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Which doctors practice defensive medicine? Only those who are still breathing. The president, however, wasn’t convinced of this reality when he spoke to the nation on September 9th at a joint session of Congress.

"I don’t believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs."

May be contributing? Mr. President, if I 'may', in the gray and nebulous world of medicine, one truth is certain; defensive medicine cost billions of health care dollars every year. Physicians hold this truth to be self evident.

One month after the president’s speech, the non-partisan Congressional Budget Office (CBO) issued a report that reversed it’s own prior conclusions on the value of tort reform. It now states that tort reform could reduce "the use of diagnostic tests and other health care services when providers recommend those services principally to reduce their potential exposure to lawsuits." The report also notes evidence that lower medical malpractice costs results in lower Medicare health care medical services. Shocking conclusions.

I wonder how many tax dollars were spent on these studies whose conclusions were already known in the guts of every practicing physician in the country. Aren’t we supposed to conduct studies when we are uncertain of the outcome? What’s next? A study to determine if the elderly will outlive their children?

CBO extimates that tort reform would reduce health care costs by 0.5% annually (0.2% from lower medical malpractice premiums and 0.3% in less defensive medicine expenses), saving $11 billion in 2009. In fairness to these low estimates, the report points out that some of savings have already occurred from state tort reform programs. Over the next decade, CBO estimates that tort reform would result in $54 billion in savings.

CBO included typical tort reform features in its analysis. Among them is the fair-share rule, which would replace joint-and-several liability. ‘Fair-share’ means that a defendant would only be responsible for damages in proportion to his liability. In other words, if a physician or a hospital was 2% responsible for the injury, then they would not be at risk for all of the damages. Wow, what a progressive concept! Imagine being responsible only for your share of the injury. Still think we don’t need tort reform?

Trial attorneys argue that CBO extimates of cost savings from tort reform are inaccurate. I agree, but unlike these supporters of the status quo, I think the CBO has underestimated the savings that tort reform would deliver.  

While I am not an economist, I suspect that CBO estimates are far too low. How can you quantify the costs of defensive medicine? While it is easy to define defensive medicine in a blog post, it’s a murky issue in the real world. When physicians defensively order specialty consultations, CAT scans, emergency room visits after hours, we always provide medical justification. You can study every medical chart in the country, and you will never the following notation: MRI ordered for defensive purposes. Since the bulk of defensive testing is deeply camouflaged, how can we estimate its cost?

I don’t even think that we physicians always know if our tests are defensive as there is often a combination of medical necessity and litigation fear present.

Estimates of defensive medical costs are further hampered because they are not one time expenses. As every physician knows, an unnecessary CAT scan lights the fuse for a medical cascade when the initial scan shows trivial and irrelevant ‘abnormalities’ that lead to more scans and specialty consultations.

I wonder what the next CBO report will show? While their current estimates of the costs of defensive medicine are low, at least they’ve admitted their existence and significance. Will the president now issue a more definitive statement on this issue to clarify his limp remark in his September health care speech? If the president pushed for fair tort reform, he would earn a durable peace with the medical community. Imagine, two peace prizes in one year.

Originally posted to MKirschMD on Sun Dec 06, 2009 at 03:09 PM PST.

Poll

Are physicians justified to practice defensively to minimize the risk of a lawsuit?

37%33 votes
31%27 votes
31%27 votes

| 87 votes | Vote | Results

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Comment Preferences

  •  Dems Are Irresponsible Not to Include (9+ / 0-)

    SOME cap on malpractice.  While the ability to sue in the case of real wrongdoing is a critical protection, the current open-ended 'system' leads to billions in unnecessary costs.  

    Time for a cap, folks!  Trial Lawyers perform a needed function, but don't need to be left totally in the open.

    •  Here (23+ / 0-)

      read about it:

      http://prescriptions.blogs.nytimes.c...

      But critics of the current system say that 10 to 15 percent of medical costs are due to medical malpractice.
      A.

      That’s wildly exaggerated. According to the actuarial consulting firm Towers Perrin, medical malpractice tort costs were $30.4 billion in 2007, the last year for which data are available. We have a more than a $2 trillion health care system. That puts litigation costs and malpractice insurance at 1 to 1.5 percent of total medical costs. That’s a rounding error. Liability isn’t even the tail on the cost dog. It’s the hair on the end of the tail.

      "If I pay a man enough money to buy my car, he'll buy my car." Henry Ford

      by johnmorris on Sun Dec 06, 2009 at 03:30:49 PM PST

      [ Parent ]

      •  Add to that (14+ / 0-)

        That some (likely very large) proportion of those awards are appropriate...they are awards for genuine fuckups.

        "Empty vessels make the loudest sound, they have the least wit and are the greatest blabbers" Plato

        by Empty Vessel on Sun Dec 06, 2009 at 03:41:18 PM PST

        [ Parent ]

        •  The overwhelming majority... (7+ / 0-)

          ...of awards are legit.

          •  How can you prove that? (2+ / 0-)
            Recommended by:
            stitchmd, greengemini

            I am sure there are many huge awards out of sympathy for a lousy situation.

          •  your evidence for that is? (0+ / 0-)

            Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

            by stitchmd on Sun Dec 06, 2009 at 04:39:15 PM PST

            [ Parent ]

            •  See my earlier comment... (0+ / 0-)

              ...for links:

              Link

              Also, some web searching will further confirm it.

              •  It's not that I disagree with you (1+ / 0-)
                Recommended by:
                greengemini

                and the one link about how the majority of errors are never even litigated is very true.

                Thanks for the links.

                Even though the majority of awards are legitimate, the problem is those that aren't - and they can destroy a physician's career. It's really a very scary place to be in.

                I truly believe that the majority of "overtesting" and "overtreatment" really does stem from a desire among docs to do the right thing for their patient - and that includes making sure they don't have cancer or some horrible disease that only one in 1000 people have.

                Look, I recently had a 28 year old with a breast mass. It was persistent, but statistically the likelihood of cancer was extremely low. Nevertheless, I sent her for a mammogram. Long story short, it was cancer.

                Now, was I practicing defensive medicine or trying to do the best for the patient? You decide. However, had she gone to another doc after me, and had I not decided to send her for the mammo, there could have been a very legitimate case against me.

                It's a very fine line to walk sometimes.

                Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

                by stitchmd on Sun Dec 06, 2009 at 04:59:24 PM PST

                [ Parent ]

                •  I would need to see some evidence... (1+ / 0-)
                  Recommended by:
                  enhydra lutris

                  ...of this before I could comment on it in detail:

                  ...the problem is those that aren't - and they can destroy a physician's career. It's really a very scary place to be in.

                  I know of no physicians whose careers have been destroyed by illegitimate malpractice claims nor have I ever met a doctor who fears that happening to them.

                  •  I didn't say illegitimate claims (1+ / 0-)
                    Recommended by:
                    FishBiscuit

                    I said illegitimate awards - where there are real issues of whether there was malpractice involved but the jury finds in favor of the plaintiff.

                    That kind of case does get reported to the national practictitioner data base. These docs have a very hard time getting insurance again.

                    I know of one such case myself, although it was a number of years ago and I don't remember the specifics. But the doc stopped practicing, gave it up entirely. That's just one.

                    You post that the majority are legitimate; as I said, I don't disagree; but that means not all are. So how do you address that issue?

                    Humans are not infallible; juries certainly are not. Neither are docs, yet we expect that the complex decision making and/or complicated procedural skills used in treatment should somehow always be free of error.

                    That just simply is not possible.

                    Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

                    by stitchmd on Sun Dec 06, 2009 at 05:13:27 PM PST

                    [ Parent ]

                    •  Then I would need to see... (1+ / 0-)
                      Recommended by:
                      Morgan Sandlin

                      ...some evidence of "illegitimate awards".

                      You post that the majority are legitimate...

                      Yes I did. Because I can't say with absolute certainty that all of them are yet I have not seen any evidence of claims or awards that are not legitimate.

                      Since no system is perfect I must presume that some instances of injustice occur in our legal justice system.

                      "Tort reform" would not lead to our legal justice system being perfect. I believe it would make that system even less perfect than it is now.

                      •  don't get me wrong (0+ / 0-)

                        I'm not in favor of tort reform, I think people who have a legitimate claim need to have access to the courts.

                        But if you think all, or even close to all, cases and awards are legit, then you haven't been in the trenches.

                        On the other hand, the majority of legitimate claims are never brought to light - as I agreed above. That's a problem we need to address.

                        But errors do happen in medical care; not all or probably even most are as a result of negligence. And the system doesn't allow for that either.

                        I also believe, and believe very strongly, that the number of cases would come down if people didn't have to worry about coverage if they are injured and can't work, or need other kinds of long term care. Can't prove that, though, but there sure is a lot of talk about how much long term costs are involved in many cases.

