Tort reform for doctors in exchange for less salary

Matt Steinglass at The Economist has interesting take on tort reform, specifically that limiting physician liability for adverse patient outcomes must come with an equable cost to doctors.

In Europe, the costs accrued due to medical errors are covered by the wide-ranging social safety net; the lottery system of massive medical malmalpractice judgments is virtually absent.

It’s part of the social contract: doctors accept limited salaries in exchange for limited liability; patients accept that they cannot sue doctors for millions of dollars in exchange for a guarantee of access to decent health care.

True or not (certainly not true if you ask internists and family practice docs) the perception in our country is that doctors are “rich.” We represent some sort of elite class of Americans who send their kids to private schools, drive Lexuses and Audis, join country clubs, and spend summers in the Hamptons. It’s absurd, of course, as the majority of docs in the trenches can attest.

But perception is king. Therefore, it seems that meaningful tort reform is unlikely until we do something to alter that perception. I have no problem with decreased salaries and lowered reimbursements. But the reason physicians make what they do in this country goes way beyond malpractice insurance. You want to transform the physician class into civil servants, fine. But do something about the exorbitant cost of medical school. Address the threats of frivolous lawsuits. Ease the burdens of running an office by subsidizing EMR. It’s a package deal.

As physicians we need to be a little more flexible. The roar from the primary care sector comes off sometimes as a whiny demand for more money (take it from the specialists if you have to) and less work. And the more lucrative specialties (neurosurgeons or dermatologists) need to consider a world in the very near future where they earn 50-70% of what they make now.

But it has to be a two way street. The social contract in the United States has always been tilted in favor of the entrepreneur, the capital man, the Wall Street trader. We don’t compensate individuals in this country based on the moral value they provide to a community.

Few would argue that teachers and firemen and pediatricians and social workers are paid commensurate with the effect they have on local citizens. And we’re fine with that. We’re a country that has thrown in its lot with free enterprise and open market capitalism. That will never change. Doctors are now finding themselves marginalized financially in much the same way as the kindergarten teacher, the social worker at the battered women’s shelter. I see the inevitability of it.

But there has to be a reasonable compromise. You can’t ask doctors of the future to earn less and work more without subsidizing the training and schooling, without addressing the medical malpractice crisis. I’m willing to sit down at the bargaining table. But as the recent attempts at health care reform demonstrate (no mention of tort reform or medical school subsidization in either bill), too often no one is willing to sit down across from us to negotiate.

Jeffrey Parks is a general surgeon who blogs at Buckeye Surgeon.

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  • SarahW

    The “lottery” lament tossed about with abandon is a gross misrepresentation of what happens when a malpractice case is settled or tried in state courts.

    Each case is unique – this desire to force compensation into a predictable grid is not justice to anyone.

  • SarahW

    So many disputable premises in that post.

  • Matt

    It’s ironic that a physician claims there is a “lottery” in malpractice, but says in the same article: ” It’s absurd, of course, as the majority of docs in the trenches can attest.”

    How does one complain about ridiculous assumptions when they make them in the paragraph prior?

  • skeptikus

    “True or not (certainly not true if you ask internists and family practice docs) the perception in our country is that doctors are “rich.” . . . It’s absurd, of course, as the majority of docs in the trenches can attest.”

    Ah . . . doctors, who eschew scientific evidence in recommending treatment not surprisingly eschew it when prescribing social policy.

    As the McKinsey Foundation shows (every year in its annual report on US medical expenditures), DOCTORS SALARIES are the factor that drives US healthcare costs so far above international averages.

    http://www.mckinsey.com/mgi/publications/us_healthcare/

    But, Buckeye surgeon is right, even prescient. If Obamacare goes thru, there will be a deal (or rather government enforced truce) in the med mal war.

    Doctors will get exemption from medmal, i.e., the end of real accountability, subsisidized education, and the salary of the typical UK NHS doctor, i.e., not much. (Most UK doctors are female immigrants; medicine is not a field that attracts ambitious white men.)

    Patients will get “free care” with little choice, no recourse when your screwed, and the customer service of a typical UK NHS hospital.

    Are we happy now?

    • http://drpullen.com Edward Pullen MD

      I found your comment so startling that I checked out the link to the McKinsey article you link to. Your comment that physician costs are the factor that drives the excess costs is just not what the report says. Of the excess in outpatient costs mentioned in the article about 15% are attributed to administrative costs, 16% to drug costs, lots of other issues, and <10% to physician office visits. If you are going to put yourself out as the "truth" as least be truthful.

  • Dr Lemmon

    I am a primary care physician. I would accept some decrease in pay for less hassles. My malpractice insurance actually isn’t that high. In some states it is outrageous. I know my friends in more risky specialties have it very bad and in some parts of the country no Obstetrical care is available.

    If the medical malpractice system were more efficient perhaps things would improve. My understanding is that less than 50% of the award makes into the hands of the harmed individual. How wasteful. Perhaps if there were a review board for malpractice cases and a fixed sum for various types of cases, a larger overall percentage of the award (and larger dollar amount) could make it into the hands of the victims while reducing costs overall and also expedite cases more quickly.

