Michael Hiltzik of the Los Angeles Times has a helpful column cutting through some of the noise in the health-care debate on tort reform.
Hiltzik isn’t the first to point out that malpractice litigation and so-called defensive medicine aren’t a critical factor in driving health-care inflation. They cost a lot of money, some $50 billion a year, but you’ve got to put that in context: That’s just 2 to 3 percent of total health-care costs.
But what Hiltzik points out, and what proponents (and, oftentimes, journalists) don’t, is that only a fraction of that $50 billion is due to “frivolous lawsuits.” Think about it: There’s a lot of real malpractice out there and people deserve to be compensated if they’re hurt. They surely account for the largest portion of that $50 billion.
How to quantify it? Hiltzik points to a study in The New England Journal of Medicine that found frivolous claims are actually pretty rare:
An extensive study she helped conduct of malpractice case files showed that frivolous cases, as usually defined, are rare — and those that do get brought usually don’t yield a payment to the plaintiff.
I looked at the study and it found that the majority of cases were really injuries caused by medical error. Some 37 percent were real injuries not caused by medical error. Just 3 percent were cases with no injury.
More interesting, though, is that the study found that claims due to actual medical error accounted for 84 percent of total costs among 1,500 cases it examined. If that holds broadly, it would mean just $8 billion a year of that $50 billion total is spent on cases with no medical error (it’s unclear how much of the defensive medicine portion would be due to this minority of cases). And not all of those cases are frivolous.
And as Hiltzik points out, the researchers found that more legitimate claims get denied than illegitimate claims get money.
He also looks at the state of California for lessons on how effective tort reform might be. California capped “pain and suffering” damage awards at $250,000 thirty years ago and hasn’t adjusted it for inflation. But doctors’ insurance premiums continued to soar after the cap passed and insurers in the state last year paid out only 17 cents in claims for every dollar they take in in premiums.
So next question: How much of that $50 billion goes to the insurance industry’s bottom line?
One of the big problems in the malpractice area is that state medical boards have historically been chummy groups, and unwilling to discipline bad doctors and jerk the licenses of the truly dangerous ones. A few bad doctors account for a huge percentage of malpractice suits. As we've seen in the financial arena, a lack of reasonable rules and competent enforcement has left the public at risk and weakened the system.
#1 Posted by med, CJR on Fri 2 Oct 2009 at 05:36 PM
The article's suggestions seem a bit thin:
>>> "Clearer professional guidelines for diagnostic imaging would give doctors legal cover for skipping an MRI or CAT scan that isn't clinically indicated."
How would that work? Would the guidelines present a cluster of symptoms and say "If your patient displays these symptoms and no others, a MRI or CAT scan isn't clinically necessary"? That would end the argument over (a) whether the correct guideline was used, (b) whether it was applied correctly, (c) whether the guideline itself was correct, etc.?
>>> "Creating special courts or appointing judges to specialize in malpractice cases would help deserving victims get compensated without the grotesque overhead of full-scale trials."
This type of statement reminds me of another common assertion, that malpractice litigation will be "fixed" if we have "health courts". If you ask, "What's a health court", you usually get a blank stare. If you ask, "How will health courts work," you always get a blank stare. But 99 times out of 100, that person will nonetheless keep repeating "health courts are the answer".
So specialized judges will help... how? We have family courts, where judges who specialize in family law preside over cases, and yet many families still have the grotesque overhead of full-scale divorce and custody trials. Having specialized judges, of itself, doesn't change the manner in which litigation is conducted.
Further, in the present system, a typical malpractice lawyer is a specialist in the field and works closely with medical experts in evaluating and building a case, investing tens of thousands of dollars, sometimes even six figures or more, just to get a case to trial. Even then, as the author acknowledges (and the NEJM study confirms) it's often not possible to identify that a case is without merit until late in the litigation process. I can assure you that plaintiff's lawyers would appreciate a system whereby cases they were destined to lose were quickly identified and resolved with a minimal loss, but I'm not seeing how a specialist judge would in fact help that happen.
>>> "So would a "no-fault" system to compensate those with medical injuries regardless of their source, paired with an objective process for disciplining error-prone doctors or hospitals."
