Op-ed: Health reform is missing malpractice and primary care fixes

The following op-ed was published on March 22nd, 2010 in CNN.com.

With health reform passing the House, a comprehensive overhaul of our health care system draws another step closer.

Coverage will expand to cover nearly 95 percent of legal U.S. residents. With a recent study showing that patients without health insurance have a shorter life span, coupled with the number of uninsured approaching 50 million in 2010, that is perhaps the biggest reason to cheer.

But with a critical shortage of primary care providers, these newly insured patients may have nowhere to turn for medical care. Massachusetts, the only state that offers universal coverage, suffers from some of the worst primary care wait times in the country despite having the highest concentration of doctors nationwide.

Health reform tries to help, mostly by modestly increasing both Medicaid and Medicare payments to primary care clinicians. But it’s not nearly enough to convince medical students, already grappling with crippling school debt, who continue to gravitate toward lucrative specialty practice.

And what about the current primary care work force, where, according to a study in the Annals of Internal Medicine, more than a quarter of doctors reported being burnt out and 30 percent indicated they would leave the field within five years? Health reform gives few solutions to alleviate the bureaucratic obstacles and time pressures that frustrate doctors and impede their relationship with patients.

Finally, the mere $50 million allotted to medical malpractice reform doesn’t help patients hurt by medical mistakes, who are trapped in a dysfunctional system where one in six receives no financial compensation, the average case takes five years to resolve, and 54 cents of every awarded dollar go to pay legal fees. These individuals deserve an improved liability system that more fairly expedites compensation and helps doctors reduce errors and improve patient safety.

Although it’s worth celebrating that the United States is close to joining the rest of the industrialized world in providing near-universal health coverage, the health reform conversation must continue — both to improve the plight of injured patients and to ensure that the millions of newly insured have access to quality primary care.

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  • http://nostrums.blogspot.com James Dougherty

    I can’t believe we’re still seeing that discredited 50 million figure. If you go to Kaiser’s website and look at the data, about 20% of the real number are already eligible for Medicare/Medicaid, but haven’t signed up. There are other caveats visible in the data. I’m not minimizing the need to cover the uninsured, but it undermines credibility–and makes it hard to get to the goal–when “facts” are discarded for “effect.”

  • Bladedeoc

    James, I initially thought that the discredited 50 mill you were talking about is the “$50 million for tort reform” noted in the article as not enough. Again many doctors opining on this are willfully blinding themselves as to the massive disdain that the bill has for you. That $50 million is a bribe to the states to dismantle any tort reform that either 1. caps penalties (and yes I understand that even some non-lawyers think that’s a good thing) and more significantly 2. LIMITS TRIAL LAWYERS FEES in any way. It is in fact a very thinly disguised ANTI tort reform measure. So keep on talking up how this is a great bill that needs some tweaks. Eventually you’ll wise up but not before the last primary care practice goes completely NP based.

  • http://nostrums.blogspot.com James Dougherty

    Follow up: We have had malpractice reform here in Texas since 2003. It only places a cap on “punitive” or punishment awards. Economic harm is not capped. What this does is make it less enticing for lawyers to file frivolous suits, because the cap cuts into their fees. Since ’03 frivolous suits have fallen 30%, awards to patients harmed have remained steady. The savings in malpractice premiums alone have funded a free clinic in Corpus Christi, and a new clinical service at Kelsey-Seybold. Hospitals have plowed their premiums savings back into improvements in the facility. And, finally, the number of docs applying for license in Texas has doubled. Now 29 counties have OB-Gyn that they didn’t have before. You can read about this, and my views on reform, on the blog.

  • http://nostrums.blogspot.com James Dougherty

    Bladedeoc,
    I think I expressed myself poorly. I made no comment regarding the new health care reform law. I think, as a goal, we should look for ways to cover the uninsured. However, on the separate issue of our current reform, it fails in three of the four crucial elements that must be addressed to achieve success. The four IMO are Coverage, Access, Cost, and Quality. (not implying in that order). The law addresses coverage well, access poorly, cost not at all, and quality negatively.

  • http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.

    $50 million for tort reform is like apply neosporin ointment to a septic patient.