                        Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

                        by stitchmd on Sun Dec 06, 2009 at 05:29:36 PM PST

                        [ Parent ]

                        •  A doc misdiagnosed my kid last month (0+ / 0-)

                          Another doc caught it next day. Did I hear anyone offering to help pay the bill? No way, first doc doesn't even know she missed it. Insurance won't pay. Do I sue? It's a week's pay for me, maybe 2 weeks it's the winter. If I were a doc two weeks pay would be what?

                          "Don't fall or we both go" Derek Hersey

                          by ban nock on Sun Dec 06, 2009 at 05:51:19 PM PST

                          [ Parent ]

                          •  have to be honest with you (1+ / 0-)
                            Recommended by:
                            rockhound

                            if another doc caught it the next day, and there was no injury, you're not going to have a claim, much less be able to find an attorney willing to take on a case for the cost of an office visit.

                            As I've said elsewhere, we're not perfect. We work with the best information we have, and often things just aren't clear.

                            My own kid had a serious illness many years ago, one that to this day does not have a reliable test to diagnose it; it's a clinical diagnosis that could not be made until she was several days into the illness. And it was I who suggested the diagnosis to the pediatrician, because it's very uncommon. So did I have a case for the treatment that she got in the first few days? No.

                            I'd look into why your insurance won't pay, though. But that's probably an issue for another diary.

                            Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

                            by stitchmd on Sun Dec 06, 2009 at 05:56:38 PM PST

                            [ Parent ]

                          •  My insurance won't pay because I have high (0+ / 0-)

                            deductible.

                            So your telling me some idiot asshole doc screwed up and I'm supposed to pay?

                            Don't know what to say except when I do bad work docs don't expect to pay.

                            WTF?

                            I have zero respect for doctors or the medical "profession" blood sucking leeches.

                            "Don't fall or we both go" Derek Hersey

                            by ban nock on Sun Dec 06, 2009 at 06:21:42 PM PST

                            [ Parent ]

                          •  There is no review short of a lawsuit thanks (0+ / 0-)

                            in large part to the lawyer industry.

                          •  Yes there is (0+ / 0-)

                            Tell  the doc where to file the bill, and if the doc has trouble putting it where it belongs I'd assist.

                            "Don't fall or we both go" Derek Hersey

                            by ban nock on Sun Dec 06, 2009 at 06:37:39 PM PST

                            [ Parent ]

                          •  you know, I really can't answer that (0+ / 0-)

                            you say there was a misdiagnosis, but like I said, that's hard to determine. Without specifics I couldn't say at all. Seriously, if the 'correct' diagnosis was made the next day, what kind of care are we talking about here?

                            Not all of us are blood sucking leeches, either, thank you very much.

                            Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

                            by stitchmd on Sun Dec 06, 2009 at 06:38:04 PM PST

                            [ Parent ]

                          •  Maybe not (0+ / 0-)

                            but the bloodsucking leeches dominate the conversation.

                            "If I pay a man enough money to buy my car, he'll buy my car." Henry Ford

                            by johnmorris on Sun Dec 06, 2009 at 08:18:51 PM PST

                            [ Parent ]

                          •  unkown infection perhaps virus (0+ / 0-)

                            emergency room.

                            temp went from 97.5 to 106 in 5 hours. Came home shaking and cold, when he started speaking in toungues I took him in, first we slept on the  floor until admited. Doc asked for all the flu symptoms which weren't there, no sore throat, no cold, no sniffles. Temp down to 102 we left. "Maybe it's a virus".

                            Next day staff infection. Pediatrician, "well maybe we should test for staff".

                            Many are leeches. Docs don't care if me or my kids live or die as long as they get their six figures. Why can't someone tell me what something is going to cost before they do it. Only country I've been to were that happens.

                            I don't expect docs to bat 1000 but if they get it wrong why should I pay? When I build a fence at a doc's home wrong the doc won't pay me.

                            I've  had it with docs. Y'all could care less about me, , , Sue? Hell I'd be glad to for any reason to any doc. Life is fucking tough all over.

                            "Don't fall or we both go" Derek Hersey

                            by ban nock on Sun Dec 06, 2009 at 08:47:14 PM PST

                            [ Parent ]

                      •  Tort Reform Less Perfect? (0+ / 0-)

                        How could tort reform be less perfect?  We are currently missing the vast majority of patients who are true victims of negligence.  We couldn't do much worse.

                        •  What? (0+ / 0-)

                          The "vast majority" of patients make no claim. The Doctor who harms them walks away without accusation. So, your proposed solution, "tort reform" reduces their access to the courts and, if they can demonstrate an assault, reduces their claim. Are you mad?

                          "If I pay a man enough money to buy my car, he'll buy my car." Henry Ford

                          by johnmorris on Sun Dec 06, 2009 at 08:16:05 PM PST

                          [ Parent ]

                  •  Illegitimate Claims (0+ / 0-)

                    I know innocent doctors who were unfairly tortured in the medical liability system.  Were their careers ruined? No, but their lives were changed. They endured unfair trauma.

                •  no (0+ / 0-)

                  if you found a cancer, even if it was a false positive, there was no damage and no one would have found one. I understand that its a fine line, I'm a professional and I have the same problem you do. But I haven't asked, and my professional association, the ASCE, hasn't asked for some kind of escape clause from our professional responsibility. Now, I'm not at all sure that the AMA is seriously busking for tort reform. I think its mostly the insurance industry. But you could change my mind.

                  "If I pay a man enough money to buy my car, he'll buy my car." Henry Ford

                  by johnmorris on Sun Dec 06, 2009 at 08:10:31 PM PST

                  [ Parent ]

                  •  but, what if (0+ / 0-)

                    it hadn't been cancer? Then I might be considered someone who was ordering an "unnecessary test" (c'mon, a mammogram in a 28 year old?) for the purposes of "defensive medicine."

                    It really is a fine line.

                    Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

                    by stitchmd on Mon Dec 07, 2009 at 05:09:43 PM PST

                    [ Parent ]

          •  Legit Awards? (1+ / 0-)
            Recommended by:
            FishBiscuit

            What about all the innocent MDs sucked into the system at the outset?  

      •  Does Not Account for Billions in Unnecessary Test (3+ / 0-)
        Recommended by:
        tmo, stitchmd, greengemini

        procedures and that the costs, MUCH greater than u indicate, in both premiums, risk, time, etc. have scared off thousands of docs from practicing in sensitive areas like ob/gyn.  

        Your critique does not resemble reality--not even close!!!

      •  10-15% of medical costs are due to (7+ / 0-)

        malpractice, or to malpractice litigation?

        There is a whole lot of real malpractice out there. How much money could be saved by reducing this? Why do we always talk about restricting awards but not about reducing medical errors and taking away the licenses of grossly incompetent and negligent practitioners?

        I will be in favor of tort reform when it's combined with or preceded by some serious progress towards reducing actual malpractice.

        "There -- it's -- you know, one of the hardest parts of my job is to connect Iraq to the war on terror." --GWB

        by denise b on Sun Dec 06, 2009 at 04:31:20 PM PST

        [ Parent ]

        •  Eliminating Medical Malpractice (0+ / 0-)

          I completely support targeting medical malpractice and sanctioning the perpetrators. The current system fails in this mission.  The net is too wide.  There is no filter at the outset to separate the innocent from the others.

    •  Factually incorrect. (1+ / 0-)
      Recommended by:
      jgilhousen

      Please see my comment further down.

      Link

    •  Why not...sure cap sounds good, after all we (2+ / 0-)
      Recommended by:
      bornadem, enhydra lutris

      are emracing all this other Right-wing ideology around this forum lately.So why not this also.

      I know next month we can take a roll call and see how many here will take a stand against the minimum wage.

  •  How's that worked in TX and MO? (32+ / 0-)

    Both have passed tort reform. Neither has seen the cost of medicine, health insurance, or malpractice insurance reduced as a result. There are other states whose names I can't recall that have seen exactly the same result from their tort reform laws. So, no benefits, but it becomes harder for people whose doctors screwed up to get compensation for their ordeals.

    I think we can mark tort reform as "failed" and move on.

    •  Torts has failed not reform (3+ / 0-)
      Recommended by:
      mattman, serrano, Mariken

      From the point of view of the patient, the most important factor here is that medicine is not conducted in secret.

      Torts force doctors and hospitals to attempt to hide their errors.  

      Torts is exactly the wrong system.

    •  Texas leads (4+ / 0-)
      Recommended by:
      Sherri in TX, shanikka, rapala, Fabian

      the nation in per capita uninsured and in teen pregnancy.

