You Don't Have to Believe in a "Lawsuit Crisis"

to argue that decreasing the fear of being sued can bring down the cost of medicine. Like the President implied, it's not the cost of jury awards, it's the redundant and unnecessary testing and treating generated by FEAR of lawsuits that's costing us.

as with most professional associations, corporations, and other powerful entities in the united states, i am sure the ama would accommodate such a bribe...

If it really is a non-issue, then there is no reason to worry about the using malpractice reform as a bargaining chip. A change in policy that has a public option, that does routine review of practices to discover actual malpractice (most malpractice events do not result in lawsuits) and makes the government an arbiter of frivolousness would not be a bad deal. Especially if malpractice instances were published on the web, and licenses pulled from repeated instances of malpractice.

Lawsuit reform? Sigh.

Obama never seems to tire of having his outstretched hand bitten by the Republicans.

Progressives best not get their hopes up for meaningful insurance reform; it's not coming.

The main reason why we need malpractice lawsuits today is that under our current system, if someone is messed up by a medical procedure so that she can't work, there is no system other than a malpractice suit to get that person's subsequent medical bills paid or put food on her table. That's why under our existing system, a $250k cap on malpractice awards would be a disaster: the lawyer gets 1/3, and the remainder might have to pay the bills for someone who can't work into the indefinite future.

Under a single-payer system backed by decent compensation for disability, you'd still want to discipline a doctor who messed up, but it would be a lot less urgent to get money to support the injured patient.

As a person who is in the middle of a lawsuit now because a doctor's clear disregard for an fda regulation left me partly paralyzed in my left leg, I do not think this is a good idea. Doctor's make mistakes, and would make more if left without consequence. Doctor's boards are a joke.
As for extra testing, I don't think a little defensive medicine is all bad. If you think there is enough chance you might get sued over it, maybe you should prescribe the test. Plus the high costs of test exist in an environment where the overall costs are high. In a different environment tests might cost less. Now things like tests are high cost because of all of the overhead they support. I took an aspirin once in a hospital for $10. It wasn't that I couldn't use the aspirin, nor does aspirin really cost $10, so making a law calling for less aspirin usage doesn't really get at what's wrong.

No strong opinion on this particular initiative, but it should be emphasized that there is a world of difference between malpractice reform (which deserves to be taken seriously) and tort reform (which is uniformly odious). It is exactly the difference between a physician making a tough call with a very sick patient, and a toy factory buying untested paint from China, or a car factory shaving $10 off the cost of a car by putting the gas tank in the trunk.

I'm all for reducing the abuse of malpractice lawsuits, but sometimes you have to do it. Medical services for the uninsured cost three times what an insurance company would pay. The only way to get doctors and hospitals to give you a fair price is to threaten a malpractice suit and then settle out of court for a little more than what an insurance company would pay. But this sounds like a good trade-off. Require hospitals and doctors to charge everyone equal fees for services, and I'll stop threatening lawsuits.

zandru, the answer for a faux crisis based on misinformation from the insurance industry is not to "solve" the faux crisis, it is to use the truth to reduce the perceived need for defensive medicine.

that said, reading Obama's quote above I am not sure this is a much a sign that he will consider tort reform as it is an argument for his efficacy research proposal. When he talks about "evidence based," I get the sense he may be setting up a proposal where doctors who choose a treatment or practice endorsed by his standards body would have a safe-harbor against claims based on that treatment choice. (But presumably not for how the treatment as administered.)

Zandru, you could argue that, but it is contradicted by McAllen, Texas -- see recent New Yorker article on high costs there, in Texas, where lawsuits are sharply limited by state law.

The most sensible way to cut medical costs would be to look at the 20-some "modern" countries with lower costs and better outcomes, and DO WHAT THEY DO. Pick the country most like us, perhaps, and use them as a model. All this theorizing, as if we had no idea what might work, is bullshit. We've got "experimental data" already (all those other countries), and it says universal care, and not much role for the so-called free market, which has failed us badly in this instance.

As I recall, President Obama pretty much offered this (med-mal tort reform) to republicans as a bargaining point on day 1 of this debate, and then promptly asked the republicans what they were willing to offer in return. Chirp, chirp, chirp...

I will be in favor of additional malpractice "reform" as soon as the AMA takes the lead in weeding out bad doctors.

"For the AMA, opposition to a public plan doesn't really make any sense, and seems to be driven by a bizarre concern for the insurance companies."

