President Obama; If You Really Want To Reduce Healthcare Costs, Effectively Reform The Medical Malpractice Tort System

Stanley Feld M.D., FACP, MACE

President Obama, as you know the real truth is elusive. Every vested interest has an agenda to protect. My agenda as a long time practicing Clinical Endocrinologist, now retired from active practice, has been to preserve the value of the profession of medicine and permit the delivery of the best clinical care possible to patients. Society has strayed from these goals. There are multiple problems with the healthcare system. They are interrelated and must be solved simultaneously.

The present malpractice liability problem leading to the practice of defensive medicine is a huge problem for the healthcare system. It is essential that this problem be solved before meaningful cost savings and increased quality of care are realized

Malpractice attorneys dismiss the system of adjudicating malpractice liability as the cause of significant defensive medicine costs. They claim that they are the protectors of mistreated patients. You will soon receive a 29 page document defending their claim and dismissing the significance of defensive medicine.

“Trial lawyers are preparing for a fight, starting with a 29-page research document they will send to Capitol Hill in an attempt to convince lawmakers that lawsuits have very little to do with healthcare costs.”

The malpractice attorneys will attempt to make a compelling argument. I suspect they will have little real scientific evidence to prove their point in the 29 page document.

Donald Berwick Professor in the Department of Health Policy and Management Department of Health Policy and Management has never been a friend of practicing physicians. He has frequently pointed out the defects in the practice of medicine. Recently Don Berwick made the following off the cuff comment in response to a question after he addressed the American Medical Association (AMA) meeting.

What about malpractice reform?” the first questioner asked when Berwick opened up the discussion to attendees. He was a physician, and murmurs of approval rippled through the crowd.”

Berwick’s answer didn’t please the questioner and many of his colleagues. “The data just doesn’t back up the claim that malpractice lawsuits are one of the top drivers of healthcare costs, he replied.”

No one was brave enough to ask Dr. Berwick to show them the data for this conclusion. I have read Fooled By Randomness twice. I am starting to understand that all expert opinions are noise unless they are confirmed scientifically. Even then conclusions can change as the knowledge base changes.

In November 2008, the Massachusetts Medical Society published a survey of practicing physicians. The purpose of the survey was to get a sense of what practicing physicians (the generators of defensive medicine) thought the incidence of defensive medicine was in their practice. I was surprised it was not published in the New England Journal of Medicine.

“A first-of-its-kind survey of physicians by the Massachusetts Medical Society on the practice of “defensive medicine” – tests, procedures, referrals, hospitalizations, or prescriptions ordered by physicians out of the fear of being sued – has shown that the practice is widespread and adds billions of dollars to the cost of health care in the Commonwealth.”

The devil is usually in the details. The details found were the details at ground level. It was not speculations by experts or secondary measurement. The defect in the survey was the fact that was a survey (surveys have its scientific defects) even though 900 practicing physicians in eight specialties in Massachusetts completed the survey. Its strength is the survey links practice to costs.

“The Investigation of Defensive Medicine in Massachusetts” is the first study of its kind to specifically quantify defensive practices across a wide spectrum and among a number of specialties. The study is also the first of its kind to link such data directly with Medicare cost data.”

Physicians self reported on seven tests that might be used in defensive medicine. They were plain film X-rays, CT Scans, Magnetic Resonance Imaging (MRIs), ultrasounds, laboratory testing, specialty referrals and consultations.

Based on Medicare reimbursements rates in Massachusetts for 2005-2006 the eight specialties surveyed generated 281 million dollars in defensive medicine costs in outpatient clinics. Their practice of defensive medicine also generated $1.1 billion in unnecessary costs for hospital admissions. The big winner here was the hospitals. Hospitals might not be motivated to fight as hard as physicians to eliminate defensive medicine because defensive medicine serves its revenue generating agenda well.

The estimate of a total of $1.4 billion only includes 7 tests and 8 specialties in a 900 physician sample. Massachusetts is a small state. If we assume all the states are the same size and multiple by 50 states we are talking about $70 billion dollars wasted on defensive medicine.

If the survey included all specialties, all physicians, and all costs including the cost of malpractice premiums and physician practice time lost in litigation in all states, my guess would be the cost of defensive medicine would be ten times the 70 billion dollars. A $700 billion dollar cost for defensive medicine is an unnecessary cost to the healthcare system. This cost can be dismissed lightly or yield to unscientific expert opinion. The result does not include the emotional toll on physicians being sued and the lawsuits effect on their ability to practice medicine.

The legal system for handling malpractice claim is very costly. A more logical and cost effective system for adjudicating patients harmed by medical error needs to be instituted.

The opinions expressed in this post, mine and mine alone.

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