Will Doctors “Help Drive Healthcare Reform Or Risk Becoming Road Kill”?

Over at Huffington Post, HealthBeat reader Jim Jaffe asks “Which Side Are Docs On?”

“The quest for evidence-based medicine, embedded in already-enacted economic stimulus legislation, gives reformers a tool to recruit doctors. New research would define optimal care, which often is different - and less expensive - than what doctors are doing today. How to turn these findings into practice is a key question.

“Doctors can reject it, attempt to stick to their old habits, resist efforts to impose it on them and rally their patients against rules imposed by faceless bean-counting bureaucrats. That worked when they successfully resisted and rejected managed care a decade ago.”

But, Jaffe points out, “Things have changed since then. The cost problem is seen as more acute. There's a growing realization that there's substantial overconsumption. And opposing protocols set by reputable scientists would be much tougher than pushing back on insurance companies that had meager public support.”

To read the whole post, got to : http://www.huffingtonpost.com/jim-jaffe/which-side-are-docs-on_b_218563.html

Comments

[Legacy Flyer]

Maggie,
You say: “While most patients like and trust their own doctor they are much more skeptical and cynical about doctors in general than they used to be. They are not skeptical and cynical about President Obama. So I don't think he has to (or would) do anything simply to capture the physician vote.”

At THIS POINT in his presidency you are correct. He can probably ram something through without the support of physicians. What happens over the long term is more difficult to predict. As the nation’s focus turns to other areas – energy policy, Iran, gay marriage, etc. – and Obama has to use up his political capital in other areas, having the support of physicians could be helpful to him.

You say: “Your language: ‘all he has to do is make a deal’ suggests that you would like to see someone in the White House who is willing to take bribes from the AMA. That's not how this president operates. And he is not going to support caps on awards because a) they don't work and b) it would be wrong.”

The Democratic party has already “made a deal” and taken its “bribes” from the lawyers. (Lawyers were #1 contributor during 2004 election cycle and #2 during 2008 - OpenSecrets.org) For a little balance, why don’t you publish how much money individual Democrats have taken from lawyers, like you did for Insurance Companies? (and this doesn’t even cover how many of them ARE plaintiff's attorneys) Of course Obama is not going to support caps even if they do work (and they probably do).

You say: “Guidelines could provide some safe harbor, but guidelines cannot cover all cases or all variables.”

This is exactly what Christopher George and I are suspicious of – “swiss cheese guidelines” that won’t hold up in Court. Physicians are very familiar with this having dealt with it from HMOs – pressure to get the patient out of the hospital as quickly as possible and restrict/deny treatment – yet complete lack of accountability from HMOs – “That was your medical decision – we’re not responsible for it in any way.”

[Maggie Mahar]

Philip--

I totaly agree. You might want to read one or two past posts that I have written about NICE.(

HealthBeat's search engine doesn't always work well. But if you GOOGLE my name, NICE, UK and go up to "Other" (top of screen) and scroll down to Blogs,
you'll find it.)

[Philip Micali of bWell-informed]

Physicians should want to follow evidenced based medicine, just as the airlines follow protocols that keep the number of aviation accidents to a minimum. The UK is a good example of the buy in between payor and provider about adhering to guidelines (National Institute for Clinical Excellence - NICE) that America should follow.

[Maggie Mahar]

Jenga, Pat S.

jenga-- you weren't elected president. (Luckily for the rest of us.)

Obama was.

While most patients like and trust their own doctor they are much more skeptical and cynical about doctors in general than they used to be.

They are not skeptical and cynical about President Obama.

So I don't think he has to (or would) do anything simply to capture the physician vote.

Your language: "all he has to do is make a deal" suggests that you would like to see someone in the White House who is willing to take bribes from the AMA. That's not how this president operates.

And he is not going to support caps on awards because a) they don't work and b) it would be wrong.
As he said in his AMA speech, innocent "patients would be hurt."

Guidelines could provide some safe harbor, but guideines cannot cover all cases or all variables.

Pat S.- Yes, I do think that the part of the physician community that opposes refroms and focuses primarily on its own financial interests does have a PR problem.

A great people were turned off by the AMA's stance on the public-sector option.

