Moving the Battle of the Experts to the Hot Tub?

Michael Ricciardelli’s recent post concerning a judge-directed negotiation pilot program in the Bronx to facilitate early resolution of medical malpractice cases reminded me of another idea to improve our expensive, expert-deadlocked, malpractice litigation system: hot tubbing.

I first heard this term (related to litigation, that is) earlier this Spring when a former colleague shared an article by Bryan Finlay QC, head of the litigation practice at WeirFoulds LLP in Canada, and law student, Kristi Collins, that discusses hot tubbing as an example of a new tool for judges to use in managing evidence in complex litigation.  According to this article, hot tubbing, also less colorfully referred to as concurrent evidence, refers to “a method of presenting expert evidence all at once by having the expert witnesses for both parties give testimony, answer questions, and fully discuss the expert evidence on one panel.” Finlay and Collins report that this practice originated in Australia in recent years and is gaining attention in Canada, the United Kingdom, and the United States.

Honorable Justice Peter McClellan, Chief Judge at Common Law, Supreme Court of New South Wales, Australia, describes the concurrent evidence process in a 2010 article in the Journal of Court Innovation:

Concurrent evidence is essentially a discussion chaired by the judge in which the various experts, the parties, the advocates and the judge engage in a cooperative endeavor to identify the issues and arrive where possible at a common resolution of them. Where resolution of issues is not possible, a structured discussion, with the judge as chairperson, allows the experts to give their opinions without the constraints of the adversarial process and in a forum which enables them to respond directly to each other. The judge is not confined to the opinion of one advisor but has the benefit of multiple advisors who are rigorously examined in public.

* * *

[Concurrent evidence] requires the experts retained by the parties to prepare a written report in the conventional fashion. The reports are exchanged and, as is now the case in many Australian courts, the experts are required to meet without the parties or their representatives to discuss those reports. . . .  The experts are required to prepare a bullet-point document incorporating a summary of the matters upon which they agree, but, more significantly, matters upon which they disagree. The experts are sworn together and, using the summary of matters upon which they disagree, the judge settles an agenda with counsel for a “directed” discussion, chaired by the judge, of the issues in disagreement. The process provides an opportunity for each expert to place his or her view on a particular issue or sub-issue before the court. The experts are encouraged to ask and answer questions of each other. The advocates also may ask questions during the course of the discussion to ensure that an expert’s opinion is fully articulated and tested against a contrary opinion. At the end of the discussion, the judge will ask a general question to ensure that all of the experts have had the opportunity to fully explain their positions.

(To see how hot tubbing works in trials in Australia, you can watch a video narrated by Justice McClellan here.)

Finlay and Collins report that “[e]xperts tend to like the hot-tubbing method.”  As they explain, “[t]he procedure allows them to more fully flesh-out and discuss their positions in, at least the beginning, a less adversarial way.  They like the opportunity to pose questions to each other.”  Justice McClellan agrees, reporting that “[t]he change in procedure has been met with overwhelming support from the experts and their professional organizations.”  This can lead to a more collegial and less partisan and adversarial exchange among professional colleagues.  This process may also reduce the likelihood that experts will take extreme positions, knowing that a colleague stands ready to challenge the basis for their statement.

Justice McClellan also relayed that “[a]lthough counsel may be hesitant about the process initially, [he has] heard little criticism once they have experienced it.”

Finders of fact, too, seem to like what hot tubbing offers.  Justice McClellan, who has presided over numerous hot tubs, is an unabashed proponent:

From the decision-maker’s perspective, the opportunity to observe the experts in conversation with each other about the matter, together with the ability to ask and answer each others’ questions, greatly enhances the capacity of the judge to decide which expert to accept. Rather than have a person’s expertise translated or colored by the skill of the advocate, and as we know the impact of the advocate can be significant, the experts can express their views in their own words. There also are benefits which aid in the decision-writing process. Concurrent evidence allows for a well-organized transcript because each expert answers the same question at the same point in the proceeding.

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Medical Malpractice Settlement Negotiations: Early and Often in the Bronx

A recent article in the New York Times by William Glaberson on a form of fast track medical malpractice resolution being piloted in the Bronx is well worth a read and some consideration. The program puts a judge with better than average medical knowledge, assisted by a nurse with legal training, at the center of early negotiations between the parties.

Glaberson writes:

The approach, known as judge-directed negotiation, is seen by the Obama administration as offering states a way to curb liability expenses that have sharply increased health care costs nationally. Getting judges involved earlier, more often and much more actively in pushing for settlements, is its crucial ingredient - evident in the recent session watched by this reporter, one of many that are usually not attended by the public.

New York officials say the program bypasses years of court battles, limiting legal costs while providing injured patients with compensation that is likely to be less than a jury would award but can be paid out years earlier, without lengthy appeals.

Published in 1911, Ambrose Bierce’s Devil’s Dictionary defines “litigation” as “A machine which you go into as a pig and come out of as a sausage.”

With early judicial intervention, as opposed to a forced mediation session just prior to the prospect of trial, it would seem there is more room for negotiation. The lawyers have not spent years in preparation, nor the reams of money requisite for discovery, depositions and reams of medical expert reports. There is, of course, a price to be paid for the time and money invested in lengthy litigation– on all sides.

The Bronx program, overseen by the federal Agency for Healthcare Research and Quality, is for malpractice suits against public entities. But with success comes expansion:

Under a $3 million federal grant, the city courts are now expanding the program beyond the Bronx, where it started in cases against city hospitals, to courts in Brooklyn and Manhattan, as well as to cases against private hospitals. It is to begin in Buffalo courts in the fall.

Success? The Times reports that “The city’s public hospitals say the program, along with other changes, like sharply increased attention to safety, has helped save $66 million in malpractice costs a year.”

