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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