  • SarahW

    Malpractice suits are one of the last remaining defenses a patient will have against substandard care, in a system where denying care and short-shrifting patients in time with practicitioners and individualized care are incentivized.

  • http://wellescent.com/health_blog Wellescent Health Blog

    If malpractice suits were for defensive purposes and were capped at a reasonable figure, this would remove a significant amount of costs for doctors operating a practice and would enable doctors to thrive with lower compensation. When a doctor makes a mistake, it is a bad thing for the patient, but the punishment should fit the crime and patients should be compensated only to a reasonable level that reflects how the damage affects their day to day life. By supporting large settlements for malpractice claims, everyone who pays insurance is effectively subsidizing lawyers to chase ambulances.

  • TrenchDoc

    Sarah W
    Why don’t we then change the root causes of malpractice suites by incentivizing doctors to spend more time with their patients? That will result in less harm to patients. Why would we NOT do that.

  • http://paynehertz.blogspot.com Payne Hertz

    The US medical system kills over 250,000 people a year and injures over a million more. The kind of “malpractice reform” we need is to have less malpractice, not to neuter or eliminate the only remedy patients have when they are injured or killed by substandard medical care. Unfortunately, the cost of malpractice to the system is minimal, and most money awarded in malpractice cases finds its way back into the system in the form of medical fees to deal with the injuries caused by malpractice.

    Indeed, malpractice may very well be profitable to the system as a whole, as doctors are incentivized by our for-profit system to perform more unnecessary procedures, reduce time with patients and write more scripts which in turn increases the risk of medical errors. Additionally, there is profit to be made treating the victims of malpractice, who often require expensive treatments to deal with their injuries, while the overwhelming majority of such people will never see a dime in compensation from a malpractice suit.

    If the profit generated from unnecessary or excessive medical “care” and indeed the treatment of malpractice victims themselves exceeds the liabilities created by increased malpractice exposure, the system has little incentive to reduce malpractice and indeed, has frightening incentives to increase it.

  • TrenchDoc

    Payne
    You just made an excellent point for what I said to Sarah W. The current system is not working for doctors, lawyers OR patients. We need to get a the root causes of medical errors AND have a reasonable and fair way to compensate injury. The 5 year wait for a resolution in a malpractice suit is cruel and unusual punishment for BOTH doctors and patients. The only ones not being hurt are the lawyers .Maybe that is why we are not making the obvious changes that need to be made.

  • W

    Assuming malpractice reform is necessary, there’s still a rather strong industry within the medical field (incl. risk management attorneys and malpractice insurers) that thrives on things remaining exactly as they are. I suspect they will continue perpetuating an imaginary threat long after any reform is in place, resulting in very little change.

  • joe

    “The US medical system kills over 250,000 people a year and injures over a million more”

    That figure is little more than an extrapolation from the 1999 IOM data which has had it’s own methodological issues discussed repeatedly in the medical community. The problem is the lay community by and large doesn’t read medical journals, rather TV/newspaper newsbites. The sad thing is Payne, it is easier to villify the medical community for your own agenda than actually understand where those numbers are derived.

  • http://www.epmonthly.com/whitecoat WhiteCoat

    “it’s worth celebrating that the United States is close to joining the rest of the industrialized world in providing near-universal health coverage”
    I wouldn’t say that it is a victory that more people will soon have “coverage.” The terms “insurance coverage” and “access to medical care” are not, and never will be synonymous. Look at Massachusetts. Look at all the people in rural America with Medicaid who are unable to find a physician. Having “coverage” is no solace to them.

    SarahW – your assertion demonstrates the same thought process that keeps people purchasing “aloe vera concentrate” or whatever other miracle snake oil cure is being touted at the time: “If I stop using it, I’ll get worse.”
    If we change medical malpractice, the care will get worse. That is a flawed premise. Is malpractice rampant at free clinics that operate under Good Samaritan immunity where doctors can’t be sued? Do I turn from Dr. Jekyll to Mr. Hyde when I go from one clinic to another? The reasons that immunities are put in place is to encourage physicians to practice in the clinics and thereby increase the access to medical care.
    We can’t sue our way to better health care.
    I recently read an article stating that the US has 80% of all malpractice payouts in the entire world each year. As the health care debate moves forward, you and the rest of the American public are soon going to have to decide whether you value perfect medical care (with the ability to sue providers for every perceived harm) or available medical care.
    As more and more doctors leave primary care medicine, which would you choose?