      "If I pay a man enough money to buy my car, he'll buy my car." Henry Ford

      by johnmorris on Sun Dec 06, 2009 at 03:32:55 PM PST

      [ Parent ]

    •  California has had a cap (6+ / 0-)

      of $250K on pain and suffering awards since 1975. This amount has never been raised.

      Whatever good this has accomplished has been at the expense of the victims of malpractice, of whom there are many. Is $250K sufficient compensation for losing a family member because the doctor was drunk in the operating room? For having the wrong arm cut off? For dying a slow painful death of cancer because someone brushed off early symptoms that were obvious red flags?

      Not to me. These people deserve adequate compensation. Whatever reform we enact needs to include giving it to them.

      "There -- it's -- you know, one of the hardest parts of my job is to connect Iraq to the war on terror." --GWB

      by denise b on Sun Dec 06, 2009 at 04:39:56 PM PST

      [ Parent ]

    •  California Also (1+ / 0-)
      Recommended by:
      AaronInSanDiego

      Has had "tort reform" for a very long time now when it comes to medical malpractice. Hard and fast caps on damages and draconian procedural rules which effectively prevent you from even filing legitimate med mal cases if you don't have a lawyer who specializes in these types of tort claims (most do not - I certainly wouldn't touch one with a ten foot pole.)

      All this may have had some positive impact on medical costs or insurance costs but I've yet to see or hear of it.  California's medical costs continue to rise dramatically and most definitely so do medical insurance premiums.

      So I don't doubt that "tort reform decreases defensive medicine."  I DO doubt, and have yet to see proof of, that fact having any correlation with the cost of medical care and especially the cost of medical insurance.

      If you don't stand for something, you will go for anything. Visit Maat's Feather

      by shanikka on Sun Dec 06, 2009 at 05:43:12 PM PST

      [ Parent ]

    •  Failed in WV as well (0+ / 0-)

      You can't use malpractice actions as a scape goat. Taking away a victims right to recover so the doctors can pocket a little more is ludicrous. Defensive medicine? As an attorney, I still can't define when doctors are being defensive and when they are being thorough. I see alot of people go 6 months or a year misdiagnosed because the doctor wouldn't order an MRI. Having litigated over 200 injury cases, I have yet to see the case where the doctor ordered too many tests.

      •  Too Many Tests? (0+ / 0-)

        Is the point of your comment that defensive medicine works?

        •  No - I have yet to see it. (0+ / 0-)

          I'm sure it exists, but the claims about it's dimension seem much like the claims we see about insurance fraud. They are largely speculative, and subject to wildly inaccurate estimations. Insurance companies tell consumers that the reason their premiums are so high is because they pay out hundreds of millions a year in fraudulent claims. Well if they are fraudulent, why do you pay them. Clearly they don't, and the number they came up with isn't worth the paper they printed it on. The same seems to be true of the defensive medical claims. I'm sure there is a real number, and I am sure that the number being used is wildly exxagerated for political reasons. Much like the claims that medical malpractice claims were a major culprit for these healthcare costs, and Bush's administration later had to admit that it was at most 2%. It is actually much closer to 1%. Taking rights away from victims is not a solutions.

  •  A few questions.... (26+ / 0-)

    Can you show me a model where tort reform resulted in a reduction in average consumers insurance coverage?

    Secondly, would the medical community agree to greater transparency regarding physician disciplinary proceedings in exchange for tort reform.

    Is the medical community offering anything in exchange?

    Wonders are many, but none so wonderful as man.

    by Morgan Sandlin on Sun Dec 06, 2009 at 03:18:56 PM PST

    •  excuse me...that should be insurance coverage (3+ / 0-)
      Recommended by:
      grannyhelen, Rex Manning, palantir

      cost.

      Wonders are many, but none so wonderful as man.

      by Morgan Sandlin on Sun Dec 06, 2009 at 03:20:00 PM PST

      [ Parent ]

    •  ..and if we want to fairly address problems (8+ / 0-)

      for consumers would the medical community address the issue that some of the highest cost per patient areas in the U.S. result from physician owned facilities where the physicians receive financial gain from referring patients for tests and treatment?

      Read a neat little article regarding that issue recently. Will try to locate.

      Wonders are many, but none so wonderful as man.

      by Morgan Sandlin on Sun Dec 06, 2009 at 03:31:40 PM PST

      [ Parent ]

      •  ...and here is that article by Atul Gawande (6+ / 0-)

        from the The New Yorker

        Very interesting reading and takes a big bite out of the "Oh if we just took away patients rights to make the physicians responsible all would be solved" meme.

        Wonders are many, but none so wonderful as man.

        by Morgan Sandlin on Sun Dec 06, 2009 at 03:40:22 PM PST

        [ Parent ]

        •  Just Heard Yesterday that Cost Reductions (1+ / 0-)
          Recommended by:
          stitchmd

          are being eviscerated in the Senate in coop w/lobbyists.  A healthcare reform bill that does not address ALL types of bloated costs, including tort reform, will not do us good in the long run.

          We need to take this opportunity to capture all possible efficiencies and eliminate all possible waste, not just the ones which fit an ideological framework.  

          •  and when you start getting issues (1+ / 0-)
            Recommended by:
            greengemini

            like making sure all people have all access to all tests at all times, you sure as hell aren't going to address costs.

            But oh noes, we can't have "rationing," can we now?

            Although it's okay when it's based on market forces like the ability to pay - which we have NOW.

            Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

            by stitchmd on Sun Dec 06, 2009 at 05:01:15 PM PST

            [ Parent ]

            •  Mayo/Cleveland Clinic Models (4+ / 0-)
              Recommended by:
              bornadem, shanikka, ExStr8, penguinsong

              where groups of docs coordinate and share both risk and decisionmaking seems to offer the greatest hope.  In those cases, the best care has also been the cheapest!!!!

              •  yabbut (0+ / 0-)

                that still doesn't always address the issues, frankly.

                Let me tell you, living in a town with competing large 'institutions,' it doesn't reduce the cost of care. The only reason Maryland has lower costs than other places is because we're the non-DRG state.

                But when you get Hopkins and Maryland competing, throw in Medstar, add in Lifebridge, and top it off with GBMC, you get facilities trying to compete with one another to provide more and more services, then buying off docs and paying more for them, not with benefit to the patient in mind. It goes on and on...

                and as a primary care doc, I can't tell you how much I am valued for my ability to generate "downstream revenue," rather than for my ability to keep people well and their diseases managed. But keeping them out of the hospital does not generate that downstream income.

                A healthy patient generates no revenue.

                Cynical? Yes, but true. Oh, so very true.

                Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

                by stitchmd on Sun Dec 06, 2009 at 05:25:09 PM PST

                [ Parent ]

  •  You might ditch this line (20+ / 0-)

    While I am not an economist, I suspect that CBO estimates are far too low.

    I call it the "argument from ignorance."  It goes like this, I am not a physicist, but I sure know the universe isn't 12 billion years old.  I am no evolutionary biologist, but I know my grandmother wasn't a monkey.

    The question we always have to ask in Tort reform is, how much will the reform lead to less care in health matters?  Simply put, how much defensive medicine is actually good medicine?  If we get tort reform, it better be tied to a stronger method for removing bad doctors from practice.  Otherwise, this is just a giveaway.

    "Empty vessels make the loudest sound, they have the least wit and are the greatest blabbers" Plato

    by Empty Vessel on Sun Dec 06, 2009 at 03:19:19 PM PST

    •  You're right ... (0+ / 0-)

      Paying lawyers a lot of money to discipline doctors is not a great system. It needs to be be replaced by something better -- the question is what?

      "Self-regulation is to regulation as self-importance is to importance." Willem Buiter

      by Bronxist on Sun Dec 06, 2009 at 05:55:49 PM PST

      [ Parent ]

  •  Best way to avoid a lawsuit is stop messing up (12+ / 0-)

    Also malpractice pales in comparison to bloated salaries. Do docs really need to make half a million? What about when y'all blow it, who pays then? Not you. When an MD messes up I still get the bill. Whatup? Don't charge me for your mess up, I won't sue.

    Happy Sunday

    "Don't fall or we both go" Derek Hersey

    by ban nock on Sun Dec 06, 2009 at 03:19:43 PM PST

    •  They're Related!!! (1+ / 0-)
      Recommended by:
      greengemini

      Docs claim they need huge bucks to pay what are sometimes astronomical premiums, and they're not always wrong!!!  Premiums are sometimes up in the millions!!!

      •  Doctors are being gouged... (3+ / 0-)
        Recommended by:
        tmo, bornadem, shanikka

        ...by the insurance companies.

        The insurance companies started gouging doctors the hardest after the dot.com stock market went bust and those insurance companies saw their stock market investments plunge in price.