And let’s not forget the time. Or that, although there’s some variation in findings, more than 90% and perhaps as high as 98% of all cases ultimately settle anyways.

“The King Has No Clothes!” and Other Useful Truths in the Health Care Setting

Two recent  articles in the Wall Street Journal’s Health Blog are well worth considering. The one article discusses the efficacy of the “aviation model” for medical practice safety. Noting that the surgical checklist is itself cockpit inspired, the article considers a report which questions whether other aviation safety models might be also effective in a health care setting. WSJ writes:

A paper published recently in the Milbank Quarterly, a peer-reviewed population-health and health-policy journal, suggests extracting even more lessons from the aviation world, offering 15 examples of error-reduction policies that aren’t always routinely used in the health-care setting.

The surgical checklist has proved effective. 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 few aviation examples the WSJ noted in the article mentioned above involve communication and they, I believe, are worth considering for a moment:

The “sterile cockpit” rule. During certain critical phases of flight, pilots and crew aren’t supposed to chat idly or do anything else not essential to their jobs. Similarly, nonessential activities might be prohibited during certain phases of medical practice, which would depend on the practice (incision during surgery, for example.)

First-names only rule. Regardless of rank or seniority, cockpit personnel address each other by their first names in order to “flatten the social hierarchy” and “foster a culture in which colleagues feel more comfortable questioning one another,” the authors write. Doing the same for surgical or medical teams might promote a similar culture, though the issue is made “complex” by the fact that patients prefer “formality” in their relationships with their doctors.

These examples, much like the surgical checklist, stand out for being common sensical and one would imagine, relatively easy to implement.

Anyone involved in a moderately complex task should be able to relate to the benefit of a “no chatter zone” during the portions of the task which require greater concentration or present greater risk or more dire ramifications. Much of what I do on any given day, because I do it so often, is largely rote. But some moments are crucial; it helps to then not be listening to a co-worker recount the latest misadventure involving cute children, a puppy and some potato salad.

The First-names only rule is perhaps a bit more attenuated, but perhaps even more important. People make mistakes; it is crucial that one has colleagues or friends willing to point them out. The failure to be informed of one’s own errors can have critical impact. History and literature are filled with examples. Think of King Lear and his Fool–someone at court able to tell the King the truth– lest the ruler find himself, like that other famously fabled King, parading through town without clothes. A more modern, and real, example is President Kennedy, his Cabinet and the Bay of Pigs fiasco–a room full of men who thought better but engaged in “groupthink” to the point that they ultimately functioned as rubber stamp sycophants to the President– keeping their misgivings to themselves. After the disaster which was the Bay of Pigs, Kennedy removed himself from Cabinet meetings to allow his counsel to do just that. And for the boxing afficianado (boxing is not sport so much as life distilled– Classical Tragedy, with only the how and when to be resolved) it is an oft repeated tale in which after years of hard and driven work with a dedicated trainer a new Champion with new money is found by new friends–or “hangers-on” as they are most often called in the trade. These omnipresent “friends” with no visible means of support beyond the boxer tend to say things like “You’re right Champ” and  ”You’re the Champion Of The Entire World! You don’t have to train if you don’t want to.” The results are often brutal in their reckoning. Ask Mike Tyson.

But in a more recent article, “Report: Communication Breakdowns Lead to Hospital Errors,” the Wall Street Journal gives us other cause for concern–more concrete, more direct to the topic at hand. The Journal writes:

According to a two-pronged survey of operating-room and critical-care nurses conducted by their professional associations and VitalSmarts, a global training and consulting firm, 85% of 2,383 nurses surveyed said they’d been in a situation where measures put in place to reduce errors -  including checklists or hand-off protocols - warned them of a problem that would have otherwise harmed a patient.

That’s the good news. The bad is that 58% of the nurses said they’d been in situations where it was “either unsafe to speak up or they were unable to get others to listen.”

The report focuses on what causes this type of communication breakdown, including three concerns that are rarely discussed by health-care teams: dangerous shortcuts, incompetence and disrespect. Among respondents to a separate survey of 4,235 nurses, 84% reported working with people who take potentially dangerous shortcuts, such as not washing hands for long enough, with 34% saying shortcuts had led to near misses and 26% saying they caused harm to patients. Some 19% say incompetence or lack of required skills have harmed patients and 20% say that disrespect is making them seriously consider leaving their profession.

Despite all this, concerns “are often left undiscussed,” the report says.

Do I Need 9 Lives Just to Get a Cat Scan?

Tonight’s post will be relatively brief, as I wish only to call attention to another post and a particularly disturbing number contained therein. The post was published over at The Health Care Blog by Robert Wachter, MD, a leading figure in the modern patient safety movement. It is entitled “A Game-Changing Statistic: 1 in 250.” It is. Or at least it should be. You should take a minute or two to read it– it’s provoking, and not in a good way.

The 1 in 250 refers to the odds of getting cancer from a single CT scan.

Wachter writes:

Last month, my colleague Rebecca Smith-Bindman, professor of radiology, epidemiology, and ob/gyn at UCSF and one of the nation’s experts in the risks of radiographs, gave Medical Grand Rounds at UCSF. Her talk was brimming with amazing statistics, but this is the one that took my breath away:

A 20-year old woman who gets an abdominal-pelvic CT scan (i.e., just about any young woman coming to the ED with belly pain) has a 1 in 250 chance of getting cancer from that single scan.

Did that fully register? One CAT scan, which until recently most of us ordered with no more restraint than we exhibit when asking the Starbucks barista for a tall latte, will cause cancer in one out of every 250 patients. Two-hundred fifty: that’s the number of students in my college Bio 101 class. Wow.

