Medical Malpractice: Fiction, Facts and the Future; Part I

“There are two things to fear in life,” Justice Brandeis once said: “death and litigation.” Most physicians would agree.  Win or lose, the process of being sued for malpractice will forever change the way he views both his profession and his patients. No wonder fear of malpractice drives so much costly and potentially hazardous “defensive medicine.”  Nevertheless, some have argued that malpractice suits protect patients by forcing hospital boards to take a closer look at patient safety issues. Perhaps—but the high administrative costs associated with malpractice suits, combined with the effect they have had on the doctor-patient relationship suggests that there should be a better way to shield the sick.

An article in Sunday’s New York Times points to a new approach. “For decades,” the Times reported, “malpractice lawyers and insurers have counseled doctors and hospitals to ‘deny and defend.’  Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.” But with providers “choking on malpractice costs and consumers demanding action against medical errors,” some of the nation’s leading hospitals are trying out what is, for them, a new strategy—reveal and apologize.  It’s a simple solution: telling the truth. The mounting cost of malpractice claims may finally be having a constructive effect. The evidence suggests that if more hospitals adopt this approach, there could be great benefits, both for physicians and for patients.

Nevertheless, there are risks for health care providers. “Disclosure is the right thing to do,” an article published in Health Affairs last year observed,  but as “pressure mounts on physicians and hospitals to disclose adverse outcomes…and medical injuries” they should be aware that the volume of claims would rise and providers should be ready for “the financial consequences.”

After all, we are, as everyone knows, a litigious society. President Bush has warned us, repeatedly, of “what’s happening all across this country…lawyers are filing baseless suits against hospitals and doctors. That’s just a plain fact. And they’re doing it for a simple reason. They know the medical liability system is tilted in their favor.” In the nation’s “judicial hellholes,” the President of the United States cautions us, “every claim filed by a personal-injury lawyer brings the chance of a huge payoff or a profitable settlement out of court…This liability system of ours is out of control.”

The President is not alone:  you have read the news stories about the multi-million dollar cases, and the op-ed pieces declaring that they are now the norm:  emotional juries and prejudiced courts are persecuting blameless doctors, driving up the cost of health care while forever ruining careers.

As is so often the case, what “everyone knows” just isn’t true. 

Consider these facts from a study conducted by the Harvard School of Public Health and published in the New England Journal of Medicine.

  • “The great majority of patients who sustain a medical injury as a result of negligence do not sue.” Indeed, the New York Times reports,
    although “recent studies have found that one of every 100 hospital
    patients suffers negligent treatment, and that as many as 98,000 die
    each year as a result . . .  only a small fraction of injured patients
    — perhaps 2 percent—press legal claims.)
       
  • “Just 1.1 percent of all doctors accounted for 30 percent of all
    malpractice payments made between 1990 and 2002, while only 5.2 percent
    of doctors were responsible for 55 percent of all payouts.”  A very
    small group of doctors are losing or settling malpractice lawsuits, but
    they are losing big.
       
  • “Eighty percent of claims involved injuries that caused
    significant or major disability (39 percent and 15 percent,
    respectively) or death (26 percent).”       

These numbers undermine much of the conventional wisdom about medical
malpractice lawsuits.  Before taking a closer look at the analysis,
note that this report comes, not from Harvard’s Law School, but it’s
School of Public Health.   In other words, this is not a cabal
representing lawyers who should be sitting on the bottom of the ocean.
These researchers are interested in our health as a nation.

The study’s size also lends it credibility.  (As the authors note,
“Previous investigations of the relationship between the merits and the
outcomes of malpractice claims involved the use of small numbers of
claims; focused on a single hospital, insurer, specialty, or type of
injury; involved the use of very limited information in the
determination of merit; or relied on the insurer’s view of the
defensibility of the claim as a proxy for merit rather than on
independent expert judgment. This study was designed to overcome those
limitations.)  The researchers cast a wide net over Northeast,
Mid-Atlantic, Southwest, and West, examining records involving  some
33,000 physicians, 61 acute care hospitals (35 of them academic and 26
nonacademic), and 428 outpatient facilities.

Here is what the investigators discovered:

We may be a litigious nation, but most injured patients don’t sue. This
is in part because they don’t know that an error was made. According to
a study published in Health Affairs in 2005, only about one-quarter of physicians disclosed mistakes to their patients.   

Moreover, even if some patients suspect that something went wrong, many
would rather not know that someone made a mistake—especially if they
like their doctor. Patients want to trust their physician.
Acknowledging that you’ve suffered a serious, perhaps permanent, injury
that could have been avoided leads to feelings of regret and rage that
most patients would rather avoid.  So, even in the face of disquieting
evidence, patients continue to say, “He’s a good doctor.”

Meanwhile, the study shows that a small percentage of doctors account
for more than half of all pay-outs.  While a great many doctors live in
fear of being sued, the reality is that the vast majority will never be
forced to pay an award or even settle a case.  Their fears are
exaggerated.

This is not to say that there is no basis for their concerns. But
doctors who worry that they could easily become the victims of
“jack-pot justice” because our malpractice system is stacked against
them have been misled by ideologues who object to all personal injury
lawsuits. Their lobbyists regularly play on physicians’ fears by
publishing misinformation. (See for example, “The Whoppers of 2004
by FactCheck, a non-partisan non-profit group that investigates lies
and half-truths voiced by politicians of  all stripes; this excerpt
from Tom Baker’s The Medical Malpractice Myth)  and “The Fake Crisis Over Lawsuits: Who’s Paying to Keep the Myths Alive”).

These are the same lobbyists who pushed for, and secured, a Supreme
Court ruling in February shielding medical-device manufacturers from
being sued by a patient injured by a device. It does not matter
if the medical device was “defectively designed or labeled;” if it was
approved by the FDA, the manufacturer cannot be held responsible. 

The Bush administration is now pushing to have the same rule apply to drugs that harm or even kill patients.

That said, one should acknowledge that while only a small group of
doctors will wind up being found guilty, or even settling a case, many
more will be threatened with a suit. And even if the charges are
dropped, the process feels, in the words of one doctor, like “a
crucifixion.”  Meanwhile, the Harvard study shows that in roughly
one-third of all cases, cases the doctor did nothing wrong.  While 97
percent of patients who brought claims had indeed suffered injuries
(and 80 percent suffered death or “significant disability”) ultimately
only sixty-three percent of injuries turned to be caused by medical
error or negligence.

