One more thought on rationing


Category : Medical Rants

We have a responsibility as physicians to not order unnecessary tests. Too often we order unnecessary tests and too often the implicit threat of malpractice lawsuits clouds our judgment.

I see unnecessary tests done one a regular basis. We could avoid these tests with careful thought and a belief in tincture of time.

Almost all physicians would agree that other physicians would order less tests without our unique malpractice system (of course each physician knows that he or she is not so influenced.)

So for those who have not read this entry I present – Commentaries on malpractice.

Our malpractice environment likely has a major influence on costs. Trial lawyers will deny it, but ask almost any physician if they believe that expensive tests are done to protect against malpractice. Defensive Medicine at Work We all know it.

How do we really decrease health care costs? We must use technology more intelligently. We should not order tests just because we can – or worse yet – just to be sure.

I do blame our tort laws, which are clearly out of sync with our peer countries, for our over testing, especially in the ER. Unnecessary testing has both direct and indirect costs.

So I will state again that malpractice reform could save numerous health care dollars. I also believe that the Democrats (who seem to love the trial lawyers) will not include substantial reform in their bills. Do they want to improve health care and decrease costs or win political points?

Comments (10)

If you believe malpractice reform could save lots of money, show us the savings. Many states have had the “reform” physicians keep proposing for decades. California since the 70s. So how much cheaper is healthcare in California than the rest of the US? How much less “defensive medicine” is there. Physicians have been making this claim for years, and one of our nation’s biggest states has been utilizing the suggested “reform” for a long time. Surely someone has done a broad based comprehensive study to confirm this.

You’re a scientist with a hypothesis, there should be plenty of evidence to test it, which you’ve presumably done before reaching that conclusion.

Likewise with our “out of sync”ness with the rest of the world. How much cheaper is healthcare in the rest of the world, and how much of those savings, if any, would you attribute solely to differing malpractice systems as opposed to rationing, single payer, benefiting from US innovation, etc? Again, you’re a scientist with a hypothesis, and there is lots of evidence out there which you can use to test it.

If you haven’t got the evidence to back these claims after all these years, why do you believe it so fervently?

[…] One more thought on rationing…   DB’s Medical Rants […]

Matt, the problem with malpractice reforms implemented to date is that, whatever benefits the medical professions believe might result, they’ve worked primarily to the benefit of insurance companies. A few years back the New England Journal of Medicine took a look at the state of malpractice litigation, and found that most malpractice litigation arises from cases where there actually is malpractice, and much of the rest results from the structure of the system – that patients and lawyers must often file suit and engage in discovery in order to find out if a case is meritorious, because there’s no other way to get that information.

The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers. Previous research has described tort litigation as a process in which information is cumulatively acquired.

Malpractice reforms to date have not focused on what that study deemed likely to produce improvement for doctors – “A higher-value target for reform than discouraging claims that do not belong in the system would be streamlining the processing of claims that do belong” – they’ve been about increasing the cost and burden of litigation on plaintiffs and their lawyers, and increasing the predictability of damages pay-outs by insurance companies. As insurance companies care primarily about their bottom line, they’re perfectly content to implement “reforms” that are unrelated to the merit of claims – they advocate damages caps that affect the most severely injured victims of the most outrageous malpractice, or driving up the cost of litigation such that “minor”, but entirely meritorious malpractice claims (those likely to return less than $60K-$100K) are not economically viable.

What I would like explained is how U.S. tort laws “are clearly out of sync with our peer countries”. They, of course, are not. They’re quite consistent with the laws of other common law nations, save perhaps for the caps on recovery. The primary difference appears to be what you allude to – that in other nations a patient’s economic damages are largely absorbed by a national healthcare plan, and thus don’t factor into compensation. Insurance companies have been very successful in capping non-economic (“pain and suffering”) damages, but legislatures have been less eager to embrace any notion that caps should be implemented that leave malpractice victims unable to pay for their future medical needs. As the NEJM study points out,

Although the number of claims without merit that resulted in compensation was fairly small, the converse form of inaccuracy — claims associated with error and injury that did not result in compensation — was substantially more common. One in six claims involved errors and received no payment. The plaintiffs behind such unrequited claims must shoulder the substantial economic and noneconomic burdens that flow from preventable injury.33,34 Moreover, failure to pay claims involving error adds to a larger phenomenon of underpayment generated by the vast number of negligent injuries that never surface as claims.