Wachter adds fuel to that disturbing fire and reports that his above mentioned colleague found both increased radiation dosage (66% greater than that which is the usually quoted dose) and wide variation in dosage among different scanners in 4 Bay area hospitals.

If the variation and increased dosage isn’t scary enough, perhaps this nugget from Wachter regarding the usual dose is:

• A multiphase abdominal/pelvic CT scan has the same radiation wallop as 500 transcontinental flights, 450 chest radiographs, and 74 mammograms.

The effects? Well, there’s the 1 in 250 number, but Wachter is kind enough to give us an aggregate estimate:

• The best estimates are that radiation from CT scans causes 29,000 excess cancers each year in the U.S., mostly in women.
• Researchers estimate that 15,000 people will die from the direct effects of the 72 million CT scans performed in 2007 alone.

And if that weren’t enough, it seems the death and danger are accompanied by widespread ignorance–

• A 2004 study found that less than 50 percent of radiologists, and 9 percent of ER docs, were aware that CT scans could increase the subsequent risk of cancer.

Unfortunately, quite a few CT scans are done each year. And the number has risen dramatically over the last few decades–a more cynical man (or perhaps just a man who has read Atul Gawande and Adam Smith) might think the increase in usage might bear some relationship to the high cost of purchase for a CT scan machine-Buy it and they will come. Wachter tells us that

• One in five Americans will receive a CT scan in any given year; some experts suggest that at least one-third of those scans are unnecessary.

Even if only one-fifth were unnecessary, with a 1 in 250 chance of getting cancer from a single scan, the odds are ugly– and at least in some cases, amount to a dire risk without any merit whatsoever. In other cases, we risk greatly for minimal gain–and, perhaps, most disturbingly, that risk is often called for by doctors and radiologists who are sans knowledge of the risk. Yes,  a 1 in 250 chance of getting cancer from a single scan–when you perform 72 million of them per year–should be a game changer.

Michael Millenson on Medical Error and “Letting Children Die Unneccesarily”

Sometimes misery neither loves, nor is especially reassured by, company.  Acclaimed author and president of Health Quality Advisors LLC, Michael Millenson, recently published an article over at Health Affairs and The Health Care blog well worth considering. It’s entitled “Why We Still Kill Patients.” And no, that’s not a question.

My recent articles examining the Medicare “errors contributing to death” (at a rate of 180,000 per year according to the Inspector General of the Department of Health and Human Services, Daniel R. Levinson), and my personal experience lately and prior (Thanksgiving & Medical Malpractice), have left me less than sanguine with regard to the doctor’s art as practiced in hospitals. Granted, I wasn’t particularly sanguine before– having long held the view that before we talk about malpractice reform, perhaps we could get hospital employees to at least wash their hands.

But there’s something even more disturbing about Millenson’s article. I’ll let this portion speak for itself– though the benefit analysis of “complications” which follows is, in its own right, equally disturbing. Millenson writes:

Letting Children Die Unnecessarily

There are many examples of the inertia these beliefs produce, but one I cannot get out of my mind concerns sick children. At the 2009 AcademyHealth meeting, Dr. Richard Brilli of Nationwide Children’s Hospital presented data showing how a collaborative backed by some of the most respected organizations in pediatric care had slashed the rate of catheter-associated bloodstream infections (CA-BSIs). CA-BSIs are relatively common, very expensive and can be quite deadly (up to one quarter of victims die). Brilli said his collaborative had tried to recruit 330 pediatric intensive care units to join the initial participants, but after three years, just sixty had accepted. The reasons Brilli said he’s been given indicated to me that few had taken the time to examine the collaborative’s methodology or results. Instead, respondents asserted that their patients were sicker, their hospital was busier than the others in the study, that joining would make them look bad to others, or that the mortality reduction didn’t apply because “I am in a world famous center.”

Now fast-forward to the February, 2010 issue ^[10] of Pediatrics, in which the collaborative concluded: “CA-BSIs are a preventable cause of patient harm to critically ill children.” What you can’t see in the peer-reviewed literature is this context: at literally scores of hospitals which declined to participate in the collaborative, hundreds of sick children likely were injured or killed who probably would not have been harmed had the hospital been a collaborative member. Those harmed were tended to by dedicated staff who thought they were doing everything they could to help the kids in their care. They were dead wrong, but even today they may not know it. Certainly, their patients and the public do not.

You can find the rest of the article here.

Thanksgiving & Medical Malpractice

It is the verge of Thanksgiving and I find myself forced to consider medical malpractice again. Readers of this blog are well familiar with my stance on medical malpractice reform, which is often preceded by a disclosure that the J.D after my name means I have somewhat of a vested interest. But in addition to my ties to the law, like everyone else I have family ties as well. I’ll disclose that as well. I am both a son and a father, once a husband and a grandson, still a cousin and an uncle. And a nephew. I am 48 years old and have now lived to see serious medical malpractice up close and personal at least 4 times.

Last night I sat in a waiting room and listened to my 80 year old aunt scream and cry as her 50-something year old daughter died from a massive brain hemorrhage. I listened to my cousin’s children crying as they tried to figure out how they were going to tell their children that their “Ama” had died. I held my cousins as they cried. I held my brother. I smoked with my cousin’s husband–shellshocked, lost and aghast.  And 25 of us more or less crammed the waiting room over a period of 12 or 14 hours or so, wandering, hoping and praying that my cousin would come back from a doctor’s generally admitted error. It did not happen, and November 23rd was her last day on earth. I am an articulate man. But I do not think I can even come close to describing the pain and anguish I witnessed the last few days– or that which is to come as we prepare to bury my cousin Michelle.

A short time ago a doctor had drilled through my cousin’s skull in order to place a chemo port to treat her lymphoma– eschewing the use of a depth guide, he drilled too deep. And here we are. Again.

