Should severe birth injuries be pulled out of the court system, and can defensive medicine be good?

Two recent op-eds were recently published in The New York Times concerning medical malpractice.

With health care costs spiraling out of control, there is some grudging acceptance within both the Democratic party and mainstream media that something needs to be done to fix the American malpractice system.

The stance that the American Medical Association is taking, namely, exempting doctors from malpractice if they adhere to evidence-based clinical guidelines, is a good one. Another idea would be removing certain injuries from the court system. Severe birth injuries are one example, as they can still happen despite following the standard of care. Funneling these cases into a no-fault system would help patients receive quicker compensation.

Of course, I think that the entire medical malpractice system would be better served with a no-fault system, but birth injuries would be a good place to start.

A companion op-ed is written from the lawyer’s point of view. On the prospect of defensive medicine, attorney Tom Baker writes:

Critics point to defensive medicine as the hidden burden that liability imposes on health care. Yet research shows that while the fear of liability changes doctors’ behavior, that isn’t necessarily a burden. Some defensive medicine is, like defensive driving, good practice. Too often, we can’t distinguish between treatments that are necessary and those that are wasteful. Better research on what works and what doesn’t — evidence-based medicine — will help. And it will address the more general challenge of avoiding costly but unnecessary care.

I’ve written previously that defensive medicine, which leads to over-testing and over-treatment stemming from the fear of liability, does not help patients. In fact, more tests increase the risk of complications, and can necessitate more invasive studies that can be to the detriment of patients. The Dartmouth Atlas studies have said as much.

But I agree with Mr. Baker that we do need more evidence-based medicine, which comparative effectiveness studies can help with. But is he willing to go as far as to endorse what the AMA is proposing, and grant doctors immunity if they adhere to the evidence he espouses?

I wouldn’t hold my breath.

Comments

Matt
Likewise I wouldn’t hold my breath for no fault. Kevin do you really think the insurers, who are really the ones responsible for moving this debate, want to pay more people faster? Of course not. It may make you feel good to say you do, but outside a single payer system we both know thts not happening.
However if you physicians want to establish bright line EBM standards of care there is nothing stopping you but yourselves. There will still have to be a jury to determine if you did in faCt follow the guidelines though. You won’t just get to say you did and that be it. The AMA is proposing that in conjunction with lobbyist determined caps is why their proposal gets no traction.
christophil, M.D.
Not so fast on the evidence based bandwagon. EBM is a “refined” (RCT) standard of care. EBM guidelines are not the last word on patient care. EMB is based on “best” evidence – at the time of publication. Who will decide what is best? Can consensus ever be reached? “Best” evidence implies there is more evidence to come. Who will update EBM guidelines? How often will guidelines be updated? Will updates be in real time. How will updates be disseminated? Can we really boil down medical practice to a string of guidelines, flow charts and formulas? Doubt it, medicine is not mathematics.
We all chart “discussed EBM guidelines with patient and patient agrees to treatment x understanding that treatment y is the Cochrane favorite”.
read more here http://bit.ly/jCudT
SmartDoc
Liability issues are primarily state issues, not federal issues.
The Obama Regime therefore has little to say, even if it wanted to.
http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.
Of course, there may be anecdotal instances where defensive medicine is good, but, in general, it is a sytemic flaw in the medico-legal system. It costs money, demoralizes doctors, adversely affects the doctor-pt relationship and exposes patients to unnecessary risks.
Matt
“The Obama Regime therefore has little to say, even if it wanted to.”
Until almost all healthcare is paid by the federal govt., and in order to get the benefit of the govt. cash either as the provider or the patient, you contract otherwise.
Or, the feds pressure the states to follow their orders by threatening to withhold money. Much like they do with highway money, which is why the DWI limit is .08 rather than the old .10, and not wearing a seatbelt is a primary offense.
Matt
“in general, it is a sytemic flaw in the medico-legal system.”
Assuming of course that it can actually be objectively identified.
SarahW
VIrginia instituted such a program, and it is a disgrace.
I
SarahW
Perhaps you might look into that history as an example of the pitfalls and inadequacies and frank injustices of that solution.
skepticus
First, Tom Baker is not just an “attorney,” he’s a leading scholar of insurance and malpractice.
Second, people like you kevin should simply stop using the term defensive medicine. NO ONE knows what the optimal level of testing is for a given condition, let alone patients, so you can’t say when there is “overtesting.” Defensive medicine is simply a buzzword doctors use to scare people.
Further, as Gawande’s recent New Yorker piece illustrates (as well as a ton of scholarly evidence studying the effect on caps), its the economic incentives that drive doctors’ behavior–not liability concerns.
Third, a question for you . . . . immunity for following the evidence-based protocol is fine . . . but would accept the fair corollary . . . . automatic liability for failure to follow the protocol?

