"You Can't Always Get What You Want"

Below, a guest post from reader Jim Jaffe, who is the health editor of CenterPolitics.com

he raises a good point: we cannot afford to give everyone every medical service or product that they—or even their doctor—might want. 

At the end of the article, I comment, highlighting where I agree with Jim’s argument, and noting where I disagree.

"You Can't Always Get What You Want"
By Jim Jaffe

The Obama administration wants to guarantee that all Americans can afford the medical care they need.  No one argues with that goal.  Unfortunately, no one agrees on a definition of need either.

Defining what we need is a difficult and delicate chore that won’t be advanced by the rhetorical food fights we enjoy on cable.  That’s what the failed managed care experiment of the l990s was all about.  It was also the basis of the complaint voiced by Harry and Louise when they shared their concerns about Clinton proposals a few years earlier.

Imagine a country where every ailing resident can choose a physician and collaborate on creating a course of treatment, without worrying about the cost, because of an insurance mechanism that keeps things affordable for the patient while yielding those providing service a fair income.

A strong imagination is required because no nation has such a system, and it is unlikely that one ever will.  Those who hope that this is the sort of health reform our politicians are now discussing will be disappointed.

Under the current health care system, doctors have often won debates with insurers, nearly always having public opinion on their side. But in a system that provides everything for everyone, doing so would be prohibitively expensive. Indeed that’s partly why we already outspend other nations without being as healthy as they are – our system provides everything some people want while denying some things that some people really need.

For years reformers have been trying to duck the really painful questions by suggesting that doctors can be educated about what optimal care looks like, imagining a consensus between those setting the standards and those confronting them. 

It appears that this has happened within some medical groups.  Physicians who join Mayo or Kaiser basically buy into the style and specifics of the medicine practiced by these plans.  And, even in this age of consumer/patient empowerment, patients tend to follow where doctors lead.

But no one has ever come up with a way to apply such norms more broadly.  And it is hard to envision a day where the doctors at Johns Hopkins will commit to following Mayo standards despite the fact that they’ve been proven to deliver comparable care at a more affordable cost.

Most doctors share a very human instinct to fix things whenever they can that is at least somewhat enhanced by the realization that doing so will improve their incomes.  Barbers tend to think that few problems can’t be helped by a good haircut, so it is hardly surprising that surgeons stand ready to operate on prostate cancers despite evidence, reinforced yet again this month, that watchful waiting is often a wiser course.

Our new system is not going to increase the fee for watchful waiting to compete with what surgeons get paid for a procedure and I’m not convinced that would change things anyway.  It is hard to imagine skilled hands standing by in the role of the Maytag repairman.

Meanwhile, the American Society of Clinical Oncology and the American Urological Association suggested this month that all men over 55 consider taking a daily dose of Finasteride, an anti-baldness drug that cuts the odds of getting prostate cancer by 25%. The drug, which is not without side effects, costs about $1000 annually for a daily dose.

Researchers say that for one cancer to be avoided, 71 men would have to take the drug for seven years.  That would cost about a half million dollars per cancer averted, and that’s before the debate begins over whether such a case would merit treatment.

Some men, especially those losing their hair, might want Finasteride.  But whether it is required to keep American men healthy is a much more difficult question. 

When our auto mechanic tells us he thinks it’s prudent to get an oil change every 3000 miles despite language in the owner’s manual suggesting a 25,000 mile interval, we properly resist what we see as a waste of money.  But when our doctor says he thinks an annual physical is a good idea, notwithstanding a lack of evidence to prove that it’s helpful, we’re reluctant to push back, unless we’ll have to pay for it personally.

That’s why conservatives like consumer-driven health plans.  They would force us to make the decisions individually rather than empowering the experts to write rules.  Their argument, on a theoretical basis, is not unattractive.   But few of us have a reliable owner’s manual that allows us to make an intelligent decision.  Instead we have advice from a discordant group of voices, many of whom have an economic bias toward doing more.

Overruling a physician’s recommendation is something that conservatives are wary of – and properly so, though it is important to remember that they have yet to come up with a way to allow everyone to get what they -- and their doctors -- want. Instead, they’re debating about where the decision should be made as to what is truly needed.

It’s the type of question we’re still uncomfortable asking even though the food stamp program doesn’t permit recipients to eat in gourmet restaurants or even buy pricey organic products.  And housing vouchers aren’t adequate to provide penthouse quarters.

For years, we’ve avoided drawing similar lines in health and that understandable reluctance is largely responsible for the environment we confront today. You can call it rationing, prioritizing or shopping, but at the end of the day choices must be made to separate what’s needed from what’s wanted.

So any right to medical care that emerges from today’s debate will have to be carefully crafted and limited.  Doctors will say their patient needs one thing and the system will refuse to pay for it or direct a different therapy. That means that there will be times when people are going to be denied what their doctors say is needed, a situation that will cause more than a little stress and may require a redefinition of the current doctor patient relationship.

It is a very difficult pill to swallow.  But creating a system where everyone would have affordable access to anything their physician wanted to try would be even more difficult. A more constructive debate begins with counsel from the Rolling Stones, who explained, “You can't always get what you want. And if you try sometime you find you get what you need.”