25 years ago I sat in a similar waiting room with the same aunt who was mourning last night and loads of other family after my 80 year old grandmother– a matriarch if ever there was one– had been hit by a car while crossing the road. After the first day, we were told that my grandmother would be fine and that she was stable and would need only an operation in a few days to fix her legs. I sat in my grandmother’s room and convinced her that although Jesus alone had fixed her in the past, that maybe sometimes God works through doctors too– and that this time they said that if she didn’t have the operation she would never walk again. We talked. I read her Bible verses. She relented. But a day before the scheduled surgery she suddenly died. From the impact of the collision, her head had swollen. When the swelling went down, a damaged blood vessel burst. The swelling had been keeping that vessel in tact. None of the doctors had thought to check. The doctor apologized; the hospital paid some small settled amount– my family too traumatized to carry on a protracted battle.

When my father passed away a few years back from an extremely rare (1 in a million), 100% fatal, organic brain disease with a sudden onset, I watched more serious errors made. By that time I was in my second year of law school.  I asked questions. I monitored. I pressed. My first battle was the day after his initial admittance with a weekend resident who was going to discharge my father with a patently erroneous and perfunctory diagnosis of Alzheimers, saying “there’s only so many tests we can run.” This despite the sudden onset of his symptoms, a number of which do not occur in Alzheimers. I won, he stayed– and he puzzled physicians of every stripe for weeks. The next error revolved around one doctor telling others that a very important portion of a series of tests had been run when they had not. The tests, measuring particular proteins and antibodies, would determine whether my father had something about as rare, which presents in a manner very similar to the 100% fatal disease, but can be treated– if caught promptly–by, believe it or not– steroids. Forced to prove the error to the neuroscience team at a conference table with the hospital liaison seated, I did. It was arduous, the chief of neurosurgeon nearly choked on his own hubris, and I received an apology, while my father received the omitted portions of the critical tests.

The results of the test were not what we had hoped for, and my father passed away around two weeks later. But that, I suppose, is not the point. Had he had the much hoped for disease which can be treated with steroids, and had I not discovered the omission and false reporting, my father would have lost his life from a treatable disease due to a wrong diagnosis and a failure to treat– along with a false report.

About 15 years ago my wife at the time bled heavily after a same day gynocological procedure. I contacted the doctors office and explained in detail the situation to the doctor’s receptionist because “the doctor was busy” and would not come to the phone. The doctor relayed through the receptionist that my  wife should take pain pills and relax. I  stressed again the severity of the bleeding and the pain. I was dismissed again out of hand– until I told the receptionist that she should tell that doctor that she had better be very sure of this diagnosis she had just made over the phone because if she’s wrong– and I somehow lost the mother of my children on account of it– I would take every single thing she owns– not because I want them– but because I would live to make her pay. The doctor agreed to see my wife, which was fortunate– because she had hemorrhaged, but lived.

Which is more than I can say for my cousin.

Last week I wrote a post here derived from an HHS study on medical mistakes. Largely taken from an article by the Inspector General of the Department of Health and Human Services, Daniel R. Levinson,

Physicians determined that about one in seven patients (13.5%) experienced at least one serious instance of harm from medical care that prolonged their hospital stay, caused permanent harm, required life-sustaining intervention, or contributed to their deaths. Projected to the entire Medicare population, this rate means an estimated 134,000 hospitalized Medicare beneficiaries experienced harm from medical care in one month, with the event contributing to death for 1.5%, or approximately 15,000 patients.

That’s per month. Some quick math will give us the yearly death figure: 15,000 x 12 months = 180,000 per year. And that’s just Medicare patients.

The “seriously harmed” equals 1,608,000 per year. Again, just Medicare.

Rest in Peace Michelle

Medicare, Hospitals, Serious Harm and Death

The Inspector General of the Department of Health and Human Services, Daniel R. Levinson, published an Op-ed in USA Today that is well worth considering.  The column, entitled “Medical mistakes plague Medicare patients,” speaks volumes. Levinson writes:

Today’s hospitals are modern-day marvels of healing, and we expect them to be models of patient safety as well. But a just-released report from my office shows that medical care is falling short for too many hospitalized Medicare patients. A decade after an Institute of Medicine study placed preventable medical errors among the leading causes of death in the United States, our latest study found that a disturbing number of hospitalized patients still endure harmful consequences from medical care, 44% of them preventable. These instances, which the report calls “adverse events,” include infections, surgical complications and medication errors

Such occurrences are not always preventable, particularly since many Medicare patients are elderly and have complicated health problems. But enough patient harm is avoidable to make a strong case for action. Hospitals must improve, but they need the help of lawmakers, medical professionals and patients to do so.

We’ve written about this issue before here on HRW (in the context of various calls for medical malpractice reform as part of health care reform and studies that show hospital staff neither washing their hands regularly nor utilizing the simple but effective surgical checklist). The Institute of Medicine study Inspector General Levinson referred to estimated 98,000 deaths per year. Last year I wrote:

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.”

And now this study. Look at the numbers; they aren’t pretty–and they cast some present doubt on the 98,000 number if one considers the rubric, “contributed to their deaths.” Levinson writes:

Errors prolonged hospital stays

This study began in response to a congressional mandate to determine the number of harmful medical events Medicare patients experienced, and the cost to taxpayers. My office arranged for physician reviewers to examine a random sample of 780 Medicare patients discharged from hospitals around the country during the month of October 2008.

Physicians determined that about one in seven patients (13.5%) experienced at least one serious instance of harm from medical care that prolonged their hospital stay, caused permanent harm, required life-sustaining intervention, or contributed to their deaths. Projected to the entire Medicare population, this rate means an estimated 134,000 hospitalized Medicare beneficiaries experienced harm from medical care in one month, with the event contributing to death for 1.5%, or approximately 15,000 patients.