Still, this does not mean that the suits were “frivolous.”  The patient
was seriously injured and he or his relatives wanted to know why.

Here is the crux of the problem: traditionally, hospital policy has
encouraged secrecy and denial. As a result, the Harvard researchers
observed, it can be very difficult for a patient to find out “what
happened” and whether the injury was the result of negligence or error
“before the initiation of a claim and the acquisition of knowledge that
comes from the investigations, consultation with experts, and sharing
of information that litigation triggers.”  Hospitals do not usually
open up their records to scrutiny unless a lawsuit forces their hand.

Meanwhile, doctors cover up for each other—“don’t report him,” they
tell colleagues. “It’ll wreck his life.  .  . Think how hard you worked
to get through medical school and your residency—just the way he did. I
agree—he’s a bonehead. But we can’t report him.”

U.S. Hospitals also foster a “culture of secrecy” according to a 2004 five-country survey of hospital executives published in Health Affairs.
“There is a pervasive ‘club culture’ in which at least some doctors and
other health care professional prioritize their own self-interest about
the interests of patients,” while some hospital executives “act
defensively to protect the institution rather than its patients,” the
researchers observed.

The Health Affairs piece elaborated on why safety seems to be
taken much more seriously in other industries: “First, a major service
failure in an industrial plant…may close down production…and entail
huge commercial costs to the organization and its staff…In contrast,
health care organizations usually carry on with their work even after
the most serious failures, and the staff are rarely harmed or even much
affected. Patients bear nearly the entire cost."

This is not to say that physicians or nurses are callous. Realizing
that he or she made a mistake that seriously harmed a patient is
something a health care provider will never forget. But unless someone
investigates, it is often hard to know why the patient’s condition
headed south. So many factors could be involved. Understandably,
physicians often are slow to recognize that they missed something—or
were in some way negligent.

As the Health Affairs piece points out, “the health care
industry is unique in that many of its customers are already or will be
harmed by the disease that brings them to the hospital. No other
industry deals with morbidity and mortality as a routine part of the
production process. This presents a unique challenge in distinguishing
between [harm caused by the diseases and harm caused by medical
treatments.]” Moreover, health care workers become “inured to that
harm. It is normal for patients to die and for treatments to fail, and
so we become accustomed to such events. When things go wrong it is then
more difficult to step outside [this] normalizing mind-set and see the
problems for what they really are: evidence of major health care
failures.”

A second study published
in the same issue of Health Affairs suggested that competition among
hospitals in U.S. markets also plays a role in the culture of denial
and secrecy. When hospital administrators in Australia, Canada, New
Zealand, the U.K. and the U.S.  were asked whether hospitals should be
required to make information about medical errors, infection rates and
mortality rates available to the public, the share of administrators
who opposed the idea was highest in the U.S. and Australia—the two
countries where hospital executives expressed the greatest fears about
losing patients to their competition.

In Part 2 of “Malpractice: Fiction, Facts and the Future,” I’ll look at
the outcomes of malpractice cases, consider just how “fair” the system
is, and discuss reforms that might actually work to reduce the cost and
frequency of malpractice suits while lifting the quality of care.

43 thoughts on “Medical Malpractice: Fiction, Facts and the Future; Part I

  1. Maggie, in general I agree with you and I’m familiar with the studies you cite. Civil torts are a terrible way to police medical practice. They don’t accomplish that at all. I also agree that the malpractice issue has been cynically manipulated by those who hate product liability law of any sort.
    But here’s my issue, which I admit is a personal one. Even though I’ve not (yet) been sued, I practice in a very high risk specialty to get sued, and statistically I will be one day, probably when I least expect it. I know for a fact that ALL of the friends of mine in the field who’ve been sued were blamed for bad outcomes, not bad practice. Now, perhaps they could have communicated better with the families (since the bulk of suits can probably be headed off that way–families often sue when they are angry at the doctor), but the fact remains–they had to go through hell because of no fault of their own. One case dragged on for years and, among other things, kept a friend of mine in a job he hated because he couldn’t get another one until the suit ended.
    So we need a balance between some sort of impartial compensation system for injuries that were not the doctor’s fault (similar to workman’s compensation, for example), while preserving the capacity for tort actions against egregious offenders. I don’t know how to do that; perhaps you’ll tell us in part II?

  2. I’ll be interested in Part II; I’m sure I’ll be interested enough to comment. Full disclosure: I have extensive experience as an expert witness in cases in my specialty.

  3. Defensive medicine happens every day and we spend billions for it every year. It doesn’t matter what stats you quote, the words “tort reform” is the only thing that will register in the physician psyche at this point. It has become muscle memory for physicians and is an engrained “truth” for all physicians. They hear it from the first year of medical school, to every malpractice horror story snipet though their life in practice. You hear something enough and it becomes an absolute, kind of like your post on focus group health care reform. No amount of data and no one person will ever convince physicians otherwise and so everyone will have to deal with overtesting and increased costs as a result. You can’t lose one without the other. The cost arguments and comparisons to other countries that we hear ad nauseam when talking health reform never mention the tort system of the country in comparison, because essential no other place is like it is here. You better believe if healthcare reform is enacted to become more European, there will be an equal clamor by those it is being thrust upon to reform the medicolegal system to a more European one as well. That or the physician workforce(1/3 being over 55 and thinking about retiring anyway) will make it official myths or facts be damned. Not what you want to do when you add 40+ million to a system.

  4. “tort reform” is another myth, in the states that have undertaken tort reform there has been no appreciable change in premiums. this tort reform benefits only the insurance companies, though many doctors fly to the banner as it is touted by the AMA (note the number of AMA execs that are owners in liability insurance companies). I wrote a small piece about my personal experience with Liability insurance here http://ushealthmess.blogspot.com/2008/03/liability-insurance.html if anyone is interested.

