In a surprise, President Obama has signaled a willingness to discuss medical liability as part of the health reform process.
Good for him for standing up to the trial lawyers, a core constituency of the left.
That’s a good sign, as the costs of defensive medicine brought on by the broken malpractice system, should be addressed if there is any hope of reducing health care spending.
Trial lawyers like to say that medical malpractice represents “less than one percent of the cost of health care,” but that fails to account for the substantial sum attributed to defensive medicine doctors practice to avoid the threat of malpractice, estimated to be $210 billion annually.
Furthermore, the argument that malpractice reform will harm patients “by limiting their ability to seek compensation through the courts” doesn’t hold water either.
That’s because the current system does a miserable job of compensating patients for medical errors, where more than 50 cents on every compensated dollar goes to pay lawyers and the courts. Not to mention that a typical malpractice trial may last years before an injured patient receives a single penny.
So, don’t believe the arguments of the trial lawyers, who prefer the financial security of the status quo.
Any alternative system, such as no-fault malpractice, mediation, or health courts, will go a long way both to reduce the cost of medical care, and fairly compensate more patients for medical errors at a significantly more expedient rate.
Lawyers are aware of these facts, and to their credit, are going on a preemptive offensive to head off tort reform. If I were the AMA, I would start pro-actively circulating some of the above talking points, rather than reacting to the trial lawyers.
Update:
Ask, and ye shall receive. Joseph M. Heyman, chair of the AMA Board of Trustees, responds to the post in the comment section below:
Signals from the Obama administration that they are considering medical liability reforms are encouraging, and it’s clear those signals have spooked the trial lawyers into reviving stale arguments to maintain the status quo. Both Democrats and Republicans in Congress recognize that medical liability reforms are needed to curb health care costs. Doctors are forced to practice defensive medicine because of the pernicious eagerness of lawyers to sue, regardless of merit. As we work to achieve greater value from our health care spending, it’s clear to lawmakers on both sides of the aisle that liability reform is part of health system reform.While we continue to support caps on non-economic damages as a proven reform working in California and Texas to keep physicians in practice and preserve patients’ day in court, we’re also open to alternative methods of dispute resolution, such as mediation and state health courts. Physician leaders shared those ideas with lawmakers last week during the AMA’s National Advocacy Conference in Washington, D.C.
The bottom line is that we need to keep physicians caring for patients. We’re committed to meaningful action on health care reform this year.
Related posts:
- Fixing malpractice is a vital part of health reform
- Can you reform health care before reforming malpractice?
- Op-ed: Injured patients deserve medical malpractice reform
- Will medical malpractice reform be included in the final health bill?
- Medical malpractice verdicts
- Do patients trust doctors to bring about health reform?
- AMA: Curbing the rise in health care costs is key to health-system reform
{ 24 comments }
Kevin, the financial security of the status quo in medicine is most assuredly NOT just about lawyers.
We are not going to get meaningful tort reform in this country until we as a profession start doing a much better job with our own peer review.
Right now, the medical profession does a crappy job. As medicine has become increasingly corporatized (i.e. more doctors are "owned" or employed) – there has been very little real accountability – particularly in the "non-profit" sector. And it's not just doctors that have to be held accountable.
Hospital can hide a great deal with slick marketing and "net-working". Confidentiality & privacy laws do not work to protect patients (or whistle-blowing doctors who might advocate for them), but instead hinder them when they are injured.
Some of us have suffered and bled for it.
The AMA has been fundamentally uninterested in talking about that.
If I were the AMA (and I'm not), I start adding the abuse of medical peer review to the "talking points".
I trust we all realize that any system that makes it easier for patients to seek compensation for medical errors is going to result in more claims – not fewer, right? So how does that discourage defensive medicine?
And by the way, every time you post on this subject, Google throws up a half-dozen ads for malpractice lawyers on your site. I don’t suppose there’s anyway you could refuse that revenue just on principal, is there?
We can do a lot better job in peer review if lawyerers are not involved.
When I was in medical school, there was this student just plain bad. The school tried to kick him out twice. Both time he brought back a lawyer with him and my medical scholl had to take him back bacause the school is too small to afford a legal battle.
When I was an intern, there is this really imcompetent 3rd year resident. He spent at least 5 years in the IM program and was still there when I left. The department tried once to kick him out, threatened by a lawsuit becuase he is minority and gave up the attempt.