That’s per month. Some quick math will give us the yearly death figure: 15,000 x 12 months = 180,000 per year. And that’s just Medicare patients.

The “seriously harmed” equals 1,608,000 per year. Again, just Medicare.

Levinson continues:

Strikingly, medication errors factored in more than half the patient fatalities in our sample, including use of the wrong drug, giving the wrong dosage, or inadequately treating known side effects. Such events were commonly caused by hospital staff diagnosing patients incorrectly or failing to closely monitor their conditions.

Less serious harm also occurred. An additional one in seven hospitalized Medicare patients experienced temporary problems, such as allergic reactions or injuries from falls. And many experienced multiple events, including an elderly heart patient who had six separate events during a single hospital stay. Obviously, this situation is unacceptable — and expensive, costing taxpayers more than $4 billion a year due to the need for additional treatment or longer hospitalizations (and even more if you add costs for follow-up care).

I’ve said it before and I’ll say it again. “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.”

You can read the rest of Inspector General Levinson’s Op-ed here. He offers some direction– much needed direction.

Orszag Proposes Evidence-Based Standards for Malpractice Reform

On October 20, the New York Times published an op-ed piece Peter Orszag, the director of the White House Office of Management and Budget from 2009 to 2010.  According to Orszag, the threat of medical malpractice liability leads to the practice of defensive medicine and a departure from the use of evidence-based guidelines.  To correct this pattern, Orszag proposes that medical liability laws be reformed to create a safe harbor for physicians who follow evidence-based guidelines.  Let’s break it down.

Defensive Medicine

Orszag posits that “too many doctors order unnecessary tests and treatments only because they believe it will protect them from a lawsuit.”  But what impact to defensive spending have on the bottom line?  Researchers and economists question the financial impact of medical malpractice litigation and defensive medicine.  As the HealthReformBlog published, Bloomberg reported the following:

[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… 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.

Malpractice is “a big issue for doctors but whether it’s a big issue for the American health-care system is another question,” [Robert Laszewski, an Alexandria, Virginia, consultant to health insurers and other companies], said in a telephone interview. “There are studies that indicate that medical malpractice reform would not have a huge impact on costs, but that is not what doctors think.”…

However, Orszag focuses not on the waste created from litigation, but the waste created from perceived threat of litigation.  He states, “[t]he academic literature tends to play down the role of medical liability laws in driving up health care costs. Doctors themselves, however, almost universally state that malpractice statutes lead to extraneous testing and treatment.”

Could physician fear be a larger problem than the perceived threat?  According to the same March 2003 study (as reported by Bloomberg), “defensive medical practices accounted for 5 percent to 9 percent of the overall expense.”  However, more recent research (nod to Jordan Cohen’s Reform Rodeo) reports that “annual medical liability system costs, including defensive medicine, are estimated to be $55.6 billion in 2008 dollars, or 2.4 percent of total health care spending.”

Therefore, reductions in defensive medical practices may, but will likely not, make a significant impact on health care spending.

Evidence-Based Safe Harbor

Orszag then argues, “[w]hat’s needed is a much more aggressive national effort to protect doctors who follow evidence-based guidelines. That’s the only way that malpractice reform could broadly promote the adoption of best practices.”  He explains the current problem with the law, and proposes a solution:

It is also conceivable that because [medical liability] laws usually focus on “customary practice” — that is, a doctor who has treated a patient the way most other doctors in the area would is considered safe from accusations of malpractice — they create a strong contagion effect among doctors. The laws, no matter how weak or stringent, may therefore explain why doctors in some parts of the country generally adopt much more intensive approaches than those in other areas do.

The traditional way to reform medical malpractice law has been to impose caps on liability — for example, by limiting punitive damages to something like $500,000. A far better strategy would be to provide safe harbor for doctors who follow evidence-based guidelines. Anyone who could demonstrate that he has followed the recommended course for treating a specific illness or condition could not be held liable.

This proposal raises many questions and issues with regard to implementation.

Issues of Implementation

What happens when the recommended course of treatment is inappropriate? No two patients are alike.  Feinstein & Horowitz raise the issue that “the results show comparative efficacy of treatment for an ‘average’ randomized patient, not for pertinent subgroups formed by such cogent clinical features as severity of symptoms, illness, co-morbidity, and other clinical nuances.”  In addition to the variation between patients and their unique combination of health problems, guidelines neglect to take into account patient preferences.  Also, many guidelines presuppose accurate diagnosis.

Timmermans & Mauck describe the problems associated with “cookbook” medicine put forth by critics of evidence-based medicine:

“Ironically, EBM may also result in a lower standard of safety by deskilling practitioners. Instead of using clinical judgment, practitioners will be encouraged to follow protocols that treat all patients as essentially interchangeable. Providers will therefore be poorly equipped to contend with the variations between patients they will encounter in actual clinical circumstances.”

What if the recommended course of treatment is wrong? Orszag explains the selection of evidence-based guidelines very simply.  “Organizations like the American Medical Association and the Institute of Medicine could also be called upon to issue the needed evidence-based standards for malpractice immunity.”  However, the consensus that surrounds guidelines is more complicated than that.

For instance, what if the American Medical Association and Institute of Medicine disagree over the recommended course of action?   According to David Atkins, et al., “[a]n evidence-based approach to health care policy decisions will neither eliminate controversy nor relieve policymakers of the difficult task of making decisions in the absence of clear scientific consensus… Differing values and resource constraints can produce conflict even when there is good evidence and the policy outcomes are clear.”

Additionally, Mendelson & Carino report that evidence based medicine “cannot be meaningfully practiced in the absence of good clinical studies. Lack of evidence is a major limitation of applying such principles–especially for technologies and medical practices that are not new and might not have been thoroughly tested.”