                                                 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~

 Comment—Maggie Mahar

 No doubt many Americans believe that universal coverage will  guarantee that every American would receive any medical service or product that his or her doctor recommends.  But Jim is right; this would be prohibitively expensive.  Too many U.S physicians have been trained to prescribe without worrying about costs--- even in cases where there is no medical evidence that the treatment will work.  It’s not unusual to hear a doctor say “It’s worth a shot.”

 But if we are going to provide care for everyone, we cannot afford to shoot in the dark—not when today’s treatments can cost $1,000, $10,000 or $100,000.  We must use advanced medical technologies selectively, reserving them for cases where we have some medical evidence that the patient in question will benefit.

This doesn’t mean that there isn’t a place for experimental treatments. There is. But these treatments  belong in controlled clinical trials where we can learn from the outcomes in a way that could help all of us.  When individual patients receive unproven treatments in a haphazard fashion, we’re not adding to the body of evidence about what works and what doesn’t..

That said, I disagree with Jim when he suggests that American doctors “cannot be educated about what optimal care looks like.”  Jim acknowledges that at the Mayo Clinic and Kaiser, doctors make better use of our health care dollars. Nevertheless, he argues “no one has ever come up with a way to apply such norms more broadly.  And it is hard to envision a day where the doctors at Johns Hopkins will commit to allowing Mayo standards despite the fact that they’ve been proven to deliver comparable care at a more affordable cost.”

The truth is that Mayo and Kaiser in Northern California and Oregon are not the only centers that offer higher quality care at a lower price.  The Dartmouth Research  shows that Geisinger, Intermountain , Group Health at  Puget Sound  and the Cleveland Clinic all offer good value for our health care dollars. Then there is the VA -–the largest health care system in the U.S  Physicians, there  have learned to practice low cost, high quality medicine.  FIX As Dr. Atul Gawande points out, the VA provides better care than  fee-for service Medicare —and costs 30 percent less.

Even if they are not working in a large, multi-specialty practice, individual physicians can change the way they practice, As Pat S. noted in his recent HealthBeat post:

  “Many health care providers will be willing to implement these changes in their practices if the government provides them with cover by setting standards and explaining the standards to both providers and the public.  This is partly because most providers really do want to provide the best possible care (and almost all believe they do,) and partly because establishing practice standards could protect against inappropriate lawsuits.

“The most dramatic example of this can be seen in the history of anesthesiology.  In the mid-70’s, anesthesiologists faced the highest malpractice insurance premiums of any specialty – often as high as $100,000 a year (and those are 1975 dollars, remember.)  The Society of Anesthesiology, realizing that this was threatening the viability of many practices, created a national panel which developed a set of specific standards for anesthesia practice. 

“They then created a task force of lawyers and academic experts that offered its support to any practitioner who could document that they had followed the standards but was still being sued.  Verdicts against anesthesiologists plunged and--since plaintiffs’ attorneys cannot afford to lose regularly –the number of lawsuits declined sharply  Insurance premiums fell  by 90%. 

“More importantly, complications of anesthesia and deaths from anesthesia also declined .”
It’s important to note that the Society of Anesthesiology set up a national panel to create “guidelines” (not rules) for best practice. No one doctor should be making these decisions.). And it is crucial that the experts on these panels have no financial interest in the outcomes. The Medicare Payment Advisory Commission has suggested staffing the panel with doctors who work on salary, rather than fee-for-service to avoid even a subconscious bias in favor of particularly lucrative services.

 But while I am more optimistic than Jim that guidelines can work, I agree with his larger argument that “at the end of the day choices must be made to separate what’s needed from what’s wanted.

Comments

[Philip Micali of bWell-informed]

Maggie...the core of the debate has to focus on what is being covered in any reform effort. Preventive care may be cost effective but not a cost savings, so even this essential element of any legislated reform must be scrutinized. Obama, nor anyone else is saying that free unabated care should be provided to everyone. He is saying that expanded coverage is good for the economy, good for citizens and good for quality outcomes. Further, he emphasizes the cost issue needs to be addressed in addition to the coverage issue. More covered people means we will have more leverage in containing costs. Just look at the health outcomes and costs associated with it in all other industrialized countries which have universal, or near universal coverage.

[Maggie Mahar]

Nate--
You are right-- when Medicare cuts reimbursements for a particular preocedure, providers often up the volum in order to make up for their losses.

This is why Meicare is
is now doing pilot projects that pay doctors and nospitals for outcomes--not how much they do.

In the next few yars, Meciare will be movng away from fee- for service- payment -whic does encourage overtratment.

[Nate]

"Medicare is aware of the problem with excess diagnostic imaging, and I
suspect that when it adjusts its fee schedule it is likely to lower fees. It may also raise co-pays for these tests. The
combination would have an effect."

Medicare already slashed DI reimbursement, some over 40% and it was a disaster. It was the worst possible solution they could have implemented. The number of test exploded. Further and most importantly paying $100 for an unneeded test is almost as bad as paying $60 for an unneeded test. Slashing reimbursement effects needed test and bad ones just the same.

We need to incourage doctors to order the right test and dissway them from ordering fervious ones, cutting reimbursement failed both needs.

[Travel.justluxe adviser]

Though it seems good to hear the news that Obama administration wants to guarantee that all Americans can afford the medical care they need, but it doesn’t seem practical because of the shortage of funds at least at this stage. Besides this, there is no limitation of doing good and desiring better.