  5. nice work on malpractice. but isn’t this yet another case where providers complain about being thrown into the briar patch? these helpless folks are forced to practice defensive medicine– and pocket the resulting fees — because the system made them do it. of course, they’d like to do less (and would be quite comfortable with the resulting income reduction), but the bad old system simply overwhelms them. any politician or corporate exec who made such an argument would hear deserved laughter in response.

  6. While I await Part II I will comment on Jim Jaffe’s humorous analogy.
    Estimates of the economic effect of defensive medicine run from 15-25% of the dollars spent on medical care in the U.S. That would be 15-25% or $2 Trillion annually. Big numbers.
    While a % of this undoubtedly finds its way into the income stream of the physician who orders the care (biopsies, for example), the overwhelming majority of the revenue generated by the practice of defensive medicine does NOT end up bringing a financial benefit to the physician who orders the care. Extra tests (CT scans, MRI’s, lab work, etc.) do not, in general, bring income to the doctor who orders the test (doctors are not typically re-imbursed for the time they take reviewing these results on behalf of their patients). Likewise, medicine that is prescribed “just in case” or “just to make sure” most surely adds to the cost of care in the U.S., but also most definite does not find its way into the ordering physician’s wallet.
    The practice of defensive medicine is real. It has real economic impact on our health care system. To be sure a small % of this economic activity does benefit the physician who orders the care, but to suggest that this is the majority, or even a substantial minority, of the $$ involved is to fail prey to a kind of cynicism that is at least as harmful as that which prompts the defensive medicine in the first place.
    Perception is reality in the one who perceives. Doctors perceive that they must do whatever is necessary to avoid a lawsuit, and sometimes this puts patients at risk (as Maggie has noted). Defensive medicine that does not contribute substantially to positive outcomes is good money after bad. The “briar patch” analogy is inadvertent ad hominem.

  7. I’ve said this before: defensive medicine is an all-purpose excuse for laziness and irrationality by physicians. Take away the malpractice threat and they will find other excuses for the same behavior.

  8. When analyzing the percentage of doctors impacted by malpractice suits, I think it’s necessary to look at these cases in two buckets. The first bucket is adverse outcomes as a result of care performed in a hospital ER, OR, L&D unit or ICU. Basically, we’re talking about surgeons and OBGYN’s being sued as well as emergency medicine doctors who typically don’t know the patient or his or her medical history. The issues here relate to bad outcomes that were the result of malpractice or negligence or just bad outcomes that often happen despite doctors’ best and most competent efforts. The second bucket are those cases brought based on a failure to diagnose. These are the most pernicious, in my view. If evidence based medicine calls for NOT ordering a PSA test and the patient later receives a diagnosis of prostate cancer, why should that be grounds for a lawsuit? Similarly, are we supposed to send everyone who complains of a headache for an MRI because it might be brain cancer in one case out of 10,000?
    I agree with bingo that defensive medicine is well embedded in the culture of medical practice in this country. I don’t know if his estimate of 15%-25% of healthcare costs is accurate, but I would bet a lot of money that the correct number is far higher than the fraction of 1% that is attributable to malpractice premiums and court awards. A study of the number of suits brought as well as the circumstances that drive the suits in Canada, Western Europe and Japan vs. the U.S. would be instructive. Interestingly, this is one area that lends itself to state level experimentation. Recent tort reforms in Texas, for example, resulted in a huge influx in the number of doctors moving to Texas wanting to practice there including a considerable number interested in practicing in previously underserved areas. I certainly won’t hold my breath waiting for tort reform at the federal level, especially if we have a Democratic President and/or a Democratic Congress, both of which are likely after the next election.
    A side issue is that defensive medicine is a handy excuse that doctors who own their own imaging and other equipment and order more tests as a result can point to if challenged for high utilization vs. peers who don’t own their own equipment. They can say, hey, this is a litigious state and a litigious society. Under the circumstances, I need to be ultra thorough and cautious to avoid lawsuits. At the very least, I think the impact on overall healthcare costs is considerably higher than, say, insurers’ administrative costs. Just my opinion, of course.

  9. Chris, not trying to be arguementative, but don’t you contradict yourself here:
    “Now, perhaps they could have communicated better with the families…families often sue when they are angry at the doctor…but the fact remains–they had to go through hell because of no fault of their own.”
    Whose fault is it that the family went through hell because nobody was talking to them…or worse yet lying to them? Why is communication so difficult between healthcare providers and patients? Defensive medicine, that’s why.
    We came, I believe, as close as anybody could get to suing the pants off everybody involved, but we just didn’t go there. Had we done so, I can guarantee you it would have been a result of anger and rage based almost totally on a lack of communication and respect…and not directed at “one” doctor. I wrote a book instead, these are the choices for consumers who suffer injustice at the hands of healthcare: Lawsuit…website…lawsuit…website. Food for thought.
    Speaking of Texas, a group of attorneys filed a class action lawsuit challenging the “caps” on damages as unconstitutional:
    http://www.setexasrecord.com/news/208641-class-action-challenges-texas-cap-on-medical-malpractice-damages in case anybody is interested.
    Aren’t device-makers wooing the providers as much as consumers? Consumer sees ad for the purple pill, asks doctor for purple pill, doctor just returned from Jamaica compliments of purple pill maker, readily prescribes purple pill.
    Ultimately malpractice reforms are going to be in bed with healthcare reform. The truth regarding malpractice lawsuits has been well-known to patient safety advocates for many years. There’s a big gap missing before the courtroom, no effective regulation of the industry.
    Somebody mentioned workers comp as a model, I’ve made many comparisons to this over the years, including the fact that anybody with an internet connection can read about the details of my husband’s workers comp case (name not listed) yet we can’t get online and read the consumer complaints about or local hospital. Etc etc etc. However, if you think worker’s comp “works” oh, my, think again.

  10. Lisa–added the qualification to my comment for accuracy–I was not there to hear what they said to those families. What I do know is that their medical actions were proper.

