Healthy Policy

Good news and bad news

The bad news is that the Senate is moving forward with malpractice reform.  They're fairly typical -- caps on all non-economic damages over $750,000, and $250,000 for individual practitioners.  Refer to my series on the Medical Malpractice Myth for more extensive discussion of the evils of tort reform, but the basics are these:

• The problem isn't lawsuits, but medical malpractice, which injures hundreds of thousands of patients a year, and our current system doesn't do enough to protect against medical error.

• Tort reform, which mostly involves caps on awards, would do nothing to prevent medical error

• Only 3-4% of injured patients sue; there are far fewer lawsuits than we would expect

• Tort reform fails to address this issue as well, and we would expect even fewer patients to receive compensation for their injuries

The good news is the Senate, unlike its radical counterpart, took out clauses preventing medical device and pharmaceutical companies from  punitive damages if their device was approved by the FDA.

While that clause seems logical at first glance, recent problems with Guidant and faulty manufacturing (which is totally separate from whether the device works in the first place), gives more than enough pause.  Also, as pharmaceutical companies haven't been exactly honest in reporting the findings of their clincial trials, the tort system of checks and balances is something that needs preservation.

Defensive Medicine Revisited

Well, we're back to the defensive medicine argument.

Ezra's weighed in this time, calling the whole discussion of DM a red herring:

One of my least favorite detours in the health policy debate is the inevitable stroll down Defensive Medicine Avenue. The trajectory is something like this: Conservative Bob brings up malpractice suits. Communist Klein notes that the entire costs of medical malpractice -- lawyer fees, settlements, insurance premiums, everything -- are .46 of one percent of health spending in this country. Ouch. ConservaBob, reeling, throws his hail mary: defensive medicine.

Defensive medicine, henceforth DM, denotes otherwise useless procedures ordered by doctors afraid of lawsuits. Health wonk Kate Steadman, who thinks it bull, reviews the literature here.    Health professional Shadowfax argues the other side here.  Young physician Graham Walker stakes out the middle ground here.  I fall closest to Kate, but I think the whole conversation is a red herring.

DM exists, to be sure, but it's not caused by lawsuits. It's caused by patients. If you define DM as procedures that wouldn't be ordered in a perfectly logical world, there's plenty of it. But the reason most of these tests are run has little to do with the abstract possibility of a lawsuit that the doctor is insured against anyway. They're done in order convert probabilistic diagnoses into virtual certainties.

I generally agree with Ezra; the real issue isn't defensive medicine at all, it's correcting a tort system that doesn't award injured patients properly or do enough to prevent medical error. 

Be sure to check out the comment thread over at Ezra's.  Another dimension here is clearly patient preference, and that even when tests are unnecessary patients will ask for them anyways, to ease their mind.  Shadowfax also weighs in with some thoughtful comments. 

Washington's Weird Bill

The Washington Senate just passed a hodge-podge medical malpractice reform bill unlikely to make a difference.

Breaking down the main provisions:

• Changes that would prevent apologies to patients from health care providers from being used in court, as well as a requirement that lawyers would have to file certificates of merit when filing suit against health care professionals

Y'know, it's really fun to play this game, but unmerited lawsuits pretty much never make it to court.  It's exceedingly difficult to sue, and lawyers have no incentive to go after cases with a high risk of failure.  This change is purely symbolic.

• the bill would place a $1 million cap on non-economic damage awards in malpractice cases that go to arbitration instead of trial

I'm trying to find the stat, but I imagine there aren't many arbitrations that involve over $1 million for non-economic damages, so it's unclear how much this would do.

• The malpractice bill also would enable the insurance commissioner to reject increases in doctors' insurance premiums and collect data on malpractice payouts for analysis

This just isn't the government's place.  Why?  Because the "data analysis" will end up in a vault (or hard-drive) somewhere and is unlikely to be used for anything.

• Members of the public would be added to the doctor disciplinary board

This one is the strangest of all -- what do they mean by "members of the public"?  Is it John Q. Patient or someone with actual knowledge about medical practice and licensure? 

There's no caps on damages or efforts to make it more difficult to sue, but this amalgam of ineffective measures is a sorry excuse for reform.  Mandatory reporting of injury, initiatives to set up more arbitration, and stricter punishment for doctors (i.e. license revocation) would be much sounder ways to proceed.