Reimbursements to dr.s and facilities for office visits and procedures are reduced by insurance companies to an agreed-upon "allowable amount" and REDUCED FURTHER by Medicare. If a dr. accepts a Medicare patient, or a given insurance plan, they agree to these allowable amounts. (They do have their techniques for getting around these limits, the simplest and most prevalent is to shorten the office visit, i.e., 5 minute consultations).

The percentages vary widely, but Medicare pays in the range of 50%-95% of what a private insurance company would pay, and an insurance company pays about 25%-75% of what a "self-pay" (uninsured, cash-paying) patient pays.

The AMA probably opposes the public option because they don't want a pay cut. Medicare has serious bargaining power. A single-payer plan might be said to have a monopsony.

kth is right. It's hardly news that the medical malpractice system serves nobody, in that most cases of malpractice aren't pursued in courts and many cases of in the courts do not fit anybody's definition of malpractice. But, a reasonable alternative, such as a medical court system, could end up a mutually advantageous solution.

Personally, I'm tired of allowing obstructionist morons to set the terms of debate. Why do we have to prove that the health care system is broken (which it is), but they don't have to prove that there's a law suit crises.

For a good explanation of why health care is so expensive, I recommend the following from the New Yorker:
http://www.newyorker.com/reporting/2009/06/01/090601fa_fact_gawande

While there may not be a crisis in actual malpractice lawsuits, I think there definitely is a crisis on the cost of malpractice insurance for doctors.

That seems like the carrot to offer the AMA: reform malpractice insurance, rather than malpractice awards. How about a public option for malpractice insurance for doctors? There would definitely be cost savings if we did that...

there is a world of difference between malpractice reform (which deserves to be taken seriously) and tort reform (which is uniformly odious).

I completely disagree. Med Mal suits are just a subset of tort claims; Med Mal reform is just the camel's nose under the tort reform tent.

You argue

It is exactly the difference between a physician making a tough call with a very sick patient, and a toy factory buying untested paint from China, or a car factory shaving $10 off the cost of a car by putting the gas tank in the trunk.

But that is a form of reductio ad absurdum. It is easily disproven by the ability to show the opposite extreme -- a car factory adding heavier steel safety beams in the door knowing there is a trade-off in handling is a close call, whereas a patient with a tumor in one leg having the other, healthy leg amputated accidentally is not close at all.

The law underlying Med Mal and other types of physically injurious torts (or even other professional malpractice) is essentially the same but for some specialized refinements over time based on repeated issues and arguments.

As Atul Gawande notes in his recent article in the New Yorker on why health care costs are so out of control, McAllen Texas, has the highest average cost of care in the nation, yet the State of Texas caps malpractice awards. A McAllen physician admites in the article that malpractice suits have "dropped to practically zero". The article examines and disposes of the false notion that somehow defensive medicine is a major driver of rising health care costs.

There can be some agreement on malpractice award limits when the AMA agrees to stricter oversight and harsher penalties (including license revocation) for actual incompetents.

The AMA can't have its cake and eat it too.

Obama's helicopter flew right over me earlier. Having learned from the experience of running into Joe Lieberman in an airport and being too taken aback to tell Joey everything I thought he should know, I seized the moment today and shouted "Single payer now!" My dog barked her assent. Yeah, we're badass.

There can be some agreement on malpractice award limits when the AMA agrees to stricter oversight and harsher penalties (including license revocation) for actual incompetents.

If I'm not mistaken, the majority, or at least a significant percentage, of malpractice suits are directed at the same group of bad actors. More intraprofession policing, please.

Hey, I have an idea. How about Americans gather in D.C. over a weekend sometime soon and march in demand of health care reform? Single payer, public option, whatever. Don't leave until congress has passed a bill and sent to the President's desk?

If cowardly Iranian terrorists can march in the face of death threats, can't we rugged individualistic Americans do the same?

Oh, that's right, I forgot. The Dancing with the Stars season premier is coming up soon.

As is usual among lefties, the people claiming that malpractice suits don't wildly inflate medical costs have no idea what you're talking about.

Defending and/or settling the two dozen suits against me, all frivolous, cost me hundreds of thousands in out-of-pocket costs, not counting the size of the premiums. Not only that, but my hospital administrator had to hire two new administrative assistants, a risk management specialist and another attorney in the OGC.

Bet you never think of that when you're waving the "We Hate People More Successful Than We Are" flag.

One element of the earlier health care reform proposals was research into medical "best practices." Of course the Republicans opposed that.

But if a physician can follow the guidelines developed by such research, or document the reasons for decisions to not follow it precisely, then that would seem to me to be a major defense from lawsuits.