However, Orszag argues that PPACA will tackle other problems raised by critics.  For instance, Mendelson & Carino point out that “A second barrier to achieving evidence-based clinical practice is the lack of automation in the practice setting. It is unrealistic to expect doctors to be able to easily reference a clinical guideline in a busy practice setting.”  However these authors concede that the “[a]doption of computerized decision-support systems paired with EMRs have been shown to improve compliance with clinical guidelines for patients with diabetes and depression.”  Orszag believes “[s]ubsidies in the stimulus act help doctors pay for this kind of technology.”

In Conclusion…

Orszag’s proposal is intriguing, despite the questions raised regarding the effects of defensive medicine and the proposal’s implementation.  If defensive medicine is a race to the top — to see which physician can do the most to mitigate liability — any strategy to reduce waste is laudable.  Although the introduction of evidence-based guidelines as a legal standard for physicians may appear logical, there are still several hurdles to be overcome.

Finding an Understanding Between Doctors and Patients

A general perception has been that doctors choose their profession over their patients. The perception takes shape as medical professionals sometimes choose to protect their profession over the chance to improve the quality of medical care– whether doctors refusing to report a colleague’s mistake or perhaps even hindering the efforts of a doctor rating system.

So when medical mistakes occur and possible lawsuits are on the horizon, it’s no shock that medical professionals sometimes fail to own up to their mistakes–implementing instead a code of silence about the case to avoid or limit liability.  In a critical time when patients or family members are looking for answers, doctors can be unavailable to provide it for them. It would also not be a shock if, after any such information could be helpful to the patient, doctors did so under the advice of counsel.

However, a study has been recently reported by the NY Times which suggests that perhaps silence may not be the most prudent approach.  According the NY Times,

Since 2001, the University of Michigan Health System has handled patient injuries by initiating discussions with patients and families, conducting internal investigations and offering apologies with offers of compensation should those investigations reveal medical errors. To examine the repercussions of such an open disclosure with compensation policy, researchers analyzed the number of claims and lawsuits filed against the hospital system between 1995 and 2007, comparing data from before and after the policy took effect.

Contrary to fears that such transparency might worsen litigation, the researchers found that there were actually fewer lawsuits and claims after the hospital began its disclosure with compensation program. Moreover, the hospital system’s liability costs for lawsuits, patient compensation and legal fees dropped, and claims in general were resolved faster than ever before.

While it may seem counter-intuitive to admit fault from a litigation standpoint, these efforts at transparency and an acknowledgment have actually decreased the number of lawsuits.  Richard C. Boothman, who devised and carried out the disclosure program, says, “[w]hen you break that paradigm of litigation and give patients the chance to understand the human element of the other side — of the doctor and what they are struggling with — you find that people are far more forgiving and understanding than has been typically assumed.”

It’s an interesting proposition,  disclosure and accountability as both a means to litigation loss reduction and changing negative perceptions of the profession. In revealing the doctor’s ordeal– in disclosing the fault, one may move forward towards greater understanding between patients and doctors.

It’s also worth noting that additional disclosure methods are being studied.  The Wall Street Journal reports a study about a project, known as OpenNotes, where doctors share their notes with their patients electronically.  While doctors do complain that the OpenNotes may be burdensome, there are those who think it it may be worth the additional burden because it shows– perhaps whether or not the handwriting is decipherable–that doctors are willing to take the extra time to attempt to keep them informed.

But of course, it would better if patients actually understood their doctors. But this would be in stark contrast to a recent study we wrote about here on HRW last week. The study showed a woeful lack of communication (and a wide gap in perception) between hospital staff physicians and “their” patients:

• Only 18% of patients knew their main doctor by name.
• Sixty-seven per cent of doctors believed their patients knew them by name.
• Fifty-seven per cent of patients knew their diagnosis.
• Seventy-seven per cent of doctors believed their patients knew their diagnosis.
• Fifty-eight per cent of patients thought that physicians always explained things in a comprehensible way.
• Twenty-one per cent of doctors stated they always provided explanations of some kind.
• Sixty-six per cent of patients reported receiving a new medication in the hospital, 90% noted never being told of any adverse effects of these medications.
• Ninety-eight per cent of doctors stated that they at least sometimes discussed their patients’ fears and anxieties.
• Fifty-four per cent of patients said their doctors never did this.

Balancing Patient Demands and Physician Orders for Radiation Tests at the ER and Elsewhere

[Ed. Note: We are pleased to welcome Jennifer Jascoll to HRW. She is a second-year evening student at Seton Hall Law and a Research Assistant for the school’s Healthcare Compliance Certification Program.  She received her bachelor’s degree in Political Science from Bryn Mawr College and her master’s degree in Comparative Politics (Empire) from the London School of Economics and Political Science.]

Falling down stairs.  Hitting my head on a bowling ball.  Breaking my ankle and tearing two ligaments.  These are a few of the incidents that have landed me in the emergency room with a CT scan or an X-ray.  The AP has recently run four thought-provoking articles about the problems of balancing necessary and unnecessary tests administered during visits to the ER and elsewhere.

When should a person go to the ER? The American College of Emergency Physicians Foundation and other sources provide “tips” about the necessity of an ER visit when a person experiences symptoms such as:

• Difficulty breathing or shortness of breath
• Chest or upper abdominal pain or pressure lasting two minutes or more
• Loss of consciousness or sudden dizziness and weakness
• Confusion or changes in mental status

Fair enough.  The Foundation further advises patients to lower costs and “avoid unnecessary tests and procedures” by asking:

• Is this the best test or treatment?
• What are its costs, benefits, and risks?
• Are there alternative tests that are cheaper or less risky?
• Why do I need this test now, and what would happen if I don’t get it now?