[Maggie Mahar]

Barry--

No one at Harvard likes to admit mistakes. Ever.
I'm serious.
This is about ego, brand name and arrogance.
Look at who pioneered "Sorry Works"-- the VA. A very, very different culture.
When I was at a small dinner meeting of health care execs in N.Y. and suggested that patients really need an advocate with them at all times, if possible, to protect them against mistakes, the CEO of a very brand-name Manhattan hospital turned red in the face, pounded the table, and shouted at me: "No one needs an advocate at our hospital. We Don't Make Mistakes."
If he could have, I thnk he would have leapt across the table and strangled me. He was that mad.
No wonder patients sue.

[Barry Carol]

My understanding is that the Harvard hospitals have their own captive malpractice insurer. When their insurer spots patterns that may indicate a problem with one of the hospital’s processes or with a specific doctor, it makes the management aware of it so corrective action can be taken. If “Sorry Works” would reduce the cost of both litigation and malpractice settlements, why hasn’t it been adopted by one or some or all of the Harvard hospitals? If it has been adopted, has it worked as intended and expected?

[Maggie Mahar]

Legacy Flyer--

Thanks for your comment--and for doing so much research.
I fully understand your desire for a controlled trial. But think about it:
if a hosptial divided its
chain, the "control group" (that was not going to use "sorry works") would be annoucing to the world: we're going to do our best to hide mistakes.
No good PR.
So it's hardly surprising htat there is no controlled trial.
What we are left with is observational evidence. If
would be nice if someone tries to pull it all together in one place; interviewing hospital administrators who have tried sorry works.
I don't think I've seen a single negative story.
Reporters are always looking for stores that contradict the conventional wisdom--especially after there have been a wave of stories on the other side.
"When Sorry Doesn't Work . . . Hospitals Regret" would be a great headline.
This doesn't mean some hospitals haven't experienced regrets. But
given what we know about patient psychology (they hate being stonewalled and feel much, much better if people apologize) common sense suggests that, on balance, "sorry works" is probably a very good idea.
In term sof the future of tort reform: past history shows that caps really haven't worked the way we want them to in any state where they have been tried (HealthBeat did a post on this).
We need better solutions.
A combination of
a) guidelines for certain cases--particularly OB/GYN (and laws providing cover for docs who follow those guideliens and are not negligent in other ways). OB/Gyn should do what the anesthesiologists did.

b) Medicare reformers are discussing changing malpractice law for hospitals and doctors who agree to "bundled paymente" (paid one lump sum for each episode of care for everyone who treated the patient 3-6 months before hospitalization, during hospitalizatoin and 3- 6 months after leaving the hospital based on outcomes). Doctors who agreed to this system would no longer be vulnerable to lawsuit. Instead, the hospital at the center of their network would be sued --taking the onus off the individual. Often, in the case of malpractice, more than one person made a mistake --or the "system" was flawed.

c) shared decison-making laws. The State of Washington has passed a law making it very difficutl to sue if the patient was taken through the whole "shared decision-making" protocol (it's an int'l protocol) for elective surgery and tests.

d) apoologies and full disclosure (sorry-works)

The combination could go a long way toward reducing suits and making settlments less costly and time consuming.

We need to experiment, find what works and expand on it.

[Legacy Flyer]

Over the past 20 years, I have reviewed in the range of 4 to 5 cases per year for a total of 80 to 100 malpractice cases. This morning, I went over a malpractice case with a lawyer and signed on to be an expert witness. (Interestingly, malpractice was committed in this case, but not (in my opinion) by the defendant but instead by the plaintiffs expert!)

I asked the attorney what he thought of “sorry works”. His law group does the majority of malpractice defense in the western part of my state. His opinion (and I recognize his conflict of interest) was that in some cases, it has been a disaster. He pointed to one risk manager at a local hospital that he said has been the cause of a number of meritless suits and gave specific examples.

Intrigued by his comments, I followed your suggestion and did some research on whether there is any “evidence based” data that shows that “sorry works” actually works. First I went to the New York Times article you suggested from 5/18/08. There was no hard data provided in this article.

As you suggested, I then googled “sorry works” and got to the Sorry Works Coalition website -(http://www.sorryworks.net/) . This lead me to an article entitled “The Sorry Works! Coalition: Making the Case for Full Disclosure”. This article lacked any hard data, so I searched through its bibliography.
I then searched for an article by R. Boothman in Physician Exec 32:7, 10 called “Apologies and a Strong Defense at the University of Michigan Health System”. The article was not in the Journal as it was cited. There was another article in the same issue by Lucien Leape (perhaps the references were switched) entitled “Full Disclosure and Apology-an idea who time has come”. This lacked any good data.

Finally I went to the Annals of Internal Medicine and read “Extreme Honesty May be Best Policy” (Vol 131, Issue 12). Again there was no hard data.

I don’t claim to have done an exhaustive search of the area, but so far good data has been hard to find.

What would good data look like? First, it would not be a breathless article on how wonderful things have become at St. Elsewhere since the institution changed its policies or someone new took over risk management .

Hard data might look like this:
• A multi-hospital chain divides its hospitals into two groups; the “sorry works” group and the “conventional group”.
• Both groups then embark on a revamped risk management plan that differs only in how complications/errors are treated – one group says “sorry”, the other uses the conventional approach.
• Payments, including Malpractice judgements, legal bills, and settlements are tracked over a period of years. (payments by both hospitals and by physicians)
• Comparison is made and statistical significance is calculated
If such a study were ever done we might have some good data from which we could draw “evidence based” conclusions. Until then, from what I have seen, we mostly have anecdotes and “celebrity endorsements”.