A nearby surgical group hired a surgoen with good references. The surgeon did not know what he was doing and killed 2 patient. Of course everyone from the group to the hospital tried to get rid of him. Well he is still here and the legal battle is ongoing.
Kevin, it may be that no one accounts for the “defensive medicine” cost because it’s literally an indefinable lobbying term, with no agreed meaning or application outside the political realm. And, there’s no evidence that even in states with draconian “reform” like California, that health care is any cheaper. Facts, man, facts.
“Any alternative system, such as no-fault malpractice, mediation, or health courts, will go a long way both to reduce the cost of medical care, and fairly compensate more patients for medical errors at a significantly more expedient rate.”
How so? Again, facts, man. Where is there literally ANY evidence to support this claim? Or is it true simply because you say so?
Please tell me “anonymous” is not a doctor, because “he just plain bad”. Wow. I agree with Dr. Mary Johnson that the medical community does a horrible job at peer review. I have seen really horrible and dangerous residents slide right through their residency with no consequences. When other doctors and nurses complain, nothing seems to happen. Just what do you have to do to get kicked out of a residency program? The same is true for attending physicians. You would think other MD’s would want the bad apples gone. Yet, they all stick together, like a good ole boys club. Face it docs, you made the liability mess your in right now, not the lawyers.
“That’s because the current system does a miserable job of compensating patients for medical errors, where more than 50 cents on every compensated dollar goes to pay lawyers and the courts. Not to mention that a typical malpractice trial may last years before an injured patient receives a single penny.”
Who in the tort “reform” lobby is wanting to pay injured patients more and pay them quicker? Will there not be administrative costs with any of your proposed solutions? Or had you not thought of that?
“estimated to be $210 billion annually”
I bet there’s some really tight statistics behind that figure. At least as tight as those estimates of the cost of the harm caused by doctors. Better be careful playing fast and loose with numbers, because the other side will do it too.
Perhaps you should stick with reforming medicine before you go applying your significant legal knowledge to monkeying with the 6th Amendment.
” I would start pro-actively circulating some of the above talking points,”
They could, but they might then realize that people would be asking the same questions as above, so if they’re smart they’ll get the answers first.
Why do doctors allow themselves to get bogged down in this battle on behalf of their insurers anyway? This really has very little effect on your bottom lines. Stop wasting your lobbying dollars on it.
Even if we assume doctors can all agree that this or that procedure is defensive medicine, and we agree that the cost is $210 billion, that’s still only 9.5% of the total health care cost of approximately $2.2 trillion. So in our most perfect world, assuming the highest current cost, and that whatever we replaced the current malpractice “system” with resulted in physicians not practicing any defensive medicine ever no matter what, we’d save less than 10%? In a perfect (and thus ridiculously unlikely) scenario?
The numbers aren’t very compelling. That’s what we’d be giving up our Constitutional rights for?
Dr. Johnson, the reason Peer Review falls short of the mark is that notes are “discoverable” and because of countersuits by the reviewed. More lawyers is not the prescription for reforming Healthcare.
Defensive medicine does exist, despite anonymous trial lawyers swearing to the contrary. This recent UCONN study of surveyed 900 docs in MA. It asked about their use of seven tests and procedures: plain film X-rays, CT scans, magnetic resonance imaging, ultrasounds, laboratory testing, specialty referrals and consultations, and hospital admissions.
About 83 percent reported practicing defensive medicine, with an average of between 18 percent and 28 percent of tests, procedures, referrals, and consultations and 13 percent of hospitalizations ordered for defensive reasons.
Such practices were estimated to cost a minimum of $1.4 billion per year in Massachusetts.
The study, “Investigation of Defensive Medicine in Massachusetts,” is the first to specifically quantify defensive practices across a wide spectrum and among a number of specialties.
Whenever Tort Reform is mentioned, the Trial Bar responds predicatbly. Thus far, they’ve been very successful, partly because so-called Organized Medicine has not come up with robust alternatives for Compensation and weeding out bad actors and partly because the Democrat Party has looked upon the Trial Bar as a Piggy Bank.
The current severe economic recession, however, may spur a new look at these issues. One can only hope.
DOC99, I agree that defensive medicine is a very big problem, but I disagree vehemently with you on the peer review discovery issue.
“Bad faith” peer review is a very real problem (again, in our increasingly corporatized environment).
