Tort Reform Won't Fix Healthcare?, Ctd

by Patrick Appel

Readers are split on how much tort reform would help. A reader who doesn't think tort reform is the answer:

In Texas, the State legislature enacted drastic tort reform which basically made it extraordinarily difficult and expensive to file a medical malpractice case. They did so on the typical theory that it would reduce the cost of lawsuits and, thus, reduce insurance premiums for doctors. Doctors enthusiastically signed on. While it certainly reduced costs for the insurance companies, the premiums for doctors continued to go up and up. The insurance companies pocketed the monies that would have otherwise gone to victims of medical malpractice (because there really was no problem with frivolous med-mal suits being filed in the first place). Doctors Lost. Patients Lost. Insurance Companies Won. Sound familiar? 

I know that a number of states have imposed tort reform, but I haven't done much research into the various outcomes. Can anyone point me to a reform that has had better results? Or does anyone want to challenge this characterization of the Texas reform? A reader with an opposing view on tort reform:

“If you were to eliminate medical malpractice liability, even forgetting the negative consequences that would have for safety, accountability, and responsiveness, maybe we’d be talking about 1.5 percent of health care costs."

Kind of ignores the big one - the application of unnecessary procedures in order to avoid lawsuits.  Maybe no hard figure has been put on it - but that is just sophistry. Read here, here, and here. Maybe Daphne Eviatar knows something that medical practitioners do not but I doubt it. That phrase "a lot" may lack the precision she thinks is necessary but is she really still saying that "we are not talking about real money?"

Sheltering doctors from lawsuits might save money on defensive medicine, but it also limits what true victims of medical malpractice (full disclosure: I have family who have worked in this area of law) are able to receive in payment. If you are unable to work for the rest of your life because of medical errors, a few hundred thousand dollars, the cap on damages in some states, isn't going to do near enough to compensate you for your loss, especially if you have ongoing medical needs. On the other hand, workers in fields meant to ensure a public good, like police officers, are given extra legal protections because they would be unable to do their jobs if they were always afraid of lawsuits, and the public good they provide outweighs the grievances of minor victims. You can still sue police officers, or similarly protected professionals, but it's a more involved process and the hurdles you have to clear are higher. Many doctors have some of these protections already, but I'm not against smart tort reform if there is evidence that it works and if it doesn't create too many perverse unintended consequences. A doctor's perspective:

Absence of proof is not proof of absence. It is true that the measurable costs of tort reform, such as malpractice insurance, are such a low percentage of overall health care expenditures that there are few savings to be gained from that specifically. However, the difficulty quantifying the cost of defensive medicine does not mean it is trivial. Avoiding litigation is a significant concern for many clinicians and [over]ordering studies, rightly or wrongly, mollifies patients and reassures (falsely, at times) doctors that they have lowered their risk of a lawsuit.  

Even if a better system were implemented tomorrow for collaborative, non-punitive performance improvement while maintaining a means for redress in the courts where appropriate, I suspect it would take a generation, maybe two, for doctors to give up defensive medicine. However irrational it might be, it is deeply, deeply ingrained.

This is related, obliquely, to this post. The credit goes not only to the test, but to the child's pediatrician who heard an abnormal heart sound and made the appropriate referral.  Had he missed that finding, the test would not have been done in such a timely fashion and the outcome possibly far different.  Another less happy, scenario is that the cardiologist thought the heart sounds were fine and the echo not indicated, did the study "just in case," with the additional bonus of being a billable procedure, and there was a complication of, say, the sedation required for some types of echocardiograms.  Some tests have value in asymptomatic patients to detect disease early, when it is treatable. Many others, possibly most, have indications based on clinical criteria. Doing those studies "just in case," outside the confines of a research trial, not only increases cost with little gain, but can also pose additional danger to patients. Discussions about bending the curve should consider this, which is not rationing care or sending grandma to the death panel, but practicing smart, cost-effective, ethical medicine.

Another doctor writes:

There may be "no good study that's been able to put a number on" the cost of defensive medicine, but that cost should certainly not be discounted.  During my three-year emergency medicine residency, it was easy to see how the practice of attending physicians who'd been sued differed from those who hadn't. In general, the older physicians, who'd been sued or seen their colleagues sued, were far more likely to order expensive studies or short-term "observation" admissions for young, healthy patients. One attending in particular, who was sued during my second year, began agonizing over every potential discharge from the emergency department, and ordering many more expensive nuclear imaging studies, even though his lawsuit defense was successful, and he was exonerated of the charges of malpractice.

In addition to the financial cost of unnecessary studies, there is a rarely discussed emotional cost for physicians. Most physicians do not enjoy practicing "defensive" medicine.  They don't like ordering tests for patients that they would not order for their own family members if they were in the patients' place. They don't enjoy prescribing antibiotics for patients who almost certainly have viral infections. It's no fun going to work when, instead of feeling like your mission is to help people, you start to feel like your most important job is to evade the clutches of unseen, lurking malpractice lawyers.

I really think that these emotional costs, which are felt even by physicians, like me, who've never been sued, have a bigger effect on most physicians than the financial costs of malpractice premiums. They've been a major factor in the decision of the physicians I've known who've left the practice of medicine. And if we want physicians to move away from the fee-for-service model, toward less lucrative salaried positions, I think reducing the emotional toll of the malpractice environment could be an important part of a reasonable healthcare reform deal.