Seems like common sense.  But just how many of us question the tests and procedures we undergo at the local ER?  Probably as many who think to ask whether our attending ER physician, in addition to the ER itself, is covered by our insurance.  After all, if a person is experiencing dizziness and confusion after hitting her head on a bowling ball, I doubt she will haggle over the necessity of a CT scan (or whether her attending physician is covered, which my father later tackled with the insurance company).

These tips may not get patients very far, however, as many ER physicians are said to overtest and overtreat for fear of malpractice lawsuits.  Lindsey Tanner, an AP reporter, writes that:

[t]he fear of missing something weighs heavily on every doctor’s mind.  But the stakes are highest in the ER, and that fear often leads to extra blood tests and imaging scans for what may be harmless chest pains, run-of-the-mill head bumps, and non-threatening stomachaches.

Maybe there shouldn’t be too much surprise here.  According to Dr. Angela Gardner, president of the American College of Emergency Physicians, ER physicians are among the 10 specialists most likely to be sued:

Our society puts more weight on technology than on physical exams….  In other words, why would you believe a doctor who only examines you when you can get an X-ray that can tell you something for sure?

Increased patient demand for imaging tests coupled with a concern that not placating that demand will create unhappy and litigious patients would also seem to play a role.

Overtesting doesn’t just apply to ER visits.  AP medical writer Marilynn Marchione reports a trend in this country favoring imaging tests over physical examinations, in particular the CT scan which requires radiation (as opposed to the ultrasound or the MRI which does not).  You can receive 10-20 millisieverts (measurement for radiation dose) from a single chest or abdominal CT scan.  Compare that number to the 2 millisieverts you receive from exposure to the sun and soil every year.  Have one or two CT scans in a year and you’re looking at 20-40 millisieverts or 10-20 times your annual exposure to natural background radiation.  (For a list of other comparisons, click here.)

Our citizens receive more medical radiation than those in any other country and no one — neither physicians nor patients — really seems to be keeping track of the dose accumulation.  At least for the moment.  Marchione writes that:

[d]octors don’t keep track of radiation given their patients — they order a test, not a dose.  Except for mammograms, there are no federal rules on radiation dose. Children and young women, who are most vulnerable to radiation harm, sometimes get too much at busy imaging centers that don’t adjust doses for each patient’s size.

That may soon change….  FDA officials [have] described steps in the works, including possibly requiring device makers to print the radiation dose on each X-ray or other image so patients and doctors can see how much was given.

The FDA also is pushing industry and doctors to set standard doses for common tests such as CT scans.

There are efforts to educate patients on the risk of side effects from unnecessary radiation exposure in order to curb demand.  AP medical writer Lauran Neergaard reports on a Minnesota health cooperative which displays national radiology guidelines in a patient’s electronic medical records whenever a physician orders a scan.  The guidelines help physicians deal with patient pressure and determine whether a radiation scan is necessary.  The cooperative estimates it prevented 20,000 unnecessary tests and saved $14 million through this process.  Archives of Internal Medicine, an American Medical Association journal, also started a “Less is More” feature which, according to editor Dr. Rita F. Redberg, offers articles “that document cases in which less health care results in better health and offer[s] commentary on the specific implications.”

Patients are advised to question the necessity of a radiation scan and physicians are advised to reconsider ordering one, but just how many will do so and what will it really take to get people to listen on a national scale?

Recent Empirical Research Suggests Rise in Cesarean Section Rates Not Caused by Malpractice Liability Pressure

In my recent post on the NIH’s consensus development conference on vaginal birth after cesarean, I noted that one of the recommendations coming out of the conference was that “medico-legal” reforms “be developed, implemented, and evaluated” to determine their effect on cesarean section rates.  Recent empirical research indicates that such reforms are likely to have little impact.

Prior work suggested that medico-legal reforms could play a significant, if supporting, role in efforts to reduce the number of unnecessary cesarean sections.  For example, the authors of a 2006 study published in Health Affairs analyzed the disturbingly large disparities in cesarean rates from county to county and concluded that, for normal weight births, 14.5 percent of the variance in rates was attributable to variance in malpractice premiums and the number and size of malpractice payouts.  Another study published in the journal Medical Care in 2009 found, among other things, a small negative association between cesarean section rates and two types of tort reforms — caps on noneconomic damages and pre-trial screening panels.

In an article in the latest volume of American Law and Economics Review, Influence and Deterrence: How Obstetricians Respond to Litigation Against Themselves and Their Colleagues, Northwestern University researchers David Dranove and Yasutora Watanabe move beyond “macro measures of the malpractice environment” and “tak[e] a micro look at the data, examining on a quarterly basis how physicians respond to claims lodged against themselves and their immediate colleagues.”  Using two rich data sets from Florida, one of all hospital births between 1994-2000 and another of every resolved malpractice claim from that state from 1979-2003, Dranove and Watanabe generate answers to three provocative questions:  Do obstetricians perform proportionally more cesarean sections after they have been sued?  Do their cesarean section rates increase in the wake of suits against other obstetricians at their hospital?  What about when the number of lawsuits filed against non-obstetricians in their county goes up?  The answer to the first two questions is yes, but the “effects are both small in magnitude and very short-lived.”  Moreover, the effect disappears after an obstetrician has been sued once; subsequent suits have no effect.  The answer to the third question is no.

