Those who follow me on Twitter have seen these references. Here is the rest of my story.

One argument for health care reform involves comparing our health care provision (I will try to avoid the word system, because we do not have one) with that provided in other countries.  These analyses point to the waste in US healthcare and opine that we should emulate other countries.  We certainly should study the strengths and weaknesses of other countries.  A medical economics article and a WSJ editorial strongly suggest that we should also look at malpractice in these “best practices” countries.

Malpractice: Do other countries hold the key? and How Other Countries Judge Malpractice

Litigation in the U.S. has at least four distinctive procedural features that drive up malpractice costs. The first is jury trials, which can veer out of control and in any case introduce significant uncertainty. The second is the contingency-fee system, which allows well-heeled lawyers to self-finance litigation. The third is the rule that makes each side bear its own costs. This induces riskier lawsuits than are undertaken in most other countries, such as Canada, England and most of Europe, where the loser pays the legal costs of the winner. The fourth is extensive pretrial discovery outside the direct supervision of judges, which occurs far more readily here than elsewhere.

Even these features aren’t the whole story. American judges frequently let juries decide whether honest mistakes are negligent. Judges in other nations are less likely to do so. American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury. European judges usually will not.

American plaintiffs are sometimes spared the heavy burden of identifying particular acts of negligence, or of showing the precise causal connection between a negligent act and an actual injury. Lastly, damage awards for lost income and medical expenses in the U.S. tend to dwarf awards made elsewhere — in part because governments elsewhere provide this medical care from their nationalized systems. In sum, the medical malpractice system provides incentives for plaintiffs that really do matter. Americans, for example, file claims about 3.5 times more often than Canadians.

I have not blogged explicitly about malpractice in the recent past, but I have many times during the past 7 years. I expect the usual harangues from trial lawyers, but they should first read this hilarious satire – Obama Plan Calls for Making the Health Care System More Efficient by Having Trial Lawyers Provide Medical Services More Directly. But then, I am giving these critics credit for a sense of humor.

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?

via KevinMD and White Coat Notes – MMS First-of-its-kind Survey of Physicians Shows Extent and Cost of the Practice of Defensive Medicine and its Multiple Effects of Health Care on the State

“This survey clearly shows that the fear of medical liability is a serious burden on health care,” said Dr. Sethi. “The fear of being sued is driving physicians to defensive medicine and dramatically increasing health care costs. This poses a critical issue, as soaring costs are the biggest threat to the success of Massachusetts health reform efforts.”

7 tests and procedures Physicians were asked about their use of seven tests and procedures: plain film X-rays, CT Scans, Magnetic Resonance Imaging (MRIs), ultrasounds, laboratory testing, specialty referrals and consultations, and hospital admissions. The results were self-reported by the physicians responding to the survey.

The results showed that 83 percent of the physicians surveyed reported practicing defensive medicine and that an average of 18 to 28 percent of tests, procedures, referrals and consultations and 13 percent of hospitalizations were ordered for defensive reasons.

Cost is in Billions Sethi and Aseltine estimated the costs of the tests to be $281 million for the eight specialties surveyed, based on Medicare reimbursements rates in Massachusetts for 2005-2006. In addition, the cost of unnecessary hospital admissions was estimated to be $1.1 billion, for a combined total estimate of nearly $1.4 billion. The authors said the dollar estimates do not include tests and diagnostic procedures ordered by physicians in other specialties, observation admissions to hospitals, specialty referrals and consultations, or unnecessary prescriptions. The eight specialties represented in the survey account for only 46 percent of the physicians in the state.

Now I break for a public service announcement.  Check this rant for outrage from malpractice lawyers.

Malpractice reform can slowly change this problem.  We, physicians, would have to change our mindset about test ordering.  Fear of malpractice has a costly negative effect on health care.  We could practice better medicine if we had a healthier legal climate.

As long time readers of this blog know, I favor special health courts which protect patients and physicians. 

As we prepare to attack health care reform, I hope that the administration will include malpractice reform.  Malpractice reform is the single best way to decrease health care costs without decreasing necessary services.  In fact, malpractice reform will improve health care access.

Standard of Care Remains a Moving Target in Medical Malpractice Cases

Courts in 21 states adhere to a local or community standard of care in medical malpractice cases, slowing implementation of evidence-based, resource-based, nationwide standards.

So said Michelle Huckaby Lewis, M.D., J.D., of Johns Hopkins and Georgetown University, and colleagues in a commentary in the June 20 issue of the Journal of the American Medical Association.

The locality rule was a 19th century concept intended to protect rural physicians from being held to the same standards as physicians working in urban areas or at academic institutions, the authors said.