Add to that a provision in the legal code that if someone sues a doctor who followed the guidelines or had strong, documented reasons for not following them precisely, then the suits would be either not be accepted by the courts or if the person suing the physician lost the lawsuit, then both that person and his attorney would be required to pay all costs of the trial and any increase in the physician's malpractice insurance premiums. Add a provision for an additional penalty for egregious cases. (We ALL pay for those frivolous lawsuits. The biggest problem is some lawyers are just out to get rich. Bring a lawsuit and get bought off.)

Think that would satisfy the AMA?

Ron Byers makes a valid point regarding policing of bad doctors. By most reasonable standards, there are doctors that continue to practice that should be out of business, and laws are in place in many states that prohibit consumers from gaining access to a doctor's record of complaints, lawsuits filed against, etc. When I see a reasonable effort to put bad doctors out of business (vice the reflexive "protect our own" mentality), then maybe we can have a serious discussion about malpractice lawsuit reform. As it stands, many doctors just want a free ride on medical malpractice lawsuits.

For those of you who advocate that the AMA do a better job policing its members, and disciplining the incompetent, I would politely remind you that the AMA is not a licensing or accrediting body. It is a lobbying group for its members. Certification is done through the various specialty boards, and physicians are licensed through their states.

Patrick, your reasoning about ordering tests "just in case" is nonsensical. How many tests does a provider order to rule out all the bad diagnoses that might be lurking out there? Further, I don't know about the board of medicine (by which I assume you mean the licensure or disciplinary board), but the one in my state is quite rigorous at investigating any and all complaints against physicians. Perhaps you should direct your ire against the state body responsible for monitoring physicians, and drop your belief that fear-based testing is helpful to anybody.

Democrats should not give an inch on "medical malpractice reform" for anything less than a full single-payer health plan.

"As is usual among lefties, the people claiming that malpractice suits don't wildly inflate medical costs have no idea what you're talking about."

Yeah, right... Give use numbers and hard data, Myke K. Until then, would you like some cheese with your whine?

Steve, I don't think the AMA is taking its position out of concern for insurance companies. In fact, they've been transparent about opposing a public plan because they don't want to see doctors' incomes reduced.

Patrick, your reasoning about ordering tests "just in case" is nonsensical. How many tests does a provider order to rule out all the bad diagnoses that might be lurking out there?

I really don't know how many. I do know that I just lost a sister-in-law to lung cancer who had been coughing for a year, and no chest x-ray given until two months before she died. The risk/benefit isn't always clear on the hundred cases for which testing returns negative results against the one time the results are positive.
Also, the second point I made that everything in medicine costs more than it should, including tests and malpractice insurance. Check out the cost of getting an hip operation in England for instance. It isn't the cost of testing, but the cost of the test in an over expensive system that drives up prices.
Maybe I am just a bitter guy who has had some bad experiences with doctors lately, but overpaying for bad care and having no recourse when it does real harm seems like a bad way to go.

"...waving the 'We Hate People More Successful Than We Are' flag."

Nice try, "Dr." -- Unless, of course, you measure "success" solely by the size of your bank account, which, by judging from your general tone, wouldn't be too big of a stretch...

I'll add to the chorus requesting better policing. You know the AMA wants tort reform in order to lower malpractice insurance premiums. If they were equally willing to lower the caps by putting their license on the table so if they lose, the license goes too, maybe that's worth considering. But that's not what they want.
Back when there were entities which were to ration which hospitals got new technology, like MRIs,those boards were wholly ineffectual. MRIs became ubiquitous. Now, doctors have their own entities to own equipment, buildings etc. Guess which tests are ordered. Have doctors be doctors, not lessors of medical equipment.

So, Myke K... any thoughts on the government providing malpractice insurance?

One of the things that's pretty common in single payer systems is that the government employs the doctors, and thus the government pays out in the event of malpractice... is that idea appealing to doctors?

It may be instructive to read this article by Atul Gawande (a physician) titled "The Cost Conundrum: What a Texas Town Can Teach Us about Health Care," which recently appeared in The New Yorker. This is where Obama's coming from:

http://www.newyorker.com/reporting/2009/06/01/090601fa_fact_gawande?yrail

I understand that Obama has read it and has had others on his staff read it too.

To reiterate what h just said. Read the article for a well researched study on why there is such a difference between medical costs in two very similar communities. Note that nothing changed after Gov. Goodhair got "tort reform" passed by the Texas legislature. Medical costs didn't go down a bit. Note that "defensive medicine" is the excuse used in McAllen, but in El Paso, under the same legal structure, "defensive medicine" isn't a problem.