Dranove and Watanabe theorize that “[t]he fact that [the effect of a physician's own history] is short-lived and limited to obstetricians with no previous contacts may indicate that obstetricians overreact to their first contact.  It is possible, for example, that they rapidly discover that the litigation process is neither costly nor particularly painful.  For example, physicians rarely make a financial payment to the plaintiff and do not appear to lose any income as a result of being sued (Danzon et al. 1990; Zeiler et al., 2008).”  They conclude that “[w]hatever has caused the pronounced upswing in [c]esareans, it is not due to the influence of individual, hospital-wide, or regional contacts with the legal system.”  This, of course, causes one to wonder what has caused the “pronounced upswing;” in a subsequent post, I will look at other possible explanations, including reasons related to health care finance and organization.

Recent Developments in the Implementation of the Patient Safety and Quality Improvement Act of 2005

By Jeanine Juillet

In 2000 the Institute of Medicine (IOM) published a report entitled “To Err is Human: Building a Safer Health System.” The report estimated that as many as 98,000 people die in America each year due to medical errors.  In order to combat this problem, the IOM recommended that providers should voluntarily report errors and the results should be evaluated to discover weaknesses in the health care delivery system in the United States.

Congress responded to this appeal for reform by passing the Patient Safety and Quality Improvement Act of 2005.  The Act calls for voluntary and confidential self-reporting by health care providers and creates independent local or regional Patient Safety Organizations (PSOs) to collect and analyze safety events in the hope of uncovering problems with the current system. Hospitals, physicians or other health care professionals submit reports, memoranda, analyses, or written or oral statements referred to as a patient safety work product (PSWP), describing adverse events. PSWP may include details identifying the providers involved in the event as well as protected patient information as defined by the Health Insurance Portability and Accountability Act (HIPAA). Based upon an assessment of the data, PSOs develop insights into underlying problems contributing to patient safety events. Moreover, in order to aggregate data on a larger scale, the Act provides for the establishment of a Network of Patient Safety Databases (NPSD); PSOs contribute PSWP information after removing patient and provider identifiers before submission to the NPSD. The database includes definitions and reporting formats in order to facilitate analyses of information. Through use of the NPSD, large volumes of data are available in order to rapidly identify patterns with the goal of developing strategies to avoid, mitigate or eliminate risks and hazards in the delivery of patient care nationally.

The success of the Act depends on providers voluntarily reporting medical errors. To this end, the Act includes federal privilege and confidentiality protections for PSWP. This protection alleviates provider concerns that reported information will be used against them in civil and criminal actions, specifically, medical malpractice litigation. Further, the Act forbids disciplinary actions as a result of a provider’s report. In order to ensure confidentiality of patient information, the Office for Civil Rights (OCR) will investigate allegations of violations and the HHS Secretary has the power to impose civil money penalty (CMP) of up to $10,000 per violation.

The Act vests oversight responsibilities in the Health and Human Services (HHS), Agency for Healthcare Research and Quality (AHRQ). The Patient Safety and Quality Improvement Final Rule (Patient Safety Rule), the regulation implementing the Act, was published on November 21, 2008 and became effective on January 19, 2009. The Patient Safety Rule provides a framework for PSOs by identifying 15 distinct statutory criteria that an organization must meet before it is qualified by the AHRQ. These public or private entities do not receive federal funding to fulfill this role and cannot be a health insurance issuer or be owned, managed or controlled by a health insurance issuer. Additionally, employees of PSOs must have expertise in analyzing patient safety events. The Patient Safety Rule also authorizes AHRQ to conduct PSO site visits to assess continued compliance with the eligibility requirements.

Supporters are excited that specialized organizations will be analyzing providers’ adverse events in order to identify common patterns that will minimize risks associated with health care delivery. Not only will this save lives, it will also reduce health care costs. Medical mistakes are expensive and needlessly waste resources. The Act also encourages the submission of information by providing protection for reporters from legal liability and professional sanctions. Additionally, it protects the patients by requiring that all information submitted to the database comply with HIPAA regulations. Further, the NPSD represents the largest effort to collect data from various providers across the country and the immense amount of information gathered may be able to identify improvements that could not be identified otherwise.

Opponents of the Act are particularly critical of the exceptions to the Patient Safety Work Product including disclosure exceptions. It remains to be seen how broadly these exceptions will be interpreted since the Act has a limited history. Additionally, by not offering federal funding for PSOs and by forbidding insurance companies from providing capital, the source of revenue to support these organizations is uncertain. Providers are also skeptical that standardized data gathered by PSOs will be effective in curtailing medical errors or that PSOs will be able to provide useful information for various provider structures (i.e., hospitals, doctors offices, etc.) in states across the country. Critics also argue that the existing state organizations, which currently collect this information, are likely to be more effective than PSOs. On the other hand, such peer review protections are limited in their scope and do not offer the same confidentiality protection.

Another area as yet to be defined is the overlap between this initiative and FDA measures to evaluate drug effects in a more thorough and timely manner. These latter initiatives include the Observational Medical Outcomes Partnership (OMOP), which will assess the feasibility of using a range of analytical methods against multiple data sources to evaluate safety events. Moreover, through the Sentinel initiative, claims databases and electronic health records will be integrated nationally, linking data from 25 million patients by July 1, 2010 and 100 million by July 1, 2012. Thus, both OMOP and the Sentinel Network taken together may be used to identify and evaluate safety risks for marketed products. These initiatives, while focused on drug and device safety, will need to be integrated with similar data generated from the NPSD.

The underlying purpose of the Act — to collect data and identify weaknesses in the health care system — is an unprecedented and laudable goal. However, it is unclear whether the Act will achieve its stated goals. The rules establishing a critical element of the Act, PSOs, have only been in effect for little more than a year. The success of the Act requires more time for implementation in order to adequately assess the effectiveness of this ambitious effort.

The Call for Medical Malpractice Reform as Health Care Reform: Sound and Fury? (Redux & Remix)

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.

“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.

The Call for Medical Malpractice Reform as Health Care Reform: Sound and Fury?

“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.