Malpractice “regulatory reform” has been a hot button for the Right for decades. Apart from protecting all doctors from their own abuses as well as from some overreaching plaintiff’s attorneys, it’s meant to deprive the Dems of a major funding source – plaintiff’s attorneys. The successful ones, many are not, are financially powered by big wins against big entrenched industries – medical, pharma, etc. It’s also long-sought protection for big insurers, who pay for defense counsel and compensation.

The plaintiff’s bar, like doctors and politicians generally, are poor at regulating themselves. Those who advocate for better self-regulation are often quickly shunned or marginalized. Many doctors sometimes commit negligence, a few with devastating results. Arbitrary caps on recoveries or a more onerous procedure to try or arbitrate cases is just bolting the door for doctors and their insurers. “Reform” in this area might be useful, but it can never be if patients and the plaintiff’s bar are not allowed to participate in how that “reform” is structured.

In short, this strikes me as another example of ceding the field before negotiations, or of holding major substantive discussions away from the public eye so that those most affected by these health care, insurance and legal reforms will have no say in it.

I think the Workers Comp model would work for everybody. We provide insurance type coverage for all injuries suffered in the hospital or in medical care, generally. Right now, people who get MRSAs at the hospital can’t sue because the cost is out of line with the recovery. If there were a solid coverage in a Workers Comp format, they could get partial recompense for nearly being killed and the fright that goes with it.

The simpler rules would make it possible for more lawyers to represent people damaged by the system. Even with limits, compensation to them would increase the number of lawyers who could participate in the system, just as they do now in the Workers Comp area.

The insurance becomes cheaper if doctors and hospitals clean up their own acts, with the tools Obama is talking about. So, there is a synergy with the other technical approaches to the cost of the system.

The big problem is down the road, when whiny insurance people and the whiny hospitals start complaining about the cost of the insurance and try to cut benefits to reduce costs, instead of improving services. To deal with this, you have ratings for docs and hospitals that drive up costs for the poorer providers, and charge a lot less to doctors and hospitals that don’t damage as many people.

One aspect of reform from the patient’s perspective, for example, is to give public access to the statistics on claims made and outcomes (dismissal, small win/loss, huge loss) against individual doctors. Insurance companies have it; it’s one criterion for how they price their products to doctors. It’s the sort of “perfect” information market advocates assume all players have, and which is a pre-requisite for making informed decisions.

Patients might puzzle over the average numbers for a while, but those with lots of claims made against them, several huge losses, or several in a row after a long period of no claims, would be shunned, which is how the “market” is supposed to work. I don’t see how that’s possible if only the vendors and their protectors have the necessary information.

On the other hand, doctors have ready access to claims made by a would be patient against doctors. An association of doctors in Texas a few years ago made headlines when it was revealed that they had agreed not to provide services to those who had sued their care provider.

Both of these are blunt instruments. The most costly negligence is the behavior of a small number of practitioners. But that stand in for better regulation by practitioners or by an outside body. Until that happens, patients need more information. Even then, the current insurance-medical model severely limits choice as well as access.

One side thinks reform means, in political-speak, “do away with”. If it is true reform, I am for it.

I have a doctor friend who has been sued when patients didn’t follow her advice and got sicker, and our pediatrician is being sued by patients who did follow his advice, to the point of abrogating common sense, and their child suffered terrible damage as a result. Yet the hospital that put another friend in intensive care last week (broke their own protocol? hired incompetents? not sure about this one) by giving her a glucose IV after surgery when her chart clearly said she is diabetic – should she have no recourse?

I guess it depends on what their definition of reform is…

There will be adverse outcomes in medicine no matter what. The key here is to reduce those associated with healthgiver error as much as possible.

The medical profession does a really piss poor job of policing its own. Tort actions are about the only way to hold anyone in the profession accountable. Under single payer universal healthcare, patients would not have to sue to obtain the care they need from medical error. A universal system could also standardize what best practices mean, the amounts of payouts for pain associated with malpractice, and disciplinary action against offending physicians and caregivers (for instance, a doctor could not move cross state or out of state to start up again as happens now).

Thanks for tying together the potential positive outcomes for reform with the adoption of universal coverage. You suggest changes that would benefit many, doctors as well as patients and insurers.

My concern is that if only doctors and insurers are at the political bargaining table, because they are so well organized, patient concerns never get a hearing and are never built into the reforms.

