical decision making is sliced into isolated topics that do not reflect medical decision making and confuse the jury. 3) Unfortunately, most juries do not have the background to fully comprehend the medical information presented and therefore have difficulty deciding on the medical facts and then rely on the drama of the case.

The criteria that I apply to the cases I have reviewed is what would my clinical professors at medical school have said about the medical thinking and care.

RF

September 10, 2010 at 11:29 AM  
Blogger Steve Lucas said...

From the outside all I can do is lend my support to the comments by Drs. Ejnes and RF.

On a personal level I do not believe the cost of defensive medicine posted includes all of the economic cost. Time and transportation, often of a second person or service, add considerable to this cost. The cost of staff and administrative work on the part of doctors is also a consideration.

We must also look at the concept that many test fit inside that ever expanding “standard of care” concept. So a repeated test may be accepted even if no new information is expected.

Troubling to me also is a current blog thread where terms such as “opportunity cost,” “management,” and regulating patient interactions to staff played proximately in the discussion. There was a constant drum beat of maximizing income down to the minute.

Given this environment I can not help but believe that “defensive medicine” has become a mask for driving profits.

On a personal note, when you deal with older family and friends, and try to coordinate doctors’ visits “just to be sure,” you quickly understand the cost and profit potential associated with the current system.

Steve Lucas

September 10, 2010 at 6:58 PM  
Blogger ryanjo said...

Our legal system and courts. Yet another broken system...how true.

One only has to become involved in the many aspects of American life that now require involvement with the legal system, to see how toxic it is to our society.

That toxicity is fostered, of course, by greed. The same obsession with money that is beginning to undermine the medical profession, long ago distorted the professionalism and ethics of the legal profession and politics -- which for all practical purposes, are now the same.

Patients with bad outcomes are urged by ubiquitous ads to enter the liability assembly line, where their cases are cherry-picked to maximize winnings by squeezing malleable insurers. Deserving cases with unsympathetic clients are discarded or handed off to young associates and handled with the urgency and resources usually given to dog-bites and fender-benders. Academics and professional physician testifiers work both sides of the street to fatten their incomes. Whoever "wins", only the attorneys walk away whole.

The corrosive effect of greed is deeply ingrained in our legal system, so that little can be done by "caps" to reassure physicians that the liability system will treat them fairly. The money motive, however, can be manipulated to reduces abuses. Professional salaried arbitrators decide the merits of the case, no more grooming clients and pandering to juries composed of anyone who couldn't get a jury duty excuse. Mandated health insurance for every American? How about mandated legal insurance, and by the way, you get what you pay for -- HMO attorney or legal-eagle. You lose, you pay -- all the costs, including losing attorneys, experts and clients. To diffuse the patient anger and bad communication that foster some lawsuits, mandatory face to face discussions, a "Truth & Reconciliation" process. Realistic sanctions for both bad docs and bad patients, including accounting for patient responsibility for bad outcomes.

Not likely. So I continue watching my back.

September 12, 2010 at 10:46 AM  

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About the Author

Bob Doherty is Senior Vice President, American College of Physicians Government Affairs and Public Policy; Author of the ACP Advocate Blog

Email Bob Doherty: TheACPAdvocateblog@acponline.org.

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