That’s a huge concern, of course, to people who are concerned with achieving justice for people injured through culpable medical negligence. And it should be kept in mind, when we talk about the costs of malpractice, that a fair, efficient, accurate system would be at least as costly as the current system, and quite possibly more costly if it results in increased numbers of claims by people who, although injured by medical negligence, choose not to make claims under the current system – they are, after all, the majority of malpractice victims.

I smell the smell of plaintiff attorney in the posts of Matt and Aaron.
I have had 20 years of experience as an expert witness in medical malpractice cases reviewing approximately 100 cases during this time. I have been deposed about 20 to 30 times and have appeared as a witness in court 6 times. I have also read many articles related to malpractice in the New England Journal and in other sources.
Here are the facts as I know them:
• The majority of patients injured by poor medical care do not sue – and hence receive no compensation.
• The majority of malpractice cases that go to trial are won by the defendants – not by plaintiffs.
• The costs of our system of malpractice are exorbitant, consuming the majority of premium dollars before anything is paid to an injured patient. (this does not even account for the cost of “defensive medicine” which is estimated to be as much as 10% of health care costs)
• For the most part, the difference between a doctor who has been sued for malpractice and one who hasn’t is luck.
In summary, we have a system that benefits only two parties; plaintiff and defense lawyers.

Medical malpractice should be replaced with a system that functions more like workman’s compensation. What would such as system look like?
• The majority of patients injured would receive compensation.
• Meritless claims would be screened out.
• It would return a high percent of premium dollars to injured parties.
• It would incorporate or be in addition to a system that evaluates physician skill and behavior.

Because of the very large contributions made to the Democratic party by lawyers (2nd behind the financial industry during the 2008 campaign cycle) do not expect any reforms for the next 4 years.

Here is the real deal. You cant legislate against medical mistakes. Three % of med mal actually turns into a claim, and that small number of claims has crippled the system. After the mistake – what do we do? We enter a rube Goldberg machine that prides itself on injustice, inefficiency and expense. My career has been medmal since 1985.
Sixty five % of all moneies spent on a case does not go to the injured party- surprised? defense attorneys, plaintiffs attorneys, contingency fees, court reporters etc, survive nicely on the current system. Like most hypocricy, those that scream the loudest are the ones you should watch.
Here is how we fix it: Change the forum to binding arbitration. The Doc gets a jury of his peers, the hollywood factor that amps up verdicts goes away, the injured party gets the money quickly, premiums come down, defensive medicine plummets, policies become affordable, the cost of healthcare drops, the courts get declogged, while the attorneys still make a nice living. I could go on !!
Caps and sliding scales just shuffle the same deck of cards. There is too much money to be made by the noninjured. Start over and stop blaming the trees for the forest fire. Meritorious claims should be compensated ,but I have settled too many claims where everybody makes alot of money other than the injured party. Eradication of med mal is a pipe dream. We can trim it some but the question is about a better way for taking care of the injured without financially crippling the system. – Jim OHare AIC AIS VP med mal claims PIC

I smell the stench of a doctor and insurer in the above two posts (see, it sounds just as silly when I do it; stick to the merits).

First, with respect to physicians getting a jury of other physicians, that’s ridiculous. Physicians shouldn’t be favored over anyone else. When physicians sue health insurers, should the health insurers get a jury of health insurance adjusters? Of course not. Besides, even now physicians don’t do that great a job of policing themselves:

As for the rest of the statements, the costs argument is a good one. But tell me, how do you reduce the costs? The short answer is you don’t, you just shift them to the taxpayer rather than the parties. Insurers will still have overhead, adjusters, lawyers to present their cases, etc. The injured party will too. You’ll still have court reporters, judges, and now you’ll have innumerable experts paid for by the state, rather than the parties. Same with arbitration. So that argument doesn’t hold much water.

