A while ago, I got in an argument with a lawyer about tort reform and health care costs.
The lawyer felt that tort reform would do nothing to control health care costs. Her argument was that it's incredibly hard to bring a lawsuit against someone (i.e. there are no frivolous lawsuits) and she cited studies that said that malpractice did not significantly contribute to health care costs. Specifically, this was her comment on why C-section rates are high:
"All things that are related to malpractice, including insurance and suits, account for less than half of 1 percent of spending. So tort reform wouldn't actually lower medical care cost at all, contrary to the cleverly-executed agenda campaigns driven by decisive interest groups. Especially given that when it comes to actual malpractice suits (the rare one that makes it through impossible standards of scrutiny) almost every state has a cap on what can be paid out, or what can be claimed.
Essentially, it has NOTHING to do with trial attorneys who are pro-plaintiff rights. It has everything to do with insurance companies seeking to maximize profit. Insurance companies get to decide the value of a medical procedure or how much the medical professional is worth. They get to determine how much it costs to insure a medical professional, a formula which is partially determined on risk, as in, how competent the doctor is, how many complaints have been filed, etc.
They figured out that C-sections mean big money. Treating labor and delivery like an assembly line means more productivity, and thus, more payouts. Why have one doctor waste twelve hours with a stubborn fetus when you can deliver twelve in one hour, with the added benefit of epidural charge, oxygen tank charge. You get the idea.
Are there frivolous lawsuits out there? Of course. But they are rare, and I really wish before people spouted off an uniformed opinion, they actually took the time to do the research to see how difficult it really is to get any kind of malpractice case off the ground, how strict scrutiny actually is, and that each restriction on malpractice or rights to sue only hurts the injured."
Without looking at any articles, I know that fear of malpractice raises health care costs considerably. I am a doctor. I know how many tests I order that I know will be negative that I only get because of the fear of liability in that teeny tiny chance that I'm wrong. But how do you measure that in a study?
And how do you change those practices (ordering unnecessary tests, for example) that are based on fear and misperception rather than evidence or reality?ReplyDelete
It's not fear and misperception. Doctors do get sued for missing diagnoses, and the payouts are huge. But no one gets sued for doing an extra test (most of the time). The system is set up to promote CYA medicine, which is very, very expensive.Delete
I have seen publications stating 90% of doctors practice "defensive" medicine that is order unnecessary tests.ReplyDelete
I'm a pathologist, and I can definitely attest we do the same thing. Many immmunos are ordered and recuts done solely to cover one's butt. I'm sure even our tiny little segment adds significantly to the costs of healthcare in the US.ReplyDelete
Doctors on average are sued once every 10 years of practice or so. In that time they see thousands of patients, so in reality, getting sued *is* a rare event. However it is so unpleasant to be sued, and it takes so many years to complete the process, that it doesn't matter if it is rare. It is MUCH less unpleasant to over order tests that the patient is largely not paying for anyway. Plus, if an unnecessary test happens to find something unexpected, patients tend to be grateful the problem was detected rather than angry that they were subjected to more tests and procedures that they (also) don't pay for.ReplyDelete
Not sure what the solution is. You're right that a lot of the costs of malpractice are not easy to measure. It's an interesting analytical problem.
Even one lawsuit in 10 years is devastating, like you said. I'm interested to hear you thoughts as a researcher.Delete
Have not been sued, but has been served with pre-lawsuit investigations once a year when I was in community practice. When with large institution - prelawsuit investigations were flying to my desk twice a year. I am in low risk specialty. I do not do any procedures. I can attest that even these events made my professional life miserable. All I am saying is once every 10 years is successful law suit, but what we endure inbetween is much more.Delete
Case studies from states that have "tort reform" do not show a decrease in medical costs. The hypothesis is that doctors are not only practicing defensive medicine to avoid lawsuits, but also practicing it in what is thought as defending their license.ReplyDelete
Or maybe the defensive medicine practices are so ingrained that it would take decades for tort reform to actually decrease medical costs.Delete
This. Getting people to change entrenched behaviors is very difficult.Delete
I think the best point you brought is the amount of test ordered that were almost certain to be negative. In the ER setting if you even mention chest pain you have bought an admission. Those cost aren't factored in when they speak of tort reform. I think even if today tort reform were instituted we would still have those practices of defensive test ordering & hospital admits for the fear that they may miss the one.ReplyDelete
Just an M4 here, but we discharge people from the ED with chest pain all the time.Delete
In Canada, where civil malpractice suits are very rare for a variety of reasons, the standard of care tends to be much more reasonable. We still practice defensive medicine, and physicians do order unnecessary tests, but I definitely don't think its anywhere near the same degree as in the U.S. The example of chest pain is a good one. The complaint of chest pain, without elevated enzymes, or dynamic ECG changes, or a VERY compelling story, definitely does NOT buy you an admission. I think my hospital would ground to a halt if I admitted every patient over 40 who complains of chest pain! And I have yet to see any evidence that we have more people dropping dead of MIs after ED discharge than in the U.S.Delete
And in terms of oversight, most complaints around malpractice are handled by the our licensing bodies, and that process is definitely painful and protracted enough to keep physicians in line.
"almost every state has a cap on what can be paid out, or what can be claimed."ReplyDelete
BS. At least 20 states don't have caps on non-economic damages, and more importantly, almost no one has caps on economic damages. Claims for obstetrical malpractice general may involve huge economic claims, for instance if a child is profoundly disabled and requires long term care.
If you want to spend half an hour skimming through legalese, here's a document which has details of tort reform in each state:
I'd like to add, the studies do not look at doctors who settle the suits out of court (which can still be very stressful)ReplyDelete