  • http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.

    Those of us who write, and many others, are careful with our words. Physicians, in particular, are cautious and precise with language. When an individual is so careless and inflammatory to use language, “The US medical system kills over 250,000 people a year and injures over a million more”, it indicates that no dialogue is possible or desired. Tossing verbal Molotov cocktails demeans and marginalizes the source.

  • Matt

    ” What this does is make it less enticing for lawyers to file frivolous suits, because the cap cuts into their fees. Since ‘03 frivolous suits have fallen 30%, awards to patients harmed have remained steady.”

    This is fundamentally wrong. Texas’ “reform” caps noneconomic damages, basically pain and suffering. This disproportionately hurts children and the elderly injured by malpractice for while they can pay their medical bills, their lost quality of life is now valued at about what a surgeon makes in a single year. This cap doesn’t change “frivolous” cases, because it affects cases with merit. Anyone with an injury meriting more than $250,000 in pain and suffering frm a Texas jury very likely has a pretty significant lost quality of life.

    This cap has nothing to do with fairness, but insurer profit protection. If one believes that capping damages regardless of the facts of the case is just so that insurers can better predict their margins, then that’s fine. But it has nothing to do with anything but that.

    As to arbitrarily capping what one side would pay their lawyer, a private contract between the parties, if physicians believe in that, then I can’t see why they complain about the government arbitrarily deciding what they should be paid. If it’s good for the goose, then it’s good for the gander. And since we’re talking “fairness”, can someone explain why it’s fair to cap what one side can pay their attorney, but not the other?

    But the main reason there is not much in federal health reform about malpractice is that the claim is a state law issue. Surely you limited government types can appreciate the distinction and why the feds have no business in state law actions?

  • Matt

    “Tossing verbal Molotov cocktails demeans and marginalizes the source.”

    For a physician to say such a thing reeks of hypocrisy. Those who use terms like “greedy lawyers” to call anyone who dares represent someone injured by malpractice, “whores” to call those who dare testify on their behalf, and call victims of malpractice “lottery winners” really don’t have a lot of standing to complain about the tone of the discussion.

  • Matt

    “We can’t sue our way to better health care.
    I recently read an article stating that the US has 80% of all malpractice payouts in the entire world each year.”

    Of course not. The point of a malpractice claim is to decide liability between the parties to that suit, and then damages. Not to improve health care. To criticize it for not improving how physicians deliver care makes little sense.

    And of course the US has 80% of all malpractice payouts. Most countries have a much deeper social safety net, eliminating the mountains of past and future medical bills owed to providers and health insurers as a result of malpractice. If one has universal care, then filing a lawsuit to pay for future care is unnecessary.

  • Matt

    “As more and more doctors leave primary care medicine, which would you choose?”

    Another false choice. We have states with draconian malpractice “reform” like physicians have been begging for for years, and they are still losing physicians. Physicians go where the money is, rightly so. Poor rural areas are still going to struggle to get physicians regardless of the immunity we give physicians. And wealthy areas will continue to be overserved. One can review the per capita distribution of physicians by state and you’ll see that poor rural states are low on the list and wealthy ones are high, regardless of the “reform”.

  • Matt

    “If malpractice suits were for defensive purposes and were capped at a reasonable figure, this would remove a significant amount of costs for doctors operating a practice and would enable doctors to thrive with lower compensation.”

    This is nonsense. Malpractice coverage is on average less than 10% of a physicians overhead. Caps have not been shown to have much affect on premiums, as premiums rise and fall in capped and noncapped states with the economy.

    If what you’re saying was true, you’d see more physicians per capita in capped states.

    TrenchDoc is right in that it’s ridiculous that injured patients have to wait so long. He’s wrong in that it benefits the lawyers, unless he just means the insurance defense lawyers. It does not benefit the plaintiff to delay.