By the way, in the case that I referred to above, the physician defendant initially thought that he was responsible for a serious complication and visited the patient at the tertiary care institution that the patient was transferred to. However, this did not prevent the patient from filing suit. Subsequently, during the course of discovery it has become clear that the physician defendant was NOT responsible for the serious complication the patient suffered. What would have happened if the physician defendant had apologized and offered compensation?

In fact, in this case the patient probably deserves some compensation since he did suffer unnecessarily from a procedure that was performed on him. But the statute of limitations has expired on the guilty party and the physician defendant is clearly innocent of malpractice. Rather than focusing on sideline issues like “sorry works”, we should be looking at a complete revamp of the corrupt and wasteful system that malpractice is.

So let me guess, our President and the majority of Congress are Democrats as well as lawyers - the trial lawyers are a huge contributor to Democratic politics – what are the chances of malpractice reform in the next 4 years?

[Pat S]

I am not debating the idea that defensive medical practice, motivated by fear of malpractice, does cause increased costs in the US, especially through unnecessary diagnostic testing.

The question of what percentage of increased cost is due to defensive medicine is not so clear.

If you are of a mind to think that malpractice fears are a major factor in management practice, you can argue that almost everything a doctor does is motivated by fear of malpractice. For example you could say that physicians do patient histories out of fear of lawsuit, since not doing a good history would certainly make them more vulnerable to being sued.

In reality, a lot of excess cost is due to things that do not affect malpractice, at least not in a positive way. For example, the widespread failure of doctors to prescribe the medications that have been proven to be most effective in management of hypertension in favor of more expensive, less effective, more dangerous treatments that are not endorsed by most research is certainly not related to malpractice fears, since it results in management that is more, not less, likely to land in court.

An earlier example on this thread, the use of dilation and stenting supplanting bypass surgery, is another example of practice patterns that probably expose physicians to greater risk of suit, but it is happening anyhow.

Another important factor in the argument that malpractice is not the main driver in wasteful practice patterns comes from the fact that there is not a significant variation in the tendency to overuse various management techniques between high and low malpractice risk states. In fact, some of the states with the most aggressive medical tort reform, including California and Texas, still have among the highest level of overuse patterns.

I have had the luck to practice in areas where malpractice is much less of a problem. If I practiced in Pennsylvania, Nevada, or parts of the Sun Belt that are malpractice suit hotbeds I probably have different experience. As it is, I can count on the fingers of my hands the number of times in my thirty years as a radiologist that I have had doctors tell me they need an exam to protect themselves from malpractice suits. I have seen a lot of unnecessary exams in my time, and the example of the overuse of CT pulmonary angiography is a good one, but in my experience there is a greater tendency of doctors to be influenced by what they have read in journals or heard at meetings or learned in training. Granted, it can be argued that these influences occur in the light of malpractice risk, but as I said earlier everything could be considered influenced by malpractice risk if you believe strongly.

In the end, this is a question of perception, not fact. If you believe that malpractice risk drives almost all unnecessary spending, then you will see evidence of that.

I do believe we need better ways of dealing with the malpractice issue. Removing malpractice from courts and placing it before local, regional, and national boards charged with dealing with the issue would probably reduce the spectacular miscarriages that occur in some parts of the country, but might actually increase the number of cases, since it would be easier for patients to file complaints. Provision of well documented practice standards by some central or government authority would help, as it did in anesthesia; however, that would mean that doctors would have to surrender a degree of autonomy that many of them may think is very important, and that self-serving representatives of drug and equipment suppliers definitely argue is important. Banning contingency fee reimbursement for attorneys would certainly decrease suits, and is a major factor in other countries, but if there was no good alternative it would also stop many patients from getting compensation for real acts of malpractice.

I personally think that a combination of a switch of most malpractice from courts to boards with the adoption of better practice standards would be the best approach.

However, I am not counting on that causing a big reduction in waste. I think we will need more comprehensive application of practice standards, typical of most other countries, to accomplish that.

[Maggie Mahar]

Barry and

Thanks for your comments.

Barry-- Whether they are on salary or on some combination of salary & bonus, they need lawsuits in order to keep their jobs.
Put it this way: if a hospital has two in-house counsels and finds that it can cut the number of suits in half by using Sorryworks, wouldn't it be likely that it would realize it only needed one lawyer?

Roger --

This would be done on a state by state basis by state medical boards.
See, for example, this story about NC doctors fighting a malpractice website: http://www.fiercehealthcare.com/story/nc-doctors-fight-malpractice-disclosure-website/2008-05-30

[Barry Carol]

“The hospital lawyers who, in many cases, play a major role in running hospitals, don't want to see their incomes trimmed either. Like many plaintiffs' attorneys, they would prefer to see more litigation, not less.”

Maggie,

Aren’t the hospitals’ lawyers generally paid a salary? To the extent that they are eligible for a bonus, I would think it would be based on keeping hospitals out of court and malpractice settlements (and cases) to a minimum.

[Roger Williams]

Just wondering...

Is there a website that catalogs these "malpractice mishaps"? [hopefully anonoymously]

Maybe on a court website somehwere?