  • Vox Rusticus

    It isn’t a negotiation when one side can take without fear of consequences. So far, that has been exactly the strategy of Medicare and insurers. They can use our professionalism and duty against us and to their greatly profitable advantage while denying physicians parity by invoking antitrust law against doctors (funny how that never seems to apply to insurance companies who dominate geographic markets.)

    And don’t count on hospitals to help here. They are in the game for themselves and can negotiate sweet payment deals for themselves with carriers while leaving their staffs to fight it out alone, all the while tethering the same to their EDs, thanks to EMTALA.

    Unfortunately, the power to negotiate really comes down to the power to walk.

  • Anonymous

    Wasn’t there a NEJM study that found that the US medical malpractice lawsuit system was expensive and resulted in about a quarter of victims of medical errors in such cases not being compensated, while a quarter of physicians in such cases who did not make medical errors still had to pay judgements? I.e. it has only a three out of four chance of “getting it right” in either direction, contributing to the “lottery” perception.

    • http://www.kevinmd.com Kevin

      This is the study you’re referring to:
      http://content.nejm.org/cgi/content/short/354/19/2024

      Kevin

    • Matt

      That study is often cited by “reformers”. Yet very little of their “reforms” seek to address the flaws in the process that it finds.

  • Matt

    “I.e. it has only a three out of four chance of “getting it right” in either direction, contributing to the “lottery” perception.”

    Do you know what the lottery odds are? And really, does anyone with a large malpractice judgment constitute a “winner”. I’d like to win the lottery, but I sure wouldn’t want the kind of injury you have to have to get a multimillion dollar malpractice judgment.

    But really, what makes you guys think your liability carriers WANT it to move any faster, or be any cheaper? They want to limit their liability, but they’ve not shown any interest in streamlining the process to make it easier for the victims of malpractice (most of whom never pursue a case) or to pay the legit cases quicker. Their proposals (which physicians support), are only about one thing – paying fewer people less.

    But you will likely see the end of malpractice claims with universal care. But you will also get a cut in pay and some bureaucratic review process you’re going to dislike as much as any trial.

  • rezmed09

    “In Europe … doctors accept limited salaries in exchange for limited liability”

    Europe is a big place with lots of different models for payment of docs. This was not some simple negotiation by docs in Europe. Litigation is a large part of American society. I don’t recall seeing phone books in Europe, filled with ads for attorneys for suits. There is no deal to be made in this country; tort is an industry that will not negotiated away. Any drop in physician salary, which is high for some, will not change the anger of patients, feeding frenzy of attorneys or the American approach to seeking vengeance.

    • Matt

      This is somewhat true. European countries don’t have many of the individual rights we have enshrined in our Constitution, like the right to a trial by jury. Are they better for limiting individual rights? I guess that’s debatable.

  • ResidentinTraining

    As much as I care about lowering medical school costs so that I can take a lower salary, that seems a little ridiculous considering that I am ALREADY OUT OF MED SCHOOL.

    Also, I think physicians need to stop worrying about med mal so much. You do realize that the only thing currently protecting our jobs right now is that patients can actually strike back if you injure them. Now think about NPs and PAs that could flood the market with independent practice if you are not allowed to seek any fair compensation for an injury. You are thinking in terms of doctors mistakenly hurting people, but you need to think about NPs hurting people as they try to get up to speed. That is part of the deal too. We will give you less salary and take away malpractice (sort of), but this will make you equal to PAs and NPs and eventually they will cause you to take EVEN LESS pay. And make no mistake, it won’t be Derms and Neurosurgeons making half as much, it will be just about everyone. Dermatologists are able to go cash better than anyone else and Neurosurgeons are needed in hospitals to get the right designations. No, it will be the anes, ortho, rads, ents, neuros, pulm, cards, GIs, Heme/Onc. It will be everyone except rheums, endo, peds, fp, and general int med (not hospitalists).

    If a deal like this would go through (which it won’t), I would leave medicine. I have many talents and I can do whatever I want to especially considering my wife has a great job.

    • KP Internist

      Go ahead and plan to leave and do something else. Things will change. I had a talk with a friend this weekend who manages a small manufacturing company and he is dropping health coverage this year. What will fill the void that is left when employers have all dropped medical coverage? Well, something that will pay doctors less. If money is what is driving your career choice, then it is time to consider something else.

      • V

        I’m kind of hoping it’ll be an insurance-less system. A place where patients pay in cash. Hospitals that don’t accept Medicare/Medicaid, and thus not bound by EMTALA, that can turn away non-paying patients so that people who pay cash don’t get screwed into having to subsidize so much free care.

        We can dream, can’t we?

  • ResidentInTraining

    In the future, physicians will all be like kp: spending more time on kevinmd then practicing medicicine. I’m post call what’s ur excuse?

  • an MD who happens to like reading about economics

    This is not exactly on topic, but I just saw this today and thought it was interesting:
    http://www.ft.com/cms/s/2/fa60a42c-6eb1-11df-ad16-00144feabdc0.html
    I doubt us Americans would put up with waiting lists and delays such as those that occur in the UK.
    By the way, Tim Harford suggested a novel and interesting way to look at health insurance in his book “The Undercover Economist”.