    At the end of the day, though, none of the “reform” currently proposed by physicians or their insurers has anything to do with getting more injured people paid faster. THey are mostly concerned with arbitrarily capping the value of cases that do have merit. When physicians make a proposal that seeks to actually help the injured, their claimed interest in the welfare of the victims of malpractice will seem more genuine.

  • ErnieG

    I agree with Dr. Kirsch’s comment. In addition, why does Payne Hertz fail to mention how many lives are improved by the current system?

  • http://nostrums.blogspot.com James Dougherty

    Tort reform in Texas is the result of an amendment to the State constitution, unlike other states. The public passed the amendment in a referendum. At that time the crisis in medical liabilty was acute: (1) non-economic awards had grown over 1990-99 from 36% of awards to 66%, (2) despite rapid population growth the number of certain specialists was slowly declining (for instance OB 2849->2830), (3) surgeons in Dallas paid twice the malpractice premiums of those in San Fran ($72K v 38K), (4) claims against TX docs doubled between 96 and 00. Over 3 yrs, since reform, (1) hospitals have increased charity care by >20%, anmounting to ~$600M, (2) numbers of OB (2830->3016), orthopods, NS have gone up ~10%, (3) 17 counties now have an ER doc, 11 have their first cardiologist.

    The free clinic in Corpus funded by reform savings is run by Christus Health, in case anyone wants to check.

    I’m a Primary Care doc, never been sued, but I haven’t seen $8K premium since 1978.

    All this data is readily available.

  • SarahW

    Whitecoat, I think you mischaracterize my point – and substituted your own in its place.

  • Matt

    Readily available where? For example, where does one get the proof as to how much of awards were noneconomic v. economic?

    The Texas Medical Board reports that 1/2 of Texas counties still lacked an OB 4 years after reform, the same number that lacked it BEFORE. 21 counties have no physician whatsoever as of 2007, 4 years after “reform”. As of 4 years following “reform”, 169 Texas counties had no orthopedic surgeon.

    The wealthiest counties did gain physicians, you’re right, though. They opened new facilities, after all. But since physicians congregate in areas of wealthy people regardless of reform, I’m not sure how this makes your case.
    If Texas was truly benefiting, why is it so far behind New York, a state without “reform” in physicians per capita?

    “The free clinic in Corpus funded by reform savings is run by Christus Health, in case anyone wants to check.”

    How does one determine it’s funded by malpractice premium decreases? And if states without “reform” experienced decreases as well, how does that make your case?

    Statistics are fun things when one uses them without context. You can use them to prove most anything. But the full story seems to undercut your claims.

  • http://paynehertz.blogspot.com Payne Hertz

    “The sad thing is Payne, it is easier to villify the medical community for your own agenda than actually understand where those numbers are derived.”

    The sad thing is Joe, it is easier to villify critics of the system and accuse them of having an agenda than it is to honestly address and fix the problems.

  • http://paynehertz.blogspot.com Payne Hertz

    “I agree with Dr. Kirsch’s comment. In addition, why does Payne Hertz fail to mention how many lives are improved by the current system?”

    Because this is a discussion of malpractice, I don’t work for the PR department, and I am not aware of any stats on how many people are saved, just those who are killed and injured. You might better ask why the majority of articles about malpractice fail to mention the prevalence of malpractice, or the fact total annual awards to malpractice victims are a measly $10 billion a year, and are not a major driver of costs in a system costing over $2.2 trillion a year.

  • http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.

    I presume that all agree that an ideal medical liability system would capture every instance of negligent medical care and would target only negligent physicians. In other words, 100% sensitivity and specificity. The current system misses the vast majority of patients who have been victims of negligent care. In addition, most physicians who are sued are innocent, as evidenced by the fact that most are dismissed from the case at some point, or by the jury at trial. If we physicians performed as poorly as this system, then we would all be guilty of malpractice.

  • http://paynehertz.blogspot.com Payne Hertz

    “Those of us who write, and many others, are careful with our words. Physicians, in particular, are cautious and precise with language.”

    Yes, I’ve noticed that many physicians and others are quite careful and precise with their words. They can write hundreds of articles about malpractice reform, each one demonizing the victims of malpractice as greedy litigious parasites, without once mentioning malpractice itself or its prevalence.