Thanks in advance...

[Maggie Mahar]

Legacy Flyer, Pat S., Jenga and Chrisotpher--

On fear of lawsuits and defenisve medicine:

There is quite a bit of research showing that, by being opem with patients, apoologizing & disclosing what mistake were made Sorryworks actually does recduce costs:

See this link, just for starters.

http://www.nytimes.com/2008/05/18/us/18apology.html?_r=1

Then google sorryworks and mapractice and VA -- you'll see the numbers comparing what happens when a hopsital uses sorry works and when it doens't.

Then google Sorryworks and Malpractice and you'll find a wealth of infromation descriing where, how and why sorryworks actually does work.

Why don't we hear more about i? The hospital lawyers who, in many cases,
play a major role in running hospitas, don't want to see their incomes trimmed either. Like many plaintiffs' attorneys, they would prefer to see more litigation, not less.

[Legacy Flyer]

Two comments:

Is there any good data that "sorry" works? What I have heard so far is anecdotal evidence from proponents of the system. Has anyone done a study of two different hospitals; one that uses "sorry" and the other that uses the conventional approach?

By the way, not talking to the patient and their family and stonewalling is not the conventional approach and has never been advocated by malpractice attorneys. There is no way to avoid talking to the patient and their family if problems occur. But there is a difference between saying "We made a mistake and we are sorry" and "A complication occurred (as we warned you was possible when we obtained consent) and we are sorry about the complication" Does Maggie think the former is better than the latter and what data does she have to support her contention?

On the topic of what % of unnecessary testing/treatment is due to malpractice I think people are being too simplistic. Malpractice has been around for many years and has been driving the "standard of care" for a long time. Anyone who says that a particular study was ordered or procedure done because of the "standard of care" or
a "protocol" ignores how those "standards" or "protocols" came into being. In my practice lifetime, I have seen the number of complex imaging studies ordered through ERs increase by a factor of 10. ER docs will defend what they do based on a "standard of care" or a "protocol" but that ignores the larger question of how that "standard" or "protocol was arrived at. In fact, one of the primary driving factors is malpractice.

I stand by my contention that malpractice is a HUGE factor (but not the only one) contributing to unnecessary testing.

I can't tell you how many times I have talked to ER docs who have told me: "I know it's going to be negative but I had to order it because of the lawyers."

[Christopher George]

Dr. Pat,

I think we can agree that litigation drives only a fraction of overtesting, if that fraction is three quarters. That is my guess for ER services, at any rate. Maggie(?)has used the term marbled for the insidious way in which waste is mixed in alongside legitimate spending in the healthcare system, especially I would add in the hospital setting. I would argue that much of the overutilization is cannonized now into the "standard of care" has been initially a reaction to litigation risk. It has been an ineffective response, but that is irrelavant. This will take decades to unwind, once we move in this direction, if we ever do move in this direction.

Payments to doctors are decreasing and malpractice insurance is increasing. Sooner or later the problem will have to be addressed, reform or no reform, single payer or our current payment muddle.

Our liability situation make reform infinitely harder, in my opinion. Most of the retired doctors who have re-invented themselves as wonks are on your side about malpractice, but I think they are mistaken.

We can't reform utilization when the final arbitor of care is the court system, which currently is so slanted toward the plaintiff's attorney that even doctors accept that genetic diseases like CP should result in a new jet airplane for the lawyer representing the mother.

In our state, the last two malpractice cases covered in the newspaper were a contractor who recovered after rolling his truck, without his seat belt fastened, punctured his lungs, broke most every bone in his body, and lost almost all of his blood. He recovered, but was inexplicably blind. This is a known, but unexplained complication of shock or its treatment. The surgeon spent over 24 hours in the OR saving his life and was found liable for millions.

In another case a disturbed brilliant high school student took an extimated 300 aspirin pills and successfully committed suicide. The ER doctor again was found liable for millions, though he was following the dictates of a university ER doctor, by phone.

Can we have a system where courts can stipulate that every car crash should survive without impairment, and every suicide should be revived?

There are, I think, a number of reasons why reformers are so unable to see the legal abuses.

1. They are bankrolled by tiral lawyers who see "enterprise liability" as holy grail of malpractice law, yielding lawyers the sort of out-size annuity that tobacco lawyers have already extracted.
2. A distorted sense of "social justice" which sees lottery verdicts paid for by doctors as some sort of social insurance. The injured deserve the money, even if it really wasn't the doctor's fault.
3. Willful ignorance of how large the problem really is. Modern interventional medicine is where all the good and bad outcomes arise. Bad outcomes are very common. Make it easier to get paid for a tragedy, and the costs will skyrocket.
4. It hasn't blown up yet. Malpractice costs, that is direct costs, are small compared to the gross national debt, or the total defense budget or the healthcare budget, but they are large compared to physician income.
5. Elsewhere Maggie has repeated the presently true statement that few doctors have lost personal assets to malpractice. This could change as easily as the climate toward, say, bankers has changed. As hated as bankers are, there are probably a thousand times as many lawsuits against doctors as bankers. It is similar to saying, "I was mugged at gunpoint, but most muggers don't kill you." A variation of this is, it is only a few bad apples... A few bad apples means, in this case, every neurosurgeon in NYC at any given time. Can we all be that bad?
6. Reformers are unconcerned with efficiency. A huge fraction of malpractice cases are wrongly decided by the courts. A huge fraction, in our state, 70% of your doctor's malpractice premium goes to lawyers, either for defence or the plaintiff.
7. The general attitude that you can't pay a victim too much, and by extension, you can't pay his lawyer too much. (You can't, it seems pay a doctor too little, but that is another matter.)
8. Trial lawyers need to defend the contigency system to protect their larger interest in the civil justice system generally which has made them super rich.
9. Litigation is somehow a public good, but it is a public good which they could not possibly "afford" to do if they were paid like a doctor or a district attorney, but they are happy to do if they can be paid like a star athlete.