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  12. Everyone– thanks for your comments–
    Chris–You wrote: “I know for a fact that ALL of the friends of mine in the field who’ve been sued were blamed for bad outcomes, not bad practice. Now, perhaps they could have communicated better with the families (since the bulk of suits can probably be headed off that way–families often sue when they are angry at the doctor), but the fact remains–they had to go through hell because of no fault of their own.”
    Here, it seems to me you open up an interesting question: When is a doctor’s failure to communicate with a patient–making the risks of a bad outcome clear, making it clear tht the procedure is elective and that the patient has other options, giving the patient an opportunity to ask quesions, etc malpractice?
    Dr. Jack Wennberg, former director of the Dartmouth Research program, and a founder of their “shared deicision-making program” suggests that “operating on the wrong patient” is just as bad as “operating on the wrong leg.”
    Take it a step further: let’s say that the surgeon in question has a reputation for doing a lot of surgeries –many more per month than most people–that he works fee-for-service, and that he also has a reputation of being something of a cowboy.
    Patients say that they felt bullied. When they asked, “Well couldn’t I try ‘watchful waiting’ for early-stage prostrate cancer?” he sneered at them. “Sure, if you want to be a walking time bomb.”
    Of course I’m making all of this up, but I do think Wennberg has a point. Communicating with a patient honestly is just as important as being technically competent.
    For example, in the case of my friend Tom, who was told by Dr. X that he needed cataract surgery in both eyes–and had scheduled it when Tom backed out at the last minute, went to Dr. Y and was told he didn’t need surgery, didn’t have cataracts, and that his vision was 20/20 in one eye and 20/40 in the other eye . . .
    What if Tom had gone ahead with the operation with Dr. X and, through no fault of Dr. X’s developed an infection and lost his eyesight. Suppose that he then got a lawyer, who, in the process of discovery saw Tom’s medical files and realized that while the infection was not Dr. X’s fault, it was not at all clear that Tom had needed the operation, and it was clear that he had never complained of any symptoms and had never been told that the procedure was elective.
    Should Dr. X be sued?
    To protect both the patient and the doctor, I think that more doctors should integrate “shared decision-making” into their practice.
    It doesn’t have to take up a huge amount of time if a physician decides to integrate
    Health Dialog’s Collaborative CareSM program into his practice.
    First, see The center for Informed Decision Making’s website: http://64.233.169.104/search?q=cache:slvMYrhNwbsJ:cygnus-group.com/CIDM/+%22Center+for+Informed+Decision-Making%22&hl=en&ct=clnk&cd=1&gl=us
    This is the non-profit foundation that develops the evidence-based pamphlets and videos that help patients make decisions about more than 20 elective procedures and tests (breast cancer, heart diseases, early-stage prostate cancer, colorectal cancer, depression, spine surgery etc. etc.)
    Health Dialog is the company that sells the Center’s intellecutal property (videos and pamphlets) and provides a full-service program. They sell the program to insurers, employers, health benefits consultants and physicians’ groups.
    So far, insurers are their biggest customer. So the porgram is covered by some insurance.
    If a physcian wants to buy the program for his patients and it’s not covered by the patients’ insurance, I don’t know how much it costs. I do know that 80 breast cancer clinics in New England have bought the program, integrate it into their practice and provide it for their patients. Dartmouth-Hitchcock uses it, as does Mass General and a number of other places around the country.
    Here’s what the program
    includes:
    “The program supports patients across a broad spectrum of healthcare needs. First, it offers 24/7 access to Health Coaches – specially trained healthcare professionals such as nurses, dietitians, and respiratory therapists. They provide evidence-based information and support to help patients work with their physicians to address a wide range of issues, such as managing their chronic conditions, evaluating different treatment options, finding the best way to care for an injury, understanding symptoms, and much more.
    This information does not replace physician care. Rather, it prepares patients to make healthcare decisions in partnership with their physician. This collaborative approach to healthcare, known as the Shared Decision-Making® approach, was developed by the non-profit Foundation for Informed Medical Decision Making, founded by Drs. Albert Mulley, Jr. and John Wennberg.
    In addition to the 800 number to reach a decision-making coach, the program provides the patient with a video and a pamphlet about the decision he is making. The pamphlets and videos are prepared by 20 MDs working for the non-profit Center for Informed Decision-Making. They are reviewed every 6 months for accuracy and totally updated every 2 years. (I’ve read them and seen them. They are very clear and yet detailed. I’d estimate that someone at an 9th grade reading level could understand them. The 45-minute video helps a lot becuase it goes over the same material, and lets you see patients talking aabout how they made their decision, what they were worried about etc. Usually the viewer finds someone he or she can identify with.
    After viewing the video at home and reading the pamphlet, and talking to a decison-making coach on the phone, the patient then talks to his doctor again.
    He may want his doctor to make the final choice. But the decision-making coach has helped the patient clarify his priorities, his greatest fears, and his questions . . .
    So he in a position to make an informed choice rather than just passively give “informed consent.”
    The state of Michigan has already decided that if a doctor makes this shared decision-making program available to the patient, and the patient is then unhappy with the outcome, it is very, very difficult to sue the doctor.
    Other states are considering -passing similiar laws.
    The foundation told me that doctors sometimes call the 800 number, pretending to be patients, in order to find out how good the decision-making coaches are. (This is fine with the center– the coaches are very good.)
    Here’s the website for the company that distributes the program:
    http://www.healthdialog.com/hd/Core/Approach/
    .

