Is it possible?
Medical Justice’s Jeffrey Segal proposes a model that benefits both patients and doctors, as well as cut costs.
The premise is based on immunizing doctors who follow evidence-based practice guidelines from liability.
As Dr. Segal writes, “Physicians would be armed with knowledge of how to predictably avoid an adversarial legal process. The conventional tort system remains as a backstop incentivizing the doctor to voluntarily embrace efficient best practices. Care will be more consistent and patients will be safer. Dollars will be saved.”
How much? Enough “to bundle the disability and life insurance policies at no extra cost; pay for health information technology infrastructure and maintenance; with enough money left over to buy a health insurance policy for every uninsured American.”
Such an idea apparently has support from physicians, patients, and even plaintiff attorneys, whose consensus will be needed in any health and tort reform package going forward.
It’s this type of out-of-the-box thinking that policy wonks and politicians need to take more seriously if they hope to successfully reform the health care system.
Related posts:
- West Virginia editorial: "Tort reform saved health care"
- My take: Tort reform, Curt Schilling, e-mails
- Does the tort-based medical malpractice system improve patient care?
- Thanks, tort reform
- Is incident reporting effective in reducing medical errors and increasing patient safety?
- Another tort reform success story
- Texas tort reform a "national success story"
{ 14 comments }
Two issues:
1) Who decides which guidelines we use? Many pass themselves off as “evidence-based”, but sometimes the evidence base isn’t robust. Differences in guidelines for frequency of mammograms from 40-50 is one example of several groups having a different take on the same evidence.
2) Most guidelines are recommendations/algorithms for management of a specific diagnosis. In many of my challenging patient encounters, it isn’t the treatment that presents the primary dilemma, it’s the diagnosis. Am I protected if I followed evidence-based guidelines for sinusitis even if I misdiagnose a brain abscess as sinusitis?
this grossly oversimplifies things. there are many individual situations in which a clear correct course of action cannot be defined with evidence-based medicine. does this mean there will be official guidelines created for every medical condition, and as long as we do not deviate from these we are immune from liability no matter what the specific details of the individual case were?
and what does immune mean, nobody can even start to file a suit? or if they do, and our malpractice carrier decides to take on the expense of going to court, then we’re guaranteed to win? i find any such guarantee hard to believe if there will still be a lay jury making decisions based on how bad they feel for the family that suffered a bad outcome (regardless of whether or not malpractice occurred).
i guess any such step is a step in the right direction though. i’d like to see more details
The idea of cookbook medicine ia absurd on its face. Guidelines are garbage science per se. Anyone who follows guidelines is likely practicing the medicine of 5 years ago, as well. The evaluations alone always take three hours. They are always written by academic doctors who throw a fit if made to see more than a couple of patients a day. There are many irremediable problems with guidelines.
Guidelines may benefit the medical student who has no experience with the condition, or a family doctor who wants to start treating such patients.
I have urged malpractice defendants to review with the defense attorney the option of filing a cross claim against guideline makers, the professional organization, and their employers.
Medical advance will come to a schreeching halt.
The medical profession will become populated by mindless herd animals. Quality people will go somewhere else where they can be rewarded for excelling, for running ahead of the pack, not with it. It will no longer be a profession in any meaningful sense of the word. The term “professional judgement” will become an insult– euphemism for “quackery”–as it will be assumed that those who deviate from guidelines are wrong.
Each institution would craft its own guidelines, by physicians, bottom-up. The algorithms are designed to be exculpatory and not inculpatory. If you follow them, you are immune. If you choose not to follow them, no problem. The plaintiff still has to make his case the old fashioned way. By the way, institutions such as Mayo and Intermountain Health already embrace guidelines. They are just that- suggestions and not mandates. A doctor still must use his judgment 100% of the time. Want to do the exact opposite of the so-called guideline; no problem. Just document why it makes sense. And, yes, it is true that all of medicine does not reduce to guidelines. So, what? Most honest practitioners recognize that they do almost the same thing each time when exposed to the same condition. That is their algorithm. To claim otherwise is to suggest that each disease is treated creatively, de novo each time. Algorithms will continue to change over time. And institutions will likely adopt different algorithms. The goal is not to reduce each condition to one algorithm,. The notion that physicians can continue to practice 100% idiosyncratic, fragmented care is even more absurd on its face.
If they were labeled more modestly, guidelines could become immunized by the Free Speech or Freedom of the Press Clauses of the First Amendment. “My Personal Method of Diagnosis and Treatment of Condition X, as of February 10, 2009. What I Believe Works.” You have free speech, say what you please. People are also free to read, and do as they please.