As for the workers comp comparison, that’s fine, but understand that workers comp is no-fault. You get injured on the job, you get paid, no matter what the cause was (for the most part). Are physicians and insurers really advocating for this? You have an adverse result in a hospital, you get damages, regardless of the cause? Again, where are the cost savings?

“In summary, we have a system that benefits only two parties; plaintiff and defense lawyers.”

You forgot two other parties. The plaintiffs who do settle or win their claim, and the insurers.

“Because of the very large contributions made to the Democratic party by lawyers (2nd behind the financial industry during the 2008 campaign cycle) do not expect any reforms for the next 4 years.”

Physicians want to talk about how the lawyers are holding up “reform” and they wax poetic about what a tragedy it is more injured people don’t get paid, and the costs of a case, and the length of time it takes. But where are their legislative proposals for anything other than arbitrary caps set by lobbyists? Please, tell me where I can find a physician proposal to pay more people faster. Or an insurer proposal to do that. It seems that all there is right now are crocodile tears.


“I smell the stench of a doctor” – you are correct and I think I identified myself as such by reference to my work as an expert witness. So I guess that I am also correct that you are an attorney?

““In summary, we have a system that benefits only two parties; plaintiff and defense lawyers.” You forgot two other parties. The plaintiffs who do settle or win their claim and the insurers.”

Actually, you are right, I did forget about the insurers. As for whether plaintiffs can be considered winners that is doubtful. And remember that plaintiffs that settle or win their case are a small minority of people injured and get a small percentage of the money paid into the system – the rest is raked off by the lawyers.

I think there should be a true reform proposal put forth by physicians, one that addresses all the issues. Considering the amount of money taken by the Democratic Party from trial lawyers and the percent of Federal and State Legislators that are lawyers, the chances of it passing in the next four years are nil.

There is zero credible evidence for the impact of “defense medicine” on healthcare costs. A 2004 GAO study — under a Republican President and Republican Congress — tried valiantly and failed to find a major impact. It found no impact at all in several states, and a minor, debatable impact in other states.

As I’ve argued before at WhiteCoat Rants, the concept of “defensive medicine” is absurd, since it requires believing that a doctor can rationally worry about their own liability even where they do not actually worry about the patient’s health. Such is ridiculous: if a doctor is worried about their liability, it’s because they’re worried about a bad outcome, and so they should be running the test.

Any uncertainty in the standard of care is the faulty of health insurance companies, hospital companies, and physician lobbying groups, all of whom have fiercely resisted independent empirical review of the actual effectiveness of the tests and treatment they used. It’s appalling that the Comparative Effectiveness Research grant didn’t come through until this year due entirely to the groups which cry the most about uncertainty.

“And remember that plaintiffs that settle or win their case are a small minority of people injured and get a small percentage of the money paid into the system – the rest is raked off by the lawyers.”

Actually the rest is “raked off” by all the things that would still exist in any system. People to present the cases from both sides (lawyers), administrative costs of insurers, and costs of courts (which exist anyway, so I’m not sure why that’s counted).

And I agree that a legitimate criticism is that most malpractice is not compensated. But every “tort reform” bill I’ve ever seen has nothing to do with compensating more people and in a more timely manner. Maybe physicians should put forth such a bill, but I doubt we’ll see them do it in my lifetime. Legislators being lawyers doesn’t mean much, since virtually none of them ever made a living representing individual plaintiffs in personal injury suits.

If I were a physician this issue would be about 11th on my list of worries. One through nine would be reforming my payment model and fighting universal healthcare, which are really one issue.

Sounds crazy. i want to share this to my friends regarding this post.

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