I am not so sure of the workers comp model, at least not as it is set up here. It caps compensation and attorney fees, neither one of which am I crazy about. Listen, the problem is not, and never has been, runaway juries and tons of fleabag lawyers spuriously filing claims, that argument is fraudulent. Much more problematic, if you ask me, and I have practiced in this area in the distant past, is the cost, fraud, and inefficiency in healthcare. If you fix those areas alone, there will be significantly less mistakes, therefore less claims, lawyers and payouts. On top of that, from what I have seen, the single biggest factor in running up attorney hours, cost and huge payouts is the medical malpractice defense bar, the med mal insurers and their and their clients attitudes in how they handle claims. Many claims could be resolved quickly and cheaply, but doctors and medical providers arrogantly refuse to admit fault, refuse to negotiate, and the defense attorneys bill by the hour at ridiculous rates and fight every little iota of everything all the way to the hilt. I would argue that these factors are all far more responsible for the severe costs of medical malpractice, and light years more that big verdicts and/or spurious claims.

And what Hugh said. Totally part and parcel of what I am saying. There are a lot of reasons for the high combined cost of med mal, but the framing that has consistently been painted by doctors and politicians is a fraud and a lie.

Squeezing costs out, but not reforming process leads to raw cost-cutting. That typically results in overworked staff, or too few or poorly trained staff. That increases the likelihood that someone will fail to read obviously noted cautions about an underlying condition – diabetes, in your example, or an allergy to a commonly prescribed drug, such as penicillin – because it doesn’t directly relate to the procedure for which a patient is in the hospital for treatment. That’s routine negligence and it’s preventable.

Insurers cover up more than direct negligence when they defend their clients. They cover up the underlying conditions that make it more likely.

This sort of discussion should remind politicians that greatly expanding access to health care is an important social right. (I would do it, in part, by reducing the role and incomes of private insurers, who have lucrative incentives to restrict and deny coverage.) But continuing reforms are and will be needed in other areas, a circumstance that should be built into the reforms themselves.

I rarely get this personal on political issues, but on this one I do.

As many of you know, my breast cancer was misdiagnosed several years before I was properly diagnosed. The doctor in question was at UM’s student health services; he was systematically denying women access to breast health diagnoses (he did the same to a friend of mine), almost certainly bc of the way UMHS gets reimbursed from UM’s insurance company for patient visits. Further, there was some indication that UMHS knew this guy was doing this, and recognized it to be a problem. And he claimed my primary care doctor didn’t know what she was talking about–even though she was trying to get me what I now know was standard of care for someone of my age and condition at the time. But because it was more than two years before I was diagnosed, I was not able to sue this fucker.

And then I went onto breast cancer treatment as a young woman and found that–with one exception–every single male doctor I dealt with was less than competent. One even told me that tamoxifen, the hormonal treatment they give women who are pre-menopausal, would put me into menopause (in fact, tamoxifen was developed as a fertility treatment–it does enhance fertility, not shut it down, but they cannot use it for that purpose because it causes horrible birth defects).

So while I might otherwise support efforts to bring down the premiums of doctors in high premium specialties, there needs to be the hammer to hold incompetent doctors accountable. The AMA–like the Society of Professional Journalist–simply doesn’t do enough to police the incompetents within its ranks. Anything that will make them less accountable will hurt medicine overall.

Thanks for sharing that. It’s the essential perspective we need when considering whether/how to restrain consumers/patients from demanding accountability from those who harm them through negligence or otherwise. That was the whole point of the tort system in the first place, but instead this point gets lost in the partisan debates.

I agree. Arbitrary recovery caps, always based on rosy expectations for cost, inflation and pain & suffering, limit cost by externalizing a portion of it onto patients harmed by medical error. (We’re debating damages; the error and liability for it have already been determined.) They don’t reform the underlying system that made health care practitioner induced harm more likely.

I agree that insurance defense practices are as egregious as any claimed drama from the plaintiff’s bar. It’s a drawbridge mentality: only the most grievously harmed patients – with the most expensive injuries – lay siege to doctors ensconced in their insurance keep long enough to obtain recovery. By definition, these are extremes and result in big awards that are decried by the losers and celebrated or met with relief by lawyers and their harmed patients (or their survivors). They represent the extreme on the hyperbolic curve, but make great press releases for pols.

Reforms of medical care are needed as much as reforms in how that care is paid for or who has access to it.