And the booing was unacceptable. (You just don't boo The President of the United States unless it is doing something that would be grounds for impeachment. Lying to you about a war, for example.
(And even then, booing seems adolescent. A march, with placards spelling out the issue would be much more acceptable.)

If a president tells an interest group that is not going to give them what they want does not justify booing.

I hear more and more people complaining about even their own doctors' obvious greed. "Everytime I walk into his office, I can hear the cash register . . ."

And people want to trust their doctor. But some physicians are making it very hard-- and in the process, they are hurting the entire profession.

[Pat S]

Obama is already on record as favoring the idea of safe harbor for guidelines.

It is his opponents who have opposed any talk of guidelines.

The link:

http://www.nytimes.com/2009/06/15/health/policy/15health.html

Also, doctors need to be careful about their own PR position. If doctors are too aggressive at opposing reforms, it will be all too easy to portray them as motivated by greed rather than by real health care concerns. We are already walking a tightrope on that issue as it stands.

[jenga]

Simple truth Obama's not a doctor either, but he's pretty good at telling us about our job. All I'm saying is he has a potentially huge PR problem coming that he could head off. In one swoop he would have 95% of physicians happily embracing comparative effectiveness if he encouraged safeharbor for guidelines. Encouraging caps might win him the entire community whatever is passed. We are where the rubber meets the road. He's not entitled to free PR in my office. Again all he has to do is make a deal, if he wants this to last long after he's out of office or get it passed and working properly in the first place. My way or the highway is a good way to get your policies reversed in short order.

[Maggie Mahar]

Esteban, Barry, Isher, Pat S. ,Jenga, Christopher

Esteban--

Paul Starr's book inspired me to write my book. His book i brilliant-I just picked up where he left off in 1982.
And yes, everyone interested in the debate on reform should re-read the final two chapters of Starr's book today.

Barry-- AS I have said in the past (and much, much more importantly, as the president has said) we do
need malpratice reform.

The way we deal with malpractice today is needlessly painful and expensive for everyone involved.

That said, we know (from experience) that caps on awards don't work.

So we need to experiment with other solutions-and see which ones work. I believe that this administration will do just that.

In the meantime, you are abosutely right, the cost of "defensive medicine",
like insurers' administrative costs, are not the major cause of healthcare inflation.

Moreover, I would point out that "defensive medicine" (motivated by fear of malpractice) is not all waste.

Sometimes that fear causes doctors to be a little more careful about patient safety--and nudges them to do the right thing even when tired and rushed.

Some years ago, I fell and broke my arm. I was sub-letting an apt. in Manhattan for the summer, didn't have a doctor here, and so wound up in an ER.

The doctor who put a cast on my arm was pretty young.

A week or two later, the arm really hurt--the cast seemed too tight. It was just digging into my arm.

So I want back to the hospital where the cast had been put on, and asked to see a doctor. After a few hours, a physician finally saw me.

I explained that the cast seemed way too tight--and was hurting my arm.

He shot me a "are you a doctor?" look.

As you know, I'm outspoken, so I said, "Look, I would hate to wind up in a lawsuit. . . but I'm pretty sure that there is a problem. And if you ignore me . . " ( said this in a pretty calm way. I have no interest in ever suing anyone. I agree with Justice Brandeis: "there are two things to fear in life-- death and litigation."

So he opened up the cast.
My arm was clearly infected. The cast had broken the surface of the skin.

The doctor was very nice, very apologetic, treated the arm, gave me antibiotics, re-did the cast--and I was fine.

It really wasn't his fault. He didn't put on the original cast. It's probably pretty rare for a cast to cause a problem like this. And broken arms do ache; he has reason to think that I was whining.

(Moreover the person who put on the cast probably wasn't negligent--just inexperienced. Residents have to learn on someone.)

But that threat of malpracticed did cause this doctor to take me seriously and do the right thing.

So if fear of malpractice adds 5% to health care spending, my guess is that half of that extra spending might be warranted. (I admit, this is a wild guess. But I'm quite certain that the general idea is true.)

Isher--
Thanks very much. His
"blantant untruths" were bothering me too. So, even though I really didn't have the time, I replied on Politico yesterday and decided to cross-post it on HealthBeat.