  13. Dr. Mattt, Jenga, Jim, Bingo, Marc, Barry, Lisa
    Dr. Matt–
    Thanks you for the link to with Liability insurance here http://ushealthmess.blogspot.com/2008/03/liability-insurance.html
    – everyone should read your excellent explanation of how malpractice insurance works. It’s very informative– I, for example, didn’t know about the “tail.”
    You are entirely right that “tort reform” in the form of caps on payouts only helps the malpractice insurance industry; it doesn’t help doctors because it doesn’t reduce lawsuits.
    (Niko wrote a piece about various efforts at “tort reform” in various states a while ago.)
    And malpractice insurers operate for the benefit of their shareholders, not for the benefit of their doctor/customers. This may seem irrational, or unfair but that’s capitalism.
    It strikes me that the cost of malpractice insurance today is another reason why doctors are much better off working for a large multi-specialty medical center that can afford to insure them–and has the leverage to, perhaps, get a beter deal. The small group practice has aboslutely no power in the malpractice insurance market.
    If the solution I point to at the end of part 2 of the post actually becomes popular and reduces claims doctors would still need insurance, but since many, many fewer patients would sue, it should be much less expensive.
    Finally, the malpractice insurance industry, like many parts of the health care industry, needs to be more strictly regulated so that it can’t gouge doctors.
    And it could be much more creative. For example, why not give doctors a large break on their premiums if they integrate informed decision-making into their practice? (See my comment to Chris)just below this thread.)
    Jenga– You are absolutely right. Conservative think tanks and politicians have done an excellent job of brain-washing doctors into thinking that they will be sued–even if they are in a specialty where suits are relatively rare.
    See part 2 of this post. I’ll be interested in your response.
    Jim– When doctors over-treat, mutiple motives drive the decision, and it’s hard to sort them out. There’s fear of malpractice; there’s a gut feeling that something more is going on with this patient; there’s genuine concern for Mrs. A who has been a patient for 20 years and so you’re just being extra-cautious, and there is the fact that if you don’t provide more services you’re going to make less than you did last year.
    That said, I also object when doctors try to argue that over-treatment is entirely a function of fear of malpractice–nothing else: “The lawyers made me do it.”
    Bingo–
    But defensive medicine is not limited to ordering tests and medicines.
    Doctors who radiate or operate on patients with early stage prostate cancer also say that they are practicing defensive medicine. They don’t want to run the risk that during “watchful waiting” the cancer will suddenly progress.
    Doctors who do too many bypasses and angioplasties–rather than prescribing a change of diet and exercise also say, “what if the patient has a heart attack and dies?”
    Then there are the doctors who do unncessary ceasarians, hysterectomies, and that third round of chemo just to prove that they’ve done “everything possible.”
    Finally, many entrepreneurial doctors have invested in diagnotic testing equipment so that they can make the profits on those extra tests.
    I am not suggesting that the majority of doctors cynically overtreat in order to pump up their income.
    But I am suggesting that many doctors realize that as their costs rise and their fees don’t, they need to “do more.” And when it comes to deciding whether to do an extra test, or perform the procedure, there are so many factors involved that even the physician himself would be hard-pressed to say whether fear of malpractice played a 30% role in the decision, a 50% role, etc.
    See my reply to Jim above on this thread . . .
    Marc– I agree that too many doctors use “malpractice” as an excuse not to look at over-treatment for other reasons. (Are influenced by drug makers, etc.) On any number of occasions, when I’ve given a talk on over-treatment, a red-faced doctor stands up and says something like “You talk about unncessary surgeries and tests, but isn’t this really all about malpractice and why we need tort reform in this country?”
    The answer is even if you put caps on claims, doctors are just as likely to practice defensive medicine whether they can be sued for $50,000 or $1 million. They don’t pay the claim–the insurer does. Doctors are not so concerned about the amount of the pay-out, they are concerned about the danger of being dragged through the legal process . . .
    Barry–I agree that failure to diagnose should be in a different category.
    It’s not that the doctor did something wrong–it’s that he failed to do something right.
    And given the uncertainty of medicine, diagnosis can be very difficult. Moreover, over-diagnosis can hurt patients, leading to unncessary procedures that carry their own risks and side effects.
    That said, there are cases where I think failure to diagnose is mallpractice. Consider the doctor who runs a mammogram clinic and has a history of “false negatives.” If I found out that I had breast cancer after having had a mammogram at his clinic, and if another doctor (or doctors) looked at the mammogram and said “yes, there was a tumor there)”I would feel that I should sue (so that this wouldn’t happen to more women) particulary if his record showed a larger precentage of false negatives than normal.
    (There was a case like this in NYC where a “mammogram mill” took mainly Medicaid patients, and did very shoddy work. One woman sued before dying. The judge expressed astonishment that, in the U.S. the “quality of care that you receive depends on how much money you have.”)
    Another case: I once brought my daughter to a pediatrician after she had fallen down the stairs and hurt her foot–badly. He sent us to a nearby x-ray lab that I didn’t like. It was dirty, and the radiologist was unpleasant.
    He told us there was no fracture. The foot continued to hurt–a lot–and four or five days later I took her for another x-ray at another clinic. The foot was broken.
    With a little investigation, I discovered that the pediatrician had a financial interest in the x-ray clinic. When I went back to him and complained about the bad x-ray reading, he said that she had probably fallen again and broke her foot after the x-ray.
    Right!-she couldn’t walk and was in bed!. I suppose that it is possible that a hairline fracture that wasn’t visible on the x-ray became worse. Since she was okay, I didn’t pursue the case. But I stopped seeing that pediatrician.
    My point is that, in certain cases, diagnosis is not that difficult and we have good diagnostic equipment. In those cases “failure to diagnose” does suggest incompetence or negligence.
    That said, mammograms can miss malignant tumors. And I don’t think doctors should be sued because they didn’t send the patient for an MRI.(See Niko’s most recent post) But I do think they should be sued if they “mis-read” the mammogram.
    Lisa–
    See my reply to Chris. I wrote it before reading your comment–clearly we were on the same page.
    And I agree–there is much wrong with workers’ comp . . . .
    Thanks for the link to the lawsuit over the Texas law.
    The problem with the Texas law is that it insists that patients can not receive compensation for mental pain and suffering–just economic losses–i.e. the cost of repairing the injury, time lost from work, permanent loss of wages, etc.
    But look at some of the cases they are referencing.
    Undeniably, these people suffered great mental distress and emotional anguish.
    Consider the first patient. What economic loss can she show? Maybe she missed work for a week or two. But clearly she should be compensated by Rountree’s associates (and their insurer.)Where were his associates when he was raping his patients? They never noticed anything odd??
    Dianne Bass is suing Dr. Randolph W. Rountree and his employer West Texas Medical Associates. She alleges the OB/GYN sexually assaulted her while she was under sedation. Rountree, after losing his medical license, has been convicted of felony sexual assault charges and is currently serving time in a Texas state prison.
    Anthony Rollins is suing Dr. Mark D’Andrew, Gulf Coast Cancer and Diagnostic Center and Gulf Coast Oncology Association. He alleges that the doctor negligently administered an external beam of radiation causing burns and permanent damage to his anal canal, rectum, bladder and perineum.
    Individually and on behalf of her husband, Sharon Ashkar is suing Dr. David Carrier, Dr. Hani A. Haykal, Houston Radiology Association and The Methodist Hospital. She alleges that the doctors negligently performed an epidural steroid injection causing her husband to suffer a massive cerebellar hemorrhage.
    Steve Okrei, D.D.S and his wife are suing Dr. Hani A. Haykal. The couple alleges the doctor negligently injected an imaging contrast solution into his spinal cord instead of the subarachnoid space causing neurological damage.

