Watchdog Blog

Defensive Medicine: Rhetoric Meets Reality

by Kiren Gopal

In his July 24th piece in the Washington Post, columnist Charles Krauthammer rails against “jackpot justice” and defensive medicine, which he calls “the greatest waste” in our health care system.  He contends that “doctors order [tests] for no good reason other than to protect themselves from lawsuits.”  But his self-righteous claims are more than suspect, considering that overwhelming evidence shows that so-called “defensive medicine” is not a meaningful cause of rising health care costs.  The Congressional Budget Office (CBO), which Krauthammer himself cites in his column to argue that not enough is being done to reduce Medicare spending, has concluded that the link between liability and defensive medicine is “weak or inconclusive” and “at best ambiguous.”  

A reader’s letter responding to Krauthammer’s exaggerated rhetoric presents an additional factor that contributes to health care costs, which he calls “offensive medicine.”  That is, doctors perform more tests and recommend more procedures, primarily because under the reigning fee-for-service model they benefit financially from each test and procedure ordered rather than on patient outcomes.  This and other incentives that the present system engenders have been estimated to cost $700 billion a year – a number that former CBO director Peter Orszag, has discussed often.   

Amendment Goes Down the Hatch

by Kiren Gopal

In a resounding defeat of Senator Hatch’s medical liability amendment, the Senate H.E.L.P. Committee voted 13-10 yesterday against imposing an arbitrary cap on damages.  This is an important signal to the Finance Committee that restrictive limits on medical liability will not address our rising health care costs or incentivize a reduction in avoidable medical errors.  The amendment would have also imposed contingency fee limits, restrictive statutes of limitations, and raised the burden of proof.  Measures like these do nothing to combat the very real problem of medical malpractice.  “Between three and seven Americans die from medical errors for every one who receives a payment for any malpractice claim,” according to Public Citizen’s latest study.  Given these staggering statistics, limiting negligent provider accountability is not a sensible solution.   

Ignoring Patient Safety = $1 Trillion Waste

Former Bush administration Treasury Secretary Paul O’Neill identified a simple but crucial element that should be front and center in the health care reform debate and legislation: improving patient safety, which would, in turn, reduce health care costs.

O’Neill rhetorically asked in this New York Times op-ed piece:

• Which of the reform proposals will eliminate the millions of infections acquired at hospitals every year?

• Which of the proposals will eliminate the annual toll of 300 million medication errors? 

• Which of the proposals will eliminate pneumonia caused by ventilators?

• Which of the proposals will eliminate falls that injure hospital patients?

• Which of the proposals will capture even a fraction of the roughly $1 trillion of annual “waste” that is associated with the kinds of process failures that these questions imply?

“So far,” O’Neill wrote, “The answer to each question is ‘none.’”

O’Neill calls it waste – that is, the unnecessary harms done to patients on a daily basis and, he estimates, a trillion dollars in annual costs to address those harms. He said that hospitals themselves can adopt simple processes, such as hand-washing and proper preparation of surgical sites, to cut down on costly injuries and deaths. He also suggested that members of Congress seek more information on the dire problem of hospital-acquired infections, provider errors and other similar “waste indictors.”  To sum up, he said: “(A)ny health care reform that does not address the pervasive waste and the associated burden of needless suffering for patients and staff alike will give us little to celebrate.”

Congress should heed O’Neill’s call. 

Misplaced Malpractice Reform

by Kiren Gopal

According to President Obama, health care reform should control costs, expand coverage, improve care, and guarantee choice.  As Congress works to find politically palatable solutions to achieve those goals and health care interests continue to lobby – to the tune of $1.4 million daily – some legislators instead choose to offer proposals to limit medical liability.

These proposals are based in part on the theory that frivolous malpractice claims are epidemic and represent a significant component of health care costs.  But according to the latest Public Citizen study of the National Practitioner Data Bank, nearly two-thirds of the individuals who were compensated in 2008 suffered an injury that resulted in “significant permanent injury, major permanent injury, quadriplegia, brain damage or the need for lifelong care, or death.” These claims can hardly be described as frivolous. Perhaps the most telling point from the NPDB study is that the medical malpractice liability system accounts for just 0.6 percent of national health care costs. Reducing accountability for medical malpractice is clearly an unsuitable focal point for reducing unnecessary costs. 