  • paul

    i’m pretty sure since they can get away with paying us less whilst doing nothing about med mal… that’s exactly what they’re going to do.

  • Residentintraining

    Clock in. Clock out. No need to go the extra mile. Spoken like a true employee. There you have it folks: the future of medicine!

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

    Why should I have to surrender income to gain relief from an unfair medical liability system? This is absurd. Perhaps, our incomes should be increase to compensate us for the time, money and ‘pain and suffering’ that the current system imposes upon us.

  • jill

    “Doctors are now finding themselves marginalized financially in much the same way as the kindergarten teacher, the social worker at the battered women’s shelter.”

    I’m willing to bet that kindergarten teachers and social workers everywhere would disagree with this statement. Even primary care physicians make at least 4 times what social workers make. This is a spurious comparison.

  • ENT

    as a practicing ENT with little debt and in practice for about 7 years now, I can say that most people I graduated with did not go in it for the money. Those who did are doing lifestyle face lifts and blepharoplasties. However, as someone with a wife and two children to support, plan their education, plan my retirement, etc, and as someone who has frequented the message boards at Sermo.com, it is foolish to try to characterize doctors like residentinTraining as looking for the “gravy train.” It seems that everyone else in the medical delivery system – hospital administrators, insurance companies, equipment vendors, drug vendors – are protecting their interests quite well. Doctors, who are the point-men (and women) in that delivery seem to get the shaft often and easily. If we were only interested in money, we would have gone to business school. But just because we’re doctors, doesn’t mean we can’t be interested at all in being fairly compensated for our crucial role in health care. And we shouldn’t have to accept the complete lack of respect that seems to dominate the current climate. We’re more and more being treated as if we’re expendable.

    My brother always told me – you get what you pay for. As we pay less and less for qualified, intelligent doctors, we won’t get them anymore.

    Also, doctor’s fees tend to be the smallest contribution to a medical bill. As a surgeon, my fee is always about 20% or less of the total cost to the pt. Hospital staff, equipment, supplies. It seems like everyone forgets that if I weren’t there, none of it would be happening.

  • KP Internist

    If you get your work done, does it really matter how you spend your free time? Wish you luck, with your training. But, the gravy train has left and it ain’t coming back.

  • Matt

    “Why should I have to surrender income to gain relief from an unfair medical liability system? ”

    Because you’re trying to take away rights injured people have. Rights guaranteed by the Constitution. You don’t get something for nothing, doc.

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

    Sorry, Matt. No free pass for you here. I am not trying to abrogate anyone’s rights. I favor a system where 100% those who have been victims of true negligence, can be fairly compensated. I want to protect the rights of innocent physicians from being ensnared into the unfair medical liability arena. I know, Matt, that we will not agree, and I accept that. You favor the current system that targets mostly innocent physicians initially, and then releases them at various states of the process, hoping that the guilty will be left over. I think this is unfair.

  • Matt

    “I am not trying to abrogate anyone’s rights.”

    Sure you are. Have you not read the text of the reform you support? Actions speak louder than words, Dr. Kirsch. You can’t support something that does exactly that and then pretend otherwise.

    However, your words about what you do support make little sense, except if we live in Tom Cruise’s Minority Report movie. You want cases only to be filed against those clearly at fault. You find it offensive that a plaintiff might not know all the facts initially, and have to engage in a discovery process to determine the responsible party. The ability to discern all the facts and reach a conclusion without the evidence and interviewing the witnesses remains only in Steven Spielberg’s mind and that of a select few physicians like Dr. Frist.

    Your version of “fair” consists of a system not humanly possible. Yet you deem everyone else to be unfair for believing it’s a good idea to have a process where we can gather information, examine witnesses under oath, and then have people reach a conclusion based on that information.

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

    Matt, I do not agree with you. I know for a fact that many physicians are sued whose involvement in a case was such that an expeditious review of records would ascertain that they should not be a party to the suit. You can argue that such determination is not possible without full discovery with interrogotories, depositions, etc., but this is not so. I am sure we have both heard brief presentations of cases from colleagues that lead to an obvious conclusion that someone is being wrongly sued. I know I have.

    • Matt

      I’m sure there are some in which that’s the case. Of course, there are also records that are falsified, and records that barely tell anything of what happened.

      However, even if what you are claiming was the case in EVERY lawsuit, I fail to see how any of the legislative proposals put forth by physicians address that issue. It seems as if this is your primary complaint, but your primary solution, damage caps, has nothing to do with that. Nor does that make the whole dispute resolution process “unfair”.

      Why the red herring?

  • fortitude

    kevin i like your blog, but why the hell are you asking for physicians to make LESS money, that is idiotic, as it stands 57-70 dollars for a 99214 is low enough, we make difficult decisions, we should be compensated appropriately, you do realize we go through intense medical school and residency training. What is with these physicians who feel its wrong to make money why not make an excellent living for doing good work. You have highway patrolmen in long island who make over 100,000, you have plumbers who make over 500,000. Seriously you people need to get off your high horse, this the real world, you should be paid for the work that you do.

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