But, they note, modern communication has removed barriers to standardization — no place is more than a phone call or a mouse click away from the latest evidence-based findings.

As a result, a rule originally intended as a protection now “imposes additional duties and legal risk on physicians. Not only must they remain aware of advances in their own specialty, physicians must also be aware of the standard of care in their locality, whether or not that standard is considered substandard at the national level,” the authors wrote.

For example they point out that Virginia, which is one of the states that follows the locality rule, has a “statutory presumption that each physician knows the standard of care in the state, although it is unclear how a physician may be expected to obtain this knowledge.”

Moreover, physicians who practice in more than one state could be required to heed two or more different standards of care.

Dr. Lewis and colleagues contend that the locality rule is also ethically suspect. In the communities that use it, “basic principles of justice may not be met for patients who have been harmed as the result of suboptimal local care standards,” they wrote.

Should we have different standards for medicine according to state, or worse locality?

Our current malpractice system is not well considered, because it is not a system. Rather it represents inconsistent arrangements judged by juries who are peers of the complaining party, but not of the medical professional.

Our system lacks logic. As my previous posts imply, trying to argue logic here will not work. Trial lawyers eschew logic for sophistry.

I would love to see a national standard for judging malpractice. Of course I would love to see a national system of health courts. I would love to see consistency. But then I am a dreamer.

The RWJ has a new blog which featured a series on health courts yesterday. The first entry gives the links to the remaining ones – Reforming Medical Justice

I have written about this issue many times. As I continue to consider this issue, I am struck by the ethics of our current system. A rational, impartial health court would improve protection to patients, physicians and the public. Let me explain.

Patients with “low yield” complaints have great difficulty making a formal complaint. Most malpractice lawyers only consider cases with the potential of a large pay day. Health courts would allow for lower pay day cases to be heard.

Physician would benefit by having an known set of standards. Health court decisions would be widely publicized, and influence practice. We assume that the decisions would have a consistent theme, and thus influence practice standards.

The public would benefit because health courts would set a standard for “flagging” repeat offenders. This system would make it easier to keep a registry of physicians found negligent. Repeat offenders would trigger a more complete investigation. This would greatly help State Medical Boards, giving them better data.

Now I sit back and wait for the predictable comments from my lawyer friends.

This is my 14th year in Birmingham. I love living here for many reasons including: the people (very nice), the climate (great for golf), the size (easy commute) and my job (great medical school). This morning I am scanning the NY Times for medical articles, and instead I find this ode to my city. If you have never been here, Birmingham would likely surprise you. Of the restaurants, I find Highland’s Bar and Grill the best. Of the restaurants not mentioned I favor a small restaurant called Fire (the chef trained at Commander’s Palace in New Orleans).

Birmingham Has a Lot on Its Plates These Days

With little fanfare outside the world of devoted gourmets, white-tablecloth establishments that rival New York’s or California’s have bloomed like azaleas all over Birmingham. The menus, many of which change daily, are loaded with regional specialties like Cullman new potatoes, Chilton peaches and Apalachicola oysters. Building their reputation little by little, by now Birmingham’s chefs have won praise from Gourmet, Bon Appétit, Esquire and the James Beard Foundation. And, who wouldn’t want to try a place called the Hot and Hot Fish Club?

Birmingham, founded on the wrinkled topography of central Alabama because of its iron, coal and limestone deposits, has rarely come to mind as a tourist destination, More than three decades ago, it lost the competition with Atlanta to become the capital of the New South, and the downtown streets can have an empty, Hopperesque feel even on weekdays. What’s more, the city may always be known for the uglier chapters of its history, when it was nicknamed “Bombingham” and the world saw images of snarling dogs and civil rights protests.

There is more to Birmingham, however. The Civil Rights Institute, worth a solid afternoon, exhibits rare footage of events like the Freedom Rides. In January, the Museum of Art will open an annex dedicated to Alabama folk artists. City Stages, a music festival, draws big crowds, and the Sidewalk Moving Picture Festival has quickly ascended the film festival ranks. And tucked amid the hills (mountains, the natives call them) of the South Side, there is a whimsical fountain in which a ram in shirtsleeves reads to an audience of attentive critters, presiding over Five Points South, the nucleus of the culinary revolution.

Ya’ll come back now.

Another jury gets duped

So KevinMD posts about a settlement in a cerebral palsy case, because the obstetrician did not do a C-section. The first comment comes from our old pal – CJD – who as usual resorts to sophistry and avoids data.