The problem with current law (in most states) is that it just assumes that hospitals (and their administrators) always act in good faith, and I can testify that they do not. While I was not the victim, per se, of bad faith review . . . I was fired (from my hospital-owned position) because I intervened (to the patient’s benefit) in a “bad-baby” case and reported it to peer review.
It’s been an eleven-year medico-legal cluster-screw.
Doctors who report problems (or who are an economic threat) can easily be targeted by hospitals who just want them to shut up and “go away”.
And if peer review is absolutely undiscoverable – these doctors have no way to fight back. They can be silenced and their careers destroyed – while the badness goes on and on.
The AMA knows it’s a problem and (for years and years) has done NOTHING – ZERO, ZIP, NADDA – to address it. The representation of “organized medicine” is a joke. The fats cats all sit at the top (it’s worse than the worst labor union) – while the peons and “nobodies” are left to stew in their juices.
I personally think there are relatively easy ways to fix the problems with medical peer review (things that might make tort reform easier for the general public to swallow) – but it’s going to take people who know what they are doing and who are willing to put patients first.
I have not seen any evidence that the Obama administration wants to do anything but buy the votes of people with their hands out.
Signals from the Obama administration that they are considering medical liability reforms are encouraging, and it’s clear those signals have spooked the trial lawyers into reviving stale arguments to maintain the status quo. Both Democrats and Republicans in Congress recognize that medical liability reforms are needed to curb health care costs. Doctors are forced to practice defensive medicine because of the pernicious eagerness of lawyers to sue, regardless of merit. As we work to achieve greater value from our health care spending, it’s clear to lawmakers on both sides of the aisle that liability reform is part of health system reform.
While we continue to support caps on non-economic damages as a proven reform working in California and Texas to keep physicians in practice and preserve patients’ day in court, we’re also open to alternative methods of dispute resolution, such as mediation and state health courts. Physician leaders shared those ideas with lawmakers last week during the AMA’s National Advocacy Conference in Washington, D.C.
The bottom line is that we need to keep physicians caring for patients. We’re committed to meaningful action on health care reform this year.
Joseph M. Heyman, M.D.
Board Chair, AMA
Well, a lot of defensive medicine seems to be a natural extension of cognitive biases like loss aversion. Malpractice climate doesn’t help, but would be interested to see how much of a role it plays – I suspect that it is a low (10-25ish) percentage of that $210 billion (something the Dartmouth people should be able to show).
“About 83 percent reported practicing defensive medicine.”
About 83 percent of teenagers reported their curfew is too early. Surveying doctors to see if they practice defensive medicine isn’t that much good unless they’re willing to say “yes, I performed X and it was not medically warranted.” What’s more, you can’t find any evidence that their risk was actually reduced. So why should we make policies based on doctors actions in response to a risk they can’t quantify when they have no idea if their actions reduce the risk?
As far as the tort bar’s success, they have been losing in state’s all over for the “reform”, ie arbitrarily cutting legitimately injured persons ability to recover for those injuries. Yet in states like California, which has had “reform” for decades, there’s no evidence of any defensive medicine savings.
If “reform” is all that’s needed, where’s the proof that the claimed defensive medicine savings exist?
One can only hope that the proponents of “reform” can bring some proof of these savings to the table. Thus far, they’ve offered nothing more than pretty thin gruel.
By the way, while you’re blaming others for your failure to police yourselves, what percentage of physicians who have been sanctioned have successfully countersued? If you don’t know, maybe you ought to educate yourself before you shift all the blame.
“Defensive medicine does exist, despite anonymous trial lawyers swearing to the contrary.”
Anonymous physicians saying it exists, and defining it and accurately quantifying it are two different things. And proving that your proposed “reform” would actually reduce it is another kettle of fish altogether. But hey, don’t let facts get in the way of lobbying for your liability carrier. I’m sure the insurers will be there for you when the chips are down!
If we assume “defensive medicine” exists, and all doctors can agree on what it is, what “reform” would be the most effective, and assuming the $210 billion cost, how much would that reform decrease the cost to the healthcare “system”?