Recommended.

Many excellent comments.

IMHO, quality control has a long way to catch up to the industry. Malpractice only exists inside a real specialty. Many physicians are now simply the sales staff for various medical supply manufacturers. Waste, fraud, abuse, mal-practice can be very narrow and frequently understood only by insiders who also know the patient’s history.

Orthopedics, see Medtronics for a clinic on how to defraud the government and commit mal practice.

Pulmonary: UW Medical School faculty, M.D.’s, were taking money from an anti-smoking drug-maker and not disclosing that to their patients to whom they prescribed the drug.

Cardiologist: Don’t tell patients who have requested “no-code” to wear a medallion around their necks that says “do not resuscitate.” Without that medallion, EMT’s have to resuscitate and that puts them on the ventilator, usually after they are brain dead. As I understand it, that’s where most health care dollars get used, the last ninety days of a patient’s life. Hospitals and cardiologists can bill until the cows come home and the familiy thinks it’s because they care.

Psychiatrists take kick-backs from drug manufacturers to prescribe their meds. As I understand it, big pharma gets the records. They know exactly what Doctor is prescribing and how much. This is especially lucrative with Medicaid patients. Doctor loads them up on as much of the drug as possible. The doctor doesn’t care if the patient actually takes the drug. As long as the script is filled, the doctor and the pharmacist both get paid.

Internists/Primary Care, frequently don’t want to give tests for lead poisoning to children covered by Medicaid, because it’s not a profitable test. Medicaid requires that test, but the docs choose to ignore it. That can lead to huge down stream costs associated with the serious side effects of lead poisoning.

WE have a lot of great physicians here at FDL, but the shortage of physicians (caused by the AMA controlled Liasion Committee on Medical School Education) makes quality control more difficult.

I agree with ew, the profession does not do enough to police itself.

Yeah, that is really true. And if the siege did not have to be laid to get there, and if those claims (which are usually fairly egregious if they have the capability of going that far, were dealt with intelligently, those giant verdicts would have been resolved for a fraction of that which they gestate to having to be fought tooth and nail through jury verdicts and appeals.

Boo, the profession doesn’t do dick to police itself. Maybe it is better in other jurisdictions, but here the local state med board is totally worthless.

My thanks as well for sharing your story and for humanizing the debate. You raise another problem with the Right’s “barring the door” approach to compensating patients: statutes of limitation.

Insurers love short ones that start from the date of care. As with anti-consumer, illegible bank documents, they are simple and easy to administer, especially when it comes to determining which insurer/contract is implicated. They do nothing for patients, most especially as in your case, where the negligence isn’t as obvious or even pragmatically discoverable as the date of care.

Had your care continued with the same doctor, two things seem likely: he would not have discovered, revealed or corrected his own negligence – more likely, he would have repeated it many times over – and journalism, the FDL community and your family and friends would have a gaping hole in them. That you changed doctors is a relief to us, too.

A less arithmetically certain, but fairer standard for patients, would be starting the statute of limitations from discovery of the malpractice (or the date when a reasonable, reasonably informed patient would have discovered it), not the date of care. In your case, it sounds like that would have left open an opportunity to sue a negligent or reckless “care” provider for the harm he caused to you, and could and may still be causing others.

Theoretically, it is from discovery; but man do you play hell with proving that if you are beyond the hard date. It ends up being a whole litigation in and of itself and their doctors, their carriers and attorneys simply drag you out and try to bleed you dry so you will go away before ever getting to the case in chief. It is fucked up.

I recall hearing that medical malpractice claims/cases actually account for less than 1% of costs related to the health care industry in this country.

Tort reform surely has been a mission for the Right, and I came across a great 2003 Commonweal Institute report on the issue, which I thought I should share. Obama must have something up his sleeve…perhaps to just disarm the tort reform plank of the RW, by tackling the issue now??

http://www.commonwealinstitute…..tort-law-1

The sections of the document are as follows, as a way to give a sense of the document…

Section 1 – Tort Reform Organizations and the Far Right…..- 3 –

A Network of Seemingly-Independent Organizations…………- 3 -
The Funding Behind the Right-Wing Movement Organizations….- 4 -
Coordination and Interconnection of the Right-Wing Movement Organizations………………………………………..- 4 -
The Ideology Underlying Tort Reform Arguments……………- 6 -
The Political Agenda – Defunding Trial Lawyers…………..- 8 –