I agree with most of you that liablility reform is a non-starter. I don't think we can have drastic utilization reform without drastic litigation reform. It is the heart of the problem.

I think this will bankrupt our country.

[Pat S]

Malpractice litigation is painful and frightening to doctors. It does cost extra money from defensive medicine, but I think only a small fraction of what is spent due to management patterns that don't have anything to do with malpractice.

One problem with malpractice litigation is that there is no good alternative for many patients to deal with real injuries and feelings of being managed poorly and treated disrespectfully.

One of the reasons that the "sorry" program works is that it gives patients a chance to be heard and taken seriously without going to court.

During my career I worked for a while at a large multispecialty group (this one is not Mayo.) The medical director was charged with being the contact person for dealing with serious complaints. A trial (defense) lawyer I knew personally told me he thought this man saved the instutution millions every year because he took patients complaints seriously, treated them in a respectful manner, and was willing to apologize and offer discounts or forgiveness on bills if he thought they had valid complaints. That is all completely contrary to what most lawyers and insurance companies recommend, which is to stonewall complaints and never apoligize or offer compensation in any form, since it could harm you in court.

However, my lawyer friend said that the medical director had never had an apology blow up in his face, as far as he knew, but had had many people go away satisfied that they had been taken seriously and treated fairly.

The other obvious problem is that in many settings there are no criteria with any credibility to say what constitutes appropriate care and what doesn't. In that setting, malpractice is in the eye of the beholder.

Obviously, there are some situations that would remain a problem. Injuries to babies and bad results in deliveries are almost impossible to defend because of jury sympathies with disabled children. My opinion is that that area of medicine needs to be turned over to a situation like the current system for vaccination related injuries. People should be covered for the lifetime costs of injuries and compensated appropriately outside the court system, and the system should be financed by a small charge added to every delivery.

Reforms like those suggested by Ezekial Emmanuel -- removal of malpractice and complaints from courts and placing them before boards of appeal -- would be nice too, but doctors need to realize that under that system the boards would have the right to abridge doctors' practice privileges and demand retraining and other steps if patterns of error were detected.

In the end, I think the best solutions close at hand would be application of standards created by a federal board of standards coupled with a more open attitude in dealing with failures and bad results. This would probably be resisted by many doctors who believe they are already doing just what they should and would be insulted by standards and checklists, and determined never to offer apologies. But I am sure this would improve the malpractice climate, improve quality and effectiveness, and reduce costs.

[Christopher George]

Maggie,

It is hard for me to believe that hard tort reform is not at the heart of any successful and viable health reform. There is a cost to saving a life with prostate prophylaxsis, mammography, or anything else. Without tort reform, twelve people so expendable to our society that they can't even evade jury duty set the standard of care. And they do this in the worst possible circumstance when a wretched outcome is blamed melodramatically and often erroneously on a doctor. Think John Edwards. Sorry works was a trial lawyer initiative, not a tort reform. Bad outcomes are very common in hospitals, here and around the world. Only a tiny percentage sue, and usually the suit is groundless (in my experience reviewing credentials for physicians for our hospitals). In any event, only a small change in patient behavior -- from 2% suing to 4% suing-- could really bankrupt a number of critical specialties. As long as retired postal workers are the final arbiter of the standard of care, no diagnositic possibility will be too remote to exclude with expensive radiation exposing testing. No country in the world allows the level of malpractice litigation, or the eye-popping fees the lawyers here collect.

On that evidence, litigation must be un-necessary to good medical care.

[jenga]

Your unhappy patient could go to another doc, he is also much more likely to sue if anything did happen while he's getting a second opinion. That physician did nothing wrong and he would be drug through the legal cesspool through zero fault of his own. That fear is real and there needs to be a system that eliminates if we want guidelines to be effective as possible.
It would be nice if Sorryworks and following guidelines were the reasons that VA docs were sued less, but that is simply not the case. Hard tort policy is much more likely to be the reason. I've worked in both and I can from a purely subjective standpoint, defensive medicine is much less rampant and almost nonexistent, which has to be a big portion of cost savings in the VA. These tort laws are the main reason why you are much less likely to be sued. One if you are active military you can't sue period. Because of that, most veterans when they are no longer active are under the impression you can't sue the government. If they do sue they are suing the USA, not the physician, which is probably difficult for someone that was in the military serving there country. Second it had better be a slamdunk of a case for a lawyer to take if they know they can only get 20% of the award, rather than a much larger percent in a civilian case. Third a Federal judge is much less likely to be swayed by emotion like a jury can. These are taxpayer dollars he or she is handing out, not a faceless corporation's money. Finally having the defendant as the United States of America is a big deal. They are much less likely to settle, than a insurance company looking at the bottom line. Frivolous lawsuits do not exist if you run that gaunlet. Your insurance company is the federal government. They are not going to raise malpractice premiums. There are none.