Note that Mr. Heyman provides only opinions, not facts in his statement. This one is particularly humorous, and suggests he may be out of touch with his members:
“While we continue to support caps on non-economic damages as a proven reform working in California and Texas to keep physicians in practice and preserve patients’ day in court”
How many posts have we seen on this and other physician sites about how crappy it is to practice in California? And how exactly does having insurance and apparently AMA lobbyists decide the value of cases without hearing evidence “preserve patients’ day in court”? Only a lobbyist can make those kind of statements with a straight face.
Using his logic, and his belief that it is imperative to cut health care costs, a straightforward and direct way with immediate and quantifiable cost savings would be to cut Medicaid reimbursements. We can probably determine right down to the penny what the savings will be! I’m sure a physician can bear the cost better than an injured patient who will never be able to work again as a result of malpractice.
Also note that Mr. Heyman, your biggest lobbying organization’s board chair, is referring to the health care “system”. It’s not patients purchasing goods and services from professionals. It’s a “system”. That view of healthcare is what put you in the position of being at the financial mercy of the federal govt. Continuing down that “system” road is going to make you full time employees of the Department of Health and Human Services. It doesn’t sound like the AMA will be doing much to reform your payment model anytime soon. And that is the true root of the problem for healthcare professionals.
But by all means, put out the fire in the grass while your home burns.
In the issues of medmal, defensive medicine and peer review, there is a common factor. That factor is the standard of care. We are able as a nation to use evidence based medicine to determine what is the standard. A classic example of defensive medicine is a patient who presents to the ER with a headache. Defensive medicine means that no matter what, the patient gets a CT. We can use evidence based medicine to determine critera that can and should hold up in court that protects the ER doc when there is the one in a million case that was missed when he does not order the ct. Instead, we use hindsight and paid experts to sway a “relative standard”. Peer review is worthless without defined standards. It is the fact that we do not have defined standards that attorneys capitalize on and what allows bad doctors to continue. I believe that it is the responsibility of medical Academies to generate the “standards” and then be the ones who attest to this “standard” in court.
As to the Obama offering “tort reform” as part of his “healthcare reform” it is important to note that the Massachusetts system is his model!
“Any alternative system, such as no-fault malpractice, mediation, or health courts, will go a long way both to reduce the cost of medical care, and fairly compensate more patients for medical errors at a significantly more expedient rate.”
Wrong! It can always get worse.
I do peer review in a state with one of the highest utilzation rates of medical services and also one of the highest rates of malpractice suits. One would think, from all that is seen here that the relationship is defensive medicine.
I don’t see that. The relationship is a lot of sloppy, thoughtless, and sometimes greed-driven care results in lost of charges generated with little to show for it but adverse consequences of care.
When this care is identified in peer review, rarely is action taken if the culprit generates profit.
The core problem is lack of personal standards and courage.
“If “reform” is all that’s needed, where’s the proof that the claimed defensive medicine savings exist?”
The anonymous lawyer trolls have descended on this thread in droves, so it is probably pointless to battle. But let us pretend you are honestly curious for a moment about whether defensive medicine is real.
You are a person who falls and bumps your head. You go to the emergency room. You are several times likelier to receive a CT scan in the US versus the UK or Canada (this is not in dispute). The ER physician receives no financial incentive to order scans; in fact, they only slow him down and force him to see fewer patients. So why (because defensive medicine is just a myth) are they ordering them so much more here than in less lawsuit happy countries?
Perhaps because they are following govt. guidelines. Although this article suggests it’s due to a lack of scanners and/or because the poor are getting access to fewer services under the same plan than the rich:
http://www.cbc.ca/health/story/2008/06/25/mri-ctreport.html
Are you suggesting that the reform we need is UK/Canada style healthcare? If not, then what is your point?
Perhaps the biggest question about defensive medicine, assuming its existence, is does it work? If you don’t know, then why would you do it?
Mr. and Mrs. Obama, Joe Biden, most of the cabinet and the majority of Congress are trial lawyers, so any promise of med mal reform is a smoke screen.
When did Mr. and Mrs. Obama ever try a case? Much less on behalf of a plaintiff? When did Joe Biden or most of the members of Congress?
Lawyers who worked for large firms doing mostly corporate work? Yes. Prosecutors? Yes, lots of them too. Representing people injured by the negligence of others? Name me one lawyer currently in Congress who made his/her living in that practice.
Arlen Specter’s son is one of the wealthiest trip-and-fallers in the U.S. Senator Specter has always been a foe of tort reform.
That’s one relative of one congressman out of 535.
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