    As a chronic pain patient who reads medical blogs, I notice how carefully and precisely many of your colleagues use terms like drug-seeker, malingerer, wuss, complainer, whiner, hypochondriac, hysterical and a host of other choice adjectives to describe people whose only crime is that they are in pain and want relief pain. I notice how carefully and precisely terms like this, or their insinuation, get entered into the medical record effectively sabotaging any chance chronic pain patients have of getting relief.

    Do you have a substantive criticism to the statistic I quoted, or is this the transparent attempt to stifle debate and shut down discussion that it appears to be?

  • Doc99

    Bad Outcome does not equal malpractice.

  • http://nostrums.blogspot.com James Dougherty

    Matt, I’m not interested in attacking credibility. I spent some time on the TMB website today, but was unable to find the reference you cite. I’d welcome some help here. The data I threw out are from TMB, the TX Trial Lawyers Association, TMA, and the news media. Lastly, myself, since I signed my malpractice premium payment. TMB does have a database that you can search by County and then by specialty but without going through each of over 200 counties, I couldn’t decipher the trend. I live in a county with one small city but the rest is mostly rural. We have 7 OB, 1 cardiologist, and no NS. That’s about what you would expect for the population; it takes over 100K, and a much larger hospital to support NS. The TX Trial Lawyers Assoc website has a nice study on the malpractice epidemic, but your general point about statistics is well taken: even as the non-economic “portion” of awards has doubled, they preferred to emphasize that a cap in all torts would decrease “total costs” by a very small percent. Clearly perspective drives the focus.

    I’m convinced that TX experience has been positive, not only in benefit to charitable care, but also to encouraging physicians to practice here. I don’t make a claim as to improvement in defensive medicine practice: the estimates of savings have ranged too widely in an area that is largely subjective. Thirty years ago in my ER practice, I did imaging only if there was a suspicion of significant head trauma; nowadays “every bump on the head gets a CT” (an ER doc I know). But, how do we document how many (if any) didn’t need it?

  • Matt

    “I’m convinced that TX experience has been positive, not only in benefit to charitable care, but also to encouraging physicians to practice here.”

    If you’re convinced without any factual basis, so be it. One cannot argue with a faith based belief.

    “The data I threw out are from TMB, the TX Trial Lawyers Association, TMA, and the news media.”

    I’ve looked and don’t see it. Particularly the one about the distribution of damages.

    ” I couldn’t decipher the trend”

    There is no trend related to tort reform. Other than predictability of insurer losses. That’s the sole point. But as far as many of the other claimed benefits, such as cost reductions, increased access, etc. they just don’t pan out, and never have.

    If one believes that’s a good reason to further limit individual rights, then so be it. Because that’s all you’re really doing. You’re substituting the judgment of government for that of the individual, and you’re doing so to favor a politically powerful group. I don’t mind people holding that position, so long as they’re honest about it.

  • Matt

    “If we physicians performed as poorly as this system, then we would all be guilty of malpractice.”

    You mean the system where people bring a dispute, gather the facts, and then as you say correctly gets rid of the parties who have no liability most of the time? How else would you want a dispute resolution to resolve disputes?

    Your lamentations over the state of the malpractice system would have more meaning if you proposed a solution OTHER than arbitrarily capping the damages of those injured the worst so your insurer could save a little money. You like to complain how it doesn’t help as many people as it should, but I don’t see any proposal by physicians to help more people and to get them their just compensation faster.

  • http://nostrums.blogspot.com James Dougherty

    Matt,
    The trend I was referring to was which counties do and do not have what specialties. The way they organized the data just didn’t make it easy to see whether more or fewer counties were being served. “Trend” didn’t refer to reform.

    In any case, I haven’t impugned your motives, and neither one of us seems to be benefiting.
    Best wishes.
    JD

  • Matt

    James,

    I wasn’t impugning your motives in the least. I just don’t think the data supports your conclusions.

    Best wishes to you as well.

  • Matt

    “Bad Outcome does not equal malpractice.”

    Is someone arguing otherwise? Given the number of bad outcomes, and the number of malpractice claims being a much smaller number, it would seem that few if any believe that.

    Although obviously every malpractice claim has a bad outcome. One must show negligence AND damages to have a valid claim.

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