The Call for Medical Malpractice Reform as Health Care Reform: Sound and Fury? (Redux & Remix)
Filed under: Health Reform, Medical Malpractice, Obama Administration
Center for Disease Control, 1964
In Obama’s speech before Congress, he mentioned (to booming and overwhelmingly Republican applause) the prospect of medical malpractice reform– particularly as it relates to “defensive medicine” and patient safety:
Now, finally, many in this chamber — particularly on the Republican side of the aisle — have long insisted that reforming our medical malpractice laws can help bring down the cost of health care. (Applause.) Now — there you go. There you go. Now, I don’t believe malpractice reform is a silver bullet, but I’ve talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. (Applause.) So I’m proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine. (Applause.) I know that the Bush administration considered authorizing demonstration projects in individual states to test these ideas. I think it’s a good idea, and I’m directing my Secretary of Health and Human Services to move forward on this initiative today. (Applause.)
A few months back we covered the issue of malpractice reform and “defensive medicine” here on HRW. Not much has changed since then (see below), but as we speak of those things which can make patients safer– including the prospect of doctors and hospitals being subject to suit– this article from the NY Times’ Prescriptions, “A Hospital Hand-Washing Project to Save Lives and Money,” is worth considering. In it, we are told of a study undertaken, for the chief hospital accrediting agency (the Joint Commission), by eight prominent hospitals to ascertain whether or not hospital staff were washing their hands in accord with the central standards of the World Health Organization and the Centers for Disease Control and Prevention. They were not. Egregiously not. NY Times’ Prescriptions reports:
Hand-washing is considered vital in health care settings to prevent the spread of potentially-infectious pathogens, like Methicillin-resistant Staphylococus aureus. And close attention to such basic hygiene could be a way of reducing the nation’s hospital health care bill by billions of dollars.
To create a baseline, each hospital agreed last spring to carefully measure its current compliance, using trained unidentified observers. To the surprise of many administrators, the hospitals found that caregivers on average washed their hands fewer than half the times they entered or exited a patient’s room.
and that
The low compliance rates, which ranged from about 30 percent to 70 percent at individual hospitals, “are hallmarks of processes that are not in control,” said Dr. Mark R. Chassin, the Joint Commission’s president.
Findings of shockingly poor hand-washing compliance are not new in hospitals. Other studies have produced comparable figures, and the stories of fatal consequences have become tragically routine.
The disease control agency estimates there are 1.7 million infection cases a year in hospitals and that 99,000 patients die after contracting them (although infection may not be the sole cause). It projects the cost of treating those patients at $20 billion a year.
As I say in the post below, “Seemingly, one would define “defensive medicine” as that which a doctor [or hospital] does, which he or she would not do, if solely exercising his or her [or its] discretion without the fear of being sued. Therefore, might I suggest that “defensive medicine” is only excessive if the doctor’s [or hospital's] best estimation of the situation is correct.”
Apparently, contrary to the Joint Commission, the World Health Organization, and the Center for Disease Control and Prevention, the best estimation of a great many hospital staff is that they need not wash their hands.
REDUX, June 09. In case you missed it.
"Dick the butcher and Smith the weaver seizing the Clerk of Chatham, Part II of Henry the Sixth, Act IV, Scene 2, Shakespeare." Artist, William Bunbury (1750- 1811)
“THE FIRST THING WE DO, LET’S KILL ALL THE LAWYERS.”
–Wm. Shakespeare, King Henry VI, Part II, (Act IV), Scene 2
[Today's post comes from a Bloomberg.com article I found via Kevin Giordano at http://twitter.com/SHHealthcareLaw -- a great source for Health Law news.]
The familiar refrain of “medical malpractice reform” has once again begun to echo through the popular landscape. It is being proffered as a means of achieving health care reform. But recent studies seem to show, as Bloomberg reports, that we might be better served to look elsewhere:
Protecting doctors from lawsuits may do more to gain political cover for President Barack Obama’s health-care overhaul than to rein in medical costs.
While Obama vowed to address physicians’ malpractice worries in a speech yesterday, 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, said Amitabh Chandra, a Harvard University economist. Chandra estimated the cost at $12 per person in the U.S., or about $3.6 billion, in a 2005 study. Insurer WellPoint Inc. said last month that liability wasn’t driving premiums….
“Medical malpractice dollars are a red herring,” Chandra said in a telephone interview. “No serious economist thinks that saving money in med mal is the way to improve productivity in the system. There’s so many other sources of inefficiency.”
The relative cost figures regarding the costs associated with malpractice are worth noting –as reported by Bloomberg:
About 10 percent of the cost of medical services is linked to malpractice lawsuits and more intensive diagnostic testing due to defensive medicine, according to a January 2006 report prepared by PricewaterhouseCoopers LLP for the insurers’ group America’s Health Insurance Plans.
2 Percent of Spending
The figures were taken from a March 2003 study by the U.S. Department of Health and Human Services that estimated the direct cost of medical malpractice was 2 percent of the nation’s health-care spending and said defensive medical practices accounted for 5 percent to 9 percent of the overall expense.
A 2004 report by the Congressional Budget Office also pegged medical malpractice costs at 2 percent of U.S. health spending and “even significant reductions” would do little to reduce the growth of health-care expenses.