I agree with your response to legacy, but we should strive to eliminate all waste, profit based and defensive based testing. Waste is waste.

[Maggie Mahar]

Jenga--
I don't know enough about hte VA tort system to know whether we would want to adopt those rules more broadly.
But I do believe that, as you say, if we had national guidelines, and a doctor knew that he would be protected if he followed them, doctors would tell the patient "No."
If the patient is unhappy, he can try to find another doctor.
I also think that in cases where the doctor is working in a hospital, the hospital, not the doctor, should be the one sued--this gives doctors more protection.
Finally "Sorry Works" is absolutely true. As I said I've written about this before and read about it again while doing a little research on trots and the VA.
If hospitals and doctors are completely open what happened, they have found that patients don't sue. Patiens get very angry when they are stone-walled. That's when they are most likely to sue.

Legacy Flyer--- everything you say make sense We
definitely do too much diagnostic imaging-- and we haven't seen any comcomitant improvement in outcomes.
But I would add that fear of malpractice is not the only factor driving this. I have talked to ER docs who explain that the hospital wants them ordering more tests--in order to make more money.
Hospital management frowns upon doctors who spend a lot of time wiht patients taking a history, etc. rather than ordering tests. Not nearly as lucrative.
Medicare is aware of the problem with excess diagnostic imaging, and I
suspect that when it adjusts its fee schedule it is likely to lower fees. It may also raise co-pays for these tests. The
combination would have an effect.

[Legacy Flyer]

Jenga is correct, there is a huge amount of defensive medicine practiced and it costs a lot of money. The amount of defensive medicine practiced is increasing at a fairly rapid rate as well.

I am a radiologist (yes, I will admit that I am a member of that widely despised specialty) who works as a "Nighthawk" reading cases overnight.

Over the past 10 to 20 years there has been a geometric growth in the number of imaging studies performed at night in the ER. This geometric growth in imaging has NOT been accompanied by any geometric improvement in patient outcomes.

To take one particular example; CT for Pulmonary Embolism. I now read almost 100 CTs (at a cost of ?$400) to find a single positive case. How is that for cost effective medicine? You say that ER docs should follow guidelines and I agree, but what are the pluses and minuses of ordering a borderline indicated CT?

Pluses
1) Major protection against malpractice suit (I have done a lot of Med-Mal expert witness work and seen many cases where the principal allegation was: "But doctor, why didn't you order xxx to rule out yyy")
2) The impression given to the patient that you take them seriously and are doing all you can to find out what is wrong with them
3) In a busy ER it takes less ER doc time order a test than to do a thorough history and physical.

I don't mean to dump on my ER colleagues. They have a tough job working on the front lines of medicine and need to protect themselves. They can be right 99 times about not ordering a Chest CT, but if they are wrong once no Insurance Exec or Medicare Official is going to be standing beside them - they will be thrown under the bus.

[jenga]

Defensive medicine is still a complete waste of money. Some estimates have it at a 100+ Billion a year. If accurate and you could severely curb it, you have the money right there to insure everyone. Our radiologic infrastructure is like no other and allows nearly instantaneous defensive medicine. If verdicts are rising as you say a physician in Canada or the UK might love to order a CT or MRI, but they don't have the means that we have here.

The different channels in the VA are a very big thing and are not to be easily brushed aside. I'm sure most US physicians would love to have those channels. First the defendant is the United States of America not Dr. Schmoe from Hoboken, second a FEDERAL judge decides cases not a jury, 3rd lawyers are limited to 20-25% of awards, and the statue of limitations have many more hoops to jump through than most states. Finally ask a VA doc what their malpractice premium is and they will look at you like you are from another planet. Again if you want us to practice VA medicine give us their tort system as well.

The Patient Satisfaction issue is a huge problem for these guidelines. You even touched on it with your executive example and the stent. A happy patient does not sue and it doesn't matter what guideline you follow if that physician told the executive no, he is not on his good side as you said, "he wasn't having it." But if that physician knew with confidence, he's giving sound guidelines and he's backed up with little chance of any blowback other than a patient with his feelings hure, he would be much more likely to tell the guy no.

[Dr. Rick Lippin]

Pat S

I just wanted to express my disdain for Big PhRMA's (former Congressman) Billy Tauzin and to a lesser extent my own former Congressman Jim Greenwood from Bucks County,Pa who bailed out of Congress to take the top job at BIO (trade assoc for Biotech industry) several years ago.

Under new proposed rules, if passed,neither Tauzin nor Greenwood would have been permitted to make these craven moves for $.

Dr. Rick Lippin
Southampton,Pa

[Maggie Mahar]

Pat S., Barry, Jenga

Pat S.- Yes, Billy
Tauzin is a piece of work.
And what you say about interfering in the doctor/patient relationship is spot on.

As for whether we can trust medical reserach--there is a large body of reserach showing what works and what donsn'twork fo patients who fit a particular profile that should be used as the basis for evidence-based medicine.

There are also many grey areas where we have little evidence or incomplete evidence, and need to use what we have while continuing the reserach.

As I've said before, evidence-based medicine must always be open to revision.