The second there is an implication of coercion, of bossiness, of telling people what to do, of limiting another’s actions, that is an act, and not speech. If I say, rob a bank this way, at this point, that is not speech, that is the act of command of a crime. And all malpractice defendants following a guideline should file a cross claim against the guideline maker, the employers and the professional society, even if they never used the guidelines. There is precedent for doing so in the pool building business.
Total legal accountability should be brought to these doctors, and no pity should be shown them nor their funding sources, nor their employers. The model is the command to rob a bank and the RICO statute, not the First Amendment immunized textbook.
So you’ll change the issue to be litigated from “was the standard of care followed” to “should the algorithm have been applied and if not was the departure reasonable/ professionally defensible.”
What’s the algorithm for when a C-section is required to prevent brain injury to baby?
If you can write that down in less than one page, your idea might have some merit.
Supremacy Claus could do with consulting guidelines about the state of his mental health. It is precisely the lack of adherence to consensus that can lead to poorer outcomes. I suppose Supremacy Claus, if he were to develop say colon cancer, would seek out a doctor who did the opposite of what oncology guidelines say for first line treatment. Good luck to him in his search for a quack.
Guidelines are garbage science. They compile studies. These are done by academics confirming the medicine of 5 years ago. Medical innovation is driven by clinicians with the most experience. If I had a bad condition, I would seek out the person with the most experience. That person has learned from other patients. That person has a good track record and gets referrals. That person works hard and has to be aggressive.
The studies are not only obsolete, they use parametric statistics based on the bell shaped curve. That reflects the fractions in the bigger population. Clinical care is a series of single case, on-off, on-off experiments, which have a binomial distribution, like coin tosses, covered in 11th grade statistics class. The application of parametric statistics to a series with a binomial distribution is not permitted.
The guidelines are written by people with a lot of time, academic, Ivy twits, subject to pressures of all kinds and to conflicts of interest, mostly rent seeking, i.e. driving up costs by forcing lots of procedures and lots of time.
In the stimulus bill, guidelines will be used to reduce cost. Not to enhance care, but to reduce cost. The FBI will coming around to enforce them against docs.
Most guidelines violate the guidelines on guideline making, as well. A call has gone out to revamp the latter.
Guidelines benefit only malpractice lawyers and insurance companies. Patients and physicians lose as usual.
Supremacy Claus said: ‘The guidelines are written by people with a lot of time, academic, Ivy twits, subject to pressures of all kinds and to conflicts of interest, mostly rent seeking, i.e. driving up costs by forcing lots of procedures and lots of time.’
This is utter nonsense. For anyone reading these comments who thinks from the above that, for example, oncology guidelines are not written by top front-line practitioners – don’t believe it. Remember, these extreme right-wing nuts would have you believe there’s no global warming, no crisis in capitalism and the moon’s made of green cheese.
To go to this length to modify system, I would rather see medical courts.
Additionally, lets see Trial Bar and AMA vet this puppy. Not in a million years.
I picked this guideline at random for oncology.
http://www.guideline.gov/summary/summary.aspx?doc_id=5298&nbr=3621
Mostly academics, their conflicts of interest are listed at the bottom, and some …, some are even Canadian. They never work hard.
The idea that these geniuses will boss clinicians is out of the question. For them, medicine is to show their great scholarship. For them, patients are a dirty nuisance interrupting their great mentations.
One notes the date, 2004, reflecting the medicine not of 5 years ago, as I claimed, but of 10 years ago.
The guideline is copyrighted and there is some chance I could be sued for linking to it.
It recommends no adjuvant therapy be given for follow up. That means, this is a type of lawmaking. If a doctor chooses to give adjuvant therapy in individualized treatment, and a side effect hurts the patient, the tort is automatic, per se. No proof of negligence need be shown. It is the doctor that must educate the jury as to why his treatment was superior to this endorsed standard of care. That is why, the professional society and these doctor oppressor should be deterred with cross claims in any medmal case.
'I picked this guideline at random for oncology.
http://www.guideline.gov/summary/summary.aspx?doc_id=5298&nbr=3621';
Ha ha – I don't believe you picked this at random as the decision to administer adjuvant CT for stage II colon cancer is not black and white. But as you raise it, the guideline is based on current evidence – there are a few other major trials but nothing is showing more than a very small advantage for adjuvant CT, but like much cancer therapy we lack the biomarkers to tell us who will actually benefit. There are some known high risk groups but I don't think we have any overall survival data.
The guideline is quite clear about discussing all the available evidence with patients and it is just a guideline. And it also states we need to move forward by enrolling patients in clinical trials.
This rather does put paid to your objections. Guidelines are also very useful for patients as well and this particular one is actually the opposite of 'driving up costs by forcing lots of procedures and lots of time' as for the vast majority doing nothing is best after surgery.
Comments on this entry are closed.