        "Tort reform" would do nothing to remedy that.

      •  Premiums on malpractice (1+ / 0-)
        Recommended by:
        Bronxist

        are a cost of doing business. Insurance comes out before profit. Docs make in the top 1% by incomes, if premiums were doubled or tripled it would have small effect on wages.

        They're not related, they just want us to think they are.

        Premiums in the millions are for a large group practice or doc who deserves to lose his/her license.

        "Don't fall or we both go" Derek Hersey

        by ban nock on Sun Dec 06, 2009 at 05:36:36 PM PST

        [ Parent ]

    •  another thing: reform medical education (4+ / 0-)
      Recommended by:
      tmo, shanikka, ExStr8, Rex Manning

      stop working residents so that they go one or two days without sleep and can find enough attending mds to help them out.

      •  make that: can't find enough attending mds ..n/t (1+ / 0-)
        Recommended by:
        Rex Manning
      •  that's already been done (2+ / 0-)
        Recommended by:
        tobendaro, greengemini

        there are strict caps on the amount of time per week and hours per shift that residents are allowed to work, and programs that do not follow those guidelines are penalized. Even Hopkins Medicine found that out a few years ago.

        There are, however, downsides to that too, including, frankly, a massive change in attitude that medical care is just shift work and not about taking care of the patient. Hey, you're in the middle of talking to a family about their critically ill loved one? You're making serious decisions about the patient you're spent hours with since you admitted him? And your hours are up? Sorry, you have to leave now. Even if you know the patient better than anyone else.

        These are the docs we're training who will take care of us in our old age.

        There are no gains without some sacrifices.

        Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

        by stitchmd on Sun Dec 06, 2009 at 04:45:45 PM PST

        [ Parent ]

    •  Half a million $! (1+ / 0-)
      Recommended by:
      FishBiscuit

      Wow, Derek.  The docs in your area are paid a lot more than we are in Cleveland. Don't announce your location or you may be deluged with docs.

      •  Derek is dead (0+ / 0-)

        That's just a quote above my handle, that's why it's in italics. Derek fell of the Sentinal in Yosemite, he never had insurance either.

        Some docs here make a lot more than that, some much less, but none make middle class wages.

        All of you make money off the bodies of your fellow citizens. You're part of the problem, not the solution.

        "Don't fall or we both go" Derek Hersey

        by ban nock on Sun Dec 06, 2009 at 08:55:35 PM PST

        [ Parent ]

  •  tort reform does nothing to address (22+ / 0-)

    the problem of physician malpractice; it only assures that the people who have been injured by terrible doctors won't be fully compensated for the harm they've suffered.

    I would support tort reform only if we also get malpractice reform with some real teeth to put the doctors who are serial offenders out of business. They are the ones who are responsible for most of the malpractice, anyway.

  •  My adopted mother died (16+ / 0-)

    of an oxycontin overdose in  California where awards are capped at $250,000.  While every lawyer agreed the doctor had perscribed too much (120mg of oxycontin a day plus vicodin, lumnestra, prozac, zoloft and a host of other drugs) it was not worth their time or money to pursue because she was 70.  Yeah, that worked really well.  The doctor will do that again and some other poor schmoo will die.  

    All compromise is based on give and take, but there can be no give and take on fundamentals. Mohandas Gandhi

    by MufsMom on Sun Dec 06, 2009 at 03:22:19 PM PST

    •  MufsMom - one point of clarity (4+ / 0-)
      Recommended by:
      Fabian, serrano, coffeetalk, greengemini

      I am sorry for the loss of your step mother but your statement is not accurate. There is NO limit on economic damages. Pain and suffering awards are limited to $250,000, but total damage awards can often be in the millions.

      "let's talk about that"

      by VClib on Sun Dec 06, 2009 at 04:07:04 PM PST

      [ Parent ]

      •  ... (3+ / 0-)
        Recommended by:
        tmo, shanikka, ban nock

        Link

        Losing a breast to cancer was just the first blow to Tomita Shimamoto's world.

        The Oakland woman went through eight painful surgeries over the next five years to correct what she says was a botched reconstructive plastic surgery to her breast in 1991.

        "I was in shock that I lost that part of my body," Shimamoto, 59, said. "It's yours and you miss it and you want it back."

        Her story will forever be one of private questions, not public resolution. Despite the fact that her plastic surgeon was put on probation by the California Medical Board for falsifying prescriptions for Demerol and cocaine, Shimamoto could not find a malpractice lawyer to take her case.

        The reason? A $250,000 cap on pain and suffering in the state, she said.

        You're not going to find a lawyer willing to take a case on contingency unless they know they can get paid from a percentage of the award. And if the award is that small then they can't make any money. Therefore they won't take the case.

        •  Rex there are thousands of cases in CA (0+ / 0-)

          There are thousands of medical malpractice cases filed each year in California. And we both don't know all the facts in Tomita Shimamoto's case.

          "let's talk about that"

          by VClib on Sun Dec 06, 2009 at 05:57:40 PM PST

          [ Parent ]

  •  So doctors should, like, guess more? (6+ / 0-)

    Sorry, I really don't like the idea of cutting down on tests.

    •  There Are DOZENS of Redundant & Unnecessary Tests (1+ / 0-)
      Recommended by:
      greengemini

      which, btw, are also a time-consuming pain in the butt (or other relevant body part) for the patient.

    •  The real reason for many... (4+ / 0-)
      Recommended by:
      tmo, badger, jgilhousen, ban nock

      ...of these so called "unnecessary" tests is that the doctors themselves are part owners of the companies that do the actual tests so the doctor has a profit motive for ordering the tests to begin with.

      We should outlaw that for sure.

      •  Stark law (2+ / 0-)
        Recommended by:
        tmo, greengemini

        and no, that's not always the case, not even often.

        But damn, I'm sick of getting radiology reports that continue to recommend another test "for correlation" or "for follow up" or "to confirm stability."

        And if you don't that that's a major reason why the first medical group to come out against the mammogram recommendations was radiologist, well, I've got a bridge for you...

        Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

        by stitchmd on Sun Dec 06, 2009 at 04:53:23 PM PST

        [ Parent ]

        •  As did the American Cancer Society. (0+ / 0-)

          Were they on the take too?

          •  The American Cancer Society operates on fear (0+ / 0-)

            and breast cancer is a great source of fundraising revenue for them.

            I'm far, far from the only person who has said that, even on this site.

            Btw, do you know what the number one killer of women is?

            Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

            by stitchmd on Sun Dec 06, 2009 at 05:18:49 PM PST

            [ Parent ]

            •  Lung cancer, but I had to Google. (0+ / 0-)

              Actually, I thought it was colon cancer.

              •  Wrong (1+ / 0-)
                Recommended by:
                FishBiscuit

                it's heart disease. WAAYY out ahead of any type of cancer.

                But it gets a day and a little red dress pin. Not as sexy as a pink ribbon or a month of scaring people about breast cancer.

                People are scared to death when they get a diagnosis of cancer; they are sure it's a death sentence. They should be scared to death when they get a diagnosis of diabetes, because that is a death sentence. We can cure breast cancer or treat it to the point where it's a manageable disease (see one Elizabeth Edwards as a case in point) so they will die of something else. The vast majority of people who have diabetes who die of non-traumatic causes will die of complications related to their diabetes.

                But hey, you don't hear much about that, now, do you?

                Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

                by stitchmd on Sun Dec 06, 2009 at 05:34:16 PM PST

                [ Parent ]

                •  OK, cancer is second. (0+ / 0-)

                  Heart disease first.

                  Cancer is scary because it's beyond the average person's control.

                  Heart disease usually isn't, which is probably why they don't take it as seriously as they should.

                  •  but if we had the kind (0+ / 0-)

                    of fear machine behind heart disease that we have behind cancer, maybe more people would take it seriously.

                    Look, you mentioned elsewhere that you had a cancer scare. Cured? Hopefully it was.

                    We don't cure diabetes, we don't cure heart disease. We can only manage them. Perhaps we can prevent or at least delay in many people, but there's nowhere near as much energy put into that relative to the number of people who are affected as there is with cancer.

                    Did you read the guest editorial in last week's WaPo by the head of the Georgetown oncology center? It was very informative. Cancer is big business.

                    So, yeah, I don't entirely trust the American Cancer Society on this issue. They've got a vested interest in those pink ribbons and the revenue they generate.

                    This diarist, btw, published another one on the politics of breast cancer. It's a huge issue.

                    Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

                    by stitchmd on Sun Dec 06, 2009 at 05:48:16 PM PST

                    [ Parent ]

    •  more is not better (2+ / 0-)
      Recommended by:
      FishBiscuit, greengemini

      every test has potential ramifications. And statistically, for every 20 tests you run on normal people, one will be abnormal. Yet you have to chase it.

