• Health Affairs covers malpractice

    I’m only upset I didn’t get to contribute.  Anyway.

    The September issue of Health Affairs focuses on medical malpractice in the United States, and there are a number of pieces in there worth reading.  I’m going to discuss just a few.  Unfortunately, those looking for “answers” may be disappointed.  While many of the pieces are rigorous and thoughtful, they are often based on models and have limitations that will undoubtedly leave them open to attack by those who do not like their implications.  That does not mean they should be ignored.

    Low Costs Of Defensive Medicine, Small Savings From Tort Reform, by J. William Thomas, Erika C. Ziller, and Deborah A. Thayer.  While many seem to believe that capping damages and awards is the panacea to the high cost of health care in the US, no one ever really seems to explain why.  The best explanation I have heard is that reducing indemnity payments will mean both fewer cases and less expensive cases, which will bring down the cost of malpractice insurance.  This will make doctors behave in a less defensive manner, and then they will practice better and cheaper medicine, since they fear lawsuits less.  In this paper, the authors attempted to explicitly quantify the relationship between physicians’ perceived liability risk and how they practices in ways that increased cost.  They used a number of large data sources to model this relationship, and then examined how behavior would change if premiums were reduced.  They found that a 10% reduction in premiums would lead to behavior changes that would result in a savings of about 0.1% of health care costs.  That doesn’t mean it’s not worth doing; it does mean that those who think simple tort reform is the real answer to lowering health care costs may be misguided.

    National Costs Of The Medical Liability System, by Michelle M. Mello, Amitabh Chandra, Atul A. Gawande, and David M. Studdert.  This is the all-star team, and they have put together a very well-written and comprehensive piece on the costs of the system , including indemnity payments, administrative costs, defensive medicine, and some other minor costs.  They found that the annual medical liability system costs are about $55.6 billion in 2008 dollars, or about 2.4% of all US health care spending.  You’ll note a theme when I say that this isn’t chump change, but it’s not nearly the amount portrayed during the health care reform debate when some argued tort reform would solve the health care cost issue.  Many will note that this article is, however, mostly a summary of evidence that has been gathered from other research.  Please don’t misunderstand me; you will absolutely will learn something by reading it.  But if you follow the research in the field, you will either agree or disagree with their findings depending on whether you agreed or disagreed with many of he papers that came before.

    Physicians’ Fears Of Malpractice Lawsuits Are Not Assuaged By Tort Reforms, by Emily R. Carrier, James D. Reschovsky, Michelle M. Mello, Ralph C. Mayrell, and David Katz.  As I said before, if you believe the arguments for tort reform, physicians fear of lawsuits eventually wind up with high health care costs.  You therefore need tort reform to assuage these fears so that practice changes.  People who take this at face value have never worked in my field.  A nationwide sample of physicians was surveyed to see if perceptions about malpractice claims were related to the actual risk of their being sued. They found even in states where objective measures of malpractice risk were low, there existed high levels of malpractice concern; this was true for  both generalists and specialists.  They also found that there were only modest differences in concerns about malpractice in states with and without common tort reforms. In other words, tort reform doesn’t appear to change physicians’ malpractice concerns much, and therefore may not decrease defensive medicine or health care costs much.

    There are others, and I hope to get to them soon.  Since I have often argued (from this post on) that malpractice reform is not the answer to the cost problem, I grant you that most of these conformed with my world view.  Hopefully, there will be some reasoned debate around these papers that might either change my mind or move the ball forward in terms of meaningful policy implementations.

    • I have a wife who quit practicing medicine because she worried too much about malpractice, so I may be too biased here. When one travels around the world and meets other docs, the issue of malpractice sometimes comes up. If they see someone with a minor headache, they send the patient home and do not worry about it, with a follow up appointment. We get a CT scan before they go home. From the doc’s POV, it is the cheapest option, especially since we dont pay for the CT. This is reinforced by the incentive of getting paid for the test also.

      As a result of these intertwined motivations, I am skeptical of the ability of the studies I have seen to separate these out. What I would note, is that in countries without much malpractice litigation, there is not a notable difference in care in terms of outcomes. Malpractice does not seem to force docs to practice better as some claim.


    • I don’t deny the fear is real. But often, the fear is not based on evidence. For instance the number of actual cases of people who have been sent home for minor headaches, who actually had minor headaches, and then sued as a nuisance case is likely a very, very small percentage of cases. These instances are often apocryphal. See my earlier posts on this. One of the best predictors is communication and the patient/cod relationship, not what we imagine it to be.

      Also, malpractice is different in many other countries because care is assured. You have to remember that often, indemnity payments are mostly for future care. If you didn’t have to worry about paying for future, you wouldn’t sue.

      Regardless, you will get no argument from me that we need to reform the system. But we need to reform it based on actual data and in ways that will work, not just score political points.

    • I’m a practicing physician (in an academic setting) and these studies are consistent with my personal experience. Defensive medicine is practiced but nowhere near to the extent suggested by the most vocal advocates of tort reform. A point I haven’t seen addressed, however, is how defensive medicine actually occurs. I think the scenario of unecessary studies obtained because of explicit fear of litigation is rare. What does occur, and is relatively common, is unecessary duplication of studies because of inadequate documentation. Its very common to see patients who have had some prior evaluations but what has been done and the actual results are not available. There is then legitimate concern that something important has been overlooked. This leads to frequent repetition of studies. Litigation concerns are a contributing factor in these situations. The answer to this problem isn’t tort reform, its better medical records systems, and I suspect medical records reform would have a bigger impact on costs than tort reforms.