Sorry Works: Change We Can Believe In?

by Kiren Gopal

At a recent speech before the American Medical Association, President Obama expressed a concern for medical malpractice lawsuits and said that “we need to explore a range of ideas” to tackle the issue. However, the president hasn’t offered much in the way of clarification of his position on medical liability reform.  The only indication was a reported comment of a White House spokeswoman who “pointed to his support as a senator for a mediation program known as ‘Sorry Works.’”

In 2006, then-Senators Obama and Clinton introduced MEDiC (National Medical Error Disclosure and Compensation).  They wrote in the New England Journal of Medicine that the program would provide grant money to health care providers to “implement programs for disclosure and compensation.”  In practice, this means that health care providers would disclose medical errors to the patient, offer an apology, and then try to negotiate compensation.  Additionally, the data yielded from the program would be analyzed to determine best practices.  The potential benefits of such a program are manifold: improved quality of care, more effective doctor-patient communication, and lower administrative and legal costs.

Maryland Doctors Cry "Wolf" Again!

Once again Maryland doctors are raising the specter that patients will be denied access to medical care because doctors will be leaving Maryland as the cost of medical liability insurance increases.  The last time they used this scare tactic they convinced the Assembly to subsidize their premiums.  Now as those subsidies are set to expire they’re back with the same tired threats. Citing an emerging doctor shortage, doctors are urging Assembly members to enact “tort reforms” designed to slam the court house door on injured patients.

First, claims of an emerging doctor shortage are not borne out by the facts.  A recent report to The Governor’s Task Force on Health Care Access and Reimbursement indicated that data collected from the American Medical Association and the American Osteopathic Association and adjusted on a consistent basis shows that Maryland has the 4th highest patient care physician to population ratio in the U.S.

A Self-Inflicted "Crisis"

When NY’s Superintendent of Insurance announced a 14 percent across-the-board rate hike for medical liability insurance on July 1, 2007, doctors raised a hue and cry that the increase threatened a crisis in access to care because doctors could no longer afford to practice in New York and would be leaving the state or otherwise restricting their medical practices.  As in the past, doctors again blamed the premium increases on skyrocketing claims and lottery awards and demanded tort reforms that would cripple meritorious malpractice claims by the victims of medical negligence.

Today Public Citizen released a report that exposes these claims of the doctors as full blown, deliberate and obvious exaggeration: A Self-Inflicted “Crisis:” New York’s Medical Malpractice Troubles Caused by Flawed State Rate Setting and Raid on Rainy Day Fund. These same claims have been made by doctors during each of the three cycles of rising premiums that have occurred over the past thirty-plus years. Our report shows that rising malpractice premiums are not the result of any escalation in the frequency or severity in malpractice payments. The increase has nothing to do with patients, lawyers, judges, or our courts. It reflects an insurance problem.

Public Citizen’s analysis of the best available New York data demonstrates that the number of malpractice payments made on behalf of doctors in 2006 was at its lowest point since 1991. The total amount of malpractice payments for doctors, adjusted for inflation, was near or below fifteen year average in three of the past five years.

The amount of malpractice litigation in New York has not changed appreciably over the past eleven years. Thus, it is clear that the 14 percent increase in premiums did not reflect a sudden or dramatic change in either malpractice payments or litigation behavior.

License to Malpractice

Some of you might have heard about the doctor in New York, Dr. Harvey Finkelstein, who risked exposing over 600 people to HIV, hepatitis and other deadly diseases by reusing syringes. Among the many horrendous practices brought to light with this case, there are two that particularly highlight issues with the state’s health officials and medical board.

State health officials delayed the public release of the information to patients, which inexcusably delayed testing and possible treatment for those exposed. Then the state’s medical board incredibly found “no evidence of wrongdoing.”

Unfortunately, this is by no means a singular example of the worst medical malpractice offenders being ignored by the New York State Medical Board. Of the 127 doctors in New York who have made 10 or more malpractice payments since 1990, less than one-third have had reportable licensure actions taken against them.

It is clear that we need to fix the system that allows monstrous unaccountability like Finkelstein. As our Director, Laura MacCleery, put it, “The ‘I’ll scratch your back’ culture in medicine, in which doctors have claimed they are competent to police themselves, must end before more people are killed by criminal negligence.”

Stay tuned for Public Citizen’s upcoming in-depth analysis of the state of medical malpractice and insurance in New York.