      I'll give you an example: a patient of mine fell down the stairs at home recently. This patient tends to have an extremely low pain threshhold and a great ability to demonstrate such. As a result, not only did he have multiple xrays but also got a total man scan - in other words, CTs of head, neck, chest, abdomen and pelvis. And these showed a possible nodule in the thyroid and a possible tiny thing in the liver, as well as giving him a whopping radiation dose.

      Those are probably of no consequence whatsoever; however, we will now have to chase the thyroid, and the liver.

      Oh, and did I mention the patient has no insurance? So guess who's going to pay for all of that chasing?

      More tests are not always the way to go; however, more thinking is always warranted. But that is what is often in short supply.

      Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

      by stitchmd on Sun Dec 06, 2009 at 04:51:31 PM PST

      [ Parent ]

      •  So he would have been better off.... (0+ / 0-)

        ...if you never found the thing in his thyroid and/or liver?

        You say "probably" of no consequence, which means it could be of consequence.

        •  did you get what I said about the radiation dose? (0+ / 0-)

          that's not of no significance.

          The thing in the liver is almost certainly a hemangioma, a collection of blood vessels that is of no significance. Yet the recommendations will be for an ultrasound, and then repeated tests either u/s or CT over a period of several years to make sure that it's stable.

          The thing in the thyroid is possibly of significane, but will require blood tests, an ultrasound, possibly a thyroid scan (another dose of radiation) and possibly a biopsy. If it's cancer, great, he can be treated, and that's a good thing.

          But you didn't answer this - how's it going to get covered?

          Did I mention that this patient suffers from disabling anxiety? Do you know how this is going to affect him for the next couple of years?

          There are consequences, oh yes, but probably not of significant consequences to the length or quality of his life. In fact, it's very possible that the workup for this will decrease the quality of his life for at least the next several months, if not the next couple of years.

          Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

          by stitchmd on Sun Dec 06, 2009 at 05:06:51 PM PST

          [ Parent ]

          •  If we have universal coverage.... (0+ / 0-)

            ...how it's going to be covered becomes immaterial.

            As for this particular patient. Well, I'm certainly not qualified to judge his case.

            However, I've had a cancer caught in the very early stages by a doctor who probably wouldn't have even given me a test if he went with conventional wisdom regarding my age and overall health, so I get my back up when anybody starts talking about unnecessary tests.

            •  and elsewhere I posted (0+ / 0-)

              about a 28 year old I sent for a mammogram who was diagnosed with breast cancer.

              We need more thinking, and realization that statistics are for people in aggregate, not for individuals.

              The problem that happened to the patient above was a failure to think that happened in the ED. Now the rest of us have to deal with it.

              Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

              by stitchmd on Sun Dec 06, 2009 at 05:36:32 PM PST

              [ Parent ]

      •  More Thinking (1+ / 0-)
        Recommended by:
        stitchmd

        Thanks for the sane and sober comment.

    •  Don't Cut Down on Tests (0+ / 0-)

      Then, you'll be happy with the current system as there will be defensive medicine for all!

  •  Total costs (9+ / 0-)

    of medical malpractice awards are very low and have been going down for years. What "tort reform" actually is is a relief program for Med Mal insurers. It takes a patient who a jury has decided was, in fact, injured by the medical team under the Dr's direction, and limits the amount of money that can be awarded to them in recompense. It should be pointed out here that "Defensive Medicine" that is ordering test and procedures that are not medically necessary, is malpractice.

    "If I pay a man enough money to buy my car, he'll buy my car." Henry Ford

    by johnmorris on Sun Dec 06, 2009 at 03:26:37 PM PST

  •  Tort Reform Can't Prevent Suits (3+ / 0-)
    Recommended by:
    serrano, Pluto, greengemini

    Medical Malpractice damage caps might be a great idea, but few patients who bring suits are awarded damages in excess of the caps imposed by most states.  
    The greater issue, with respect to cost, is the number of lawsuits that are actually brought (that is where the cases come from) not the damages awarded.
    True malpractice reform will address how to lower the number of cases brought - and I don't really know how you can do it.  States have tried lowering the Statue of Limitations for bring such suits, and it does not work.  You could also try to bring such cases before a special board too minimize court and lawyers costs.
    Regardless, it should be noted that the Federal government cannot compel malpractice reform, only encourage it.

    •  egalite - Texas has a board of review (4+ / 0-)
      Recommended by:
      stitchmd, serrano, coffeetalk, greengemini

      As part of tort reform in Texas they formed a board that reviews medical malpractice suits before they go to trial to make a medical evaluation. This seems like a good idea and should lower the number of cases.

      "let's talk about that"

      by VClib on Sun Dec 06, 2009 at 04:14:41 PM PST

      [ Parent ]

      •  That's exactly the necessary step (2+ / 0-)
        Recommended by:
        VClib, greengemini

        more important that caps on damages is some kind of medical review board where someone with medical knowledge looks at the situation and says there's at least a question here before a case proceeds.  Yes, there are some obvious situations that even a lay person can see as malpractice.  But there are also cases where a jury with no medical knowledge are swayed by a paid expert (and you can find a paid "expert" to say anything -- I'm a lawyer, trust me) to find that a doctor or hospital did something wrong when the science just doesn't back it up.  Juries are human -- they can be swayed by their sympathy for the plaintiff and the notion that it's not "real" money because insurance pays.  

        Just as the most outrageous example, how many juries awarded damages for silicone breast implants?  So many that it put Dow Corning into bankruptcy and a lot of good workers lost jobs.  And now it's generally accepted that their silicone breast implants did not cause a lot of the troubles that juries awarded big damages for.

        Yes, we need to keep a system where plaintiffs harmed by malpractice are compensated.  But a medical reivew panel -- where an independent panel with the right medical/scientific knowledge looks at the situation before a lay jury with no knowledge whatsoever sees it -- can do a lot of good.  It's far more important -- in my opinion -- than damage caps.  

    •  Preventing Suits (0+ / 0-)

      Egalite522, you get it!  Caps are not ideal.  We need an effective filter at the front end.

  •  Tort reform is fine (12+ / 0-)

    Under two conditions. 1) Physicians found to be negligent or irresponsible lose their license to practice. Removing incentives for defensive medicine will not improve care unless there are strong steps to weed out incompetence and carelessness. 2) Insurance companies can be held legally accountable for rescissions, denials, exclusions, and other practices that deliberately endanger the health and financial well-being of Americans.

    At present, physicians are held legally responsible for mistakes but insurance companies are protected. Let's flip the equation and allow the insurance companies to be sued until their eyes bleed. Better yet, let's get rid of the insurance overhead altogether.

    The uninsured keep dying. Death to AHIP!

    by DWG on Sun Dec 06, 2009 at 03:28:58 PM PST

  •  How Much Money Would Tort Reform Save? (3+ / 0-)

    Got any numbers?

  •  Hard to believe the insurance companies.... (4+ / 0-)

    ...aren't shafting the doctors any less than they're shafting the patients.

    Why doctors want to fight the insurance companies' battles against their patients instead of going after insurance companies and demanding rate caps is beyond me.

  •  I absolutely agree. (3+ / 0-)
    Recommended by:
    serrano, emsprater, greengemini

    Tort reform is needed to protect reasonable medical practice. It is worth noting that defensive medicine often involves not just unnecessary cost, but also inconvenience, anxiety, pain and sometimes risk for the patient.

    Another important contribution to reducing defensive medicine that apparently is in the bills is a program to study efficacy of medical treatments. That would provide an effective defense for doctors who are practicing scientifically justified medicine. I think it should get some credit for cost reduction from the CBO.

    •  Baby Doctors Are Among the Hardest Hit!!! (0+ / 0-)

      This critical practice deserves the very best, not just those willing to jump the legal hurdles....

      •  That's because OB's are blamed (6+ / 0-)

        for almost any problem the baby has.  For example, whenever a newborn shows signs of cerebal palsey, there is almost always a lawsuit against the OB when the science shows that damage at birth casues maybe only 5% of those cases.  But when you present a child with cerebal palsey to a jury, it is very very very hard for that jury not to award big damages against whatever defendant has the money to pay it, with little consideration of whether that particular defendant actually did anything wrong or not.  A jury, in many cases, simply doesn't have the medical or scientific expertise to sort through the testimony of the paid experts in order to determine which are credible and which are not.  That's why in those cases, requiring an independent medical review panel (not paid by either side) to review the evidence and at least determine whether there's a question of whether or not the OB did something to cause the problem makes complete sense.  I'm not sure what the arguments are against that.  