Pat S.
You write:

"I would also say that that the estimate [of the cost of defensive medicne is an estimate[ with only minimal actual evidence behind it, since no one has access to any real data on the question, only to hypotheticals.

I am not arguing that malpractice reforms are not a good idea. I am arguing that they are not anywhere near central to the issue of health care reform, and that we should be paying less attention to that and more attention to the much more important issues at stake."

Thanks-- I agree completely.

Jenga--
You write "You have to have malpractice reform . . "
If, by "malpractice reform" you mean caps on awards--that's not going to happen.
Let me put it this way: Barack Obama was elected president.
You weren't.I'm sorry to be so blunt--but this is the simple truth.

Christopher--

This post was not about malpractice suits.

It is, quite frankly, tedious when one or two people take over a thread going on and on about their personal grieveance/obsessions.

In a recent comment on this thread you wrote:
"My position is that the central issue is cost containment, and utilization containment. Most of you see universal coverage as the central issue. "

This tells me that you don't bother to read other readers' comments--though you expect them to read yours.

Very few people who comment on this blog believe that universal coverage is the central issue. The vast majority realize that we can't have univereal coverage without cost control.

[Christopher George]

Flying Circus: Note that the highest healthcare inflation is Miami, the locus of the most ferocious malpractice bar.

[Christopher George]

It takes no thought to order another CT scan or follow up visit.
( Especially, if everyone around you is doing the same thing... as in a high cost city or practice.)

Maggie, I think you have it exactly backwards. It can't possibly be true that defensive medicine provides good value for the healthcare dollar. (That bit of twisted logic is right out the trial lawyer playbook.) Think of it like screening. An un- indicated test is like doing an MR of the breast on an average risk patient. Not a good idea. Every defensive study we do or defensive procedure we perform is one actually indicated study we can't do with the same healthcare dollar.

That's without considering the risk and delay the procedure might entail. Then all the incidental findings from the test have to be followed up... at additional expense, for little benefit.

What takes thinking is deciding what actually IS indicated, rather than use a shotgun approach to build your defense, should you end up in court.

BTW: If the low spending tranche and the high spending tranche are on similar trajectories, but at different rates, OF COURSE the upper trance has to be growing at a faster rate. (vida infra) if you don't believe me...Ask any high school mathematics teacher.

[Christopher George]

My position is that the central issue is cost containment, and utilization containment. Most of you see universal coverage as the central issue. It appears that all the lawyers and at least some of the doctors believe that malpractice reform is trivial.

Anyone with even the slightest concern for patients can see that nearly all the money in malpractice premiums goes to lawyers. In our state, that is about 70%.

Malpractice reform, like O-rings of a space shuttle, is an unimportant part of reform.

Without it, the standard of care is a legal entity not a medical one. Without a medical standard of care, cost containment is impossible.

[Maggie Mahar]

Legacy & Christopher
(I'll be back to respond to other comments)

Legacy-- You ask what do I say to Bloomberg's estimate that defensive medicine (due to fear of malpractice) may equal 5% to 10% of healthcare spending?

First--there is no way to separate fear of lawsuits from the many other motives that lead to a doctor to order a test or a procedure --that's why the estimate is so rough (5% to 10% --they can't fine-tune it.)

And secondly --fear of malpractice doesn't just lead to overtreatment. That fear also leads doctors to take the time to do the right thing.

In other words, not all of that 5% to 10% is waste.

Fear of being sued for malpractice
also causes a tried doctor (or resident) to stop, and listen--rather than just brush off a complaint from a querulous patient.

Christopher--
No, Dartmouth is not "stuck" on the idea of geographic variation.

As usual, they are way ahead of you. (These are very smart guys who have been doing this reserach for more than 20 years. There is not much that you or I might think of that they haven't already considered.)

They understand that Growth in spending is the problem.

But it turns out that healthcare spending is GROWING AT A MUCH FASTER RATE IN THE HIGH-SPENDING AREAS.

From a Feb 2009 Issue Brief from Dartmouth: "Spending growth
varies dramatically
Between 1992 and 2006 Medicare
spending, adjusted for general price
inflation, rose 3.5% annually. But
there was considerable variation
among regions (Map 1). Per capita
inflation-adjusted spending in Miami
grew at 5.0% annually, compared
to just 2.3% in Salem, Oregon, and
2.4% in San Francisco."