Update:  Reader Public Health Press points out the more pernicious aspects of the certificate of merit: "Requiring a certificate of merit is a real change, but the devil is in the details (I don't have the bill in front of me, but that won't stop me from posting my thoughts!). Illinois requires such certificates, and recently made changes to their process. Generally, certificates are filed by the plaintiff's attorney with an attached Affidavit of Merit by a licensed medical practitioner, who must review the record and state there is a meritorious claim. That, in and of itself, is an additional administrative hurdle and cost incurred by the attorney and the patient/victim up front, and the burden goes up depending on the qualifications required of the expert (for example, do they have to be in the same or a similar specialty, or can it be just any physician with some working knowledge of the area in question?). But here's the way they can make a big difference in the number of suits filed: if the affidavit of merit requires details about the reviewing physician be disclosed (e .g., physician's names, addresses, etc.), it can create a tremendous amount of peer pressure to prevent physicians from signing on to these cases, and therefore make it significantly more difficult to get over the hurdles needed to file the claim."

In which I demonstrate the conflicts in paying for health care

I'm now 8 weeks out of surgery, and it's been pretty slow-going.  For instance:

• I'm still on crutches, and have at least 5 more weeks
• I haven't started any official physical therapy
• I can only bend my knee 70 degrees
• My bone isn't healing as quickly as it should

Now, having said all that, my pain level is very low and if you asked me to choose one word to describe my surgery it would be "inconvenient". 

Because my bone is taking longer to heal than it should, my doctor prescribed me a bone stimulating machine, which is basically a little ultrasound machine I put on my leg for 2o minutes a day.  Unfortunately, these machines cost somewhere in the neighborhood of $2,000 - $3,000.  My insurance company, very cognizant of this cost, will only approve the machine for use if it's been at least 3 months since the fracture.  That means at the time it was prescribed to me (7 weeks) I'd have to wait 5 more weeks to even begin that therapy.  This policy make sense for insurers; most bones will be healed within three months and the machines are quite expensive.  The problem is patients are left languishing on crutches, being much less productive and having a lot more pain.  For me especially, because the minute I'm healed I'm packing my car and moving to D.C., this waiting period is particularly stressful.

But I managed to dodge the bullet because of the FDA.

The FDA approved this device with the stipulation that each couple thousand dollar machine be used only once (which in part accounts  for why the machine is so costly each time to the insurance company).  I asked the device rep why that is, and she thought it had something to do with part of the device contacting the skin, although that part could be easily replaced.   Because the device can only be used by one patient, patients keep the machines when their treatment is done.

By a fantastic stroke of luck, my dad broke a bone in his foot this spring and was prescribed the device.  While he had to wait the three months to get the machine (in part due to the fact he didn't realize he had a fracture for at least a month and half), he used it with fairly positive results. 

We were able to convince the device rep to let me use my dad's machine, so now I'm on the road to recovery 5 weeks faster than otherwise.  In quality of life terms, it makes a huge difference.  But if my dad didn't have the machine, and my only recourse was to pay the $2,000 to have it, I wouldn't (and couldn't). 

These are the trade-offs we need to think about when designing insurance.  On the one hand, it's psychologically frustrating to wait three months for treatment.  On the other, I wouldn't judge this particular treatment worth $3,000 instead of postponing it 5 weeks. 

No recourse

Via Kaiser, members of the Armed Services are forbidden to sue for medical malpractice under  the Feres Doctrine.   This doctrine holds even for injury caused by gross negligence. 

Meanwhile, the House in recent decades has passed several bills to allow military personnel to pursue lawsuits regarding injuries caused by improper medical care, but the legislation has failed to win approval in the Senate. In 2002, Veterans Equal Rights Protection Advocacy submitted to a Senate committee more than 150 cases in which military personnel or their families were unable to pursue claims because of the doctrine. "All we're looking for is accountability," Barb Cragnotti, legislative coordinator for the group, said, adding, "Because of that doctrine, there is no accountability"

This is truly terrible policy.  Research shows that doctors aren't driven by defensive medicine so shielding military doctors from lawsuits is illogical at best.  What does it say about our respect for our military if we don't hold their medical practitioners accountable? 