http://www.kevinmd.com Kevin
“a question for you . . . . immunity for following the evidence-based protocol is fine . . . but would accept the fair corollary . . . . automatic liability for failure to follow the protocol?”
Yes. If an adverse outcome occurred because a doctor failed to follow evidence-based protocol?
Kevin
http://www.kevinmd.com Kevin
“a question for you . . . . immunity for following the evidence-based protocol is fine . . . but would accept the fair corollary . . . . automatic liability for failure to follow the protocol?”
Yes. If an adverse outcome occurred because a doctor failed to follow evidence-based protocol.
Kevin

Matt
“Yes. If an adverse outcome occurred because a doctor failed to follow evidence-based protocol.”
That’s not how no-fault works, particularly if you’re talking about workers comp. In that context, if you’re injured on the job, you are compensated for damages. The employer’s negligence is not an issue. In exchange, you get a specific schedule of damages.
What Kevin is talking about above is not very different from our present system, because someone is still going to have to try the issue of what protocol applied and was it followed properly. Doctors could just as easily promulgate rules nationwide using evidence based protocols, and agree that these would be followed, just establishing the standard of care clearly.
Third party
Skepticus,
Call it whatever you want but there is no denying that physicians will order diagnostic tests out of fear of being sued for not diagnosing clinically occult pathology.
How does an ER physician benefit economically from ordering a CT of the head on people who come in complaining of a headache?
Are there bad physicians out there? Absolutely. There are also bad lawyers. There are also good physicians who make up the majority who are just trying to stay out of trouble.
My guess is that you are not a physician. It’s too easy to criticize someone or a group of people when you’ve never been in their shoes.
Chris
“Further, as Gawande’s recent New Yorker piece illustrates (as well as a ton of scholarly evidence studying the effect on caps), its the economic incentives that drive doctors’ behavior–not liability concerns.”
How amusing. Seeing how many doctors who have no vested financial interest in ordering more tests but still do, your statement is completely one-sided. Of course, some doctors do tests/procedures because they’ll get paid for doing them, but the ER doc doesn’t get paid more for ordering an extra CT scan. What’s his motivation?
http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.
I don’t agree that automatic liability should be assumed if medical guidelines are not strictly followed. Note that word is ‘guideline’, and not ‘mandate’. I would be interested in why the physician and the patient did not follow the relavent guideline. Perhaps, the patient refused to do so. Perhaps, there was a medical circumstance that made the guideline too risky to follow. Sometimes, guidelines just don’t apply to a patient’s particular clinical situation.
skepticus
“How amusing. Seeing how many doctors who have no vested financial interest in ordering more tests but still do, your statement is completely one-sided. Of course, some doctors do tests/procedures because they’ll get paid for doing them, but the ER doc doesn’t get paid more for ordering an extra CT scan. What’s his motivation?”
Wrong, totally. First, even when not doing the test themselves, doctors arguably do have an indirect interest in being a provider to hospitals of patients needing procedures. Referrals are commodities and those who provide them are of value. Hospitals create cultures and expectations of high volumes of testing–that was the point of Gawande’s article.
Second, doctors have no motivation NOT to order tests. It’s costless to them. And they have–even with no medmal liability– at least a reputational interest in getting the right answer. To the degree a test may marginally help diagnosis, the doctor will, therefore, order it. To take yr example, the emergency physician will order a CT if it might help out; when his patient gets cancer 20 years down the road, that doctor won’t be around, so who cares?
Rusty
Skepicus,
An ER doc isn’t worried about what might happen 20 years from now. In the case of the head CT for headache there is always the worry that if a CT of the brain is not done the brain aneurysm that is clinically silent today will rupture two months from now. You know that the patient is going to sue alleging that if the doc had done a CT when the patient came to the ER the aneurysm would’ve been detected and it could have been treated proactively. Lawsuits like this actually do occur.
This argument will go round and round and no one is certainly going to convince you to see things from the other’s point of view. It is much easier to criticize someone when you’ve never been in his shoes.
dud
Rusty,
I thought the sudden onset of a severe headache (especially with a stiff neck) should result in a CT (followed by a LP if the CT is negative)
Detecting a anyerusm before it ruptures is always prefentiall.
True the patient will need a coiling procedure (or similar) and there is clearly great risk with any attempt to repair the anyerusm,
Seems like the classic defensive medicine issue. Lots of headaches in the ER. Vey few SAH. However, if I had a “the worst headache of my life” (if not the result too much vino) I would want the correct workup.

Should severe birth injuries be pulled out of the court system, and can defensive medicine be good?

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