You'll find detailed tables showing that health care spending is growing much faster in the most expensive regions here http://www.rwjf.org/files/research/policyimplications022009.pdf

[jenga]

If you want something you have to give up something. Reformers want good press if something is passed where the rubber meets the road (the exam room). They want doctors on the same side as comparative effectiveness and partnering with the government in the PR rollout. You have to have malpractice reform, otherwise physicians will simply not carry your water for you. PR is not their job. They will order the same tests and do the same procedures and when patients are told no, they know where to place the crosshairs. Doctors will tell patients the "government" won't pay for X, because they think you are not worth saving. Health reformers can't handle that PR. It's as simple give to get, make a deal.

[Gregory D. Pawelski]

Pat S.

I couldn't agree more. It's not that malpractice reforms are not a good idea, but malpractice reforms are not anywhere near central to the issue of health care reform. We need to be paying less attention to the "malpractice" and more attention to the "health care" reform. Malpractice reform is a true red herring in the health care reform debate. I've notice a number of conservative media outlets and people trying to bring malpractice reform into the debate, as a central issue.

[Pat S]

I would say "watch the donut, not the hole."

I would say that malpractice reform would help keep costs down. I would also say that that number puts it in the same range as the added costs of administration due to private insurance or the potential savings from government negotiation for drug costs, and far far below the costs of overutilization as a whole. I would also say that that is an estimate with only minimal actual evidence behind it, since no one has access to any real data on the question, only to hypotheticals.

I am not arguing that malpractice reforms are not a good idea. I am arguing that they are not anywhere near central to the issue of health care reform, and that we should be paying less attention to that and more attention to the much more important issues at stake.

[Legacy Flyer]

Pat S,

What do you say to Bloomberg who estimates that the INDIRECT cost of malpractice is 5 to 10% (100 to 200 Billion).

Are they smoking weed?

[Pat S]

Do we need to control growing costs in health care? Yes. I wrote a guest essay about that a while back. We need to drive down the cost of health care to protect health care in the US. If we don't it will go away, since if something is impossible it will cease.

Does the Dartmouth data and the issue of regional and institutional cost and use variation have a role in this discussion? Yes. The importance of the issue of regional and institutional variation is that it suggests where we can begin looking for answers to the problem of cost and overuse.

Are adoption of rational practice standards the best hope for controlling costs? Yes again, and I have discussed that hundreds of times here.

Could national practice standards help malpractice? Yes again, especially if backed by legal regulations preventing suit if the standards are actually followed -- in reality, not just lip service.

Does variation in malpractice costs or in the rate of malpractice suits, or in the presence of malpractice reforms, account for any of the variation in over-utilization? No, since variation in overuse does not correlate at all with variation in malpractice climate.

Doesn't this suggest that malpractice is not a key factor in overuse? Clearly yes. If it were, overuse and negative malpractice climates should and would go hand in hand.

Have we strayed far from the topic at hand, which is what the role of doctors in health care reform should and will be? Oh yes. Since malpractice is not central to the issues of costs, appropriate practice, performance of US health care, or any other important issue, discussion of malpractice is a sideshow.

Should we have malpractice reform? Yes. But we do need to make the reform a true reform, one that benefits patients as well as doctors and hospitals, and especially one that protects the rights of patients with legitimate complaints to seek redress. The recent NEJM article discusses how that might work, as well as issues related to possible solutions.

[Christopher George]

Let me take a new tact here.

The Dartmouth Study speaks to the variance in practice cost and intensity between different practices and locations. It is clear that the high variance is not justified by result. We all agree about this.

The expenses for the high spending AND the low spending doctors are both rising expodenially. This is the trend driven by tort fear... ( amoung other things like advancing technology and new therapies...)

Statistically, I am concerned about the mean spending ... the first momment.. the Dartmouth data and yourself seem stuck on the variance,.. the second momment. This is important, but much less important than the rapidly rising mean spending.

Put another way, we are still going to the poor house nationally if we eliminated the high variance, but were still left with exponentially growing costs.