Section 2 – Reaching the Public, Legislators and Judges…..- 10 -

Multi-Issue Think Tanks and Communications Organizations….- 10 -
The Right’s Communications Infrastructure……………….- 10 -
A Broad Campaign, Utilizing Multiple Channels……………- 11 -
Coordinated Dissemination of Ideological Messages………..- 12 -
The Tactic of Creating Conventional Wisdom………………- 12 -
Reaching State Legislatures……………………………- 13 -
Tort Reform Organizations Work to Influence, Elect, & Appoint Supportive Politicians and Judges………………………………..- 14 –

Section 3 – Effectiveness of the Tort Reform Campaign…….- 16 –

The Right Sets the Public Agenda……………………….- 16 -
Influencing Jurors……………………………………- 17 -
Achieving Their Goals…………………………………- 18 -

Section 4 – Conclusion………………………………..- 19 -

Fighting Back………………………………………..- 19 –

I agree completely.

That’s an excellent pitch for Single-Payer; nice synthesis.

I gather Obama was not for tort reform, but this diary throws doubt on that. I’m not holding my breath, that’s for darn sure as mustard.

Gracias Styve; exactly what is needed to push back on this subterfuge by Obama and the Repubs.

“He’s touched on this issue at a number of meetings,” Sen. Ron Wyden, D-Ore., told the Times. Wyden, who supports liability reform, said Mr. Obama has “the common sense message that if doctors act in line with their own professional guidelines, that ought to create a certain presumption that they have acted reasonably.”

Now, it’s been years such my studying ot Torts while getting accreditted as a ‘legal assistant’ but I do remember that one essential part of Torts was the ‘reasonable person’ aspect of whether such an action against another was based on the action in question being ‘reasonable’(e.g.if you are trained in CPR and give it and the person dies, then no problem but if one isn’t trained in CPR and a person dies while trying to aid them, then one ‘could’ be held somewhat responsible for that person’s death).

So when Daschle talks about ‘acting reasonably’ it’s just bullshit; there is nothing reasonable about amputating the wrong limb, giving the wrong drug,leaving instruments embedded,etc.

Tks,Scarecrow,again rec’d.

I might refine your analogy. If one is trained and certified in administering CPR and gives it properly, but the patient dies, there’s no liability. The first responder properly administered CPR, but it neither caused nor prevented harm.

Had that first responder gone into a panic, or been too deprived of sleep owing to overwork, and excessively depressed the chest of a median-sized male (not a frail child), cracking the sternum and causing complications or death, that caregiver acted negligently.

That caregiver lacked the intent to do harm, but did it anyway, by not providing care in the manner in which s/he was trained to give it. S/he would be liable in some manner, because a portion of the harm resulting to the patient was a direct and foreseeable outcome of that negligence.

Had the caregiver responded to an order from Fourth Branch to take the gloves off, with the same result, s/he is just as liable civilly to the person harmed, but also committed a crime.

But I do think we need to explore a range of ideas about how to put patient safety first; how to let doctors focus on practicing medicine; how to encourage broader use of evidence-based guidelines. I want to work with the AMA so we can scale back the excessive defensive medicine that reinforces our current system, and shift to a system where we are providing better care, simply — rather than simply more treatment.

My bold I think we have wiggle room here. Doctors working less hours more nurses more preventive care. Doctors working less hours less mistakes do to overwork.
More nurses less mistakes our current healthcare model cuts costs at the PREDICTABLE expense of patients health. What are the Doctor caused mistakes in other countries and their staffing levels?
More preventive care means catching stuff early and that means long term savings catching cancer or heart disease early before patients are forced to go to the Doctor means less catching it before its to late and EXPENSIVE emergency surgeries are done.
The chances of something going wrong increase with the more complex the surgery.
Of course we will need numbers on savings and estimates on how long it will take for preventive care measures to produce savings.

Here’s an overview of medical error from AHRQ:

Evidence of Quality Problems

Several types of quality problems in health care have been documented through peer-reviewed research.

Variation in services. There continues to be a pattern of wide variation in health care practice, including regional variations and small-area variations. This is a clear indicator that health care practice has not kept pace with the evolving science of health care to ensure evidence-based practice in the United States.