The study found that the real reason for excessive testing is that the doctors get a cut out of the cost. It boosts their income to run a lot of unnecessary tests to the point that some of them are investing in some of the new gadgets to run the tests in their own office. I am sure that the AMA is aware of this and won't really be moved by any give on the tort issue. They are surely aware that it doesn't really matter to the vast majority of doctors.

And don't forget what happened in Florida when insurance lobbyists were actually sworn in when they gave testimony to the Florida Senate:

The Senate Judiciary Committee, frustrated by the conflicting information given it by different interest groups, discredited much of the medical malpractice rhetoric by placing witnesses under oath. Suddenly, there were no frivolous lawsuits and Florida was a profitable place for insurance companies to do business after all.

A bit about costs of testing. I recently got a battery of tests in a hospital in a major Mexican city. They used the same techniques, equipment, reagents, what have you, that are common in the US. The costs were (in US dollars):

1. chest x-ray: $11.19
2. prostate echogram: $22.39
3. EKG with computer interpretation: $16.42
4. blood cell count: $3.40
5. blood chemicals: $4.93
6. prostate antigen: $27.00
7. urinalysis: $2.84

They had to buy their materials from the same people who sell them in the US, so this gives you an idea of the basic cost of these tests. Everything over this in the US is added by the people doing the tests. And the hospital I went to is private, not subsidized.

"I'll add to the chorus requesting better policing. You know the AMA wants tort reform in order to lower malpractice insurance premiums. If they were equally willing to lower the caps by putting their license on the table so if they lose, the license goes too, maybe that's worth considering. But that's not what they want."

Hmm, tell me TJM, are you willing to put your livelihood on the table too if you ever make a mistake at your job? or more importantly, if someone claims you make a mistake?

Good points made by all which basically demonstrate that the medical malpractice "reform" carnival barking is nothing more than a red herring perpetrated by doctors and insurance companies that does nothing to reduce actual costs to the consumer (us). The fact of the matter is that some states (e.g.: Texas) have enacted some form of malpractice award caps that have not reduced any costs (except maybe for doctors and insurance companies). Still waiting for that hard data, Myke K (chirp, chirp, chirp)...

Especially if malpractice instances were published on the web, and licenses pulled from repeated instances of malpractice.

That's the key. The AMA has the solution to the "lawsuit crisis" in its own little sweaty hands -- stop protecting the bad doctors! The AMA is effing worse than the Chicago FOP and the Catholic church.

Hmm, tell me TJM, are you willing to put your livelihood on the table too if you ever make a mistake at your job? or more importantly, if someone claims you make a mistake?

I'm cool with that, because, you see, 1) I'm competent, 2) I'm insured, and 3) unlike MDs, I don't cover-up for the bad apples in my profession, which keeps my insurance fees low.

Obama's helicopter flew right over me earlier. Having learned from the experience of running into Joe Lieberman in an airport and being too taken aback to tell Joey everything I thought he should know, I seized the moment today and shouted "Single payer now!" My dog barked her assent. Yeah, we're badass.

Didn't get the news about the protest?

The answer is simple: every doctor has an absolute defense of "I followed the standard of care"

If doctors dont have to be responsible for their f--k ups, then what is the mechanism for removing bad doctors? Right now the answer is- when you f--k up, your insurance rises, and soon you are priced out of the profession.

Didn't get the news about the protest?

Which one? Gay Liberation Network, Pro-Life Action League or Americans for Truth About Homosexuality? Oh, you probably meant the other one.

There are a couple of goals that should be kept in mind: One is compensating people injured by medical -- doctor, nurse, hospital, pharmaceutical, device, or other provider -- mistakes without scaring providers into excessive defensive medical practice. The other is discouraging those mistakes. The two should be decoupled from each other. Compensate injured patients through a system resembling worker's compensation. Find ways to encourage medical providers to police themselves/each other without exposing them to lawsuit risk. Results: Compensation for the injured and reduction in malpractice.

For those who may be puzzled by shortstop's obscurantist snark, I was referring to the rally in favor of Single Payer organized by Health Care for All Illinois.

shortstop's obscurantist snark

(Shrug) I would have said you made the first volley in that department. You certainly have a flippancy-for-me-but-not-for-thee attitude these days.

HCAI is doing good work. If you've done other things with them, I daresay we've stood shoulder to shoulder at more than one event.