  14. Allan–
    Actually there are pretty clear standards for “good” vs. “negligent” or incompetent reading of mammograms.
    A few years ago Kaiser in Colorado did a study of Kaiser docs reading mammograms and found that some were not very good.
    They were no longer allowed to read mammograms.
    One doctor who resisted re-assignment was fired.
    If you look at enough files, and see a doctor is an outlier when it comes to “false negatives” (as was the case in NYC) then he should’t be reading mammorgrams.
    Ideally, more doctors would work in groups like Kaiser where someone is looking over their shoulder and colleagues can make sure that sloppy or incompetent doctors are not hurting patients.
    But in our current system, too many doctors just set up shop, and no one knows what they are doing–until they are sued. As I explain in part 2 legal “discovery” becomes the only way to open up the files . .
    Btw, doctors who are sued rarely go bankrupt. Insurers pay the claims.
    For facts about malpractice see part 2.

  15. Hi Allan–
    Let me suggest that you read part 2 of the post.
    It may clear up some of your concerns . . If not,
    after you’ve read part 2, comment on it and I can repsond without simply repeating some of the things I’ve said in part 2
    Thanks–mm

  16. Hi Allan–
    Let me suggest that you read part 2 of the post.
    It may clear up some of your concerns . . If not,
    after you’ve read part 2, comment on it and I can repsond without simply repeating some of the things I’ve said in part 2
    Thanks–mm

  17. Allan–
    First, on bankruptcy. I googled “doctors and bankruptcy,” and discovered that indeed, many doctors do go bankrupty–thanks to poor money management, over-extending themselves, taking out loans (in one case to buy a private plane) etc. Nothing about malpractice suits.
    Then, I googled “Malpractice doctors and bankruptcy “, and here’s the first headline: “Doctor facing malpractice lawsuits files for bankruptcy
    A former doctor facing more than 120 medical malpractice lawsuits filed for bankruptcy. . . .”
    As I indicate in part 2, given the fact that only about 2 percent of paients who suffer negligence sue, a doctor who winds up settling or losing a large number of suits over a relatively short period of time may well be making errors. This “former doctor” has clearly lost his license and is facing 120 suits. That his situation ends in bankruptcy is not too surprising.
    But the chance that the average doctor who is normally competent and has malpractice insurance is at risk of losing everything he owns is urban myth. The insurance pays for your defense and any settlement or award. The insurer wants to win the case and rarely settles if the doctor is indeed innocent (See statistics in part 2 and below.)
    Finally, as I point out in part 2 of the post, even when independent physician reviewers of the medical files found that the doctor had made an error or errors that caused the patient serious injury, patients received a settlement or a jury award only about 25% of the time.
    The doctors walked away without their insurer paying anything–even though, in the judgement of peers in his specialty, he had been negligent.
    Conversely, in cases where independent reviewers could find no evidence of error in the files, patients received payment only 10 percent of the time.
    In other words, 90 percent of the time, insurers don’t settle cases and juries don’t give patients awards when where the doctor was innocent.
    Regarding Kaiser, there is absolutely no problem with the way Kaiser pays its physicians. They share in the profits if the organization is efficient.
    As I’ve explained before, high quality and lower spending go hand and hand. AT medical centers where patients see more specialists, spend more days in the hospitals and undergo more procedures outcomes are worse, not better.
    These tend to be medical centers where doctors in private practice have “privileges” and are paid fee-for-service. Care is more efficient and much better co-ordinated at medical centers where doctors are on staff (on salary or on salary and bonus) and collaborate with each other and with the hosptial.
    For extensive evidence see http://www.darmouthatlas.org and read their 2008 report.
    I assume you’re implying that because doctors at Kaiser share in profits they have an incentive to provide too little care. Quite the opposite–the incentive is to keep patients healthy. If they provide too little care, the patient will come back, will have to be readmitted to the hospital, etc. which is expensive for Kaiser. Docotrs at Kaiser want to get the diagnosis right the first time around, and avoid infections, and errors that lead to complications.
    As to quality of care at Kaiser, both Dr. Jack Wennberg (founder of the Dartmouth reserach) and Dr. Don Berwick, founder of the Institute for Healthcare Improvement, view Kaiser as the “gold standard” for mainstream care.
    The proof that they are right: turnover of patients on Kaiser is very very low. In NOrthern California, once families are on Kaiser they stay on Kaiser for life–and often, for generations. As the director of human resources at Pitney Bowes told me: “If we didn’t offer Kaiser people wouldnt’ come to work for us.”
    Turnover among doctors is also very low. There is always a waiting list of doctors who want to work for Kaiser.
    A combination of patient satisfaction and doctor satisfaction is always a very good sign.
    There are, indeed, standards for reading mammograms. While there will always be a certain number of false positives, there are many ways that a good mammogram clinic can reduce errors. For example:
    “For the radiologists in the group, Rush recommended that the practice include the following phrase in its mission statement: “productivity is a far less important factor in the determination of income than optimal care.”
    “This is especially relevant if revenue is distributed according to productivity,” she said.
    Also, the group should consider including in department policy a reference to workload parameters for radiologists reading mammograms.
    “Anywhere from 50-70 diagnostic readings a day should be indicated as the maximum,” Rush advised.
    “Radiologists who are too tired to provide peak performance in their diagnostic interpretations should delay the interpretation or ask a colleague to fill in for them, she said. A practice may also want to consider a performance improvement plan as an indicator of quality care.
    “The (American College of Radiology) suggests creating a quality assurance committee,” Rush said. “A group may want to consider utilizing the medical outcomes audit as a marker and set acceptable standards and make improvements as needed.”
    In other words, radiologists need to keep track of how many “false negatives” as well as “false positives” they are finding and compare themselves to national norms. If they are outside the norms, they need to make improvements.
    Patients also should be well-informed:
    “Rush recommended that breast imaging centers create a mammography fact sheet that can be given to the patient by the receptionist or the mammographer, and that is then read, signed, and dated by the patient.
    The fact sheet should explain that a CBE is part of the breast cancer screening process, and that a correlative breast exam is not a substitute for a CBE. In addition, it should state that a negative mammogram does not rule out malignancy in the presence of a palpable mass or other breast abnormality.
    “It should also advise patients that despite the very best technologies and professional involvement, in some cases there are false-positive exams and false-negative exams,” she said.
    The fact sheet should also contain a statement advising the patient that a lump or clinical finding that develops after a negative mammogram should be evaluated and not delayed until the next screening exam, Rush said.
    It is also worth noting that according to The National Cancer Institute:
    “International comparisons of screening mammography have found that specificity is greater in countries with more highly centralized screening systems and national quality assurance programs For example, one study [published in JAMA] reported that the recall rate (calling the patient back for further study and sometimes a biopsy) is twice as high in the United States as it is in the United Kingdom, with no difference in the rate of cancers detected.”
    In other words, we do a lot of unncessary biopsies but are not better than doctors in the UK at actually detecing cancer.
    As for who should decide when an MRI should be performed–we need “best practice guidelines” (guidelines, not rules) created by a national panels of physicians and medical ethicists that have no financial interest in any medical equipment maker, device maker or drug-maker. (The U.K. has such a panel –it is called NICE). These guildeines would detail the circumstances under which an MRI is indicated. Insurers would be required to pay for the MRI under these circumstnaces (as they are in the U.K.) But doctors would not be required to follow the guideline. Every patient is unique, and in particular cases, doctors might decide to go ahead an order an MRI even though it didn’t fit the guidelines and insurance didn’t pay for it. (The patient could later appeal to the insurers for payment). Or, the doctor might decide not to order the MRI even though guidelines recommended it.
    IF the physician followed the guidelines, he would be pretty much immune to a lawsuit. (Unless he failed to send the report to the patient and her doctor–which is the cause of many breast cancer malpractice lawsuits.)
    If he failed to do the MRI when the guidelines suggested it was indicated, he would be quite vulnerable to being sued.
    In the U.K., doctors and hospitals follow NICE’s recommendations about 89% of the time. Doctors int he U.S. do not follow our best practice guidelines for things like managing a diabetic or giving aspirin to a heart patient nearly as often.

