Tort reform and integrated systems in health reform

Here are my next two principles of affordable healthcare reform.

First, healthcare reform cannot occur without tort reform. Anything less is akin to a drunk leaning up against a lamppost for support but insisting it is for illumination.

It is well known that fear of malpractice suits accounts for defensive medicine; e.g., performing tests and procedures and making unnecessary referrals to assure staying out of the court room. We are all familiar with the horror stories about the astronomical costs of malpractice insurance and the ridiculous suits being brought in the name of justice. More insidiously, this situation is responsible for costs estimated to be anywhere between $60 to $200 billion. One can argue the numbers back and forth, but few do not see this as a significant area for improvement. Some believe that tort reform will change physician behavior and some believe that tort reform will do little to assuage the physician’s fear of a malpractice suit. I cannot claim to have substantive academic credentials. However, in my very own practice I can honestly say that 25 percent – 30 percent of what I ordered with respect to imaging studies and lab testing was clinically unnecessary but well within the standard of care of the community; all for the sole purpose of avoiding a possible malpractice suit.

Suppose we adopted the British system of malpractice law; if you lose you pay the court costs. In addition to limiting pain and suffering awards, why not give a judge the discretion to move all punitive awards deemed excessive to an arbitration board set up specifically for such situations? Why not give the very same judge that discretion? Limiting attorney fees through an Attorney Czar may not also be a bad idea, while we are at it.


And second, we must utilize the single payment system to harness all relevant clinical and behavioral information into a secure and safe database. If we are to have efficiency, patients must give up what they consider their privacy.

We hear much from Washington about computerizing medical records and creating information systems readily available to a treating physician or healthcare provider. There is ample evidence that such a state of affairs would significantly and positively impact the cost of healthcare delivery bending the curve down. It would permit clinical practice analysis, medical variable assessment, complication and infection rates to name a few data flow points. The resulting interpretation would be utilized to create the basis for physician, hospital and provider scoring against acceptable standards. This all sounds nice but it is nothing more than rhetoric unless such systems are integrated into a unified and real network of care giving. Such scoring would be made public and an informed consumer with skin in the game is probably the best means to control medical costs; when it comes form your pocket, you are more selective and not as quick to insist on a test deemed unnecessary. Perhaps you might take better care of yourself and not treat your body as a used car?

The results of this initiative would ultimately reduce and eliminate duplication of testing, imaging and treatment would not only be significantly reduced, but productivity and time lost would be recoverable, adding further to the savings that can come from this vital step. Patient safety would be furthered. Mistakes regarding inappropriate medications, iatrogenically induced anaphylactic shock, identification errors and, in the worst case scenario, the wrong limb or the wrong person being operated upon could be substantially reduced and/or eliminated. A 2005 RAND Report (when we were spending only $1.7T/yr. on healthcare as opposed to $2.7T now) estimated that we could save $77B or more a year from the annual savings in efficiency alone!

The health and patient safety issues that could be addressed by such implementation could double the savings, while at the same time reduce illness and prolong life. The same report estimated that the cost of implementing such a project would run to $8B/year over 15 years assuming a 90 percent adoption rate by physician and hospital. Sadly only 17 percent of physician offices currently utilize electronic medical records (EMRs) and only 31 percent of hospital ERS and 29 percent of hospital outpatient departments currently embrace the benefits of this principle.

Mitchell Brooks is an orthopedic surgeon and the host of Health of the Nation on Talk Radio 570 KLIF in Dallas, Texas.  He blogs at Health of the Nation.

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  • Craig Koniver

    I disagree with you about needing a unified payment system in order to truly harness the power of reform in health care. There are way too many unwanted outcomes from this gigantic step such as who controls the data, who controls the costs, who controls everything for that matter. We do not need to look further than both the VA system and Medicare to simply see how one unified system of “management” does not work as well as “planned”.

    Far better to engage the free market and move towards more alternative models of care such as direct-pay-primary-care. While this is only the beginning of this movement, the practices that are embracing this approach are not only cutting costs, but improving outcomes. There is no middle-man here–just the doctor working with and for the patient. Just as medicine and health care is supposed to be, but gets lost through the administrative nightmares of both health insurance and government oversight.

  • Andrew_M_Garland

    Deadly results in UK healthcare
    10/15/11 – Daniel J Mitchell

    The United Kingdom has one of the most statist healthcare systems in the world. Indeed, my Cato colleague Mike Tanner produced an excellent study showing that the U.K. system is  more rigid and centralized than what is found even in nations such as Germany and France.

    This has generated terrible results for the British people.

    Wasting Lives: A statistical analysis of British NHS performance – YouTube 2:08

    UK anounces more healthcare rationing
    UK saves money with unofficial death panel
    UK hospitals intentionally delay treatment
    UK mistreats the elderly
    Deaths from malnutrition under hospital care
    More spending, Longer waiting, Fewer treated
    Deaths from poor hospital care
    Shortages of equipment and beds

  • Anonymous

    I don’t understand how tort reform would improve patient safety, specifically the

    “mistakes regarding inappropriate medications, iatrogenically induced anaphylactic shock, identification errors and, in the worst case scenario, the wrong limb or the wrong person being operated upon.”

    What would change to help the caregiver be more careful?

  • JennniferNelson

    When we’re talking health care reform, money aside, the patient and the provider need to be on the same page. Providers are responsible for finding out the most valuable way to treat a patient, but they can’t do it without the patient taking control of his own health. Patient accountability is not possible without the patient and the provider equally contributing to the success of their health. Plus, that way if something does go wrong, there is much less of a chance that the patient will sue for malpractice. When patients have a better understanding of what is going on with their health, both themselves and the healthcare provider will be able to decide what is best for them in an agreeable manner. This could easily cut back on court appearances and hopefully, eliminate the need for tort reform.

    But, equal accountability is also a factor in order to have a network of systems that will positively enable a patient to a full health recovery. Without the right tools, the health systems, providers, and patients will not have a fair shot at equally contributing to the success of their health.

    In an article I read from Dr. Miles Snowden, he outlines three great tools. But the over-arching idea is that, to be completely healthy, patients must participate in their health. They cannot sit on the sideline while they let others decide their fate. As long as a patient knows what is going on every step of the way, both the patient and the provider can eliminate unnecessary, wasteful, and costly steps.

    PS – here is the article I referenced from Dr. Snowden with the tools for success:–accountability-for-better-outcomes/ 

  • Anonymous

    It is my contention that tort reform can not save the patient because he was subjected to the exercise of defensive medicine (i.e. unnecessary tests and treatments).  Any reform of the tort law has to rely on an ethical relationship between the patient and the physician.  The tort law can not instill ethics to the physician.  If the perception of exercising the art of medicine does not comply with the perception of a patient as an individual instead of a disease, using the patient as a collection of body fluids or slices of human flesh that simply reflect the inability of the physician to reach a diagnosis.  The response of the patient is simply to transfer the power he entrusted to the physician to an attorney that will get paid for the services he provides to the patient.  The hostility between attorneys who deal with medical malpractice suits and attorneys who work on case by case reasoning is due to the inability of physicians to accept that there are financial consequences for practicing unethical medicine.  Let’s not forget, but revisit the birth of the cases and the dynamic triangle that was formed between law, medicine and ethics.

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