Posted tagged ‘tort reform’

Spend more, save more! (Lawsuits, that is)

November 16, 2015

The Pediatric Insider

© 2015 Roy Benaroch, MD

A November, 2015 study shows that doctors who spend more money are less likely to get sued.

Researchers from Harvard, Stanford, and UCLA looked at data from admissions to Florida hospitals from 2000-2009, examining the rates of lawsuits filed against physicians versus the amount of money spent on the admission. Sure enough, in six of the seven specialties evaluated, there was a clear trend showing that at each step-up in spending, there was as step-down in the rate of lawsuits filed. For instance, in internal medicine the lowest fifth of spenders (~$20,000 for admission) had a 1.5% risk of a lawsuit; the highest fifth (~$40,000) had a risk of .3%. Double your spending, decrease your risk of a lawsuit by five times. Not a bad deal, really, for the doctors.

But was it a good deal for the patients? These investigators didn’t look at outcomes, but overall we know higher spending does not equal better care or healthier outcomes. More spending may seem to increase “patient satisfaction scores”, but high patient satisfaction negatively affects overall health. More tests often lead to the overdiagnosis of conditions that didn’t need to be treated, causing more worry and spending even more money.

So why do some docs spend more than others? This study reinforces the evidence for so-called defensive medicine: tests and procedures done only to ward off lawyers, the way garlic keeps away vampires. But garlic is cheap and harmless, and vampires are, well, imaginary. In the real world, docs are doing unnecessary tests and procedures, harming patients and flying through money, to stay out of the courtroom. Do I blame them? No. Is there a better way? I hope so.

Phoenix-Wright-Objection

Health care costs: Defensive medicine

April 11, 2010

The Pediatric Insider

© 2010 Roy Benaroch, MD

Health care in The United States costs too much, and it doesn’t look like that’s going to change. Recent health care reform legislation doesn’t take any meaningful steps towards reducing or controlling costs. In fact, it explicitly forbids states from trying to curtail the costs of malpractice litigation in any way that would reduce lawyers’ fees.

How does a fear of lawsuits increase costs? The most direct way is “defensive medicine”– the ordering of unneeded labs and tests for the sole purpose of preventing a lawsuit, or to provide defensive ammunition in case of a lawsuit. The best example I can think of is the startling and bizarre increase in the rate of caesarian sections, which has now passed a third of all births in several states. Despite the fact that there are real and important health disadvantages to the baby and mother, a c-section is perceived as the best way to prevent lawsuits involving babies who later develop neurologic symptoms of brain damage from diseases like cerebral palsy. Basically, if a baby is found to have neurologic damage, everyone knows that a jury will probably award a huge sum to the family– despite the fact that it’s been demonstrated for years that this kind of injury almost always occurs well before birth, and nothing the obstetrician or midwife did could have prevented it. The science doesn’t matter, especially when a sad, handicapped child can take the stand, and a slimeball lawyer like John Edwards can smear the doctor, hospital, and everyone else involved (yes, he did claim in open court to have the spirit of an injured child speak through him to convince the jury to return a favorable verdict for his client.)

Of course there is far more to defensive medicine than obstetric procedures. Many CT scans are entirely unnecessary, and in fact expose patients to radiation that may contribute to one in fifty cancers. But woe to the emergency room doc who didn’t immediately scan the head of a trauma patient. Unnecessary blood tests, biopsies, and specialist referrals are all done to “spread the blame” and make lawsuits defensible.

Defensive medicine costs you more than money. When was the last time you asked for telephone advice? Doctors are very, very leery of giving meaningful advice over the phone, because we can’t take the risk of this kind of conversation in front of a jury:

Attorney: You mean you refilled the medicine without performing another physical exam? If you had seen the patient in person, you would have found the cancer earlier!

Doctor: The medicine had nothing to do with cancer! I was just trying to help the patient! It’s expensive to make them come in every month for a refill!

Anytime we tell anyone anything, any kind of advice, doctors must consider the risk of a lawsuit. Everything we say and do is supposed to be documented, too– to defend ourselves. Every wonder why the doc spends so much time scribbling in the chart, instead of talking to you? It’s not because we like writing. It’s because every single day we’re reminded that the chart is our only defense.

Do you think this hasn’t increased health care costs? Do you think it hasn’t affected the relationships doctors have with patients?

The current medical malpractice system is a disgrace. It doesn’t prevent errors (in fact, it encourages hospitals and doctors to hide mistakes), it doesn’t proportionally reprimand or punish truly bad doctors, and it doesn’t fairly compensate most victims of true medical mistakes. The only people who like this system are the trial lawyers, who contribute tremendously to Democratic Party campaigns– more than any other industry or trade group. Howard Dean even admitted, in a refreshingly candid statement, that there was no way his party would even consider taking on the trial lawyers by trying to include tort reform in healthcare legislation. It’s very clear that the current medical malpractice system is increasing costs for all of us, and nothing is going to slow down this disaster any time soon.

A smooch for the trial lawyers

November 1, 2009

The Pediatric Insider

© 2009 Roy Benaroch, MD

In case you were wondering what’s included in the 1900 page behemoth that is the current health care reform bill, here’s one provision:

Section 2531, entitled “Medical Liability Alternatives,” establishes an incentive program for states to adopt and implement alternatives to medical liability litigation. [But]…… a state is not eligible for the incentive payments if that state puts a law on the books that limits attorneys’ fees or imposes caps on damages.

 So: we’re going to encourage states to reform the medical liability mess—but not if in any way it might affect the incomes of the trial lawyers. More details here.

For those of you who may have naively thought that comprehensive health care reform would address the huge cost of defensive medicine and malpractice litigation, the intentions of Nancy Pelosi’s House Bill couldn’t be more clear. The bill discourages any meaningful reform. As for what’s in the other 1898 pages, a PDF version has been posted online—but honestly, there’s so much legal gobbledygook, I doubt anyone could possibly understand it, and I doubt anyone has read the whole thing. As I feared, it’s getting ugly. Put on your galoshes, America: you’re about to get hosed.