Malpractice lawyers are felt to be a major factor in the increase in C-sections in this country. But C-sections also have risks – High infant mortality seen with elective C-section

Rates of Caesarean deliveries have risen steadily in the United States, from 14.6 percent of all first-time births in 1996, to 20.6 percent in 2004, MacDorman’s group notes in the September issue of Birth.

Since the United States began gathering data on C-sections in 1989, MacDorman and her team note, a greater risk of death has been seen among infants born via the procedure, but researchers have generally assumed that this was because these infants were more likely to die from other causes.

To investigate whether the C-section itself might somehow be a factor in infant deaths, the researchers looked at data from more than 5.8 million births to U.S. women between 1998 and 2001. All of the women were at “no indicated risk” for a C-section, meaning the infant was a singleton, full-term, in a head-down position, and no other medical risk factors or delivery complications were indicated on the child’s birth certificate.

MacDorman and her colleagues had previously identified a 49-percent increase in C-section rates between 1996 and 2001 among women in this “no risk” category.

The risk of death in the first 28 days of life was 1.77 per 1,000 live births among women who had C-sections, compared with 0.62 per 1,000 for women who delivered vaginally. Even after analyzing the various causes of infant death, the researchers could find no clear explanation for the difference.

So now the lawyers have the obstetricians coming and going. They can sue for doing a C-section if the infant dies, or they can sue for not doing a C-section if the infant has cerebral palsy.

Medicine requires us to balance risks and benefits. We rarely have a definitive correct answer on how to proceed. (Defense lawyers often like to assert that a reference is “authorative”, but there is no such thing in medicine). Those who sue (and most patients do not) want the world of medicine to be black and white. They assume that we can always make the decision that leads to a perfect result. But often the result is not perfect.

In the case of C-sections and cerebral palsy, do we cause more problems with C-sections or with vaginal births? Both delivery routes have advantages and disadvantages.

I wrote 3 days ago that an obstetrician told me that a “bad baby” = a lawsuit. How many babies and mothers do obstetricians save? Why should they be sued for an unfortunate result?

So (since I know CJD will be reading) I ask how many false settlements should we allow for the chance that the obstetrician erred? How do we balance the family’s angst with the future health care of others?

I do not believe our current malpractice system improves overall health care. Clearly supporters of our tort system are concerned primarily with their clients, and not with subsequent actions.

Thus, I personally find our tort system lacking from a public health perspective. We should develop an evaluation system which penalizes physicians who make serious errors, and compensates patients (or their families) who suffer from those errors. Sounds like Special Health Courts to me!

Excuse me while a put on my virtual armor, preparing for the CJD hyperbolic sophistry.

Kevin MD has a classic post – More ATLA: “Defensive medicine is a hoax”

Please read his column and (if you can handle it) the comments.

Here are my thoughts on defensive medicine. First, physicians and lawyers probably cannot have a constructive discussion on this point because we do not share a common understanding of vocabulary. Part of professional school is learning the vocabulary.

As I consider defensive medicine, what I see (and admittedly I cannot quote a study) is testing prior to a careful history and physical. Why? Because one can always defend a test result, and the history and physical are not considered as definitive. Most patients who come through an Emergency Room in 2006 have a CT scan (I am being a bit hyperbolic here, but not overly hyperbolic). Ask any radiologist, internist or family physician about the number of unnecessary CT scans in ERs and they will all tell stories.

Another example from an ongoing research study. No evidence currently exists for obtaining both an MRI and a CT of the head for routine strokes. Either will find a bleed. Yet an increasingly high percentage of stroke patients have both expensive tests.

We physicians worry more about missed diagnoses than the consequences of false positive testing. Yet I believe (again I admit that this is an opinion) that more money is spent and possible harm done from false positive tests.

Quantifying defensive medicine seems a most challenging methodologic issue. Perhaps there are studies out there – fortunately I have smart readers and hopefully someone has the right references. But I cannot believe that the ATLA would deny the phenomenon of defensive medicine. But then some lawyers would argue that my dog is really a cat. And some lawyers might convince a jury.

Regular readers know that I favor special health courts as the best method of addressing medical malpractice. Last week the Senate had hearings on this subject. Common Good features these hearings on their web page – Senate Hearing on Special Health Courts

Professor Studdert testified at the hearing. He is the author of the NEJM article which so many have misinterpreted. I have blogged previously on the article – 40% of malpractice cases are totally unwarranted and More on unwarranted malpractice suits. In his testimony Professor Studdert makes his interpretation very clear.