Defensive Medicine
As is, I believe, readily apparent, defensive medicine comprises a great deal of that estimated expense associated with malpractice. It may benefit us to consider for a moment just what defensive medicine is. Seemingly, one would define “defensive medicine” as that which a doctor does, which he or she would not do, if solely exercising his or her discretion without the fear of being sued. Therefore, might I suggest that “defensive medicine” is only excessive if the doctor’s best estimation of the situation is correct.
Bloomberg reports that “The U.S. Institute of Medicine found a decade ago that medical errors kill 98,000 Americans a year” according to Les Weisbrod, president of the Washington-based trial lawyers’ group, the American Association of Justice.
According to Medical News Today, the medical error fatality figures above were supported by “Dr. Chunliu Zhan and Dr. Marlene R. Miller in a research study published in the Journal of the American Medical Association (JAMA) in October of 2003. The Zhan and Miller study supported the Institute of Medicine’s (IOM) 1999 report conclusion, which found that medical errors caused up to 98,000 deaths annually and should be considered a national epidemic.
A study by HealthGrades found more than twice that number in “potentially preventable deaths.”
In a post entitled Surgical Checklist Said to Save Lives & Money, we noted the following:
The use of a basic checklist was shown to be associated with a substantial decrease in surgical deaths and complications. In what the A.P. referred to as a “a large international study of how to avoid blatant operating room mistakes,” researchers found a 47 per cent decrease in death and a more than one third decrease in complications-from 11% to 7%- concomitant with the use of a 19 point checklist designed by the World Health Organization.
A.P reports that regarding the elements on the list (many of which concern matters such as verifying the patient’s identification, marking the area to be incised with a magic marker, discussing patient allergies and surgical team member responsibilities, and accounting for all needles, sponges and instruments after the surgery) U.S. hospitals have been required since 2004 to take some of these precautions. But the 19-item checklist used in the study was far more detailed than what is required or what many institutions do.
The researchers estimated that implementing the longer checklist in all U.S. operating rooms would save at least $15 billion a year. The study, which was conducted in both “wealthy” and “poor” nations in eight city hospitals across the world (including Seattle, Washington), was published in the New England Journal of Medicine; its results were said to have “startled the researchers.”
Finally, it should be noted that as someone with a J.D. after his name who has read more malpractice cases than I care to remember, I don’t claim to be unfettered by professional bias. And to make the case for fact-based reflection upon a subject is not to dismiss the underlying concerns of the subject as unwarranted– it is merely a call for appropriate perspective: given the number of yearly fatalities due to error (not to mention injuries due to the same), I am not prepared to categorize what doctors refer to as “defensive medicine” as a wholly unfounded expense.
As for the Shakespeare quote, “First thing we do, let’s kill all the lawyers,” I’ll leave that in the more than capable hands of Attorney Howard L. Nations:
Those who use this phrase pejoratively against lawyers are as miserably misguided about their Shakespeare as they are about the judicial system which they disdain so freely.
Even a cursory reading of the context in which the lawyer killing statement is made in King Henry VI, Part II, (Act IV), Scene 2, reveals that Shakespeare was paying great and deserved homage to our venerable profession as the front line defenders of democracy.
The accolade is spoken by Dick the Butcher, a follower of anarchist Jack Cade, whom Shakespeare depicts as “the head of an army of rabble and a demagogue pandering to the ignorant,” who sought to overthrow the government. Shakespeare’s acknowledgment that the first thing any potential tyrant must do to eliminate freedom is to “kill all the lawyers” is, indeed, a classic and well-deserved compliment to our distinguished profession.
Having practiced in health care law for many years, as well as having defended many medical malpractice cases, I have a great respect for the medical profession and the complexities that can be encountered in clinicl decision-making. Within clincal judgment lies the idea of “defensive medicine”. When physicians tell me that a course of action was taken as a defensive medicine practice, often it turns out they mean that they just wanted to further “rule out” the possibility of an indolent condition existing, know that sometime disease processes dont always play by the rules.
“Defensive medicine” does exist. Some physicians will order unwarranted tests solely as malpractice protection. But experience tells us trying to determine the extent of defensive medicine is difficult because many physicians will include clinical decisions that were made “just to be sure”, that a diagnosis wasnt being missed. I would bet that many of those same decision would be made even if the doctor knew they could not be sued. Consequently, cost estimates are most likely unreliable. Also, what is unknown, and unreported, is the costs saved when some of these “defensive tests” identify an medical condition and treatment is undertaken before a greater problem develops..
As a current practicing nurse at the bedside in neonatal intensive care as well as my observations during my 7 years as a travel nurse of a wide range of adult intensive care units in our US hospitals brought me to this conclusion. Most often, reimbursement determines how “Defensive Medicine” alters what tests physician’s order. Unfortunately, it tends to be over utilized for patients who have insurance coverage and barely thought of if they are self payers.
I do not believe a majority of physician’s order excessive test out of fear of being sued. Most physicians feel their professional opinions are sound sometimes to a fault. What I hear them complain of frequently, is the cost of their malpractice insurance premiums.
So, defensive medicine, no. However, I would agree with “strategic medicine” some instances with strategy linked solely to profit. What we need is preventative medicine. Prevention and education is where we cut health problems off before they get costly.
Never the less, health care professionals need to be held accountable or mistakes will continue to be a major concern. Most of the time, the health care setting can easily be misinterpreted in regards to how decisions are made and who as well as what effects the final word.
What’s seldom mentioned, is that the more widely tests such as scans are used — the cheaper they become. The key may be to make these tests so cheap that they are not seen as a problem, but as desirable massive routine screening, as are blood pressure checks, mammograms, etc.