Wasn't it Sir Issac Newton who postulated that the great failing of the human mind was the inability to grasp the exponenial function?

[Legacy Flyer]

Pat and Christopher,

I am in a particularly good position to comment on the use of CT angiography for PE.

I work as a "Nighthawk" covering 7 hospitals at night. Most nights that I work, I read about 50 CTs of the Chest - that's right 50. I find a positive about once every other night for a hit rate of about 1 in 100.

In my opinion CT angiography is grossly overused. Lots of radiation, lots of contrast, lots of money, very few positives. On the other hand, I can't blame my colleagues in the ER for covering their asses - they need to. An ER doc can be right 100 times in a row about a patient NOT needing a CT angio, but the one time he is wrong and something serious happens he can kiss his a** goodbye (from the malpractice standpoint). And when he is on trial Maggie and the PhDs from Harvard who talk about over-utilization will NOT be sitting next to him.

I think we need to develop protocols/criteria to aid in ordering decisions and even more crucially, we need to PROTECT docs who follow these guidelines. But like Christopher George I have my doubts about the protective value of protocols when a serious injury or death occurs and the case goes before a jury.

[Pat S]

As I said elsewhere, I do not oppose the idea of malpractice reform, and think the ideas cited in the recent NEJM article are a good place to start the discussion.

However, I do not believe that fear of malpractice is a very significant factor in health care costs and over-utilization. Evidence looking at regions that have had malpractice reform (and the "recent" reforms in Texas date from George Bush's governorship) as well as evidence looking at variation in utilization statistics within the same cities and market areas strongly suggest that malpractice is not a big issue.

The example of CT angiography for pulmonary embolism diagnosis is a good example indeed. I believe that the main reason for the explosion in use is the perception -- from training programs and scientific articles -- that they are the standard of care, coupled with the easy and rapid availability of the procedure, the high acceptance by patients, and the perception that the scans are harmless. The general perception in the places where I have read thousands of the scans is "why not go ahead and order the test? It makes everybody happy."

[Legacy Flyer]

Maggie,

“Lets try to keep the facts straight”

It is not the DIRECT costs of Malpractice that our country needs to be concerned about. It is the INDIRECT cost of Malpractice that should concern us.

The DIRECT costs of Malpractice are estimated to be about 2%. The INDIRECT costs are estimated to be about 5% to 10%. (Ref: Malpractice Lawsuits Are ‘Red Herring’ in Obama Plan - Alex Nussbaum – Bloomberg - 6.16.09) 5% to 10% of Health Care spending translates to roughly 100 Billion to 200 Billion per year. Not exactly “chump change” in my book.

My malpractice premiums run about 10% of my income. Although not insignificant, they are not a major driver of costs. But, if I throw a smattering of “recommend follow up MRI”, “recommend follow up CT”, and “Suggest Breast Biopsy” into my reports, I can easily “create” more in health care spending each day than I earn – by a wide margin.

“A very, very small percentage of doctors are sued.” YOUR STATEMENT IS FALSE. It is akin to saying that the risk of divorce is small by only considering the yearly divorce rate, rather than the divorce rate over the course of the marriage. The yearly rate at which a doctor is likely to be sued is small - approximately 1 to 2%. However, most doctors practice for many years and over the course of their career, an estimated 50 to 60% of doctors get sued. This is not a “very, very small percentage” but a majority.

I have seen the effects of being sued on patterns of practice within my own group. After a lawsuit, a physician typically becomes more cautious, less willing to make a decision and more likely to suggest follow up, further studies, etc. In essence, physicians who have been sued are more likely to practice “defensive medicine” – duh! And guess who pays for it?

[Christopher George]

Maggie, I think we are destined to talk past each other regarding malpractice litigation.

Of course malpractice premiums are a drop in the bucket compared to the US Healthcare bill. They are also a drop in the bucket compared to the GDP of China. They are NOT, however, a drop in the bucket compared to physician income. If you are an OB, it might be half of your income. And this expense is completely out of your control. It is just as out of your control if fluctuations are due to the (mythical) insurance cycle or due to awards. As has been pointed out, doctors are unable to raise prices.