Pointing to his most recent study on malpractice claims published in the New England Journal of Medicine (read more about the study here), Professor Studdert said that while the current system does a reasonable job at directing compensation to the right people, compensation is only one goal. More importantly, he suggested, the current system fails in four critical areas. First, the process is too costly. More than 50 percent of the money in the system goes toward overhead expenses, a much higher rate than other compensation schemes such as workers compensation. Second, only about 3 to 5 percent of injured patients have any contact with the legal system, leaving a large “invisible population” that the current system fails to help. Third, while it is difficult to estimate the cost, there is solid evidence that defensive medicine exists. Fourth, the current system is not compatible with efforts in quality improvement. Professor Studdert suggests that health court pilot projects would be an excellent way to evaluate whether alternative compensation schemes could provide better results. Click here to access Prof. Studdert’s testimony.

I am ready for the predictable cries that special health courts are unconstitutional. First, I hope the Congress allows them, then we can have the expected Supreme Court challenge. Asserting that something is unconstitutional does not mean that it is unconstitutional. It only reflects the asserters opinion. Until the Supreme Court has a chance to hear arguments and vote on an issue, we have opinions and speculation. I suspect that both sides can make convincing arguments.

Aside from that objection (which trial lawyers will wear like the flag), I can see no reasonable argument against special health courts. More patients would receive compensation; processes for improving quality would be enhanced; and physicians would likely practice less defensive medicine. Physicians and patients deserve a predictable system. They deserve judgements based on the medical data, not the skills of the lawyers.

Kevin, MD had a great rant on this subject yesterday – David Studdert testifies for health courts

Now I prepare to read the comments.

JK left this comment. Since many readers do not go through all the comments, I have taken db’s prerogative to reprint the comment (and say a word or two myself).

CJD,

I have read your posts on a number of number of blogs, I have have to say that you just don’t get it. You keep repeating that it is not the job of the legal system to improve health care. Well, we are talking about the medical malpractice system, NOT the legal system.

This is a distinction that you miss or choose to ignore. Currently, it is mostly centered in the legal system, which is why it fails.

The the most important goals of the med-mal system should be to remove, retrain, or otherwise restrict bad medical practitioners and to identify over all problems with health care. While compensating people who have suffered from malpractice is a goal of the system, it is less important than the others. That may sound harsh, but as patient (who has had doctors make mistakes), I understand what is more important.

I would much rather see malpractice be something that is not actionable at all (somewhat, but not exactly like the workers comp system). Set up committees of doctors to review cases of possible malpractice to determine:
1.If malpractice took place.
2.If it caused injury to the patient.
3.And regardless of the answers to the first two question, what disciplinary action, retraining, practice restrictions, etc. is appropriate for the practitioner in question.

If there is a finding of malpractice that caused injury, then the practitioner could be held liable for covering the resulting medical expenses. Pain and suffering could be compensated according to standard schedule. As for economic damages, if they could not be agreed upon by the parties, then that matter could go to the courts. (Of course we might want to limit recoverable legal fees to that which are reasonable and customary…. as determined by the same people who set the fees for medicade :>) )

As far as picking the doctors who would serve on these panels, make it requirement of their license that all doctors serve on them. This would put the emphasis where it belongs: on removing or retraining bad doctors.

Besides removing a lot of emotion from malpractice cases, this would have the advantage of getting at cases that would never make it in to court because there was no money in it. And it would let us learn form cases that weren’t technically malpractice, but were the wrong way to do things.

Secondly, I have to point something out that you, and most lawyers I have spoken with, don’t seem to get. When you sue someone who (for a lack of a better word) is not guilty, you do harm to them. Let me state that again. You harm them. Yet, I never see you advocation for compensating them in any way, not even in covering their legal costs.

No lawyer I’ve ever spoken with seems to be able to admit that. That arrogance is why much of the public views lawyers they way they do.

(And before you nitpick, I know “guilty” is not the most appropriate term for a civil case. I was using it in the moral sense, not the criminal sense.)

JK

JK really understands the societal perspective. While I might quibble with a few of the details (I would not include all physicians and I would include non-physicians on the committees), but now we are discussing implementation rather than concept.

The key point here is that medical malpractice, as currently practiced, has “recovery” as the sole rationale. It does nothing to help the majority of patients who deserve a judgement. It does nothing to improve practice, and may well worsen health care.

Bravo!!

You have to give this guy his due – he named his blog correctly – Judges Who Sympathize With Doctors – Who Needs Tort Reform?

Now many readers might ask – why do I give this guy any publicity? Well I do believe in the free market of ideas. He disagrees with me, and he is honest why! Malpractice does occur; my problem is that our current system does not do a good job of sorting malpractice from bad outcome (with good practice). Major errors occur in both directions. I want to see more patients compensated an appropriate amount – and less lawyers compensated an exorbitant amount. But a greedy trial lawyer will clearly not like any plan that limits his/her income potential.