  18. As to quality of care at Kaiser, both Dr. Jack Wennberg (founder of the Dartmouth research) and Dr. Don Berwick, founder of the Institute for Healthcare Improvement, view Kaiser as the “gold standard” for mainstream care.
    Maggie,
    Three questions about Kaiser.
    1. If their care is so good and so cost-effective, why aren’t their insurance rates materially cheaper than competitive HMO products in California? Healthcare consultants tell me that they are not.
    2. Why aren’t they gaining significant membership and market share?
    3. Why hasn’t their business model been replicated across the country? Kaiser itself is much more successful in California (especially Northern CA) than elsewhere.

  19. Barry–
    Kaiser is more expensive because thier benefits are much more comprehensive than in the cheap plans sold by for-profit competitors. No hidden “holes” in Kaiser’s coverage.
    Can I persuade you to read 2008 report at http://www.dartmouthatlas.org?
    It does a very good job of defining “efficient” care.
    Kaiser very relucantly began to offer high-deductible plans a few years ago–because they
    have to compete with for-profit companies. offering these plans. But the head of Kaiser told me that they thought this was very bad public policy.
    (Famlies who can’t afford the deductible will buy these plans because the premium is all they can afford, then not use health care until they are very sick.)
    Kaiser has been especially successful in Northern California because the Notherwestern U.S. has a long traditiona of co-opeative pre-paid medicne and doctors and patients like this model.
    In Texas, the Texas AMA went on a campaign to block Kaiser when it moved there.
    Nevertheless, Kaiser offer better outcomes than most academic medical centers–for less–at most of its outposts. Again, if you’re interested, see http://www.dartmouthatlas.org, their new big 2008 reprort.
    Once you get into the report, search “Kaiser” and you’ll find a 2-3 page
    section comparing the various Kaiser outposts in terms of outcomes and costs.

  20. Barry–
    Kaiser is more expensive because thier benefits are much more comprehensive than in the cheap plans sold by for-profit competitors. No hidden “holes” in Kaiser’s coverage.
    Can I persuade you to read 2008 report at http://www.dartmouthatlas.org?
    It does a very good job of defining “efficient” care.
    Kaiser very relucantly began to offer high-deductible plans a few years ago–because they
    have to compete with for-profit companies. offering these plans. But the head of Kaiser told me that they thought this was very bad public policy.
    (Famlies who can’t afford the deductible will buy these plans because the premium is all they can afford, then not use health care until they are very sick.)
    Kaiser has been especially successful in Northern California because the Notherwestern U.S. has a long traditiona of co-opeative pre-paid medicne and doctors and patients like this model.
    In Texas, the Texas AMA went on a campaign to block Kaiser when it moved there.
    Nevertheless, Kaiser offer better outcomes than most academic medical centers–for less–at most of its outposts. Again, if you’re interested, see http://www.dartmouthatlas.org, their new big 2008 reprort.
    Once you get into the report, search “Kaiser” and you’ll find a 2-3 page
    section comparing the various Kaiser outposts in terms of outcomes and costs.

  21. Allan–
    On how lower cost and higher quality go hand in hand. Try reading the 2008 Dartmouth report at www. datmouthatlas.org
    Then please give us a number (and a source) showing the percentage of doctors sued for malpractice who went bankrupt. Also, what share went bankrupt becuase they didn’t buy “tail” insurance, leaving themselves uninsured.
    You’re right, your anecdote does not tell us much about heatlhcare in the U.K. For information on NICE, see my post on NICE with sources from NICE and from the London School of Ecnomics.
    Finally on the indivdiual patient making the decision. Recent reserach from the University of Michigan and the Center for Shared Decision Making shows that the majoirty of patients who made very important decision (about cancer treatments, etc.) were not aware of only 2 of the 8 most important facts that they needed to know about risks and benefits.
    This is why every other developed country in the world has “guidelines for best practice”–and why we are working on them.