Jegna--
On malpractice, a couple of points.
First, I have a hard time believing that fear of malpractice and defensive medicine is the major factor driving the high cost of medicine in the U.S. because malpracticce awards and settlemments have been spiralling faster in some other countires (UK, Canada, and Austrialia, if memory serves) yet their
health care spending is
not climbing as rapidly.
Whey aren't their doctors
practicing defenseive medicien? Or does something else explain healthcare inflation here?

Secondly, on the VA-- you can sue the VA for malprctice; you just have to go through different channels and you probably want a lawyer experienced in suing the VA.
You also have to decide to sue within about a year of injury.
The fact that VA doctors do follow guidelines may make them less vulnerable to suits.
But here is what has really helped the VA reduce legal costs: at some VA hospitals, whenever a mistake is made, the doctors,nurses and hosptial are completely open about it. They explained what happened to the patient and family. No one is stone-walled. And they make financial settlemetns with patients--without going to court.
The program is called "Sorryworks"
Other hospitls (outside the VA) have also used it, with great success--cutting their legal expenses in half.
I've written about this on a post about malpractice. IF you just go directly to Google, and try my name and Malpractice, you'll find it. (For some reason, the rserach engine on the front page of HealthBeat doesn't always work.)
Barry-- See what I said above on malpratice.

On vouchers,
Rick Kahlenberg has written at length about this. The bottom line: there is very little evidence that vouchers improve students' performance. Unfortunately, I can't find the links right now.
You might check www.tcf.org and click on "education".

[Maggie Mahar]

Christopher and Pat S.

On the overuse of stenting--I agree. I'd add that it is not only cariologists but patients who have played a role here.
While I was writing Money-Driven Medicine the head of the cardiac & vascular institute at a major NYC hospital let me sit in for an afternoon while he consulted with patients. (He asked their permission in each case; I sat in the back of his office with a resident.)

The patients were mainly affluent business excutives who had quite definite ideas about what they wanted. One wanted his by-pass postponed until golf season was over; one wanted his surgery done in a hospital on Long Island "because it's so hard and expensive to park in the city" and a couple of them were adamant that they didn't want bypass--they wanted the stents. T
As one man explained, this is what his neighbor had and he ws out of hte hospital in a few days. The doctor tried to explain why he wasn't a suitable candidatesfor stenting.
But the patient wasn't having any of it. "So, this is what we'll do," he kept repeating, nodding and smiling pleasantly, as if speaking to a subordinate at his company.
The fact that recovery is faster and the procedure is less painful makes many patients feel that this is the "new hi-tech procedure" that they should have.
The media bears some responibity for hyping the procedure--but it really all goes back to the device-makers who were extremely agressive in "selling" stents.
On bypass, what I have read confrims what Dr. Pat is saying : it is particiuarly appropriate for left main disesase, but for many other patients medical therapy works just as well. On this, Dr. Nortin Hadler is quite persuasive--see his
book Worried Sick, with excellent documentation in the back.
This doesn't mean that there aren't patient who need bypass and instead are getting stents.
But overall, when you compare the U.S. to other countires you see that we do many more bypasses and do much more stenting--and our outcomes ae no better--they are worse.
This is a major area of overtreatment.
And finally, from waht I have read the danger of lasting brain damage following bypass should be taken into consideration.
We deinitely need guidelines. They should be open to constant revision--as we learn more--but we need to begin putting them in place, and they should provide doctors with some (though not complete) protection against suits.
(You or the hospital could follow the guidelines and still be clearly negligent in some other way.)

[Pat S]

Christopher George --

We agree on some things.

First, coronary artery dilation and stenting is being overused today.

Second, coronary artery bypass surgery is proven useful in some settings, especially left main disease, and in some special cases of three vessel disease.

Third, there is no doubt that the fact that cardiologists are the gate keepers for coronary artery surgery, and they tend to use it less and their own techniques more.

I don't know how your practice works, but in most areas of the country bypass surgery is not restricted to patients who have indications for surgery that are based on solid evidence. They seem to be based primarily on the same leather/shoemaker idea you cite for cardiologists.

There may be some areas of the country where bypass is underused, but I have no experience with that and don't know any data suggesting that.

The big news however is that many studies have shown that in a large number of patients coronary bypass and medical therapy (and bypass patients almost always end up on medical therapy after bypass) is no more effective than medical therapy alone, and has a slightly worse outcome. As a result, most countries -- Canada and Europe as well as the developed Asian countries -- reserve bypass for a small number of patients who have indications that have scientific proof of efficacy, the "A" criteria that JAMA talks about. As a result they do fewer bypass surgeries than we do, even now in the stent era.

I do not doubt that there are some cases where stenting is attempted when bypass should be used. I know that in the US (not your particular setting, but the US as a whole) both bypass and stenting are used much more than in other developed countries, and yet we have worse, not better, results in our management of coronary artery disease (not just more deaths in the populations, but worse results among those who enter the system and are treated.)

In the end, we are in agreement on one big thing. US doctors frequently do not follow the best proven standards for practice. I do not oppose the use of bypass; I do not oppose the use of stents. I oppose what I see as the wholesale overuse of both of these procedures, especially in some areas of the country.

In the end, I think that we and our patients would benefit from a more widespread and uniform adoption of practice standards in many areas of medicine, particularly the management of coronary artery disease. If we did, perhaps there would be more bypasses in some places, and fewer in others, but there would be more people getting care that conformed with best evidence standards everywhere and we would spend a lot less money.