A "no fault" system would result in a vast increase in the cost of the malpractice system. I recognize the dream here is to cut lawyers out of the system, or to make it more like worker's compensation, but think about that: Right now lawyer screen out huge numbers of malpractice claims where:
* the patient confuses a bad outcome with malpractice,
* the patient is mostly angry with the doctor following mistreatment or rudeness,
* the patient believes that a condition wholly unrelated to the medical treatment was caused by that treatment, and
* where there's bona fide malpractice, but the damages that would be recovered following litigation are insufficient to justify the cost of litigation.
Under a "no fault" system, most of those cases would be filed by the patient, and some of that last set (e.g., missed diagnosis of appendicitis, resulting in peritonitis) would again be economically viable and would thus be brought.
And let's not forget that the vast majority of cases of actual malpractice are not filed. Create a culture where "it's nothing personal" against the doctor, and the patients who like and forgive their doctors or "just aren't litigious" may well be making claims. Moreover, if it's the fear of wrongfully being accused of malpractice that supposedly triggers "defensive medicine", why should we expect that phenomenon to do anything but increase when doctors can do everything right and still have their actions scrutinized in legal proceedings - with a probable payout to the patient.
#2 Posted by Aaron, CJR on Fri 2 Oct 2009 at 07:35 PM
WRONG
Great theory -- does not exist in reality.
Without tort reform -- Texas would have NO OB-GYNs. Who would deliver babies -- laid-off journalists?
As for "defensive medicine" -- you've never seen the TV show "ER?" When the attending resident rattles off a series of tests for every ILLEGAL alki who passes out in the ER?
Well, pal -- those tests are expensive -- like $10,000. Every time.
And, any "journalist" who thinks doing hard work doesn't involve "defensive" reviews by Legal is a f-o-o-l. Of course, Legal reads the story first.
And in medical care, with LEECHES such as 1-800-IWILLSUE on TV every 15 minutes -- anyone would cannot see the billion$ in defensive medical costs is living in an Ivory Tower.
My God, wake up. You've obviously got no link to reality.
#3 Posted by Russ, CJR on Sat 3 Oct 2009 at 07:56 PM
It's a falsehood when tort reform opponents claim that medical malpractice costs only 1-2% of health care costs. This false claim falls somewhere between being misinformation and a falsehood. The real costs are the billions of dollars in defensive medicine and the exposure of millions of patients to the risks and medical complications of unneccessary medical tests. Of course, these latter scans yield many irrelevant 'abnormalities' which keep the cycle turning. See www.MDWhistleblower.blogspot.com under Legal Quality category.
#4 Posted by Michael Kirsch, M.D, CJR on Sun 4 Oct 2009 at 08:53 AM
Boy, oh boy... Russ gets his misinformation from watching ER? And argues that Texas had no OB-GYNs before it's "tort reform" that has all-but-eliminated malpractice litigation in the state? Like his source, he offers up a fiction.
Dr. Kirsch, as you probably know, there are no reliable figures estimating the cost of so-called "defensive medicine". If you are truly arguing that doctors are harming their patients with unnecessary testing, procedures and medication (i.e., that they're committing malpractice) because they fear being sued for malpractice, let's just say you're presenting an absurd argument. But perhaps you're just posting inflammatory stuff here to pimp your blog.
#5 Posted by Aaron, CJR on Sun 4 Oct 2009 at 03:56 PM
Many of us have always believed that greed is one of the factors that make our healthcare system the most expensive in the world.. Government has a place in keeping businesses…lawyers, drug companies, doctors, insurance companies…from making excessive profits off of people who can least afford it.
Even Republicans are starting to get behind the concept that government intervention on behalf of consumers is not only necessary…it is also good.
If we can put arbitrary caps on jury awards, we can put those same caps on the profits that drug companies, hospitals, doctors and insurance companies make.
Tort reform in itself will only save our 2 trillion dollar a year healthcare system about 0.5%
In itself...not a significant amount. But if you take the concept further and start putting caps not only on lawyers, but doctors, hospitals , insurance companies and drug companies...now you are talking real savings.
Government limits to jury awards. Yes.
Government limits to doctors fees. Yes
Government limits to drug companies profits. Yes
Government limits to insurance companies profits. Yes
Now we are all talking the same language
#6 Posted by Norris Hall, CJR on Sat 10 Oct 2009 at 02:52 AM