        •  and talk about overtreatment (2+ / 0-)
          Recommended by:
          VClib, FishBiscuit

          the reason most pregnancies are monitored unto the nth degree, the reason women are strapped to beds and monitors throughout labor, the reason there is so-called "active management" of labor, is to be able to generate a paper trail to prove that everything was done by the book - even though, as you say, there's no science behind it.

          What we have wrought.

          Diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without - W S Coffin

          by stitchmd on Sun Dec 06, 2009 at 05:41:20 PM PST

          [ Parent ]

        •  Cerebral Palsy (0+ / 0-)

          is an automatic judgment against the OBGYN.  Is this fair?

  •  You wonder (8+ / 0-)

    "how many tax dollars were spent on these studies whose conclusions were already known in the guts of every practicing physician in the country."  My answer to that would be none.  That is because we get the best results when we don't base policy decisions on what people feel in their guts,  even assuming, as you do falsely,  that everyone's "gut" has the same feelings. That is certainly true of how good doctors practice medicine - with an emphasis in strong science.  Our guts,  as most of us have learned at one time or another,  are incredibly stupid when it comes to determining the truth of things.

    Aren’t we supposed to conduct studies when we are uncertain of the outcome?

    The entire point of scientific methodology and the basic concept of falsifiability is that we are always  uncertain of the outcome. But setting that aside,  the fact that you feel that your gut instinct is somehow vindicated by a study that just barely supports a conclusion that you considered to be foregone and not worth studying is really kind of bizarre.  

    I don't know how much money defensive medicine costs us and I don't know whether the CBO underestimates that cost or not,  but what you have put together here is not a very serious or convincing argument to that effect.  If anything,  the weakness of your argument, assuming for the moment that it is the strongest you can possibly make, suggest that the President was correct to use more cautious language. What you have is a bunch of suspicions and gut feelings that is just barely supported by the few studies that exist.  I honestly have no idea why you think that justifies some more definitive conclusion.  

    Now the other side of this is that Tort reform is a complex issue that must properly balance costs against patients' rights and the damage to individual lives caused by malpractice.  That is, even if we assume based upon your unsupported instincts,  that the CBO is wrong even on an order of magnitude. Lets say the real savings from Tort reform would be something like 10% of costs.  Not even close to what most studies have shown,  but lets stipulate that for the sake of argument.  Is that 10% savings worth limiting the rights of patients to redress real wrongdoing by doctors?  

    •  The rich irony (8+ / 0-)

      Doctors insist on scientific studies for everything, except when it affects them. Then gut feelings are good enough.

      how many tax dollars were spent on these studies whose conclusions were already known in the guts of every practicing physician in the country."  My answer to that would be none.

    •  Response to Allastair (0+ / 0-)

      I reviewed your thoughtful comment. The issue of defensive medicine, fear of litigation, etc. may be impossible to quantify and study 'scientifically'. But, it is a real phenomenon.  Talk to a few physicians yourself to their view on this issue. I cannot say whether saving a % of health care costs is worth limiting the rights of some patients. There are reasons to support tort reform that transcend economic benefits.  There are issues of justice and fairness for the medical profession to be considered.

  •  And what is supposed to protect patients from (4+ / 0-)

    potential exposure to malpractice, and death?
    Half a percent, really, is that worth it?

    the use of diagnostic tests and other health care services when providers recommend those services principally to reduce their potential exposure to lawsuits."

  •  I like it when doctors are (10+ / 0-)

    afraid to screw up.

    You know what Stewie? If you don't like it, go on the internet and complain.

    by NMDad on Sun Dec 06, 2009 at 03:50:18 PM PST

  •  Oh, and How about the Actual Facts (14+ / 0-)

    Medical mistakes are the #1 cause of accidental deaths in America.

    98,000 people die every year from medical mistakes.  This is more than the number of people killed in the 9/11 terrorist attacks on the World Trade Center.  Also, more than 99,000 patients succumb to hospital-acquired infections, and most of these deaths are clearly preventable.

  •  Tort exposure varies by specialty (6+ / 0-)

    Not all doctors pay the same for malpractice insurance. Ob/Gyn is about the most exposed, with massive, crushing premiums. And the risk of litigation increases the number of C-sections performed because of the safety of the procedure.

    Psychologists, depending on their area of specialty, may pay premiums under $1000 per annum. This is a complex and difficult area to assess and the blind bludgeon of "tort reform" is far to clumsy to capture the actual situation.

    As noted above, there aren't many savings to be had here. But there are some. VA and FL are having success with state-run malpractice insurance that functions in a no-fault way, and is supported by fees leveraged across all physicians and hospitals. This is probably the direction we need to go.

    Every day's another chance to stick it to The Man. - dls.

    by The Raven on Sun Dec 06, 2009 at 03:58:57 PM PST

  •  There sure are a bunch of doctors (2+ / 0-)
    Recommended by:
    bornadem, CherryTheTart

    ...who don't know when their malpractice insurance companies are gouging them.

    50 states, 210 media market, 435 Congressional Districts, 3080 counties, 192,480 precincts

    by TarheelDem on Sun Dec 06, 2009 at 03:59:32 PM PST

  •  I doubt this is breaking news (0+ / 0-)

    That said, I don't have a problem with tort reform

  •  Kind of an odd poll (4+ / 0-)
    Recommended by:
    tmo, bornadem, tobendaro, CherryTheTart

    They should do testing to find out whats wrong with the patient and they do not always do that.  I've written here before that my daughter's leukemia was not diagnosed until we went to the emergency room despite (1) speaking to a doctor at our family health practice on the phone; (2) going to the university health center and (3) going to the family health practice and seeing a doctor (not the same one that she talked to on Saturday).  That was over the course of 4 days; a blood test would have discovered something very, very wrong but no one did a blood test.  They had no idea what was wrong with her but didn't do a blood test.  3 different "diagnoses" - really just musings.  By the time we went to the ER, she had retinal hemorrhaging that will leave some permanent damage.  

    I've heard so many stories in the last year of doctors who were operating off the tops of their heads rather than do testing while a very ill person got sicker.  Is that supposed to be a way to save on healthcare costs?

    •  I agree, how (3+ / 0-)
      Recommended by:
      tmo, bornadem, Fabian

      do you tell people who are wronged medically that they cannot sue or be compensated properly because we are trying to lower costs.  There are plenty of ways to minimize costs.  Maybe drs need to be better at deciding which tests and when instead of just sending people off for tests that are not relevant.  Maybe the drs need to send people on to specialists.  If we all have access similar to what the rest of the western world has maybe the incidence of screw ups is less because the system is actually working towards a healthy populace not a bottom line.

  •  We don't need "tort reform". (7+ / 0-)

    Do some research before trying to peddle "tort reform" here.

    You're diary is pure bullshit.

    Link
    ...Although damage award caps could slightly limit the future growth of liability insurance premiums – about 6 to 13 percent over time, says Mello, "it tends to be oversold as a solution and it’s pretty unfair to patients."

    Annual jury awards and legal settlements involving doctors amounts to "a drop in the bucket" in a country that spends $2.3 trillion annually on health care, Amitabh Chandra, another Harvard University economist, recently told Bloomberg News. Chandra estimated the cost of jury awards at about $12 per person in the U.S., or about $3.6 billion. Insurer WellPoint Inc. has also said that liability awards are not what’s driving premiums.

    And a 2004 report by the Congressional Budget Office said medical malpractice makes up only 2 percent of U.S. health spending. Even "significant reductions" would do little to curb health-care expenses, it concluded.

    Link
    Malpractice Suits Aren't Driving the High Cost of Health Care

    Plenty of reasons exist to support medical malpractice reform. Doing it to slow the dizzying growth in health care spending isn't among them.

    President Barack Obama fanned the flames of that long-simmering debate last week when he said he'd consider tort reform as part of his health care overhaul.

    Exactly what he has in mind still is unclear. But it probably falls far short of a federal cap on malpractice awards that Republicans and physician groups support. The president spoke only of "demonstration projects" at state levels.

    Whatever form those projects might take, few economists believe tort reform by itself — even the most radical tort reform — would significantly reduce what Americans spend on health care. Most experts say the big reasons for high U.S. health spending are chronic illness, expensive new medical technology and an aging population. Lawsuits are far down the list.

    The most authoritative estimates put the direct cost of malpractice litigation — insurance premiums, lawyers' fees and awards to injured patients — at about 2 percent of overall health care spending. Premiums make up about half of that.

    With an estimated $2.5 trillion in overall health care spending this year, 2 percent is about $50 billion, not an insignificant number. But compared to other health care expenditures, it's a drop in the bucket. For example, experts estimate we'll spend as much as $830 billion this year on treatments that provide no benefit to patients.

    Even the most aggressive tort reform wouldn't save all of the direct costs. The biggest portion of malpractice settlements and jury awards are not for "pain and suffering" or punitive damages, but for actual damages — lost income and future medical treatment.