Underuse of services. Millions of people do not receive necessary care and suffer needless complications that add to costs and reduce productivity. Each year, an estimated 18,000 people die because they do not receive effective interventions. For example, a study of Medicare patients who had suffered heart attacks found that only 21 percent of eligible patients received beta blockers. The mortality rate among patients who received beta blockers was 43 percent lower than it was among nonrecipients.

Another AHRQ-funded study examined the use of beta blockers before heart bypass surgery and found that patients who received beta blocker therapy before surgery had lower rates of death and fewer complications both during and after surgery than patients who did not receive this therapy.

Select for Figure 1 (2 KB).

Overuse of services. Each year, millions of Americans receive health care services that are unnecessary, increase costs, and may even endanger their health. Research has shown that this occurs across all populations.

For example, an analysis of hysterectomies performed on women in seven health plans found that one in six operations was inappropriate. A study examining the use of antibiotics for treating ear infections in children on Medicaid found that expensive antibiotics were used far more often than indicated.

According to the findings, if only half the prescriptions written in 1992 for more expensive antibiotics had been written for amoxicillin, a less expensive but equally effective antibiotic, Colorado’s Medicaid program would have saved nearly $400,000 that year.

AHRQ-Supported Research Demonstrates Overuse of Preoperative Testing

A recent study by AHRQ-funded researchers found no differences in outcomes between patients who did and did not undergo routine preoperative testing before cataract surgery. Cataract surgery is the most common operation among the elderly in the United States. In 1996, Medicare beneficiaries had about 1.5 million cataract operations. Routine medical testing before cataract surgery is estimated to cost Medicare $150 million each year.

Cataract surgery is usually an outpatient procedure, and rates of illness and death associated with the procedure are very low. This large randomized study involved nearly 20,000 elective cataract operations in 18,189 patients at nine surgical centers. The overall rate of complications, both during and after surgery, was the same for both groups (31.3 per 1,000 operations). The researchers conclude that routine preoperative testing confers no benefit on patients having cataract surgery.

Misuse of services. Too many Americans are injured during the course of their treatment, and some die prematurely as a result.

For example, a study of injuries to patients treated in hospitals in New York State found that 3.7 percent experienced adverse events; 13.6 percent of these events led to death, and 2.6 percent led to permanent disability. About one-fourth of these adverse events resulted from negligence. A national study found that over a 10-year period (1983-93), deaths due to medication errors rose more than two-fold, with 7,391 deaths attributed to medication errors in 1993 alone.

Disparities in quality. Although quality problems affect all populations, they may be most marked for members of ethnic and racial minority populations. Researchers at the University of Alabama at Birmingham examined the use of thrombolysis (”clot busters”) for patients who had experienced a heart attack and found that while this evidence-based life-saving treatment was underused for all, black Medicare beneficiaries were significantly less likely than whites to receive this treatment.

Note: “Adverse Events” is code for brushes with death or major disability.

watertiger is upstairs!
Late Night: “Git off, Pa, Yer Crushin’ Mah Marlboros!”

Many claims could be resolved quickly and cheaply, but doctors and medical providers arrogantly refuse to admit fault, refuse to negotiate, and the defense attorneys bill by the hour at ridiculous rates and fight every little iota of

My bold maybe limit defense attorneys pay on these cases?

I am in agreement with emptywheel….

I was diagnosed with a 7 cm kidney tumor by a CT scan, on the chest CT, there were 5-6 nodules (cancer) in my lungs 3-6 mm in size. NO ONE TOLD ME, I had my surgery to remove my kidney and told to come back in a year for follow up. I was told I was stage 2 cancer and the surgeon said “I got it all”. Actually I was a stage 4 and needed immediate treatment.

When I did have a follow up chest CT, one tumor was 5.2 cm and pretty much took up the whole bottom of my right lung.

I have a failure to treat, diagnosis and possibly a bias because kidney cancer is very deadly, very rare but high on the death rate…

Wow. My condolences. Does the right medical hand ever know what the left hand is doing?

I can’t imagine the stress of pursuing treatment, on the one hand, while pursuing legal remedies on the other. The sense of violation would exhaust whatever the treatment hadn’t already taken out of me.

Terrific post!

It would appear there are many doctors who simply refuse to diagnose or treat some kinds of problems. Maybe it doesn’t pay or the risk to them (malpractice) is too great.

But, most importantly, it does the patient no good and it has to be considered outside the bounds of ‘best practices’. Accidents are one thing, but intentionally not treating (or worse, lying to the patient) is a terrible consequence of our current system and it must be changed.