Honestly, has there ever been an organization which has advanced the"insurance cycle " theory that was not a shill for trial lawyers? Has anyone argued, by analogy, that car insurance is unrelated to payouts for accidents?

If I understand your argument correctly, those of us that advocate that a sustainable healthcare system with overhaul not only of the delivery, but also of malpractice litigation are venal, and those that argue expanding our already unaffordable federal healthcare system before rationalizing utilization are pursuing social justice, not national bankruptcy.

Do I have to remind you that insurance companies have no real interest in reining in expenses? They take their cut off the top. The bigger the gross, the larger their cut. They want to stay in business; but they don't really want to reduce costs. How would Welpoint know the extent to which malpractice drives medical utilization? I don't think anyone knows, so how would they know?

I can tell you what I do know. CT scans ordered by the ER to exclude pulmonary embolis have increased by a factor of about 100 in the last ten years in our hospitals. My belief is that this is almost entirely the result of defensive medicine.

I think the reason that physicians mention this topic is nobody else mentions it. As I have said before, I think it is the most important step to reducing needless, dangerous over-utilization. I don't think malpractice reform is the whole answer.
Your position is that it has no role in over-utilization.

Let me give you an example, which I hope will illustrate why you can't have one guideline standard written by the enlighted New Men and New Women and another legal standard written by retired postal workers with encouragement from persuasive plaintiff's attorneys with a huge financial stake in the outcome.

Suppose an OB delivers a baby with CP. But she doesn't overuse ultrasound, doesn't use fetal monitoring, or perform a section ... all overused, ineffective and discredited interventions. She follows the guidelines. But after parading the hopelessly crippled baby the jury awards the mother, $10 million. The doctor is now bankrupt.

Logically, the plaintiff's cause of action should be against the guideline, not the doctor following it. If that were the case, it would be a lot easier for the guidelines to be embraced by clinicians.

Let the government pay for the mishaps which arise from fidelity to that guideline.

We need the same medical standard to apply prospectively and retrospectively if we really want to curb dangerous over utilization. What would the harm in that be?

[Isher]

Maggie - Thank you for responding to Rory on Politico. His blatant untruths were bothering me all afternoon.

[Dr. Rick Lippin]

Put doctors on salaries with much more incentives for primary care,chronic disease manangement and palliative medicine care.

Strip away the huge obscene incomes derived by high tech specialists who benefit from doing more (often unnecessary) procedures,surgeries and other therapeutic excesses and/or harmful misadventures.

Dr. Rick Lippin
Southampton,Pa

[Esteban]

There is a very interesting reading at this time. ¨The social transformation of the american medicine¨by Paul Starr. Reading the last two chapters is like describing the discussions taking place right now. 36 years later and this country is just again discussing the same facts: Excessive costs, way to many surgeries and hospital visits, M.D blocking reform.etc.

[Barry Carol]

“More from Bloomberg: "a March 2003 study by the U.S. Department of Health and Human Services that estimated the direct cost of medical malpractice was 2 percent of the nation’s health-care spending and said defensive medical practices accounted for 5 percent to 9 percent of the overall expense.”

Maggie,

I think 5%-9% constitutes a significant factor in driving healthcare costs that’s worth addressing. While it’s not as significant as new medical technology, it at least equals and probably exceeds the private insurers’ entire administrative expense which I think you pegged at 5% of healthcare costs.

The concept of insulating doctors from lawsuits if they follow evidence based protocols makes sense on at least a couple of levels. First, it’s the right thing to do and is consistent with common sense. Second, if we can largely address the malpractice issue to doctors’ satisfaction through this approach and moving the cases to specialized health courts and away from juries, it will be easier for doctors to accept giving up some of their independence and autonomy and accept payers’ insistence that well established evidence based protocols be followed with reasonable exceptions allowed coupled with appropriate documentation.

It has been noted numerous times in the past that doctors’ decisions to admit patients to the hospital, prescribe drugs, order tests, refer to specialists and perform procedures themselves drive the vast majority of healthcare spending. If we are ever going to safely reduce healthcare utilization, we need their cooperation. Common sense malpractice reform should be a no brainer in this context and Democrats from the President on down should be prepared to take on their friends in the trial bar if necessary to make it happen.