    Link
    No Malpractice Crisis in Florida: Doctor Errors Greatly Exceed Lawsuits, Study Shows

    Six Percent of Florida Doctors Responsible for Half of Malpractice; State Medical Board Does Poor Job of Disciplining Repeat Offenders

    FORT LAUDERDALE, Fla. – Assertions that Florida is facing a "malpractice litigation crisis" are wrong; in fact, many more medical errors are committed than give rise to lawsuits, and just a small percentage of doctors are responsible for half of the malpractice awards in Florida, according to a report released today by Public Citizen, a national consumer advocacy organization.

    Bad business decisions by insurers also are key to rising medical malpractice insurance liability rates, the report said. Public Citizen used Florida hospital injury data and the National Practitioner Data Bank to debunk claims by the president of the American Medical Association (AMA), Florida doctors and business lobbyists that the number of medical malpractice lawsuits is excessive, and that cutting back consumer rights to use the courts could correct the problem.

    "Florida already has some of the most Draconian medical malpractice restrictions of any state in the nation," said Public Citizen President Joan Claybrook. "Yet the American Medical Association and the Florida Medical Association want to limit people’s rights to be compensated for horrible medical injuries even further. Meanwhile, they offer false allegations and half-truths to divert attention from the real issue, which is poor medical care."

    Link
    In describing the study’s findings, Hunter said, "Thirty years of inflation-adjusted data show that medical malpractice premiums are the lowest they have been in this entire period. This is in no small part due to the fact that claims have fallen like a rock, down 45 percent since 2000. The periodic premium spikes we see in the data are not related to claims but to the economic cycle of insurers and to drops in investment income. Since prices have not declined as much as claims have, medical malpractice insurer profits are higher than the rest of the property casualty industry, which has been remarkably profitable over the last five years.

    "Our study also shows that states that have passed severe medical malpractice tort restrictions on victims of medical error have rate changes similar to those states that haven't adopted these harsh measures. Finally, our research makes clear that medical malpractice claims and premiums have almost no impact on the cost of health care. Medical malpractice premiums are less than one-half of one percent of overall health care costs, and medical malpractice claims are a mere one-fifth of one percent of health care costs.

    If Congress completely eliminated every single medical malpractice lawsuit, including all legitimate cases, as part of health care reform, overall health care costs would hardly change, but the costs of medical error and hospital-induced injury would remain and someone else would have to pay."

  •  Single Payer would accomplish the same thing (5+ / 0-)

    as tort reform. Why? Because most of the money awarded  go towards correcting the results of the malpractice. Also, it has been shown that the doctors that get sued the most are also the doctors that have the poorest doctor patient rapport.

    "be a loyal plastic robot boy in a world that doesn't care" - Frank Zappa

    by Unbozo on Sun Dec 06, 2009 at 04:09:24 PM PST

  •  Kos researchers, put on your sneakers and post (2+ / 0-)
    Recommended by:
    Fabian, Pluto

    what statistics there are about what specific acts of malpractice generate how many claims. What percentages of doctors are in the claim generating base. What sort of claims.

    There is NO reason for protection of a doctor who leaves a surgical instrument in a patient, operates on the wrong leg, or passes a hospital bug to a patient because of unsanitary procedures, and other gross errors. At the same time, there are risks in all procedures, and a doctor can do everything right and still lose a patient  or a patient get a bad outcome, who the statistics suggest should not have, for factors beyond  a doctor's or a hospital's professional control. And like end of death procedures, this is definitely one where clear advance discussion of the risks is a very very good idea. But usually does not happen.  

    Part of the problem is that most patients believe in a perfect world where nothing should ever go wrong and they should always get the outcome they want without side effects or complications. ob/gyn is a particular problem because the patient in trouble is 'my baby, my perfect angel.' But part of the trouble also is that, as I understand the matter but want someone who is good with numbers to hunt the numbers, most of the egregious malpractice comes from a relatively small percentage of doctors, usually well known to their colleagues. If that is correct, the many are paying huge premiums because the insurance company and they themselves did not weed out those who probably shouldn't have been insured in the first place because they were so dangerous, but were.  In some cases, bad doctors simply get to move to another state and do it again there, or end up in end-of-the-line positions but still practicing.

    A separate problem is that damages in a med mal come in several forms. The first is compensatory damages, the cost of the  procedures and the lost income of the patient because of the particular bad outcome. Seniors lose out on this because of age, over against a shinging eyed college graduate, especially serious in adverse effects cases where drugs a and b should not be taken together and are.  I don't think most people would argue with that.

    A second problem is pain and suffering, a non compensatory damage item because the damage is not evidenced by piles of medical bills, but by the continuing problems in the life of the patient. If because of the med mal you can never walk without pain again, the pain and suffering is for the pain that will not stop and the compensatory is for the doctor bills incurred and those in future, and the job you can no longer keep. Other states have additional formulations for these basic elements.

    In point of fact, much of med mal is done by specialty lawyers working for patients or for what is usually the insurance company of the doctor or the hospital, who know exactly how much the usual payment is for these circumstances, because they've done so many of them. Because the matter is so standardized, many are settled. It's the same for disability and worker's compensation.

    Those who talk about tort reform, a strangely neutral phrase, usually don't say what sort of tort reform they have in mind, precisely, because it's the idea of somebody suing a doctor that bothers them, and the idea of lawyers getting rich out of it. Many patient- side attorneys take cases on contingency, not the usual fee for time or flat fee plus out of pocket expenses arrangement, and themselves pay the fees. They get paid only if the patient wins, and even then every state I know of has limits on how much they can get. These advocates of tort reform do not say "I want to change X" or "I want to change Y" but should be made to do so.

    Some states already have threshhold rules, give us a claim by date X and provide medical information. Some have a 'serious' injury standard, below which either you go to arbitration or cannot sue for other than the medical bills. These do not necessarily screen out meritorious and egregious cases, but do send the cases where the injury is lesser to a less fraught and less expensive resolution mechanism.

    Because the underlying question, frankly, is do we all really want the kind of negligence or wanton carelessness that is in the worst med mal cases to become simply another "cost of doing business" which in this case can be reduced by removing remedies or limiting them for those injured by the business, and where legal warfare may discourage people who have been wronged, whose injury from that may limit their access to any remedy if pushed hard enough. Something where practice X can say we can cut corners because the maximum we can be held for is ABC, and we will do better financially if we cut corners and take the risk of that hit. Not what we want. In so many other areas, the same folk who talk tort reform in med mal do it in product liability and other things, where the basic idea is to protect the guilty from paying the full weight of the damage they do for the bad products they send out knowing they will hurt someone or for the bad conditions they make people work in, knowing they will hurt someone, and the only question is how much it will cost when they are called on it and how can they reduce that expense, since they are not going to clean up the products, the services or the workplace unless somebody makes them do it, here eliminating med mal legal remedies, and put it off indirectly on society. For personal injury, that means it falls on the hospitals and doctors, rather than on the guilty, or on the insurance company, which spreads the risks of the few humongously awful cases over the entire insurance base of the specialty in question, hence the huge premiums.

    It's not enough to say you're for it or against it. We need to hear, here, exactly what sort of changes people are thinking about when they talk about 'reform.'  

    •  For Some Eye-Opening FACTS on this Issue (0+ / 0-)

      Consumer Watchdog.org is a great place to start.

    •  We need to get the lawyers out of product (0+ / 0-)

      liability also.

      There should be a government agency testing the products and the results of the tests should be public.  If the product passes these tests, how can it be fair to sue the manufacturer?

      •  well, because of what happened to the FDA under (0+ / 0-)

        Bush.

      •  Ever heard of a defective product? it's fine if (0+ / 0-)

        perfect triple checked samples passed, but if the one which took your sister off the road into a tree did not conform to that sample, what is the remedy? Especially if the manufacturer knew it did not conform to the sample. Especially if the manufacturer knew that the problem with the one which went into the tree was that for the same reason which affected your sister's car, other cars before hers had done the same thing, AND THE MFGR DID NOT CHANGE THE DESIGN AND DID NOT TELL ANYONE ABOUT THE PROBLEM or HID THE EVIDENCE.  Or if the company got the approval by lying about the research or the evidence which it knew showed something different. All the cans of x brand of soda which do not contain rats do not make up for the one which does, since the approved sample did not contain rats either, to cite one repeatedly occurring problem with prepackaged liquids. That's why a governmental agency approval of tendered samples does not take care of the problem.