  22. Allan–
    On how lower cost and higher quality go hand in hand. Try reading the 2008 Dartmouth report at www. datmouthatlas.org
    Then please give us a number (and a source) showing the percentage of doctors sued for malpractice who went bankrupt. Also, what share went bankrupt becuase they didn’t buy “tail” insurance, leaving themselves uninsured.
    You’re right, your anecdote does not tell us much about heatlhcare in the U.K. For information on NICE, see my post on NICE with sources from NICE and from the London School of Ecnomics.
    Finally on the indivdiual patient making the decision. Recent reserach from the University of Michigan and the Center for Shared Decision Making shows that the majoirty of patients who made very important decision (about cancer treatments, etc.) were not aware of only 2 of the 8 most important facts that they needed to know about risks and benefits.
    This is why every other developed country in the world has “guidelines for best practice”–and why we are working on them.

  23. Just a few additional points to ponder.
    What about those docs who love defensive medicine so they can run up the procedures and their income? They own (or have an investment in) the MRI and/or other diagnostic tools as well as their surgery centers. They refer to their colleagues down the street who will be sure to return the favor with thier return referrals.
    What is a physician’s ATM called? An MRI!
    On the other hand, why do we not talk about the 30-40% of the patients money that the attorney gets? Is it not the purpose of the whole process to provide the needed compensation for the patient as opposed to the excess profit of the lawyers?
    How many lawyers play the bluff game to get a large number of low paying cases, knowing that the physician or the physician’s insurance company will settle quickly? How about the attorney who represents the doc – for $350 or $450 an hour?
    Let’s get back to the basics. If it looks like it, if it smells like it and if it tastes like it – don’t step in it. Someone is paying for the TV ads, radio ads, phone book ads, billboards and the 1-800-ASKLUCIFER ads.
    The reason the docs won’t narc on each other is the same reason the lawyers in Congress and our state legislatures will never change the laws.

  24. Ken,
    Thanks for your comment.
    You write: “How many lawyers play the bluff game to get a large number of low paying cases, knowing that the physician or the physician’s insurance company will settle quickly? How about the attorney who represents the doc – for $350 or $450 an hour?:
    If you read this part 2 of the post, you’ll find that insurers either settle or lose the suit in only 10 percent of all cases where objective M.Ds in the same specialty who reviewed the files say the doctor made no error. So in 90 percent of the cases where insuers settle or the juries find the physician guilty of malpratice he was indeed negligent in a way that seriously harmed the patient.
    You also ask: “On the other hand, why do we not talk about the 30-40% of the patients’ money that the attorney gets?”
    You are right– the plaintiff’s attorney typically gets well more than 30 % of the settlement or court award–
    assuming there is a settlment or award.
    But as part 2 of the post ponts out, in roughly 1/3 of the cases where unbiased specialists took a look at the files and found clear medical errors and negligence that caused serious disability or death, there is no award.
    Malpractice attorneys usually take cases on “contingency”. If there is no settlement or award, they get nothing–and they have to eat the costs of brining the case to trial.. IF there is an award, they get well over 30%.
    Given that 1/3 of good cases (where there was, indeed negligence that caused death or disability) bring in zero for the plaintiff’s attorney, he needs a fairly hefty percentage when he wins to make up for the times when he loses a perfectly good case.
    Also, win or lose, the plaintiff’s attorney has to pay expert witnesses, court costs, the cost of sending lawyers to depose witnesses, etc. etc.
    Some plaintiffs’ attorneys who are able to attract cases that will bring large awards become very wealthy. But many plaintiffs’ attorneys don’t. Even if they only take good cases, there is, on average a 33% chance that will make nothing. So it’s always a gamble . .

  25. Maggie,
    Do you have a link on the TExas AMA blocking Kaiser?
    The AMA and its state chapters have had no serious lobbying power since the 1960s, so I highly doubt they were responsible for kicking out Kaiser. I’m not surprised if they didnt like Kaiser, what I’m questioning is their power to kick out a multibillion dollar healthcare conglomerate like Kaiser. The Texas AMA (or even the national AMA) simply does not have that kind of influence.

  26. Anonymous–
    No I don’t have a link on this. This is something I found through my own reporting, talking to doctors in Texas.
    The AMA is no longer the power it once was nationally, But in some states it is extremely powerful–especially in states wher more doctors are conservative
    The AMA has fought Kaiser since before World War II.

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    I thought you’d be interested in knowing that Samuel Shem, author of “House of God,” has written his latest novel, “The Spirit of the Place.” It’s available now and is considered Mr. Shem’s most ambitious work.
    Please visit http://www.samuelshem.com for more information.

  28. Great article.
    My experience (both as a med mal defense atty and an injured patient) has been that patients really do not want to sue doctors. I was told by BCBS that I *must* bring the lawsuit in order to receive the subsequent corrective surgeries at a different medical facility.
    I believe “Sorry Works.” My surgeon did just the opposite. In my situation, the surgeon actually insulted me (although never charted or suggested during tx, the surgeon testified that I fell after ankle surgery because I was an alcoholic) and the surgeon also claimed that I manipulated him into performing surgery. He testified that he did not know why I would want the surgery.
    Surgeons should not blame patients. I would have been satisfied with physician discipline but there is no Medical Disciplinary Board yet in IL. And, there is a statute of limitations of 4 years on physician discipline in IL.
    It has been almost 8 years and I still face another (8th) surgery to correct the initial injury by the surgeon.

  29. Hi,
    Very good post.Malpractice attorneys usually take cases on “contingency”. If there is no settlement or award, they get nothing–and they have to eat the costs of brining the case to trial.. IF there is an award, they get well over 30%..

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  31. I think the single best way to get rid of these issues is for the medical community to stay focused on providing quality healthcare. That’s the bottom line.
    We spend a great deal of time arguing about tort reform and focusing on what lawyers are doing. Stay focused on what matters most, taking care of people.

  32. There are very few individuals who can afford to pay their legal fees and disbursements as a case proceeds. As a result, lawyers who practice in this area will often carry the financial costs of the litigation until trial or settlement pursuant to a contingency fee arrangement. Consequently, it is necessary for a law firm to be very selective in the cases that it agrees to take on.

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