No on tort reform

My latest column is up at Campus Progress.  It's your handy guide to the case against tort reform.  Go check it out.

Estimating malpractice costs

The Washington Post reports on a new realization from a recent study on malpractice costs:

The insurance industry has long argued that huge losses from malpractice suits -- now running more than $7 billion a year -- have forced it to hike malpractice premiums, which more than doubled last year in some cities and for some specialties.

But a new study by a consumer group shows that losses reported to state regulators -- the figures often cited by the industry -- were much larger than losses actually paid during a nine-year period.

The study, by the Foundation for Taxpayer and Consumer Rights, a Santa Monica, Calif., advocacy group, found that from 1986 to 1994 the industry reported to regulators losses of $39.6 billion but actually paid only $26.7 billion, 31 percent less. The losses were overstated in each of the nine years.

That's quite an overstatement when you're dealing with billions of dollars. But it appears one of the biggest problems in the malpractice puzzle is a lack of information:

Fueling frustration on all sides: a surprising lack of data available from the nation's patchwork system of state regulation. Two years ago, the Government Accountability Office studied the problem and said that although insurance losses "appeared to be the greatest contributor" to higher premiums, a "lack of comprehensive data . . . prevented us from fully analyzing the composition and causes of those losses." The study concluded that Congress "may want to encourage" state regulators to collect data on "the frequency, severity and causes of losses on medical malpractice claims."

Even how much doctors actually pay in premiums is not readily available. Annual rates are kept by individual state insurance departments, and all sides rely on an industry newsletter, Medical Liability Monitor, based in Chicago, to collect data.

With all the moaning and complaining about malpractice costs, why aren't doctors demanding more information? The article states that many malpractice insurance companies are owned by physician groups. Don't they have a stake in what's actually driving malpractice costs? Or maybe their best interests are served in claiming it's the size of the awards and limiting those at the expense of patients.

And costs aren't as high as we think -- go read my post on U.S. malpractice awards compared to other countries.

Knowledge is power, people.

Wendesday Health Stuff

Hey everyone, I'm back! Thanks to all the well-wishers and commentors while I was gone. The appointment went well; I won't be having surgery for at least 2 and half weeks, possibly much longer. So rest assured I'll providing my usual commentary until then.

For now, I want to point you all to Graham, who wrote on Atul Gawande's recent New Yorker interview. The post originally caught my attention because someone highly recommended me Gawande's book, Complications: A Surgeon's Notes on an Imperfect Science.

In the magazine, Gawande comments on malpractice:

Are American doctors in a tougher position than those in, say, Great Britain or Canada?

The major difference between malpractice here and in Great Britain and Canada turns out not to be in the number of lawsuits. At this point, the U.K. and Canada seem to be catching up with our rate of lawsuits. The big difference is that the awards are far smaller. This is partly because of the traditions of their court systems, but it’s also because they have universal health coverage. Patients in those systems already have their medical expenses covered for their lifetime, as well as some disability benefits. So malpractice awards are restricted to other costs—lost wages, or compensation for suffering, for example—and these are much smaller costs on the whole.

Gawande's point seems pretty solid to me. Health care costs for a disabled child or chronically critical loved one can easily reach $1 million, and when heatlh care coverage isn't assured, that's a terrifying sum.

It makes sense, except that he's wrong. This Health Affairs article found that the average payment per judement in the UK was 36% higher than the average payment in the U.S.

Surprisingly, U.S. malpractice payments (including both cases that resulted in a judgment for the plaintiff and cases resulting in a settlement) were lower, on average, than those in Canada and the United Kingdom. In 2001 the average payment in the United States was $265,103, which was higher than in Australia but 14 percent below Canada and 36 percent below the United Kingdom. While U.S. media and public attention have focused on multimillion-dollar awards at the upper end of the range, the average was actually smaller than in Canada and the United Kingdom in 2001.

So, I'm not entirely sure where Gawande is getting his numbers from, but there's a serious disconnect here. If the UK payments had been 5% higher than U.S. payments, that'd be one thing. But the average UK payment here was $411,171 to the U.S.'s $265,103.

I'm hoping to see some good letters to the editor point this out. Anyone else have an idea if this could be a reasonable discrepancy? Or is Gawande just flat out wrong?