        I am aware that some make the argument that FDA approval of drugs should excuse liability for undisclosed because theretofore undiscovered side effects, until they happen, but I do not agree. The best remedy to encourage manufacturers and service providers to produce good products every time, not just the perfect samples, but the ones they send out for you and me to buy, is to make sure that if someone is injured because of a dangerous or defective product, the company which sold it as safe pays the damages. It's a difficult thing to say, but the risk of damages keeps people honest and doing their best every package out of the lab or the factory, not just in the few run by a government agency.  

        •  Torts does not solve the problems you cite (0+ / 0-)

          and further there should be criminal penalties for falsifying investigations.

          •  Have you got a better remedy for the individuals (0+ / 0-)

            who are in fact actually the injured parties. Criminal penalties are remedies for society in general, but provide no healing or financial help for the sister who went into the tree because of a damaged product, any more than a criminal conviction for robbery restores the stolen goods to the victim or repairs the mental and physical scarring from the robbery. And anybody who relies on Federal or state 'approval' obviously has not been watching the lobbying that so many here complain about on so many subjects, corporations who manipulate the regulatory process. If you have a better remedy that gives better relief to the victims, spell it out. Five Hundred Years of the common law has given us tort litigation, and arbitration of torts, and nothing else that works better.

        •  Also, you suggest that companies factor in (0+ / 0-)

          the cost of legal liability in the design of their products.  This is an impossible cost to estimate and even the very best system has the risk of producing defective products.

      •  Learn something about (0+ / 0-)

        product testing. The number one principle of product testing is that quality, and reliability, and safety are designed in, not achieved by more testing.

        The second principle is that not every individual item can be fully tested. A lot of testing is destructive. Complete testing in some cases is more expensive than the rest of the manufacturing process.

        The third principle is that "complete testing" is everything you can think of testing, not everything that needs to be tested. And even at that level, you never cover 100% of the faults you can think of, much less the faults that don't readily come to mind that you never test for. It's the corner cases and odd occurrences that usually kill people - hardly anyone intentionally manufactures children's toys studded with razor blades, or intentionally sells cars with accelerators that stick.

        Would you have thought of testing dog food for melamine? Because no one else did until dogs started dieing. And what other chemicals might potentially contaminate animal food, or even human food, lethally? There are probably tens of thousands. Should we test every potato chip for every one of those? Of course it can be done statistically, which means there's a statistical chance we'll miss the small number of lethally contaminated products - contamination due to someone's carelessness or economically-induced negligence.

        It's fair to sue the manufacturer because the manufacturer has considerably more knowledge about the design and manufacture of the product than anyone else - somewhere there's an engineering manager who knows what corners were cut to save a nickel. And the manufacturer has the responsibility to perform due diligence with respect to the purchased components they incorporate into their products.

        Beyond that, do you have any conception of how many individual products exist that would have to be subjected to you government-run testing scheme? And how long it takes to thoroughly test a product?

        Even if your scheme was useful, which it isn't, it's a logistical impossibility.

        Bitte sag mir wer das Märchen vom Erwachsen sein erfand

        by badger on Sun Dec 06, 2009 at 05:58:10 PM PST

        [ Parent ]

        •  There can be a database of all products sold (0+ / 0-)

          on the internet with the tests performed.

          It would certainly be a better system than torts which does not really work at all.

          •  Since you love this testing idea, what do you do (0+ / 0-)

            if the tests come out provably wrong, after the product has been approved. You don't have a viable replacement for torts because it seems what you really don't want is a remedy for individuals hurt. Let them just eat it and lie back in the shadows while more of the dangerous product or service goes into the marketplace to injure others. Or maybe you should try to explain why the tort system does not work. With examples and evidence, not just a farfetched idea without apparent practicality to it.

            •  There are viable replacements for Torts (0+ / 0-)

              Some countries have no fault insurance, for example.

              Torts just makes money for lawyers.

              •  With the experience spread here on what insurance (0+ / 0-)

                companies here do, that is a nonstarter. And you also have to look and see whether those countries have single payer health plans to cover the expenses not covered for the victims by insurance. nsd hows to pay for it. If you think that'sa good idea, work through the details and post a diary. No fault auto insurance here in spots has not stopped claims and litigation, since generally it does not cover various sorts of claims. If what you are expecting to do is to eliminate lost wages or pain and suffering, you need to explan why, and why you think it will work better. One liners don't do it.

  •  Doctors have been had (5+ / 0-)

    Sad to see how the medical profession is buying into the argument of the insurance industry.  A majority of states now have some form of so-called "tort reform" (read: caps on an injured person's recovery for malpractice).  Those states do not, however, have lower malpractice premiums.

    I'd also point out that the insurance industry and the medical profession have been remarkably selective on this issue.  Why is it that only physicians are entitled to preferential treatment when it comes to tort damages?  Why not other types of defendants?

    As for the OP's problems with joint and several liability, if a doctor believes that other parties are totally or partially responsible for the plaintiff's injury, the doctor may sue those parties for indemnification or contribution.  In other words, the law has already provided a remedy for this problem.

  •  what are the figures for malpractice insurance? (1+ / 0-)
    Recommended by:
    Bush Bites

    isn't that a significant cost to the system as well?

  •  Doctors seeking to file suit (1+ / 0-)
    Recommended by:
    ban nock

    should be barred from doing so.

    Or if they get to file a suit, their damages should be restricted to $250,000, no matter what their actual damages.

    Doctors should be required to bring lawsuits in 'special courts', where the validity of their case is determined by a panel of trial lawyers.

    How does that feel? That's what doctors want to do to the rest of us.

    60 for the Senate. Obama 08.

    by bornadem on Sun Dec 06, 2009 at 05:25:28 PM PST

    •  MDs Filing Suit (0+ / 0-)

      I'm okay with your concept.  If anyone files a suit where there is no reasonable basis to proceed, then there should be award limits, if not sanctions on the plaintiff, and perhaps the atty.  

      •  Fine, let an auto insurance panel (0+ / 0-)

        decide if a doctor who's been injured in an auto accident decide  has a "reasonable basis" to proceed.

        Judges and juries are good enough for everybody else, why are doctors special?

        60 for the Senate. Obama 08.

        by bornadem on Mon Dec 07, 2009 at 08:43:00 AM PST

        [ Parent ]

  •  Many of the Dkos community (2+ / 0-)
    Recommended by:
    FishBiscuit, penguinsong

    are so violently anti-physician, that any diary such as this immediately draws vicious fire.  I do not know this doctor.  I do not know if he is a good doctor or a bad doctor- but I do know this:  Having two malpractice actions against him is not evidence of anything.  If all the doctors who had been sued stopped practice, there would be no one to care for you.  I know thousands of doctors, and I know few who have practiced for more than 10 years who have not been sued.  (They consider themselves lucky, not better).  And yes, in more than 20,000 oeprating room cases, I have been named in suits twice. (Everyone in the room gets sued.) In each case, I was dropped before deposition- but each time I re-apply for privileges at a hospital, I have to write that I was sued twice.  Does that mean I should give up anesthesiology?

    The problem, which i diaried once, with similar nasty responses, is that there is a very poor correlation between judgements and actual malpractice.  Soem poeple win the lottery- and many who actually were victims of malpractice receive nothing.  The incredible cost of bringing a suit under our current system means that small cases are never heard, adn teh lawyers only provide access to the courts to the big money cases.  Add to that an adversary system with experts paid by the respective sides and unknowledgable juries, and we have a crapshoot.  the American Socitety of Anesthesiologists, with the largest study of its kind on closed claims found that blinded physician obeservers looking at whether or not malpractice occurred were highly correlated in tehir opinions- but that while malpractice was more likely to produce a judgement than quality care, ther was a poor correlation and outcome, rather than good or bad medicine was the primary determinant.  Many cases of bad medicine were not compensated- and many cases of good medicine were.

    A far fairer system- which would incerase, not decrease, access to the courts for malpractice would be one with a panel of judges, who quickly would learn the standard of care, and experts paid by the court, not by one side or the other.  Smaller cases ( and teh majority are smaller) woudl be heard, because teh cost of getting to trial would be so much less, and actual malpracice would be compensated.

    •  as an aside (1+ / 0-)
      Recommended by:
      penguinsong

      I am a member of a 190 physican group of anesthesiologists- we have 1/6 the industry average for malpractice claims against board certified anesthesiologists.  (and we self insure)  In an average year we have 8-12 letters of intent. So in an "average" group it would be 6 times that.  

      If your doctor has been in practice for 10-20 years, you can assume that he or she has been sued.

  •  While this may be true (0+ / 0-)

    you don't discuss the downsides of tort reform. Maybe you feel there aren't any.

    Economic Left/Right: -4.00 Social Libertarian/Authoritarian: -6.82

    Your argument is not Scottish.

    by AaronInSanDiego on Sun Dec 06, 2009 at 10:16:28 PM PST

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